О корректном понимании названия трудов О. Холмса "The Common Law" и "The Path of the Law": теоретико-историческое рассуждение

Юридическое образование и наука. 2021. № 6. С. 23–28.

Lesiv B.

In the Russian legal discourse, many appeals are made to the figure of O.W. Holmes, Jr. as a luminary of the realistic legal understanding. Most of the references relate to the maxims contained in his fundamental works, namely “The Common Law” and “The Path of the Law”. However, the ideological content of these works’ titles is often underestimated by those who is referring to O.W. Holmes: this aspect is usually omitted and not considered in attempts to interpret the text of the works.

Purpose. The purposes of the article are to identify the ideological vector followed by O. W. Holmes when choosing names for his fundamental works, to determine the ideological concentrate, which they embed, which acts in relation to the text in the same way as the general provisions of the law act on social relations. Methodology: in the process of achieving the goal is based on the theoretical and systematic analysis of the names “The Common Law” and “The Path of the Law”, as well as on the historical roots of the terminology directly related to them. Thus, the methods of analysis, concretization, induction, analogy are involved, as well as historical, systemic, structural and functional methods. Findings. The author identifies a conceptual vector, which is desirable to follow in process of interpretation of any component part of the named works written by an outstanding American lawyer. “The Common Law” carries the idea of an integral public presence in the ontology of law. “The Path of the Law” is a kind of manual for dealing with the main tool of common law - “legal doctrine”. Scholar and practical impact. The article allows reader to take into account the cognitive advantages (understanding the general ideological vector of O. Holmes) for the purposes of the history of legal doctrines, as well as for high-quality teaching of the corresponding university course.

Keywords: common law, judicial precedent, общее право, судебный прецедент, правовой реализм, социологическая юриспруденция, Legal Realism, sociological jurisprudence, Oliver Wendell Holmes, Оливер Холмс