16 LEG 111 (2010)
Legal formalism and legal realism: what is the issue

handle is hein.journals/legthory16 and id is 130 raw text is: 


Legal Theory, 16 (2010), 111-133.
@ Cambridge University Press 2010 0361-6843/10 $15.00 + 00
doi:10.1017/S1352325210000121


LEGAL FORMALISM AND LEGAL

REALISM: WHAT IS THE ISSUE?


Brian  Leiter*
Center  for Law,  Philosophy & Human Values, University of
Chicago



In teachingjurisprudence, I typically distinguish between two different fam-
ilies of theories of adjudication-theories of howjudges 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 au-
tonomous  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 thatjudicial decision-making involves nothing more
than mechanical  deduction  on the model  of the syllogism-Beccaria, for
example,  expresses such a view.2 I call the latter Vulgar Formalism to
emphasize  that it is not a view to which anyone today cares to subscribe.
  It is true enough that deductive reasoning  on the model  of syllogism
is a characteristic feature of most well-done judicial opinions-that is, the
conclusion can be reconstructed as following deductively from a statement
of the applicable rule of law and the statement of the facts. But most legal
reasoning in common-law  jurisdictions3 is given over to explaining why the
applicable rule of law is, in fact, the applicable rule of law and what the legally
significant facts are. And such reasoning is rarely mechanical in the sense
of obvious or machinelike, as the pejorative label implies. Such reasoning
is often contestable and contested, which is why mechanical  does  not
illuminate much  about the nature of legal reasoning. But there are plenty
of jurists and scholars committed  to (1) and  (2) above-we   might  call


  *1 am grateful to Mark Tushnet for helpful feedback and to Frederick Schauer and Scott
Shapiro for detailed comments.
   1. Such theories can be cast in descriptive or normative terms, but I focus mostly on the
descriptive version here. I turn later to what we might call formalist views of rule application
associated in particular with Frederick Schauer.
   2. CESARE BECCARIA, Interpretation of the Law, in OF CRIMES AND PUNISHMENTS (4 (1764).
   3. In some civil-law jurisdictions, the opinions are often written precisely in the form of
vulgar formalism!

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