- Prediction theory of law
The prediction theory of law was a key component of the Oliver Wendell Holmes' jurisprudential philosophy. At its most basic, the theory is a refutation of most previous definitions of the
law. Holmes believed that the law should be defined as a prediction, most specifically, a prediction of how the courts behave. His rationale was based on an argument regarding the opinion of a "bad man." Bad men, Holmes argued in his paper " The Path of the Law", care little for ethics or lofty conceptions of natural law; instead they care simply about staying out of jail and avoiding paying damages. In Holmes's mind, therefore, it was most useful to define "the law" as a prediction of what will bring punishment or other consequences from a court.
The theory played a key role in influencing American Legal Realism.
Prediction theories of law fell in discredit after
H. L. A. Hart, in his " The Concept of Law" (1961), argued that (1) they were blind to the internal point of view towards law, the sense shared by officials and law-abiding citizens that rules of law `ought' to be obeyed, and (2) they undervalue "the ways in which the law is used to control, to guide, and to plan life out of court." [Hart, p. 39.] As for the `bad man', Hart asks, "Why should not law be equally if not more concerned with the `puzzled man' or `ignorant man' who is willing to do what is required, if only he can be told what it is? Or with the `man who wishes to arrange his affairs' if only he can be told how to do it?" [Hart, p. 39]
- Hart, H.L.A. "The Concept of Law". 1961: Clarendon Press.
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