Philosophical Foundations of Legal Pragmatism:

The External Standard in The Common Law:


            Oliver Wendell Holmes, Jr. wrote that “the tendency of the law everywhere is to transcend moral and reach external standards.”[1]  The analysis by which Holmes arrives at this dictum concerns both epistemology and historical analysis.  In this paper I will show how Holmes puts C.S. Peirce’s epistemology to work in his historical analysis in order to articulate the external standard of legal liability in The Common Law.[2]  Holmes’s external standard relies on several insights, most clearly expressed by Peirce, including the lack of the power of intuition, the lack of an intuitive ability to distinguish between subjective modes of consciousness, and the lack of the ability to intuit knowledge internal to the mind.  These factors provide an epistemological and logical groundwork for the historicism Holmes uses to uncover the external standard in The Common Law.  Upon these foundations, Holmes shows that the language which draws moral distinctions in actions, such as malice, intent, and culpability, is only an inference based on external circumstances.  Legal analysis refutes the efficacy of recourses to evidence of states of minds of the defendant to purport moral culpability.  Instead, the analysis shades away the moral side of the act in question.[3]  Peirce’s early articulation of pragmatism concerning cognition and external facts serves as the philosophical foundation for Holmes’s early articulation of the external standard in the common law. 

            Central to Peirce’s investigation concerning these capacities claimed for man is the term intuition.  He defines this as any cognition, which is not determined by a previous cognition, but instead by its transcendental object.  His short-hand way of defining this is a “premise not itself a conclusion.”[4]  To summarize the question at hand, we might work backwards from what we feel we know as an intuition.  For instance, A=A is no doubt an intuition, and Peirce does not doubt or attempt to invalidate that.  Instead the question hinges on whether this intuition is known intuitively and not from a previous cognition.  And although it certainly feels as though we know it intuitively, to assert that our feeling of its intuitive nature is itself intuitive backs our inquiry into a regress, whereby we must at some point presuppose that which we are trying to demonstrate.[5]  Whether a cognition has been determined by another cognition or by a transcendental object[6] does not seem to Peirce to be a part of the cognition itself.  If the “action or passion of the transcendental ego” contains an element a part of which is this determination or nondetermination by a previous cognition, then we do have this intuitive power to differentiate an intuition from another intuition.  Peirce says there is no evidence that this is the case.[7] [8]

            Holmes wrote the Common Law in order to develop a general principle of liability.  He analyzes the concepts of possession, negligence, and trespass in order to develop the external standard as this general principle.  Important to this analysis is his reduction of rights to facts.  Rights often signal a transcendental import and invite the question as to how we have knowledge of rights.  Insofar as rights can be intuited, Holmes rejects them, which reflects Peirce’s dismissal of the need for a supposition of the power of intuition in its various forms.  Something akin to Kantian morality considers rights as existing separately from the consequences of violating a duty.  And Holmes considers duties and rights to be nothing other than predictions about the consequences of breaking the law, as determined by the court.[9]

            In order to reduce questions of right to questions of facts, Holmes turns to an historical analysis of the law.  He shows that the origin of the common-law notion of possession, and therefore wrongful conversion, is found in the redress of tracking down stolen cattle and taking them back with a strong arm.  In Salic law, reacquiring stolen cattle and the executive nature of the claim to get the cattle back was based on persons, not owners, on possession, not title.[10]  The case of wrongful transfer by the bailee revealed that bailees have the possessory remedies.  The right of the baliee to trespass was founded on the fact of his possession.[11]  The result of the historical analysis of this rule through German law to common law is that possession is a fact, not a right.  A right, as the law considers a right, is a legal consequence of a facts defined by the law extending to contract, property, and other substantive notions.[12]  The rights of ownership or contract are founded on possessory rights.  The facts which constitute possession are control of the object, but this control, writes Holmes, is just a “relation of manifested power co-extensive to the intent [to exclude others],” which Holmes analyzes first. 

