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Plato v. Holmes: The Good Man Theory of Judging

Justice Oliver Wendell Holmes, Jr., is one of the central figures of American legal history. His fingerprints are all over virtually every core subject in the doctrinal canon. My Jurisprudence students know that one of his key contributions is the so-called “bad man” theory of the law. From his famous 1897 address, “The Path of the Law”:

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some stage of the argument, and so to drop into fallacy.

I had recent occasion to read the third book of Plato’s Republic, and here is something striking to set directly against Holmes’ bad man theory. From 409d-e (Shorey translation). Call it the good man theory of judging:

But a judge, mark you, my friend, rules soul with soul and it is not allowable for a soul to have been bred from youth up among evil souls and to have grown familiar with them, and itself to have run the gauntlet of every kind of wrongdoing and injustice so as quickly to infer from itself the misdeeds of others as it might diseases in the body, but it must have been inexperienced in evil natures and uncontaminated by them while young, if it is to be truly fair and good and judge soundly of justice. For which cause the better sort seem to be simple-minded in youth and are easily deceived by the wicked, since they do not have within themselves patterns answering to the affections of the bad…

Therefore it is, said I, that the good judge must not be a youth but an old man, a late learner of the nature of injustice, one who has not become aware of it as a property of his own soul, but one who has through the long years trained himself to understand it as an alien thing in alien souls, and to discern how great an evil it is by the instrument of mere knowledge and not by experience of his own. [Ed.: cf. “The life of the law has not been logic; it has been experience”]…

For he who has a good soul is good. But that cunning fellow quick to suspect evil, and who has himself done many unjust acts and who thinks himself a smart trickster, when he associates with his like does appear to be clever, being on his guard and fixing his eyes on the patterns within himself. But when the time comes for him to mingle with the good and his elders, then on the contrary he appears stupid. He is unseasonably distrustful and he cannot recognize a sound character because he has not such pattern in himself. But since he more often meets with the bad than the good, he seems to himself and to others to be rather wise than foolish…

[S]uch a one must not be our ideal of the good and wise judge…For while badness could never come to know both virtue and itself, native virtue through education will at last acquire the science of both itself and badness. This one, then, as I think, is the man who proves to be wise and not the bad man.”

Carter Snead

Carter Snead is the Charles E. Rice Professor of Law and the Director of the de Nicola Center for Ethics and Culture at Notre Dame Law School. Professor Snead is one of the world’s leading experts on public bioethics with extensive research that explores issues relating to neuroethics, enhancement, human embryo research, assisted reproduction, abortion, and end-of-life decision-making. Professor Snead received his J.D. from Georgetown University and his B.A. degree from St. John’s College in Annapolis, Maryland.

Lucia Silecchia

Lucia Silecchia is the Associate Dean of Faculty Research and a Professor of Law who has taught at Catholic University’s Columbus School of Law since 1991. Professor Silecchia has written extensively in the areas of environmental law and ethics, elder law, Catholic social thought, legal education, law and literature, and legal writing. In December, 2016, she began service as an Expert to the Permanent Observer Mission of the Holy See to the United Nations, assisting on matters related to the elderly, people with disabilities and ecology. Professor Silecchia received her J.D. from Yale Law School. And her B.A. degree from Queens College (C.U.N.Y.).

Luis Perez

Luis J. Perez is a Partner at McDermott, Will & Emery in its Miami office and focuses his practice on mergers and acquisitions and corporate governance matters, including international transactions, for clients operating throughout the United States and Latin America. Mr. Perez is a member of the Council on Foreign Relations and is also a senior editor for the Harvard Advanced Leadership Initiative Social Impact Review. He received his J.D. from The Catholic University of America, Columbus School of Law and his B.A. degree from Rollins College.

Michael Moreland

Michael Moreland is University Professor of Law and Religion and director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University Charles Widger School of Law where he has taught numerous courses including Torts, Evidence, Bioethics and the Law, Advanced Torts, Constitutional Law II, Justice and Rights, and seminars in Law and Religion. As a renowned scholar in these fields, Professor Moreland has published articles in leading legal, public policy, and medical journals, and his chapters on law, ethics and religion have been featured in numerous books, including titles published by Cambridge University Press and Oxford University Press. Professor Moreland received his J.D. from the University of Michigan Law School, his M.A. and Ph.D. in theological ethics from Boston College, and his B.A. degree in philosophy from the University of Notre Dame.

Veryl Miles

Veryl Victoria Miles teaches Consumer Bankruptcy and Commercial Law courses at the Catholic University of America, Columbus School of Law, where she was previously Dean from 2005-2012. Much of her extensive scholarship has been devoted to the subject of consumer bankruptcy law as well as a range of issues regarding legal education and admission to the bar. Professor Miles is a graduate of Wells College in Aurora, New York, and received her J.D. from The Catholic University of America, Columbus School of Law.

Rev. Aquinas Guilbeau, O.P.

Rev. Aquinas Guilbeau, O.P., is University Chaplain and Director of Campus Ministry at The Catholic University of America. He previously taught moral theology of the Dominican House of Studies and served as Prior of the Priory of the Immaculate Conception in Washington D.C.. Father Aquinas’s scholarship focuses on Thomas Aquinas and the common good. He entered the Dominican Province of St. Joseph in 2005, and after several years of pastoral work, received his doctorate at the University of Fribourg (Switzerland).

David Crawford

David S. Crawford is Dean and Associate Professor of Moral Theology and Family Law at the Pontifical John Paul II Institute for Studies on Marriage and Family at The Catholic University of America. Dr. Crawford’s research has focused on natural law, gender identity, homosexuality, and the anthropological implications of modern civil law. He has an S.T.D., S.T.L., and M.T.S. from the Pontifical John Paul II Institute, a J.D. from University of Michigan Law School, an M.A. in writing from the University of Iowa, and B.A. from the University of Iowa.

