The 'Big Story' in Our Legal History is Wrong

Brian Tamanaha

For many decades, the American legal culture has held to a tale about judging that progresses from blind obtuseness (or duplicity) to sophisticated awareness. According to this story, a bad “formalistic” stage of judging dominated from the 1870s through the 1920s: the law was portrayed as comprehensive, gapless, and logically consistent, with a right answer in every case, and judges reasoned mechanically (or at least pretended to do so) from abstract concepts, or in a rule-bound and precedent-bound fashion with no attention to social consequences. In the 1920s and 1930s, the Legal Realists, building on the work of Oliver Wendell Holmes and Roscoe Pound, shattered the formalist view of law. The Realists argued that the law is filled with gaps and inconsistencies, that there are exceptions for almost every rule or principle, that precedents can be found on all sides of an issue, and that judges (influenced by their predilections) arrive at a result first then find or manipulate the law to rationalize the result.

This story has been repeated innumerable times, and structures how we think about law and judging today: formalism is naïve, bad, or false; every sensible and candid person is realistic about judging.

This story is wrong in fundamental respects, as demonstrated by “The Realism of the ‘Formalist’ Age.” Quoting numerous speeches and articles, the paper shows that consummately realistic and skeptical views of the law were widely expressed throughout the formalist period, often by judges and leaders of the bar. The paper reveals that our one-sided image of the “formalists” was constructed by critics of the courts in a manner that systematically excluded this realistic understanding. It also shows that the Realists were merely the latest and most self-conscious episode in a constant stream of skeptical views about law that extends back many decades.

The objective behind the paper is to shake the hold of the formalist-realist antithesis that dominates and distorts contemporary views of judging. Dislodging this old story may help ease the way toward recognition of a realistic approach to formalism that is advocated by many judges (Judge Harry Edwards, for example) and legal theorists (Fred Schauer, Larry Solum, for example, and me in this post), although nothing in the paper itself leads unequivocally to this view.

What the paper makes clear is that we can no longer talk about “the formalists” in the same old ways, and perhaps not at all. Critical comments are welcome by direct email.
Posted 2:32 PM by Brian Tamanaha [link]