oliver wendell holmes and worksheet

2. Holmes says that if you want to know the law and nothing else you must look at it "as a bad man." What is the "bad man" view of the law and what does he mean by that?

He introduces the "bad man" on p. 459 (I am quoting from the original HLR article, which began on p. 457) in the context of his point on the need to separate law and morals. He introduces the "bad man" as a hypothetical person, a client who simply wants to be able to escape liability and who doesn't care one bit for legal terminology or history. His basic principle is this: "a man who cares nothing for an ethical rule which is believed and practised by his neighbors 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" (457). The "bad man" is one who "cares only for the material consequences which such knowledge (i.e., of the law) enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience" (Id.). Thus, as lawyers (and Holmes is addressing himself to students--prospective lawyers) we need to realize that people look at law from its consequences and not from its origin, history or morality. In his "bad man" view of law Holmes is showing himself as the ultimate pragmatist. Don't look at law "as it essentially is," whatever that might mean, but from the practical perspective of one who wants to minimize liability. How can you help him/her do that? Note that Holmes is not saying anything about the essential nature of law; indeed he will call law the "witness and external deposit of our moral life" (457). But, for the sake of legal practice, just be practical. Avoid theoretical considerations. Limit liability.

3. Holmes says that the "prophecies of what the courts will do in fact" is what he means by law. But what does he mean by that statement?

Again, Holmes is speaking to practitioners. They (you) will represent clients. You have a load of precedents lying around that may or may not be "on point." In fact, the law you seek for your client is law that may not have been precisely worked out. In this case it is the prophecies of what a court will do. The "bad man" just wants to know how his case will work out. Law, then, is not some kind of "brooding omnipresence" (a term he uses later in life), nor is it a series of rules derived from overarching principles (as Langdell would argue) but a simple uncertainty-- a "best guess" at what courts will do.

The word "prophecy" is taken from religion. Holmes also uses some other religious terminology when speaking about law. On p. 457, for example, he speaks of prophecies as something in the past which law communicates. He says, "In these sibylline leaves (old reports and treatises) are gathered the scattered prophecies of the past upon the cases in which the axe will fall" (457). So, the "old reports" contain "prophecies." The dusty volumes are like the Sibyl of old, who prophesied what was to come. Thus, the cases and records from the past are the prophecies, which point not only to themselves but also to the future. Law then, which comprises these old reports and cases, is nothing other than the "prophecies" of what will be.

4. He says that he wants to lay down some "first principles" for the study of law. what are they and how does he define them?

In the first half of the article he lays down two first principles: the separation of law from morality and the separation of law from logic. Since I have already addressed the former, I will only mention a few things about the latter. He says, "The fallacy to which I refer (the "second fallacy") is the notion that the only force at work in the development of law is logic" (465). He first thinks about the issue broadly, in the way we commonly think about logic. Here is the common understanding: "The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents" (465). This understanding is good as far as it goes. "In the broadest sense it is true that law is a logical develpment, like everything else"--which means that the general laws of cause and effect apply in the field of law, also. But the reasoning breaks down when you think that law can be worked out "like mathematics from some general axioms of conduct" (Id.) Thus the process of legal decision making is often understood to be just "getting the sums right," as if law was a mathematical or logical endeavor. But Holmes won't let this go unchallenged.

He makes two statements worthy of note: "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." That is, "inarticulate" longings and "unconscious" judgments often carry the day in legal development. Again 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" (466). He is coming dangerously (?) close to suggesting that law has a whimsical rather than a logical development. His studies in history had led him to the belief that it is the overriding concerns of the moment that determine law's development rather than any intrinsic "principle" within law itself. But this raises the interesting question, which Holmes deals with in the rest of the essay (and which I don't have time to develop here) of what value the historical study of law is. Just can't answer every question in one essay!

5. What is his purpose in telling the story on malice and the parson who preached on Foxe's Book of Martyrs?

The story, told on p. 463, illustrates another significant contribution of Holmes to American law--the removal of the moral aspect from the definition of legal terms and its replacement with an objective, "reasonable man" standard. A preacher told a story out of Foxe's book regarding how a man who assisted at the torture of one of the saints was afterward consumed by guilt and suffered "compensatory inward torment." In fact, the person who aided in the torture was in his audience and seemed to be quite fit and alive. He sued the parson under the theory that it was maliciously told. Judgment for the defendant parson because the "story was told innocently, without malice." But, as Holmes goes on to say, the problem with this decision was taking malice in the moral sense. In fact it ought to be defined as a "false statement manifestly calculated to inflict temporal damage" (463). By replacing the subjective or "innner mental state" with the objective or reasonable person standard, law should have concluded that he was liable for malice. So hard it is, however, to separate law from morality.

6. Why does he introduce his examples of larceny and embezzlement?

This question was designed to bring out what Holmes believes to be the value of the study of history for law. He tells the "story" of the development of larceny and embezzlement law on pp. 469-70. His point is that the social end of a rule (which is the important thing) is often obscured and only partially attained because of a murky and gradual historical development of the rule. He lays out the principle: "we think it desirable to prevent one man's property from being misappropriated by another, and so we make larceny a crime" (469-70). We would think that the harm is the same whether it is misappropriated by someone who wrongfully (i.e., a thief) or 'rightfully' (e.g., a bailee or a servant) takes the property. Yet, because "primitive law" thought that trespass had to be part of a crime, a wrongful taking was required. But in "modern times" judges expanded the definition to include getting possiession by trick or device, which may not, historically, have been a trespass. And so embezzlement statutes were passed. Yet, it was almost impossible to tell when there was in fact an act of larceny and when an embezzlement. As a result, under the strict rules of common law pleading, you might be able to get a person off if he was charged with larceny when, in fact, embezzlement was what he did.

I don't think Holmes is fully clear in this story, and so I tried to "clean him up." The point is that studying history will tell you how concepts have developed in the often crazy-quilt manner than they have.

I also gave two quotations in class on 10/13 which I felt were strongly illustrative of central points for Holmes. If you understand and master these quotations, you understand what drives Holmes, I believe.

The first is on p. 469, "For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics." What does that mean?

And, finally, the quotation on p. 478, where the master fined his valet "for lack of imagination, five dollars." He comments: "To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas." That captures it for Holmes.

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