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The Path Of The Law
     

The Path Of The Law

by Steven Alan Childress
 
Building on the pragmatic conception of law he introduced in his 1881 book 'The Common Law,' Oliver Wendell Holmes, Jr. -- by 1897 a jurist on Massachusetts' highest court and soon to be an Associate Justice of the U.S. Supreme Court -- explored the limits and sources of law, as well as "the forces which determine its content and growth." This presentation is seen as

Overview

Building on the pragmatic conception of law he introduced in his 1881 book 'The Common Law,' Oliver Wendell Holmes, Jr. -- by 1897 a jurist on Massachusetts' highest court and soon to be an Associate Justice of the U.S. Supreme Court -- explored the limits and sources of law, as well as "the forces which determine its content and growth." This presentation is seen as laying down the gauntlet to legal scholars and judges in what would be known as the emerging "legal realism" movement. Later legal thinkers like Pound, Llewellyn and Douglas followed his lead, and that lead is seen most clearly in this essay.

By the time of this pithy and accessible writing, Holmes had crystallized and clarified that conception of law which he had, in introducing his earlier book, described in the famous statement "the life of the law is not logic: it is experience." Taking that observation to the next level, this essay made it clear that judges make law, not simply finding it in books -- and they must draw on practical effects and ends in declaring legal rules, not simply reasoning from precedent. He does not hedge: it is a "fallacy" to think that "the only force at work in the development of the law is logic."

More controversially, this essay makes a powerful distinction between law and morality. Law is more about what judges do, and how people react to that, than some lofty sense of ethics, he suggests. But is his figure of the "bad man" a hero or a cautionary tale? A realistic way to look at law and social control...or a precursor to Hitler and Stalin?

Product Details

ISBN-13:
9781610279857
Publisher:
Quid Pro, LLC
Publication date:
04/25/2011
Pages:
54
Product dimensions:
5.50(w) x 8.50(h) x 0.11(d)

Meet the Author

Oliver Wendell Holmes, Jr. (1841-1935) served as chief justice of the Massachusetts Supreme Court and as an associate justice of the U.S. Supreme Court. He was nick-named the "Great Dissenter" because of his many dissenting opinions. Holmes is also the author of Kent's Commentaries on the Law (1873) and "The Path of the Law" (1897).

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