MAPANDI, NORHAINAH S.
I- TEEHANKEE
THE PATH OF LAW by Oliver Wendell Holmes, Jr.
A Reaction Paper
The Path of Law not only teaches students, readers, lawyers and judges what is
law but how law should be. The author Oliver Wendell Holmes was a greatly influential
figure in the history of American law, but opinions differ about his contribution to legal
philosophy.
The underlying structure of the essay is obscured by its theoretical subject matter,
it is organized not around an analytical framework, but around a plot. And the plot is a
dramatic one, emphasizing the discontinuities and clashes between the themes, rather
than revealing their rational order and mutual consistency. The book was constructed in
five parts: an introduction, three main division, and a conclusion.
Frist the introduction give some practical advice to law students; and second to
redirect scholarship and pedagogy toward “an ideal which as yet our law has not attained”.
Part 1 might be subtitled “The Limits of Law”. Here Holmes furthers a “business like
understanding” of the lawyer’s work by dispelling “a confusion between morality and law”.
Holmes expands on the prediction theory he sketched in the Introduction, he illustrates it
through the figure of the “bad man” and concludes with the strikingly formalistic
suggestion that the confusion might be cured by replacing the law’s morally-tinged
vocabulary of “right”, “duty”, “malice”, “negligence” and the like with a new artificial
terminology designed to “convey legal ideas, uncolored by anything outside the law”. Part
2, a consideration of the “forces which determines law’s contents and its growth. This
part, might be subtitled “not logic but experience”. Part 3, is the third and longest section
of the Path, which we might call “The Ideal of Instrumental Reason”. In conclusion,
Holmes defends both descriptive and normative idealism about the law.
The Path of Law is a complex book to read and requires a careful understanding
of the words and phrases used by the author. In reading the book you could find different
inconsistencies with the different parts of the book.
In the first part, Holmes seems to imply that might make legal right, and that law is
best understood from the point of view of a “bad man” who cares nothing about morality.
In Part II, morality comes back in, but only as an external phenomenon with the emphasis
on how the sociological divisions of the community and the historical movements of public
moral opinion influence the content of the law. By contrast in part III, Holmes becomes
vehemently moralistic in his own voice, the longest part of the essay is an outburst of
hope and optimism about the possibilities of rational legal reform in service of the public
interest.
The path of law is like a generic narrative plot, the quest story that is similar with
Dante’s Divine Comedy. The hero of a quest romance begins in the middle of things, as
an apparently ordinary person. Sometimes marked by portents of special potential. He is
the thrown or deliberately descends into misfortune or degradation. Finally, by virtue of
what he learns in this fall out of the ordinary, he is able to attain stature above his
beginning point, in true knowledge or self-realization. Holmes essay follows this plot line,
as he invites his audience to join him on a jurisprudential pilgrimage along the path of the
law. Holmes adopted a descent-ascent structure in his essay.
In the writing of the books, the author was particularly drawn to the rhetorical
devices of hyperbole and paradox. The drama is heightened if the stages of the story are
abruptly marked off from each other. These transition are emphasized by Holmesian
hyperbolic paradox—exaggeration of the features of each part that most clash with the
other.
The structure of the quest plot, and Holme’s device of making the movement of the
story discontinuous and even the vertiginous, explain the features of the Path that would
remain unintelligible as long as we considered it only as an analytical and expository
essay.
In the conclusion he was addressing the students, and his subject was what the
study of law might finally mean to them. He began by demoting t heir subject to a narrow
focus on rules divorced from society and morality. He then brought back in by noting that
social desired give content to rules, and in close cases even influence their application.
And next he recuperated morality with the challenge of law reform aimed at fulfilling those
desires at the least cost,
Also, there are different messages in part 1, 2 and 3 of the essay if a lawyer
counseling a client determines that the established rules of the system do not clearly
settle a legal issue facing the client, the sociological insight of Part I comes into account
that judicial policy preferences are likely to determine the issue if it comes to litigation.
The Path of the Law is a virtuoso performance, and such virtuosity naturally
creates suspicion that there is less substance to the performance than meets the eye.
Reference:
Grey, T., (1997). Plotting the Path of Law. Retrieved on September 10, 2018, from
htp://brooklynworks.brooklaw.edu/blr/vol63/iss1/3
