Holmes, Common Law Theory and Judicial Restraint
John Marshall Law Review, Vol. 36, p. 457, 2003
50 Pages Posted: 7 Nov 2009
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: Suggested Citation