Introduction
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:
Whatever may be the constitutional significance of the unpredictability of high punitive awards, this feature of happenstance is in tension with the function of the awards as punitive, just because of the implication of unfairness that an eccentrically high punitive verdict carries in a system whose commonly held notion of law rests on a sense of fairness in dealing with one another. Thus, a penalty should be reasonably predictable in its severity, so that even Justice Holmes's “bad man” can look ahead with some ability to know what the stakes are in choosing one course of action or another.
554 U.S. 471, 502 (2008).
More generally, the bad man thought experiment goes to one of the most important distinctions in legal theory--the distinction between "the law on the books" and "the law in action." The bad man does not care about the law on the books, except insofar as the law on the books influences the law in action in a way that affects the interests or preferences of the bad man.
The Prediction Theory of Law
Holmes deployed the bad man thought experiment in expressing general views about the nature of law. There are important questions of exegesis as to whether the prediction theory that has been discussed by its critics was actually held by Holmes, but I am going to set those questions to the side and present a very simplified version of the prediction theory that is (rightly or wrongly) attributed to Holmes.
Holmes has been read as proposing a general theory that maintains the legal content (the content of the law) is a set of predictions about what courts and other legal institutions will do. This account of the nature of law draws out the intuitions that Holmes lays out in The Path of the Law in the passages quoted above. We might call this view of the nature of law "functionalist"--the true nature of law is reviewed by the way that the law functions (the law in action) and not by what the law says. The law may say things that the law does not put into action, and these statements are not properly viewed as part of the true content of the law. The prediction theory of law is that legal content consists of propositions that accurately predict the way the law will function.
The bad man thought experiment brings out an intuition that supports the prediction theory. The bad man cares only about the functional content of the law and does not care about law on the books that does not translate into the law in action. Why should the bad man care if the law says contracts must be performed, when the only sanction for breach is a damage award that would cost the bad man less than performance? The law-on-the-books obligation to perform would not motivate the bad man unless it were backed up by a sanction sufficient to make performance in the bad man's self interest.
Criticisms of the Prediction Theory
One of the most influential criticisms of the prediction theory of the law in general and the bad man thought experiment in particular is associated with the great legal philosopher, H.L.A. Hart, whose concept of the internal point of view is described in a Lexicon entry. The internal point of view plays an important role in Hart's own theory of law: officials, including judges, take up the internal point of view when they comply with rules, especially the rules that define their own powers and duties. The internal point of view is obvious distinct from the self-interested perspective of Holmes's bad man. Here is how Scott Shapiro describes Hart's point:
The problem with “bad man” theories such as Holmes's is that they assume that people are motivated to follow the law solely to avoid sanctions, rather than because rules require such behavior. These theories, Hart says, “define [the internal point of view] out of existence.”
More generally, the prediction theory, insofar as it relies on the bad man thought experiment, fails to take into account the "good person" who complies with the law because they believe that they are obligated to do so--even when there is no chance that they will be punished or sanctioned.
A related criticism of the prediction theory of the law is based on the failure of the theory to account for the phenomenology of judging. Judges (at least sometimes) believe that their decisions are guided by the law. In the case of a court of last resort, the prediction theory would seem to imply that judges must be making predictions about how they themselves will behave in the future, but this account seems circular, because their future selves would also be making predictions and at some point there must be something outside of these predictions that actually guides their behavior.
Although it is possible that the prediction theory could be fixed up to take these objections into account, I think it is safe to say that the theory has very few contemporary adherents--at least in the world of Anglophone legal philosophy.
Conclusion
Although the prediction theory of the nature of law is usually discounted, that does not mean that the bad man thought experiment should also be set to the side. The thought experiment may be valuable as a tool for thinking about the law in action--even if it does not describe the behavior of all legal actors. The aim of this Lexicon entry has been to provide a basic understanding of the bad man thought experiments and the way it can be used in both general legal theory and in thinking about particular legal problems.
Related Lexicon Entries
Bibliography
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- 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).
(Last updated on June 8, 2024.)