Gerard V. Bradley

Gerard V. Bradley is professor of law at the University of Notre Dame, where he teaches Legal Ethics and Constitutional Law. He serves on the editorial board of the American Journal of Jurisprudence, which he formerly co-edited. Professor Bradley’s scholarly work focuses on the intersection of religious liberty, Catholic social teaching, and American law. He has written many books including Unquiet Americans: U.S. Catholics and America’s Common Good (St. Augustine’s Press, 2019). He received his B.A. and J.D. from Cornell University.

Erika Bachiochi

Erika Bachiochi is a Fellow at the Ethics and Public Policy Center and a Senior Fellow at the Abigail Adams Institute. Her scholarship focuses on feminist legal theory, Catholic social teaching, and Equal Protection jurisprudence. Ms. Bachiochi’s most recent book, The Rights of Women: Reclaiming a Lost Vision, published by University of Notre Dame Press in 2021, was a finalist for the Intercollegiate Studies Institute’s Conservative Book of the Year Award. She has edited two other books, and her writings have appeared in publications such as the Harvard Journal of Law and Public Policy, The New York Times, and The Atlantic. Ms. Bachiochi has a J.D. from Boston University School of Law, an M.A. from Boston College, and a B.A. from Middlebury College.

Helen Alvaré

Helen M. Alvaré is the Robert A. Levy Endowed Chair in Law and Liberty at Antonin Scalia Law School, George Mason University, where she teaches Family Law, Property Law, and Law and Religion. Her research focuses on marriage, parenting, non-marital households, and freedom of religion. She has published several books including Religious Freedom After the Sexual Revolution: A Catholic Guide with Catholic University of America Press in 2022, and Putting Children’s Interests First in American Family Law and Policy: With Power Comes Responsibility with Cambridge University Press in 2017. In addition to her scholarship, Professor Alvaré is a member of the Holy See’s Dicastery for Laity, Family, and Life and a board member of Catholic Relief Services. She holds a J.D. from Cornell University School of Law, an M.A. in Systematic Theology from Catholic University of America, and a B.S. from Villanova University.

William Rooney

William H. Rooney is the Lumen Legis Fellow of the Center for Law and the Human Person and a Lecturer at the Columbus School of Law at The Catholic University of America. His primary areas of scholarship and teaching are law in the Catholic intellectual tradition and antitrust law. Mr. Rooney aspires to contribute to the Center in collaboration with students, scholars, and practitioners and through his experience in philosophy, law, and economics. He is especially interested in studying the human person as the imago Dei who receives the light of all law from God, the Eternal Light, Creator, and Lawgiver. Mr. Rooney has been a lifelong student of the Catholic intellectual tradition and its intersection with law and economics. He has an M.A. in Philosophy from Holy Apostles College and Seminary, a J.D. from Yale Law School, a Diploma in Law from the University of Oxford, and a B.A. from the University of Notre Dame. Mr. Rooney is a former partner of Willkie Farr & Gallagher LLP and former co-head of Willkie’s Antitrust Practice Group and practiced antitrust law for over 30 years. Mr. Rooney is a Trustee of the Dietrich von Hildebrand Legacy Project and has collaborated with the Collegium and the Portsmouth Institutes.

Louis Brown

Louis Brown is the Center’s Associate Director. Brown received a Juris Doctorate from Howard University School of Law. After law school, he first worked as a private practice attorney for a firm where he practiced labor law and commercial litigation. He later served as associate director of social concerns for a state Catholic conference. While at the conference, among other efforts, he advocated for life-affirming health care policy, co-led a legislative coalition in favor of housing non-discrimination legislation, advocated for in-state tuition for undocumented immigrants, and sought to protect the social safety net for the poor. Brown went on to become a Congressman’s legislative counsel and his liaison to the U.S. House Committee on the Judiciary. He also served as the Congressman’s primary health care staffer. 

Marc DeGirolami

Marc O. DeGirolami is the inaugural St. John Henry Newman Professor of Law and Co-Director of the Center for Law and the Human Person. His publications include The Tragedy of Religious Freedom (Harvard University Press) and articles in the Yale Law JournalNotre Dame Law ReviewWashington University Law ReviewConstitutional Commentary, Legal Theory, and the Boston College Law Review, among others. Before joining the Columbus School of Law in 2024, he was the Cary Fields Professor of Law and the Co-Director of the Mattone Center for Law and Religion at St. John’s Law School. He has also been a Visiting Professor and Visiting Fellow at Princeton University’s Department of Politics, as well as a Visiting Professor at Notre Dame Law School and The Catholic University of America Columbus School of Law. His professional experience includes service as an Assistant District Attorney in Cambridge, Massachusetts.

Elizabeth Kirk

Elizabeth Kirk is the Center’s Co-Director and Assistant Professor of Law at The Catholic University of America Columbus School of Law. She joined the Columbus School of Law after serving as the Director and Kowalski Chair of Catholic Thought at the Institute for Faith and Culture at the St. Lawrence Catholic Campus Center at the University of Kansas. From 2005 to 2010, she served as the Associate Director of the Notre Dame Center for Ethics and Culture, an interdisciplinary center inspired by the teachings of St. Pope John Paul II and dedicated to bringing the Catholic moral, intellectual and cultural tradition to bear upon the formation of students. From 2012 to 2016, Kirk served as a resident fellow in cultural and legal studies at the Stein Center for Social Research at Ave Maria University.