Holmes and Frank: Legal Positivism

Frank:

“We may now venture a rough definition of law from the point of view of the aver-

age man: For any particular lay person, the law, with respect to any particular set of facts,

is a decision of a court with respect to those facts so far as that decision affects that

particular person. Until a court has passed on those facts no law on that subject is yet in

existence. Prior to such a decision, the only law available is the opinion of lawyers as to

the law relating to that person and to those facts. Such opinion is not actually law but

only a guess as to what a court will decide.”

Law, then, as to any given situation is either (a) actual law, i.e., a specific past

decision, as to that situation,' or (b) probable law, i.e., a guess as to a specific future

decision.


Usually when a client consults his lawyer about "the law," his purpose is to

ascertain not what courts have actually decided in the past but what the courts will

probably decide in the future.

Holmes believes the law is nothing but a _____ of _______.

Nothing but a prediction of what a judge will decide.

To Holmes, what does it really mean to say a man has a legal duty to do action A?

All it means is that, if X fails to do A, then X will be punished or subject to some adverse judgment (all that really matters is the likelihood of punishment for not completing the duty).

Who does Holmes say we must look at to actually understand the law?

The perspective of ‘the bad man’

• All the bad man cares about is if an action will likely result in punishment