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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.
A scathing attack on the idea of American Puritanism and the
doctrine of Original Sin, Elsie Venner is the story of a young
woman who, having been poisoned by rattlesnake venom while in the
womb, emerges into the world half human, half snake. An intelligent
and wealthy heiress, she repulses and fascinates those around her
in equal measure. She falls in love with a young doctor, but her
serpentine characteristics prevent him from returning her
affection; her cousin is attracted by her money and, wrongly
perceiving the doctor as his rival, determines upon his downfall.
First published in 1861, this is a wonderfully inventive novel that
meticulously dissects for the reader the social mores of small-town
America in the middle of the nineteenth century, as viewed through
the prism of Olive Wendell Holmes' powerful imagination.
This fine collection is accompanied by an essay by Sir John Pollock
that skillfully places the writers' ideas in the perspective of
recent experience. A crucial document for lawyers, the letters are
also delightful reading.
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