preview

Holmes's Exposition On The Theory Of Common Law By Thomas Holmes

Decent Essays
Open Document

Holmes begins by portraying his exposition on the theory of common law. He tries to provide a crystal clear image of common law and the idea central to his exposition is the practice of the law from which the theory emerges. Holmes portrays this practice as a narrow path, a kind of sword-bridge, with fatal pitfalls on either sides. The lawyer , girded and armed for, must pick his way forward in quest of an ideal. According to him, the organizing principle of common law was liability and not duty. The rules enshrined under the laws did not portray any specific code of conduct, rather it was the circumstances under which the defendant would be imprisoned or deprived of property. To prove this perspective, Holmes portrays the image of ‘a bad man.’ Through this he tries to explain the thought engraved in the works of Thomas Hobbes which stated that the purpose of law was to impose the will of the lawgiver. This can be substantiated with …show more content…

For this he gives the concept of ‘bad man’ and ‘good man’. According to him, a good man has as much reason as a bad man to avoid an encounter with public force. A good man would prefer following ethics and keeping out of jail. He says that the practice of law makes a person good or bad. Thus, the law is the witness and external deposit of our moral life. Thus, the distinction that he wanted to draw between law and morality was strictly limited to learning and understanding the law. Further, he states that for a more clear picture of the structure of the law, one has to view it from the perspective of a bad man, who aims at his material objectives, rather than a good man, who follows the code of conduct. Though at one point of his speech he is seen busy separating law from morality, he even acknowledges the fact that there is some degree of semantic intersection between the

Get Access
Related
Get Access