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The Path of the Law - The Path Of The Law

holmes legal theory common

Oliver Wendell Holmes Jr., 1897

Oliver Wendell Holmes Jr. is one of the most celebrated legal figures in U.S. history. His writings on jurisprudence have shaped discussions on the nature of law, and his court opinions have been studied as much for their style as their intellectual content.

Holmes rejected the idea that law could be studied as a science. He also emphatically dismissed Langdell's belief that legal systems obey rules of logic. While his book, The Common Law (1881), is a scholarly tour de force, his 1897 essay, "The Path of the Law," has proved to be one of the most influential works in legal theory. In the essay Holmes builds on the themes of The Common Law, which included his disassociation of law from morality and his emphasis on policy over logic. He went on to define the law as a prediction of what the courts would do in a particular situation. He proposed a "bad man" theory of justice: a bad man will want to know only what the material consequences of his conduct will be; he will not be motivated by morality or conscience.

Holmes's jurisprudence led to the conclusion that judges make decisions first and then come up with reasons to explain them. His approach, which has been characterized as cynical, touched a nerve with succeeding generations of legal scholars.

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