Law and Politics: Occasional Papers of Felix Frankfurter, 1913-1938

By Felix Frankfurter; Archibald MacLeish et al. | Go to book overview

The Early Writings of O. W. Holmes, Jr.

This selection appeared in the Harvard Law Review for March, 1931 (Vol. 44, p. 717), as one of the essays celebrating the ninetieth anniversary of Mr. Justice Holmes's birth.

OUR TIMES may well come to be named, by future dealers in half-truths, the Tired Age. Disillusionment is a mood of fashion as much as a form of ennui after the war's great effort. Whatever the cause, our politics are devoid of ardor, and social reform has lost its romance. Such being the mental climate, one would expect jurisprudence to be in the doldrums and to earn its title as the dreary science. Alas for these generalizations about the main currents of thought! The waters of law are unwontedly alive. New winds are blowing on old doctrines, the critical spirit infiltrates traditional formulas, philosophic inquiry is pursued without apology as it becomes clearer that decisions are functions of some juristic philosophy.

New situations, the offspring of technology and changing social conceptions, make new demands upon law. The absorption of new facts and the reconcilement of new conflicts entail a re-examination of the fundamenta of the legal order. What are the sources of law, and what its sanctions? What do judges do when they "decide"? What are the wise bounds of stare decisis and when is the judicial process free from its own past? What is appropriate to the fluid empiricism of case-law, and when is codification desirable? What is the proper area of law-making by courts and what should be left to legislation? These are issues of moment to society. Happily, they are the dominant concern of contemporary legal scholarship on the bench, at the bar, in law schools. And these problems are now seen, not in isolation, but as aspects of the

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