THE PATH OF LAW

1. JUDGES as holders of PUBLIC FORCE: Studying of law means studying a

profession and not mystery. Judges have the public force and people study law to appear
before judges and advice people to not come in conflict with law. Society’s command
is with the judges and state can enforce the judgments.
2. Object of studying law: PREDICTION: The prediction of the incidence of the public
force through the instrumentality of courts. [Predict how people could run the risk of
coming into conflict with the force of judiciary]
3. Sources of Law are called the ORACLES OF THE LAW: Reports, treatises and
statues which are very old and keep on increasing annually. These contain the
prophecies of the past according to which the present situations are assessed. They
contain how in the past it was predicted how society should be-prediction.
4. PURPOSE OF LEGAL THOUGHT: to generalise “the predictions”
i. Generalise: To make the prophecies precise and to generalise them into a
connected system. Remove all the dramatic elements from the fact and only
retain relevant facts of legal import. WHY? Because the public force (judge)
will act behind the veil of ignorance and act same way whatever his client be.
ii. Why generalise? To make the prophecies easier to understand and applicable to
all. How? With the use of textbooks or statues, e.g. contract law contains general
principles of contract.
iii. How? Reports of the past are restated according to present point of view.

5. Holmes tries to lay down some first principles of “BODY OF DOGMA OR

SYSTEMATISED PREDICTION WHICH WE CALL THE LAW”, for men who
want to use it as instrument for their business to enable them to prophesy in their turn.

6. BAD MAN THEORY: To understand law, we must understand its limits and
therefore, we must DISTINGUISH LAW AND MORALITY. [LIMITS OF LAW]-
first fallacy

 “A man who cares nothing for an ethical rule which is believed and practised by his
neighbours 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.”

 THE LAW IS THE WITNESS AND EXTERNAL DEPOSIT OF OUR

MORAL LIFE. Its history is the history of moral development of the race. Law
makes good citizens and good men. But to master the specific of law we must
become indifferent to morals.

 PROBLEM OF LEGAL LANGUAGE AND CONTENT: The law is full of

phraseology drawn from morals, and by the mere force of language we keep
discussing different aspects of it. e.g. The law talks about rights, and duties, and
malice, and intent, and negligence, and this brings in discussions on morals and
thereby leading to fallacy.

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  LAWS DO NOT ALWAYS CONFIRM TO MORAL STANDARDS OF
SOCIETY. Some laws even when condemned by most enlightened people of
society continue to operate through generations. E.g. homosexuality, triple talaq etc.

E.g. there may be rebellion against some laws like Prof. Agassiz say: Gemrman
population would rise if you add 2 cents to the price of a glass of beer. Such a statute
could not have been enforced.

 LAW AGAIN MUST ONLY BE SEEN AS SOMETHING A BAD MAN

WOULD SEE: for him he does not care of reasonings and deduction but what the
judges would decide. “THE PROPHECIES OF WHAT THE COURTS WILL
DO IN FACT, AND NOTHING MORE PRETENTIOUS, ARE WHAT I
MEAN BY THE LAW.”

 Legal duties are also seen as morals: Example of LAW OF CONTRACT to

show the confusion of legal and moral ideas.: Duty to keep a contract at common
law means a prediction that you must pay damages if you do not keep the contract
and nothing else.

 MALICE IN TORT: It is different from what is meant in morals. E.g. Fox’s Book
of Martyrs story (page 6) Malicious conduct but different from morals.

 MORALS DEAL WITH THE ACTUAL INTERNAL STATE OF AN

INDIVIDUAL’S MIND, WHAT HE ACTUALLY INTENDS.
E.G. CONTRACTS: meeting of mind. Suppose a contract for delivering a lecture
is executed but no time is mentioned. One party thinks- within a week, other thinks
when he would be ready. Court says that it means :within reasonable time. Parties
are bound by what the court decides yet none of them meant what the court has
interpreted. Holmes emphasis on external manifestation of intention as a signature
or for example, when the letter will be delivered.
He suggests: Get rid of words of moral significance and convey legal ideas
uncoloured by anything outside the law.

7. LAW AND LOGIC: WHAT ARE THE FORCES WHICH DETERMINE THE
CONTENT AND GROWTH OF LAW? There are various theories as to how law
emerges, but all mean the same to Holmes. Even if the sanction comes from a despotic
power ---the purpose should be to predict some order, some rational explanation and
some principle of the growth of rues which he laid down.
 SECOND FALLACY: The only force at work in the development of law is logic.
 It is said that everything can be quantified and if it doesn’t then it’s a miracle.
 The training of lawyers is a training in logic. But a large part of our law is open to
reconsideration upon a slight change in the habit of the public mind.
 “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. You can give any
conclusion a logical form. You always can imply a condition in a contract. But why do
you imply it? It is because of some belief as to the practice of the community or of a
class, or because of some opinion as to policy, or, in short, because of some attitude of

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 yours upon a matter not capable of exact quantitative measurement, and therefore not
capable of founding exact logical conclusions.”

8. IMITATION: PAST AND PRESENT: LOOK AT TRADITION

 Each generation taking the inevitable next step, mind, like matter, simply obeying a law
of spontaneous growth. It is perfectly natural and right that it should have been so.
Imitation is a necessity of human nature.
 The rational study of law is still to a large extent the study of history. History must be
a part of the study, because without it we cannot know the precise scope of rules which
it is our business to know. To know the worth of those rules.
 Cannot have blind imitation of the past-e.g. dragon
Illustration of Larceny: We think it desirable to prevent one man’s property being
misappropriated by another, and so we make larceny a crime. Initially it was only
trespass…not even if you take by trick or deceit it is crime. But with this the element of
trespass has become irrelevant. Judges could not decide so statute talked of
embezzlement. But still Larceny continued.
 Criminal Law: What have we better than a blind guess to show that the criminal law in
its present form does more good than harm? He asks: Does punishment deter? Do we
deal with criminals on proper principles? Continental criminalists like Gall say-consider
the criminal and not the crime.
 Tradition can override a rational policy.:We must beware of the pitfall of
antiquarianism, and must remember that for our purposes our only interest in the past is
for the light it throws upon the present.

9. Look at the ENDS AND INTER-DISCIPLINARY STUDY : I look forward to a time

when the part played by history in the explanation of dogma shall be very small, and
instead of ingenious research we shall spend our energy on a study of the ends sought
to be attained and the reasons for desiring them. As a step toward that ideal it seems to
me that every lawyer ought to seek an understanding of economics.

10. JURISPRUDENCE: Jurisprudence, as I look at it, is simply law in its most

generalized part. Every effort to reduce a case to a rule is an effort of jurisprudence,
although the name as used in English is confined to the broadest rules and most
fundamental conceptions.
 CONCLUDES: The way to gain a liberal view of your subject is not to read something
else, but to get to the bottom of the subject itself. The means of doing that are, in the
first place, to follow the existing body of dogma into its highest generalizations by the
help of jurisprudence; next, to discover from history how it has come to be what it is;
and finally, so far as you can, to consider the ends which the several rules seek to
accomplish, the reasons why those ends are desired, what is given up to gain them, and
whether they are worth the price.
 THEORY IS MY SUBJECT, NOT PRACTICAL DETAILS.: The remoter and
more general aspects of the law are those which give it universal interest. It is through
them that you not only become a great master in your calling but connect your subject
with the universe and catch an echo of the infinite, a glimpse of its unfathomable
process, a hint of the universal law.