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By Root 670 0

of the consequences of breaking them. If you want to know what law is, says Holmes, you have to look at it from the perspective of the bad man. No pangs of conscience limited our bad man, Keith Richards, in his public drug use. But he did have every desire to avoid the consequences of “breaking the law.” Holmes said that the study of the law is just the study of prediction. He wrote that the only thing he meant by law was the “hypostatis of a prophecy” (by the bad man or his lawyer) of what the courts will in fact do (“The Path of the Law,” in Collected Works, Volume 3, p. 391). This means that the bad man turns the prediction of the behavior of the judge or jury into a thing, and that thing is the law. Keith Richards was a prophet in that he predicted the consequences of his actions. This is all we mean by law, according to Holmes.

The positivist conception of law overemphasizes the primary role of the legislative body, by conceiving of law as decreed in a top-down way. What mattered to Richards was what the judge would in fact do, not what some statute said. The judge uses the statute as one among many motives for his decision. What matters to the bad man is how the judge decides the case, and this is what Richards had to predict. Richards, as we have seen, had every reason to predict a bad outcome. When The Stones played in San Antonio, they were told they’d be arrested if they erected a huge blow-up phallus on stage. They predicted that this was in fact the case, and did not raise the “giant inflatable cock” on stage (Life, p. 12). I told you sex was their sin.

Holmes did think law and morality were related. He thought that the law was the external deposit of our moral life. In this way, we see why the officers of the law had it out for The Stones. The history of race-relations, segregation, and sexual mores were externally deposited in Arkansas law, and this history was embodied in the desire to lock up Richards. The original sin of rock’n’roll became crystallized in the effort to prosecute and convict “the most dangerous rock band in the world.”

Holmes showed how the law in its mature form was expressed by external standards. The police needed to detect some external evidence serving as a sign to detain Richards. Lacking x-ray vision into the car panels and trunk, and predicting that the judge would not admit into court evidence found by tearing up the car, they were left with only a hunting knife and spinning tires. However, they eventually found that briefcase, and the judge’s behavior hinged on whether it was obtained with probable cause. The police needed some external sign to infer that more nefarious activities were hidden in the truck.

Legal pragmatists, such as Holmes, admit that there is a large amount of indeterminacy in the law, while other theorists are uncomfortable with indeterminacy and think legal decisions fit neatly into right and wrong, correct and incorrect. These “formalists” insist that the law is an internally consistent chain of logical decisions and that a judge’s decision simply finds the relevant general principle and applies it to the specific case. But the context of Richards’s arrest illustrates just how much indeterminacy is at work in the law. It would be naive to think that it did not matter that they were a famous British rock band with a history of arrests in Europe for drug possession, that they were in fact in the rural south, and that fame and promotion might accompany those responsible for their conviction in the states.

Pragmatists hold, correctly I think, that the origin of the law is in custom and social practice, and so the origin of the laws emerged organically alongside social customs. In Fordyce it was not customary to spend forty minutes in the john, and this transgression of custom was enough for the staff to call the cops. Another pragmatist, John Dewey, emphasized this customary origin of the law. Social activities, such as playing music in public venues, should be conceived as interactions and ongoing processes. Laws, such as prohibitions against inflating giant