Oliver Wendell Holmes Bad Man Theory

For Oliver Wendell Holmes, Jr., the study of law is nothing but a prediction of how judges will decide a case. This view was illustrated by the “Bad Man” theory, in which a bad person’s view of the law is the best way of knowing what the law is because the bad man will carefully and precisely calculate what he must do in order to avoid state-enforced sanctions resulting from disobedience of the law. The bad man does not concern himself with morals, instead he is more concerned with the material consequences (e.g., staying out of jail or avoiding a fine). In this sense, the bad man will be more calculating in his actions, driven by the desire to pit his wits against the law—the codified will of others. Whereas, the common man will conform

his actions to meet his desire to address those moral and social obligations which bind him.

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Society assures each of us that we have the right to pursue satisfying needs, but this does not guarantee our success. Contrary to Holmes’ belief, bad men are not simply born bad, they are created by the circumstances surrounding their upbringing—for better or for worse! Even the bad man has basic needs and desires—to have security, food, clothing, etc. Because he might have limited skills with which to acquire these legally, he uses what he does have—those skills he has mastered growing up. He learns these by mirroring what he sees at home first, then in his community and school. If he is given no alternative model, he will pursue similar objectives. His skills may also include concrete skills learned by imitating older youth who demonstrate the material success he craves. These may include criminal skills such as stealing, burglary, and conning others. Society fares best when it addresses the full range of needs required by its citizens prior to their assuming adult roles. This, for true equality to exist, would require the guarantee of a common upbringing for