Rruga e ligjit

Author: megi / Date: 27-02-2015 /

Rruga e ligjit
Oliver Wendell Holmes Jr.

“The Path of the Law” was originally written as a speech in 1897. The main message of this book is that there is no basis in reason for deciding which of two contradictory legal doctrines is correct. To elaborate this message, Holmes first turned to the distinction between law and morals: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”. If law is prophecy, Holmes continues, we must reject the view of “text writers” who tell you that law “is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason that is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions”. Holmes next introduces his most important and influential argument, the “bad-man” theory of law: “if we take the view of our friend the bad man we shall find that he does not care two straws” about either the morality or the logic of the law. For the bad man, “legal duty” signifies only “a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment”. The sharp distinction Holmes draws between law and morals had a powerful impact on the thought of most Legal Realists, although it too was construed in a variety of ways.