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would be better to cease troubling ourselves about primary rights and
sanctions altogether； than to describe our prophecies concerning the
liabilities commonly imposed by the law in those inappropriate terms。
I mentioned； as other examples of the use by the law of words drawn from
morals； malice； intent； and negligence。 It is enough to take malice as
it is used in the law of civil liability for wrongs what we lawyers call
the law of tortsto show that it means something different in law from
what it means in morals； and also to show how the difference has been
obscured by giving to principles which have little or nothing to do with
each other the same name。 Three hundred years ago a parson preached a
sermon and told a story out of Fox's Book of Martyrs of a man who had
assisted at the torture of one of the saints； and afterward died；
suffering compensatory inward torment。 It happened that Fox was wrong。
The man was alive and chanced to hear the sermon； and thereupon he sued
the parson。 Chief Justice Wray instructed the jury that the defendant
was not liable； because the story was told innocently； without malice。
He took malice in the moral sense； as importing a malevolent motive。
But nowadays no one doubts that a man may be liable； without any
malevolent motive at all； for false statements manifestly calculated to
inflict temporal damage。 In stating the case in pleading； we still
should call the defendant's conduct malicious； but； in my opinion at
least； the word means nothing about motives； or even about the
defendant's attitude toward the future； but only signifies that the
tendency of his conduct under known circumstances was very plainly to
cause the plaintiff temporal harm。
In the law of contract the use of moral phraseology led to equal
confusion； as I have shown in part already； but only in part。 Morals
deal with the actual internal state of the individual's mind； what he
actually intends。 From the time of the Romans down to now； this mode of
dealing has affected the language of the law as to contract； and the
language used has reacted upon the thought。 We talk about a contract as
a meeting of the minds of the parties； and thence it is inferred in
various cases that there is no contract because their minds have not
met； that is； because they have intended different things or because one
party has not known of the assent of the other。 Yet nothing is more
certain than that parties may be bound by a contract to things which
neither of them intended； and when one does not know of the other's
assent。 Suppose a contract is executed in due form and in writing to
deliver a lecture； mentioning no time。 One of the parties thinks that
the promise will be construed to mean at once； within a week。 The other
thinks that it means when he is ready。 The court says that it means
within a reasonable time。 The parties are bound by the contract as it
is interpreted by the court； yet neither of them meant what the court
declares that they have said。 In my opinion no one will understand the
true theory of contract or be able even to discuss some fundamental
questions intelligently until he has understood that all contracts are
formal； that the making of a contract depends not on the agreement of
two minds in one intention； but on the agreement of two sets of external
signsnot on the parties' having meant the same thing but on their
having said the same thing。 Furthermore； as the signs may be addressed
to one sense or anotherto sight or to hearingon the nature of the
sign will depend the moment when the contract is made。 If the sign is
tangible； for instance； a letter； the contract is made when the letter
of acceptance is delivered。 If it is necessary that the minds of the
parties meet； there will be no contract until the acceptance can be
read； none； for example； if the acceptance be snatched from the hand of
the offerer by a third person。
This is not the time to work out a theory in detail； or to answer many
obvious doubts and questions which are suggested by these general views。
I know of none which are not easy to answer； but what I am trying to do
now is only by a series of hints to throw some light on the narrow path
of legal doctrine； and upon two pitfalls which； as it seems to me； lie
perilously near to it。 Of the first of these I have said enough。 I
hope that my illustrations have shown the danger； both to speculation
and to practice； of confounding morality with law； and the trap which
legal language lays for us on that side of our way。 For my own part； I
often doubt whether it would not be a gain if every word of moral
significance could be banished from the law altogether； and other words
adopted which should convey legal ideas uncolored by anything outside
the law。 We should lose the fossil records of a good deal of history
and the majesty got from ethical associations； but by ridding ourselves
of an unnecessary confusion we should gain very much in the clearness of
our thought。
So much for the limits of the law。 The next thing which I wish to
consider is what are the forces which determine its content and its
growth。 You may assume； with Hobbes and Bentham and Austin； that all
law emanates from the sovereign； even when the first human beings to
enunciate it are the judges； or you may think that law is the voice of
the Zeitgeist； or what you like。 It is all one to my present purpose。
Even if every decision required the sanction of an emperor with despotic
power and a whimsical turn of mind； we should be interested none the
less； still with a view to prediction； in discovering some order； some
rational explanation； and some principle of growth for the rules which
he laid down。 In every system there are such explanations and
principles to be found。 It is with regard to them that a second fallacy
comes in； which I think it important to expose。
The fallacy to which I refer is the notion that the only force at work
in the development of the law is logic。 In the broadest sense； indeed；
that notion would be true。 The postulate on which we think about the
universe is that there is a fixed quantitative relation between every
phenomenon and its antecedents and consequents。 If there is such a
thing as a phenomenon without these fixed quantitative relations； it is
a miracle。 It is outside the law of cause and effect； and as such
transcends our power of thought； or at least is something to or from
which we cannot reason。 The condition of our thinking about the
universe is that it is capable of being thought about rationally； or； in
other words； that every part of it is effect and cause in the same sense
in which those parts are with which we are most familiar。 So in the
broadest sense it is true that the law is a logical development； like
everything else。 The danger of which I speak is not the admission that
the principles governing other phenomena also govern the law； but the
notion that a given system； ours； for instance； can be worked out like
mathematics from some general axioms of conduct。 T