Paola Chiarella

The democratic judge: Oliver Wendell Holmes between legal science and jurisprudence

  • Abstract

Informations and abstract

Keywords: Oliver Wendell Holmes, Predictive Theory of Law; Judicial Function, Democratic Principle; Natural Law.

In North-American legal scholarship, the works of Justice Holmes represent the conceptual map of the transformation of law in the direction of pragmatism and anti-formalism. In consideration of the social effects of legal operations and because of the interest in judicial decision, Holmes is ranked among the most uninhibited theorists of the judicial function and among the forerunners of American Realism. His most audacious writings appear less radical if read under the light of a professional approach to law and of the democratic principle. Thanks to some interesting dissenting opinions and to less known papers it is possible to recognize a not so radical legal thinking, but a respectful approach of popular sovereignty. Thus Holmes is not the main responsible of the Hartian nightmare of the judge as crypto-legislator.

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