O.W. Holmes on the Emotional Element of the Law

“The fallacy… is the notion that the only force at work in the development of the law is logic.” – Oliver Wendell Holmes

In discussing the development of law through an analytical lens – as opposed to doing so from the point of view of a partisan/ideologist – Holmes eschews the notion that the development of the law is a product solely of rational thought and logical deduction. As matter of course, Justice Holmes conceives of a theory of law that in its broadest sense must encompass logic as a necessary condition to the development of law, but argues rather that the ethical judgements of those reading, writing, finding, and creating law are of paramount importance. To illustrate, consider this (paraphrased) example he provides in the text of his analysis:

A criminal and a lawyer are likely to have the same knowledge of a given law. The criminal will have this knowledge to determine how it (the law) affects him – what are the consequences that can occur if I do (or don’t do) X; “If I do X, I can get a fine.” The criminal will, ostensibly, commit the crime anyway, with knowledge of the possible consequences. What, in this instance, separates a fine as a legal sanction from the assessment of a tax for failure to comply. The obvious example is the provision of the Affordable Care Act mandating a tax assessment for those who do not come into compliance with the law by a given date. Is the assessment a tax or a fine?

This distinction seems to be, from my interpretation, at the crux of Holmes’ argument. For, it is the mere stigma of punishment for a crime that separates it from a tax. Naturally, this distinction begins to evaporate when we consider it in relation to felonies and capital offenses – however, the point is not lost. Consider the writings of Erich Fromm, in which he postulates that the root of modern society is the human mind’s inability to cope with its own potential; humans are, among other species on earth, uniquely aware or their own insignificance and impending mortality. This failure of the mind, this so called “Escape From Freedom,” manifests in a compelling need for authority, which can in turn manifest itself as either masochistic or sadistic tendencies. The masochist having need for another to exert control over him, the sadist needing to exert control (it is important to mention that the two are not mutually exclusive).

When looked at in this light, it would seem that humans are routinized into the following of laws – hence the stigma I mentioned earlier. The emotional element in law comes from the human need to exert control over others and to have it exerted back upon them.


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