Beyond The Formalist Realist Divide
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Beyond The Formalist Realist Divide
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Author : Brian Z. Tamanaha
language : en
Publisher: Princeton University Press
Release Date : 2009-10-26
Beyond The Formalist Realist Divide written by Brian Z. Tamanaha and has been published by Princeton University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2009-10-26 with Law categories.
According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide. Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism. Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.
Legal Formalism And Legal Realism
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Author : Brian Leiter
language : en
Publisher:
Release Date : 2010
Legal Formalism And Legal Realism written by Brian Leiter and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2010 with Law categories.
This is a review essay discussing Brian Tamanaha's book BEYOND THE FORMALIST-REALIST DIVIDE (Princeton University Press, 2010). Regarding Tamanaha's historical thesis that 'formalism' was not widely accepted in the 19th-century and that realist themes long predate the American Legal Realists (hereafter 'Realists') of the 1920s, I argue that (1) Tamanaha adduces enough evidence to state at least a prima facie case against any historian who wants to claim that in the 19th-century jurists and scholars generally believed that common-law judges did not make law in new circumstances ('Natural Law Formalism') and that judging was simply a mechanical exercise in deductive reasoning ('Vulgar Formalism'), although we still need to know how representative Tamanaha's evidence is; (2) whether 19th-century jurists and scholars held or rejected more sophisticated (and philosophically interesting) forms of formalism is not addressed at all by Tamanaha's evidence; (3) Tamanaha does not make even a prima facie case that the distinctive theses of the Realists had widespread traction in the 19th-century, partly because he emphasizes themes that were not, in fact, distinctive of Realism (e.g., the political influences on judicial decision), and partly because, when considering distinctive Realist themes, he adduces inapposite evidence or misrepresents the sources he quotes. Regarding Tamanaha's jurisprudential thesis that we can now move beyond the formalist-realist divide, I argue that (1) what Tamanaha calls 'balanced realism' is a somewhat less precise version of the account of Realism developed by Schauer and myself going back some twenty years; (2) Tamanaha is mistaken in arguing that everyone is now a 'balanced realist' largely on the basis of remarks by post-Realist judges (some of whom, like Harry Edwards, recognize that it remains controversial) and without according adequate attention to countervailing evidence, such as the Vulgar Formalism characteristic of public political debate about adjudication in the U.S.; theoretical accounts of adjudication like Ronald Dworkin's, which try to vindicate Natural Law Formalism without any hint of Vulgar Formalism; and the self-understanding of other common-law legal cultures, like England's, which embody formalistic elements; and (3) Tamanaha's attempt to show that 'formalism' is 'empty' actually demonstrates its substantive meaning for many contemporary theorists as a normative theory or ideal for adjudication, rule-application and/or legal reasoning. 'Formalism' and 'realism, ' once precisely characterized, remain useful jurisprudential categories, whatever the historical verdict on whether 19th-century jurists held Vulgar or Natural Law versions of formalism.
Mechanical Jurisprudence
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Author : Roscoe Pound
language : en
Publisher:
Release Date : 1908
Mechanical Jurisprudence written by Roscoe Pound and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1908 with Law categories.
Art And Form
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Author : Sam Rose
language : en
Publisher: Penn State Press
Release Date : 2019-05-10
Art And Form written by Sam Rose and has been published by Penn State Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019-05-10 with Art categories.
This important new study reevaluates British art writing and the rise of formalism in the visual arts from 1900 to 1939. Taking Roger Fry as his starting point, Sam Rose rethinks how ideas about form influenced modernist culture and the movement’s significance to art history today. In the context of modernism, formalist critics are often thought to be interested in art rather than life, a stance exemplified in their support for abstract works that exclude the world outside. But through careful attention to early twentieth-century connoisseurship, aesthetics, art education, design, and art in colonial Nigeria and India, Rose builds an expanded account of form based on its engagement with the social world. Art and Form thus opens discussions on a range of urgent topics in art writing, from its history and the constructions of high and low culture to the idea of global modernism. Rose demonstrates the true breadth of formalism and shows how it lends a new richness to thought about art and visual culture in the early to mid-twentieth century. Accessibly written and analytically sophisticated, Art and Form opens exciting new paths of inquiry into the meaning and lasting importance of formalism and its ties to modernism. It will be invaluable for scholars and enthusiasts of art history and visual culture.
Patterns Of American Jurisprudence
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Author : Neil Duxbury
language : en
Publisher:
Release Date : 1995
Patterns Of American Jurisprudence written by Neil Duxbury and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 1995 with Language Arts & Disciplines categories.
This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The author argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, he demonstrates that American jurisprudence has evolved as a collection of themes which reflects broader American intellectual and cultural concerns.
The Anthem Handbook Of Screen Theory
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Author : Hunter Vaughan
language : en
Publisher: Anthem Press
Release Date : 2018-07-30
The Anthem Handbook Of Screen Theory written by Hunter Vaughan and has been published by Anthem Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-07-30 with Art categories.
