Beyond the Formalist-Realist Divide

Beyond the Formalist-Realist Divide: The Role of Politics in Judging

Brian Z. Tamanaha
Copyright Date: 2010
Pages: 264
https://www.jstor.org/stable/j.ctt7rm95
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  • Book Info
    Beyond the Formalist-Realist Divide
    Book Description:

    According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.

    Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.

    Beyond the Formalist-Realist Dividetraces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.

    eISBN: 978-1-4008-3198-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-xii)
  4. 1 INTRODUCTION
    (pp. 1-10)

    PERSPECTIVES ON JUDGING in the United States are dominated by a story about the formalists and the realists. From the 1870s through the 1920s—the heyday of legal formalism—lawyers and judges saw law as autonomous, comprehensive, logically ordered, and determinate and believed that judges engaged in pure mechanical deduction from this body of law to produce single correct outcomes. In the 1920s and 1930s, building upon the insights of Oliver Wendell Holmes, Roscoe Pound, and Benjamin Cardozo, the legal realists discredited legal formalism, demonstrating that the law is filled with gaps and contradictions, that the law is indeterminate, that...

  5. PART ONE THE LEGAL FORMALISTS
    • 2 THE MYTH ABOUT BELIEFS IN THE COMMON LAW
      (pp. 13-26)

      THE STORY ABOUT LEGAL FORMALISM CONSISTS of two distinguishable yet integrally linked elements: a theory of the nature of law (the common law in particular) as developed by judges, which I take up in this chapter; and a theory of how judges mechanically apply law (precedents and statutes) to the facts in particular cases, which I consider in chapter 3. Both aspects of the story are fundamentally flawed. They cannot be kept entirely apart, for their connection is tight, but it is essential to understand each separately and to recognize their implications and interrelations.

      With respect to the theory of...

    • 3 THE MYTH ABOUT “MECHANICAL JURISPRUDENCE”
      (pp. 27-43)

      ROSCOE POUND’S 1908 “Mechanical Jurisprudence” was seminal in creating the image of judging as an exercise in mechanical, deductive reasoning. Pound began by posing the question: “What is scientific law?”¹ His answer is that “the marks of a scientific law are, conformity to reason, uniformity, and certainty. Scientific law is a reasoned body of principles for the administration of justice, and its antithesis is a system of enforcing magisterial caprice, however honest, and however much disguised under the name of justice or equity or natural law.”² The danger of scientific law, Pound warned, is a “petrification” that “tends to cut...

    • 4 THE HOLES IN THE STORY ABOUT LEGAL FORMALISM
      (pp. 44-64)

      MAJOR DOUBTS WERE RAISED in the preceding two chapters about the most influential accounts of the formalist age. Roscoe Pound’s claim that judges reasoned in a logical, mechanical manner is inconsistent with statements of many jurists at the time worried about the messy state of the law and the capacity of judges to construct legal justifications for whatever outcome they desired. Jerome Frank deceptively reversed the import of Maine’s observations, and several of Grant Gilmore’s crucial assertions about the period are demonstrably false. Contrary to what Pound, Frank, and Gilmore insisted, there is overwhelming historical evidence thatall lawyers knew...

  6. PART TWO The Legal Realists
    • 5 REALISM BEFORE THE LEGAL REALISTS
      (pp. 67-90)

      A LEGAL THEORIST RECENTLY AFFIRMED that "American Legal Realism was, quite justifiably, the major intellectual event in 20th century American legal practice and scholarship.”¹ “The conviction that legal realism has transformed American legal discourse,” wrote another theorist, “is widely shared.”² Above all else, the legal realists, with assists from Holmes, Pound, and Cardozo, are credited with bringing about a revolutionary shift in the prevailing understanding of judging, away from formalism toward realism.

      The preceding chapters in part I uprooted the story about the formalists. Part II uproots the conventional understanding of the realists. There are major differences in these respective...