            However, I want to return to Peirce’s arguments to show the epistemological foundation for the way Holmes problematizes intent, a concept which governs the path of moral and legal theory which he is amending in the Common Law.  Peirce questions whether or not we have any intuitive power of distinguishing the subjective elements of different kinds of cognition.  Peirce claims that every cognition contains an objective side, that which is represented, and a subjective side, the passion by which it becomes represented.  He wants to know whether the character of the subjective element can be intuited.  If we are distinguishing between sensing and imagining objects, the fact that we can discern a difference in the objects sensed and imagined serves as an argument against the need to suppose the power of intuiting their subjective difference, as we can start with the objective character of those cognitions and infer their subjective character.[13]  When we distinguish between beliefs and conceptions, we must confront the hypothesis that knowledge of a belief is essential to its existence.  But beliefs can be differentiated from conceptions by being accompanied by a feeling of conviction in them.  On the one hand, this is a mere feeling or sensation, in which case that sensation is another cognition, whose subjective character needs to be inferred from its objective character.  On the other, the feeling of conviction takes the form of a judgment to act, in which case, the observation of the external fact of the act gives rise to the inference of the sensation of conviction accompanying the belief.  Thus Peirce disposes of the need to suppose this power of intuiting the subjective qualities of cognitions.  

            Returning to Holmes’s analysis of intent, in terms of intent to deal with the thing as owner, allows me to address the problem of the court’s access to the state of mind of the person possessing the object.  Here, he finds German legal theory, which has operated under some form of Kantian or post-Kantian philosophy, unsatisfactory.[14]  Holmes traces the influence of this way of thinking back to Roman law and to the philosophy of Rousseau.  German lawyers address the issue of possession and intent to deal with the object as an owner from the perspective of the “Rights of Man,”[15] which treats possession as an extension of the ego’s will on an externality; the right to possession is treated, by Hegel for instance, as an objective realization of free will.  The treatment of intent as “self-regarding” by German lawyers “goes to the height of an intent to appropriate,” to bring the object under the “personality of the possessor.”[16]

            However, this line of thinking gets the cart before the horse, as it confuses moral and legal thinking.[17]  Running through much of Holmes’s scholarship, first articulated in “Codes and the Arrangement of the Law,”[18] is the determination that legal duties precede legal rights.  The law operates by limiting freedom of action on the part of more or less people in particular ways.  The law does not grant our freedom of use of certain objects; rather it limits the freedom of others from interfering with our use.  Therefore, the intent sought after in the analysis of possession, is the intent to exclude others.  This is the wedge that he drives between the German and the Anglo-American accounts of possession and ownership.  The latter grants the right of possession to bailees because of their intent to exclude others, but it does not grant them ownership because there is not intent to hold as an owner, which is how possession is defined if the order of the law proceeds along the German lines, from rights and free will to the exercise of intent to appropriate and make the object part of one’s person.[19]  Furthermore, when Holmes analyzes what the power to exclude others is, as the power is co-extensive with the intent, he emphasizes that the law only deals with the power manifested in external facts.[20]  In reference to a burglar peering into a window at a purse, Holmes states that since the law deals with overt acts which can be known by the senses, the burglar has not manifested his intent or obverted the owner of the house’s possession of the purse.[21]  The inability to judge the intent of the burglar corresponds to the inability of our own introspection, but once removed.  The burglar may have the intent to steal before the external facts make that intent manifest, but the court has not power to intuit that intent, nor is it legally material.

            Holmes argues against the German approach to rights theory by discussing the so-called possession of rights.  This theory argues that mastery of the will over an external object in general, when in accord with the general will, and consequently lawful, is called right.  But Holmes claims that this is not right, but merely de facto possession.[22]  The difference between possession and right cannot be admissible as a legal distinction.  The facts constituting possession generate rights, as do the facts which constitute ownership, even thought the rights of an owner are more extensive than those of a mere possessor.[23] 

            Holmes’s rejection of German legal theory concerning the grounds for protecting possession gets to the heart of the external standard at work, whose philosophical roots we find in Peirce’s early pragmatism.  Holmes states that the yearning of the German mind attempts to find an “internal juristic necessity drawn from the nature of possession itself,” and therefore that the German jurists reject empirical grounds.[24]  The Germans attempt to ground this internal necessity on the philosophy of the human will:

