Martin Stone

in The Oxford Handbook of Jurisprudence and Philosophy of Law

Published in print January 2004 | ISBN: 9780199270972
Published online September 2012 | | DOI:

Series: Oxford Handbooks in Law


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This article is concerned with ‘formalism’, as it appears, as a term of criticism in the tradition of thought originating with Holmes and the Realists. It presents two examples of the first difficulty in grasping the aim of this tradition, i.e., scarecrows, and it then briefly elaborates the second difficulty, i.e., the varieties of formalism. It critically surveys what various writers since Holmes have meant by ‘formalism’ and places the various types of formalism in relation to one another. It also offers directions for addressing two broad questions that are threaded throughout the previous tapestry of formalisms, those of desirability and the very possibility of judicial adherence to rules. The purpose here is to motivate certain features of post-Holmesian thought that would otherwise seem confusing.

Keywords: formalism; criticism; post-Holmesian thought; desirability; judicial adherence

Article.  21414 words. 

Subjects: Law ; Jurisprudence and Philosophy of Law

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