Beyond the Formalist-Realist Divide: The Role of Politics in Judging.

• Author: DeGirolami, Marc O.
• Position: Book review

BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING. Brian Z. Tamanaha. (1) Princeton University Press. 2010. Pp. xii + 252. Cloth $70.00, Paper $24.95.

The year 1661 saw the publication of Joseph Glanvill's The Vanity of Dogmatizing, a polemic advocating an intellectual break from Aristotle and the Schoolmen in favor of the sort of empiricism that eventually came to fruition in the philosophy of David Hume. Glanvill was deeply irritated by what he perceived as the encrusted academic orthodoxies of his age: "The Disease of our Intellectuals," he railed, "is too great, not to be its own [evidence]: And they that feel it not, are not less sick, but stupidly so." (3) What was needed was a skeptical cast of mind-thinkers who would shatter the tiresomely durable scholarly categories of the past centuries. The entrenchment of certain archetypical ways of knowing had led to the desiccation of knowledge and eventually to its distortion. True knowledge, said Glanvill, "requires an acuteness and intention to its discovery; while verisimility ... is an obvious sensible on either hand, and affords a large and eas[y] field for loose [i]nquiry." (4)

The passing of academic generations often witnesses challenges to older scholarly categories in favor of the next best thing. But it is rarer to see the attempted upending of an entire way of thinking about a historical phenomenon whose existence has achieved unspoken universal assent. In his book, Beyond the Formalist-Realist Divide, Brian Tamanaha takes up Glanvill's mantle, and his target is one of the most deep-rooted jurisprudential dichotomies of the last century: the concepts of legal formalism and legal realism. The book aims "to free us from the formalist-realist stranglehold," an exercise that, it is claimed, will allow "us [to] recover a sound understanding of judging" (p. 3).

The book makes three contributions--historical, critical, and theoretical. First, it convincingly resuscitates several unjustly discredited figures in American legal history. Second, it offers various perceptive criticisms of the way in which legal scholars and commentators have distorted the views of their predecessors for ideological and other ill-gotten gains. Third, it calls for the repudiation of the formalist and realist categories in favor of what the author touts as "balanced realism" (p. 6), which he claims is both an accurate picture of the way that many judges always have done and continue to do their work, and a normatively attractive jurisprudential account.

This essay summarizes and praises the historical features of the book in Part I. These are the best parts of a very good book. In Part II, the essay explores Tamanaha's interesting critical reconstruction, one which attempts to explain why the formalist/realist dichotomy achieved such salience in the face of copious contrary historical evidence. In the context of assessing the author's critique, the essay expresses some reservations about Tamanaha's appeal to "balanced realism." In specific, it argues that Tamanaha's ultimate reliance on the very scholarly categories that he spends the bulk of his book debunking is surprising and somewhat deflating. This recursive move suggests that even after all the historical smudge-marks have been identified and retouched, the best that can be done is resignation to a kind of murky via media somewhere between formalism and realism's grosser excesses. The essay offers two interpretations of Tamanaha's backslide to "balanced realism," which it calls the metaphysical and the historicist interpretations.

What might all of this mean for legal scholarship? The question is too large to be pursued in any detail here, but Part III speculates about how adopting the metaphysical and historicist modes in legal theory might influence one facet of constitutional theory: originalist and living constitutionalist theories of interpretation. It is tentatively suggested that in light of the sorts of systematic academic distortions that Tamanaha so adeptly documents in the area of jurisprudence, the historicist mode, though rarely pursued by legal theorists, offers a more promising future for this debate in constitutional theory as well as for the formalist/realist question itself.

I

The most successful portion of Tamanaha's illuminating study demonstrates that the so-called "legal formalists" of the late nineteenth and early twentieth centuries have been consistently caricatured and mis-described (sometimes in bad faith) by scholars of later periods. These distortions were often absorbed uncritically--as if by rote--into subsequent academic treatments of American legal history. Tamanaha uncovers evidence that gives shape and texture to the historical portrait of the formalists. He vanquishes the myth that they were "mechanical" jurisprudes fixated on "finding" the law in some sort of nebulous jurisprudential ether, and he shows them to have been keenly aware of the realities of indeterminacy, subjectivity, law's non-autonomy as a discipline, and many other insights of contemporary legal thought. Long-reviled jurists and scholars, including Sir Henry Maine, Thomas Cooley, John Dillon, James Carter, Joseph Beale, Christopher Tiedeman, William Hammond, and Christopher Columbus Langdell, are given well-earned makeovers by Tamanaha's evidence. They are shown to be thinkers in full; no longer robots with cartoonish views, but complex and sophisticated minds.

