Via the Britannica Facebook feed for today March, 8, 2010, we are informed that the great judge Oliver Wendell Holmes, Jr., also known as “The Great Dissenter” was:
“born March 8, 1841, Boston died March 6, 1935, Washington, D.C.
Oliver Wendell Holmes, Jr. [Credit: Encyclopædia Britannica, Inc.] Justice of the United States Supreme Court, U.S. legal historian and philosopher who advocated judicial restraint. He stated the concept of “clear and present danger” as the only basis for limiting free speech.”
Read the rest at the Britannica Online.
The Wikipedia has some paragraphs which contain some of the better known of Holmes’ famous quotes:
“According to Holmes, ‘men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite….’
As a justice of US Supreme Court, Holmes introduced a new method of constitutional interpretation. He challenged the traditional concept of constitution. Holmes also protested against the method of abstract logical deduction from general rules in the judicial process.
According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics.
He writes: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics….”
Holmes, also insisted on the separation of ‘ought’ and ‘is’ which are obstacles in understanding the realities of the law. As an ethical sceptic, Holmes tells us that if you want to know the real law, and nothing else, you must consider it from the point of view of ‘bad man’ who cares only from material consequences of the courts’ decisions, and not from the point of view of good man, who find his reasons for conduct “in the vaguer sanctions of his conscience”….