Oliver Wendell Holmes, Jr.

“The Path of the Law” (1897) 1

(Katharine Jane Schweitzer, 09/02/2008)

“The Path of the Law” was originally delivered by Holmes as a vocational address at the dedication
ceremony for a new building for the Boston University school of law on January 8, 1897.
• Because Holmes’s intended audience is the student body at Boston University school of law, his
advice primarily concerns how to study and practice law.
o That is, although Holmes’s speech is theoretical (“Theory is my subject, not practical
details” [14]), it is not really a work of jurisprudence, or at least not analytical
jurisprudence in the way that H. L. A. Hart’s The Concept of Law is (and thus ought not
be criticized for not doing what Hart’s work does).

Holmes’s urges the law students to take a practical approach to the study and practice of law.
• “When we study law we are not studying a mystery but a well-known profession”, he begins (1).
• According to Holmes, law is “a business with well understood limits, a body of dogma enclosed
within definite lines” (2). Accordingly, Holmes attempts to put forth “a businesslike
understanding” of the matter at hand, ‘the path of the law’ (2).

Holmes claims that it is important for future lawyers to understand that their primary duty is to
understand law as a set of predictions concerning “the liabilities commonly imposed by the law” (4).
• “People want to know under what circumstances and how far they will run the risk of coming
against what is so much stronger than themselves, and hence it becomes a business to find out
when this danger is to be feared. The object of our study, then, is prediction” (1).
• “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I
mean by law” (3).
• “[I]f we take the view of our friend the bad man we shall find that he does not care two straws
for the axioms or deductions, but that he does want to know what the Massachusetts or English
courts are likely to do in fact” (3).
• From the perspective of the bad man (or to speak in a more generous manner, from the
perspective of a client), a lawyer should be a master of the law, as seen as a “body of dogmas or
systematized prediction” (2).

As I understand the text, Holmes is not claiming that a lawyer or a judge should only view the law from
the perspective of a bad man. The last third of his address serves as evidence for my interpretation.
• Although the bad man is only concerned with what is likely to be the judge’s decision and
punishment should he get caught violating the law, Holmes urges his listeners (the law students)
to be diligent in asking if the axioms and deductions used in adjudication are correct, and why.
o It is of great practical importance, Holmes maintains, “for the decision of actual cases, of
understanding the reasons of the law” (14).
• Holmes views law as a rational system that can be articulated and explained. What enables
lawyers to be able to predict legal decisions is that the law is a logical in the sense that it follows
the law of cause and effect.
o Holmes disagrees with, and is even disgusted by, legal policies “for which no
generalized explanation exists” (11) or that are justified by “various absurd and unreal
grounds” (12).

The first part of Holmes’s address is a two-fold warning:

o First, Holmes warns the law students of “the danger, both to speculation and to practice, of
confounding morality with law, and the trap which legal language lays for us” (6).
Oliver Wendell Holmes, Jr. “The Path of the Law” (1897) 2
(Katharine Jane Schweitzer, 09/02/2008)

o Second, Holmes urges the law students not to fall into the trap of believing “that the only force
at work in the development of the law is logic” (6).

Holmes’s first admonition: don’t confuse morality with the law, that is, “have the boundary [between
morality and law] constantly before [your] minds”(2).
o Not keeping the two distinct risks fallacies and “confusion of thought” (3), because words like
duty, malice, intent, and negligence “mean something different in law from what [they] mea[n]
in morals” (5).
o For example, Holmes defines a legal duty as “nothing but a prediction that if a man does or
omits certain things he will be made to suffer in this or that way by judgment of the court” (1).
o Others may want to argue about whether this is really a proper understanding of duty,
but Holmes argues that such individuals are largely wanting the legal understanding to
include moral implications as well.
o Holmes argues that for the practical purpose of determining legal duties as a lawyer and
judge, “the vague circumference of the notion of duty shrinks and at the same time
grows more precise when we wash it [the moral associations with have with the legal
concept of duty] with cynical acid and expel everything except the object of our study,
the operations of the law” (4).
• Holmes also gives an example about how one’s understanding of what it means to make a
contract does not deal with what the parties ‘intended’ by their conduct, but with what they
actually did or did not actually do, namely, make a contract (5).
• Holmes thinks that the profession of law would benefit “if every word of moral significance
could be banished from the law altogether” (6).

