Legal Formalism And Legal Realism

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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.

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.

The Origins Of Modern American Jurisprudence

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Author : Neil Duxbury
language : en
Publisher:
Release Date : 1991

The Origins Of Modern 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 1991 with Jurisprudence categories.

Structures Of Judicial Decision Making From Legal Formalism To Critical Theory

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Author : Roy Lavon Brooks
language : en
Publisher:
Release Date : 2005

Structures Of Judicial Decision Making From Legal Formalism To Critical Theory written by Roy Lavon Brooks and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2005 with Critical legal studies categories.

To order a paperback version of this book, please click here. This is a general book on jurisprudence designed for both the novice and more experienced student, which makes it suitable for first-year law students. It is the first book to distinguish and connect traditional theories of judicial decision-making (e.g., legal formalism, textualism, legal realism, and legal process) with "critical process" (which is critical theory transformed from a theory of legal criticism into a theory of judicial decision-making). Brooks breaks new ground on several other fronts as well -- he employs an innovative framework that divides judicial decision-making models into the "logical method" and the "policy method;" offers a more nuanced conceptualization of judicial policy-formulation in which judges are seen as not only making policy, but also (and more typically) as discovering and vindicating policy; redefines "policy-making" in a manner that is different from our traditional understanding of the term; and synthesizes critical process into three judicial models: symmetrical, asymmetrical, and hybrid. The book is written in two parts. Part 1 (Traditional Process) discusses five major traditional judicial models, each reflective of either the logical method or the policy method. Part 1 ends with a synthesis of the traditional models (dividing them into three categories), which judges who have used the book find to be most useful. Part 2 (Critical Process) begins with a discussion of critical theory's central theme and operating elements and then transforms these features into a theory of outsider-oriented judicial decision making, something judges can actually use in deciding cases. Critical theory is thus transformed into "critical process."

Legal Realism And Twentieth Century American Jurisprudence

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Author : Gary Jan Aichele
language : en
Publisher: Garland Publishing
Release Date : 1990

Legal Realism And Twentieth Century American Jurisprudence written by Gary Jan Aichele and has been published by Garland Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 1990 with Law categories.

The Origins Of Modern American Jurisprudence Part I

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Author : Neil Duxbury
language : en
Publisher:
Release Date : 1991

The Origins Of Modern American Jurisprudence Part I 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 1991 with Law categories.

Patterns Of American Jurisprudence

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Author : Neil Duxbury
language : en
Publisher: Clarendon Press
Release Date : 1995-06-08

Patterns Of American Jurisprudence written by Neil Duxbury and has been published by Clarendon Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 1995-06-08 with Law 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 reflect broader American intellectual and cultural concerns.

Legal Positivism In American Jurisprudence

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Author : Anthony J. Sebok
language : en
Publisher: Cambridge University Press
Release Date : 1998-10-28

Legal Positivism In American Jurisprudence written by Anthony J. Sebok 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 1998-10-28 with Law categories.

This work represents a serious and philosophically sophisticated guide to modern American legal theory, demonstrating that legal positivism has been a misunderstood and underappreciated perspective through most of twentieth-century American legal thought.

The Blackwell Guide To The Philosophy Of Law And Legal Theory

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Author : Martin P. Golding
language : en
Publisher: John Wiley & Sons
Release Date : 2008-04-15

The Blackwell Guide To The Philosophy Of Law And Legal Theory written by Martin P. Golding and has been published by John Wiley & Sons this book supported file pdf, txt, epub, kindle and other format this book has been release on 2008-04-15 with Philosophy categories.

The Blackwell Guide to the Philosophy of Law and Legal Theory is a handy guide to the state of play in contemporary philosophy of law and legal theory. Comprises 23 essays critical essays on the central themes and issues of the philosophy of law today, written by an international assembly of distinguished philosophers and legal theorists Each essay incorporates essential background material on the history and logic of the topic, as well as advancing the arguments Represents a wide variety of perspectives on current legal theory

Formalism And Pragmatism In American Law

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Author : Thomas C. Grey
language : en
Publisher: BRILL
Release Date : 2014-09-03

Formalism And Pragmatism In American Law written by Thomas C. Grey and has been published by BRILL this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014-09-03 with Law categories.

In Formalism and Pragmatism in American Law Thomas Grey gives a full account of each of these modes of legal thought, with particular attention to the versions of them promulgated by their influential exponents Christopher Columbus Langdell and Oliver Wendell Holmes, Jr. Grey argues that legal pragmatism as understood by Holmes is the best jurisprudential framework for a modern legal system. He enriches his theoretical account with treatments of central issues in three important areas of law in the United States: constitutional interpretation, property, and torts.