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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.
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The Common Law (Paperback)
The Perfect Library; Oliver Wendell Holmes Jr.
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R518
Discovery Miles 5 180
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Ships in 10 - 15 working days
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"The Common Law," a great legal classic, was written by noted
Supreme Court Justice Oliver Wendell Holmes, Jr. in 1881. The book
is about common law in the United states, including torts,
property, contracts, and crime. The substance of "The Common Law"
is a series of lectures on the various common law subjects:
criminal law, property law, contracts, consideration, torts,
negligence, bailments, trespass, etc. What makes this book so
important is not that the lectures were a summary of the current
state of the law at the time Holmes spoke in 1881, but rather
because Holmes insightfully explains how they got to be that way.
Two tenets of early 20th century jurisprudence that Holmes
propounded (and was influential in writing into law when he was
later appointed to the Supreme Court of Massachussetts, and later
of the United States) can be identified in this work: legal
positivism and legal realism. Though a little tedious for
non-lawyers, "The Common Law" illustrates some interesting points
as Oliver Wendell Holmes, Jr. addresses the fluid basis for our
legal system.
(Illustrated: Contains extensive images and photographs, with
scholarly explanations, including Holmes's handwritten notes in the
margins of his book and the original admission ticket to his 1880
lectures.) Modern, accurate, and legible edition of the classic
work by Oliver Wendell Holmes, Jr., analyzing the concept of rules
and the development of common law in the United States and England
over ten centuries. Presented in a clear and affordable format, yet
with original pagination embedded to allow accurate citation or
uniform references for classroom use. Includes photographs and rare
images, Holmes's original Index, Preface and detailed Contents
(features missing in many prior editions), and readable typeface.
Holmes wrote this work from his famous 1880 series of lectures in
Boston on the life of the law, the use of history, and the basics
of torts, contracts, crime, and property law. Law, he wrote, is a
response to the felt necessities of the time. And in the process he
wrote a book that is considered timeless. This modern edition of
the classic book features an explanatory introduction and
biographical summary by Steven Alan Childress, J.D., Ph.D., a
senior law professor at Tulane University.
Building on the pragmatic conception of law he introduced in his
1881 book 'The Common Law, ' Oliver Wendell Holmes, Jr. -- by 1897
a jurist on Massachusetts' highest court and soon to be an
Associate Justice of the U.S. Supreme Court -- explored the limits
and sources of law, as well as "the forces which determine its
content and growth." This presentation is seen as laying down the
gauntlet to legal scholars and judges in what would be known as the
emerging "legal realism" movement. Later legal thinkers like Pound,
Llewellyn and Douglas followed his lead, and that lead is seen most
clearly in this essay. By the time of this pithy and accessible
writing, Holmes had crystallized and clarified that conception of
law which he had, in introducing his earlier book, described in the
famous statement "the life of the law is not logic: it is
experience." Taking that observation to the next level, this essay
made it clear that judges make law, not simply finding it in books
-- and they must draw on practical effects and ends in declaring
legal rules, not simply reasoning from precedent. He does not
hedge: it is a "fallacy" to think that "the only force at work in
the development of the law is logic." More controversially, this
essay makes a powerful distinction between law and morality. Law is
more about what judges do, and how people react to that, than some
lofty sense of ethics, he suggests. But is his figure of the "bad
man" a hero or a cautionary tale? A realistic way to look at law
and social control...or a precursor to Hitler and Stalin?
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The Common Law (Paperback)
Oliver Wendell Holmes Jr.; Introduction by Steven Alan Childress; Edited by Steven Alan Childress
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R488
Discovery Miles 4 880
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Ships in 10 - 15 working days
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Oliver Wendell Holmes, Jr. compiled this master work in 1881 from
his famous lectures in Boston on the origins, reasoning, and import
of the common law. "The life of the law has not been logic: it has
been experience." It jump-started legal realism and established law
as a pragmatic way to solve problems and make policy, not just a
collection of rules. It has stood the test of time as one of the
most important and influential studies of law and the development
of legal rules. This book is interesting for a vast audience, and
considered one of the most original books on U.S. law, for
historians, students, political scientists, and those who follow
the concept of rules. It is also a recommended read before law
school. A new edition of Holmes' classic study of the judicial
development of law. Includes 2010 Foreword by Steven Alan
Childress, J.D., Ph.D., law professor at Tulane. Embeds correct
footnote numbers and original page numbers for citing. Carefully
reproduced from the original book but in a modern, readable format.
Quid Pro's Legal Legends Series offers high-quality editions of
legal scholarship, in print and digital formats. In addition, each
book contains a scholar's new Foreword and biographical summary, to
place the work in historical context and explain it to the reader.
I take it for granted that no hearer of mine will misinterpret what
I have to say as the language of cynicism. The law is the witness
and external deposit of our moral life. Its history is the history
of the moral development of the race. The practice of it, in spite
of popular jests, tends to make good citizens and good men. When I
emphasize the difference between law and morals I do so with
reference to a single end, that of learning and understanding the
law.
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