UNIVERSITY OF NAIROBI

SCHOOL OF LAW

MASTERS OF LAW (LLM) PROGRAM

GPR 6103: JURISPRUDENCE AND LEGAL THEORY

NAME: ANNET AKOTH OTAGO

REGISTRATION NUMBER: G62/45405/2023

COURSE INSTRUCTORS: PROF. ALBERT MUMMA

DR. NANCY BARAZA

Question 4: Write an essay on Oliver Wendel Holmes “bad man theory of law” and demonstrate

its applicability to Kenya in the post 2010 Constitution era.

Introduction
“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.”

~Justice Oliver Wendell Holmes.

With these immortal words, Holmes, who is often regarded as one of the most influential American

common law judges, breathed life into what was arguably his most enduring contribution to

jurisprudence: the concept of the “bad man”. According to this theory, law should be approached

and understood as the bad himself would approach and understand it. This means viewing law not

through the lens of a historically minded rational individual concerned with the reasons behind a

particular law's existence, nor through the moral lens of a virtuous individual guided by conscience.

Instead, it involves adopting the perspective of a calculating and morally indifferent bad actor who

considers only the practical consequences of their actions. This essay seeks to explore the essence of

Holmes's Bad Man theory and examine its relevance to Kenya in the post-2010 Constitution.

Origins of the Bad Man Theory

The bad man theory of law can be traced back to Holmes' seminal work, "The Path of the Law,"

published in 1897. In this influential essay, Holmes expounds upon the nature of law and its

relationship to human behavior. Central to Holmes' theory is the notion of the "bad man”, a

hypothetical figure who seeks to exploit legal rules for personal gain without regard for morality or

ethics. He suggests that understanding how the bad man interprets and exploits the law can provide

valuable insights into its practical operation. Holmes emphasized the importance of recognizing the

instrumental nature of law, viewing it as a tool for achieving individual interests and social order

rather than a reflection of moral values

Understanding the Bad Man Theory of Law

Justice Oliver Wendell Holmes Jr., a renowned American jurist and Associate Justice of the Supreme

Court of the United States, was one of the most influential American common law judges and also

the longest serving judge of the Supreme Court, retiring at the age of 90 years. Since its inception in

1897, Holmes's "bad man" theory of law has faced criticism for purportedly advocating a legal

system devoid of morality.

Critics argue that this approach not only impoverishes the law itself but also encourages immoral

behavior by suggesting that individuals, or their lawyers, should base their actions not on commonly

accepted standards of community behavior, but on a cost-benefit analysis. Many observers have

interpreted the "bad man" as essentially a reflection of Holmes himself, portraying him as a stern

individual indifferent to notions of justice and perhaps even hostile to any association between law

and morality. While Holmes's own perspectives on this matter were more nuanced, he played a role

in shaping these interpretations. For example, Holmes encouraged his audience to perceive law

through the lens of the bad man, aiming to eliminate any confusion between morality and law. He

advocated for the removal of words with moral connotations from legal discourse, suggesting that

legal concepts should be conveyed without being influenced by external moral considerations.

Holmes even expressed doubt about the value of retaining moral language in the law, suggesting that

using words strictly related to legal ideas, devoid of moral coloring, would be advantageous.

In Holmes's view, law is essentially a statement of the circumstances in which the public force will

be brought to bear upon individuals through the courts. According to Holmes, individuals,

particularly those engaging in a given activity, will weigh the benefits against the legal costs,

choosing to proceed only when the benefits outweigh the costs. This utilitarian perspective, often
associated with law and economics scholars, views legal decisions as pragmatic calculations of costs

and benefits, where individuals seek to maximize their self-interest within the bounds of the law.

In his book "Common Law," Holmes offered a distinctive perspective on the nature of law, defining

it as predictions of what courts will decide rather than a set of abstract principles. He emphasized the

role of judicial decisions enforced by the state in shaping legal norms, highlighting the influence of

factors such as philosophy and economics on the development of law. Holmes argued that law

should be viewed as a practical social science, responding to the evolving needs of a complex

society.

Holmes critiqued John Austin's command theory for its inability to address the intricacies of the U.S.

federal system, where the Supreme Court often decides political issues traditionally controlled by the

Legislature, leading to divergent legal rules across states. He believed that good law should not only

be logical but also grounded in experience, valuing the study of legal history as a means to evaluate

the effectiveness of established rules. However, he cautioned against blindly following tradition,

advocating for practical and responsive legal principles.

Contrary to the beliefs of natural law scholars, Holmes argued that laws are not derived from a divine

source but are rather human constructs shaped by societal needs. He advocated for the separation of

law and morality to enable a clear understanding of legal principles, emphasizing the importance of

applying a "reasonable and prudent" standard in legal decision-making. While Holmes maintained

that lawyers should focus on interpreting the law as it is, he acknowledged that judicial decisions

may reflect underlying moral convictions, leading to accusations of inconsistency in his views.

Application to Kenya in the post 2010 Constitution

More than a century after his birth, the bad man is alive and well today and has recently made his

presence felt in our Laws and judicial decisions. The bad man, devoid of moral scruples, approaches
the law from a purely self-interested perspective, seeking to exploit legal loopholes and maximize

personal gain. From this standpoint, laws are not viewed as expressions of moral values but as

instruments designed to regulate behavior and maintain social order.

In Kenya, despite the progressive reforms introduced by the 2010 Constitution, challenges such as

corruption, inequality, and impunity persist within the legal system. The bad man theory highlights

the potential for individuals, including those in positions of power, to exploit legal ambiguities and

loopholes for personal gain, often at the expense of justice and the rule of law.

For example, President William Ruto's defiance of court orders, justified by the belief that there will

be no consequences, reflects a strategic approach of weighing potential sanctions before deciding

whether to comply with or disregard the law.

Conclusion

The ‘bad man’ theory acknowledges that individuals, both in their personal and professional

capacities, often prioritize their own interests and desires when interacting with the law. Holmes

endorsed an empirical approach to law, suggesting that social sciences could inform the assessment

of individuals' actions and appropriate punitive measures. However, he emphasized that the primary

purpose of law is not to enforce morality but to promote awareness of social duties.