Title: the way of the law
•Subtitle: Learn, understand and master the law
•Author: Oliver Wendell Holmes, Jr.
•Publication date: 2009
The thoughtful reader the way of the law You will enjoy the feeling of having at your side a guide, philosopher and teacher who carefully guides you to learn, understand and master the law. To read and reread this book is to experience taking from a great teacher some of the things he has learned and getting excited about the subject as well.
the way of the law presents the conclusions drawn by Holmes after more than 30 years of legal observation, thought and practice of law. He probably wrote this essay to further discuss what began in his most famous publication, The Common Law. the way of the law it was not written as a manual on the practice of law, but as a manual to show students how to think like a lawyer; what it means to be a good lawyer; and what it means to have a successful law career.
What is this book about?
Obviously, there have been many changes and improvements in the legal profession and in legal education since Holmes wrote this essay in 1897. But in this book, Holmes is not concerned with the minute practical details of learning the law: “Theory is my subject, not practical details. Modes of teaching have been improved since my time, but skill and industry will dominate the raw material with any mode. Theory is the most important part of the dogma of law, since the architect is the most important man who participates in the construction of a house”.
Who was Holmes?
Holmes was in a position to speak on American law with great authority. After graduating from Harvard with his law degree, he taught law there. He then served for 20 years on the Massachusetts Supreme Judicial Court. He was then appointed to the Supreme Court of the United States as an Associate Justice, where he served for 30 years. Despite his fancy titles and his extensive experience, Holmes never speaks disparagingly to the reader of this book. Holmes’s evident love for the law and his desire to help others understand this attraction comes through to the reader loud and clear. Holmes uses many easy to understand examples throughout the essay to demonstrate his point.
The “Bad Man Theory” and “Morality Vs. Law”
The quality and simplicity of Holmes’s writing is reason enough to attract readers, especially law students. His illustrations are obviously chosen from extensive experiences and are like vivid images projected on a miniature screen. Everyone’s favorite illustration is usually Holmes’s explanation of his “bad man theory.” Holmes explains “that a bad man has as much reason as a good man for wishing to avoid an encounter with law enforcement, and therefore the practical importance of the distinction between morality and law can be seen.” In other words, a bad man will only want to know what the material consequences of his conduct will be; he will not be motivated by morality or conscience. This example sets the stage for most of the book. Holmes goes to great lengths to give examples of the differences between morality and law.
History and Tradition
A large part of the book discusses the importance of history, or tradition, as an important part of the study of law. Holmes tells us that “The rational study of law is still very much the study of history. History must be part of the study, because without it we cannot know the precise scope of the rules that it is our duty to know. It is part of the study rational, because it is the first step towards an enlightened skepticism, that is, towards a deliberate reconsideration of the value of those rules”.
Isn’t this book outdated?
The hasty reader might assume that this book was written too long ago to be of practical use to a modern law student or lawyer. But a careful reader will immediately see that Holmes has much to offer us today. Holmes summarizes his entire book in two brief paragraphs:
“I take it for granted that no hearer of mine will misunderstand what I have to say as the language of cynicism. The law is the external witness and repository of our moral life. Its history is the history of the moral development of the race. Its practice, despite of popular jokes, it tends to make good citizens and good men.When I emphasize the difference between law and morality I do so with reference to only one end, that of learning and understanding the law.you definitely must master its specific marks, and that is why I ask you for the moment to imagine yourselves indifferent to other greater things.”
“If a man is engaged in the law, it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and discern the true basis of the prophecy. Therefore, it is good to have accurate knowledge. notion of what we understand by law, by right, by duty, by malice, intention and negligence, by property, by possession, etc.
Those of you who read this book before entering law school should make an effort to reread it several times during your law school studies. It is then that you will begin to understand more than the way of the law each time you read it, and you will really begin to understand what Holmes was trying to tell us, on a deeper level, and enjoy his message all the more.