It is almost a truism in contemporary legal theory and legal history that the 1870s through the 1920s was the age of formalism. Judges in this period applied logical methods, relied upon conceptual analysis, and rendered decisions in a rule-bound fashion that paid little heed to social consequences. The common law was characterized as comprehensive, gapless, and logically consistent, with a right answer for every case; law was understood to be a science. A more realistic view of law was ushered in by the Legal Realists, who built upon the writings of Oliver Wendell Holmes and Roscoe Pound to destroy formalistic thought. The Realists argued that the law is substantially indeterminate: there are gaps and inconsistencies in the law, exceptions can be found for most rules or principles, precedent often can be enlisted to support opposite outcomes. They argued that judicial decisions should not be based upon abstract conceptual analysis; rather, law is a means to social ends. A number of Realists argued that judicial decisions are the product of subjective predilections of judges, or that judges come to the result first, then structure their legal analysis to rationalize the result.
This article argues that the standard account of the formalist period is fundamentally incorrect. Quoting and citing many speeches and publications, it demonstrates that a consummately realistic view of law and judicial decision making was expressed throughout the so-called formalist period. Many of these realistic statements - mentioning the uncertainty of law, the availability of precedents on all sides, and the understanding that judges' subjective views influence their legal decisions - were uttered by judges, professors, and leaders of the bar. The article shows how the image of formalism was constructed by Roscoe Pound, Karl Llewellyn, and Grant Gilmore in a manner that systematically excluded this large body of realistic discourse, thereby creating a distorted portrayal of the period. Moreover, the article argues that our perception of the Legal Realists (and Holmes) as bold mavericks is erroneous. The Realists were merely the latest episode in a constant stream of skeptical observations about law and judging that extends back many decades.
The objective of this article, beyond correcting our misimpression of these important periods in our legal history, is to break the hold of the formalist-realist antithesis that structures and constrains contemporary views of judicial decision making.
Brian Tamanaha is the Chief Judge Benjamin N. Cardozo Professor of Law at St. John's School of Law and a Member at the Institute for Advanced Study in 2007-2008. He is the author of five books: Law as a Means to an End: Threat to the Rule of Law (Cambridge 2006); On the Rule of Law: History, Politics, Theory (Cambridge 2004); A General Jurisprudence of Law and Society (Oxford 2001); Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (Oxford 1997); and Understanding Law in Micronesia: An Interpretive Approach to Transplanted Law (Brill 1993). He has also published articles in a variety of leading journals, including the Oxford Journal of Legal Studies, American Journal of International Law, American Journal of Comparative Law, American Journal of Jurisprudence, Law and Society Review, and the Harvard Civil Rights-Civil Liberties Law Review.
Professor Tamanaha's scholarship has achieved wide recognition. He is the recipient of the inaugural Dennis Leslie Mahoney Prize (2006) for an outstanding contemporary work in sociological jurisprudence, awarded to his General Jurisprudence book, which also won the 2002 Herbert Jacob Book Prize from the Law and Society Association. His second book, Realistic Socio-Legal Theory, was the subject of a symposium issue of the Rutgers Law Review, it received a Special Recognition Award (1998) from the Law and Society Association, and it was identified in Lloyd's Introduction to Jurisprudence as one of the "most significant [jurisprudence] books" to appear in the 1990's. Professor Tamanaha's most recent book, Law as a Means to an End, received an Honorable Mention Award from the Association of American Publishers for the best professional/scholarly book published on law in 2006.
Professor Tamanaha delivered the 2007 Julius Stone Address at the University of Sydney. He delivered the inaugural Montesquieu Lecture (2004) at the University of Tilburg and delivered the Keynote Address at the Conference on Law and Social Theory (2001) at Wolfson College, Oxford University. Prior to joining the St. John's law faculty, Professor Tamanaha taught law for four years at the University of Amsterdam, and worked as a Research Associate at the Van Vollenhoven Institute for Law and Administration in Non-Western Countries. He has also been a Visiting Professor at Anton de Kom University of Suriname, and a Lecturer in the Graduate Program at Harvard Law School and at the College of Micronesia.
For more on Professor Tamanaha, see his St. John's School of Law profile page.