Prediction theory of law
Encyclopedia
The prediction theory of law was a key component of the Oliver Wendell Holmes
' jurisprudential philosophy. At its most basic, the theory is a refutation of most previous definitions of the law
. Holmes believed that the law should be defined as a prediction, most specifically, a prediction of how the courts behave. His rationale was based on an argument regarding the opinion of a "bad man." Bad men, Holmes argued in his paper The Path of the Law, care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding paying damages. In Holmes's mind, therefore, it was most useful to define "the law" as a prediction of what will bring punishment or other consequences from a court.
The theory played a key role in influencing American Legal Realism
.
Prediction theories of law fell in discredit after H. L. A. Hart
, in his The Concept of Law
(1961), argued that (1) they were blind to the internal point of view towards law, the sense shared by officials and law-abiding citizens that rules of law `ought' to be obeyed, and (2) they undervalue "the ways in which the law is used to control, to guide, and to plan life out of court." As for the `bad man', Hart asks, "Why should not law be equally if not more concerned with the `puzzled man' or `ignorant man' who is willing to do what is required, if only he can be told what it is? Or with the `man who wishes to arrange his affairs' if only he can be told how to do it?"
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
' jurisprudential philosophy. At its most basic, the theory is a refutation of most previous definitions of the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
. Holmes believed that the law should be defined as a prediction, most specifically, a prediction of how the courts behave. His rationale was based on an argument regarding the opinion of a "bad man." Bad men, Holmes argued in his paper The Path of the Law, care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding paying damages. In Holmes's mind, therefore, it was most useful to define "the law" as a prediction of what will bring punishment or other consequences from a court.
The theory played a key role in influencing American Legal Realism
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
.
Prediction theories of law fell in discredit after H. L. A. Hart
H. L. A. Hart
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....
, in his The Concept of Law
The Concept of Law
The Concept of Law is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism within the framework of analytic philosophy...
(1961), argued that (1) they were blind to the internal point of view towards law, the sense shared by officials and law-abiding citizens that rules of law `ought' to be obeyed, and (2) they undervalue "the ways in which the law is used to control, to guide, and to plan life out of court." As for the `bad man', Hart asks, "Why should not law be equally if not more concerned with the `puzzled man' or `ignorant man' who is willing to do what is required, if only he can be told what it is? Or with the `man who wishes to arrange his affairs' if only he can be told how to do it?"