The Path of Law

D. Joseph Ferris, Esq.

HOLMES PATH OF LAW: Etching the Bad Man’s Trail

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

-- Oliver Wendell Holmes

With these words, Justice Oliver Wendell Holmes wraps an amorphous facade around a legal edifice. Peaking through normative windows, his bad man theory of law is scolded for its amoral account of the law. As for its descriptive windows, natural law theorists criticize it for its incomplete, and thus insufficient, explanation of what the law is. In fact, Holmes’ bad man theory constructs the law in the modernist form of architecture, exposing its beams and pillars while hinting at its foundation. Justice Holmes does not attempt to help the bad man. Nor does he assert that the bad man is the only actor on the legal stage. Holmes’ bad man theory of the law seeks to view the law through the perspective of the bad man in order to help lawyers and judges more clearly understand how the law works in reality. It is only after we understand the law from the bad man’s perspective, according to Holmes, that we can align his path with that of the good man.

Holmes' Path of Law focuses on the dichotomy of the bad man, “who cares only for the material consequences which such knowledge enables him to predict,” and the good man, “who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” The bad man, as Holmes states, only obeys the law if he calculates that “if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money.” In this context, “disagreeable” does not necessarily signify the attachment of any negative value. The assumption is that if the bad man is looking at the potential legal consequences of his conduct, he perceives the conduct at issue to be a benefit in some way. Thus, “disagreeable consequences” are the result of a sort of hedonistic rationale: if the perceived legal sanctions resulting from breaking the law outweigh the benefit the bad man receives from his conduct, then he will theoretically act in accordance with the law - or at least his not doing so would be irrational. Conversely, the bad man will break the law if his external calculations inform him that he would do better to incur the legal sanctions resulting from breaking the law.

The good man’s relationship to the law may be more complex than at first glance. The good man does not conduct the sort of external balancing as does his counterpart. The good man does not need the sanction of the law to etch his path: the good man acts because his internal morality compels him to do so. Despite the assertions of Holmes’ sympathizers, this internally persistent mode of conduct is an empty void, because it depends on the transient predilections of an individual’s internal morality. If the good man’s conscience is congruent with the law, according to Holmes, then we may ignore this aspect of the law. However, if the “vaguer sanctions” of the good man’s conscience tells him his morality is incompatible with the law, then at least three possibilities become apparent: (1) the law is out of step with morality, and thus needs changed; (2) the good man will break “the law,” thereby (arguably being) transformed into the bad man; or (3) the good man has a superseding moral dictate to follow the law, to the extent the law does not contain a requisite degree of repugnance to his conscience.

By framing our orientation to the law in the dichotomy of the good man and the bad man, Holmes seeks to direct our attention to the bad man’s perspective. This seems to require a separation of law and morality. However, this separation does not necessarily compel the conclusion that the bad man side of the equation constitutes the totality of what the law is. To the contrary, Holmes believes the law to be measurably moral. As such, he may even contend that the good man is a sine qua non of the law. What Holmes seems to be whispering is that the good man is the parent of the law – or at least a blood-relative. The “vaguer sanctions” of the good man’s conscience is the root of the law, and becomes the law only after a sort of quantum leap – the moment at which society deposits the good man’s internal moral values into the positive bank of the law. In this sense, Holmes advises legal practitioners, when thinking about the law, to pin-ball back and forth between the bad man and the good man: one must (1) view the bad man’s “prophecies of what the courts will do in fact” as the moral floor by which he can act, (2) reflect on the good man’s inner morality, the source from which the bad man’s sanctioned range of conduct originates, and lastly (3) by understanding the degree of congruence between the good man’s morality and the bad man’s actions, we can change the positive law to bring about congruence between morality and the positive law.

We can find this revelation in Holmes’ mystical passage about slaying the metaphorical dragon.* To “[g]et the dragon out of his cave” is the initial separation of morality and law, and to “count his teeth and claws” is to understand the extent to which his external calculations of how far he can act are incongruent with morality. His “strength” is the range of incongruity with the good man’s morality (ie. The moral floor at which he can act). It is Holmes’ expression of either “killing” or “taming” the dragon which completes the third step in process of understanding how the law works. By stripping the law bare, it reveals to us the economic balancing and resulting conduct in which the bad man engages.

