Legal Formalism and Legal Realism

Abstract This essay offers a critical discussion of Brian Tamanaha’s book Beyond the Formalist-Realist Divide (2010). Regarding Tamanaha’s historical theses, I argue that (1) Tamanaha adduces enough evidence to state at least a prima facie case against any historian who wants to claim that in the nineteenth-century jurists and scholars generally believed that common-law judges did not make law in new circumstances (“Natural Law Formalism”) and that judging was simply a mechanical exercise in deductive reasoning (“Vulgar Formalism”), although we still need to know how representative Tamanaha’s evidence actually is; (2) whether nineteenth-century jurists and scholars held or rejected more sophisticated (and philosophically interesting) forms of formalism is not addressed at all; (3) Tamanaha does not make even a prima facie case that the distinctive theses of the American legal realists had widespread traction in the nineteenth-century, partly because he emphasizes themes that were not, in fact, distinctive of realism (e.g., the political influences on judicial decision), and partly because, when considering distinctive realist themes, he adduces inapposite evidence or misrepresents the sources he cites. Regarding Tamanaha’s jurisprudential thesis that we can now move beyond the formalist-realist divide, I argue that (1) what Tamanaha calls “balanced realism” is a somewhat less precise version of the account of realism developed by Frederick Schauer and myself going back some twenty years; (2) Tamanaha is mistaken in arguing that everyone is now a “balanced realist,” and (3) Tamanaha’s attempt to show that “formalism” is “empty” actually demonstrates its substantive meaning for many contemporary theorists as a normative theory or ideal for adjudication, rule-application, and/or legal reasoning. “Formalism” and “realism,” once precisely characterized, remain useful jurisprudential categories, whatever the historical verdict on whether nineteenth-century jurists held vulgar or natural law versions of formalism.