The Common Law Paperback – July 22, 1991

Great book/thanks for your business

In Olden Times, the law was a mystic wood, requiring a guide to pass through safely, or to the bold and foolish, a risky venture, either of goods or indeed life. Oliver Wendell Holmes, still recognized as one of America’s foremost jurists, endeavored as his life’s work, to leave us this authoritative guide through this mystic place. Google was not yet popular at that time.In most countries, the King, or Shiekh, or Khan, or a Macchiavellian Prince, or whoever, ruled by divine right, or on Advisement of the Church. The King was right, at any moment. The slave must die. This practice led to all sorts of foolishness. The American Colonies separated themselves from the King and the Church, and sought regularity in social convention. Oliver attempted to document our new system of law, retaining the best encouragement of social order, and the least restriction on unruly desire of now free sovereign citizens. Besides his book, as a judge of the highest order, he wrote >1000 specific opinions, becoming a prime architect of New American Common Law.I’m a law student. The Law of Property is my current interest and focus. I picked up Oliver’s book to augment my law studies, and to get some insight into law as a second profession, and help me pass the bar exam. Still here we are in Modern Times, very like Olden Times. We are walking through the same mystic wood. It’s hard for one lawyer to make a living in a small village in America. Two can do quite well.For instance, Oliver wrote a bit about deodands. These are the inanimate objects that kill people, or create turmoil. There is a law. There has always been. I have to quote Oliver himself:“It will be remembered that King Alfred ordained the surrender of a tree, but that the later Scotch law refused it because a dead thing could not have guilt. It will be remembered also that the animals which the Scotch law forfeited were escheat to the King. The same thing has remained true in England until well into this century, with regard even to inanimate objects. As long ago as Bracton, in case a man was slain, the coroner was to value the object causing the death, and that was to be forfeited as deodand ‘pro rege.’ It was to be given to God, that is to say to the Church, for the King, to be expended for the good of his soul. A man’s death had ceased to be the private affair of his friends as in the time of the barbarian folk laws. The King, who furnished the court, now sued for the penalty. He supplanted the family in the claim on the guilty thing, and the Church supplanted him.”My gentle reader will note that even in this relatively obscure corner of dispute, we hear a clear voice of 200 years past, citing Settled Common Law of >1600 years prior, addressing matters of current great social concern. If a man has a gun, and bullets, and kills his trespassor, what shall we do with the gun, and the trespassor, and his heirs, and the man? Shall a man have a gun? With how many bullets? What are permissible trespasses? Who are the heirs? Shall such a man be hung by the neck until dead (remember Edison was not on scene yet)? Might a man kill his trespassor, in anticipation of future unlawful trespass? Should trespassors be permitted guns themselves? should the President have all the guns? Should policemen have only sticks, and whistles? What about that dog, who did not bark in the night?The book is filled with quaint situations. The reader will be challenged, and perhaps a bit confused. You will want to go back and reread parts. Oliver attempts to reveal the structure of essentially unstructured social issues. We have no Kings in America. God is circumscribed to His own domain. We continue to muddle through the day, with the aid of civil discourse, and the common law we continually adapt and improve.How shall we proceed? First, we must kill all the lawyers.

Well presented, well documented.

Great read on Common Law

NEED TO KNOW information for the world we are entering.

I wanted to learn more about OWH and this book does not disappoint. In addition to OWH having been a fascinating person, the writing of this biography is extremely well done.

This book is a little tedious for us non-lawyers, but it does illustrate some interesting points:Law emerged from the need to get away from revenge/feud dynamics. And it originated during times when most people couldn't write, so the issue of proving a case (such as in a agreement) is troublesome (especially in times when plagues and such could kill witnesses at any time). The world is a fuzzy set, and yet the law needs to set a finite set of rules in place, so exceptions constantly challenge. The needs of the state can supercede the issue of fairness, such as in the rule that "ignorance is no excuse". Judges are generally friends of the wealthy and not compatriots of the commoner. If a man has large debts, and dies, how can his children, who were not party to the agreements, be held liable via the estate? Many such questions arise and Oliver Wendell Holmes, Jr. tries to address the fluid basis for our legal system.

One of best bios I've read.