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Tom Smith on Legal Realism and Formalism

Tom has a characteristically funny and insightful post on legal realism and formalism.  Here is an excerpt:

Of course every legal system, if it is a legal system, is to a degree mechanical and if it’s not just a mathematical exercise, to a degree not.  A twenty year old pickup, that wiggles and squeaks a great deal, is still a mechanical system.  That it does a great deal it can do in part because a lot of it is not rigid, hardly makes it less mechanical.  Part of how it works may not be explicable in terms of standard mechanics.  You might need chaos theory to predict exactly when it will start or which way it will hop on a bump.  But if you want to understand the thing, you are going to need to appreciate its mechanics at a minimum.

I’m sure I’m not the first to notice that legal realism seems to have been mostly an attack on legal rule-following by those who found those rules inconvenient for their political projects (Progress! Science!), like the man who discovers that marriage interferes with his self-realization and so is actually morally non-binding shortly before he hopes to commit adultery, as prescribed by some embarassing book about personal relationships circa 1974 and inspired by the availability of a hot receptionist.  Now that’s realism.  One wonders why such special pleading should be taken seriously at all, but it has to be, if only because it has done so much damage to the project of the rule of law.

Tom discusses Brian Tamanaha’s important book on legal realism and formalism, where Brian shows that the legal realist critique of formalism was largely attacking a straw man.  The formalists never believed the things that the realists claimed they did.

When I was in law school, I took a class on legal realism with Paul Gerwitz that included a number of people who would become important lawyers or law professors, including Peter Keisler and Pam Karlen.  For my contribution, I had the class read Joseph Henry Beale to show that he did not believe the things the realists said he believed.  I had always wanted to write that up, but like many other ideas I have had over the years, I never quite got the chance and now Brian has shown the world the truth of the matter.

That said, Tom, after praising Brian, does add this criticism:

But I do have a problem with [Tamanaha’s] account which still seems to be saying something like, the formalists were a lot more reasonable, that is realist, than they get credit for.  He does not seem to have in mind a version of formalism that a reasonable person might subscribe to, but assumes some form of realism is what all reasonable jurists must believe deep down.  So his book has something of the flavor of a liberal telling his friends that his conservative friend is really more reasonable, i.e. liberal, that he seems.  Not a defense of conservatism.

I have gotten that impression from Brian as well, and knowing Brian a little (and reading his blog posts), it does not seem that surprising given his sympathies.  Still, Brian’s perspective on the matter is only likely to increase its acceptance by academics who will share his starting point.

Finally, no post on Tamanaha’s book would be complete without a linking to the review of Tamanaha’s book by Brian Leiter, who strongly sympathizes with the Realists, Tamanaha’s blog post response, and Leiter’s rejoinder.

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