1

DAMODARAM SANJIVAYYA
NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM, AP., INDIA.

RESEARCH PAPER TITLE:

‘Diamonds and strings: Holmes on Common Law’

SUBJECT

Jurisprudence- I

NAME OF THE FACULTY

Prof. Bayola S. Kiran

NAME OF THE CANDIDATE: JAHNAVI GOPALUNI

ROLL NO. 2020LLB035

SEMESTER III
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CERTIFICATE

Title of the subject: Jurisprudence - I

Name of the faculty: Prof. Bayola S. Kiran Sir

“ I, Jahnavi Gopaluni, hereby declare that this project titled “Diamonds and
strings: Holmes on Common Law’ is submitted by me is an original work
undertaken by me. I have duly acknowledged all the sources from which the ideas
have been taken. To the best of my knowledge, the projects free from any
plagiarism issue. ”

Name: Jahnavi Gopaluni

Roll No. 20LLB035

Semester III
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ACKNOLEDGEMENT

“ I would like to sincerely convey my heartfelt appreciation to our respected Jurisprudence teacher, Prof.
Bayola Kiran sir for giving me a great opportunity to make my project and for providing me with the
guidance to finish the project successfully. ”

I would also like to thank my classmates for giving their valuable insights and for co-operation.

I have attempted to collect information and compiled it here to the best of my knowledge.
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TABLE OF CONTENTS
CONTENTS Pg. No

1. SYNOPSIS 5-7

2. INTRODUCTION 7-8

3. JURISPRUDENCE OF JUSTICE HOLMES 8-14

4. DIAMONDS AND STRINGS: HOLMES ON COMMON LAW 14-19

– BY H.L.A HART

5. CONCLUSION AND RESEARCH FINDINGS 19

6. BIBLIOGRAPHY 20
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ABSTRACT

Justice Oliver Wendell was a well-known legal and philosophical scholar whose thoughts and
opinions drove American legal realism between 1865 and 1880, and introduced sociological
and historical approaches of jurisprudence. Though Holmes has received much appreciation,
some critics argue that he gave too much weight to the state's ability to regulate individual
liberty. In his book Essays in Jurisprudence and Philosophy, which is a collection of essays,
the prominent British legal philosopher H.L.A Hart critically evaluated Holmes' famous book
"The Common Law." The book provides comprehensive examinations of the most
fundamental legal doctrines. "Diamonds and Strings: Holmes on Common Law," Essay 13, is
a critical analysis of Holmes' views articulated in his book

OBJECTIVES OF RESEARCH:

The goal of the study is to:

1. To briefly revisit the jurisprudence propounded by Justice holmes.

2. Analyse the critical discussion done by H.L.A Hart in his article "Diamonds and
strings: Holmes on common law."

SCOPE OF THE STUDY:

The study is limited to the analysis of article "Diamonds and strings: Holmes on common
law." Authored by Professor H.L.A Hart.

RESEARCH QUESTION:

1. How does H.L.A Hart explain the title ‘Diamonds and Strings’ in describing Holmes’
jurisprudence?

RESEARCH HYPOTHESIS:

Holme’s style of jurisprudence is historical analysis of legal trends of societies of past. He

constructed modern legal theories with different analogies to past legal system. Hart through
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found the idea interesting, opined that this entire theoretical approach seems to neglect the
practical goals.

SOURCES REFERRED TO:

Primary sources:

1. Oliver Wendell Holmes ‘The Common Law’ (Cambridge University Press, 1963).
2. H.L.A Hart, Essays in Jurisprudence and philosophy; Diamonds and Strings:
Holmes on common law (Oxford University press).

Secondary sources (Journals, Internet sources)

1. Oliver Wendell Holmes, ‘The Path of the Law’ Collected Legal Papers (New York
Law Review).
2. Frederic R. Kellogg, ‘Oliver Wendell Holmes, Jr., Legal Theory, and Judicial
Restraint’ (Cambridge University Press).
3. Beauna Schrip, ‘what is law according to holmes?’ (Treehozz)
4. Felix Frankfurter, ‘Constitutional Opinions of justice Holmes’ (Harvard Law Review,
1916).
5. Wilfrid E. Rumble, Jr., ‘Legal Realism, Sociological Jurisprudence and Mr. Justice
Holmes’, (Journal of the History of Ideas, 1965).
6. Posner, Richard A., ‘Legal Formalism, Legal Realism, and the Interpretation of
Statutes and the Constitution’ (1986, Case Western Reserve Law Review).
7. Paul A. Lombardo, ‘Three Generations, No Imbeciles: New Light on Buck v. Bell’
(1985, New York law REVIEW).