“Constraint of it is wrong which must be righted without regard to conformity of the will to law, and so on in the Kantian vein…The will is of itself a substantial thing to be protected, and this individual will has only to yield to the higher common will…the will which wills itself, that is, the recognition of its own personality is to be protected.”[25]


But for Holmes, because “the history of law is the formal expression of the development of society,” its ground must be empirical.[26]  Society does not conform itself to the universal law in the tradition of legal pragmatism which Holmes helps initiate. The law is a practical matter, and “must found itself on actual forces.”[27]  The law must conform to the externalities of empirical fact, and in doing so it formally expresses the growth of society. 

            Holmes’s philosophy of the will, depicted above as a negation of a Kantian philosophy of the will, is an extension of another of Peirce’s questions concerning certain capacities.  Peirce claims that we do not have any power of introspection, and that our whole knowledge of the internal world is derived from the observation of external facts.  Even emotions have some relative character in the external object that arouses them, and Peirce argues that emotions are predications concerning some object, that is, emotions are intentional.  However, they differ from objective intellectual judgment by being less relative to the general structure of the mind and more relative to the specific external circumstances of the emotional person.[28]  Even depression, an emotion which seems to have no definite object, comes to consciousness by way of the “tinging of objects of thought.”[29]  These emotions, according to Peirce, are simple predications of external objects, not just affections of self.[30]  Furthermore, and of particular relevance to my project, Peirce states that what can be said of the emotions in general is true in particular of the moral sense, which either makes predications of something other than the private self or is determined by previous cognitions, because there is no intuitive power of distinguishing the subjective modes of consciousness.[31]  With less argumentation, Peirce dismisses the need to suppose this power for the sake of explaining the sense of willing.  Volition is “the power of concentrating the attention, of abstracting.”[32]  But, for example, the child sees the table as capable of being moved, and only in a secondary way considers herself as having the capacity or internal will to move it. 

            Holmes’s study relies on Peirce’s epistemological insights, but it entails an historical analysis. Holmes concludes that the development from primitive to modern, the order of the evolution of the principle of liability, proceeds from an external standard to the organization of external phenomena which point to internal considerations.  The principle of liability was founded on the passion of revenge, transformed into desire for compensation, and the compensation sought originated in the proximate cause of the damage first in inanimate objects, then in living things, then in owners of the things, then to knowledge of the owner of the thing, and finally to the point where attention is paid to negligence and culpability.  Indirect liability for servants, animals, and inanimate things began from the same sentiment of revenge, but not towards the master or owner of the proximate cause of the harm, but toward the thing itself.[33]  The basis for proceedings in the admiralty still relies on the principle that inanimate objects can be held liable, where the ship answers for its wrongs and is the limit of liability.[34]  But when vengeance is surpassed by prevention as the governing purpose of the law, punishment, meant to deter, is not a function of the internal moral condition of the criminal. [35]  It does address wrong-doing, but only in the sense of what would be wrong in the “average member of the community,” and this can only be argued toward by objective organization of external phenomena, not by access to her internal state of mind.[36]

            The proper objects of study, which concern the internal state of mind, (whose access we have only through external facts) are malice and intent.  Malice in murder means only intent to cause evil sought to be avoided.  Of intent, only foresight is legally material.  The difference between murder and manslaughter, often being reduced to malice and intent, is in reality only the probability of consequences.[37]  Intent is required in some attempts not to determine more moral guilt, “but because the act done was a tendency in connection with natural causes.”[38]  Intent demonstrates the probability that other acts would follow.  When the probability of harmful consequences resulting from an act is established, “it does not matter whether it is shown by a knowledge of physics or [of] human nature.”[39]

