Professor Tamanaha did me the honor of commenting on my post about his book. In my post I float the possibility that Beyond the Formalist-Realist Divide mischaracterizes formalism and legal realism. Here I will defend the viability of my alternative against Tamanaha’s criticism of it.
BTFRD says that formalism and legal realism are both politically motivated constructions, originated within the legal academy, that have been falsely imputed on various jurisprudential traditions. Formalism is the view – wrongly said, nowadays, to be the dominant ideology of jurisprudents in the 1870s-1920s – that the law is a “determinate set of rules” from which the right result in any given case can be “mechanically deduced.” Legal realism, by contrast, says that the law is often indeterminate – a broad swathe of cases must be decided on the basis of extra-legal (moral, political, traditional, aesthetic, etc.) considerations. Legal realism is the view with which the self-described legal realists of the 1920s and 30s – Holmes, Cardozo, Pound, and so forth – are saddled.
In fact, says Tamanaha, both the self-described “legal realists” and the so-called “formalists” subscribed to balanced realism, which holds that the law has a (substantial) “rule-bound aspect,” along with a “skeptical aspect” – that it is largely, but not entirely, determinate.
Tamanaha provides considerable support, in the form of quotations from prominent fin de siecle judges and jurisprudents, for the contention that the so-called formalists adhered neither to “law-as-determinate” nor “judging-as-mechanical.” Likewise, he shows that realists were not “rule-skeptics” (in Hart’s sense).
In my earlier post I argue that Tamanaha does not seriously consider, and so does not confute, another possibility, viz. that formalists thought determinate law and mechanical judging were attainable ideals, whereas the realists denied this. I motivate this possibility as (a) making sense of why, in response to complaints about the incompleteness and uncertainty of the common law, so-called formalists urged codification (codification isn’t a remedy for incompleteness and uncertainty if determinacy and (deductive, mechanical) certainty aren’t achievable), (b) vindicating an approach to quantitative studies of judging that Tamanaha thinks only makes sense to those in the grips of the formalist-realist myth, and (c) vindicating, too, the frank politicization of the judiciary.
Tamanaha responds by denying the force of motivation (a) (the “codification motivation”), and asserting that the so-called formalists also repudiated the attainability of determinate law and mechanical judging. A (rude) summary of his (graceful) reply is, Did you even read my book!?!? I reproduce his comment in relevant part:
The problem with your analysis is that Dillon (and Cooley, etc.) [so-called “formalists”] thought that the openness of law was inevitable–irreducible. I know this because they said it many times (and you should have come across these quotes in the book).
There is a difference between asserting that law should be made more coherent (and it was a mess at the time) and advocating the “deductive, mechanical” judging ideal. Your commentary conflates their advocacy of the former with the latter. If you actually read what they wrote, you will see that is not the case. Cooley, in particular, wrote that uncertainty is inevitable in law (again I quote this in the text).
His second paragraph addresses the codification motivation. He says that those who wanted to reduce legal uncertainty never wanted to eliminate it; they wanted to make the law more coherent, not determinate. But here is Judge John Dillon summarizing the case for codification:
It is manifest from the foregoing discussion, that the Judges from the very nature of their functions, can not develop the general principles of the law so as to take in the entire subject, or do anything…towards giving anything like completeness to the law or any branch of it. Not only is case law incomplete, but the multiplicity and conflict of decisions is one of the most fruitful causes of the unnecessary uncertainty, which characterizes the jurisprudence of England and America (Tamanaha, 35; quoting Dillon).
As I read it, Dillon’s lamentation that judges cannot give “anything like” completeness to the law is the corollary of his exhortation that legislators give it something like completeness. Completeness, then – determinacy – should be the animating ideal; even if it is not, it should be thought attainable.
Tamanaha gives this reading some indirect support, in the course of confirming, more generally, my characterization of what was at issue between the formalists and the realists. In the subsection to Chapter II “What They Meant by “Judges Do Not Create Law,” Tamanaha asserts that prominent jurisprudents, such as Henry Maine (the giant – if one can speak of giants – of the 19th century) and his successors, acknowledge that “Theoretically, the special rules of the common law are derived from a pre-existing body of general principles, and when a new question arises the answer is to be found by deducing from some recognized principle the required new rule” (Tamanaha, 23). “This conception has great and beneficent results.” Here, we seem to have the so-called “formalists” endorsing (and celebrating) precisely what I hypothesize they endorse: the attainability of determinate law and mechanical jurisprudence.
