Download Holmes legal theory judical restraint by Frederic R. Kellogg PDF

By Frederic R. Kellogg

Oliver Wendell Holmes, Jr., is taken into account by way of many to be the main influential American jurist. The voluminous literature dedicated to his writings and criminal inspiration, besides the fact that, is varied and inconsistent. during this examine, Frederic R. Kellogg follows Holmes's highbrow direction from his early writings via his judicial profession. He deals a clean point of view that addresses the perspectives of Holmes's best critics and explains his relevance to the modern controversy over judicial activism and discretion. Holmes is proven to be an unique criminal theorist who reconceived universal legislation as a thought of social inquiry and who utilized his insights to constitutional legislation. From his empirical and naturalist viewpoint on legislation emerged Holmes's precise judicial and constitutional restraint. Kellogg distinguishes Holmes from analytical felony positivism and contrasts him with quite a number thinkers, together with John Austin, Thomas Hobbes, H. L. A. Hart, Ronald Dworkin, Antonin Scalia, and different top felony theorists.

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1 Collected Works, 7 n. 2, 183–212. Holmes received his bachelor’s degree from Harvard College in 1861, and began a twoyear course of study at Harvard Law School in the fall of 1864. He had been discharged from the Twentieth Massachusetts Regiment on July 17, 1864. He left law school in the middle of his second year to finish his studies as a reader in the office of attorney Robert M. Morse of Boston. The Harvard law faculty consisted of three men, Theophilus Parsons, Joel Parker, and Emory Washburn, all former practitioners and none original scholars, although Parsons’s treatise on contracts made him for many generations the leading authority on the subject in America.

Frederick Schauer, “Easy Cases,” 58 So. Cal. L. Rev. 399–440 (1985). Holmes, “The Theory of Torts,” in Formative Essays, 120, and in Collected Works, 328, citing Beadel v. Perry, L. R. 3 Eq. 465, 467 (1866). Frederick Pollock would later complain that the case does not adequately elucidate the principle. : Harvard University Press, 1946), 4. ” His point is rather that case-specific decisions based on a general standard, such as “substantial damage,” are bound to vary somewhat from one case to the next, like sentences for similar crimes.

They 1 2 John Dewey, “My Philosophy of Law,” in Credos of Sixteen American Scholars (Boston: Boston Law Book, 1941), 77. See Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), 314. 26 19:20 P1: FCW 0521866502c03 CUNY525B/Kellogg Printer: cupusbw 0 521 86650 2 Holmes’s Conception of Law September 26, 2006 27 imply a deep inconsistency in our corporate belief in what law is. What difference does it make which assumption is taken? For the present purposes, we may find an operational contrast between the two views, in their different approaches to legal interpretation.

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