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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.
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 nicknamed 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).
Tim Griffin has advanced degrees in philosophy and law, and has taught philosophy and legal theory courses at a number of universities. He is currently a seminarian pursuing ordination to the priesthood in the Episcopal Church.
|Lecture I||Early forms of liability|
|Lecture II||The criminal law|
|Lecture III||Torts - trespass and negligence|
|Lecture IV||Fraud, malice, and intent - the theory of torts|
|Lecture V||The bailee at common law|
|Lecture VII||Contract - I. history|
|Lecture VIII||Contract - II. elements|
|Lecture IX||Contract - III. void and voidable|
|Lecture X||Successions - I. after death - II. Inter Vivos|
|Lecture XI||Successions - II. Inter Vivos|
The standards of law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does no attempt to see men as God sees them… But a certain average of conduct… is necessary to the general welfare.He goes on to describe, with clarity that is valuable to any lawyer, judge, or student today, certain underlying standards of law that resonate powerfully in the twenty-first century - an era where individual plaintiffs try to shirk responsibility for their personal actions and corporate insiders manipulate the truth to protect their empires. For example, Holmes' discussion of the person of "ordinary prudence" reminds us that this standard is still our last bastion against the tendency of litigants to deny personal culpability as they seek damages for spilling their coffee, tripping over their own toddler in a hardware store, or falling off a ladder that was put on a pile of thawing fertilizer -- to cite a few recent cases. Holmes admonishes us that the law should punish only those who have failed to meet some obvious, "fixed" standard of ordinary prudence. The rest of us should reckon with consequences of our own faults. If we are to control the litigation crisis in our country, Holmes' standard must remain the standard in our world today.
"When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew whether those reasons are satisfactory… [S]crutiny and revision are justified."He reiterated this point in his famous speech dedicating a building at Boston University in 1897:
It is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished since, and the rule simply persists from blind imitation of the past.In The Common Law, this principle is most obvious in Holmes' discussion of the development of the form of action of "trespass on the case" to deal with unlawful takings that were beyond those of simple trespass against land, but similar such examples appear throughout the work. Often Holmes attributes lingering appendix-like formalities to the strong roots of our law not only in old English forms of action, but also in Roman and Germanic law. Holmes revels in the study and analysis of other legal systems, but he admonishes us not to hold on to the remnants of these systems too tightly.