LITERATURE REVIEW:

1. Oliver Wendell Holmes ‘The Common Law’: Oliver Wendell Holmes Jr.'s book The
Common Law was published in 1881. The Common Law was formed from a series of
lectures given at a Boston educational institute, and it was in this work that Holmes
systematised his early legal doctrines. This work, which covers a wide range of legal
philosophy issues, has aided researcher of the present study in comprehending Holmes'
jurisprudence and interpretation style.
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2. L.A Hart, Essays in Jurisprudence and philosophy: Professor Hart's thoughts on legal
positivism and his study of the specific teaching of American jurisprudence are included
in this important series of essays. He studies basic human rights theories and has written
essays critically analysing Jhering's, Kelsen's, Holmes', and Lon Fuller's jurisprudences.

RESEARCH TYPE:

Analytical research.

RESEARCH METHODOLOGY:

Non- doctrinal method of research.

MODE OF CITATION:

The researcher has employed Oxford University Standard for the Citation of Legal
Authorities (OSCOLA), Fourth Edition.

INTRODUCTION:

Justice Oliver Wendell was a well-known legal and philosophical scholar whose thoughts and
opinions drove American legal realism between 1865 and 1880, and introduced sociological
and historical approaches of jurisprudence. He had a considerable impact on the development
of sociology-based jurisprudence and Legal Realism. Sociological jurisprudence and legal
realism were twentieth-century ideologies that highlighted the need of looking at current
social, economic, and political situations rather than restricting law to logic and abstract
thinking.

Elimination of judicial reasoning based on natural law or natural right principles was one of
his many accomplishments as a US Supreme Court judge. As a result, every study of natural
law philosophy in American constitutional history came to include his views by emphasising
their significance. Judges, he argued, should not impose their own beliefs on the law,
especially when deciding on state's legislation. He was an early proponent of the 'Judicial
restraint' theory.1

1
Frederic R. Kellogg, ‘Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint’ (Cambridge
University Press, 2007) p 218 <https://ndpr.nd.edu/reviews/oliver-wendell-holmes-jr-legal-theory-and-judicial-
restraint/>.
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Unlike many of his 19th-century contemporaries, who considered the law as a set system of
axioms, Holmes saw the law as adaptive and receptive to society's changing requirements. He
advocated for a pragmatic approach to law. Oliver Wendell Holmes was a key figure in the
integration of modern jurisprudence concepts into American law.

Though Holmes has received much appreciation, some critics argue that he gave too much
weight to the state's ability to regulate individual liberty. He was dubbed "The Great
Dissenter" by some sceptics. In his book Essays in Jurisprudence and Philosophy, which is a
collection of essays, the prominent British legal philosopher H.L.A Hart critically evaluated
Holmes' famous book "The Common Law." The book provides comprehensive examinations
of the most fundamental legal doctrines. "Diamonds and Strings: Holmes on Common Law,"
Essay 13, is a critical analysis of Holmes' views articulated in his book. 2

In order to understand the critical discussion done by H.L.A Hart in his article "Diamonds
and strings: Holmes on common law," it is necessary to revisit concepts and viewpoints given
by Holmes in this paper. In this paper in order to comprehend H.L.A Hart's critical account in
his essay, one must first understand Justice Holmes' jurisprudence.

The jurisprudence of Justice Holmes

Legal realism:

Legal realism changed the study of early law by focusing on social dynamics and culture
rather than formal law codes and rigid legal systems. Legal realists intend to highlight the
role of human will and fallibility in the creation and interpretation of law. 3

Legal realism is a theory that all law emanates from dominant social interests and public
policy. Legal realism varies from legal formalism in this regard. In legal formalism, courts
adopt predetermined and conservative legal rules to cases. It is thought that the consistent
legal rules in a unified system, which must be observed by all judges in determining different
situations, have some underlying logic. Legal realism, on the other hand, holds that while

