Legal Realism vs Legal Formalism: Justice Holmes’ Judgment

The approach to law elaborated by the distinguished American judge Oliver Wendell Holmes Jr. remains poorly studied in Russia due to several methodological obstacles. One of the problems arises when the study is not preceded by a deliberate conceptualization of legal formalism as a general impetus that prompted the American legal community in 19^th – 20^th centuries to discuss legal practice from the perspective of new values. The realistic approach to law was not the creation of abstract reasoning, but rather it was a response to concrete manifestations of another approach – the formalistic. Accordingly, the substance of the particular approach (and its cognition) is to a certain extent determined by the substance of the other (and cognition of it – or rather, cognition of its “wrong” elements). Moreover, realists criticized other movements of legal thought, i.e. positivism, natural law theory, and the historical school, also as an expression of a common anti-formalist attitude, rather than beginning a separate dispute with each of them. Another methodological issue relates to such a peculiarity of the American realistic approach as a focus on contemplating the life of common law (or American law), but not law as a universal social phenomenon. Justice Holmes and other American jurists responded primarily to the “practical” judicial formalism in England and the USA, which peaked in the 19^th century. Making up for these two omissions is essential for methodologically consistent reference to Holmes’ teachings and is relevant in two aspects: first, for enhancing and clarifying the standard classification of legal doctrines; secondly, it reveals the reasons for specific practical patterns of the development of American law (especially judicial) influenced by one of the most authoritative models of legal thinking. The article aims to clarify the starting points of the American realistic approach to law through Holmes’ works and by virtue of his definition of legal formalism. One of the key questions is what the solutions are that realists proposed instead of formalist practices. The corresponding feature of the article is the emphasis on those Holmes’ pieces which are organically confirmed by examples from the common law, in particular, the free market of ideas doctrine.

Keywords: legal realism, formalism, historical school of law, formal logic, sources of law, common law, judicial law-making, analogy of law, free market of ideas