Private Law Theory

INTRODUCTION
In the late nineteenth century, the common law of contracts needed saving. Or so Oliver Wendell Holmes, Jr, and Christopher Columbus Langdell believed. The threat to the common law of contracts was twofold. First, it might become infected by the popular trends in political philosophy. Second, the state legislatures might bring an end to the common law of contracts entirely by codifying the law of contracts. To save the common law of contracts from descending into politics and from codification, Holmes and Langdell would bring legal science to the common law and, in Holmes’s words, seek to create ‘a new Jurisprudence’. For example, Langdell famously wrote that when he became dean of Harvard Law School in 1870, it was indispensable for him to establish that law is a science, and he would become the most famous American law professor to claim that the law ought to be studied empirically, much as the natural sciences were beginning to be studied (in Germany and America) as physical phenomena revealing constant rules and principles’ …

O’Gorman, Daniel P, Saving the Common Law of Contracts from Politics and Codification: Holmes, Langdell, and Legal Science, University of Pittsburgh Law Review 87(2) (2026). Published 27 March 2026.