2
H.L.A Hart, Essays in Jurisprudence and philosophy; Diamonds and Strings: Holmes on common law (Oxford
University press, 1983) p 391.
3
Beauna Schrip, ‘what is law according to holmes?’ (Treehozz,2020) < https://treehozz.com/what-is-law-
according-to-holmes> Accessed on 15 November 2021.
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considering a case, judges examine not just abstract laws, but also social interests and policy
making. 4

When Holmes initially articulated his theory of how the law arises and unfolds in the late
1800s, it was innovative, even revolutionary. Society, he claims, chooses which legal
principles will survive and how they will be applied. When Holmes writes, "The law
embodies the storey of a nation's development," he finds a direct link between law and
society. 5

The law, according to Holmes, should be understood as a prediction, namely a prediction of

how the judges will act. Holmes' thesis had a significant influence on American legal realism.
Justice Holmes assumed the character of a science to be significant in law making. Law was
viewed as a social reality, and all legal theories were evaluated as implementation plan. "The
law must be viewed as acting in a complex of other actions, and as a social process," he
added. Law cannot be established as a distinct thing; it can only be considered in terms of the
social circumstances in which it develops and what it does in those circumstances." 6

The life of the law has not been logic, it has been experience, says Holmes in probably the
most iconic passage in The Common Law. The phrase has had a lot less to do with deciding
the norms by which mankind should be ruled than the perceived demands of the time, the
current moral and political doctrines, intuitions of public policy, expressed or subconscious,
and even biases that judge share with their fellow-men. The law encapsulates a nation's
growth over many centuries, and it cannot be treated as if it were a book of mathematics with
hypotheses and corollaries according to Holmes. We need to know what it has been and what
it is likely to become before we can figure out what it is. We must consider history as well as
existing legislative theories in turn according to Holmes.  The most difficult task in
understanding the merging of the two into innovative products at each level will be to grasp
the impact of sociology. 7 8

4
 Posner, Richard A., ‘Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution’
(1986) vol. 37 (2) Case Western Reserve Law Review, p. 179-217.

5
Wilfrid E. Rumble, Jr., ‘Legal Realism, Sociological Jurisprudence and Mr. Justice Holmes’, (1965) Vol. 26
(4) Journal of the History of Ideas, p. 547-566 <http://www.jstor.org/stable/2708499> Accessed on 15
November 2021.
6
Ibid.
7
‘The Common Law’ (Cambridge: Harvard University Press, 1963), Vol. 18 (1/2) Mid-American Review of
Sociology, p. 23- 46 <http://www.jstor.org/stable/23253061> Accessed on 15 November 2021.
8
Oliver Wendell Holmes Jr., The common Law (Routledge, 2nd edn., 2000).
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Holmes had a more pragmatic and sociological approach to the legal system. A judge's
decision in a case must be influenced not just by logical reasoning, but also by the changing
wishes and opinions of the predominant social group. Moreover, court judgements must not
be certain and absolute since the judge must consider conflicting societal objectives and
transitory interests which in reality are impermanent and historically contingent. Court ruling,
in Holmes' opinion, must not be a logical inference-based activity in which judges uncover
and apply preconceived legal axioms. Rather, cases are determined based on the judge's
policy position as he or she weighs and evaluates the evidence. "Conflict between two social
desires which cannot both have their way. The social question is which desire is stronger at
the point of conflict". This "social question," Holmes believed, could be answered with the
help of social science. Justice Holmes was regarded as the pioneer of sociological and legal
interpretation of law.

He was categorised as a sociological jurist because he used the social sciences as a

foundation for understanding and interpreting the law. He agreed with certain aspects of
historical and logical philosophies. He rejected natural law as a legal concept and didn't really
believe that a human being's liberties were inscribed in stone for eternity. He was an
outspoken opponent of the notion of undeniable truth. He saw process of behaviour in the
past, reflected on his surroundings, and cautioned against dogmatic formulas in the future. He
was well aware that the oak's sensitive roots could crack the foundation of the massive
edifice.

The governing principle of Holmes' jurisprudence was the generalisation of the law as a
method of giving it a rational and practically universal nature. As Holmes ignores natural
law, his jurisprudence as the science of positive law devolves into a forecasting tool similar to
modern science.

