First off, I confess that “The Path of the Law” by Oliver Wendell Holmes (1897) is one of my favorite essays of all time, along with David Hume’s critique of consent theories in “Of the Original Contract” (1748), James Madison’s solution to the problem of factions in Federalist #10 (1787), Martin Shubik’s perverse “Dollar Auction Game” (1971), Stephen Yandle’s beautiful “Bootleggers and Baptists” essay (1983), and Mancur Olson’s democracy and dictatorship paper (1993).
Among other things, Holmes’s probabilistic definition of law — “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” — has shaped my research agenda (see here and here, for example) and forever changed the way I see the law. But I have a major bone to pick with Holmes’ famous metaphor of the “bad man.” In brief, in describing his prediction theory of law, Holmes conjures up two “ideal types” — the bad man and the good man — and he then compares and contrasts their motives for action in the following famous sentence:
“If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict,not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”
To illustrate this classic Holmesian dichotomy with a familiar example from our times, the bad man is your average owner of an oversized SUV or truck, an amoral actor who has no regard for the safety of pedestrians; he only wants to avoid a speeding ticket. The good man drives a Prius. Moreover, this Holmesian division provides a useful way of understanding what the law really is. If you want to know what the true rules of the road are in the USA, for instance, then don’t look at the drivers of Priuses; instead, look at the behavior of the drivers of all those massive SUVs and trucks.
My problem with Holmes’ dichotomy, however, is that it presents us with a false choice. In truth, an individual actor in the real world is not either all bad or all good. More realistically, there is a continuum between the bad man and the good man, and most people fall somewhere along that continuum rather than on the extremes. In other words, when we are making decisions, we often act out of both selfish or materialistic motives (like Holmes’ bad man) and out of altruistic or moral considerations (like the good man).
To sum up, we all have a little bad and little good in all of us, like Douglas Fairbanks’ character “Passin’ Through” in the 1916 silent Western film “The Good Bad-Man“, a benevolent outlaw who robs trains to feed orphans. Which of these mixed motives predominate in any given situation, and to what degree, are real-world empirical questions that may or may not be hard to predict ahead of time.