ABSTRACT
This chapter suggests that interesting contrasts and comparisons with certain realist and formalist themes. It deals with legal formalism, an allegedly popular view among lawyers and legal academics throughout the common law world in the nineteenth and early twentieth century, and which was influential for even longer in Continental Europe. Formalism is often said to be a set of mutually supportive claims about the nature of both law and adjudication. The issue becomes more urgent given that, in addition to the familiar label of “mechanical jurisprudence”, the language which scholars have often used to express the basic tenets of formalism seems to suggest a strong form of determinism in regard to the free will of judges in deciding cases. D. H. Hodgson’s libertarian theory of free will, developed in part on the basis of experiences of the kind of discursive, practical deliberation required of judges, suggests a novel account of how judges are free to decide cases.
