The Legal Realism Mind Of Mr. Justice Holmes

Oliver Wendell Holmes(Oliver Wendell Holmes Jr.,1841-1935), associate justice of the U.S. Supreme Court from 1902 to 1932. Holmes born on March 8, 1841 in Boston, Massachusetts and died on March 6, 1935 in Washington D.C.. Holmes was the son of a prominent Boston physician and literary figure. After graduating from Harvard College, he enlisted in the Union Army during the Civil War.He was seriously wounded three times. Holmes graduated from Harvard Law School after the war, then toured Europe before beginning a law practice with his brother. He also wrote scholarly articles for the American Law Review and lectured on legal history and constitutional law at Harvard. He received more satisfaction from his research than he did from the practice of law in Boston. In 1881, he published The Common Law, a collection of lectures he had delivered; the book became a classic in legal philosophy. In the book, Holmes argued that law was a "living, evolving organism" that changes along with society. "The life of the law has not been logic," he wrote, "it has been experience." Holmes felt that the law did not limit activities based on words written long ago, but had to adapt to social changes over the years.Holmes stated his case so brilliantly that he earned wide respect as a law scholar. Impressed, Harvard University hired him as a professor of law in 1882. But Holmes taught for less than a year before he was hit by "a stroke of lightning which changed the whole course" of his life. The governor of Massachusetts offered him the job of associate justice of the Massachusetts Supreme Court. For the next 20 years, his sharp mind and cleverness dominated the Massachusetts Court. Holmes, who was named chief justice of the court in 1899, proved exceptionally skillful in dealing with the mostly routine cases that came before him.In August, 1901, at the age of sixty, Holmes ascended to the United States Supreme Court. Although Holmes was a Republican, he was not an automatic ally of Roosevelt on the court. Holmes's dissent in Northern Securities Co. v. United States caused Roosevelt to denounce his appointee as a coward. It was not the first time that Holmes registered a dissent. Unlike other justices, Holmes did not hesitate to hold to his positions when in the minority. He was a strong defender of free speech; despite his defense of both free thinking and free speech, he showed little patience for people he found to be less intelligent or accomplished than himself. Holmes served on the Court until he was 90 in 1932, when he retired. Holmes was labeled as "America's most respected man of law", lived three more years before meeting his death on March 6, 1935, at the age of 94.The mind of law of justice Holmes lies in his speeches, essays, letters, and judicial opinions. The Common Law upset legal tradition by arguing that the law is not an unchanging set of abstract principles as most scholars believed. Rather, Holmes described how law changes to respond to the changing conditions and needs of society. In one of his typically provoking statements, he wrote, "The life of the law has not been logic; it has been experience."Based on the basic pragmatistic standpoint, "The life of the law has been experience", Holmes elaborates the general principles in the traditional realm of common law, such as ones in Liability of law, Criminal Law, Tort, Possession, Contract, etc.In January, 1897, Holmes delivered his famous address -the path of law, at the dedication of the new hall of the Boston University School of Law. This is the most famous address in his whole life. It has great influence in western history of law, especially in American jurisprudence. In the path of law, he said,'The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts','The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law'.In the theory of prediction, Holmes predicts what the courts will do in fact from the point of view of a bad man and attracts the public's notice. His theory transforms jurisprudence from centered on the course of legislation to centered on the course of judicature.Based on his pragmatistic standpoint, Holmes puts forward the separation theories between law and morals. He thinks the law has its own meaning and mixture of law and moral will cause disorder of law activities. But there are antinomies in Holmes's theory. This view put forward by Holmes is connected with his terrible career in the civil war.In 1902-1932, During the period of Holmes's acting as justice of the United States Supreme Court, he announced a series of judicial opinions to elaborate his standpoint. The Lochner v. New York case of 1905 is the famous case which Holmes has participated. In the case, Holmes believed that the law was flexible and could adapt to the changes in society. Further, he insisted that the Supreme Court had no business deciding whether a law was a good idea or a poor one. The elected officials of Congress and the state legislatures could debate the wisdom of their laws. The Court's role was to make sure the laws abided by the Constitution. "There is no constitutional prohibition against legislators making fools of themselves," he insisted. Holmes repeatedly disagreed with the Court's restrictions against legislatures.In his most daring opinion while on the Massachusetts Court, Holmes came out in favor of the rights of labor unions. He declared that a strike was "a lawful instrument in the universal struggle for life." Holmes fought this same battle in several other Supreme Court cases involving labor union activities. When the Court ruled that state legislatures did not have the power to protect a worker's right to join a union, Holmes again argued that the judges were overstepping their bounds and explained, "Whether in the long run it is wise for the working men to enact legislation of this sort is not my concern, but I am strongly of the opinion that there is nothing in the Constitution of the United States to prevent it." Holmes again took his colleagues to task in the Adkins v. Children's Hospital case of 1923. There the court ruled that a law creating a minimum wage for women was illegal. Arguing for the flexibility of law, Holmes stated that if experts in such matters thought this law a good course of action for society, then it ought to stand.The most memorable of his opinions were those attempting to define the line between individual rights and the rights of society. His thinking on this issue demonstrated his struggle with the flexibility of the law. Holmes hated the notion of absolute ideas—those that were considered true for all time and in all cases. As a result, he tried to fashion flexible guidelines in deciding cases about individual rights. Schenck v. United States was such a case. In his most famous majority decision, Holmes upheld Schenck's conviction. Freedom of speech, according to Holmes, did not grant the right to say anything. In the case of Abrams v. United States, The Supreme Court, using Holmes's standard, upheld the conviction. "But when men have realized that time has upset many fighting faiths, they may come to believe, even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade of ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market."The history background of Holmes's theory is various. After the American Civil War, American economy developed quickly. At the same time, social problems became more and more. The ideologies of the United States experienced from assurance to variety, from old individualism to new individualism, from laissez faire capitalism to social control. And a great changes occured in the field of politics, economy, culture, philosophy, religion etc. Holmes's standpoint was a reflection of this varieties in law realm. Pragmatism philosophy is also a kind of philosophy of this period. In the influence of pragmatism philosophy, Holmes's standpoint developed to be a mew law genre- legal realism.In short, Holmes is a very controversial finger in occident law circles. The evaluation about he is various. The writer tries to evaluate Holmes from various angles of occident and Orient people. In the eyes of occident people, Holmes is a revolutionaries, liberalist and pragmatist in the realm of law, and a mechanist of law theory. In the eyes of oriental people, he is a combination of great law philosopher and judge and is an incarnation of idealism and skepticism. The writer makes an evaluation to Holmes in three aspects. Firstly, macroscopic eyeshot through the door of law. Secondly, the necessity of doubt in law ideas. Thirdly, Holmes over-emphasized intuition but ignored reason.