Judicial restraint and constitutionalism:

Pragmatism and social Darwinism started to dominate the American intellectual landscape
after the Civil War, wiping away all concepts of natural law and natural rights, as well as a
constitutionalism geared to their defence. Society and thought are aimed toward constant
change and adaptation to the environment according to both pragmatists and social
Darwinists. The proof of a proposition's merit is its adaptive success, which is the measure of
development, not its validity in itself which is a measure in the case of natural law theory.
 11

Despite the fact that he was a great proponent of "judicial restraint," Holmes frequently
understood the necessity for courts to respond creatively to the demands of the times.9

He claimed that constitution must be adaptable enough to suit all of our society's changing
needs. Because it is written for an uncertain and increasing future period, the constitution
should have enough ways to adapt to the changing requirements of subsequent generations.
The constitution, according to Holmes, was neither the beginning nor the conclusion of our
constitutional evolution. Its writing and acceptance just reflect a turning point in our social
evolution, and its meaning is derived from its existential aspects rather than its words. As a
result, its interpretation should lean toward indefinitiveness rather than finality. "The
provisions of the constitution," he said, "are not mathematical formulas having their essence
in their form, they are organic, living institutions transplanted from English soil. Their
significance is vital, not forreal, it is to be gathered not simply by taking the words and a
dictionary, but by considering their origin and the line of their growth. Great constitutional
provisions, must be administered with caution. it must be remembered that legislatures are
utahite guardians of the liberties and welfare of the people in quite as great a degree as the
courts." 10

"While the courts must exercise a judgment of their own," he said, "it by no means is true that
every law is void which may seem to the judges who pass upon it excessive, unsuited to its
ostensible end, or based upon conceptions of morality with which they disagree. Considerable
latitude must be allowed for differences of view as well as for possible peculiar conditions
which this court can know but imperfectly, if at all. Otherwise, a constitution, instead of
embodying only fundamental rules of right, as generally understood by all English-speaking
communities, would become the partisan of a particular set of ethical or economic opinions,
which by no means are held semper unique et ab omnibus." 11

The Supreme Court should interfere when the legislative body restricts free expression, but
not when it restricts individual prosperity or economic restriction, according to Holmes'
jurisprudence. Survival or advancement, according to Holmes, may necessitate activism or
moderation, and dependence on either is essentially influential or experimental in nature. 12

9
Bradley C. S. Watson, St. Vincent College, ‘OLIVER WENDELL HOLMES, JR. and the NATURAL LAW’
<http://www.nlnrac.org/critics/oliver-wendell-holmes#_ednref9> Accessed on 15 November 2021.
10
"Felix Frankfurter, ‘Constitutional Opinions of justice Holmes’ (1916) 29 Harvard Law Review 683.
11
Oliver Wendell Holmes, ‘The Path of the Law’ Collected Legal Papers (New York: Peter Smith, 1952), 167.
12
Ibid 189.
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Holmes’ theory of state: Criticism:

The state theory proposed by Holmes has sparked a lot of debate. It's hard to think Holmes
believed in a totalitarian philosophy though a lot of people alleged that he did. He felt that
"the dominating force in the community" had the authority to remove an individual's life and
property whenever the interests of society demanded it. This is what statism is all about. The
law, according to Holmes' jurisprudence, is what the government says it is. With the
emergence of totalitarian regimes in Germany and Italy, as well as Stalin's leadership in the
Soviet Union, this theory, known as Legal Positivism, was brought into question in the 1930s
and 1940s. Positivism was attacked by several legal scholars as missing a moral foundation
and essential societal ideals.13

Despite his illustrious reputation, Holmes is not without critics. The most commonly cited
case to demonstrate out flaws in his jurisprudence is BUCK V. BELL (1927). Holmes
supported the validity of a state act enabling the sterilisation of "feeble-minded”, mentally
retarded people in his majority decision in Buck. "Three generations of imbeciles is enough,"
Holmes said after reviewing Carrie Buck's, her mother's, and her daughter's family history.
He believed that sterilisation was the most effective approach to prevent mentally retarded
people from reproducing, and he assumed that all three generations of women were mentally
retarded.

Evidence later revealed that none of the three were mentally handicapped. Despite Holmes'
complaints, the case also demonstrated that respect to legislative acts such as forced
sterilisation was not an unconstrained good and that morality and justice have a place in the
law.

