In The Path of the Law, Supreme Court Justice Oliver Wendell Holmes, Jr., wrote,
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy.
Most law students encounter the bad-man thought experiment of the law at some point in their legal education. And they may encounter a more formal and ambitious version theory--the so-called "prediction theory of law" that also makes an appearance in Holmes's The Path of the Law, including the following passage from the beginning of the essay:
We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted 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. People 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 our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.
This entry in the Legal Theory Lexicon provides a basic introduction to the bad-man thought experiment and the prediction theory of law--and to some of the criticisms of Holmes's view. As always, this is an elementary introduction, aimed at law students with an interest in legal theory.
I will use the phrase "bad man" rather than a gender neutral alternative such as "bad person," because this was Holmes's phrase and because it has been standard usage in legal theory.
The Bad Mad Thought Experiment
Most discussion of the bad-man thought experiment moves quickly to the predictive theory of the law, but the thought experiment is important even if the prediction theory is ultimately incorrect. The basic idea of the thought experiment is simple: we are asked to take up the perspective of the bad men, who does not internalize legal norms but is instead concerned only with the effects that the legal system would have on themselves. In the case of criminal prohibition, the bad man would be concerned with sanctions and punishments, but in other contexts, the bad man might see the law as providing benefits and rewards--for example, when the bad man could use tort, contract, or property law to obtain a damage award, a beneficial injunction, or title to and possession of a piece of property.
When we evaluate legal rules, we can take up the perspective of the bad man and ask the question how the bad man would view the rule and what effect the rule would have on the bad man's behavior. An example of this use of the bad man thought experiment is provided in Justice Souter's opinion in Exxon Shipping Co. v. Baker:
- Legal Theory Lexicon 001: Ex Ante/Ex Post
- Legal Theory Lexicon 003: Hypotheticals
- Legal Theory Lexicon 013: Conduct Rules and Decision Rules
- Legal Theory Lexicon 038: The Internal Point of View
- Legal Theory Lexicon 065: The Nature of Law
H.L.A. Hart, The Concept of Law 91 (2d ed. 1994).
- Oliver W. Holmes, The Path of the Law, 10 Harv. L.R. 457, 461 (1897).
- Marco Jimenez, Finding the Good in Holmes's Bad Man, 79 Fordham L. Rev. 2069 (2011).
- Roscoe Pound, Law in Books and Law in Action, 44 Am. U. L. Rev. 12, 18 (1910).
- Scott J. Shapiro, What Is the Internal Point of View?, 75 Fordham L. Rev. 1157 (2006).
(First posted on June 11, 2017.)