But there is a complication. In their more reflective moments, the same jurisprudents who acknowledge that, theoretically, law is determinate and judging mechanical, also agree that these are just useful fictions. (Tamanaha gives textual support for this on p. 19.) Their view is that we ought to pretend that determinate law and mechanical judging are attainable ideals even though they aren’t. But pretend-belief is not belief. Does it not, therefore, remain an error to attribute to the formalists a belief in the attainability of that ideal?
The question takes us to a profound methodological issue, and to my most fundamental complaint about Tamanaha’s book. The profound methodological issue concerns whether a legal (or any other political or social) theorist or historian, interested – as Tamanaha is – in the effect of ideas on institutions, should examine the considered opinions of intellectual tradition, or its “operationalized” opinions. In other words, should he attribute to different social (political, juridical, etc.) actors the beliefs and attitudes that they accepted as working assumptions for navigating the world, or those they accepted (only) at their most reflective?
This same issue arises in other contexts, most notably the debate over liberalism. Some commentators criticize liberalism qua the set of beliefs and attitudes that form the backdrop against which we actually make sense of liberal institutions, and our role in them. (These beliefs and attitudes are inferred from the structure of our institutions, how they developed, how we navigate them, and how we justify them when we aren’t being philosophical). Others address themselves to liberalism qua a revisionist, academic conception of it (like John Rawls’s). These two projects are compatible, but trouble arises when we mistake a revisionist conception of liberalism for the real thing. Rawls’s theory has had scant impact on contemporary institutions, on the way we perceive ourselves, and on the way we go about political deliberation. On the other hand, “operationalized liberalism” – the liberalism that respects voluntarism, and regards individual well-being as the criterion of good policy, tolerance as an ideal, and state-power as inherently suspect – has had a tremendous effect on policy justifications and the shape of institutions.
Did the operationalized view of the attainability of determinate law from which answers are mechanically deducible likewise have more of an effect on judicial argumentation (and the outcomes of cases) than did the reflective acknowledgment that it was all a big fiction? Was it the “entrenched ideology” that the legal realists set out to explode? If so, then that is the attitude of the (no longer “so-called”) formalists with which a student of the effects of ideas on institutions should concern himself, and that is the attitude that the realists critiqued.
In sum, it is still viable to claim that the difference between the formalists and the realists is that the formalists believed (in the sense of embracing as a proposition on which to act) that determinate law from which answers can be mechanically deduced was an attainable ideal, and the realists denied that. This is so because it is the beliefs on which social actors are willing to act that historians and theorists interested in the effect of ideas on institutions should take as representative of an age (and as worthy of examination). The fundamental problem with Tamanaha’s book is that it conflates the reflective views of the formalists with their operationalized views. Brian Leiter is getting at this when he worries that:
Adducing quotes of jurists and lawyers during the purported ‘formalist era’ quite obviously does not establish [whether there was] an era in which something called ‘formalism’ captured a widely shared view or ethos…We need to know whether the quotes Tamanaha collects really capture the Zeitgeist.
I say that some of them – the ones that support my reformulation of the formalist-realist divide – capture it well.
Update: It occurs to me that it might be tempting to think that I have shifted my objection. Whereas before I attributed to the formalists a considered, reflective belief in the attainability of determinate law and mechanical judging, now I say only that they accepted that ideal in certain contexts. The shift, one might add, transforms the character of my critique. It is no longer “internal” – it no longer shows that even granting Tamanaha his premises and presuppositions, his thesis is in error. The claim, instead, is that one of Tamanaha’s presuppositions – that an intellectual tradition only “holds” its considered opinions – is false. It is, therefore, a less impressive critique; Tamanaha’s presupposition is respectable and he should feel no compunction about biting the bullet.
I still think my critique is internal, because I think that we all do attribute to a public intellectual tradition – an intellectual tradition with reformist or preservative aspirations – “belief” in whatever opinions they act on. That is a presupposition we all make, whether we acknowledge it or not. It is a presupposition that lay tacit in my earlier criticism, and I made it explicit in this one. I have stood my ground, and I stand on shared terrain.*
* I’m giving my perorations away for free, if anybody’s buying…