Law in Contemporary Society

Just a Little Bit More than the Law Will Allow

In the first half of the last century, realist thinkers launched a formidable intellectual assault on American legal orthodoxy. Legal realists objected to the prevailing formalist paradigm, proposing instead that the law is intrinsically tied to real-world outcomes. Whereas formalists aspired to separate legal reasoning from normative and policy considerations, realists embraced the human aspect of the law and the liberty it offered from formal constraints. As a result, realists tended to view the law as an instrument to achieve social goals and balance competing interests. However, while legal realism provides an effective analytical tool for understanding and predicting legal outcomes, it fails to justify a broad theory of judicial license.

Rule Skepticism

Legal formalism rests on the belief that logical reasoning from the rules and concepts established by precedent suffices to uniquely and completely determine legal outcomes. Realist critics proposed rule-skeptical arguments that upset this rule-based view of the law.

Rule-skepticism presents two key difficulties for legal formalists. First, no set of prior decisions is sufficient to produce a general rule where that set is incomplete. This resembles the problem of induction familiar to philosophers. However, while a proposition that the sun rises every morning can be tested against experience, legal formalism permits no reference point independent of and external to precedent by which the rightness or wrongness of a legal decision could be judged. Thus, where a rule is based on precedent, a holding that expands the rule by expanding the set of decisions from which it derives cannot be incorrect purely as a matter of law.

Rule skepticism raises a second not unrelated challenge for legal formalists insofar as any set of prior decisions generates an indefinite number of possible rules. Even controlling for absurdities, precedent is likely to yield several equally defensible rule interpretations. Taken together, these challenges reveal a vicious circle: the rule depends on its applications, which depend on the rule.

A Science of Values

Legal realism avoids the circular logic of formalism by recognizing the influence of external factors on legal decision-making. In The Common Law, Holmes states that the life of the law has not been logic, but experience. He surmises that courts respond to the “felt necessities of the times,” as well as personal and social biases in rendering their judgments.

Holmes calls for a legal method that would unearth the hidden forces that underlie legal reasoning—a “science of values.” A science of values would uncover the bedrock habits, beliefs and attitudes that inform a judge’s decisions. Accordingly, he advocates a clear-eyed approach to legal reasoning whereby a judge grasps the desired aims of a judgment as well as the reasons for desiring them. Holmes’s proposal provides a basic description of the legal realist attitude, which elevates policy considerations in legal decision-making and rejects mechanical deference to precedent where it does not serve broader social goals.

The Moving Target

Following Holmes, realist legal philosophers held that legal decisions are inherently and inescapably political. Under their analysis, even a respect for precedent represents a political commitment. However because law is always politics by another name, if a realist approach to legal decision-making does not produce qualitatively different outcomes as compared to a formalist approach, the competing theories differ only nominally. Put another way, where a judge would reach the same legal conclusion, either by reasoning exclusively from precedent or by abandoning it completely in favor of consciously held policy objectives, the distinction becomes academic. In this way, realism lends itself to the characterization that it permits a little bit more than the law will allow.

Where a realist approach does produce qualitatively different legal outcomes than those conceivable within an existing framework of law—where it makes a clean break from precedent—another question arises: what justifies its authority? Generally, realism bases its authority on a claim to authenticity. The realist judge consciously takes aim at specific social goals, whereas the formalist judge pursues policy objectives under pretense.

However, the realist claim to authenticity fails to justify a theory of judicial license that would grant judges wide berth to break with precedent for policy reasons. First, the realist claim is troubled by an epistemological gap. Holmes’s science of values presupposes that the elements of psychic life are knowable as simple matters of fact, like a desk or a lamp. Values, though, are not simple matters of fact, but lenses through which the world is viewed. Therefore, no reference to experience can confirm the primacy of experience with regard to them—just as one cannot see the act of seeing—and transcendental arguments necessarily fall outside the realist project. As a result, a realist approach cannot underwrite a superior claim of access to the psychological substrate of a decision, even where the aims of that decision can be clearly grasped.

Second, the realist argument admits circularity. It would grant broad license to judges to pursue policy objectives partly on the premise that the indeterminacy of formal reasoning already accomplishes this, if only implicitly. As discussed above however, if formalism actually sustained such broad judicial license the realist critique would lose its practical relevance. Instead, precedent constrains formalist decision-making, even if it cannot predetermine legal outcomes.


The realist critique of legal formalism is compelling. Judges cannot avoid their role as policy-makers, and precedent cannot predetermine legal outcomes. However, realists’ objections to formalism overstate the indeterminacy of legal outcomes. This shortcoming is internal to their critique. If a formalist approach could contain all conceivable outcomes, then the realist counterargument would lose much of its relevance. A judge could pursue desired social goals under formalist pretense. Rather, a formalist approach enables a narrower field of possible legal outcomes on which forces other than logic also operate to produce a decision. Consequently, any putative loss of intellectual honesty incurred in adherence to the formalist paradigm may be offset by a social gain from increased stability and predictability in the law. As a result, while legal realism provides a useful tool to analyze past outcomes and predict future decisions, its value as a theory of broad judicial license is dubious.


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r5 - 07 Jun 2010 - 22:14:47 - BrookSutton
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