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
7 - Morals and Skepticism in Law
Published online by Cambridge University Press: 24 July 2009
- 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
And in this activist climate (in which the government of faith seems so preeminently relevant), the skeptical style must appear as an unintelligible piece of sophistication. Government in this style is, we have seen, primarily a judicial activity; and where men are intent upon achievement, either individual or communal, judicial activity is easily mistaken for a hindrance. It abdicates exactly at the point where the activist expects an assertion of authority; it withdraws where he expects it to proceed; it insists upon technicalities; it is narrow, severe and unenthusiastic; it is without courage or conviction. Here is a style of government which recognizes a multiplicity of directions of activity, and yet expresses approval of none; which assumes imperfection and yet ventures upon no moral judgement. It sets a high value on precedent, but does not believe that the path of precedent leads to any specific destination.
Michael Oakeshott, The Politics of Faith and the Politics of ScepticismThe above passage is taken from a manuscript found after Michael Oakeshott's death in 1990 and published in 1996. Oakeshott used footnotes sparingly, but employed one here to cite a passage from Holmes. Criticizing the effort to perfect society through government power, Oakeshott referred to a speech in 1899 to the New York State Bar Association in which Holmes doubted the value of “eternal principles” in defining the limits of judicial policy making.
- Type
- Chapter
- Information
- Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint , pp. 100 - 117Publisher: Cambridge University PressPrint publication year: 2006