Oliver Wendell Holmes, The Path of the Law

10 Harv.L.Rev. 457, 458-469 (1897)

Dawson, p. 35-37


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 donít keep the contract, you will face damages.


The counterargument from Fuller is that people arenít 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.

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