Book contents
- Frontmatter
- Contents
- Preface
- 1 A Time for Law
- 2 Playing King: Connections and Misconceptions
- 3 Holmes's Conception of Law
- 4 Common Law Theory Revisited
- 5 Holmes and Legal Classification
- 6 The General Theory of Liability
- 7 Morals and Skepticism in Law
- 8 Judges, Principles, and Policy
- 9 Common Law Constitutionalism
- 10 Holmes's Theory in Retrospect
- 11 Conclusion
- Appendix
- Bibliography
- Index
- Frontmatter
- Contents
- Preface
- 1 A Time for Law
- 2 Playing King: Connections and Misconceptions
- 3 Holmes's Conception of Law
- 4 Common Law Theory Revisited
- 5 Holmes and Legal Classification
- 6 The General Theory of Liability
- 7 Morals and Skepticism in Law
- 8 Judges, Principles, and Policy
- 9 Common Law Constitutionalism
- 10 Holmes's Theory in Retrospect
- 11 Conclusion
- Appendix
- Bibliography
- Index
Summary
It cannot be helped, it is as it should be, that the law is behind the times. As law embodies beliefs that have translated themselves into action, while there still is doubt, while opposite convictions still keep a battle front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field. It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong.
Justice Oliver Wendell Holmes, 1913I begin this exploration with a comment by Justice Holmes at seventy-one, speaking to the Bar Association of the City of New York. He is discussing the role of timing in judicial decisions, timing indeed in constitutional law. Holmes is alone as a legal theorist in focusing so heavily on it – on the notion of readiness or unreadiness, of a social context within which legal and constitutional rulings are made. But consider: what of court intervention in public school segregration, in prosecutorial fairness and police coercion of confessions, disparate state laws against abortion, affirmative action in employment discrimination, the constitutionality of laws barring same-sex marriage, the juvenile death penalty? Has not the context and timing of judicial rulings in these matters, for good or ill, been a large measure of their apparent justification – or lack thereof?
- Type
- Chapter
- Information
- Publisher: Cambridge University PressPrint publication year: 2006