In Buck v. Bell 14
, Holmes authored an eight-to-one majority opinion that maintained a
Virginia compulsory sterilisation legislation. The law was maintained by Holmes on the basis
that people who were subjected to it were treated with utmost procedural fairness. Holmes
seemed to accept the racialist arguments to the extent of approving them on public policy,
criticising individuals who "sap the strength" of society and claiming, with relation to the
afflicted petitioner and her family, that "three generations of imbeciles are enough." By
this analogy, Holmes deduced. He compared sterilization's difficulties to warriors' sufferings
in battle. He maintained that if "the national good may rely upon the best citizens for their
13
Kellogg, Frederic R., ‘Holmes, Common Law Theory, and Judicial Restraint’ (2003) 36
John Marshall Law Review 457–505.
14
Buck v. Bell, 274 U.S. 200 (1927).
 13

lives" during the Civil War, then those who "sap the strength of the state" may be called upon
for a smaller cost. 15

The Court affirmed Virginia's forced sterilisation legislation in Buck, thanks to Justice
Holmes. The rule was founded on the broad eugenics’ movement, which attempted to
eliminate social evils by prohibiting "unfit" people from reproducing. The five-paragraph
opinion of Justice Holmes was "simply lawless,” said critics. 16
Only one case was
mentioned, and the litigant, Carrie Buck, was treated with disdain. Because of the law's
stringent procedural standards, Holmes found no procedural due process violation. He further
claimed that there was no legal and constitutional infringement because sterilisation was
similar to compulsory immunisation. Furthermore, he discovered that eradicating persons
with disabilities was "better for the planet" than allowing their species to continue to exist.
Finally, he concluded that there was no due process breach since such claims were "the
normal last option" of constitutional claims, and that a law accomplishes everything it can
when it does what it must. 17

The opinion was said to be inaccurate in terms of facts and law, as well as including outright
lies. For instance, Holmes overlooked the fact that most courts had previously ruled that
forced sterilisation laws were unconstitutional, particularly under the equal protection
provision. Second, equating forcible sterilisation with forced vaccination instances was
called a grave mistake. 18

The common law:

Holmes did not give up his investigation into the essence of the law. He was invited to
Boston to give a series of legal lectures published as common law in 1881. This volume is the
most famous legal philosophical work in American history. This allowed Holmes to
systematically analyse, classify, and explain various aspects of the US common law, from tort
to contracts, crime and punishment. In the common law, derived from a series of lectures at

15
ibid
16
Victoria Nourse, ‘Buck v. Bell: A Constitutional Tragedy from a Lost World’ (2011) 39 PEPP. L. REV. 101,
102.
17
Ibid.
18
Paul A. Lombardo, ‘Three Generations, No Imbeciles: New Light on Buck v. Bell’ (1985) 60 New York law
REVIEW P. 30, 32.
 14

the Lowell Institute in Boston, Holmes systematized his early legal teachings. The result was
a permanent classic of legal philosophy that was read and consulted more than a century later.

Beginning with historical forms of liability (which are assumed to have originated in ancient
Roman and Germanic revenge killings), the book moves on to address criminal law, torts,
bails, possession and ownership, contracts, successions, and a variety of other civil and
criminal law topics.

The Common Law drew this remark from another famous jurist: "It encompasses Holmes's
comprehensive, wide-ranging understanding of the law in its historical dimensions, yet
expressed in a manner eminently accessible to the layperson. “The importance of the
common law is that it rejects the idea that law is a system of logic and that the legal system
follows the rules of logic. In his most famous quote, Holmes concluded: “Law has been
experience. The felt necessities of the time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the prejudices which judges share
with their fellow-men, have had a good deal more to do than the syllogism in determining the
rules by which men should be governed.” The jurists," he said, "who believe in natural law
seem to me to be in that naive state of mind that accepts what has been familiar and accepted
by them and their neighbours as something that must be accepted by all men everywhere."

Holmes' case law concludes that judges make decisions first and then find reasons to explain
them. Those who are interested in the origin, development, and progress of the law that
governs human society.

