Study On Holmes's Legal Empiricism

The "Common Law" published by Oliver·Wendell·Holmes in 1881 was called "the best legal book written by Americans." The beginning of the "Common Law" is the most famous quotation in the American legal world,and it is also the most direct expression of Holmes' s “legal empiricism”: "The life of law doesn't lie in logic,but in experience." As a result of his 25-year commitment,Holmes' s legal empiricism plays an irreplaceable role in the development of American law.By studying and analyzing the background of the times and the sources of thought on which the theory is based,the article studies the connotation of the theory,analyzes the meaning of "logic" and "experience" and how to handle the relationship between these two.Dialectical analysis of its advantages and limitations,combined with the practice of our country,consider the practical significance of its theory to Chinese judicial practice.The full text is divided into five parts.The first chapter briefly introduces the purpose and significance of this article,the current situation of domestic and foreign research,the study methods used in the writing process,and summarizes the innovation points of the article.The second chapter introduces the background of the “legal empiricism” theory,including the industrial monopoly at the end of the 19 th century in America,and the legal system concept of the "logic theory" which was popular with the legal profession at that time.This chapter also introduces the fuse incident of Holmes' s “legal empiricism”--controversy with Landell on “Mailbox Rule”.The third chapter studies the ideological sources of Holmes' s “legal empiricism”,the first is the philosophical basis of Holmes' s pragmatism,the second is his critical spirit in face of problems,including his skepticism about authority and preconception and his criticism of legal formalism.Finally,he combined the above ideas to improve the scientific view of traditional law,thus forming a new scientific view with "pragmatism".The fourth chapter analyzes the connotation of "logic" in “legal empiricism” from both theoretical and practical aspects,and points out what the specific definition of "logical" that Holmes opposes,and then advocates it.The specific connotation of "experience" is discussed.Finally,summarize the "logic" and "experience" the relationship between the two,and thus analyzes the limitations of the theory.The fifth chapter,as the innovation point of this article,analyzes the theoretical value of Holmes' s “legal empiricism” to China's judicial practice,and then demonstrates the applicability of the theory to China's judicial practice from three aspects.Finally combines with China's actual reality,put forward the applicable conditions of Holmes' s “legal empiricism” in China.