Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint

In this study, Frederic R. Kellogg follows Holmes's intellectual path from his early writings through his judicial career.

Frederic R. Kellogg (Author)

9780521321921, Cambridge University Press

Paperback, published 30 June 2011

222 pages
22.9 x 15.2 x 1.3 cm, 0.33 kg

"...Kellogg does an excellent job of laying out some of the great challenges for philosophers of law and of showing that one great American figure was more consistent in his intelligent response to these challenges than has been recognized thus far in scholarship.... Kellogg reveals several ways in which Holmes’s work has insight to offer for contemporary debates in legal philosophy. Philosophers of law, of pragmatism, and of politics will benefit from Kellogg’s in-depth study and defense of Holmes."
--Eric Thomas Weber, University of Mississippi, The Pluralist

Oliver Wendell Holmes, Jr, is considered by many to be the most influential American jurist. The voluminous literature devoted to his writings and legal thought, however, is diverse and inconsistent. In this study, Frederic R. Kellogg follows Holmes's intellectual path from his early writings through his judicial career. He offers a fresh perspective that addresses the views of Holmes's leading critics and explains his relevance to the controversy over judicial activism and restraint. Holmes is shown to be an original legal theorist who reconceived common law as a theory of social inquiry and who applied his insights to constitutional law. From his empirical and naturalist perspective on law, with its roots in American pragmatism, emerged Holmes's distinctive judicial and constitutional restraint. Kellogg distinguishes Holmes from analytical legal positivism and contrasts him with a range of thinkers.

1. A time for law
2. Playing king
3. Holmes's conception of law
4. Common law theory revisited
5. Holmes and legal classification
6. The general theory of liability (and its critics)
7. Morals and skepticism in law
8. Judges, principles, and policy
9. Common law constitutionalism
10. Holmes's theory in retrospect.

Subject Areas: Jurisprudence & philosophy of law [LAB], Law [L], Philosophy [HP]