Sunday, May 11, 2008

Tamanaha on The Bogus Tale About the Legal Formalists

Brian Z. Tamanaha, St. John's University School of Law, has posted a new paper that has already generated a debate: The Bogus Tale About the Legal Formalists. Here's the abstract:
It is widely accepted that legal formalist views dominated at the turn of the last century: judges, legal academics, and lawyers purportedly believed that law was comprehensive, gapless, and logically ordered, and believed that judges reasoned mechanically or deductively from this body of law to produce right answers in individual cases. This view of law held sway until the 1920s and 1930s, when the legal realists destroyed formalist beliefs by exposing gaps and indeterminacy in law, and by arguing that bias infects judging.
This story has been repeated innumerable times by legal historians, legal theorists, political scientists, and many others. The formalist-realist antithesis shapes contemporary views and debates about judging.

This familiar story is false. A previous draft, The Realism of the Formalist Age, showed some of the evidence for this, but inadequately and without understanding its full implications. This completely revised version expands on the evidence and explains how the story got started, why it is fundamentally wrong, and how it nonetheless successfully secured a place in conventional accounts of US legal history. Through a combination of mistakes and deliberate deceptions, the initial piece of the story was constructed early in the century by political opponents of courts. In the 1970s, motivated by contemporary concerns, leftist legal historians and legal theorists reached back to the earlier period and reinvented the story about the legal formalists, producing an account which then swept the legal academy. This false story has been taken as true ever since.

This article is not just about getting our history right. It provides an object lesson in how modern practices of legal history and legal theory - how reliance upon specialists, and the adoption and repetition of stock stories - can lead to the spread and perpetuation of a falsehood, with real consequences.

Larry Solum on the Legal Theory Blog recommends the paper and has more. Brian Leiter expresses skepticism, which Tamanaha replies to in the comments and here.

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