Paths of law

Image: Pavel Danilyuk


The incidence of public power through the instrumentality of the courts

When we study Law we are not studying a mystery, but a well-known profession. We are studying what we want in order to appear before judges, or advise people in order to keep them safe from the courts. The reason why this is a profession, why people pay lawyers to argue for them or to advise them, is that in societies like ours, the command of public power is entrusted to judges, in certain cases, and the entire State power will be committed, if necessary, to enforce its judgments and decrees.

People want to know under what circumstances and to what extent they will run the risk of going against that which is so much stronger than them, and therefore it becomes a business to discover when this danger is to be feared. The object of our study is, therefore, a prediction, the prediction of the incidence of public power through the instrumentality of the courts.

It can be seen quite clearly that a bad man has as much reason as a good man to wish to avoid an encounter with public power. If one wants to know the law and nothing else beyond it, one must see him as a bad man, who only cares about the material consequences that such knowledge allows him to predict, not as a good man, who finds his reasons for leading oneself, inside or outside the law, in the vaguest sanctions of conscience.[I]

The means used for the study are a body of reports, treaties, and statutes, in this country[ii] or in England, going back six hundred years in the past, and which in our days grows annually by hundreds. In these Sibylline leaves are spread prophecies of the past regarding cases upon which the ax will fall. These are what have properly been called the oracles of the law. The most important and practically total significance of every new legal effort is to make these prophecies more precise, and to generalize them into a connected system from end to end.

The process is unique, from the statement of a case by the lawyer, eliminating all the dramatic elements that clothe the story told by the client, and restricting itself only to facts of legal importance, to the final analyzes and the abstract universals of theoretical jurisprudence. The reason why a lawyer does not mention [those particularities] is that he assumes that the public authorities will act in the same way when the client is before him. Prophecies become easier to remember and understand if the teachings of past decisions are placed in general propositions and collected in textbooks, or if statutes assume a general form.

The primary rights and duties with which jurisprudence deals are again nothing more than prophecies. One of the harmful effects of the confusion between legal ideas and moral ideas, about which I will have something to say in a moment, is that theory is apt to put the cart before the horse, and consider right and duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are subsequently added. But, as I will try to show, a so-called legal duty is nothing more than a prediction that if a man does or omits certain things, he will be subjected, in this or that way, to the judgment of the court - and therefore to a legal right .

The number of our predictions, having been generalized and reduced to a system, is not so large that they cannot be handled. They present themselves as a finite body of dogmas that can be mastered within a reasonable time. It is a big mistake to be terrified by the ever-increasing number of reports. The reports of a certain jurisdiction over a generation bring together the entire body of the law and reestablish it from a current point of view. We can rebuild the corpus from them, if everything that came before has been burned. The use of earlier accounts is often historical, a use about which I have something to say before I finish.

I wish, if I can, to present some first principles for the study of this body of dogmas or systematized predictions that we call law. This will serve those who wish to use it as a working instrument, allowing them to prophesy in turn, taking the study to an ideal, I hope, that our law has not yet achieved.

The first thing for the operational understanding of the subject is to understand it within its limits, and because of this I think it is desirable from the beginning to point out and undo a confusion between morality and law, which sometimes reaches the height of a conscious theory, and more frequently and constantly confuses the details without reaching the conscious level. Quite simply it can be seen that a “bad man”[iii] has as much reason as a good man to wish to avoid an encounter with public power, and it is therefore possible to see the practical importance of the distinction between morality and law. Someone who does not care about an ethical rule created and put into practice by their neighbors, is very concerned about avoiding having to pay some amount and wants to escape jail if they can.

I take it as perfectly accepted that none of my listeners will interpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. His story is the story of the moral development of the race. Its practice, despite popular jokes, tends to produce good citizens and good men. When I emphasize the difference between law and morality I am referring to the simple purpose of learning and understanding the law. For this purpose, you must definitely master your specific marks, and it is for this reason that I ask you to imagine yourselves as indifferent to anything other or greater.

I do not say that there is not a broader point of view from which the distinction between law and morals becomes secondary or unimportant, as all mathematical distinctions vanish in the presence of infinity. But I say that the distinction is of the first importance to the object we have here to consider—a correct study of the law and its rule, as an enterprise within well-understood limits, a body of dogmas enclosed within definite lines. I have just shown the practical reason for saying this.

