Volume 1, Number 4 · October 17, 1963
Holmes's Common Law
By H.L.A. Hart
The Common Law
by Oliver Wendell Holmes, edited by Mark DeWolfe Howe
Harvard, 338 pp., $5.00
This famous book, now admirably re-introduced to the general reader by Professor Mark Howe, resembles a necklace of splendid diamonds surprisingly held together at certain points by nothing better than string. The diamonds are the marvelous insights into the genius of the Common Law and the detailed explorations of the dynamic of its growth; they still flash their illuminating light on the dark areas beneath the clear and apparently stable forms of legal thought. The string is the sometimes obscure and hasty argument, the contemptuous dismissal of rival views, and the exaggerations with which Holmes sought to build up the tendencies which he found actually at work in the history of the law into a tough, collective philosophy of society. Holmes's genius as displayed here is that of a historian especially of early law, and his historical work, though since corrected on many details, made, as Maitland immediately recognized, 'an epoch.' By comparison, the philosophy which Holmes drew from his history was shallow, in spite of its interesting connections, noted by Professor Howe, with the Darwinism and empiricism of his day. It now seems of value mainly as a stimulant and to have little claim to finality, even as a critique of the Kantian metaphysics to which it was opposed.
Review, 2760 words
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