Holmes on Law and Morality

Abstract

This article explores Justice Oliver Wendell Holmes's position on the relationship between law and morality, discussing some of the mistaken interpretations of that position. Commentators' claims to the contrary notwithstanding, Holmes' predictive theory of law and his discussion of the "bad man" do not illustrate the separation between law and morality but merely that lawful actions need not be performed for morally praiseworthy reasons and that positive law and morality do not always coincide. Holmes suggests that the conflation of law and morality might be reduced by changing legal terminology so that moral and legal terms do not overlap, a proposal with potential drawbacks that Holmes did not seem to appreciate. That said, however, detractors overestimate the extent to which Holmes asserted that law and morality should be distinguished, thereby distorting Holmes' views and the value of his insights.

Keywords: Holmes, morality, bad man, natural law, prediction theory, intention, motivation

JEL Classification: K30, K40, K42