A TERM PAPER ON
JUSTICE HOLMES'S CONCEPT OF LAW
Submitted to
Adjunct Faculty Mr. Dev Mahat
Nepal Law Campus
Submitted by
Rahul Kumar Jha
BALLB 2nd Semester
Roll no: 60
Section: B
Nepal Law Campus
Realist school
Based on realism- Relating to the world as it actually is,(practicality of law),
Realist school studies law in its actual working and rejects the traditional definition
of law i.e body of rules,
Law Is not body of rules, but it is what the judges decides,
What the judges decides depends upon human factors(ideology, religion, sex,
gender, prejudices, etc)
Mixture of analytical positivist( what law is) and sociological approach(influence of
the society),
In realist school there are ‘American realist’ and Scandinavian realist.
AMERICAN REALIST-
John Chipman Gray(1839-1915)
Justice Oliver wendell Holmes(1841-1935)
Jeorme Frank(1889-1957)
Karl Llewellyn(1893-1962)
SCANDINAVIAN REALIST
o Axel Hagelstorm(1868-1939)
Karl Olivercrona(1897-1980)
Alf Ross(1899-1979)
Justice Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an
American jurist who served as an Associate Justice of the Supreme Court of the United
States from 1902 to 1932. Noted for his long service, concise and pithy opinions, and
deference to the decisions of elected legislatures, he is one of the most widely cited United
States Supreme Court justices in history, particularly for opinions on civil liberties and
American constitutional democracy, and is one of the most influential American common
law judges, honored during his lifetime in Great Britain as well as the United States. Holmes
retired from the court at the age of 90, an unbeaten record for oldest justice in the federal
Supreme Court (although John Paul Stevens was only 8 months younger when he retired on
April 12, 2010). He previously served as an Associate Justice and as Chief Justice of
the Massachusetts Supreme Judicial Court, and was Weld Professor of Law at his alma
mater, Harvard Law School.
This founder of the American realist movement said that "the life of the law is experience, not
logic." He treats rules as "prophecies of future decisions" or "the prophecies of what the court
will do in fact, and nothing more pretentious are I mean by the law." According to Holmes, if
we wish to know law, we should look at it through the eyes of a bad man.
For him, analysis must exclude moral questions and he urged the deliberate
exclusion from one’s study of law of ‘every word of moral significance’.
Holmes draws attention to the significance of a judge’s interpretation of the public
policy underlying the law.
He argued that the training of lawyers ought to lead them, and judges, ‘habitually to
consider more definitely and explicitly’ the advantages to society of the rules they lay
down.
Holmes view should not be interpreted as implying a rejection of legal theory.
Prediction theory of law:
The prediction theory of law was a key component of the Oliver Wendell Holmes's
jurisprudential philosophy. At its most basic, the theory is an attempted refutation of
most previous definitions of the law.
Holmes believed that the law should be defined as a prediction, most specifically, a
prediction of how the courts behave. His rationale was based on an argument
regarding the opinion of a "bad man." Bad men, Holmes argued in his speech "The
Path of the Law", care little for ethics or lofty conceptions of natural law; instead they
care simply about staying out of jail and avoiding the payment of damages. In
Holmes's mind, therefore, it was most useful to define "the law" as a prediction of
what will bring punishment or other consequences from a court.
Critique of formalism:
He has rejected the legal formal theories, denied the utilitarian view that law was a set
of commands of the sovereign, rules of conduct that became legal duties. He rejected
as well the views of the German idealist philosophers, whose views were then widely
held, and the philosophy taught at Harvard, that the opinions of judges could be
harmonized in a purely logical system. In the opening paragraphs of the book, he
famously summarized his own view of the history of the common law: 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, and 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.
Criticisms:
Underestimated the importance of the legal principles and rules regarding the law.
In his concept there was no law made before, but always was a puzzle of unconnected
decisions.
His perception of law rests upon the subjective fantasies and life experience of the
judge who is deciding the case. Therefore there can’t be any certainty and definiteness
about the law.
The concentration is ideally on litigation, but the point is there is a bigger point that
never comes in front of the courts.
He had also launched a serious attack on the juristic complications and myth of
certainty. But, in actual sense we found out that a huge amount of certainty and
bunch of transactions regulates the judgment.
Put strong emphasis on a factor which is human in nature. No doubt, it plays quite a
huge part but that does not mean that the judicial determinations are the result of a
Judge’s personality.
Confines to local judicial setting of US so it has no universal applicability.
Via:
V.D. Mahajan’s Jurisprudence & Legal Theory
The common law(justice holmes)
Llyods introduction to jurisprudence
THANKYOU
