Oliver Wendell Holmes Common Law

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Oliver Wendell Holmes Jr. is a man that has contributed majorly thorough his writings to the study of law. The book of the name “Common law” still stands as one of the major references in the study of Common Law. “The path of the law” in fact, is considered to have significantly contributed to the school of American legal realism. Though his work has received major criticism from philosophers that followed his time, they have been one of the major foundations for several legal studies. As one of the Jurist in the United Supreme Court, Holmes is known for his active attempts in moving away from the application of the principles of Natural Law in judicial decisions. He is known to have believed force and power to be above all.

“The path of …show more content…

In the former part of this paper I wish to discuss the thoughts Holmes had of law and project my critique on his theory of prediction. The latter half is dedicated to tracking the path of law as Holmes sees it.

Holmes begins by suggesting that law is a tool for prediction of the application of legal sanctions by courts. He states that rights and duties that arise from the law are also merely prophecies that allow individuals to predict the consequences of the breach of such rights and duties. This perspective of law that Holmes proposed played a key role in influencing American legal realism.

He emphasizes greatly on the need to divorce the concept of morality from law. He however does not entirely reject the fact that morality plays a part in shaping laws but states that, to truly understand law as a business, such distinction between law and morality is essential. He believes that individuals act not necessarily because of ethics and morality but simply to avoid sanctions from being imposed. However I believe that if that were true, the state would have a large discretion in the making of laws. The public would blindly choose to follow laws in fear of sanctions and not because they believe the law to be moral. They would never contest a law imposed even if it were contradictory of all moral and ethical beliefs held individually or even by the society …show more content…

According to Holmes, in order to master the subject, law must be studied from the perspective of a bad man who is concerned about consequences of his actions rather than the moral grounds behind it. In furthering his argument, Holmes states the example of the law of contracts. According to Holmes, one binds himself to perform the contract due to the prediction that its breach would result in payment of damages. My critique of Holmes’s argument arises again here. In stating that one performs a contract to avoid payment of damages alone, he is neglecting the fact that one might gain more in performance than through breach. Holmes is also assuming secondary obligation to be the only source through which contracts function. This assumption results in disregard of the primary obligations where obligations in a contract are performed for the sake of the contract and not of the fear of

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