Overview

The legal realists hold that the question “what is the law?” is best understood as a request for a prediction about how judges will rule.

The readings for today’s class present two arguments for this view:

1. Oliver Wendell Holmes claims that it follows from what he calls the bad man’s point of view.
2. Jerome Frank thinks is example of the taxi case shows that the law is indeterminate until judges rule.

I want to present their views, raise objections to their arguments, and consider how they might reply to those objections.

The objections I intend to raise will motivate Hart’s theory that law is a system of rules. Since that is so, our ultimate question will not be whether the objections are fatal to the realists’ program but rather whether Hart’s explanation is superior to theirs.

Holmes’s Bad Man

Holmes thinks we should look at the question “what is the law?” from what he calls the bad man’s perspective. He thinks this makes sense because the bad man does not confuse law and morality. The bad man does not care much about morality at all; he only cares about the law. That, he thinks, gives the bad man a clearer perspective on the question than most of us have.

Suppose you grant Holmes that we should use the bad man’s perspective. What does the bad man want to know when he asks “what is the law?” The answer, according to Holmes, is that the bad man is interested in the rulings of judges because that tells him whether he is likely to be punished for doing what he wants to do.

I have two questions about Holmes’s use of the bad man’s perspective.

1. Is it relevant to all areas of the law? The bad man is concerned to avoid punishment, and so he might tell us something about the criminal law. But what can we learn about other areas of the law by adopting his perspective? What does it show us about the private law, that is, the law concerning contracts, wills, and the like?

2. Does the bad man’s perspective give us a distorted picture of how the law works? Everyone agrees that the bad man is unusual. Holmes treats this as a virtue: the majority of people tend to conflate law and morality while the bad man does not. But no legal system could work if everyone were a bad man: there aren’t enough police officers. So is it obvious that the bad man’s perspective really tells us how the law functions as a working social institution?

Holmes on Law and Morality

Holmes uses several examples to illustrate his assertion that law and morality are different. I’m going to explain some of the ones that are especially difficult to understand.

Here is one.

Leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question? In both cases the party taking another man’s property has to pay its fair value as assessed by a jury, and no more. What significance is there in calling one taking right and another wrong from the point of view of the law? (Holmes 1897, 461)

It helps to know what The Mill Acts are. I am here for you.

The Mill Acts are statutes enacted by the several states, intended to facilitate and encourage the construction of mills and manufactories. Under these acts the owner of a mill site is allowed to erect a mill on his own land, and if he owns but one bank of the stream, or has to back water on the lands of any other proprietor, he is allowed to apply to the courts for leave to erect his mill, on which application the court can devote to his use a limited quantity of the lands of the other proprietor necessary for a dam or race, and can ascertain the prospective damages resulting from such overflow, which he is allowed to pay in solido. (Staples 1903, 265)

Under the Mill Acts, my mill can flood your land without your permission provided that a court allows me to do so and that I pay what the court deems appropriate compensation. Taking your property is something that the Mill Acts enables me to do.¹

By contrast, if I eat your watermelon without getting your permission first you can sue me for wrongful conversion of property: that’s the civil law version of theft in the criminal law. If I lose, I will be unable to return the nicked curcubit and so the court will order me to compensate you. Here, the law does not enable me to take your property as my own. Its purpose is to make you whole again after I have wronged you.

Holmes’s point is that there isn’t a deep difference between these cases. They both involve taking someone else’s property and paying compensation. You can say that what the mill builder did was legally right and what the melon thief did was legally wrong but that doesn’t mean very much. By contrast, there is a big difference between morally right and morally wrong.

Here’s another tricky example.

In Bromage v. Genning, a prohibition was sought in the King’s Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. Sergeant Harris for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. (Holmes 1897, 462)

What Holmes is saying is that the party who made a covenant has the option of either doing its part in the covenant (granting a lease) or failing to do its part and paying a penalty. The case concerned whether the law required performance or not and it was decided that performance was not required.

Holmes’s complaint is that the so-called “primary duty” to perform the covenant is treated as being more significant than it really is. All that it means is that the party to the covenant is liable to pay compensation if it does not perform its part of the covenant.

Again, things are different with morality. I don’t have the option of doing what I promise or paying compensation.

Frank’s Taxi Companies

Frank’s story about the taxi cabs is supposed to show that the “what is law?” question is a request for a prediction about how a judge will rule. In his story, the answer to the question “what is the law?” varies depending on which court will hear the case.

Here are two questions about it.

1. How representative is this example? No one goes to court when the law is just clear, after all.

2. What do judges mean when they ask “what is the law?”

Main Points

These are the things you should know after today’s class.

1. What the legal realists mean when they say questions about the law are requests for predictions.
2. Holmes’s bad man.
3. Frank’s case of the taxi companies.