Civilizing Darwin: Holmes on Criminal Law

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Book Chapter

Publication Date



Markus D. Dubber & Lindsay Farmer




Stanford University Press




The influence of Oliver Wendell Holmes in American law can be found in any number of areas, including, of course, criminal law. But little historical work has been done on this aspect of his writing. Maybe that is because he turned to criminal law for the fi rst time as something of an afterthought. His writings on the subject amount primarily to a single chapter in The Common Law and a limited number of cases on the bench, in which he mostly carried through the arguments of his book. Moreover, in the stream of articles that he produced across the 1870s in preparation for writing The Common Law, he wrote hardly at all about criminal law. His interests lay elsewhere. Yet when he did finally come to assembling his great work, criminal law assumed a central place in the conceptual structure of his argument. And today his discussions of the “external,” or objective, quality of the basic standards of criminal liability—both as author and as judge on Massachusetts’s high court—remain fixtures in casebooks as well as in some of the substantive law of crimes.

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