The Prediction Theory of Law
![handle is hein.journals/temple39 and id is 433 raw text is: 19661
THE PREDICTION THEORY OF LAW
DAVID H. MOSKOWITZt
I. HOLMES' ARTICULATION OF THE PREDICTION THEORY
The prediction theory of law as it is expressed in Oliver Wendell
Holmes' The Path of the Law has been widely adopted by American
legal realists,' who for the most part have not modified it.2 Holmes'
statement of the prediction theory of law is this: The prophecies of
what the courts will do in fact, and nothing more pretentious, are what
I mean by the law. '
This definition of law appears in a speech that Holmes delivered
to law students. It is fair to conclude that Holmes in this speech was
primarily interested in dispelling two widespread misconceptions about
the law, and his statement of the definition of law must be read in this
context. First, Holmes was distinguishing law from moral notions of
what the law should be or must be, and to accomplish this he used the
device of his now-famous bad man. By looking at the law through
the eyes of the bad man, we are better enabled to distinguish law from
morality:
t LL.B., Villanova Law School; D.Phil., Wadham College (Oxon.); Member
of Bucks County, Pennsylvania, Bar. Portions of this article were originally submitted
as part of a doctoral thesis at Oxford University.
1. See, e.g., RADIN, THE LAW AND MR. SMITH, 8, 9; RADIN, MY PHILOSOPHY
OF LAW, 287, 293 (1938); GARLAN, LEGAL REALISM AND JUSTICE, 6 (1940) ; Cook,
Five Lectures on Legal Topics-The Utility of Jurisprudence in the Solution of Legal
Problems, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 337 (1924) ; Corbin,
Jural Relations and Their Classification, 30 YALE L.J. 226, 227 (1920); Corbin,
Legal Analysis and Terminology, 29 YALE L.J. 163, 164 (1919).
2. Adoption of the prediction theory cannot, however, be employed as a standard
by which to distinguish realists from nonrealists, for at least one nonrealist (in fact,
a critic of the realists) also accepted the prediction theory of law: namely, Cardozo.
See SELECTED WRITINGS OF CARmozo, 200-08 (Hall ed. 1947). See also, Pound, Law
and the Science of Law in Recent Theories, 43 YALE L.J. 525 (1934). Furthermore,
it is arguable that Frank never adopted the prediction theory, since his original position
was that the outcome of lawsuits is unpredictable because of factors referable to the
application of legal rules. There can be no doubt that he later expressly rejected the
theory:
But more than twenty years ago, I tried, pragmatically, to apply Holmes'
prediction theory to future specific decisions of trial courts. If such decisions
could not be prophesied, then usually lawyers' prophecies would be of com-
paratively little worth, since very few trial court decisions are appealed.
I discovered that this sort of prophesying was markedly uncertain .
[I]t will suffice to show the shakiness of Holmes' prediction theory.
For the most part, that theory succumbs to what I call fact scepticism.
Frank, A Conflict With Oblivion: Some Observations on the Founders of
Legal Pragmatism, 9 RUTGERS L.R. 425, 447-49 (1954).
3. HOLMES, The Path of the Law, Cou=ED LEGAL PAPERS 167, 173 (1920)
[hereinafter cited as The Path of the Law].
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