The Marginal Legal Liability Theory by O.W. Holmes

Marginalism is a doctrine in economics that applies methods of analysis based on operating with ‘marginal’, that is, incremental values. Evaluation is carried out in terms of the impact that a change in a certain value has on the level of utility or other significant category. In the 1870s, a ‘marginal revolution’ took place in economics. A little later, a marginal revolution is also taking place in legal theory. Deterrence from committing crimes becomes the main goal of bringing to legal liability. Punishment (legal liability) is necessary only to stop the lawful behavior, despite the fact that it is to be assessed how a change in the measure of liability by a certain amount affects the change in the level of illegal behavior. O.W. Holmes jr., especially in the works ‘The Common Law’ and ‘The Path of the Law’, begins to use marginal values for the analysis of law. With this in mind, this article analyzes the marginalist aspect of O.W. Holmes’ legal thought.