April 30, 2008
Tamanaha on "the Bogus Tale about the Legal Formalists"
Brian Tamanaha (St. John's/Institute for Advanced Study) has posted a revised version of this provocative paper which he gave here in Austin several weeks ago. (I am going to work off the version of the paper he gave here, since I have simply not had time to read the posted version in its entirety--though perusing the revised and posted versions, I think the points raised here still stand. I have, in any case, alerted Brian to the post, and invited him to correct me if changes in the new version vitiate any of the points, below).
I am skeptical that Tamanaha has established the strong form of his thesis in this paper, to wit, that
Jurists in the formalist age held views of law and judging as realistic as we do today. Judges and theorists did not widely think of judging as a mechanical or deductive process. The legal realists were not pioneers of realism about judging. Just about everything the realists said about judging was said decades earlier by individuals who have been identified as important formalist thinkers, as well as by many others in legal circles, including a number of accomplished judges. The US legal culture has swallowed whole a largely fictional tale about views of judging during the so-called 'formalist age.' (5)
Tamanaha makes some telling points against particular claims by Grant Gilmore and Jerome Frank, among others, who purported to establish the existence of a formalist age. I certainly do not want to come to their defense against Tamanaha's expose of their careless scholarship. But even granting his reasonable criticisms of those who overstated their case, it seems clear to me that Tamanaha overreaches his own evidence, and thus also overstates his conclusions, in a variety of ways:
1. Tamanaha's evidence for his thesis consists of jurists and scholars saying "realist-sounding" things prior to the 1920s. (I say "realist-sounding" because what is involved in being a realist on Tamanaha's view is a bit ambiguous: we'll return to that, below.) No one, of course, should think that American Legal Realism arose ex nihilo in the 1920s, so it should hardly be surprising that there were jurists and scholars saying "realist-sounding" things prior to the 1920s: of course, Legal Realism had a pre-history! More interesting is that subset of Tamanaha's evidence regarding jurists and scholars saying "realist-sounding" things in the late 19th-century, the purported heyday of "formalism". (Limiting the evidence that way does, however, exclude a great deal, but certainly not all, of the evidence Tamanaha cites--he is, in general, far too impressed with someone saying something "realist-sounding" in the 19-teens, only a handful of years before the emergence of Legal Realism as an intellectual movement!)
2. Yet even the import of late 19th-century quotation evidence is impossible to interpret absent two additional pieces of information which are, alas, absent from Tamanaha's paper: First, are these quotations representative of views in the late 19th-century? Second, even if representative, were they more or less common than similar sentiments in the 1920s and 1930s?
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? As Tamanaha indicated during his workshop here, his claim is that "most "jurists and lawyers during the purported "formalist era" did not embrace formalism. 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? What were the relative proportions of each? Certainly--this would be hard to deny--the overwhelming majority of judicial opinions (then as now) were written in a formalistic style, i.e., as though there were a pre-ordained answer required by law which the court merely discovers. We need to know whether the quotes that Tamanaha collects really capture the Zeitgeist. Tamanaha often points to the importance of the journal where a particular quote appears, or to the fact that a jurist or scholar in question is sometimes called, by the Gilmores and Franks of the world, a "formalist," even though (as Tamanaha shows) he says "realist-sounding" things. But this is not really enough. 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.
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. Once again, Tamanaha's paper is entirely silent on this question which, as far as I can see, is crucial to establishing the strong form of his thesis. (Stefan Vogenauer, the Professor of Comparative Law at Oxford, who was visiting at UT Austin this Spring, made a version of this second point in the workshop, so I hereby credit him for this observation!)
3. Tamanaha plays a bit fast-and-loose with what counts as saying something "realistic," and this, I think, is quite central to the argument of the paper as it stands. Throughout the paper--perhaps most clearly in Part II, but not only there--evidence of "realism" in the purported formalist age is supposed to consist in the fact that jurists and scholars recognized the role of judges in "making law" in a common law system.
This seems rather thin evidence, though. One might have thought the "official" distinction between common law and civil law jurisdictions was precisely that, in the former, judges "make law," and that the only people who deny that are a fringe group of "historical" or "natural law" jurists who think the common law is just the unfolding of reason, truth, or God's will! When Tamanaha cites (21) a scholar in 1907 rejecting the idea that the common law is "the perfection of reason," he is hardly citing someone at the vanguard of Legal Realism! If the best evidence for the "Realism" of the so-called "formalist-age" is that most jurists and scholars did not hold fantastic views of the common law, Tamanaha's argument would be weak indeed. (Not all of Tamanaha's evidence is this bad, to be sure--but I was quite startled to see him invoking as evidence of "realism" that jurists and scholars held the ordinary view of the common law.)
4. Tamanaha gives us no sense of what was distinctive about the arguments and claims of the Legal Realists, which makes it rather too easy for him to describe earlier views as examples of "the Realism of the Formalist age". For example, Realists (as I have reconstructed them: cf. my Naturalizing Jurisprudence) argued that: (1) legal reasoning is indeterminate in cases that reach the stage of appellate review because of the existence of equally legitimate but conflicting canons of interpretation that can be applied to precedents and statutory materials; (2) in deciding cases, judges are responsive to 'situation-types'--recurring factual patterns that elicit a predictable normative response from most jurists, a response that is not, however, predictable based on existing paper rules and doctrines; and (3) in the commercial law context especially, judges look to the "normal" practices in the existing commercial culture in deciding what is the right outcome. Tamanaha adduces no evidence that I saw that these actual theses of the Realists enjoyed any currency in the late 19th-century.
