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Holmes' Failure, Louise Weinberg
Holmes' Failure, Louise Weinberg
Michigan Law Review
I have just set down the March 1997 Harvard Law Review, with its centennial celebration of Oliver Wendell Holmes' The Path of the Law. The Path of the Law is a grand thing, in my view Holmes' best thing. But just the same, I find myself surprised that on this occasion none of its celebrants raised what has always seemed to me a weakness of the piece, and of Holmes' much earlier book, The Common Law. This is a weakness that is at once a reflection and a forecast of the failure of its author. Writers today do seem to …
Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan
Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan
Michigan Law Review
It's axiomatic that "ignorance of the law is no excuse." My aim in this essay is to examine what the "mistake of law doctrine" reveals about the relationship between criminal law and morality in general and about the law's understanding of moral responsibility in particular. The conventional understanding of the mistake of law doctrine rests on two premises, which are encapsulated in the Holmesian epigrams with which I've started this essay. The first is liberal positivism. As a descriptive claim, liberal positivism holds that the content of the law can be identified without reference to morality: one needn't be a …