One Hundred Years of Legal Philosophy

Notre Dame Law Review 74:5 (1999). Reprinted in Brian J. Shanley (ed.), One Hundred Years of Philosophy (Catholic University of America Press, 2001), and as “What is Law? A Century of Arguments,” in First Things 112 (April 2001).

There is a sense in which twentieth century legal philosophy began on January 8, 1897. On that day, Oliver Wendell Holmes, then a justice of the Supreme Judicial Court of Massachusetts, spoke at a ceremony dedicating the new hall of the Boston University School of Law. In his remarks, which were published that spring in the Harvard Law Review under the title The Path of the Law, Holmes proposed to debunk the jurisprudence of the past and to propose a new course for modem jurists and legal scholars. Holmes’ themes-the question of law’s objectivity and the relationship between law and morality-have preoccupied legal philosophy in the century that was then dawning and is now drawing to a close. They have figured centrally in the work of our honoree, Kent Greenawalt. My mission is to survey the treatment of these themes by some other influential twentieth century British and American legal philosophers and jurists and to make some observations about where we find ourselves a hundred years or so after publication of The Path of the Law.

Let us look first, though, at Holmes’s own treatments of his themes. The opening sentence of his lecture invited his audiencelawyers, law professors, and law students-to consider what it is we study when we study law. We are not, he said, studying a “mystery,” but rather, “a well known profession.” People are willing to pay lawyers to advise and represent them because “in societies like ours the command of the public force is entrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees.” Now, this is a fearsome power. So, “[p]eople will want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared.” The object of the study of law, therefore, “is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.”

Notre Dame Law Review
First Things