            Holmes shows that trespass was originally restricted to intentional wrongs.[40]  But Holmes reintroduces his fundamental thesis, that the defendant is liable when the consequences of his actions are foreseeable by the man of ordinary prudence.[41]  The true theory of liability is one which is neither based on fault or blameworthiness viewed as a moral shortcoming.  But it does not draw a distinction between trespass and felony on the lines of intent.  Rather, Holmes aims to split the two horns of this dilemma.[42]  He writes, “The standards of the law are standards of general application.  The law takes no account of the infinite varieties…which make the internal character of a given act so different in different men.  It does not attempt to see men as God sees them.”[43]  Here we see that the power of introspection and the power of intuiting knowledge based on no premises, belongs (perhaps to God), but is not a capacity in man, (as Peirce has shown us), and is not a capacity of the court.  Rather, when people live in society, an average of conduct is necessary to the general welfare.  The law determines blameworthiness by this external standard.  It concerns the foresight of the consequences of action that a prudent member of the community man would have.[44] 

            Holmes follows the conclusions Peirce makes, that we lack an intuitive ability to distinguish between subjective modes of consciousness and an ability to intuit knowledge internal to the mind, extends them into our ability to judge one’s moral sense, which is the extension Peirce suggested, and extends the pragmatic method into the realm of law by rejecting Kantian legal theory.  The language which draws moral distinctions in actions, such as malice, intent, and culpability, is only an inference based on external circumstances.  Law only works within the sphere of external phenomena; it is indifferent to the internal phenomena of conscience.[45]  In theory, this external standard must be fixed, but in practice, juries are imperfect; nonetheless, the jury is the representative of the ideal, prudent man.  The way prescribed by the jury as an external standard of conduct accords with custom: it is the way that a prudent man is in the habit of acting.[46]  A man does not act in general at his own peril.  And negligence does not mean the actual state of the defendant’s mind, but his failure to act according to the jury’s (prudent man’s) standard.  These standards change according to our experience and custom.  And precedents should be overruled when they become inconsistent with the present condition, which guide the continual change of the standards of custom and experience.[47]  The law conforms to these customs as opposed to trying to bend society to the universal law, whose philosophy is grounded on internal necessity, not external standards.  Peirce’s early articulation of pragmatism concerning cognition and external facts serves as the philosophical foundation for Holmes’s early articulation of the external standard in The Common Law and his initiation of legal pragmatism.


Works Cited:



Menand, Louis. The Metaphysical Club: A Story of Ideas in America. New York: Farrar, Straus, and Giroux, 2001.


Rosenblatt, Rand. “Holmes, Peirce, and Legal Pragmatism.” The Yale Law Journal. Vol. 84. No. 5. (April, 1975), 1123-1140. 


Hantzis, Catharine Wells. “Legal Theory: Legal Innovation within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr.” Northwestern University Law Review.  Vol. 82. No.541. (Spring, 1988).


The Essential Holmes. Ed. Richard Posner. Chicago: University of Chicago Press, 1992.


The Essential Writings Charles S. Peirce. Ed. Edward Moore. New York: Prometheus Books, 1998.


The Collected Works of Justice Holmes, Vol. 1, ed. Sheldon M. Novick. Chicago: University of Chicago Press, 1995.


The Collected Works of Justice Holmes, Vol. 3, ed. Sheldon M. Novick. Chicago: University of Chicago Press, 1995.



[1] The Collected Works of Justice Holmes, Vol. 3, ed. Sheldon M. Novick, Fraud, Malice, and Intent—The Theory of Torts, in The Common Law (1881), (Chicago: University of Chicago Press, 1995),184.

[2] It is difficult to discern the philosophical influences on Holmes’s thought.  He rarely attributed his ideas to anyone else.  He thought Peirce “overrated,” and called James’s pragmatism “an amusing humbug.”   However, Max Fisch documented the existence of a Metaphysical Club in Cambridge in the early 1870s, and in The Metaphysical Club, Louis Menand provides us with an intellectual history connecting Holmes with several philosophers, including Charles Sanders Peirce.[2]  In 1872, Holmes met with this circle of intellectuals in Boston, although it is unclear how frequently.  However, it seems to have made an impression on him, as he was still mentioning it in letters in 1914.[2]  These meetings are wedged in between Peirce’s publication of “Questions Concerning Certain Faculties Claimed for Man” in the Journal of Speculative Philosophy[2] and Holmes’s preparatory works for The Common Law, published in 1876. 

