In A Matter of Interpretation, Scalia defended textualism—and thus formalism—and stated: Legal formalism can be opposed to legal instrumentalism, a view associated with American legal realism. [16] Instrumentalism is the idea that creativity in the interpretation of legal texts is justified to ensure that the law serves good public order and social interests, although legal instrumentalists may also see the end of law as a promotion of justice or the protection of human rights. It also calls for the exercise of judicial discretion. Legal formalists, however, counter that giving judges the power to change the law to serve their own political ideas undermines the rule of law. This tension is particularly interesting at common law, which depends on current jurisprudence. The “claim to glory” of common law systems is that the task of developing and updating the law is best accomplished gradually by courts that are in close contact with social, economic and technological realities, rather than by political bodies that deal with legal reforms from time to time. Thus, legal realism or “relationalism” has been preferred in some common law jurisdictions, where the type of legal codification associated with civil law is virtually unknown. [ref. needed] It is rare for the law to completely favour one side over the other. There is usually a legal argument that must be made on both sides of a particular issue. However, the law generally leans in one direction, and I have found that the legal force of a case is less important than the given facts of the case. In my experience with local judges, it is often the facts that determine the outcome of cases, not the law; That is, I have had many situations and cases where the law is stacked on my side to some extent and my client has always received an unfavorable outcome.
Conversely, I scratched my head on the results where I was disadvantaged by the law, but I got a victory for my client on the basis of favorable facts. I think it is because most trial judges are legally realistic. I was totally disgusted by Justice Sotomayor`s statement today. If she has not perjured herself, she is not intellectually qualified to sit on the Supreme Court. If she has perjured herself, she is morally unqualified. How can someone who has been on the bench for seventeen years believe that judging in difficult cases involves nothing more than applying the law to the facts? First-year law students understand within a month that many areas of law are overtly structured and vague – that legal material often (in fact, I would always say) need to be supplemented by questionable premises, empirical assumptions, and moral judgments. To pretend otherwise – to claim that fidelity to undisputed principles of law dictates the results – means that whenever judges disagree with each other, someone is either a fool or acting in bad faith. What does it say about our legal system that Justice Sotomayor, in order to be confirmed, must tell the lies she told today? That judges and judges have to live these lies throughout their careers? Perhaps Justice Sotomayor should be excused because our official ideology about judgment is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. The lawyers who defend what she has done today have no such excuse. They should be ashamed of themselves. 8. For a detailed discussion and evidence, see Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (2007), in particular chaps.
1–3. For a shorter discussion, see Leiter, American Legal Realism, in The Blackwell Guide to Philosophy of Law and Legal Theory (M. Golding & W. Edmundson eds., 2005). The description in the text refers to what I call the “sociological wing” of realism, which was the mainstream. Jerome Frank`s views were slightly different on the second and third points. Formalism has been termed “autonomous discipline”[10] in reference to the formalistic belief that judges need only facts and law, with all normative issues such as morality or politics irrelevant. [11] When judges simply apply the rules mechanically and uncontroversially, it protects them from criticism. For this reason, formalism has been called the “official theory of judgment.” [12] Some scholars deny that there ever existed a legal formalism. [13] In his essay “Formal and informal in legal logic”, Jan Woleński argues that there are “rhetorical functions of metalogical concepts used in legal discourse”, hence the introduction of the informal into an otherwise imperative logic.
He reviews Jørgensen`s paradox to introduce deontic logic and acknowledges this innovation of Georg Henrik von Wright. [20] It has long been said: “A good jurist knows the law; A great lawyer knows the judge. This saying couldn`t be truer in everyday legal practice, but perhaps not for the reason most people think of first. In my experience, judges rarely make decisions based on particular relationships or preferences for a particular legal counsel or parties. Of course, this is a great generalization and I am sure it happens somewhere in the democratic world from time to time, but I firmly believe that it rarely happens. Judges, while human, regularly strive to be impartial towards individual litigants or criminal defendants. What is happening, however, is that judges, for the sake of “general fairness,” sometimes deviate from the strict application of the law when this does not seem to be “common sense.” 56. Id., p. 6; cf. ibid. 95-96. Note that balanced realism is not simply an empirical observation of judicial behavior; It is based on a jurisprudential view of the vagueness of legal reasoning, so that judges have to make decisions and can interpret rules and precedents in different ways, etc.25 While the formalism of natural law has historically been associated with Blackstone, it still has a well-known defender who is almost entirely absent from Tamanaha`s book: Ronald Dworkin.
Dworkin believes that the duty of the judge is always to discover the law that already exists in all cases, although he does not support Tamanawa`s second “formalist” thesis, which we will discuss later. The absence of Dworkin, the “ideal type” of the interesting legal formalist, in Tamanaha`s analysis betrays the superficiality of the book`s jurisprudential argumentation. 36. A central realist text comes closest to the commentary by Holmes, Oliver Wendell, The Path of the Law, 10 Harv. L. Rev.457 (1897)Google Scholar on the three possible explanations why a judge might make a particular legal argument (e.g., implying a condition in a contract in a particular case): “It is because of a belief in the practice of the community or class, or because of an opinion on politics, or, in short, because of an attitude of you [the judge] on an issue that cannot be measured quantitatively accurately and is therefore unable to draw precise logical conclusions. Id., p. 466. The realists of the 1920s and 1930s focused almost exclusively on the first and third possibility, not the second. Well, this philosophical battle has been fought for many centuries. At its heart is the clash of two schools of jurisprudence known as “legal realism” and “legal formalism.” “Legal formalism” is probably what most people think of when they imagine how a judge thinks.
“Legal formalism” is the idea that all political questions have been and must be posed by the legislator alone. Legal formalism is primarily about enforcing what the law actually says, not what it could or should say. It is a theory that law is a set of rules and principles independent of other political and social institutions. This theory is the most famous advanced by Supreme Court Justice Antonin Scalia. 59. It is useful here to contrast with Michael Steven Green`s work on realism; see for example Green, Michael Steven, Legal Realism as Theory of Law, 46 Wm. & Mary L. Rev.1915 (2005)Google Scholar. While I think Green is wrong, partly textual and partly philosophical, Green`s work is interesting from a jurisprudential perspective because it articulates precise and distinctive realist theses on law and jurisprudence.
12. Tamanaha, op. cit. cit., note 10, p. 3. This non sequitur is not simply an artifact of the book`s introduction; Tamanaha repeats it much later: “Any approach that defines `formalism` in these terms has dubious validity, as the preceding chapters have shown. These ideas were not widespread in the American legal tradition, if at all they were defended by jurists” (id., p. 160). I believe trial judges are more likely to be legally realistic for a variety of reasons. First and foremost, I believe their overburdened court cases force this into local courtrooms. Judges are often placed in situations where they must act quickly to deal with the large number of cases before their respective courts.
They often “split the baby in half” to solve certain problems. They don`t have the time to sift through lengthy briefs that lawyers are known to write, and frankly, they don`t have the time to spend the time that a cognitive approach would require on joint litigation.