23 Pages Posted: 11 Jan 2011
Date Written: 1998
In this article, I accept and hope to expand upon the conventional consensus view that The Path of the Law is a brief for an Americanized version of Austinian legal positivism and for the "separation" of law and morality that is at its core. I also want to show, however, that the distinctive accomplishment of this Essay is its literary ambiguity: Both its explicit arguments for the positivist separation of law and morality, and the three enduring metaphors Holmes uses to make the case -- (1) the "bad man" from whose perspective we can clearly view the law; (2) the "prophecies" of judicial acts of power that are in the end all that "is meant by law;" and (3) the bath of "cynical acid" after which we will clearly perceive the law's contours -- support not one but at least three -- and possibly more -- understandings of, or interpretations of, legal positivism. Further, the differences between those three versions, although in important respects philosophical and political, are at bottom, perhaps, aesthetic. Each of the three "positivisms" foreshadowed in the Essay posit not only an analytic or philosophical relationship between law and morality, but also an aesthetic coloration of social life. They are very very different, and how we react to them, and which of the three we see or which we see most clearly, at any given time, says as much about the tenor of our times as it says about the Essay itself.
Keywords: Holmes, legal positivism, law and morality, law and literature, power, bad man, separation thesis
JEL Classification: K00, K49
Suggested Citation: Suggested Citation