Justice Oliver Wendell Holmes, Jr' 18411935

1
Justice Oliver Wendell Holmes, Jr.(1841-1935)

• The Path of the Law

"The life of the law has not been logic it has
been experience. . . . In order to know what it
is, we must know what it has been, and what it
tends to become. We must alternately consult
history and existing theories of legislation.
But the most difficult labor will be to
understand the combination of the two into new
products at every stage." O.W. Holmes, Jr., The
Common Law 1 (1881)
2
Law As a Prediction

• The reason law is a profession, is that our
  society has intrusted in judges the public force,
  and the whole power of the state will be brought
  to bear to enforce their judgments and decrees.
• Law, then, is a study of prediction, the
  prediction of the incidence of the public force
  through the instrumentality of the courts.
• The purpose of legal thought is to make these
  prophecies more precise, and to generalize them
  into a thoroughly connected system.
• Jurisprudence is nothing but prophecies.
• The prophecies with which we are concerned in the
  study of law constitute a finite body of dogma
  (law school classes?)
• There are applicable first principles for the
  study of this body of dogma or systematized
  prediction which we call the law.
• Law and morals are two different things. Even
  the bad man wants to avoid encounters with the
  law.

3
Learning the Law

• The distinction between law and morals is useful
  for learning the law, even though the law may, in
  fact, be based on a communitys moral sense.
• 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.
• 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?
• 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.
• Thus, the first great danger to learning the law
  is to confound law and morality.

4
Learning the law (cont.)

• The second great fallacy in learning the law is
  that logic is the only force at work in the
  development of the law.
• 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.
• Behind every logical form lies a judgment of the
  relative worth of the possible solutions to an
  identifiable problem.
• 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.
• 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.
• 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.

5
The Present Condition of the Law, its trends.

• 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.
• 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?).
• 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.
• 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.
• Why do we think the criminal law does good not
  harm?

6
Development of the Law

• Apt criticism of the law by those who practice it
  and love it is necessary for its development and
  improvement.
• The way to understand law is to get to its
  bottom. The means of doing so are
• To follow the existing body of dogma into its
  highest generalizations by help of jurisprudence
• To discover from history how it has come to be
  what it is, and
• So far as possible, to consider
• The ends which the several rules seek to
  accomplish
• The reasons why those ends are desired
• What is given up to obtain them
• Whether they are worth the price.
• We have too little theory in the practice of law,
  rather than too much.
• 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.