Holmes’s second admonition: don’t succumb to the legal formalist understanding of law.
o Legal formalism, the then-dominant form of legal reasoning, maintained that a legal system
“can be worked out like mathematics from some general axioms of conduct” (6). Legal
formalists also held “that the only force at work in the development of the law is logic” (6).
o Although Holmes recognizes the importance of logic in the legal profession, he argues that it is
impossible to settle legal questions by pure deduction.
o Some judges pride themselves in the delusion that they can be certain that the decision
that they reach is absolutely right and that the matter is settled once and for all. Holmes
critiques this view in attempt to dispel it. “[C]ertainty generally is illusion, and repose is
not the destiny of man”, he writes (6). “[I]f any one thinks that it [a legal question] can
be settled deductively, or once and for all, I only can say that I think he is theoretically
wrong”, he continues (7).
• One reason why Holmes considers legal formalism to be flawed is because he claims that law is
not static and unchanging. Legal decisions cannot be absolutely right because they are always
open for reconsideration, as the legal principles used to determine the outcome may be
challenged and refuted in the future.
o “We do not realize how large a part of our law is open to reconsideration upon a slight
change in the habit of the public mind”, Holmes writes (7).
o The law can grow, according to Holmes. This is why he inquires into “the forces which
determine its [the law’s] content and its growth” (6).

In an extremely poignant passage, Holmes urges the law students, the lawyers and judges of the future,
to be more sensitive to the social consequences that arise from their adjudication.
Oliver Wendell Holmes, Jr. “The Path of the Law” (1897) 3
(Katharine Jane Schweitzer, 09/02/2008)

o “I cannot but believe that if the training of lawyers led them habitually to consider more
definitely and explicitly the social advantage on which the rule they lay down must be justified,
they sometimes would hesitate where now they are confident, and see that they were taking
sides upon debatable and often burning questions” (8).
o Holmes argues that many past and present “judges themselves have failed adequately to
recognize their duty of weighing considerations of social advantage” (8).

In another moving passage, Holmes urges his audience of law students to improve the body of law
within the legal system and the profession of law by understanding the rationale behind the rules of law
that exist within that system.
• “It is revolting to have no better reason for a rule of law than that so it was laid down in the time
of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished
long since, and the rule simply persists from blind imitation of the past” (9).
• “A body of law is more rational and more civilized when every rule it contains is referred
articulately and definitely to an end which it subserves, and when the grounds for desiring that
end are stated or are ready to be stated in words” (9).

Moreover, he entreats the law students to better understand the empirical consequences of their legal
actions by studying economics and statistics.
• “[I]t seems to me that every lawyer ought to seek an understanding of economics” in order that
lawyers and judges begin “to consider and weigh the ends of legislation, the means of attaining
them, and the cost” (12).

Finally, Holmes urges the Boston University law students to study jurisprudence, by which he means
“law in its most generalized part” (12).
o Studying jurisprudence will help them to arrive at “clear ideas” and “accurate notion[s]” of
what is meant “by law, by a right, by a duty, by malice, intent, and negligence, by
ownership, by possession, and so forth” (13).
o Holmes desires for law to be a rational system that supported by theoretical explanation. “We
have too little theory in the law rather than too much”, Holmes laments (13). He continues:
“Theory is the most important part of the dogma of the law, as the architect is the most important
man who takes part in the building of a house” (14).

To conclude, Holmes exhorts the law students “to get to the bottom of the subject itself”: “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” (13).