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The Path of the Law
by O。 W。 Holmes； Jr。
10 Harvard Law Review 457 （1897）
When we study law we are not studying a mystery but a well…known
profession。 We are studying what we shall want in order to appear
before judges； or to advise people in such a way as to keep them out of
court。 The reason why it is a profession； why people will pay lawyers
to argue for them or to advise them； is that in societies like ours the
command of the public force is intrusted to the judges in certain cases；
and the whole power of the state will be put forth； if necessary； to
carry out their judgments and decrees。 People want to know under what
circumstances and how far they will run the risk of coming against what
is so much stronger than themselves； and hence it becomes a business to
find out when this danger is to be feared。 The object of our study；
then； is prediction； the prediction of the incidence of the public force
through the instrumentality of the courts。
The means of the study are a body of reports； of treatises； and of
statutes； in this country and in England； extending back for six hundred
years； and now increasing annually by hundreds。 In these sibylline
leaves are gathered the scattered prophecies of the past upon the cases
in which the axe will fall。 These are what properly have been called
the oracles of the law。 Far the most important and pretty nearly the
whole meaning of every new effort of legal thought is to make these
prophecies more precise； and to generalize them into a thoroughly
connected system。 The process is one； from a lawyer's statement of a
case； eliminating as it does all the dramatic elements with which his
client's story has clothed it； and retaining only the facts of legal
import； up to the final analyses and abstract universals of theoretic
jurisprudence。 The reason why a lawyer does not mention that his client
wore a white hat when he made a contract； while Mrs。 Quickly would be
sure to dwell upon it along with the parcel gilt goblet and the sea…coal
fire； is that he foresees that the public force will act in the same way
whatever his client had upon his head。 It is to make the prophecies
easier to be remembered and to be understood that the teachings of the
decisions of the past are put into general propositions and gathered
into textbooks； or that statutes are passed in a general form。 The
primary rights and duties with which jurisprudence busies itself again
are nothing but prophecies。 One of the many evil effects of the
confusion between legal and moral ideas； about which I shall have
something to say in a moment； is that theory is apt to get the cart
before the horse； and consider the right or the duty as something
existing apart from and independent of the consequences of its breach；
to which certain sanctions are added afterward。 But； as I shall try to
show； a legal duty so called is nothing but a prediction that if a man
does or omits certain things he will be made to suffer in this or that
way by judgment of the court； and so of a legal right。
The number of our predictions when generalized and reduced to a system
is not unmanageably large。 They present themselves as a finite body of
dogma which may be mastered within a reasonable time。 It is a great
mistake to be frightened by the ever…increasing number of reports。 The
reports of a given jurisdiction in the course of a generation take up
pretty much the whole body of the law； and restate it from the present
point of view。 We could reconstruct the corpus from them if all that
went before were burned。 The use of the earlier reports is mainly
historical； a use about which I shall have something to say before I
have finished。
I wish； if I can； to lay down some first principles for the study of
this body of dogma or systematized prediction which we call the law； for
men who want to use it as the instrument of their business to enable
them to prophesy in their turn； and； as bearing upon the study； I wish
to point out an ideal which as yet our law has not attained。
The first thing for a businesslike understanding of the matter is to
understand its limits； and therefore I think it desirable at once to
point out and dispel a confusion between morality and law； which
sometimes rises to the height of conscious theory； and more often and
indeed constantly is making trouble in detail without reaching the point
of consciousness。 You can see very plainly that a bad man has as much
reason as a good one for wishing to avoid an encounter with the public
force； and therefore you can see the practical importance of the
distinction between morality and law。 A man who cares nothing for an
ethical rule which is believed and practised by his neighbors is likely
nevertheless to care a good deal to avoid being made to pay money； and
will want to keep out of jail if he can。
I take it for granted that no hearer of mine will misinterpret what I
have to say as the language of cynicism。 The law is the witness and
external deposit of our moral life。 Its history is the history of the
moral development of the race。 The practice of it； in spite of popular
jests； tends to make good citizens and good men。 When I emphasize the
difference between law and morals I do so with reference to a single
end； that of learning and understanding the law。 For that purpose you
must definitely master its specific marks； and it is for that that I ask
you for the moment to imagine yourselves indifferent to other and
greater things。
I do not say that there is not a wider point of view from which the
distinction between law and morals becomes of secondary or no
importance； as all mathematical distinctions vanish in presence of the
infinite。 But I do say that that distinction is of the first importance
for the object which we are here to considera right study and mastery
of the law as a business with well understood limits； a body of dogma
enclosed within definite lines。 I have just shown the practical reason
for saying so。 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。 The theoretical importance of
the distinction is no less； if you would reason on your subject aright。
The law is full of phraseology drawn from morals； and by the mere force
of language continually invites us to pass from one domain to the other
without perceiving it； as we are sure to do unless we have the boundary
constantly before our minds。 The law talks about rights； and duties；
and malice； and intent； and negligence； and so forth； and nothing is
easier； or； I may say； more common in legal reasoning； than to take
these words in their moral sense； at some state of the argument； and so
to drop into fallacy。 For instance； when we speak of the rights of man
in a moral sense； we mean to mark the limits of interference with
individu