The Path of the Law
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Text length: 2,300 words
Excerpted from The Path of the Law
by Oliver Wendell Holmes, Jr.
, 10 Harvard Law Review 457, 1897
Growth does not necessarily reflect a logical development - often it is the result of contingent factors that have continued to accumulate over time
The current function of a thing may not reflect its origins - we cannot always deduce the original intent or purpose of an idea or artifact from observations of its present use
Decisions must take context into account - most good decisions cannot be based purely on logic or abstract principles but must reflect and respond to real-world conditions
Keywords:
Law, precedent, pragmatism, adaptation, morality, principle, logic, facts, courts, prediction, history, growth, development, change, statistics, society
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Summary
The eminent jurist and American Supreme Court justice, Oliver Wendell Holmes, Jr. wrote that, “the life of the law has not been logic: it has been experience.” In Holmes’ view, the common law is a patched-together, contingent creation of judges and juries that has accumulated haphazardly and inconsistently over the course of centuries. He distinguishes the law and morality and argues against the notion that the legal principles can be deduced from ideal moral principles.
The law is thus nothing more nor less than what the courts say it is, and the study of the law is aimed at predicting the decisions of courts composed of living, breathing individuals. Precedents are continually reinterpreted in light of the changing social norms of modern society. Thus the law grows and changes over time and we must look to its history, rather than to reason alone, for its roots and meaning. Far from being a deficiency, this contingency is a strength of the law, representing as it does the best thinking and efforts of generations of jurists while remaining adaptable to new circumstances.
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The Path of the Law
When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court… The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts…
The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall… The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right…
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Law and morality
The first thing for a businesslike understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.
I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things…
The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law…
Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it — and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can…
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