Diamonds and strings: Holmes on Common Law – By H.L.A

Hart:

According to H.L.A Hart, the book by Holmes resembles diamonds because of its wonderful
insights into the brilliance of the common law and deep examinations of the dynamism of its
creation; it continues to shine a light on the dark areas beneath the clear and seemingly stable
forms of legal thought. The thread is Holmes' attempt to turn the trends he saw at work in the
 15

history of the law into a stern, collective ideology of society through oblique and hurried
reasoning, dismissive disregard of opposing viewpoints, and outright fabrications. 19

Hart admired Holme's outstanding skills as a historian and his detailed examination of early
law and its growth. At the same time, Hart critiqued Holmes' history-based comparison
concept as 'shallow'. In comprehending or studying legal philosophy, Holmes made numerous
connections to Darwinism (continuous evolution with variations) and empiricism. They were
described by Holmes as 'interesting links,' and he went on to say “but it now seems of value
only as a stimulant and has little claim to finality even as a critique of the Kantian
metaphysics to which he was opposed to, which was famous theory of his times.” 20

The book covers a wide range of issues, including the basis of criminal culpability and civil
wrongs or torts in early and later stages of law, the essence of contract, the illusive concept of
possession, and the gradual creation of current conceptions of legal rights. There are
references to Plato, Demosthenes, Plutarch, Pausanias and many others in the few sections, in
addition to passages discussing Roman law; English legislations and cases from the earliest
periods onwards. Hart appreciates the efforts by Holmes by saying that this knowledge is
always elegantly applied and never descends into pomposity, and it's incredible that a man of
forty could have collected so much information. 21

When Holmes first began writing in the 1870s, he discovered that academic law was
controlled by a theory derived from German philosophy and applied to the body of Roman
law. Kant, Hegel, and Savigny were among the great names. 'The human will' was at the
centre of legal theories at the time. The ‘Willenstheorie’ was the name given to this idea
(theory of intent). According to this view, an offender's awareness or wilfulness when
committing any conduct with legal repercussions was a factor in determining punishment.
Individual wills were vital in forming a legal contract, as was their meeting. This was a
dilemma for Holmes.

This entire theoretical approach seems to neglect the practical goals and constraints that
shape any live body of legislation. There are two errors in this hypothesis, according to Harts:
One of them is that the entire legal system is founded on a few flawed leading concepts.
Second, the lines between legal and moral responsibility and legal and moral wrong have
been blurred. These ideas, he suggested, should be washed away, perhaps in 'cynical acid.'
19
H.L.A. Hart., ‘Essays in jurisprudence and philosophy (Essay 13)’ (OUP 1983) p. 278 Para 1.
20
Ibid.
21
Ibid, Hart 278-279, para 2.
 16

The common law, Holmes continued, was "a considerably more civilised system than the
Roman, fashioned on a scheme irreconcilable with Kant and Hegel's a priori beliefs."
According to Hart's interpretation of the entire thing, Holmes dug deep into the details of
ancient common law, and by doing so, he broke new ground in this field of legal science
because he was gifted with the ability to challenge what had long appeared clear. He has a
knack for persuading sceptics.

On Holmes’ style of historical analysis of legal trends of societies of past, Hart observed that,
the way Holmes constructed modern legal theories with different analogies to past legal
system is impressive, perhaps that he was influenced by biological theories of his times yet he
never adulted past. He remarked: “just as the clavicle in the cat tells of the existence of some
earlier creature to which a collar bone once was useful.”

Excessive moralization and rationalisation of law, which Holmes referred to as "occupational

disorders of legal theorists," were condemned by Holmes. He believed that the life of a
lawyer is more about experience than reasoning. He emphasised the relevance of "instinctive
preferences and inarticulate convictions" in interpreting the law. The idea that, while the law
often appears to make liability for punishment or payment of compensation for injury done
contingent on the individual's real purpose to do harm, this is rarely to be interpreted literally,
was Holmes' idee maitress. One of the fundamental contrasts between early and modern law,
he reasoned, are as follows: “Acts should be judged by their tendency under the known
circumstances not by the actual intent which accompanies them; Though the law starts from
the distinctions and uses of the language of morality it necessarily ends in external standards
not dependent on the actual consciousness of the individual. the law considers what would be
blameworthy in the average man, the man of ordinary intelligence and prudence, and
determines liability by that.”

