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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! 111

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