[3] Collected Works, Vol. 3, 184.

[4] The Essential Writings, 66.

[5] The Essential Writings, 67.

[6] Peirce’s use of “transcendental object” here deserves some marginal explanation.  Taking any intentional object of consciousness, we can trace our ability to constitute it as an objective unity or whole out of the continuous flow of experience.  The description of the process by which we form these transcendent objects, or objective unities, belongs to phenomenology.  But if the objective sense of the transcendent object itself is the condition for the possibility of our cognitions, that object is better characterized as transcendental.  Thus, as our experience runs up against that which we never intuit as a unity or whole, but that whole serves as a necessary condition of our ability to think and solve problems, we can characterize it as a transcendental object.  That is not the issue at this point in the article, but it is fair to say that Peirce, arguing for the reality of universals, is doing transcendental philosophy, and therefore uses the term transcendental.

[7] The Essential Writings, 67.

[8] Several arguments support his case.  First, recourses to intuition are analogous to the reliance upon authority in the Middle Ages.  Second, witnesses are unable to distinguish between what they have seen and what they have inferred.  Third, the evidence presented in dreams is too flimsy to provide the ability to reconstruct it, and that evidence is constantly confused with our present interpretations of the dream in our reconstructions of it.  Fourth, children are unable to distinguish between an intuition and a cognition determined by others when asked how they learned their native language.  Last Peirce argues by reference to the intuition of two dimensions of space.[8]  The momentary excitation of any one nerve point on the retina or elsewhere cannot produce a sensation of two-dimensions, and therefore the momentary intuition of all of them cannot. 

[9] “The Path of the Law,” in Collected Works, Vol. 3, 391, from Harvard Law Review 10:457 (1897).  This is Holmes’s famous “prediction theory” of the law, which states that the law is a “hypostasis of a prophecy”—the substantialization of the prediction of what the courts will do to the bad man who transgresses: (the bad man is the prophet in this theory).

[10] Collected Works, Vol. 3, 38..

[11] Collected Works, Vol. 3, 43.

[12] Collected Works, Vol. 3, 44.

[13] The Essential Writings, 78-79.

[14] Collected Works, Vol. 3, 46.

[15] Collected Works, Vol. 3, 46.

[16] Collected Works, Vol. 3, 47.

[17] Collected Works, Vol. 3, 391.

[18] “Codes and the Arrangement of the Law,” Collected Works, Vol. 1, 212-221, from American Law Review 5:1 (1870).

[19] Collected Works, Vol. 3, 47.

[20] Collected Works, Vol. 3, 54.  Holmes’s example is that a child, who picks up a pocket book on the side of the street with a ‘ruffian’ nearby, has the same manifested power as if he had been supported by a hundred police officers.

[21] Collected Works, Vol. 3, 56. 

[22] Collected Works, Vol. 3, 56. 

[23] Collected Works, Vol. 3, 56. 

[24] Collected Works, Vol. 3, 57. 

[25] Collected Works, Vol. 3, 57-58.  Holmes is summarizing several German legal theorists including Bruns, Gans, and Puchta. However, it is probably helpful to separate Holmes’s rejection of German legal theory with his inheritance of or influence by Peirce’s epistemology.  Peirce’s proclamations concerning the incapacity of intuitions of the self correspond to Kant’s paralogisms concerning the self, which is never the object of our experience.  For Kant, the ‘I’ is not an object of possible experience, but it is the necessary condition of possible experience.   The problem is that Holmes would probably not call himself a Kantian because his rejection of Kantianism is a rejection of Kant’s moral and legal philosophy, which rests entirely on its pure part, that is, its non-empirical part.  For Holmes, the law is thoroughly empirical, and it is the empirical nature of knowledge that he and Peirce expose in the areas of epistemology and legal theory respectively.  But it turns out that Holmes is accepting Kant’s theoretical philosophy without knowing it while quite consciously rejecting his moral philosophy. 

