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					Oliver Wendell Holmes
   Oliver Wendell Holmes and the Great Rebellion

Who is Holmes?

-- Probably the greatest Supreme
Court justice, next to John Marshall
-- Fought in the Civil War
-- Became a lawyer and a law
professor

-- Wrote an extremely important treatise called The Common
Law in 1881.
-- Was appointed to the Supreme Court by Teddy Roosevelt in
1902 (served until 1932, at the age of 90, which is a record)
   Oliver Wendell Holmes and the Great Rebellion


 “The Common Law”

-- Holmes was very much against classical legal thought
-- was very much against a-priori judging
-- his historic opening volley in The Common Law
   Oliver Wendell Holmes and the Great Rebellion

Holmes – the common law
 “The Common Law”
“The life of the law has not been logic: it has been experience.
                                                 been experience.
                        of the time, the prevalent moral and
                                  time, the prevalent moral
The felt necessitiesmuch against classical legal thought and
 -- Holmes was very
            theories,
political theories, intuitions of public policy, avowed or
 -- was very much the prejudices judging
unconscious, even against a-priori which judges share with their
 -- his historic opening volley in The Common to
fellow-men, have had a good deal more Lawdo than the
syllogism in determining the rules by which men should be
governed. The law embodies the story of a nation's
development through many centuries, and it cannot be dealt
                                 the axioms and corollaries
with as if it contained only the axioms and corollaries of a
book of mathematics. In order to know what it is, we must
 Law what it has been, and what it tends out. Law We must
know as autonomous contemplation isto become. in the
 form of an a priori is out
alternately consult history and existing theories of legislation.”
   Oliver Wendell Holmes and the Great Rebellion

Holmes Policy Evolution???
Law as – the common law
 “The Common Law”
“The life of the law has not been logic: it has been experience.
                                                 been experience.
                        of the time, the prevalent moral and
                                  time, the prevalent moral
The felt necessitiesmuch against classical legal thought and
 -- Holmes was very
            theories,
political theories, intuitions of public policy, avowed or
 -- was very much the prejudices judging
unconscious, even against a-priori which judges share with their
 -- his historic opening volley in The Common to
fellow-men, have had a good deal more Lawdo than the
syllogism in determining the rules by which men should be
governed. The law embodies the story of a nation's
development through many centuries, and it cannot be dealt
                                 the axioms and corollaries
with as if it contained only the axioms and corollaries of a
book of mathematics. In order to know what it is, we must
                          and what it tends to
know what it has been, and what it tends to become. We must
alternately consult history and existing theories of legislation.”
The Implication --


           In:                       Out:

       Social Needs                   Logic
      Popular Morals                 Axiom
      Policy Intuition              Corollary
                                   Mathematics
      Judges don’t FIND law;
        They MAKE IT UP.            Syllogism

  They make it what they want it
             to be.
 The Implication --


              In:                        Out:

         Social Needs                     Logic
        Popular Morals                   Axiom
        Policy Intuition                Corollary
       What is being rejected:         Mathematics
1. A-priori decision format (“Nature    Syllogism
says… Logic says”)
2. “Law” as an autonomous, self-
contained method.          Formalism
3. The means are not the ends!
         Oliver Wendell Holmes and the Great Rebellion


       The “Realists”
   -- 20 years after Holmes, a group of legal academics will come
   along and call themselves “The Realists.”
   -- By and large, they basically advocated the same thing that
   Holmes did
   (your law professors will think far too much of “the realists” and
   not enough of Holmes).
   I’m in the other camp. The realists did not make a genuine
   intellectual contribution that Holmes didn’t make first, except
   for, of course, sociological jurisprudence (discussed later).

Time

				
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posted:2/6/2011
language:English
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