A Short Critique on “The Path of Law”

For an individual without any background on law and philosophy, the insights
that Oliver Wendell Holmes provided in his essay “The Path of Law” may be difficult to
comprehend. Despite the difficulty, Holmes’ views on the study of law and his
discussion of predictive theory also known as the “bad man theory” of law were
interestingly elaborated through various arguments throughout the essay. Although
Holmes and the author of this paper have differing views on the bad man theory, they
may both agree that this theory provides an explanation why the law profession exists.
Holmes suggests that the law profession exists to provide advice for and to prevent the
“public force” to meddle with the interests or affairs of the people. And for the lawyers to
effectively do these, they should fill in the shoes of the “bad man”– the one who will
avoid paying damages to his neighbors and would do his best to keep himself out of jail
or in confrontation with the law.
The bad man theory provides for a pragmatic approach on the law. This theory
basically lays the foundation for the perspective that in order to win a case or to prevent
the judge to find against a defendant, a lawyer must effectively and successfully predict
the possible decisions of a judge in various circumstances. It can be inferred that
Holmes viewed that morals and other abstractness are non-essential in understanding
the law. For him, to really understand legal concepts and accurately predict the law is to
view the law “scientifically” or through the real and concrete conditions that may
influence or become factors in the decision of the court.
In conclusion, Holmes’ views on the study of law remain applicable in the
Philippines today. His “bad man theory” remains to be adopted by many aspiring
lawyers who tend to view that to be a successful lawyer is to win cases with whatever
truth or “whatever works.” Although on the hand, the author of this paper believes that
morality and law should not be separated from each other as opposed to what Holmes
suggested in his essay. For the author of this critique paper, the relationship of morality
and law are interdependent and, thus, firmly believe that morality guides the
construction and interpretation of the law.
The author’s claim above may face opposition, particularly from those who
espouse the notion that to fully understand the law and to effectively provide advice is to
know the limits of the law. Admittedly, the mixing of morality and law in the legal
practice is “idealistic,” but must not be relegated forever as such. The bad man theory
should, in the future, be ideally become a part of the past, and create a society where this
legal theory will become a footnote in the legal books. To create a society, where an
individual obeys the law not because of the possible consequences of violating it but
because he intends to have a peaceful and just society – and this is what the students of
law must strive for.

Karl Michael E. Nadunza

First Year – Block 7
PLM-College of Law
 Reaction Paper on the Filipino Concept of Justice by CJ Artemio
Panganiban

The points made by Dean Jose Manuel I. Diokno during his lecture on the
Filipino concept of justice are convincing. Dean Diokno and I share the view on how
language and its development are connected to the development of the Filipino culture
and values. I, for one, believe that our language greatly mirrors our ancestors’ struggles,
way of living, and moral standards. Therefore, the presence of the Filipino words such as
“katarungan,” “karapatan,” and “batas” demonstrate that Filipinos have a distinct
understanding of justice, and that this is deeply rooted in our culture.
I also definitely agree with Dean Diokno that our native concept of justice reflects
our centuries-old struggle to have a country that is free and fair. Going back to the view
that our language is a mirror of our collective history and experience, the absence of
native Filipino words for the concepts of privilege and naked power is enough evidence
to claim that Filipinos are unfamiliar with these terms and, therefore, have a strong
aversion to them. Our strong dislike for the corrupting nature of privilege and power
was and is being manifested with the revolutions that our forefathers have fought and
our continuing fight against the corrupt and power-hungry officials in our current
government.
Our language does not only demonstrate our hatred for “unchecked privilege,” it
also reflects our high moral and cultural standards. These can also be exemplified by the
use of the words “po” and “opo,” particularly in the Tagalog culture. Although absent in
other Filipino dialects, these two words that demonstrate deep respect for the elders and
higher authorities have been readily adapted by other Filipino cultures. We were able to
provide words for a concept that, albeit universally known, can be shown in various
ways, and only signifies that us Filipinos have a distinct way to show respect just as we
have a distinct and native concept of justice. The presence of the concepts previously
mentioned only gives credence to the points made by Dean Diokno. Our language
demonstrates that we are a culture that prefers a society that is run by fairness and
respect, and devoid of injustices.
With all of those said, it may still be important to know that despite having the
same view that Filipinos have a distinct concept of justice, it is also clear that the justice
system in the Philippines is a Western form of justice. The Philippine justice system is
largely borrowed from the United States legal system, including the composition of the
entire judicial department and the Philippine Constitution. Combined with the native
Filipino concept of justice and the United States form of legal system, I would have to
contend that our justice system is destined to provide us and the future generations the
kind of social justice that Dean Diokno previously cited.
We probably still have a long way ahead of us, but we must not lose sight of the
potential good that our justice system can give us and the next generation. We are here

Karl Michael E. Nadunza

First Year – Block 7
PLM-College of Law
 Reaction Paper on the Filipino Concept of Justice by CJ Artemio
Panganiban
today to become part of the judiciary that would promote equality, justice, fairness – the
same values that are deeply ingrained in our genes and language.

Karl Michael E. Nadunza

First Year – Block 7
PLM-College of Law