Curiosity Killed the Skeptic: Critically Evaluating Oliver Wendell Holmes’s Legal Skepticism

Abstract

Oliver Wendell Holmes Jr. was one of America’s greatest judges and jurists who thought that law is the result of the judicial behaviour of judges who took into account external factors rather than already established law such as statute or precedent. He is thus skeptical about statutory law, seeing it only as a source of law and in addition, considering precedent as a rigid doctrine. Albeit, he does consider law and morality to intervened, although he also believes that they are to be only applied as external factors by judges. He has thus become subject to a lot of criticism by the likes of Hart, Fuller, Dworkin and Kelsen amongst others. Holmes has failed to take into consideration the fact that courts themselves are constituted by law, that forums other than courts that apply and enforce law also exist and that the law exists for purposes other than adjudication such as setting standards for behaviour. He also fails to consider the fact that the courts developed the law only when the law itself had no answer or was vague and unclear. Hence, his theory does not take into account the fact that law is not “judge-made” but is primarily promulgated by the legislators. The methodology used in this paper is doctrinal.