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Harvard Law Review



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Feminist Legal Theory, Feminism, Oliver Wendell Holmes, The Path of the Law


What common ground can be found between modern feminist legal theory and a century-old essay advocating understanding the law from the perspective of the "bad man"? The question admits of no simple answer. Feminists, including myself, might agree with some irony that "[i]f you want to know the law and nothing else, you must look at it as a bad man" but would add that this is precisely the problem. Of course, Holmes does not use the concept of the bad man in a feminist sense to suggest that the law empowers the bad man at the expense of women. Indeed, except for a passing reference to Mrs. Quickly's misplaced interest in headwear, he does not mention women at all. Nonetheless this essay reveals common ground between Holmes's thought and feminist legal theory that is both wide and significant. Feminism's departures from The Path - and there are many - reveal just as readily our different destination.