Justice Oliver Wendell Holmes, Jr.
(1841-1935)
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The Path of the Law
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Law As a Prediction
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The reason law is a profession, is that our society has
entrusted in judges the public force, and the whole power
of the state will be brought to bear to enforce their
judgments and decrees.
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Law, then, is a study of prediction, the prediction of the
incidence of the public force through the instrumentality
of the courts.
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The purpose of legal thought is to make these prophecies more precise, and to generalize them
into a thoroughly connected system.
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Jurisprudence is nothing but prophecies.
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The prophecies with which we are concerned in the study of law constitute a finite body of
dogma (law school classes?)
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There are applicable first principles for the study of this body of dogma or systematized
prediction which we call the law.
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Law and morals are two different things. Even the bad man wants to avoid encounters with the
law.
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Learning the Law
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The distinction between law and morals is useful for learning the law, even though the law may,
in fact, be based on a community’s moral sense.
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The “bad man” who knows or cares nothing for the moral sense of the community, will still wish
to predict the consequences of the law in order to avoid encounters with the public force.
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All the “bad man” wants of the law is an accurate prediction of the probable consequences of
his acts, i.e. what will the judge do about it?
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Thus, the rights of man (in a moral sense) have nothing to do with the Constitution and law, as
we would all agree that “wrong” statutes can be, and are, enforced, even though we would not
agree as to which ones are “wrong.”
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Thus, the first great danger to learning the law is to confound law and morality.
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Learning the law (cont.)
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The second great fallacy in learning the law is that logic is the only force at work in the
development of the law.
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While there is a logic to the development of the law, that is not the only (and perhaps not the
primary) factor in its development.
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Behind every logical form lies a judgment of the relative worth of the possible solutions to an
identifiable problem.
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Thus, while the resulting system created by making such choices may be logical, that “logic” will
not be the reason the next choice in the chain of choices is made.
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In making such choices, judges must necessarily have the duty of weighing the social advantage
or disadvantage of the available choices, and will do so either wittingly or unwittingly.
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Such choices may lead the judge (and others who no longer hope for legislative solutions to
societal problems) to take sides upon debatable and often burning questions of society in the
courts.
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The Present Condition of the Law, & its trends.
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The law has developed as tradition, so that most of the things we do, we do for no better reason
than our elders did them or our neighbors do them.
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But law is more rational, and society more civilized, when every rule is articulately and definitely
designed to an end, and the grounds for desiring that end are (or could be) readily stated in
words (so as to be debatable?).
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If we want to know why a rule of law exists in its present shape, then, we must go to tradition.
The study of law is, to a large extent, the study of history.
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It is revolting to have no better reason for a rule of law than that so it was laid down in the
time of Henry IV. If is still more revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind imitation of the past.
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Why do we think the criminal law does good & not harm?
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Development of the Law
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Apt criticism of the law by those who practice it and love it is necessary for its development and
improvement.
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The way to understand law is to get to its bottom. The means of doing so are:
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To follow the existing body of dogma into its highest generalizations by help of
jurisprudence
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To discover from history how it has come to be what it is, and
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So far as possible, to consider
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The ends which the several rules seek to accomplish
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The reasons why those ends are desired
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What is given up to obtain them
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Whether they are worth the price.
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We have too little theory in the practice of law, rather than too much.
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This does not mean to ignore the details, but to get to the bottom of the subject and to wield
the most powerful force of mankind – the command of ideas.