American law and jurisprudence fail to solve fundamental problems in our country. Every lawyer and judge practices, knowingly or unknowingly, from a particular philosophy of law. Much of the practice of law in the United States is rooted in the thought of Justice Oliver Wendell Holmes, Jr. Holmes taught that law was not grounded in morality and logic, but rather the pragmatic rulings of judges. Our law schools and courts today follow Holmes in defining law as merely what a judge says it is. This Comment argues that Justice Holmes’ definition of law was fundamentally flawed and his jurisprudence should not be followed. Using the teaching of St. Thomas Aquinas, the author asserts that natural law jurisprudence, understood in the Thomistic tradition, proves Holmes to be wrong about law and provides a proper understanding of law that can build a just society.
The Path Less Traveled: A Natural Law Critique of Justice Holmes’ Path of the Law,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol69/iss4/9