The Common Law

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The Lawbook Exchange, Ltd., 1881 - History - 422 pages
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The landmark work that influenced the development of modern American law. Originally published: Boston: Little, Brown & Co., 1881. xvi, 422 pp. This landmark work, which, according to Winfield, "blew fresh air into lawyer's minds encrusted with Blackstone and Kent," was a decisive influence on sociological jurisprudence, legal realism and the general development of American law in the twentieth century. (Percy H. Winfield, Chief Sources of Anglo-American Law 38.)

Rejecting the reigning positivist ethos of the nineteenth century, Holmes proposed that the law was not a science founded on abstract universal principles but a body of practices that responded to particular situations. This functionalist interpretation led to his radical conclusion that law was not discovered, but invented. This theme is announced in the famous quote at the beginning of Lecture I: "The life of the law has not been logic: it has been experience."

 

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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
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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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