On Holmes's "bad Guy" Theory

"Law is a kind of prediction.To truly understand the law,we must look at it from the perspective of a bad man." This is Holmes' s unique understanding of the proposition of law.He created the image of a "bad man" as a tool of legal rhetoric,and provided a unique perspective for people to understand and study law.The "bad man" has nothing to do with morality.When he acts,he is often not constrained by his inner conscience.He does not accept or even care about the moral evaluation of the outside world.The "bad man" only pays attention to the evaluation of his behavior by the law,that is,he only cares about the sanctions that the public power will impose on himself through the court when he commits certain specific behaviors and violates his legal obligations.All in all,the "bad man" proposed by Holmes only cares about the adverse actions that the court will take to publish him.In order to be able to perceive the danger posed to him by public power,he always predicts the actions of the court and judges.This theoretical approach,which only predicts the law from the legal consequences,obviously abandons moral factors from the law.As a pioneer of the realist legal school,Holmes established his "bad man" theory on the basis of pragmatic philosophy and critique of formalist legal thought.The core of the theory is to predict the behavior of judges from the perspective of the "bad man",thereby shifting the focus of people's attention on the law from formalistic legislation to practical judicial process.Holmes introduced the "bad man" role in the theory of legal forecasting,the purpose of which is to further dispel the confusion between law and morality,in order to help people better study and master the law.Holmes' s proposition that separates law and morality was inspired by Austin's separation theory,but he was unwilling to admit that he was influenced by Austin's law and moral dichotomy,so he adopted the separation of law and morality from the perspective of the "bad man".As a famous judge in the United States,many of Holmes' legal thoughts are based on the thinking of judicial practice,and the "bad man" theory is no exception.Therefore,its theoretical value is more reflected in the positive impact on the judicial field.He regarded law as a profession,affirmed the existence of lawyers as legal servants and legal helpers in the judicial process,and emphasized the role of lawyers in legal prediction.At the same time,Holmes also strengthened the role of judges in the judiciary,shifted the focus of jurisprudence research from legislative-centrism to judicial-centrism,and further demonstrated his judicial initiative on freedom of speech and his claim to justice beyond free speech —The dual judicial philosophy of restraint.As the greatest dissident in the history of the U.S.Supreme Court,Holmes' s dissenting views have drawn criticism from all sides.There are true explanations in these criticisms,such as those that believe that the “bad man” perspective is contradictory and that he has a narrow understanding of the role of law;there are also misunderstandings,such as those that group Holmes and analytical jurists just by the claim to distinguish law from morality.By analyzing the controversies of the "bad man" theory,we can more clearly understand its value and flawsWe can't deny that the "bad man" theory is indeed imperfect,but we can absorb the theoretical essence from it.After all,the "bad man" has opened the door to the law for us.The original purpose of the "bad man" theory was to teach law students a way to understand law.Now it seems that the theory still has reference value for today's legal research and legal development.Although the social background nowadays is very different from that of Holmes,it is still of practical significance to analyze the judicial value of the theory.