“The Path of the Law” by Wendell Holmes

The bad-man theory is a jurisprudential doctrine or belief, according to which a bad person’s view of the law represents the best test of
what exactly the law is because that person shall carefully and precisely calculate what the rules allow and operate up to the rules’ limits.
This theory is also known as prediction theory.

This theory was first adopted by Oliver Wendell Holmes who mentioned that a society’s legal system is defined by predicting how the
law affects a person, as opposed to considering the ethics or morals underlying the law.

1. What is the law?

ᴥ The reason why people will pay lawyers to render legal services - in societies like ours, the command of the public force is entrusted
to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and
decrees.
ᴥ Law, then, is a study prediction, the prediction of the incidence of the public force through the instrumentality of the courts.
ᴥ From a lawyer’s statement of a case, eliminating as it does all the dramatic elements, with which his client story has clothed it, and
retaining only the facts of legal import up to final analysis and abstract universals of theoretic jurisprudence.
ᴥ Jurisprudence then is nothing but prophecies, the prophecies which we are concerned in the study of law, constitute a finite body of
dogma.
ᴥ To make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into
general propositions and gathered into textbooks, or that statutes are passed in a general form.
ᴥ The primary rights and duties with which jurisprudence busies itself again are nothing but “prophecies”.

Holmes’s first admonition: don’t confuse morality with the law, that is, “have the boundary [between morality and law] constantly
before [your] minds.”

2. How do we know what the law is?

ᴥ We look at it as a bad man: “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the
material consequences which such knowledge enables him to predict, not as a good one who finds his reason for conduct, whether
inside the law or outside of it, in the vaguer sanctions of conscience.”
ᴥ Bad men care little for ethics or lofty conceptions of natural law; instead, they are simply about staying out of jail and avoiding the
payment of damages.
ᴥ This is according to Holmes. So the connection between the law and morals is that the bad man uses the law and morals to stay out
of jail and pay damages, simply because he knows them.
ᴥ Therefore, he uses the law as a prediction of what will bring punishment or other consequences.
ᴥ It is of great practical importance, Holmes maintains later in the speech that “for the decision of actual cases, of understanding the
reasons of the law.
ᴥ He also wanted us to look at the EXTERNAL Actions, not Internal Intent. For example, in the law of contracts, the making of a
contract depends not on the agreement of the internal intent of each party but on the External Action which in this case is the Law.
ᴥ Holmes views the law as a rational system that can be articulated and explained. What enables lawyers to be able to PREDICT legal
decisions is that the law is logical in the sense that it follows the law of cause and effect. That said, Holmes also urges the law
students not to fall into the trap of believing “that the only force at work in the development of the law is logic”
 ᴥ Finally, Holmes urges the law students to study jurisprudence, by which he means “law in its most generalized part”, why do you
think that is? Why does he want us to understand the law that way?
o One example would be the case that was cited during our Stat. Con class, wherein the burglar sued the owner of the property
where he robbed and, shockingly, won the case against the owner. Robbery, in itself, is considered as malum in se or “evil in
nature” and such principle is universal for us human beings not to commit such an act.

3. What the law isn’t

a. It isn’t logical:
i. Logic is not entirely the force at work in the Law.
ii. The Law cannot be compared to mathematics, wherein the latter has a definite answer.
iii.Repose is not the destiny of man and that laws should be weighed based on its social advantage.
b. It isn’t a set of moral rights: “Nothing but confusion can result from assuming that rights of man in a moral sense are equally
rights in the sense of the Constitution and the law”
i.Illustrations
1. A German population would rise if you add 2 cents to the price of one glass of beer
a. Is it moral - to the Germans, NO (hence the revolution)
b. Is it legal - to the German Government, YES
i. Wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones
ii. The bad man does not care two straws for the axioms or deductions but what he does want to know is what the
Massachusetts or English courts are likely to do
2. The moral notion of legal duty
a. The bad man interprets legal duty as a prophecy that if he does certain things, he will be subjected to disagreeable
consequences by way of imprisonment or compulsory payment of money
i. The legal duty to pay taxes
ii. Liability under the mill acts/statutes which authorizes the Government to exercise its power of eminent domain
iii. Liability for wrongful conversion of property where restoration is out of the question
iv. If you commit a tort, you are liable to pay a compensatory sum
b. Interpretation: In all the above-mentioned cases the one who is liable would think that it is immoral for the government
to take the former’s possessions. However, the law does not bend to the lawbreaker’s notions of morality. DURA LEX
SED LEX, the law may be harsh, but it is the law
3. The law on contracts
a. RULE: “parties may not be bound by a contract to things which neither of them intended, and when one does not know
of the other’s consent”
i. Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties
thinks that the promise will be construed to mean at once, within a week. The other thinks that it means when he is
ready.
1. Court: It means within a reasonable time.
2. Parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the other court
declares that they have said
a. Interpretation: the parties may deem it unfair that neither of their interpretations was accepted, or that is is unfair
that in the end, it is the government who gets to decide what the interpretation is, but again, DURA LEX SED
LEX
b. This is because morals deal with the internal state of the individual’s mind, whereas the law is based on Codes
and jurisprudence from which the Courts may not deviate
c. It isn’t always rational: Tradition- or the historical evolution of the law- often overrides rational policy.
i.Tradition influences the morality of law (morally accepted because it is being practiced)
1. what might be logically right might not be accepted because it is not what we are accustomed to
2. Tradition plays an important role in the evolution of laws
ii.History is needed to understand how the law came to be and their importance. In other words, history will explain the ratio made
of which the law was created.
d. It isn’t only a historical relic: “We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only
interest in the past is for the light it throws upon the present,” and indeed Holmes looks “forward to a time when the part played by
history in the explanation of dogma shall be very small, and instead...we shall spend our energy on a study of the ends sought to be
attained and the reasons for desiring them.”
i. “One mark of a great lawyer is that he sees the application of the broadest rules.” Meaning he does not simply stick to rules from
today but also applies rules in the broadest sense from the past.
ii. Illustration: There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for
breaking a churn.
1. The justice took time to consider and said that there was nothing about churns in the statutes, and gave judgment to the
defendant. Rudimentary rules of contract or tort are tucked away under the head of Railroads or go to swell treatises on historical
subdivisions. To be a real master of the law means to look straight through all the dramatic incidents and to discern the true
basis for prophecy.
2. Cases like this happen because even the highest courts have no clear ideas of these themes. Basic rules have been forgotten and
forsaken--which should not have been the case.
iii. Getting to the bottom of the subject itself is the way to gain a liberal view of your subject.
1. “Follow the existing body of dogma into its highest generalizations by the help jurisprudence”
2. “Discover from history how it has come to be what it is”
3. “So far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired,
what is given up gaining them, and whether they are worth the price”
iv.“Sometimes the loss of evidence is referred to...” as the justification for depriving a man of his rights, but as far as it goes this
becomes a consequence of the lapse of time.