5. The strong version of Tamanaha's thesis--if it were true--would also render mysterious the strong reaction to Legal Realism in the 1930s and 1940s, and continuing to the present day. After all, if it were true that there was no "formalist" age and that Legal Realism just continued earlier lines of thinking, then why did Roscoe Pound, John Dickinson, and Lon Fuller, among others, react so strongly to Realism?
Indeed, on this very blog, we have just recently seen Professor Robert Stevens of University College London contesting the truth and plausibility of Legal Realism--even in Tamanaha's extraordinarily vague sense of "a skeptical take on judging" (p. 7)--and defending a kind of "formalist" view of the law. Surely it would be incredible to suppose that this "formalist" view of the law, and skepticism about "realism," emerged only in British legal academia in recent years? Ronald Dworkin clearly holds the view that Frank attributes to the formalists (pp. 14-15), namely, that "the law, ready-made, pre-exists the judicial decision," yet, again, it would be startling to learn that, until Dworkin, no one held this kind of view of law. One suspects that Tamanaha's history is highly, and misleadingly, selective, and that the Stevens's and Dworkin's of the 19th-century may have vanished from this historical rendering.
6. A final point: early on, Tamanaha cites (p. 3) a 1999 Columbia Law Review article of mine charactizing formalism as "the descriptive theory of adjudication according to which (1) the law is rationally determinate, and (2) judging is mechanical. It follows, moreover, from (1), that (3) legal reasoning ia tuonomous, since the class of legal reasons suffices to justify a unique outcome; no recourse to non-legal reasons is demaned or required." Yet nothing in his entire article has any bearing on this claim, which is about competing jurisprudential views. Even if most late 19th-century writers were "realists" instead of "formalists," this would have no bearing on the jurisprudential question about how we ought to understand adjudication. Tamanaha needs to be clearer on this point. His best target are writers like Gilmore and Frank who overstate the "formalist" tendencies of a certain era in legal thought. The vice he must avoid is overstating, to the same extent, the "realism" (in any philosophically interesting sense) of that very same era.
Thanks for your detailed and thoughtful comments.
The best response I can give at this point is a reference to a follow-up article: "Understanding Legal Realism", which can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1127178
Let me separate two questions: Was there really a "formalist" age (as has been described)? The "Bogus" paper you refer to in your post focuses on that question. The unequivocal answer is: No!
The second question is: Were they "realists" in the late 19th century? As you indicate, a clear definition of "realism" is required to answer this question.
In the "Understanding Legal Realism" paper I set out a clear definition of "realism" up front, and the answer I give, using this definition, is: Yes. In the second paper I provide detailed statements made prior to 1900 (which answers one of your objections about the timing), which I identify as direct parallels to insights associated with the legal realists. I do this on a point by point basis, beginning with a set of well known statements by realists, followed by directly parallel statements made prior to 1900.
In the second paper, I also specifically answer your question about why the realists were subject to criticism if what they said was so familiar.
There are still open questions here that I don't fully understand, but it is clear that all the evidence I present (many statements from many different people) cannot be understood as merely "proto-realism." Too many famous judges (including Thomas Cooley and John Dillon) and jurists descried judging in realistic terms in the 1880s and 1890s to be explained away in this manner.
I still have open questions and uncertainties, but I have no doubt that something is fundamentally wrong about the whole formalist-realist story.
After you read the second paper, the issues will be narrowed.
Posted by: Brian Tamanaha | Apr 30, 2008 10:20:31 PM
I'm somewhat hesitant to pick on the point since I don't know if it's really relevant at all to Tamanaha's paper (which I haven't had a chance to read) but it seems at least misleading to me to say of Dworkin that he thinks "the law, ready-made, pre-exists the judicial decision," since this makes it sound as if he's some sort of legal platonist who thinks the law is independent of human legal activity. That's clearly not so- he's best though to, I'm sure, not as a platonist of any sort but of a constructivist of a sort that we migth compare to either intuitionist/constructivist accounts of mathematics or, perhaps more closely, Kant under a "Kantian constructivist" account of the type given by O'Neil or Rawls. Law is, of course, objective on Dworkin's account, but this is because of objective procedures (just as morality is objective because of objective procedures for a Kantian constructivist and mathematics is objective for the intuitionist for this reason.) Now, there's a sense that this allows us to say that the answer is "there" already before the constructive procedure- if we follow the procedure completely correctly we'll get _this_ answer and not another- but it's not "ready-made" or "pre-exisiting" in the same way that it is for a realist of the platonist stripe. Whether this is enough to make one a "formalist" or not I cannot say, but it has seemed to me that, at least some early critics of formalism were opposed to a sort of legal platonism while Dworkin, at least, is not committed to that idea and seems pretty clearly opposed to it.
Posted by: Matt | May 1, 2008 7:34:58 AM
Hmm, just after posting I realized that I could have been a bit clearer, due to the annoying use of "realism" in the law as opposed to its use in philosophy. Any use of "realism" (as in "platonic realism") in my comment refers to some sort of metaphysical realism, not legal realism. Here I wish Brian Leiter luck in convincing everyone that the (legal) realists were naturalist with the hope this will lead people to talk of legal naturalism so that we can drop the annoying use of "realism" here.
Posted by: Matt | May 1, 2008 7:38:26 AM
I wish I could be as confident as Matt about what Dworkin actually believes about the objectivity of law, but I'd rather not derail this thread further into that topic. It is at least clear that on Dworkin's view everyone can be mistaken about the law of their community and that a judge's duty, in every case, is to discover the right answer as a matter of law. That combination of claims was what I had in mind.
Posted by: Brian Leiter | May 1, 2008 9:34:45 AM
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