If we accept the notion that I put forward yesterday – that fear of mental freedom is a driving force behind the creation of law – can that not lead us to further deductions?

If law is obligation, and we accept the genesis of law as coming from our species’ need for authority, can we not deduce that obligation sprung up as a result of this?

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.

O.W. Holmes on Agency, Torts, and Other Things.

Sorry if this is pathetically boring. I’ve never blogged before, although I’ve certainly been tempted in the past. This semester, I have been compelled to write a regular blog for a Theory of Law class, which I lovingly refer to as “Phi-Law-Sophy,” and figured since I have to do that anyway, I may as well take the pieces I write for it and post them here for general consumption.

As a general rule, I understand that nobody is going to give a rat’s ass what I post here – but it is a cheap way to caress my ever-expanding ego. Plus, maybe I’ll learn a few things in the end. 


Without further ado, my first attempt at an academic blog:

The superfluous language of the first Holmes reading on Agency makes for an adventure in annoyance, which leads to an over-use of my iPhone’s dictionary app, then through several stages of desperation, and self-doubt, before I came to the inevitable conclusion that Holmes basically made his point in the first two paragraphs. You really have to love Supreme Court justices – their ability to say nothing in 10,000 words is rivaled only by Malcolm Gladwell’s.

When one cuts through the exhaustive verbiage, one arrives at the assertion that an agent is, for myriad purposes, an individual made in possession of the authority to act on behalf of another. These actions take the form, typically, of commercial transactions, although they are not limited thereto. The delegation of authority from one to another for the other to act on one’s behalf does not come without risk – a tort committed by the agent is the same as a tort committed by the principle, at least in Holmes’ view. I do not agree that it is that simple, however.


Let’s consider a scenario:

  • A defendant is prosecuted for crime X. 
  • The prosecutor is, by definition, an agent. Specifically, the prosecutor is an agent of the government.
  • In violation of the law – and basic ethical standards – the prosecutor fails to submit exculpatory evidence.
  • In so doing, the prosecutor has committed a crime and a tort.
  • Has the state committed a crime? Has the state committed a tort?

The prosecutor has, ostensibly, acted on behalf of the state in destroying exculpatory evidence. However, the state as a principle has clearly not given its agent the authority to act in that way on its behalf, simply by dint of declaring such actions criminal. Thus, how can it be said in this instance that the agent’s tort is the tort of the principle?


Let’s consider another scenario:

  • A defendant is prosecuted for crime X.
  • His defense attorney is his agent. 
  • The defense attorney knowingly and intentionally violates privilege and submits inculpatory evidence.
  • He has committed a crime, and a tort.
  • Can it truly be said that the crime and tort committed by the agent here can be rightly called the crime and tort of the principle? That defies logic.

What remains for one to ask in this case, is whether or not one accepts the notion that, as Dworkin posits in “Law’s Empire,” that (among other theories of law) law is the philosophical judgement of the beholder – where all matters of fact are agreed upon and a disagreement still exists, that disagreement is therefore a disagreement in theory, which leads directly to to questions of what the law should be in the mind of the adjudicator. In which case, there are several answers to the above scenarios.