    • 6 A Reconstruction of Legal Realism
      (pp. 91-108)

      THE REASON THE CORE realist insights about judging were articulated decades earlier is that they areplainly evident aspects of judging(in common law systems). It’s as simple as that. It was apparent to many that the law has inconsistencies, runs out, and routinely comes up against unanticipated situations and that judges possess a substantial degree of flexibility when working with legal materials. It was obvious to observers that the law can be interpreted differently by judges with different views. Dissenting opinions and shifts in constitutional interpretation that follow from changes in personnel are constant reminders of this.¹ The realists...

  7. PART THREE STUDIES OF JUDGING
    • 7 THE SLANT IN THE “JUDICIAL POLITICS” FIELD
      (pp. 111-131)

      POLITICAL SCIENTISTS set out in earnest, in the late 1950s and early 1960s, to conduct sophisticated quantitative (or “behaviorist”) studies of judging. “Political Jurisprudence” was the name they took for their field.¹ As an early article by a leading participant, Martin Shapiro, explained, “The core of political jurisprudence is a vision of courts as political agencies and judges as political actors.”² Today their favored label is “judicial politics.”³ These self-chosen labels openly declare a precommitment that has governed their work for the past half century: the conviction that judging is substantially political. As a critic of the field recently noted,...

    • 8 WHAT QUANTITATIVE STUDIES OF JUDGING HAVE FOUND
      (pp. 132-156)

      QUANTITATIVE STUDIES of judging are burgeoning. An overwhelming proportion of these studies have been conducted on the Supreme Court. The findings can be broadly summarized in a sentence: the ideological views of Supreme Court justices have a measurable influence on their legal decisions. This does not show in all categories of cases; law still matters in various ways, and the degree of correlation between attitudes (conservative, liberal) and decisions for individual justices fall along a range.¹ A recent study of the Supreme Court found “strong evidence that legal principles are influential.”² But it cannot be denied that the ideological views...

  8. PART FOUR LEGAL THEORY
    • 9 THE EMPTINESS OF “FORMALISM” IN LEGAL THEORY
      (pp. 159-180)

      IN A CELEBRATED 1958 article, H.L.A. Hart, a giant of twentieth-century legal philosophy, expressed bafflement about the term “formalism”:

      What precisely is it for a judge to commit this error, to be a “formalist,” “automatic,” a “slot machine”? Curiously enough the literature which is full of the denunciation of these vices never makes this clear in concrete terms; . . . it is said that in the formalist error courts make an excessive use of logic, take a thing to “a dryly logical extreme,” [citing Roscoe Pound] or make an excessive use of analytical method. But just how in being...

    • 10 BEYOND THE FORMALIST-REALIST DIVIDE
      (pp. 181-199)

      How Judges Think, Judge Richard Posner’s 2008 summa, is a sustained critique of the delusions of formalism. At the outset he substitutes “legalism” for the term formalism “because it carries less baggage,”¹ but the meaning remains unchanged. “Legalists decide cases by applying preexisting rules or, in some versions of legalism, by employing allegedly distinctive modes of legal reasoning, such as ‘legal reasoning by analogy.’ They do not legislate, do not exercise discretion other than in ministerial matters (such as scheduling), have no truck with policy, and do not look outside conventional legal texts—mainly statutes, constitutional provisions, and precedents (authoritative...

  9. AFTERWORD
    (pp. 200-202)

    THESE CLOSING REFLECTIONS are an “afterword” in the full sense that the study of judging in this book is completed. I could not leave off, however, without saying a few words about a compelling question raised by this exploration. If the evidence and argument in this book are correct, we have collectively bought into a largely false story that became common currency in law and political science, with potentially harmful consequences.

    How could this have happened? I ask not to condemn others who have been taken in by this story—for I believed it and repeated it as well—but...

  10. NOTES
    (pp. 203-250)
  11. INDEX
    (pp. 251-252)