Formalism and Realism in Ruins (Mapping the Logics of Collapse)

• Author: Pierre Schlag
• Pages: 04

Byron R. White Professor of Law, University of Colorado Law School. This paper was presented at workshops at the University of Colorado Law School, Georgetown University Law Center, and The University of Tulsa College of Law. I am grateful to the participants for their comments and criticisms. Thanks as well to Justin Desautels-Stein, Derek Huntley Kiernan-Johnson, and Ahmed White for their suggestions on an earlier draft.

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I Introduction

Of all the great disputes¹ that have marked American law, formalism vs. realism might well be among the most pervasive and significant. In part, that is because formalism and realism go to the very form, the very identity, of American law.

Today, the theoretical version of the struggle between these two grand visions seems to be dormant. But everywhere, we see residual skirmishes. Everywhere, we notice "localized variants" of the epic struggles: rules vs. standards, textualism vs. purposivism, substantive values vs. formal values (and more).² And as we move from one local "substantive" field to another, we encounter, over and over again, the same argumentative forms: The precise semantics may change, but the grammar remains the same. We encounter roughly the same formalism vs. realism dispute on any substantive terrain: freedom of speech,³ jurisprudence,⁴ federalism,⁵ legal interpretation,⁶ statutory interpretation,⁷ the takings clause,⁸ whatever.

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Everywhere, the debates are as intense and intricate as they are infirm and inconclusive. And everywhere, it seems, we encounter reasonably well-intentioned people—people like me (and now people like you)—drawn to these disputes like moths to a flame.

Why—why do we do this? At some level, we know that formalism and realism are in disrepair and yet, when someone launches a rules vs. standards dispute, we show up to take sides. The same goes for the interpretive variant of the dispute—textualism vs. purposivism. Same goes for value-form definitions—formal or substantive. We are taken in as if by some wondrous or infernal machine.

How did we get here? This will be Part II—where I describe formalism and realism as two great, formal determinations of American law. I will also present their respective standard critiques. The aim of this section is to map out the positions, the rhetoric, and the stakes in a way that will enable us to recognize in this Article (and elsewhere) the presence of a variety of formalism vs. realism disputes—the localized variants.

In Part III, I then show that formalism and realism are at once impossible and entrenched. To say they are impossible is to say that they are not as represented—that they cannot deliver their promised goods. To say that they are entrenched is to say that these forms of thought are sedimented as thought and practice throughout law's empire. It is also to say that the critiques, whatever their conceptual merit, have been insufficient to displace the formalism vs. realism disputes.

We live thus amidst the ruins of formalism and realism. The disputes continue, but in more localized or circumscribed forms. In Part IV, I discuss versions of the disputes in the stylized disagreements over the desired form of judicial doctrines (rules vs. standards), the best rendition of key political values like equality (formal vs. substantive), and the proper mode of judicial interpretation (textual vs. purposive). Here too the arguments that comprise the localized variants of the dispute remain inconclusive. And as for the many efforts dedicated to resolving the disputes—they not only fail at resolution, but ironically succeed in heightening pluralization (hence further heightening the aura of irresolution).

What are we to think, to do? In Part V, I will map the logics of collapse—specifically, some critical moves that undermine the rhetorical force of the formalism vs. realism disputes and their variants. The aims here are several. First, at a basic level, the ability to activate the critical moves helps with analysis—there is no point buying into pro-formalism or pro-realism arguments if they are compromised. The critical moves help showPage 199 how the arguments are constructed in the first place and how they are intellectually compromised. Second, and relatedly, the critical moves allow us to avoid being taken in by the formalism vs. realism arguments and their localized variants. The idea is to regain a bit of our agency (we law-types) as we deal with compromised arguments that nonetheless continue to shape the way we think. The idea is to show how we can get beyond the automaticity of these legal arguments. Third, the aim is to show how our formalist and realist argumentation has already been surpassed by a legal "logic" that undermines the cogency of that argumentation.

II A Conventional Account: Formalism vs. Realism

In American law, there is a conventional story told about formalism and its collapse. As this story is told over and over again, objections to its historical veracity accumulate.9⁹ But while the question of veracity clearly matters (very much so), so does the facticity of the conventional story. True or not, the story has had considerable effect on the way we have come to think of our own law. Although there are variations to the story, generally it goes something as follows:

At the end of the nineteenth century, legal thought in American law schools was dominated by a theoretically unarticulated, though institutionally settled, view of law. According to this view—one tacitly instantiated in treatises and law-review articles—law was a coherent, gapless, autonomous, and comprehensive system of conceptual propositions. This view of law—described by Thomas Grey as "comprehensive" formalism—came under withering critique from the legal realists in the 1920s and 1930s.¹⁰

Once the work of critique was completed, comprehensive formalism was displaced, at least in part, by a working approach to law—call it "realism"—that insisted on its instrumental, practical, contextual, constructed, and adaptive character.¹¹ This tacit working approach—conceived in embryonicPage 200 form by some of the legal realists—has been in place for most of the twentieth century. It has co-existed side by side with the residues of comprehensive formalism.

As intellectual history, the conventional story likely suffers from certain weaknesses. The story is too simple; the temporal ordering is far too neat and unidirectional; the myths of origins loom too large and the narrative (like much legal thought) is too steeped in a philosophical idealism. But even so, this conventional story has been influential across generations of American legal thinkers. It has been told many times. The story has thus influenced what legal thinkers identify and recognize as formalism and realism as well as their characteristic virtues and vices.

Here, with but one significant exception, I try to stick as closely as possible to the conventional story.¹² Accordingly, I make no strong claims here for the accuracy of what actual historical actors labeled as legal formalists or legal realists "really" believed.¹³ I do make two claims. One is to describe an important conventional story about the development of American law—a story still very much in circulation and still of constitutive import for contemporary legal consciousness. I also claim that the modes of thought described here as formalism and realism are recognizable in more or less adulterated/attenuated forms in the consciousness of contemporary jurists and legal thinkers.¹⁴

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A Comprehensive Formalism

Comprehensive formalism presents as a complete vision of law—a contender for what law, broadly understood, is and ought to be. A number of thinkers, including most prominently Ernest Weinrib,¹⁵ David Lyons,¹⁶ Thomas C. Grey,¹⁷ Paul Cox,¹⁸ Duncan Kennedy,¹⁹ and Lawrence B. Solum,²⁰ have described many aspects of comprehensive formalism. Though these thinkers do not always offer the same description, or target the same object of inquiry, there is nonetheless a fair degree of overlap in the various descriptions. Here it is important to recognize that, like so much else in law, formalism remains, itself, incompletely formalized. Not only is there no single agreed-upon conceptualization of formalism, but the several existing conceptualizations are themselves not fully specified. Indeed, somePage 202 conceptualizations of formalism are (and this is not intended as a criticism) downright impressionistic.²¹

Typically, formalism (and here I cull from the theorists mentioned above) represents law in terms of a number of related traits—specifically conceptualism, coherence, gaplessness, autonomy, and comprehensiveness. Below, I describe these traits briefly and indicate in italics the sort of theoretical commitments that they rule out.

Conceptualism: Law contains concepts (e.g., "property") that are sufficiently rich and determinate to allow a "meaning-based"...