If someone wants to know the law and nothing else, he must regard him as a bad man, who only cares about the material consequences that such knowledge allows him to foresee, and not as a good man who finds reasons for his conduct, within or outside the law, in the vague sanctions of conscience. The theoretical importance of the distinction is no less than if the matter were treated correctly. The law is full of phraseology originating from morality, and by sheer force of language it continually invites us to pass from one domain to another without realizing it, being sure that we do so unless the border between the two is constantly before our minds. The law speaks of rights, duties, malice, intent, negligence, and so on, and nothing is easier or more common in legal reasoning than to take these words in their moral sense, at some stage of the argument, and thereby fall into a fallacy.

For example, when we speak of the rights of man in a moral sense, we want to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, wherever it may be achieved. It is, however, certain that several laws were imposed in the past, and probably some are being imposed at the present time, which are condemned by the most enlightened opinion of the time or which exceed the limits of interference that many consciences would establish. Manifestly, therefore, only confusion of thought could result from assuming that the rights of man in a moral sense are equivalent to rights in the sense of the Constitution and the law.

No doubt simple and extreme cases can be posited of imaginary laws which the statute-imposing power would not attempt to impose, even in the absence of constitutional prohibitions, because the community would rebel and fight against; and this gives some plausibility to the proposition that the law, if not part of morality, is limited by it. But this limit of power is not co-extensive with any moral system. For the most part, it lies far from the limits of such a system, and in some cases it may exceed them, for reasons arising from the habits of a particular people at a particular time […][iv] It cannot be denied that wrong statutes can or are imposed, and we would not all agree on which ones are wrong.

The confusion I am dealing with admittedly surrounds legal conceptions. Take the fundamental question: What constitutes law? You will find some authors of texts saying that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or accepted axioms , which may or may not coincide with the decisions. If we take the point of view of our friend, the bad man, it will be seen that he cares little about axioms or deductions, but actually wants to know what the courts of Massachusetts or England are likely to actually do. I myself am much more like this way of thinking. Prophecies of what the courts will actually do, and nothing more pretentious than that, are what I understand by law.

Take again a notion that, popularly understood, is the broadest that the law contains – the notion of legal obligation, to which I have already referred. We fill the word with all the content we extract from morals. But what does she want to say to the bad man? Mainly, and first of all, a prophecy that if he does certain things, he will be subjected to unpleasant consequences through imprisonment or the compulsory payment of some monetary sum. But from your point of view, what is the difference between being fined or being taxed a certain sum for having done something? That this view is the test of legal principles is shown by the various discussions which have taken place in the courts concerning precisely the question whether a given statutory imposition is a penalty or a fee. The answer to the question depends on the decision whether the conduct is legally incorrect or correct, and also whether the man is under compulsion or is free […]

For my part, I often doubt whether it would not be a gain if all words of moral importance could be banned from the law, and other words adopted which convey legal ideas devoid of any color arising from anything foreign to the law. We would release the fossil record of a good deal of history and majesty from ethical associations, but by freeing ourselves from unnecessary confusion, we would gain a lot in terms of clarity of our thinking.

This is enough as far as the limits of the law are concerned. The next subject I wish to consider is what are the forces that determine its content and its growth. One can assume with Hobbes, Bentham and Austin, that all law emanates from the sovereign, even when the first human beings who enunciated it were judges, or one can think that the law is the voice of the Zeitgeist, or whatever you want. All of this is equivalent to my present purpose. Even if each decision required the sanction of an emperor with despotic power and a capricious state of mind, we would be interested, even with a prediction in mind, in discovering some order, some rational explanation and some principle of growth for the laws he established. In every system there are such explanations and principles to be discovered. It is with respect to them that a second fallacy arises, which I think is important to expose here.

The fallacy I am referring to is the notion that the only force acting in the development of law is logic. In the broadest sense, indeed, this notion would be true. The postulate by which we think about the universe is that there is a fixed quantitative relationship between each phenomenon and its antecedents and consequences. If there is such a thing as a phenomenon without these fixed quantitative relationships, it will be a miracle. Such a phenomenon would be outside the law of cause and effect, and would transcend our power of thought, or at least something to which or from which we could not reason.

