Oliver Wendell Holmes Legal Obligation

Oliver Wendell Holmes Jr. Holmes saw the legal obligation as a prediction that sanctions were likely to be visited upon someone not following a course of conduct. Accordingly, Holmes saw a contractual obligation as the obligation to pay damages in case of breach. But doesn’t this put the cart before the horse? He inspired the American realist movement with a jurisprudential theory based on the need to ‘think things, not words’. The examination of facts must dominate legal investigation. The object of a study of the law is ‘prediction’ – that is, ‘the prediction of the incidence of the public force through the instrumentality of courts’. The study of the law’s operations demands that the positive law be kept in focus and that it be investigated
The true science of law according to Holmes lies in its postulates from within which law has to be measured accurately. But Holmes does not provide the mechanism or a method of evaluation of these postulates. In The Common Law (1923), Holmes repeats and elaborates his injunction to jurists to discount the part supposedly played by logical reasoning in the courts’ process of adjudication. Law can be seen as the embodiment of a nation’s long development but it cannot be interpreted merely in the terms of logic. Hence, it is important that lawyers and judges be well acquainted with the historical and social contexts of the law they administer. To be a master of law, one must master the branches of knowledge that lie next to it. The jurist should not neglect anthropology and history, since ‘In order to know what is, we must know what it has been, and what it tends to become’. ‘The real relationship of jurisprudence to law depends not upon what law is treated, but how law is treated’. As I read Holmes, the bad man is labeled “bad” because of his reasons for obeying the law, not his predicted failure to do
Something like, the main purpose of law is to influence people’s decisions in to a different direction and operate in present, and not bother about the decisions that court will take in future. To this Holmes may have added that all decisions, not just those with legal consequences, are based on probabilities. For example, a jaywalker decides to cross the street. He figures that his chances of reaching the other side are 99.99% He has allowed 0.01% for the possibility that he will stumble halfway through and be run over by a passing car. On top of that calculation he must also consider the probability of being arrested for jaywalking—an arrest that would defeat his purpose of crossing the street in between the traffic signals. He looks around and does not see a police officer. Nevertheless he has to allocate some degree of probability that a police officer may be standing behind a truck parked on the other side of the street. Thus his probability of successfully jaywalking reduces from 99.99% to, say, 97%. This probability may or may not lead him to decide to jaywalk. There may be other factors that enter into his decision. Every one of those factors can be measured as a numerical