These beliefs were turned into a form of social philosophy by Holmes, who justified what he
calls "individual sacrifice." These ideas, he believed, were crucial in pointing out overlooked
legal tendencies. When the law speaks of a specific intent to do harm as a vital element of a
crime, Holmes contends that all it does, can, and should require (these three components are
never sufficiently distinguished by Holmes) is that the person charged with a crime should
have done what a common individual would have predicted would result in injury. Despite its
subjective and moralising wording, the law does not demand proof of the accused's genuine
 17

depravity or desire to harm others. Holmes said: “The thought of man is not triable; the devil
alone knoweth the thought of man.” 22

Because of the apparent problems of legal evidence of actual knowledge or intention,

Holmes' theory of objective culpability has gained widespread acceptance. For Holmes,
"objective liability" implied a substantive standard of behaviour rather than an evidence test.
His position was that the criminal law's duty was to "guard society from harm," and that in
order to achieve this goal, it did and should establish "objective norms of behaviour that
individuals must fulfil at their peril." The law may exempt individuals who are plainly
horribly unable, such as a young infant or a madman, but men who are too weak in
comprehension or willpower must be surrendered to the greater good.

Though many liberal minded thinkers including Hart concurred with this view, Hart pointed
out that: “Certainly the criminal law bears traces of such objective standards; indeed, the
elimination of these has been the aim of many liberal-minded reformers of the law for many
years. But though Holmes at one point says that he does not need to defend the law's use of
'objective standards' but only to record it as a fact, he devotes much of this chapter to
showing that the law here is reasonable and even admirable. The arguments he uses are the
poorest in the book. He considers the objection that the use of external standards of criminal
responsibility taking no account of the incapacities of individuals is to treat men as things, not
as persons, as means and not as ends.” Although Holmes concedes to the charge, he considers
it is unimportant. He claims that society routinely considers men as means, such as when
conscripts are sent to their deaths "with bayonets in their backs."

This meant that only in a social system that acknowledges their rights and interests can we
justify exacting sacrifices from some persons for the sake of others. The right in dispute in
the event of punishment is people's right to be given freedom and not penalized for the good
of everyone else unless they have done something illegal while they had the capability and a
genuine chance to comply with its standards.

“ Apart from that, Hart's essay declared Holmes' major argument ineffective. He claims that
Holmes takes the reasonable stance that the general goal underpinning a modern system of
punishment for crimes is to avoid detrimental crime, not to achieve revenge or retribution in
the sense of a payback of anguish for an evil committed. On this premise, he aims to
demonstrate that there is no need for the law to investigate into the actual state of the
22
Hart, p 282.
 18

perpetrator's mind or his true capacity to accomplish what the law asks. His evidence is that,
because the law only requires external compliance to its prescriptions and does not concern
what the motives or true intentions of those who heeded were, or whether they could have
done otherwise, it should also neglect these subjective matters when dealing with the offender
when the law has been broken. This assertion, according to Hart, does not flow logically from
the previous argument or statement. ”
23

Even though the general justification for punishment is the altruistic goal of preventing harm
rather than revenge or retribution, Hart maintains that it is perfectly reasonable to defer to
notions of law or fair treatment to individual people and not punish those who lack mental
means or a fair opportunity to comply. It's just not true that a concern for the individual only
makes perfect sense within a retributive or vengeful regime. According to Hart, while
Holmes emphasises the relevance of such principles of justice to people when addressing tort
responsibility, he believes that in criminal law, their prerequisites are properly met if the
individual is punished simply for what would be blameworthy in the typical man. There are
no doubt practical challenges in determining an individual's true knowledge, intent, or ability
in every circumstance, but there is no reason why a maximal effort should not be undertaken
in theory.24

The law will not inquire as to whether he anticipated this outcome or not. 'What a man of
reasonable prudence would have expected is the test of insight, not what this terrible criminal
anticipated.' Holmes used this approach in murder cases at least twice while a judge in
Massachusetts, and his teaching has had a significant impact on both the body and the theory
of the law. The House of Lords in England endorsed it in 1961, quoting Holmes' words.
However, it presently has little support in American legal thinking, and it is categorically
rejected by the American Law Institute's Model Penal Code. The English House of Lords'
judgement drew much condemnation, and it is now obvious that Holmes' approach will not
be used in English crimes other than homicide.

Even in America, some of Holmes' opponents have blackened advice as much as his
supporters.  Because they have accepted Holmes' erroneous claim that it is meaningless to
worry about an individual's mind or aptitude to obey the law unless the goal of punishment is
vengeance for moral evil, they have accepted the false notion contained in his argument, said
Hart.
23
Hart, p. 283.
24
Ibid 284.
 19

They argued against Holmes that we must be worried about these subjective truths about
individuals, but they concurred with him that this is only necessary to establish the depravity
of those who are penalized. This is a glaring overgeneralization of the complex issues
encompassing the establishment of punishment, and it disregards the claims of liberal
utilitarian theory, which holds that, while law-breakers must be punished for the sake of
society's protection, no person who lacks the capacity to obey should be punished.

