Justice Oliver Wendell Holmes Theory of Law

This research paper explores the philosophical thinking of

Oliver Wendell Holmes, Jr. (b. 1841, d. 1935), a Justice of the United States Supreme Court between 1902 and 1931, a distinguished jurist and prolific writer and speaker, concerning law and the relationship between law and morality and the way in which Holmes applied these concepts during his long career on the bench. Since his death, Holmes has been perceived in certain quarters by natural law theorists and others as having propagated a legal philosophy which is insufficiently moored in the moral underpinnings of Western and American civilization and as a somewhat unprincipled agnostic who took an unnecessarily harsh view of American society and the role and evolution of the law in mediating its conflicts.

However, a full reading of Holmes' philosophy, including his rulings and dissents on the Supreme Court, reveals that his views on law and morality were consistent with the finest American legal traditions, broke new ground in many important areas and advanced the cause of civilization. Holmes had a distinctive theory of the sources of the common law, which was shaped by the early influences on his life, and the raging controversies and intellectual debates of his time. His approach was distinctively American and pragmatic, but it also was deeply rooted in the need for the law to move ahead to meet the emerging needs of the nation.

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power is not coextensive with any system of morals" (Holmes, "The Path" 43). He said the following: One of the many evil effects of the confusion about legal and moral ideas . . . is that theory is apt to get the cart before the horse, and to consider the right or the duty as something existing apart from and independent of the consequences of its breach . . . a legal duty so called is nothing but a prediction that a man does or omits certain things he will be made to suffer in this way or that way by judgment of the court (Holmes, "The Path" 41-42). Holmes' skepticism or relativism concerning the dangers of deciding cases on the basis of a priori moral principles was in keeping with the intellectual spirit of his age. During his lifetime, the findings of scientists such as Charles Darwin, Albert Einstein and Sigmund Freud challenged accepted notions of a fixed and orderly Newtonian universe governed by immutable physical laws. He said that "the law was not the place for the artist or the poet. The law is the calling of thinkers" (Holmes, "The Profession" 67). He said that "an ideal system of law should draw its postulates and its legislative justification from science" (Holmes, "Learning" 72). Felix Frankfurter summed up H

Category: Government - J