[26] Collected Works, Vol. 3, 59. 

[27] Collected Works, Vol. 3, 59. 

[28] The Essential Writings, 80.

[29] The Essential Writings, 104.

[30] The Essential Writings, 104.

[31] The Essential Writings, 80.

[32] Later in the essay entitled, “Consequences Concerning the Four Incapacities,” Peirce makes the argument that attention is the power of abstracting, of concentrating on one feature of an object over time connecting it by means of thought-signs with later thoughts.  The repetition of the same predicate in several subjects arouses our attention, which is of an inductive character.  Attention then affects the nervous system creating nervous habits and associations.  Voluntary action then is a result of the sensations produced by habits.  In the definition above of volition as the power of attention and abstracting, Peirce skipped these steps argumentative steps. 

[33] In the common law, this rule determined that an indictment for homicide must set forth the value of the instrument causing the death, so that the king or his grantee might claim forfeiture of the “deodand,”[33] the cursed instrument, which according to British Common Law was to be “given to God.”  The jury would appraise the value of the instrument, and the defendant would be compensated by that amount.  Holmes traces the development of this principle to several primitive sources.  First in the Twelve Tables, the animal which caused damage was to be surrendered as payment.  Second, Gaius applied the same principle to children and slaves, who caused damage.  Third, Ulpian reasoned that this applied to inanimate objects as well.  In all of these cases, the liability did not stand on the ground of fault.[33]  Furthermore, the action was brought against the owner of the deodand at the time the action was sought, not at the owner at the time the damage was done.[33]  In even more primitive cases, we see that liability is attached to the offending thing, not the human agent, unless the offending thing was a mere instrument of the offending agent.  In its early form, the principle of the law blamed the inanimate object, as the proximate cause of the injury, analogous to the child who does the same, when an inanimate object is the cause of her injury.  Holmes cites several examples of revenge taken on living things.  Kuki tribes of Southern Asia needed to kill the tiger and eat it to avenge a death it caused and cut down a tree and scatter it in chips if it fell on someone and killed them.  This extends to more primitive Greek customs.  Holmes shows that Draco ordered that the process should be carried against inanimate things.  Aeschines mentions that they banished beyond their borders inanimate things which caused the death of a man.  The Jews stoned the ox which killed a man and refuse to eat it when after it was killed.[33] 

[34] In the example of maritime law, Holmes claims that much modern law has its grounds in the animation and personification of the ship herself.[34]  The case of the act of 1851 does not rely on a doctrine of agency, in which case the owner would be held liable for the whole damage, but this is not the case.  Holmes shows the connection between the 1851 law and these cases of the history of liability in the common law in order to reveal that the ship herself is the limit of the liability of the owner.[34] 

[35] Collected Works, Vol. 3, 104.  This can be seen when Holmes argues that killing in self-defense is legal because if it were not, the fear of the death penalty for the crime of killing his assailant would not prevent the murder because no man can be expected to take the risk of being killed now in order to prevent his death later. 

[36] Collected Works, Vol. 3, 104. 

[37] Collected Works, Vol. 3, 105. 

[38] Collected Works, Vol. 3, 105. 

[39] Collected Works, Vol. 3, 105. 

[40] Collected Works, Vol. 3, 86-87. 

[41] Collected Works, Vol. 3, 89. 

[42] Collected Works, Vol. 3, 90. 

[43] Collected Works, Vol. 3, 90. 

[44] Collected Works, Vol. 3, 90. 

[45] Collected Works, Vol. 3, 91.  It should be noted that the general principle of liability covers civil and criminal law.  For instance, the external standard applies to contract law: “all contracts are formal…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 signs,--not on the parties’ having meant the same thing but on their having said the same thing.” Collected Works, Vol. 3, 395.

[46] Collected Works, Vol. 3, 91. 

[47] Collected Works, Vol. 3, 99.