By Christopher Geidner
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A Comment on Oliver Wendell Holmes' "The Path of the Law"
Justice Oliver Wendell Holmes, in an address at the Boston University School of Law on January 8, 1897, attempts to provide his audience with a map to more closely follow "the path of the law." It is the intent of this essay to look at his map, and also to examine its applicability to today's law.
According to Holmes, the legal doctrine takes one down a narrow path. On the one side of the path is morals, and on the other, logic.
Morals and legal principles, when examined from a generalized level, are similar. When one wishes to truly examine legal principles, however, he or she cannot confuse one for the other. "That distinction is of the first importance," Holmes says.
To illustrate his point, Holmes examines several areas where law and morals often become confused. One example is taxes and fines. In both situations, one pays a sum to the government because a person did a certain thing. It is of little importance, in the eyes of the law, whether or not that thing is moral. Another example is contract law. There is no legal difference, Holmes asserts, between contract law and tort liability. In both cases you are liable to pay a sum. The only difference, according to Holmes, is that in contract law you do not have to pay the sum if "the promised event comes to pass."
Holmes goes on to explain confusion between legal and moral meanings of words. He states that ridding legal words of their moral connotation would "gain very much in the clearness of our thought."
As to the logic of law, Holmes says that while law has an obvious basis in logic, it is not solely an exercise in logic. The study of law, unlike the study of mathematics, does not contain in every case certain axioms that lead to one definite answer. While students of law may be trained in logic, Holmes suggests that "certainty generally is illusion."
Conclusions are given logical form in the law, Holmes says, often based on "an inarticulate and unconscious judgment…[of]…the relative worth and importance of competing legislative grounds." For this reason, it would be incorrect to assume that logic is the complete and sole basis of law.
If we hope to study the law as Holmes wishes for us to study it, then we cannot veer too far toward either of these sides of the path. While both logic and morals play their part in the development of law, it is Holmes' point that they are also "the trap[s] which legal language lays for us on [each] side of our way."
After his discussion of the two sides of the path, Holmes gives warning to his audience as to the role of the path already traveled -- history. History must be utilized in order to gather a complete understanding of current laws, but it cannot dictate actions in the law today -- for that would be "revolting." A complete understanding of the history of given laws is "the first step toward an enlightened scepticism [sic], that is toward a deliberate reconsideration of the worth of those rules."
As an example of enlightened skepticism, Holmes discusses criminal law. "Does punishment deter? Do we deal with criminals on proper principles?" Holmes asks. He then discusses a historical reference of these questions.
"Our only interest in the past is for the light it throws upon the present," Holmes proclaims unabashedly. A legal scholar must use, in his words, "jurisprudence," to generalize legal principles in order to arrive at the appropriate theory for the future analysis of law.
One must first take the time to study both the general reasons for the law and its history. It is only then that he can 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." That, says Holmes, is "the bottom of the subject itself."
This narrow path, with its many pitfalls, is the only true path for the study of law -- the way to "catch an echo of the infinite."
"We are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds."
Since Holmes' speech, the Court has opened its enlightened, skeptical eye to cases involving workers rights and discrimination of all types. During his time on the Supreme Court, Justice Holmes often served as the voice of dissent in the "Liberty of Contract" cases, saying that "…contract is no more exempt from law than other acts." It was more than a decade before the Court would look upon contract cases with deliberate reconsideration and side with Holmes. In the years since Holmes left the bench, the Court has addressed race discrimination, sex discrimination, disability-based discrimination, and sexual orientation discrimination. Countless other tenets of law, formerly taken for granted, have been the subject of enlightened skepticism in the last 70 years.
We still face many of the same challenges in the study of law as in Holmes' day. Law must be constantly guarded against becoming either a moral code or a rote, mathematical machine. We must constantly step back and question the desired ends of our laws.
Robert Bork's nomination to the Supreme Court was opposed by many liberal Democrats because of their fear that he would superimpose his moral views upon the nation's laws. Mandatory minimum sentencing guidelines for certain drug offenses have been seen by some as inflexible, heartless laws incapable of addressing the complexities of drug use in the United States. Holmes' questions about criminal law -- "Does punishment deter? Do we deal with criminals on proper principles?" -- are topics of essays and conferences today.
While we have made progress, I believe that Holmes would say that we still have quite a ways to go on the path before we could truly "catch an echo of the infinite."