LEGAL FORMALISM AND LEGAL REALISM: WHAT IS THE ISSUE?

Abstract

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that (1) the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases (e.g., cases that reach the stage of appellate review); and (2) adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.