The Common Law (Google eBook)

Front Cover
The Lawbook Exchange, Ltd., 1881 - History - 422 pages
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The Common Law is Oliver Wendell Holmes' most sustained work of jurisprudence. In it the careful reader will discern traces of his later thought as found in both his legal opinions and other writings. At the outset of The Common Law Holmes posits that he is concerned with establishing that the common law can meet the changing needs of society while preserving continuity with the past. A common law judge must be creative, both in determining the society's current needs, and in discerning how best to address these needs in a way that is continuous with past judicial decisions. In this way, the law evolves by moving out of its past, adapting to the needs of the present, and establishing a direction for the future. To Holmes' way of thinking, this approach is superior to imposing order in accordance with a philosophical position or theory because the law would thereby lose the flexibility it requires in responding to the needs and demands of disputing parties as well as society as a whole. According to Holmes, the social environment--the economic, moral, and political milieu--alters over time. Therefore in order to remain responsive to this social environment, the law must change as well. But the law is also part of this environment and impacts it. There is, then, a continual reciprocity between the law and the social arrangements in which it is contextualized. And, as with the evolution of species, there is no starting over. Rather, in most cases, a judge takes existing legal concepts and principles, as these have been memorialized in legal precedent, and adapts them, often unconsciously, to fit the requirements of a particular case and present social conditions.
  

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User Review  - keylawk - LibraryThing

Holmes spent the first ten years of his service on the Supreme Court known as "The Dissenter", and for most of the chamber discussion was literally holding his head in his hands in utter despondency ... Read full review

Contents

I
1
II
39
III
77
IV
130
V
164
VI
206
VII
247
VIII
289
IX
308
X
340
XI
371
XII
411
Copyright

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Page 1 - The life of the law has not been logic ; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do 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 with as if it contained only the axioms...
Page 7 - If an ox gore a man or a woman, that they die : then the ox shall be surely stoned, and his flesh shall not be eaten ; but the owner of the ox shall be quit.
Page 5 - The customs, beliefs, or needs of a primitive time establish a rule, or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found...
Page 2 - The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient ; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

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About the author (1881)

A devoted physician and professor of anatomy and physiology at Harvard College for 35 years, Holmes used his literary talents to enhance his life, not to define it. Literary fame came relatively early to Holmes, when in 1830 he published a few lines of verse in a Boston newspaper in which he objected to the dismantling of the frigate Constitution, which had served its nation victoriously in the Tripolitan War and the War of 1812. The poem, "Old Ironside," was a great success, both for Holmes as a poet and in saving the frigate. However, his medical studies left Holmes little leisure for literature for the next 25 years. That changed, however, with the publication of an animated series of essays in the newly founded Atlantic Monthly in 1857 and 1858, and afterwards published in book form as The Autocrat of the Breakfast-Table (1858). Not only did these essays help secure the magazine's success, but also brought Holmes widespread popularity. Holmes as an essayist has been compared with all of the great writers in that genre, from Michel de Montaigne to Charles Lamb, but his compositions are closer to conversational than to formal prose. Later volumes---The Professor at the Breakfast-Table (1860), The Poet at the Breakfast-Table (1872), and Over the Teacups (1891)---extend the autocrat's delightfully egotistical talks, mainly of Boston and New England, in which Holmes was, by turns, brilliantly witty and extremely serious. During these same years, he also wrote three so-called medicated novels: Elsie Venner (1861), The Guardian Angel (1867), and A Mortal Antipathy (1885). Though undistinguished as literary documents, they are important early studies of that "mysterious borderland which lies between physiology and psychology," and they demonstrate that Holmes was advanced in his conception of the causes and progress of neuroses and mental disease. Many of Holmes's best poems appeared first in his "Breakfast Table" series. "The Deacon's Masterpiece, or the Wonderful One-Hoss Shay," "The Chambered Nautilus," and "The Living Temple" all may be found in The Autocrat of the Breakfast-Table (1858). But the bulk of Holmes's poetry is occasional verse, written "on command" to celebrate "the affairs of men and nations." Indeed, so many events are commemorated in his verses that a social history of the times---at least in Boston---may be read in his complete poems. Much more lasting as literary artifacts, however, are his short, humorous verses, like "The Ballad of the Oysterman" (1830), "The Last Leaf" (1831), and "My Aunt" (1831).

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