The condition of our thinking about the universe is that it is capable of being thought rationally, or, in other words, that each of its parts is an effect and a cause in the same sense in which those parts are in relation to what is to us. more familiar. Thus, in the broadest sense, it is true that law is a logical development, like anything else. The danger I speak of is not the admission that the principles that govern other phenomena also govern the law, but the notion that a given system, ours, for example, can be worked on like mathematics from some general axioms of conduct.

This is the natural error of schools, but they are not confined to it. I once heard a very eminent judge say that he never made a decision until he was absolutely sure it was right. It is because of this that dissent is often condemned, as if it simply meant that one side or the other was not doing their math correctly, and that if they both made a little more effort, agreement would inevitably emerge.

This way of thinking is entirely natural. The training of lawyers is training in logic. The processes of analogy, discrimination and deduction are those in which they feel most comfortable. The language of judicial decision is primarily the language of logic. And the logical method, like form, satisfies that need for certainty and rest that is found in every human mind. But certainty is often illusory, and rest is not man's destiny. Behind the logical form lies a judgment regarding the value and importance of competing legislative foundations, although it is true that such a judgment is often inarticulate and unconscious, although it remains the true root and nerve of the entire procedure. . It is possible to give logical form to any conclusion. You can always attach a condition to a contract. But why imply it?

Certainly this is due to some belief as well as the practice of the community or a class, or it is due to some opinion, perhaps political. In short, due to some attitude about a matter incapable of quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters are, in reality, battlefields where there are no means for determinations that will be good forever, and in which decisions can do nothing more than give shape to the preference for a certain subject at a given time and in a given place. We do not realize how large a part of our law is open to reconsideration from a slight change in the habit of the public mind. No concrete proposition is self-evident, and no matter how ready we are to accept it, no one has the right to do whatever he wants, even if it does not interfere with the equal right of his neighbors […]

There is a half-conscious, covert battle over the question of legislative policy, and if anyone thinks that it can be established deductively, or once and for all, I can only say that I think he is theoretically wrong, and that I am certain that his conclusion cannot will be accepted in practice always ubique et ab omnibus.

Everywhere the basis of law is tradition, to the point that we run the risk of giving exaggerated importance to the role played by history […]

I am confident that no one will understand my words as disrespecting the law, just because I criticize it so freely. I venerate the law, and especially our system of laws, as one of the vastest products of the human mind. No one knows better than me the countless number of great intelligences that dedicated themselves to making some addition or development, the greatest of them being minimal when compared to the whole. Its greatest title is to exist, not being a Hegelian dream, but a part of men's lives. But one can criticize even what one venerates. The law is the business to which I devote my life, and I would lack devotion if I did not do what allows me to perfect it, and when I perceive what seems to me to be the ideal in your future, I would equally lack devotion if I hesitated to denounce what I have to improve and move forward with all my heart.

Perhaps I have said enough to show the part which the study of history necessarily plays in the intelligent study of the law in our day […] We must beware of the snare of antiquarianism,[v] and remember that for our purposes our only interest in the past is because of the light it throws on the present. I hope for the coming of a time when the part played by history in explaining dogmas will be small, and instead of naive research we will spend our energy in a study of the ends to be achieved and the reasons for desiring them. As a step towards this ideal, it seems to me that every lawyer should seek to understand economics.

The current divorce between the schools of political economy and law seems to me to be evidence of how much progress must be made in the philosophical study yet to be carried out. In the present state of political economy, in fact, we still rely on history on a large scale, being called upon to consider the ends of legislation, the means to achieve them, as well as their cost and to consider all of this. We learn that in order to acquire each thing, we have to abandon another, and we are taught to calculate the advantage acquired versus the one lost and, namely, what we are doing when we choose it.

