The Common Law Lecture by Oliver Wendell Holmes, Jr.
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Boston : Little, Brown, and Co. Find more information about: Oliver Wendell Holmes, Jr. Consists of an expansion of 12 lectures delivered at the Lowell Institute in Boston. Reviews User-contributed reviews Add a review and share your thoughts with other readers. Be the first. Add a review and share your thoughts with other readers.
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Oliver Wendell Holmes, Jr., The Common Law ()
After death. Inter vivos -- Successions 2. Inter vivos. Oliver Wendell Holmes " ;. All rights reserved.
Early life and Civil War experience.
Print book : English View all editions and formats. A prolific correspondent, he wrote thousands of letters and, as a judge, nearly 2, opinions and dissents, many of which remain famous. Yet despite his public persona and ample social skills, Holmes has always been a difficult subject for biographers.
He was a very private man, and toward the end of his life he burned a good number of his letters and implored friends to do the same. Holmes retired from the court in , at age 90, and died in , just two days before his 94th birthday. But Howe never completed it; by the time of his own death in , he had published only the first two volumes in a projected series, taking Holmes as far as and his appointment to the Massachusetts high court. In his discriminating, genial, and admiring new biography, Oliver Wendell Holmes: A Life in War, Law, and Ideas , Budiansky offers a credible introduction to the justice, whom he regards as a model of humanistic skepticism, someone willing to interrogate even his own most cherished premises and suppositions.
To Budiansky, Holmes is a hero of American jurisprudence, partly because he was capable of learning from his mistakes. Why should the law allow this to be? What are the implicit principles the law relies upon to permit the one and prohibit the other? Third is the question of possession. Controversies regarding possession appear in circumstances of all kinds, but they are most plain in an instance where several persons are attempting to claim possession of something that has no owner and has not yet been occupied with the rights of property--res nullius.
Holmes gives the example of whale hunting. By his recount the several different customs had prevailed on the oceans of the world resolving questions of possession of a whale. By one account, a first attack on a whale that does not maintain a harpoon in the beast does not acquire any rights of possession if a second boat appears and secures the catch.
By a different custom however the boats would have joint possession of the whale, which would entitle the first boat to claim half the proceeds of sale from the second. This raises then the question: what is the threshold after which discovery results in possession? At what point does an object without owner rightfully become the possession of a person?
Are their possessory rights in that object thereby absolute? Does possession by default result in ownership? And is there a point after which the rights of possession expire? Though seemingly abstract, questions have immediate application not only for fishermen, or the discovery of oil and mineral deposits, but also for the fields of patent, copyright, and trademark. And there are many more subject areas that Holmes wades into, but it would far overextend the length of this entry to explore them all. But I sketch these three examples, not so much to replicate what it is that Holmes is doing in his lectures on the common law what I have described here in no way mimics the pattern of Holmes' analysis.
I do it instead to illustrate the nature of the problem that he confronts. Problems of liability, tort, possession, and others that I have not named, are issues that have been assumed within the province of the law, but what it is their answers should be, and principles those answers should be formulated, are not legal in nature, they really implicate the domain of moral and political philosophy. And if the reader is interested by what may be the answer the common law provides to these real and vexing questions, Holmes book "The Common Law" is a must read.
Thought provoking as the book is, it comes with the important caveat that it is a difficult read. Holmes' affects an unusual style; neither legalistic nor philosophic, but one different, and foreign. It is both the way that he composes his sentences, and also the order of his narrative: it is dense, thick with argument, and moves along often without announcing to the reader what it is that he is doing. Arguments by reductio ad absurdum, long digressions, use of technical legal terminology, and general qualities of abstruse writing--all together these can make reading Holmes a very taxing endeavor.
There is no way to read Holmes casually; and even then, his arguments can often move in directions that are so unexpected that the rereading can be as confusing as the initial read.
