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Legal Commentary

: Balkinization

The Legal Formalists and the Legal Realists--A Skeptical Look At An Old Story

By Jack M. Balkin

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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.

As The Bogus Tale of About the Legal Formalists shows, the story is fundamentally false. This article demonstrates that leading accounts about the formalists contain deliberate distortions and plain historical mistakes. It shows, moreover, that many late nineteenth century jurists said ?realistic? (that is, not formalistic) things about judging.

Brian Leiter has expressed skepticism about what I have shown. Skepticism is good, for the failure to be skeptical is what initially led to the entrenchment of the false story about the so-called ?formalist age.? Leiter, who has written extensively about the formalists and the realists, concedes that I have shown that there was a lot of ?pre-realism? in the late nineteenth century. However, he cautions:

We are interested in the question: was there a "formalist age," i.e., an era in which something called "formalism" captured a widely shared view or ethos?....Adducing quotes of jurists and lawyers who did not embrace formalism, however, quite obviously does not establish that thesis. Are these quotes representative? Were there jurists and lawyers making formalist claims at the same time?...We need to know whether the quotes that Tamanaha collects really capture the Zeitgeist?We need to know how many eminent jurists and scholars were saying "formalist-sounding" things at the same time as those he quotes were saying "realist-sounding" things. Tamanaha may have the evidence. It is not in this paper.

As Leiter knows, the paper contains many, many statements by lawyers, law professors, and judges that are directly contrary to what the formalist story claims jurists widely believed at the time. Many of these statements were made in the leading law reviews by the leading jurists of the day. More to the point, many of the statements I quote were made by jurists who have been identified by legal historians and theorists as leading formalists. If ?leading formalists? said very realistic things about judging, the story is in deep trouble. The case goes further, however.

Leiter suggests that I might have selectively presented the evidence by suppressing formalist depictions of judging. But that?s precisely the point: Although I found an ample supply of realistic statements about judging, it was very difficult to find statements consistent with the purported formalist views?and I reported all of the ones I found in the article. It would be foolish of me, not to mention academically dishonest, to sit on a pile of evidence in support of the "formalism age" because it would be easy to discredit my argument.

That is, indeed, the most direct way to refute my argument: Produce a host of formalist statements about judging from leading legal academics, lawyers, and judges (which is precisely what I have done in the other direction). If the story about the formalist age is correct, after all, such statements should be plentiful and easy to find.

This is what the paper shows: There were many realistic statements about judging in the late nineteenth century, and hardly any formalist statements about judging (that I could find, with much effort). These realistic statements were made by leading judges and legal academics, as well as by leading so-called ?formalists.? And many of the realistic statements I quote exude a commonsense attitude?a surprising number adorned with the phrase ?as we all know.?

How else can one show the Zeitgeist? (Since I have shown that previously authoritative accounts of the ?formalist age? are deeply flawed, as Leiter acknowledges, it follows that those who continue to believe the Zeitgeist was ?formalist? must also be required to put forth evidence in support of their claim).

Leiter?s healthy skepticism, which is entirely appropriate, potentially veers off into dogmatism, when he makes this claim:

But let us suppose--in the best credible scenario for Tamanaha--that a significant minority or even a bare majority of scholars and jurists in the late 19th-century were saying "realist-sounding" things, the ultimate question is how that compares to the 1920s and 1930s? We might still reasonably call the late 19th-century the "formalist age" if it turns out that far more leading scholars and jurists said "realist-sounding" things in the 1920s and 1930s than in the 1870s and 1880s.

The whole idea of the ?formalist age? (as is often repeated) is that most lawyers, legal academics, and judges believed in the notions set out at the outset. This was the dominant and widely held view of judging--that is what every account of the period claims. If in fact the majority of jurists said ?realist-sounding? things (including, I might add, the most famous so-called ?formalists?), then the entire notion of the ?formalist age? falls apart. To suggest otherwise reflects, perhaps, an unwillingness to accept what the evidence shows?a desire to somehow save the old story even if emptied of its core claims.

But my argument is even stronger than that. I argue that there was just as much ?realism? about judging in the late nineteenth century as there was in the 1920s and 1930s. The evidence in support of this is set forth in Understanding Legal Realism.

Leiter interprets the evidence I present as showing that ?pre-realist? views existed in the late nineteenth century. This way of framing the evidence, however, continues to privilege the legal realists. What I show in "Understanding Legal Realism" is that the legal realists were second or third generation realists about judging. Just about everything they said about judging was openly said by prominent jurists in the 1880s and 1890s. [Leiter asks, if this is true, then why were the realists criticized? The answer, explained more fully in the piece, is that they were criticized for exaggerating the uncertainty of law without sufficient attention to stabilizing factors that reduced this uncertainty (a criticism which Karl Llewellyn and Felix Cohen also lodged at Jerome Frank). But the critics accepted much of what the realists said about the openness of law and interpretation?points which had been recognized for decades].

If the story about the ?legal formalists? is bogus, as I argue, then we must also formulate a new understanding of what legal realism was about. And that?s what the second paper does.

I understand that these claims are hard to accept. They turn upside-down much of what we have long taken-for-granted about our past. It?s hard to give up longstanding beliefs. A number of things I have written in the past (confidently) about the formalists and the realists turn out to be wrong. It?s hard to admit error.

There is no reason to take my word for any of this, of course. Read the papers and judge for yourselves (and your critical comments are welcome).

Full post as published by Balkinization on May 05, 2008 (boomark / email).