Oliver Wendell Holmes, like Satan in Paradise Lost, remains the most memorable character in the story of Anglo-American law. One hundred years ago, on the 8th of last month, as an Associate justice of the Supreme Judicial Court of the State of Massachussets, Holmes introduced another serpent into the garden of American law. It was released amongst the lawyers of Massachusetts, law students and their parents at the inauguration of a new hall at Boston University Law School. In his speech, 'The Path of the Law,' he invited his listeners, interested to know where the limits of the law are, to consider the law from the point of view of a 'bad man'. This will clarify for them the difference between law and morality and ethics.
You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. 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….
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or out-side of it, in the vaguer sanctions of conscience. …
What constitutes the law? You will find some text writers telling you 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 admitted axioms or what not which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
"the virtues of justice include justice itself, as well as varied forms of fairness, of toleration and respect for others, of fidelity and probity, and of truthfulness and honesty."
In 1880 Holmes had introduced his first snake into the Eden of formalist law in the lectures he gave on the common law at the most-Bostonian Lowell Institute. This was most appropriate. The Lowells, like Adam and Eve, talked only to God. From these addresses developed his book The Common Law. It opened with the words:
The life of the law has not been logic: it 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 law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.