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The Common Law (Hardcover)
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The Common Law (Hardcover)
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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.
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