There is another study which is sometimes neglected by the practical mind, about which I want to say something, though I think that much of little importance goes under that name. I want to mention what is called jurisprudence. Jurisprudence as I understand it, is simply the law in its most generalized part. Every effort to reduce the case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions. A distinguishing mark of a great lawyer is his ability to see the application of the broadest rules […] If one seeks the law, he does so to master it, and mastering it means passing over the dramatic incidents and discerning the true truth. basis for prophecy. Therefore, it is enough to have a clear notion of what is meant by law, by a right, by a duty, by malice, by intent, by negligence, by property, by possession, and, so on […]

Advice from older people to younger people is probably as unrealistic as a list of the best hundred books […] The way to acquire a liberal view of your subject is not to read something, but to get to the deepest point of the subject itself. The means of doing so are, first, to go through the existing body of dogmas to their highest generalizations with the help of jurisprudence; then, discover through history how he came to be the way he is; and finally, as far as possible, consider the ends desired, what must be given up to achieve them, and whether they deserve such a price […]

The primary rights and duties with which jurisprudence is concerned are nothing more than prophecies […] a legal duty so called is merely a prediction that if a man does or omits something, he will suffer in this or that way by the judgment of the court ; and the same goes for a legal right. The duty to keep a contract at common law means a prediction that one must pay damages if one fails to fulfill it, and nothing more. If a civil offense is committed, you are responsible for paying a compensatory sum. Failure to comply with a contract brings the responsibility for paying a compensatory sum unless the event takes place, that being the difference. One can thus see how the vague circumference of the notion of duty diminishes, at the same time that it becomes more precise when washed with cynical acid and expels everything save the object of our study, namely, the operations of law.

I have been talking about the study of Law, and I have said practically nothing about what is commonly said about it – text books, systematic works and all the machinery with which the student most immediately comes into contact. Theory is my subject, not practical details. Ways of teaching have been in place since my time as a student, but skill and inventiveness will dominate the raw material in any way. Theory is the most important part of the dogmatics of law, just as the architect is an important person who takes part in the construction of a house.

To the incompetent it is sometimes true, as has been said, that an interest in general ideas means an absence of particular knowledge […] But the weak and the foolish must be left to their foolishness. The danger lies in the competent and practical mind viewing with indifference and distrust ideas whose connection with its business is remote […] The object of ambition and power generally present themselves nowadays only in the form of money. Money is the most immediate form, being an object of desire. “Fortune, says one author, is the measure of intelligence.” This is a beautiful text to wake people up from the fool's paradise. But, as Hegel says, “In the end, one finds not the appetite, but the opinion to be satisfied.” For an imagination of any scope, the most far-reaching form of power is not money, but the command of ideas.

If you want good examples of this, see how a hundred years after Descartes' death, his abstract speculations became a practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the current world is run by Kant than by Bonaparte. Not all of us can be Descartes or Kant, but we all want happiness. And happiness, I am certain of this, as I have met many successful men, cannot be gained simply by the advice of large corporations and the earning of fifty thousand dollars. An intelligence great enough to win the prize needs other nourishment besides success. The most remote and general aspects of the law are those that give it universal interest. It is through them that man becomes not only a great master in the opinion of others, but articulates the subject of his interest with the universe and captures an echo of the infinite, takes a quick look at its unfathomable process, a suggestion of universal law.

*Oliver Wendell Holmes Jr. (1841-1935), was a jurist, lawyer, university professor and judge of the US Supreme Court.

Translation: Lauro Frederico Barbosa da Silveira e Vinício C. Martinez.

Translated by POSSNER, Richard A. (ed.) The Essential Holmes. Chicago\London, The University of Chicago Press, 1992. p. 160-177.


[I] According to the categorical imperative: “Always act in a way that treats the humanity in yourself and in others, always at the same time as an end and never as a simple means” (second rule). “Act as if you were both legislator and subject in the republic of wills”(third rule).

[ii] NT. In this case, the United States of America.

[iii] A wolf is a human being (reviewer's note).

[iv] NT. The passages removed from the original concern current issues, certainly known to the audience. They may also correspond to exemplary digressions on investigations into the history of customary law, of issues restricted to that law. 

[v] There is a strong conservative and even reactionary connotation in the use of the expression English Antiquarianism: party dilettantism Whig, influences of sturm und drang German, English nationalism, nostalgia for the feudal world and true terror of the liberal transformations (or “radical democracy”) proposed by the French Revolution.

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