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Oliver Wendell Holmes, Jr. (1841-1935)

Oliver Wendell Holmes, Jr., was born in Boston, Massachusetts, and was named after his famous father, the writer and physician. After his service in the American Civil War, he entered Harvard Law School and subsequently became a professor there. He was appointed to the U.S. Supreme Court in 1902 where he remained for three decades. He became one of the founders of the “legal realism” school (White, 2006). This school is based on the conception of the judicial process whereby judges are responsible for formulating law, rather than merely finding it in law books. The judge always has to exercise choice when making a decision by deciding which principle will prevail and which party will win. According to the legal realists’ position, judges make decisions on the basis of their conceptions of justness before resorting to formal legal precedents. Such precedents can be found or developed to support almost any outcome. The real decisions are based on the judge’s notion of justness, conditioned, in part, by values, personal background, predilections, and so forth. They are then rationalized in the written opinion (Holmes, 2004 [1897]).

Holmes stresses the limits that are set to the use of deductive logic in the solution of legal problems. He postulates that the life of law has been experience and not logic and maintains that only judges or lawyers who are acquainted with the historical, social, and economic aspects of the law will be in a position to fulfill their functions properly.

Holmes assigned a large role to historical and social forces in the life of law, while deemphasizing the ethical and ideal elements. Although he admitted that moral principles are influential in the initial formulation of the rules of law, he identified morality with the taste and value preferences of shifting power groups in society. His basic philosophy was that life is essentially a Darwinian struggle for existence and that the goal of social effort was to “build a race” rather than to strive for the attainment of humanitarian ethical objectives.

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