Monday, May 05, 2008
The Legal Formalists and the Legal Realists--A Skeptical Look At An Old Story
The story about the legal formalists and legal realists is one of the foundational pieces of US legal history and legal theory. At the turn of the last century, according to this story, most everyone in law believed that law was gapless, logically consistent, and determinate, and that judges reasoned mechanically or deductively from this body of law to produce right answers in every case. In the 1920s and 1930s the legal realists came along to explode this story, demonstrating that there are gaps and inconsistencies in the law, and that judges decided on outcomes first and found legal justifications to support these outcomes. Many legal theorists and legal historians (and political scientists) have repeated this story, and have built histories and theories on top of these stories.
Brian: I'm really looking forward to reading the articles. Until then, a question or two: Did judicial *opinions* in the late 19th and early 20th Centuries look significantly more "formalist" than they would in later decades? What about treatises -- weren't they burgeoning in the so-called "formalist" age, and didn't they take a decidedly formalist tack? If so, perhaps that might help explain the realist "reaction" -- is it possible the resistance was to a formalist *pedagogy* in the treatises and in the classrooms that was in some strong sense inconsistent with what everyone actually believed?
Just a thought.
Thanks for your questions. I have a specific discussion about judicial opinions that addresses your first question. Opinions today indeed look different today in some respects--more open discussion of policy in torts cases, for example--but in other respects they are the same (citing cases, engaging in statutory analysis). The thrust of my argument is that these changes began earlier than currently thought (realists played a role, but they were latecomers).
Your second point is also correct. To the extent that formalism was real, it was to be found more among the "legal science" views of academics (although even academics did not frame it in the extreme terms often claimed), which those in practice ridiculed. This disjunction is a very interesting part of the story.
I seem to remember, when I published my co-authored paper on assumption of risk, running into Edward White's "Tort Law In America: An Intellectual History", which cited and quoted numerous 19th Century law review articles and judicial opinions that were consistent with the orthodox view of legal formalism. (I was interested in 19th Century assumption of risk, so I didn't spend too much time reviewing these, but I did take note of the fact that White was citing them.)
I really liked Bogus. Even if wrong-headed, I don't think positing a mechanistic jurisprudence is something over which to put on a hair shirt. Rather, I think it is a category error that comes from opposing formalistic v. realistic justice in the common law courts rather than formal v. informal justice in the 19th century (which you touch on in III).
There is a whole other sense of law and judging that goes back to the Bible and further to Hammurabi, that of the judge as the law-giver, the civilizer, the decision-maker. This has a rich tradition in the frontier US: the county legislative bodies were called courts (and still are in at least Kentucky); the justice of the peace system, with its non-law-trained judges and people swearing out peace warrants against each other (at least it beat the Hatfields and the McCoys); Georgia's Court of Ordinary (originally a solo legislature-executive, but always responsible for probate, widows and orphans); and Judge Roy Bean as "the law west of the Pecos".
With the end of the frontier and improved communications came the ability to formalize and centralize justice, and the increasing commercialization of the country required a more predictable, less idiosyncratic justice. You note the rise of formal legal education at the same time, also the "scientific" impulse. But the quest for a principled jurisprudence never negatived the role of the judge (as you have shown convincingly).
The progressives of the 20s and the radicals of the 70s were both generational movements, they saw the polity as fixed in a past that was being overcome by social and technological change. But events past, present and future are not fixed, they are moving with respect to the economy and values from which they arise.
I hope that readers will look at the criticims, to which Brian linked. I, in fact, have no interest in or investment in whether or not there was a 'formalist' age, as some legal historians whom Brian criticizes apparently believed; nothing of any jurisprudential significance turns on that fact. For jurisprudential purposes, formalism names a conception of adjudication, which has plenty of adherents to this very day. On the Realists, part of the difficulty is that Brian characterizes realism a bit loosely; if one attends to the particular theses distinctive of the Realism of the 1920s and 1930s, it is far less evident that this has 19th-century analogues, except in the 'free law' movement in Germany.
Thanks for your comments, rfiedman and Brian Leiter. And I second Brian's urging that his post be read.
"There is a whole other sense of law and judging that goes back to the Bible and further to Hammurabi, that of the judge as the law-giver, the civilizer, the decision-maker. This has a rich tradition in the frontier US: the county legislative bodies were called courts (and still are in at least Kentucky) . . . ."
Both New-Plimoth (Plymouth) and Massachusetts-Bay colony governances were by "general court" (there was no separation of powers as we understand it: the makers of the law were the triers of violations of the law, and the sentencers of those found guilty of violating the law). There was a governor, and he was sort of the "chair" or "chief magistrate" of the General Court.
The Massachusetts legislature is still the "General Court," though they don't do as much unilateral hangin' (whippings, cutting off ears, splitting nostrils, in actuality -- along with the occassional hangin' of a Quaker or other miscreant stubbornly holding to, and even flaunting, a "wrong" "religion," of course) as they once did to sustain the theological politics of terrorization.
Probably there are fewer hangin's also because there are so few Republicans available on which to test the efficacity of the current science of rope-making.
From studies in the legal history it was a bizarre arrangement which resulted in some bizarre forms of sentencing. But by-and-large their statute law shows that there's nothing new under the sun -- though we have backed off, at least in Massachusetts, hangin' folks for burglary, breaking and entering, and adultery, and threatening execution of those who dare blaspheme the Lord through the divinely right/eous governor and his closest cohorts.
One particular case sticks in mind: a number of young teenagers -- boys and girls -- got caught -- um -- "experimenting" as they are wont to do (which we never did, of course). They examined the girls, and -- sure enough -- they were no longer virgins.
The girls were whipped publicly in Boston. The boys were whipped publicly in Boston -- then brought to Cambridge and publicly whipped there. Thus the evidence on which we conclude that women are oppressed.
Two other cases stick in mind, though too lengthy to detail in full. In one, a woman and two men were tried and sentenced for adultery -- she was also married, but not to one of those two men.
The other was a case of child molestation -- careless of judgment, as the girl was the daughter of a Magistrate (judge). The two men were subjected, among other things, to having a nostril split and seared with a hot metal rod. In Boston. They then were taken to Cambridge, and their unsplit nostril was split and seared with a hot rod.
Another part of the sentence: to wear nooses around their necks, with a four foot length of rope hanging from them -- for life.
The full sentence went on for a page-and-one-half of fine print, and the writing was without extranious verbiage.
I doubt they impose precisely the same sort of sentences today, but then again, I don't follow the criminal law so can't be certain.
All in all, better to be a magistrate than a malefactor.
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