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19th and 20th centuries

Oliver Wendell Holmes Jr.

1841–1935 · United States · Judge of the US Supreme Court

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Read this first. These are short summaries of large lives and bodies of work, chosen to give a first map of legal thought, not a ranking. Dates are the standard ones, with 'c.' or 'active' where they are uncertain. We paraphrase and never quote, and each summary simplifies. Read the original works before you cite anyone. This is general information, not legal advice.

1800 BCAD 2000

Life and ideas

Oliver Wendell Holmes Jr. fought and was wounded in the American Civil War, then became a lawyer, a professor, a judge of the Massachusetts Supreme Judicial Court and, from 1902 to 1932, a justice of the United States Supreme Court. In The Common Law (1881) he wrote that the life of the law has not been logic but experience, and in his speech The Path of the Law (1897) he urged lawyers to see law as the 'bad man' does: as a prediction of what courts will do, not as a set of moral rules. Judges, he said, make law and should be open about the policy that guides them. On the Court he wrote short, forceful opinions, including dissents on free speech that later became law. He is called the father of American legal realism.

The big idea

The life of the law has been experience rather than logic, and law is a prediction of what the courts will do. A 'bad man' who cares only for consequences shows what the law really is.

Main work

The Common Law (1881); The Path of the Law (1897)

Legacy

The intellectual father of American legal realism.

The school of thought

  • American Legal Realism: Law is what courts actually do; judges are people, and their reasons are not only the rules.
← Earlier: Sir Henry MaineLater: Eugen Ehrlich →

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