Balkinization: Beware Making Claims About "The Formalists"

Beware Making Claims About "The Formalists"

Brian Tamanaha

The abstract for a new article posted on SSRN begins with this familiar narrative:

At the beginning of the twentieth century, it was widely believed that appellate courts determined the outcome of disputed issues of law predominantly by the application of pre-existing precedent and time honored legal maxims. The primary work of the common law courts was thought to be this distinctive identification, maintenance, inductive development and case specific deductive application of the body of precedent in its jurisdiction, sometimes known as formalism.

Starting with the influence of the legal realists in the 1920s, a profound shift took place in the dominant conception of the nature of common law jurisprudence....

This is the standard, long dominant account of the shift from formalism to realism that took place in the early 20th century. I have written similar passages before.

However, this conventional narrative now appears to be wrong in fundamental respects--a myth that progressives and realists created and perpetuated to discredit courts.

It was not in fact "widely believed" at the time that judges engage in deductive reasoning of this sort. Tellingly, just about every depiction of "mechanical jurisprudence" from this period was written by a critic, not by a jurist endorsing it.

As set forth in "The Realism of Judges Past: A Challenge to the Assumptions and Orientation of the 'Judicial Politics' Field," judges in the "formalist" period portrayed law and judicial decision-making in very realistic terms, patently inconsistent with deductive reasoning. This includes famous judges who we now think of as "formalists" (Cooley and Dillon). "The Realism of the 'Formalist' Age" demonstrates that realistic views of judging were widely expressed at the turn of the century (before the Legal Realists came on the scene), and it shows how the myth about the so-called "formalists" was created.

I don't know how judging was understood at the time (these are still works in progress). But I have no doubt that the conventional understanding is flawed and should no longer be repeated.

Posted 9:59 AM by Brian Tamanaha [link]

Comments:

Having read your essays, I do not think they establish the strong claims you are making. So let me register a note of skepticism, lest readers of this blog, who don't bother to look at your essays, think the matter is clear. For one thing, it is very difficult (if not impossible) on the basis of selected individual quotations to establish the intellectual gestalt of an era. It is not news to anyone that Legal Realism did not emerge ex nihilo, and that it has a prehistory, but that is compatible, of course, with the Realist view of adjudication being a distinctly minority position in the late 19th-century.

In addition, I am worried about how you represent a lot of your evidence. But I'll take this up on my legal philosophy blog in due course.

# posted by

Brian Leiter : 11:08 AM

Brian,

Thanks for responding.

You are correct that realist and formalist views circulated at the same time. The crucial question, as you put it, is which was the dominant and which was the minority view.

If formalism (in the "deductive reasoning" sense) was indeed "widely believed" at the time, it should be easy to find many assertions about judging along these lines. This is precisely what is lacking in the legal literature (or at least I have not been able to find it). Indeed, I was surprised to find that many jurists who have been identified as "leading formalists" in fact had very realistic things to say about law and judging.

Judicial decisions may well have been written in a formalistic style (although there are even doubts about this), but the style of written decisions is not itself an account of how judging is done.

I look forward to reading your fuller response. As I indicate in the post and the drafts, I do not fully grasp the situation, and there is no doubt much more to learn and understand.

Brian

# posted by

Brian Tamanaha : 11:35 AM

For a project in the time frame of 1830-1860, I recently read Morton Horwitz's "The Transformation of American Law 1780-1860" which was most instructive on how the US drifted significantly from British common law to reflect, in particular, the economic circumstances in the growth of the US. When this project is complete, or perhaps even before, I plan to read Horwitz's "The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy." Does the referenced new article overlap the latter book and perhaps bring it up to date? Or does it critique Horwitz? So little time and so few years (at age 77) left, I ask for guidance for aging eyes.

# posted by

Shag from Brookline : 6:33 AM

What is the title of this "new " SSRN posting and the name of its author ?

# posted by

dah : 10:32 AM