The Path of the Law

I.

The prediction theory of law was a key component of the Oliver Wendell Holmes' jurisprudential
philosophy. At its most basic, the theory is an attempted refutation of most previous definitions of
the law. Holmes believed that the law should be defined as a prediction, most specifically, a
prediction of how the courts behave. His rationale was based on an argument regarding the opinion
of a "bad man." Bad men, Holmes argued in his speech "The Path of the Law",[1] care little for ethics
or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding the
payment of damages. In Holmes's mind, therefore, it was most useful to define "the law" as a
prediction of what will bring punishment or other consequences from a court.

The theory played a key role in influencing American Legal Realism.

"We hold these truths to be self-evident, that All men are created equal", The quotation has been
called an "immortal declaration", and "perhaps [the] single phrase" and popularized as "theory of
prediction" of the United States Revolutionary period with the greatest "continuing importance".

H. L. A. Hart criticized the theories in his The Concept of Law (1961). He argued that (1) they were
blind to the internal point of view towards law, the sense shared by officials and law-abiding citizens
that rules of law `ought' to be obeyed, and (2) they undervalue "the ways in which the law is used to
control, to guide, and to plan life out of court."[2] As for the `bad man', Hart asks, "Why should not law
be equally if not more concerned with the `puzzled man' or `ignorant man' who is willing to do what is
required, if only he can be told what it is? Or with the `man who wishes to arrange his affairs' if only
he can be told how to do it?"[3]

But Holmes previously wrote 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". Nearly every man wants to avoid the disagreeable
consequences of disobeying the law, but not all want to obey the law just for the sake of obeying it.
This is why the point of view of a bad man is better, because it is the only way to ensure that
everyone will obey the law, and the only way to enable a lawyer to correctly advise his or her client.[4]
II. PHIL 4110: Philosophy of Law
Dr. Robert Lane
Lecture Notes: Monday February 26, 2007

[3.3.] Legal Realism.[1]

The intellectual movement known as Legal Realism emerged in the United States in the 1920s and 1930s.
Prominent realists included Karl Llewellyn (mentioned below, 3.3.1.2) and Felix Cohen (discussed
below, 3.3.4). The law professors and lawyers involved in this movement considered Oliver Wendell
Holmes, Jr. (discussed in the last set of notes, 3.3.1.) as one of their most important forerunners.

[3.3.1.] Oliver Wendell Holmes, Jr.[2]

One of Holmes most important works is the essay The Path of the Law (1897).[3] In it, he set forth:
his so-called prediction theory of law (which appears to be connected to the philosophical
tradition of pragmatism, discussed by Simon, and is perhaps one reason why Holmes form of legal
realism is sometimes called legal pragmatism)
his bad man account of the law
his criticism of legal formalism

[3.3.1.1.] The Prediction Theory of 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 reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that
in societies like ours the command of the public force is intrusted 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. People
want to know under what circumstances and how far they will run the risk of coming against what is
so much stronger than themselves, and hence it becomes a business to find out when this danger is to
be feared. The object of our study, then, is prediction, the prediction of the incidence of the public
force through the instrumentality of the courts.[4]

There are at least two ways to interpret what Holmes is saying here, one more charitable than the other.

On the less charitable interpretation, Holmes view is that the law is nothing but a tool for predicting
what judgments a judge and jury will make. There is nothing to the practice of law but predicting what
a given court will do in a given case.

There are two related objections to this view of the law, made by legal positivist H. L. A. Hart.[5]

(1) It makes judicial decision-making much too easy. This is because it implies that when a judge is
trying to figure out what the law is, she is really only trying to predict how she will rule in a given
case.
(2) It is unclear how a judge could ever be wrong about a given law. If a correct understanding of the
law amounts to nothing but a correct prediction about what a judge will do in a given case, then, so
long as a judgeknows what she herself is going to do, there is no room for her to make a mistake.

On the more charitable interpretation, Holmes was not saying that law is merely a tool for making
predictions; rather, he was describing how the practicing attorney needs to think about law in
order to do his job.The job that a working attorney does is to make such predictions for his client.
Understood in this way, Holmes is not implying that the law is limited to such predictions.

However, pulling against the more charitable interpretation is the fact that Holmes explains legal rights
and duties strictly in terms of predictions:

The primary rights and duties with which jurisprudence busies itself ... are nothing but
prophecies. One of the many evil effects of the confusion between legal and moral ideas ... 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 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.[6]

Here Holmes seems to be making the following points:

The best way to understand the concepts of legal right and legal duty is to separate them completely
from the corresponding moral concepts (moral right and moral duty). [This suggests that Holmes
ought to be classified as a legal positivist.]
Rather, we should understand a legal duty in terms of what will happen if a person fails to act in a
certain way: You have a duty to do x = if you do not do x, you will be punished.
And we should understand a legal right in terms of what will happen if a person does act in a certain
way: You have a right to do x = if you do x, you will not be punished.

