Holmes on Law and Morality

  • Mark Strasser Trustees Professor of Law, Capital University Law School, Columbus, Ohio.


This article explores Justice Holmes' position on the relationship between law and morality, and discusses

some of the mistaken interpretations of that position.  Commentators' claims to the contrary notwithstanding, Holmes 'predictive theory of law and his discussion of the "bad man" do not illustrate the separation between law and morality but merely that lawful actions need not be performed for morally praiseworthy reasons and that positive law and morality do not always coincide. He suggested that the conflation of law and morality might be reduced by changing legal terminology so that moral and legal terms would not overlap, a proposal with possible drawbacks that Holmes did not seem to appreciate.  That said, however, detractors overestimate the extent to which Holmes asserted that law and morality should be distinguished, thereby distorting both Holmes' views and the value of his insights.