The Challenge of Formalism

Abstract

This chapter describes the second period of American legal history, the period of legal formalism. It specifically provides a discussion of late nineteenth and early twentieth-century legal formalism in the United States. The thesis of this chapter is that the commonly accepted idea of a ‘revolt against formalism’ in late nineteenth-century American intellectual life is, certainly so far as jurisprudence is concerned, a myth. It explores what, in the context of late nineteenth and early twentieth-century American jurisprudence, legal formalism might be taken to mean. It also addresses how, before the advent of legal realism, American jurisprudence began, if only hesitantly, to question the premisses of formalist legal thinking. It is shown that the great forerunners of American legal realism, Holmes and Pound, were not committed anti-formalists.