It is at this point that Holmes account of law most closely resembles other ideas from the tradition
of pragmatism, in particular the pragmatic maxim of Charles Peirce (1839-1914): Consider what
effects, that might conceivably have practical bearings, we conceive the object of our conception to have.
Then our conception of these effects is the whole of our conception of the object.[7]
For example, what does it mean to say that a diamond is hard? Peirces pragmatism says that we can
clarify our idea of hardness by interpreting that claim into if-then statements that say what someone
would experience were they to interact with a hard object in a given way, e.g., if you were to attempt to
scratch glass with the diamond, the diamond would be scratched; if you were to attempt to scratch the
diamond with glass, the diamond would not be scratched; etc.

[3.3.1.2.] The Bad Man Account of the Law.

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.
... 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 reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of
conscience.[8]
Holmes made it clear that he was advocating setting aside questions of morality in order to understand
and learn the law. Thus, for Holmes, taking on the role of the bad man is a device for learning the
law. This does not mean that there is no connection between law and morality.

In fact, there is a sense in which, for Holmes, the law flows from, or has its basis in, our moral life.

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.[9]

Nonetheless, he says some things that seem to lean toward legal positivism...

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.[10]

This passage also suggests that the uncharitable interpretation of the Prediction Theory might be the right
one!

Holmes view is echoed in this passage by legal realist Karl Llewellyn (1893-1962); rules ... are
important ... so far as they help you see or predict what judges will do or so far as they help you get judges to
do something. That is their importance. That is all their importance except as pretty playthings.[11]

[3.3.1.3.] Against Legal Formalism.

The danger of which I speak is ... the notion that a given system, ours, for instance, can be worked out
like mathematics from some general axioms of conduct. ... I once heard a very eminent judge say that he
never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as
if it meant simply that one side or the other were not doing their sums right, and if they would take more
trouble, agreement inevitably would come.
This mode of thinking is entirely natural. The training of lawyers is a training in logic. The
processes of analogy, discrimination, and deduction are those in which they are most at home. The
language of judicial decision is mainly the language of logic. And the logical method and form flatter that
longing for certainty and for repose which is in every human mind. But certainty generally is illusion,
and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth
and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it
is true, and yet the very root and nerve of the whole proceeding. [12]

Holmes was explicitly rejecting the sort of formalism endorsed by Christopher Columbus Langdell.
In particular, he was making the following claims:

A legal system cannot be deduced from general principles the way that theorems in geometry can
be deduced from geometrical axioms.
 When judges disagree, it is not just a matter of one judge having reasoned incorrectly, as if he or
she has simply miscalculated a column of numbers.
Judicial decisions are cloaked in the language of logic, but what lies beneath the legal reasoning
are beliefs about the relative worth or value of different aspects of the case at hand, and
sometimes these beliefs are not fully conscious.

I think that the judges themselves have failed adequately to recognize their duty of
weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed
judicial aversion to deal with such considerations is simply to leave the very ground and foundation of
judgments inarticulate, and often unconscious, as I have said ... I cannot but believe that if the training of
lawyers led them habitually to consider more definitely and explicitly the social advantage on which
the rule they lay down must be justified, they sometimes would hesitate where now they are confident,
and see that really they were taking sides upon debatable and often burning questions. [13]

Judges must inevitably take account of social considerations, including economic considerations,
in forming their legal opinions. In particular, they should consider whether a given law or ruling will
have good consequences for society.
This aspect of legal reasoning ought to be made explicit.
Since it has, up to now, not been made explicit, lawyers and judges frequently feel certain in their
decisions; but if the actual issues at stake were made explicit, they would see how controversial their
positions are and thus feel far less confident about them.

For the rational study of the law the blackletter man may be the man of the present, but the man of the
future is the man of statistics and the master of economics. 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. It 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.[14]

Legal reasoning should be explicit about the social and economic considerations it embracesso
much so that lawyers and judges would benefit from being trained in economics and statistics.

View of nature of law that legal rules are based on judicial decisions given in interest of the
larger society and public policy, and not on any dogma or supernatural authority. It defines 'legal
rights' and 'legal duties' as whatever the courts say they are. If carried too far, however, this
view results in absurdity because a judge pondering what rights an accused has is, in fact,
deciding what rights he or she (the judge) is going to let the accused have.