Let us assume that the CEO of a major corporation sells widgets to the public, but soon realizes that they are faulty and will result in the deaths of 100 people. Let us also assume that this company sold 1,000,000 widgets, and the CEO calculates the cost of recalling these widgets at $100 per widget – a grand total of $100,000,000. Another option would be to do nothing, with the foreseeable cost of litigation resulting from these deaths at $500,000. The Holmesian bad man, after undertaking his external economic rationale, would choose Option two, and decide not to fix the widgets. If we can assume that the good man’s inner morality directs him to the principle that the cost of human life far outweighs any pecuniary value, then he will choose Option 1. This was the scenario in Grimshaw v. Ford Motor Company, and the CEO took the latter option. As this separation of the good man and the bad man makes clear, we can now understand the incongruity between the good man’s internal morality and the range of conduct the law gives to the bad man (the difference in value between the good man’s principle and $100,000). Thus, the dragon has been lured out of his cave, and we can now “kill” or “tame” him with additional (here) punitive sanctions above and beyond the $500,000 per person. These punitive damages represent our ability to reconcile the good man’s internal moral principles and the range of conduct within which the bad man can act.

An honest and exacting reading of Holmes’ bad man theory places him in neither the natural law nor the positive law camps. Indeed, a strict positivist severance of law and morality would deem the revelation that law is an “external deposit of our moral life” jurisprudential heresy. In that sense, one may argue that there are natural law components within Holmes’ theory. However, a natural law theorist such as Ronald Dworkin would probably point to Holmes focus on what the law does, in fact. A strict focus on what the law does, or the result of effectuating the law would not necessarily need any moral import. Since natural law theorists believe that the law, at least on one or more occasions, must be linked to morality, it cannot be categorized as a theory of natural law. Under Holmes’ theory, then, to decide whether the bad man theory is of the positive or the natural law variety depends on whether the “source” of the law is defined as a rule of recognition (the point at which morality makes the quantum leap into law) or at the original point of deposit (internal morality).

Under Holmes bad man theory, the law is held in a sort of existential suspense. The law initially existed by way of a leap of faith into the realm of positive law, yet is always under the beckoning eye of the “vaguer sanctions of conscience,” the final audit of which is the judicial result in fact. This continuous appraising, testing and reappraising, it would seem, carries on ad infinitum, never coming to rest. Whether the result of the need for the two jurisprudential camps to arbitrarily distinguish themselves, or a result of Holmes’ intention merely to give lawyers a practical and result-oriented account of the law, a final inspection of the bad man theory does not easily lump it into either category.

As alluded to above, Holmes’ Path of Law is an attempt to assist legal practitioners in understanding the law by directing them to the law’s consequences. By forcing us to focus on the bad man and his external calculations, we must determine whether he complied with the law or decided that the benefits outweighed the legal sanctions. In this sense, his work is neither descriptive nor normative, but instrumental. Holmes uses the metaphor of the bad man in order to affect a separation of law and morality in the mind of the reader, with practical objectives. This has a presumably latent effect, however: it forces the reader to reflect upon the nature and essence of what the law is. Yet the reader’s view of the law is incomplete, because it forces us to ignore or diminish the extent to which the good man‘s morality informs the law. If Justice Holmes wanted us to separate law and morality in order to better understand the law, it is a wonder why the legal practitioner cannot additionally focus on the good man’s perspective. If the law is the “external deposit of our moral life,” why does Justice Holmes go to great length to make sure we focus on the bad man in a mutually exclusive sphere from that of the good man? The primary criticism of Holmes’ bad man theory of the law is its ignorance of the good man’s perspective. By focusing on the legal consequences of the law and not on its moral underpinnings, legal practitioners are summarily nudged toward a cold, calculating and unimpassioned form of advocacy. Since morality is the “external deposit” of our moral life, and constantly informs what the positive law is, Holmes’ theory would put the law’s evolution at a stand-still. Even if the “vaguer sanctions” of our inner conscience become appalled at the leeway granted the bad man, a cold and calculating lawyer would have no basis by which to change the law. He will be relegated to a heartless, detached exclamation: “well, that’s the law."

*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.