‘법의 길’에 나타난 홈즈의 법적 회의론
O. W. Holmes’s Legal Skepticism in “The Path of Law”
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As a forerunner of American legal realism, Oliver wendell holmes criticized both of traditional natural law theory and Langdellian legal formalism. In "The Path of Law", his last efforts at establishing a systemic legal theory, Holmes placed the law-morals issue at center stage. His notorious "bad man" was a tool-concept to explain differences between law and morality. On the one hand, Holmes recommended the conceptual distinction between law and morality. On the other hand, he admitted the judicial decision making completely free of the evaluation of political morality and policy might be impossible. More importantly, the fictional character represented Holmes'comprehensive legal skepticism. Distrust on morals as well as on legal principles skepticism supported his belief that there was no basis in reason to explicate legal judgement. He offered as an alternative perspective the prediction theory of law. Yet his suggestion has not been fully successful,but can be a good model for redirecting the purpose of legal science and the theory of adjudication.
Abstract
As a forerunner of American legal realism, Oliver wendell holmes criticized both of traditional natural law theory and Langdellian legal formalism. In "The Path of Law", his last efforts at establishing a systemic legal theory, Holmes placed the law-morals issue at center stage. His notorious "bad man" was a tool-concept to explain differences between law and morality. On the one hand, Holmes recommended the conceptual distinction between law and morality. On the other hand, he admitted the judicial decision making completely free of the evaluation of political morality and policy might be impossible. More importantly, the fictional character represented Holmes'comprehensive legal skepticism. Distrust on morals as well as on legal principles skepticism supported his belief that there was no basis in reason to explicate legal judgement. He offered as an alternative perspective the prediction theory of law. Yet his suggestion has not been fully successful,but can be a good model for redirecting the purpose of legal science and the theory of adjudication.
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