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Beyond the Formalist-Realist Divide: The Role of Politics in Judging
According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide.
Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.
Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.
Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism.
Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.
- GenresLaw
264 pages, Paperback
First published January 1, 2009
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February 21, 2010
Not for the nonlawyers, because if you haven't gotten at least a three year law school dose of legal history with the traditional story about the realists and their politics of law taking over from the stodgy old formalists, it won't mean a damned thing.
If you have been to law school, the first half of this book is a fantastic revisionist counterfactual, calling into question everything we're taught about Holmes and Cardozo and Pound and that entire lot. Tamanaha leans on the primary sources to explain how the idea of formalism was actually invented by radical realists, and that in fact judges as far back as the 1850's candidly discuss the role of politics and indeterminacy in judging. That part is fascinating and illuminating. I was less thrilled with the second half, which discusses at length how the quantitative study of judging has imported this false intellectual dichotomy to its detriment, and its biased studies are misinterpreted in the service of disproving formalism, which doesn't really exist, anyway. Fine, but the use of the tools of historical analysis to try to take down social science methodology was just wrong. You don't get to complain about bias inherited from a historical narrative, and then suggest the answer is to supply a second narrative. That entirely misses the point, which is that social science methodology needs to be critiqued with statistics and actual analysis. Sigh.
If you have been to law school, the first half of this book is a fantastic revisionist counterfactual, calling into question everything we're taught about Holmes and Cardozo and Pound and that entire lot. Tamanaha leans on the primary sources to explain how the idea of formalism was actually invented by radical realists, and that in fact judges as far back as the 1850's candidly discuss the role of politics and indeterminacy in judging. That part is fascinating and illuminating. I was less thrilled with the second half, which discusses at length how the quantitative study of judging has imported this false intellectual dichotomy to its detriment, and its biased studies are misinterpreted in the service of disproving formalism, which doesn't really exist, anyway. Fine, but the use of the tools of historical analysis to try to take down social science methodology was just wrong. You don't get to complain about bias inherited from a historical narrative, and then suggest the answer is to supply a second narrative. That entirely misses the point, which is that social science methodology needs to be critiqued with statistics and actual analysis. Sigh.
Displaying 1 of 1 review