Title: After Holmes: Natural Law, Legal Positivism, and the Path of the Law
Abstract:Holmes can be credited with having broken America of its natural law habits and enshrined legal positivism as the only respectable philosophy of law. Holmes set out to destroy the universality and abs...Holmes can be credited with having broken America of its natural law habits and enshrined legal positivism as the only respectable philosophy of law. Holmes set out to destroy the universality and absoluteness of the natural law as it came to America through the common law tradition. His characterization of the natural law, however, created a false image of the natural law that made natural law appear subversive and even ridiculous. In its place Homes sought to substitute for the natural law a Darwinistic and experimental philosophy of law that would replace the morality and metaphysics of the natural law with scientific empiricism. Thus law would be the outgrowth of the struggle between various powers existing in society at a given time. This evolutionary and power-focused approach of Holmes led logically to his opinions in Buck v. Bell, Buchanan v. Worley, and Meyer v. Nebraska, which seem to divorce law from equity and social justice. This paper will argue that Holmes's philosophy of law is irrational and inherently problematic in that it leaves no reason for his approach being better than any other, and, more significantly, no principled support for the protection of life, liberty, or property other than the will of the majority.Read More
Publication Year: 2011
Publication Date: 2011-04-20
Language: en
Type: article
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Cited By Count: 1
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