Thursday, September 09, 2010
Unsupported Assertions About the Formalist Age: A Response to Leiter
For several generations now, the US legal culture has almost universally accepted an account of our history that goes like this: The 1870s through the 1920s was the “formalist age,” when most lawyers and judges believed that law is comprehensive, gapless, internally consistent, and logically ordered, and that judges mechanically deduce single right answers in cases. The legal realists came along in the 1920s and 1930s—building on Holmes, Pound, and Cardozo—to explode the formalist myth, showing that law is filled with gaps and contradictions, that contrary precedents exist, that judges make choices and create law, that their personal views sometimes influence their decisions, and that often judges reason backwards to provide legal justifications for a preferred result. This story has been repeated innumerable times, especially by legal theorists. Most everyone in law accepted it.
"What most stands out about Leiter’s review, at least for me, is his serene certainty that he knows, and has long known, precisely what formalism is about and precisely what realism is about."
This hubris is shown by many who use "originalism" to promote a path that many claim leads to less of it. These are general remarks, so I'm not trying to say Leiter himself puts forth that philosophy. I don't know his philosophy really. But, I recognize the tone.
At least, this is what I have seen while discussing the matter from my more amateur perspective. The ignorance of history (or rather selective citation to defend one's p.o.v.) is repeatedly shown as well.
"History is more often than not ambiguous; therefore, it should seldom be determinative." So noted Eugene Van Loan III in an article discussing the 9A and interpretation of the Constitution generally. This to him didn't mean history wasn't useful. It just was not the only thing.
Looking over Prof. Tamanaha's book (and SSRN articles that address part of its discussion), I find this a good policy. If history is used, it should be used with more humility than some who this post addresses too often use ... and with a certain chip on their shoulder half the time to boot!
But, that's just my basic view. I leave the rest to the professional theorists around here.
BTW, Prof. Ronald C. Den Otter was a charming guest and saw that allowing comments can be relatively painless. I welcome others promoting their own or other books (etc.) to see the value of the point.
I think a scholarly dispute should be carried out in scholarly fora, and not in a superficial blog posting or blog comment. But I will make just two brief points:
1. I am not a "prime example" of someone who makes historical claims about the formalist age. (You misrepresent me that way in the book, and I corrected that misrepresentation in the review essay, so it's really a bit scandalous to repeat the misrepresentation here. Indeed, you even quote the same passage again that you quote in the book, failing, again, to note that I am characterizing a theory of adjudication, whose interest or plausibility does not turn on its historical pedigree.) The historical claims are, indeed, irrelevant for philosophical purposes, and you do not show otherwise (indeed, I take it you concede the point). I am primarily interested in formalism and realism as philosophical theories about law and adjudication, as I indicate quite clearly in my review essay. (Unlike formalism, however, I have also defended at length historical claims about what the American Realists thought, and here I do contest your historical claims, which trade on sloppy characterizations of Realism.)
2. I do not "opine that the conventional story about the formalist age withstands [your] challenge." To the contrary, as I state, even in the abstract of the paper, you make a prima facie case against anyone who wants to claim that Natural Law Formalism and Vulgar Formalism were prevalent in the 19th-century. You do not shed any light, however, on whether philosophically interesting forms of formalism, what I call Sophisticated Formalism, were or were not prevalent in the 19th-century. There are also evidential questions you neglect that would establish your thesis that there was no formalist age, but that doesn’t mean the “conventional story” withstands your criticisms: you have shifted the burden of proof on this historical thesis (that’s what it means to say you have made a prima facie case).
Leiter's objections seem to hinge upon the dubiously useful category of the "philosophically interesting" which he seems to conflate with "relevance." Given that he notes in passing the importance of such irrelevant ideas to current political debate, one wonders how he can find such things uninteresting.
Leiter plays the categorical "no true Scotsman" shell game that one would expect from obnoxious theorists on either side of the Midway, but is it possible that he is vastly mistaken about the intended audience of the book? For one to arrive at the detailed conceptualization of realism that Leiter demands, of course, one must actually be Leiter. Was this book written to please Brian Leiter?
Perhaps he is correct on all counts--"vulgar formalism" is nothing anyone cares to talk about, save those presumably superficial (but vocal) shapers of popular culture. Realist adjudication is vastly more complicated than a simple appeal to politics. Obviously, such distinctions are far more "philosophically interesting" in scholarly fora.
Unfortunately, Leiter has failed to notice that public policy is not always informed by what is "philosophically interesting." The current arguments about the proper roles of judges in American politics are hardly hinged upon whether something tickles someone's inner Dworkin or one's inner Schauer. Moreover, he fails to see, perhaps disingenuously, why history should be relevant at all to the discussion, even in a political era where nostalgia for a more perfect past (think Tea Party) is a primary political tool.
I say disingenuously because Leiter notes on several occasions that the "hoi-poloi and grandstanding politicians" are in favor of a vulgar formalism that isn't philosophically interesting. He turns and uses this distinction as proof of both why a formalist/realist division is useful and why it should be maintained.
I think that's the serious problem with the review: Leiter's myopic concern with defending the gates of his own conceptual framework (and legacy, I suspect) has blinded him to the possibility that the book could be speaking to someone other than Brian Leiter. Breaking down the idea that good judges are formalists in the vulgar / reduced sense and that bad judges are jaded realists is probably not a concern for someone who is interested in adjudication in and of itself.
It might, however, be a topic of concern for the hoi-poloi and the grandstanding politicians--you know, the sort that visit superficial blogs despite the fact that the participants are all legal scholars and almost all of the commenters have graduate degrees.
Ultimately, I think Leiter fails to understand the importance of historical context, not only in understanding the origins of polarization in the crossroads of politics and jurisprudence, but also in the reception and relevance of the very work he criticizes.
"[H]istorical claims are, indeed, irrelevant for philosophical purposes."
The claims themselves may be but if our arguments are meant to be founded in anything other than formalism, if the attempt is to represent something in the world, then the historical record of debate is extremely important.
But Leiter's philosophical naturalism discounts the importance of historical knowledge itself. Leiter links approvingly to Alex Rosenberg's essay "The Disenchanted Naturalist’s Guide To Reality" which ends arguing that "History Is Bunk."
If the history of empiricism is bunk, then empiricism is bunk.
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