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Still, Holmes has a powerful mind for analysis, and if the reader has only a mild interest in the subject matter, they may still learn a facility for analysis from merely observing how it is that he moves through his arguments. I give Holmes five stars. The book certainly qualifies for it. It is a great book, but it is also great with difficulty. Holmes argues common law arises from history and policy. Yet, having rejected formalism and natural law, he is too sanguine about the good sense of law.
Apr 17, Robert rated it it was amazing. Before this book was published, Holmes had already edited Chancellor Kent's Commentaries on American Law and written a number of useful academic articles.
Oliver Wendell Holmes, Jr., The Common Law (1881)
Had he died then, he would have been known as a respected, if little known, legal scholar. There is no denying that this is a thick book not made for drowsy, on the nightstand reading; it requires attention and a familiar background in English common law. What Holmes attempted to do was trace the common law as a rational system developed over time from judge's experiences.
What perhaps made his efforts unique and distinctly successful were the relatively frequent references to yearbooks, the very earliest English reports of the Middle Ages. This embodiment of practical, as opposed to idealistic, thinking in the law was making headway in the lateth century and this book perhaps made Holmes it icon. Although Holmes would later be known for his terse dissents which are also a better starting point if you wish to know a bit more of the mind of the man , this book in quality legal writing in its most rarefied form.
If you have some free time and want to improve your mind, I suggest cracking it open. Really, though, it is a very good book, but for me it was like reading a different language. Certainly, there was a good deal of Latin phrases and not ones in the dictionary I had handy , the writing was 19th century, so many references to the different English Monarchs by ear of their reign , and legal concepts outside of my background. So while hard, it have to say that it was a very well developed history of the laws that are in existence today.
And if law is anything, it really is a reflecti Really, though, it is a very good book, but for me it was like reading a different language. And if law is anything, it really is a reflection of history sometimes, history in the making, but the next case will build on that. Jun 19, Lindsey is currently reading it. For school Aug 24, Mike rated it liked it Shelves: law , non-fiction. He's way off on the law. Something to do with a hundred years of history, and a different jurisdiction. Sep 23, Craig Bolton added it.
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May 19, Jared Tobin rated it it was amazing. One of the most interesting topics to me, a total neophyte in the field of law, is the comparison between civil law -- i. The topic is deep and weighty, and one in which it's hard to cleanly resolve a question along the lines of which might be "better. In any case. To try and remedy my neophytism I have been on a bit of a legal series, reading this or that interesting-looking law text to try and suss out whatever intuition I can from it.
The book is a collection of lectures Holmes gave in Boston at some point around , and is written in a somewhat informal, chatty style. It is rather easy to read, but I've found it to be a difficult work to appraise. My thought on it to has improved by mulling it over and chewing on it a bit, but I suppose I actually need to review the thing eventually, so I may as well give that a shot here. One can't talk about The Common Law without some digression on the man behind it. Holmes was an enormously influential American legal scholar and jurist of the late 19th and early 20th centuries, notably having served as both Associate Justice and Acting Chief Justice of the U.
Supreme Court where he was appointed by Theodore Roosevelt , as well as a law professor at Harvard. His legacy is somewhat controversial on all sides. He has been accused by the right of perverting American jurisprudence by way of his particularly strong moral skepticism, leading to the so-called legal realism that has come to dominate modern American law. The most concentrated of these accusations came after publication of The Common Law, when Holmes was criticised heavily -- "attacked," by some accounts -- in various periodicals and legal journals by a number of Catholic lawyers who disagreed with his denouncement of Roman Catholic natural law.
What criticism I've seen of Holmes from the the left, on the other hand, has been along the lines of claiming that he was "bad" -- i. At least one modern-day progressive, writing in the Times, called Holmes "a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold," and an "aristocratic nihilist," adding that he was supposedly quoted as saying with some amusing literary flourish that he "loathed the thick-fingered clowns we call the people.
I can't help but point out that the above author in the Times condemned Holmes for who he was, rather than what he did. The criticism from the right, on the other hand, has its basis in the later American law Holmes effected.