The Path of the Law Oliver Wendell Holmes Harvard Law Review 1897 “The Path of the Law” was originally a lecture given by Oliver Wendell Holmes at Boston University Law School. At the time, he was a Justice of the Supreme Judicial Court of Massachusetts. Five years later, he would be appointed to the United States Supreme Court where he would serve for almost 30 years. This lecture and its subsequent publication was revolutionary at the time. In it, Holmes advocated for a total reassessment of the foundations of law and legal practice. He emphasized the importance of the courts as the ultimate determining factor of legality, with almost no mention of legislative bodies. To this point, law was generally considered to be based in natural principles. Holmes rejects this approach in the first premise of his article. He posits a simple, though controversial, definition of law: As I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right. In Holmes’s view, the job of a lawyer is to simply predict outcomes for a client. The study of law should not concern itself with morality because laws do not reflect innate standards about good and evil. They merely represent the will of a particular community at a particular time and place in history. Holmes illustrates this concept by using an example of “the bad man.” A bad man and a good man both equally wish to avoid the consequences of breaking the law. The punishment of either man would be the same. So Holmes concludes that law itself is indifferent to moral considerations. In his definition, law only involves predictions about consequences as decided by the judiciary. 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 this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. Holmes spends a great deal of time examining Contract Law as a particular example of a legal area that ought to be purged from moral terminology and moral considerations. I hope that my illustrations have shown the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way. For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought. Holmes concludes his remarks with thoughts about how law ought to be properly developed. He suggests that law ought to be stripped of historical precedence and evaluated according to practical and modern standards. Justice Holmes spent his long tenure on the Supreme Court working to redefine and reshape the law according to his outlook, which is now known as “legal realism.” His jurisprudence influenced, and continues to influence, countless other judges and academics and set precedents that still govern Supreme Court decisions.