Hart concluded his essay by saying that though these and other weaknesses are to be found in
this book, almost everything which Holmes said in it still reverberates. He further said: “This
is not only a tribute to the magic and sonority of his style. In thinking about any subject on
which Holmes touched here it still pays handsome dividends to start with what he said, even
though, in some cases, it seems no longer possible to stay with it.” 25

CONCLUSION AND RESEARCH FINDINGS:

“ In rejecting natural law and natural rights, as well as a liberal constitutionalism of limited
state power, Holmes laid the foundation for today's jurisprudence, in which judges began to
look to their predictions of the future rather than documents and dogmas of the past, and thus
to play a fresh and much more important role in the constitutional system. He is regarded as
one of the finest jurists of all time in the history of jurisprudence. He was unconvinced by any
of the alternative theorists. He was a man without a religion or a code. He desired the facts
and believed that they should be in charge. He felt that rather than reasoning, law should be
shaped by experience. He stated that law should be grounded rather than based on
Mythology. Free thinking Nonconformist and outspoken jurist.”

Holme’s style of jurisprudence is historical analysis of legal trends of societies of past. He

constructed modern legal theories with different analogies to past legal system. Hart through
found the idea interesting, opined that this entire theoretical approach seems to neglect the
practical goals. Hart has appreciated insights into the brilliance of the common law and deep
examinations of the dynamism of its creation. At the same time, highlighted several
weaknesses in Holmes’ philosophy. “In rejecting natural law and natural rights, as well as a liberal constitutionalism of limited state power, Holmes laid the foundation for today's jurisprudence, in which judges began to look to their predictions of the future rather than documents and dogmas of the past, and thus to play a fresh and much more important role in the

constitutional system. He is regarded as one of the finest jurists of all time in the history of jurisprudence. He was unconvinced by any of the alternative  theorists. He was a man without a religion or a code. He desired the facts and believed that they should be in charge. He felt that rather than reasoning, law should be shaped by experience. He stated that law should be grounded rather than based on Mythology. Free thinking Nonconformist and outspoken jurist. In rejecting natural law and natural rights, as well as a liberal constitutionalism of limited state
power, Holmes laid the foundation for today's jurisprudence, in which judges began to look to their predictions of the future rather than documents and dogmas of the past, and thus to play a fresh and much more important role in the constitutional system. He is regarded as one of the finest jurists of all time in the history of jurisprudence. He was unconvinced by any of the alternative  theorists. He was a man without a religion or a code. He desired the facts and believed that they should be in charge. He felt that rather than reasoning, law should be shaped by
experience. He stated that law should be grounded rather than based on Mythology. Free thinking Nonconformist and outspoken jurist. In rejecting natural law and natural rights, as well as a liberal constitutionalism of limited state power, Holmes laid the foundation for today's jurisprudence, in which judges began to look to their predictions of the future rather than documents and dogmas of the past, and thus to play a fresh and much more important role in the constitutional system. He is regarded as one of the finest jurists of all time in the history of
jurisprudence. He was unconvinced by any of the alternative theorists. He was a man without a religion or a code. He desired the facts and believed that they should be in charge. He felt that rather than reasoning, law should be shaped by experience. He stated that law should be grounded rather than based on Mythology. Free thinking Nonconformist and outspoken jurist. In rejecting natural law and natural rights, as well as a liberal constitutionalism of limited state power, Holmes laid the foundation for today's jurisprudence, in which judges began to look to
their predictions of the future rather than documents and dogmas of the past, and thus to play a fresh and much more important role in the constitutional system.”.”

25
Ibid 285.
 20

BIBLIOGRAPHY

1. Oliver Wendell Holmes ‘The Common Law’ (Cambridge University Press, 1963).
2. H.L.A Hart, Essays in Jurisprudence and philosophy; Diamonds and Strings: Holmes
on common law (Oxford University press).
3. Oliver Wendell Holmes, ‘The Path of the Law’ Collected Legal Papers (New York
Law Review).
8. Cambridge University Press Journal.
9. Harvard Law Review Journal.
10. Journal of the History of Ideas.
11. Case Western Reserve Law Review.
12. New York law REVIEW.