Illustrious and distinguished, Oliver Wendall Holmes is widely heralded as being amongst the greatest legal scholars in American law. Among his most crucial contributions is his shaping of the legal realism movement and his 1897 Boston University Law School address, “The Path of the Law.” This piece endeavored to assist legal practitioners in understanding the law by directing them away from the law’s formation and toward its consequences. He first deals with the perceived relationship between law and morality, arguing that they are in fact utterly separate and unrelated. To illustrate this point, Holmes summons the infamous “bad man,” “who cares only for the material consequences which such knowledge enables him to predict,” and the unheeded good man, “who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” The bad man, as Holmes states, only obeys the law if he calculates that “if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money.” Conversely, the bad man will break the law if his external calculations inform him that he would do better to incur the legal sanctions resulting from breaking the law. It follows, according to Holmes, that morality has nothing to do with law, and amounts to little more than a state of mind. He holds that there are no objective standards for determining right and wrong and therefore no simply just answers to legal questions. For Holmes, legal adjudication has no natural basis; instead, it comes down to weighing questions of social advantage according to the exigencies of the age. Concepts such as “rights” are willed by the dominant forces of an age and community.

Upon dissociating law from morality, he then reckons with the relationship between law and logic. Though he does not deny that logic is present in legal reasoning, he rejects the notion that it is the definitive tool to reach truth. He stated his precise objection thusly: “The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct.” In other words, judges decide a case due to a certain bias, then use logic to justify their decision, and there can be no logical necessity or reasoning about law, apart from calculations dictated by answers to questions of socioeconomic advantage. The actual grounds of decision, according to Holmes, are based on the “felt necessities” of the time; judges decide questions first, and find reasons for them ex post facto.

But, by delimiting law as being only what a judge will do, by focusing on the legal consequences of the law and ignoring its moral underpinnings, Holmes’ definition of law begins at the end of the path, and a lingering preliminary question remains and begs: What do lawmakers draw from? Or in other words: How do judges or lawyers know what the law is before it is applied? While Holmes compels a separation of law and morality in the mind of the reader, the ensuing inevitability is that the reader is left reflecting upon the nature and essence of what the law is. Even as Justice Holmes wanted us to separate law and morality in order to better understand the law, it mustn’t follow that the legal practitioner cannot and does not additionally focus on the good man’s perspective, for if the law is the “external deposit of our moral life,” how can we focus on the bad man in a mutually exclusive sphere from that of the good man? Holmes’ separation mustn’t necessarily compel the conclusion that the bad man side of the equation constitutes the totality of what the law is. Indeed, the reader’s view of the law is incomplete if she ignores or diminishes the extent to which the good man’s morality informs the law. The good man is a blood-relative, and sine qua non of the law. The “vaguer sanctions” of the good man’s conscience is the root of the law, and becomes the law only after a sort of quantum leap – the moment at which society deposits the good man’s internal moral values into the positive bank of the law. Thus, recognizing that law can respond to what Holmes called "the felt necessities of the times” must not necessarily mean saying that there is no more to law than that.

In highlighting law’s adaptive nature, The Path of the Law did not bring something bold or new to law; it only maybe took something away: the idea that, even as law adapts to changing circumstances, it can, and does, adhere at its core to immutable principles of justice. A firm believer in social Darwinism, Holmes upheld forced sterilization in the notorious case of Buck v. Bell, writing that “it is better for all the world if, instead of waiting to execute offspring for crime or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” In words Holmes gleefully described in a private letter as “brutal,” he concluded, “Three generations of imbeciles are enough.” In the absence of morality, Holmes apparently could not conjure a basis for not forcibly sterilizing “imbeciles.” Although the ethical skepticism that accompanies the Path of the Law and legal realism broadly need not lead to positions like Holmes's on eugenics, perpetuating the belief and narrative that human beings devise their own values to serve their selfish interests makes monstrous moves like Holmes's easier. Dispassion is a viral, self-fulfilling prophecy. We are more than mechanized calculators of costs, benefits, and legal sanctions. The law and human actions are not stripped of metaphysical morality, and I think we all innately, even if timidly, know that.