The Path of the Law (e-Book)

The Path of the Law by Oliver Wendell Holmes was orginally written as a speech in 1897. The main message of "The Path of Law" is that there is no basis in reason for deciding which of the two contradictory legal doctrines is correct.

To elaborate this message, Holmes first turned to the distinction between law and morals: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”. If law is a prophecy, Holmes continues, we must reject the view of “text writers” who tell you that law “is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions”.

Several of the specific doctrinal arguments made in "The Path Of the Law" were recapitulated or elaborated in the more technical essays of the realists. “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else”. Only “the confusion between legal and moral” ideas had led others to the conclusion that it was immoral to breach a contract.

An approach that focuses solely on the consequences of breach, Holmes conceded, “stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can”, but it is more accurate and useful, he argued, than an approach that concentrates on the moral obligations associated with promises. On a more detailed level, Holmes amplified his earlier criticisms of subjective theories of contractual duties, offering instead an objective theory (which acknowledged that judges do and should give meaning to the language employed by the parties “because of some belief as to the practice of the community or of a class, or because of some opinion as to policy”).

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