I recently finished Brian Tamanaha’s new book, Beyond the Formalist-Realist Divide: The Role of Politics in Judging. I thought it was excellent: well-written, provocative, and engaging. If you’re interested in jurisprudence, this book is a must-read.
The gist of the argument is that the common story about the legal realists and the legal formalists is just bunk. For those not familiar with this area, the common story is that until the 20th Century, lots of lawyers and legal theorists were legal formalists who naively thought law was entirely mechanical. Then, in the 20th century, the legal realists came around and revealed for the first time that law was human and often indeterminate. Tamanaha shows that the realists’ claims about what the formalists thought were totally wrong, and that there wasn’t any real difference between how so-called realists and so-called formalists thought about the law. Rather, he suggests, progressive legal reformers in the 1930s invented the bogeyman of formalism to try to discredit the status quo and facilitate legal reforms of the day.
I particularly liked the book because it takes on a narrow but important point, sticks to that point, and is relentless and unyielding within it. Tamanaha is trying to debunk one specific point, and he doesn’t let himself get distracted by related topics or the need to offer his own general theory. I tend to think that approach has the most impact in legal debates: Following this book, it will be hard to make the usual claims about the realists and the formalists without dealing with Tamanaha’s counterstory.
Josh Blackman says:
I also read the book, and it is a fantastic read. It made me rethink a lot about my thoughts on Formalism and Functionalism. I’m curious how some hard-core formalists will (attempt) to rebut Tamahana’s explanation.
December 31, 2009, 1:56 pmPatrick S. O'Donnell says:
Formalism is perhaps more appropriately applied to the legal system across the pond: cf. P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law: A Comparative Study in Legal Reasoning, Legal Theory and Legal Institutions (Oxford, UK: Clarendon Press, 1987).
December 31, 2009, 2:26 pmCJColucci says:
I look forward to reading it. I’ve seen enough excerpts to know that Prof. T. has dug up a surprisingly wide variety of figures who were pillars of the legal establishment and were reciting the “realist” gospel avant le lettre. That is probably enough to show that “realism” wasn’t so new and radical. I’d like to see his explanation, though, if he has one, for how the story has been told so wrong so long.
December 31, 2009, 3:13 pmSW says:
So the thesis is: “we were always realists”?
December 31, 2009, 3:46 pmChrisTS says:
I have not read Prof. T’s book, although I have read several of his blog posts on the topic.
I agree that there were few if any genuine formalists of the strawman type depicted by many realists. However, I do think that some realists were, indeed, preaching a unique approach to legal theory.
I’m looking forward to reading the volume.
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January 1, 2010, 5:49 amDesiderius says:
“I particularly liked the book because it takes on a narrow but important point, sticks to that point, and is relentless and unyielding within it. Tamanaha is trying to debunk one specific point, and he doesn’t let himself get distracted by related topics or the need to offer his own general theory.”
That is all the more difficult when the phenomenon one is addressing is so ripe with wider applicability. Thx for pointing out the utility of doing so. Something to chew on.
January 1, 2010, 2:53 pmDavid Bernstein says:
Seconded. Could use a catchier title, e.g., “The Myth of Formalism.”
January 2, 2010, 8:37 am