Legal Formalism In Stephen Holmes's The Common Law

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Called simply The Common Law, Holmes’s book, published in early 1881, is in essence the ripened product of his prior ten years of research, thinking, and writing. Unfortunately it is not much read today, even by law professors and thoughtful lawyers and judges. Like other classics, The Common Law is well known, may even find a place in an occasional lawyer’s library, but hardly ever opened, let alone read cover to cover. It has become the lawyer’s equivalent of a nice, impressive coffee table book: something for display but not for serious study, much like Stephen Hawking’s A Brief History of Time or Daniel Kahneman’s Thinking Fast and Slow or Thomas Picketty’s Capital in the 21st Century. To put it on the shelf without having read it is to give the façade of intellect without the reality, false advertising creating a misimpression. This situation is shameful. While it is occasionally dense and closely reasoned, at moments slow and hard to follow, Holmes’s book of three hundred and seventeen pages still has many extraordinary qualities, amazing flashes of insight, and even thrilling passages that, so many years later, are very much worth attending to. Holmes brings to his task a…show more content…
Legal formalism portrayed judicial decisions as the outcome of reasoning from a finite set of determinate principles. It was metaphysical and conceptual, almost theological, and it assumed that the law is a closed logical system. Under legal formalism, judges supposedly did not make law; they merely declared law that already existed from a set of clear, consistent and comprehensive legal rules, what Holmes later referred to as a “brooding omnipresence in the sky.” Judges and lawyers simply found the right rule and, by a process of deductive reasoning, applied it woodenly to the supposedly uncontroversial facts in light of precedent, regardless of
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