Oliver Wendell Holmes, The
Path of the Law
10 Harv.L.Rev. 457, 458-469
(1897)
Holmes presents a
philosophical treatise on the distinction between the law and morality.
Holmes more or less argues
that people under the law are influenced by incentives. Even if they are bad at heart, they can be deterred
from bad acts and encouraged to perform duties through the threat of punishment
or promise of reward.
In order to avoid confusion,
Holmes proposes that we want to divorce law from morality, even though in a
larger sense they may be the same thing.
In particular, Holmes says
that the duty of keeping a contract is no more and no less than the prediction
that if you don’t keep the contract, you will face damages.
The counterargument from
Fuller is that people aren’t really so coldly calculating that they are
influenced only by official carrots and sticks that come out of the
court. Rather, they are also influenced
by how people will look at them and what kind of reputation they want to have.