Conversely, Tamanaha takes legal historians and theorists of later periods to task for gross mischaracterizations of their predecessors. Jerome Frank, Grant Gilmore, and Roscoe Pound come off particularly poorly. Frank is shown to have wantonly manipulated the writings of Maine and Beale by carefully interposed ellipses and other shoddy academic sleight of hand. Where Maine unequivocally asserted that the law was elastic, that judges make law, and that few people then believed that the law was "a complete, coherent, symmetrical body" (p. 14), Frank made it appear that Maine had said precisely the opposite and that lawyers in the 20th century continued to believe Maine's fantastic theories (p. 16). (5)

Gilmore's description of a "Formal Style" of American law in the post-Civil War period, in which as a rule people believed that "law is a closed, logical system" and that a judges' role was to "discover[] what the true rules of law are and indeed always have been" (6) is exposed as a fallacy (p. 18). Tamanaha offers an abundance of fin-de-siecle articles and statements in which lawyers, scholars, and even judges openly acknowledge the existence of "judicial legislation," examples of which include passages from arch-"formalist" historical jurists Cooley and Dillon (pp. 19-20). In Gilmore's telling, Benjamin Cardozo was the great prophet of the "third age" of American law--legal realism--auguring it with his revelation in The Nature of the Judicial Process (7) that judges "made law instead of merely declaring it"; this position, according to Gilmore, "was widely regarded as a legal version of hard-core pornography" at the time (p. 21). In fact, Tamanaha shows that much of what Cardozo wrote about judicial legislation was uncontroversial in 1921 and had been said repeatedly at least twenty years earlier (pp. 21-22), though one should point out there is a difference between a well-known and respected judge saying something and someone else saying it. It is a pity that Tamanaha devotes scant attention (p. 104) to Samuel Williston, a "formalist" giant (unlike at least some of the figures Tamanaha resurrects) who was also maltreated by Gilmore as a pedantic conceptualist technician. (8) In his autobiography and elsewhere, Williston acidly remarked that the realists' brash claims to having discovered the fact of law's indeterminacy and their clarion call that judges must treat the law as "a means to social ends" (9) were old news: "brave men lived before Agamemnon." (10)

As for Pound's influential 1908 article, "Mechanical Jurisprudence," which purported to attack the American "jurisprudence of conceptions" in which "everything is reduced to simple deduction" from procrustean, "predetermined" legal ideas, (11) this critique is shown to have been properly directed at a foreign theoretical construct--German legal science, and its scattered academic partisans (pp. 27-32, 54). Whatever its salience among the scholarly set in the United States (and even among academics, Pound's account was hotly contested (pp. 32-33)), "mechanical jurisprudence" was an exceptionally poor description of how most American judges and lawyers thought about law and adjudication.

Even Pound's constitutional mechanical bete noire--Lochner v. New York (12) (about which, Pound claimed, "rules have been deduced that obstruct the way of social progress" (13))--was interpreted by other leading jurists of the time in exactly the opposite fashion: the Lochner majority had been aggressive with the facts, substituting its own interpretation for that of the New York legislature. (14) Lochner instantiated the tyranny of facts, not mechanical concepts (p. 36). And Justice Holmes's celebrated dissent in Lochner, in which Holmes famously thundered against the constitutionalization of "Mr. Herbert Spencer's Social Statics," (15) was in reality a re-run of nearly identical arguments in 1893 by C.B. Labatt in the American Law Review in response to a Pennsylvania Supreme Court decision striking down legislation prohibiting mine owners from engaging in various abusive payment practices (p. 78). (16)

Likewise for the doctrine of stare decisis. In Pound's telling, the mechanistic quality of jurisprudence had led to slavish obeisance to precedent and the "petrification" of law. (17) But Tamanaha shows that few, if any, jurists in the formalist era believed precedent to be inviolable; not even Blackstone held this view, let alone formalist lawyers like Christopher Tiedeman, Munroe Smith, or...