The Anthem Handbook of Screen Theory offers a unique and progressive survey of screen theory and how it can be applied to a range of moving-image texts and sociocultural contexts. Focusing on the “handbook” angle, the book includes only original essays from established authors in the field and new scholars on the cutting edge of helping screen theory evolve for the twenty-first-century vistas of new media, social shifts and geopolitical change. This method guarantees a strong foundation and clarity for the canon of film theory, while also situating it as part of a larger genealogy of art theories and critical thought, and reveals the relevance and utility of film theories and concepts to a wide array of expressive practices and specified arguments. The Anthem Handbook of Screen Theory is at once inclusive, applicable and a chance for writers to innovate and really play with where they think the field is, can and should be heading.
The Cambridge Companion To The United States Constitution
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Author : Karen Orren
language : en
Publisher: Cambridge University Press
Release Date : 2018-03-22
The Cambridge Companion To The United States Constitution written by Karen Orren and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-03-22 with Law categories.
Offers an accessible, interdisciplinary, and historically informed introduction to the study of American constitutionalism.
Legal Realism And American Law
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Author : Justin Zaremby
language : en
Publisher: Bloomsbury Publishing USA
Release Date : 2013-12-05
Legal Realism And American Law written by Justin Zaremby and has been published by Bloomsbury Publishing USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013-12-05 with Political Science categories.
In the first part of the 20th century, a group of law scholars offered engaging, and occasionally disconcerting, views on the role of judges and the relationship between law and politics in the United States. These legal realists borrowed methods from the social sciences to carefully study the law as experienced by lawyers, judges, and average citizens and promoted a progressive vision for American law and society. Legal realism investigated the nature of legal reasoning, the purpose of law, and the role of judges. The movement asked questions which reshaped the study of jurisprudence and continue to drive lively debates about the law and politics in classrooms, courtrooms, and even the halls of Congress. This thorough analysis provides an introduction to the ideas, context, and leading personalities of legal realism. It helps situate an important movement in legal theory in the context of American politics and political thought and will be of great interest to students of judicial politics, American constitutional development, and political theory.
Traditions And Transformations
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Author : Michaela Hailbronner
language : en
Publisher: Oxford University Press
Release Date : 2015-10-29
Traditions And Transformations written by Michaela Hailbronner and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2015-10-29 with Law categories.
German constitutionalism has gained a central place in the global comparative debate, but what underpins it remains imperfectly understood. Its distinctive conception of the rule of law and the widespread support for its powerful Constitutional Court are typically explained in one of two ways: as a story of change in reaction to National Socialism, or as the continuation of an older nineteenth-century line of constitutional thought that emphasizes the function of constitutional law as a constraint on state power. But while both narratives account for some important features, their explanatory value is ultimately overrated. This book adopts a broader comparative perspective to understand the rise of the German Constitutional Court. It interprets the particular features of German constitutional jurisprudence and the Court's strength as a reconciliation of two different legal paradigms: first, a hierarchical legal culture as described by Mirjan Damaska, building on Max Weber, as opposed to a more co-ordinate understanding of legal authority such as prevails in the United States, and secondly, the turn towards a transformative understanding of constitutionalism, as it is today most often associated with countries such as South Africa and India. Using post-war legal history and sociological and empirical research in addition to case law, this book demonstrates how German constitutionalism has harmonized the frequently conflicting demands of these two legal paradigms, resulting in a distinctive type of constitutional reasoning, at once open, pragmatic, formalist, and technical, which this book labels Value Formalism. Value Formalism, however, also comes with serious drawbacks, such as a lack of institutional self-reflection in the Court's jurisprudence and a closure of constitutional discourse to laymen, whom it excludes from the realm of legitimate interpreters.
The Prophet Of Harvard Law
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Author : Andrew Porwancher
language : en
Publisher: University Press of Kansas
Release Date : 2022-09-01
The Prophet Of Harvard Law written by Andrew Porwancher and has been published by University Press of Kansas this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022-09-01 with Biography & Autobiography categories.
Amid the halls of Harvard Law, a professor of legend, James Bradley Thayer, shaped generations of students from 1874 to 1902. His devoted protégés included future Supreme Court justices, appellate judges, and law school deans. The legal giants of the Progressive Era—Holmes, Brandeis, and Hand, to name only a few—came under Thayer’s tutelage in their formative years. He imparted to his pupils a novel jurisprudence, attuned to modern realities, that would become known as legal realism. Thayer’s students learned to confront with candor the fallibility of the bench and the uncertainty of the law. Most of all, he instilled in them an abiding faith that appointed judges must entrust elected lawmakers to remedy their own mistakes if America’s experiment in self-government is to survive. In the eyes of his loyal disciples, Thayer was no mere professor; he was a prophet bequeathing to them sacred truths. His followers eventually came to preside over their own courtrooms and classrooms, and from these privileged perches they remade the law in Thayer’s image. Thanks to their efforts, Thayer’s insights are now commonplace truisms. The Prophet of Harvard Law draws from untouched archival sources to reveal the origins of the legal world we inhabit today. It is a story of ideas and people in equal measure. Long before judges don their robes or scholars their gowns, they are mere law students on the cusp of adulthood. At that pivotal phase, a professor can make a mark that endures forever after. Thayer’s life and legacy testify to the profound role of mentorship in shaping the course of legal history.