Academic journal article Texas Law Review

The Mounting Evidence against the "Formalist Age"

Academic journal article Texas Law Review

The Mounting Evidence against the "Formalist Age"

Article excerpt

In Beyond the Formalist-Realist Divide,1 I challenge the widely held view that the American legal culture at the turn of the twentieth century was dominated by belief in legal formalism, which the legal realists came on the scene to shatter. This narrative has been repeated innumerable times by jurisprudents, political scientists, legal historians, and jurists generally. Several political scientists write,

Until the twentieth century, most lawyers and scholars believed that judging was a mechanistic enterprise in which judges applied the law and rendered decisions without recourse to their own ideological or policy preferences. . . . In the 1920s, however, a group of jurists and legal philosophers, known collectively as "legal realists," recognized that judicial discretion was quite broad and that often the law did not mandate a particular result.2

A legal historian observes, "Formalist judges of the 1895-1937 period assumed that law was objective, unchanging, extrinsic to the social climate, and, above all, different from and superior to politics. . . . Legal Realists of the 1920s and [19]30s, tutored by Holmes, Pound, and Cardozo, devastated these assumptions . . . ."3

My book argues that the standard image of the so-called formalist age is largely untrue. Professor Brophy, a legal historian, argues in Did Formalism Never Exist? that I am wrong.4 To engage we must first have a conception of "legal formalism."

I. What Was "Legal Formalism"?

Although characterizations of legal formalism vary, they share a defining core of propositions about the nature of law and judicial decision making. To put it concisely, law is logically ordered, autonomous, and gapless, and judges render decisions through mechanical rule application. The following is an account of legal formalism by Hanoch Dagan, a legal theorist who has written extensively on legal realism:

Classical formalism - culturally personified in the figure of Christopher Columbus Langdell of Harvard Law School - stands for the understanding of law as an autonomous, comprehensive, and rigorously structured doctrinal science. On this view, law is governed by a set of fundamental and logically demonstrable scientific-like principles. Two interrelated features of the formalist conception of law bear emphasis: the purported autonomy and closure of the legal world, and the predominance of formal logic within this autonomous universe.

In formalism, law is 'an internally valid, autonomous, and self- justifying science' in which right answers are 'derived from the autonomous, logical working out of the system.' Law is composed of concepts and rules. With respect to legal concepts, formalism endorses 'a Platonic or Aristotelian theory,' according to which 'a concept delineates the essence of a species or natural kind.' Legal rules, in turn, embedded either in statutes or in case law, are also capable of determining logically necessary legal answers: induction can reduce the amalgam of statutes and case law to a limited number of principles, and legal scientists can then provide right answers to every case that may arise using syllogistic reasoning - classifying the new case into one of these fundamental pigeonholes and deducing correct outcomes.

Because legal reasoning is characterized by these logical terms, internal to it and independent of concrete subject matter, formalism perceives legal reasoners as technicians whose task and expertise is mechanical: to find the law, declare what it says, and apply its pre- existing prescriptions. Because these doctrinal means generate determinate and internally valid right answers, lawyers need not - indeed, should not - address social goals or human values.5

"The realist project begins with a critique of this formalist conception of law," Dagan adds.6

This is an elaborate theoretical reconstruction of what legal formalism held, rather than a statement of the beliefs of any jurists in particular. …

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