Chapter

: Holmes and Judicialized Liberalism

in The Cloaking of Power

Published by University of Chicago Press

Published in print June 2003 | ISBN: 9780226094823
Published online March 2013 | e-ISBN: 9780226094830 | DOI: http://dx.doi.org/10.7208/chicago/9780226094830.003.0011
: Holmes and Judicialized Liberalism

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This chapter discusses the writings and judicial views of Oliver Wendell Holmes Jr. and the extraordinary influence he achieved in twentieth-century legal discourse that originated in part from the efforts by Montesquieu and Blackstone to moderate law by splitting judicial procedure from jurisprudential essence. A clear concept of judicial legislating yielded by Holmes's uncertainty about any fixed legal principle was intended to achieve a new social and legal order, one more adjusted to either current majority will or to be an evolutionary progress of the species. Holmes avoided Montesquieu's constitutionalism while appreciating other ends or aims of his philosophy, generally viewing it as a cosmopolitan, historicist humanism that survived its outdated efforts as a science of politics. The Holmesean realism is criticized as being provided by both Montesquieuan jurisprudence and the classic common-law spirit because it poses severe obstacles that perpetuate the rule of law in a sound constitutional order.

Keywords: Oliver Wendell Holmes Jr; jurisprudential essence; Montesquieu; Holmesean realism; common-law spirit

Chapter.  11276 words. 

Subjects: Political Theory

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