In the first part of his essay, Holmes asserts two supposed misconceptions regarding law. First, he argues that law and morality are not necessarily congruent to one another. He juxtaposes “malice” in the moral sense, “as importing a malevolent motive” to “malice” in the legal sense, as the “tendency of conduct… to cause temporal harm”. He further proposes that in the study of law, one should look upon the subject from a bad man’s perspective, that is, one who cares only “for the material consequences which such knowledge enables him to predict, not as a good one, who finds reasons for his conduct…”
Second, he debunks the notion that “the only force at work in the development of the law is logic”, asserting that despite the logical framework of law, attitudes and other societal externalities affect a judge’s decision.
Instead, he asserts that it is history that constitutes the greatest influence in the development of law. He argues that history plays too big of a part in the present condition of law to the point that some laws are merely “the blind imitation of the past”, devoid of purpose, reason or the view of the end. As to what “end” he hopes law would subserve, readers can only assume it to be utopian.
Holmes’ essay’ forward-thinking approach to the subject (so much so as to refer to laws as “prophecies”,) was juxtaposed against the traditionalist perspective that persisted in his time. And while his writings have sparked a revolution in legal thought and study, it is evident that this major pitfall in the theory of law still persists despite the Path of the Law being written more than a century ago.
That said, this essay sounds the alarm as our country still has history and tradition up on a pedestal. This is evident in our history whose politics and laws are intertwined with the Catholic Church. There is danger in this primarily because the Church seems to be victimized by the first fallacy, that is, it insists on shoving morality down our throats and the law’s. Even worse, they are imposing their own standards of morality, which are based on nothing but outdated dogmas. Ironically, the Church shouldn’t even be meddling with affairs of the state to begin with.
Sadly, despite the recent societal backlash on the Church’s actions this week, the majority’s refusal to question the legitimizing factor of the Church, that is, the scriptures, prevents us from ridding the country of this undue influence. What people fail to realize is that as long as people do not question the outdated dogmas that chain us to the past, the Church retains its stronghold on Philippine society. In other words, the monarch remains in power because he has subjects to rule over. I find my sentiments similar to what Holmes had written,
“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”
So now our society is at a junction: do we continue to tread the path of history or do we dare to diverge in hopes of reaching the “utopian end”?