PHILOSOPHY AND PRAXIS

Oliver Wendell Holmes, a former Supreme Court Judge, was an influential legal scholar. He had argued that law is not a rigid and deductive application of the statutory provisions but the prediction of the pronouncement of the court, that is why it is better understood from the point of view of the ‘badman’ who cares only for the consequences which such knowledge enables him to predict. Holmes failed to acknowledge the dualistic components of the role of law as a guide to behaviour and a prediction of the pronouncement of the court. There is a need to bridge the legal positivists’ perspective and natural law theorists’ views. It means that to bridge the moral-legal divide, it is to be noted that law and justice are not necessarily the same. Our laws are regulations and statutory provisions, but justice is concerned with morality and the rightness of actions. Laws sometimes can be unjust and, in this case, cannot be justice, this is why the two do not coincide. The natural theory of law should serve as the ideal paradigm theory of law. Therefore, Holmes’ consequentialist approach to the law must be rejected in favour of a theory that provides legal obligations for the existence and obedience to the law in consonance with morality.

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