Holmes, Common Law Theory and Judicial Restraint

John Marshall Law Review, Vol. 36, p. 457, 2003

50 Pages Posted: 7 Nov 2009

See all articles by Frederic R. Kellogg

Frederic R. Kellogg

Universidade Federal de Pernambuco (UFPE); Universidade Federal de Pernambuco; George Washington University

Date Written: January 1, 2003

Abstract

Judicial restraint is a subject properly bound with the interpretation, and hence the definition, of law. The nature and contours of what judges interpret dictate what is appropriate for them to do. Supreme Court Justice Oliver Wendell Holmes, Jr., who was a scholar and a philosopher before a judge, espoused a pronounced form of judicial restraint in constitutional law. In form and explanation, Holmes' judicial self-restraint is unlike versions found in recent literature. Rooted in a theory of the common law and associated with insights common among early American pragmatic philosophers, its most remarkable aspect is a radical form of nonintervention, not mere moderation. To be properly understood, it must be examined in light of a distinctive concept of law.

Keywords: jurisprudence, philosophy of law, judicial restraint, common law theory, constitutional law, judicial review

Suggested Citation

Kellogg, Frederic R., Holmes, Common Law Theory and Judicial Restraint (January 1, 2003). John Marshall Law Review, Vol. 36, p. 457, 2003, Available at SSRN: https://ssrn.com/abstract=1500302

Frederic R. Kellogg (Contact Author)

Universidade Federal de Pernambuco (UFPE) ( email )

Cidade Universitária
Cidade Universitária, Pernambuco 50670-901
Brazil

Universidade Federal de Pernambuco ( email )

2027 Q Street NW
Washington, DC 20009
United States
2022344620 (Phone)

George Washington University ( email )

2121 I Street NW
Washington, DC 20052
United States

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