The Path of the Law

Oliver Wendell Holmes Jr.

The Path of the Law, a seminal essay written by Oliver Wendell

Holmes Jr., highlights his prediction theory of law. He begins by
saying that the law is not a “mystery but a well-known profession”.
Holmes says that law is a profession precisely because we endeavour
to study its contours to understand “the command of the public
force” and to navigate the exercise of “the whole power of the state”.
In this premise, Holmes draws his prediction theory which provides
that the study of law is the prediction of the exercise of “the public
force” as lodged in the courts.

Holmes further explains his theory by using the “bad man”

argument. He says that a “bad man” who disregards ethical rules
generally accepted by the society may nevertheless avoid violating
the law mainly because of the violation’s material consequences.

Holmes also discusses the difference between law and morality. He

warns us not to confuse the morality with law by giving examples
such as the terms malice, intent and negligence which have
meanings that differ in the former and in the latter.

He admonishes legal formalism in the understanding of law. Legal

formalism holds “that the only force at work in the development of
the law is logic.” From this criticism, his famous quote springs: The
life of the law has not been logic; it has been experience. Holmes
believes that law does not live in a vacuum; it is changing and grows
in proportion to the changes in society. He says, “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.”

In a nutshell, Holmes urges students of the law, lawyers and judges

to be ever mindful of the history of the law, its rationale, and its
consequences to the public. “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.”