Response to “The Path of the Law”

James Smyth

In “The Path of the Law,” Oliver Wendell Holmes Jr. treats a wide range of legal topics, many of which are still relevant today.  Among them:

Morality and Law.  Holmes champions a separation of the legal code from the moral code.  Completely immoral people, for instance, still follow the law because they wish to avoid punishment for breaking it.  Words such as “malice” have divergent moral and legal connotations, so clearly a jurist is not meant to determine right from wrong in the first place.

If morality is absent from our law, then it is a pragmatic undertaking; legislatures create systems of rewards and punishments in order to achieve beneficial social outcomes.  Pragmatism saves us from the clutches of sharia law, but it also weakens the legitimacy of natural rights.  What happens when the legislature seeks to curb individual rights to improve the society as a whole?  United States abortion policy is a good example of pragmatism taking precedence over arguments of natural rights.

Logic.  Roughly speaking, the purpose of law is to ensure justice.  One of our expectations is that the law will be fair, logical, and impartial.  Holmes asserts that in practice, this is not the case and can never be so.  One reason is that epistemological certainty is impossible.  A good example of this is sentencing: I would wager that never in the history of jurisprudence has a thief received exactly the amount of prison time he deserved for his crime.  The numbers, be they 5 or 10 or 20 years, are guesswork.  The author’s second claim is that the decisions of many judges and jurists are products of the zeitgeist.  His arguments for this point are strong and somewhat depressing.  They remind me of Leo Tolstoy’s opinion that the masses, not individuals, are the primary movers of history; thus every major event is out of everyone’s control.  If the times shape the laws, any of these “just” statues could change within a century or so.

Tradition.  Holmes further de-romanticizes the law in his treatment of the origin of laws.  Because so many of them were written hundreds of years ago, says Holmes, they have become confusing and meaningless.  His arguments here necessitate a redefinition of the relationship between past and present jurisprudence.  The weight of history adds legitimacy to a law in the eyes of judges and common men alike, so we ought not throw out the book and write an entirely new one as the French Revolutionaries tried to do.  Regardless, we should continuously review our code to preserve its spirit in the face of the changing times.  The failure of legal scholars to communicate the spirit of the law to their students is another subject of Holmes’s criticism.

“As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics.  The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study remains to be made.”  This excerpt is prescient; the differences between the laissez-faire economy of 1897 and the highly regulated system of today, with its massive tax code, are startling.  Truly, lawyers have found a niche in business – far too much of one, according to conservatives.

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