What kind of story is Oliver Wendell Holmes’s “The Path of the Law”?

Previously, we identified the “seven basic plots” (see here) and presented the quest narrative in Samuel Warren and Louis Brandeis’s famous article on “The Right to Privacy” (see here). But another classic law review article (the first page of which is pictured below), “The Path of the Law” by the great North American jurist Oliver Wendell Holmes, paints a very different picture of the law. (FYI: Holmes’s influential essay was based on a lecture he gave at Boston University Law School on January 8, 1897; Holmes’s guest lecture was then published as the lead article in the March 25, 1897 edition of the Harvard Law Review.)

For Holmes (unlike Warren & Brandeis), the law is not about autonomy or some other teleological goal; it is first and foremost about making accurate predictions about the outcomes of court cases: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” In support of his prediction theory of law, Holmes conjures up one of the most enduring and indelible anti-heroes in the annals of legal scholarship: the bad man. In brief, Holmes’s bad man is an amoral utility-maximizer “who cares nothing for an ethical rule which is believed and practised by his neighbors,” who only wants to avoid legal liability and “keep out of jail if he can.” After introducing this memorable anti-hero, Holmes makes a direct appeal to his audience:

“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.”

But the bad man drops out of Holmes’s essay early on. (Although this fictional figure makes multiple appearances on the first few pages of Holmes’s 1897 essay, he soon disappears entirely from view.) The bad man is instead replaced by the “man of statistics and the master of economics,” both of whom take center stage in Holmes’s story:

“When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Given this dragon reference, it is tempting to describe Holmes’s classic essay as a story about “overcoming the monster.” But who is the monster in Holmes’s story? For his part, legal scholar Thomas Grey has described “The Path of the Law” as a quest narrative. (See Professsor Grey’s 1997 essay “Plotting the path of the law.”) On this reading of Holmes’s essay, Holmes himself is the hero of his own story, and his quest is a legal-theoretical one: finding the true meaning of law:

To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas…. We cannot all be Descartes or Kant, but we all want, happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.

In some ways, however, Holmes’s story is also about “rebirth.” Christopher Booker, for example, describes the basic sequence of a rebirth story in Chapter 11 of his magnum opus Seven Basic Plots. In summary, a rebirth narrative often unfolds as follows:

  1. First, a young hero or heroine falls under the spell of an evil power, but all seems to go reasonably well for a while.
  2. Eventually, however, the danger or threat returns in full force, and it appears as if the evil power will triumph.
  3. The story then concludes with a miraculous redemption, and the protagonist changes his ways and becomes a better person.

As it happens, all these elements are present in “The Path of the Law”. The evil power in Holmes’s story, for example, is money. To have a successful career and become wealthy, a lawyer must be able to make accurate predictions about the law. But a lawyer who falls under the spell of money, who uses the law solely to guide self-interested clients, is trading off happiness for wealth. What really matters for Holmes is not money but the “command of ideas.” He thus concludes his essay by appealing to the “remoter and more general aspects of the law” and invites his audience to “catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” In other words, Holmes’s narrative is thus really a story about rebirth. To be a good lawyer or law scholar, it is not enough to make accurate legal predictions. One must also nourish one’s intellect.

Thus far, we have revisited two of the most influential law review articles of all time, “The Path of the Law” (this post) and “The Right to Privacy” (my previous post). The most cited article, however, is “The Problem of Social Cost” by Ronald Coase. If the hero of “The Path of the Law” is Holmes himself (and men of intellect more generally), and if the hero of “The Right to Privacy” is the common law itself, who is the hero of “The Problem of Social Cost”? (We will revisit Coase’s classic article later this week.)

Harvard Law Review Vols 1 to 17 1887-1904 in 17 books | Harvard Law Review  Association

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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