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1 - A Time for Law

Published online by Cambridge University Press:  24 July 2009

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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, 1913

I 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?

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Publisher: Cambridge University Press
Print publication year: 2006

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  • A Time for Law
  • Frederic R. Kellogg
  • Book: Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint
  • Online publication: 24 July 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511498640.002
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  • A Time for Law
  • Frederic R. Kellogg
  • Book: Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint
  • Online publication: 24 July 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511498640.002
Available formats
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • A Time for Law
  • Frederic R. Kellogg
  • Book: Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint
  • Online publication: 24 July 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511498640.002
Available formats
×