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. Central to the realist objection to the prevailing attitude of legal formalism was the idea that the law is intrinsically tied to real-world outcomes. Whereas formalists deemed 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. Accordingly, realists tended to view the law as an instrument to achieve social goals and balance competing interests.

Rule Skepticism

Essential to legal formalism is the premise that logical reasoning from the rules and concepts established by precedent suffices to uniquely and completely determine legal outcomes. However, realist critics developed rule-skeptical arguments that upset formalism’s rule-based view of the law.

Rule skepticism can be summarized by the proposition that a rule of law cannot contain its applications. It presents two key difficulties for legal formalism. First, no set of precedents is sufficient to produce a general rule where the set is incomplete. This resembles the problem of induction familiar to philosophers. However, while the proposition that the sun rises every morning can be tested against experience, legal formalism permits no reference point, independent of and external to the law, by which the rightness or wrongness of a legal decision could be judged. Thus, to the extent that the set of prior decisions underlying a particular rule remains open, in principle a holding that expands the rule cannot be incorrect 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, a vicious circle results: the rule depends on its applications, which depend on the rule.

A Science of Values

Legal realism avoids the circular logic of legal formalism by acknowledging 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 put judges in touch with the bedrock habits, beliefs and attitudes that inform their decisions. Thus, he advocates a clear-eyed approach to legal reasoning whereby a judge sees the desired aims of a decision and the reasons for desiring it. His account 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, legal realism promotes the conclusion that legal decisions are inherently and inescapably political, imbued with subjectivity and affecting the intersection of multiple competing social forces. Thus, even a respect for precedent represents a political commitment. Law is always politics by another name. Consequently, given that legal decision-making is always political, if a realist approach to legal reasoning does not produce qualitatively different legal outcomes than a formalist approach, the competing theories differ only nominally. In other words, where a judge would reach the same conclusion, either by reasoning exclusively from precedent or by abandoning it in favor of consciously held policy objectives, the distinction becomes academic. Only where legal formalism imposes real obstacles to the accomplishment of a desired social outcome, does the realist critique achieve practical relevance. In this way, realism lends itself to the characterization that it permits a little more than the law will allow.

Where a realist approach does produce a qualitatively different outcome than those conceivable within the existing framework of the law—in other words, where it makes a clean break from precedent—another question arises. What is the basis of realism’s authority? Generally, realism bases its authority on a claim to authenticity. The realist judge consciously takes a specific social goal as her object, whereas the formalist is naïve to her underlying motivations.

However, realism’s claim to authenticity is troubled by an epistemological gap. Holmes’ 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.

Accordingly, while a judge may consciously grasp the desired social aims of a decision, she cannot also perceive with similar clarity the motivations underlying those aims. These must be taken on faith. But, absent a compelling claim of access to the subterranean processes that inform a judgment, realism fails to fulfill its promise of authenticity. For the realist as well as the formalist judge, the rationale offered to explain a legal conclusion fails to comprehend its psychological substrate.

Conclusion

The realist critique of legal formalism is compelling. Judges cannot avoid their role as policy-makers, and legal outcomes are not predetermined. However, the realist objections to formalism tend to overstate the indeterminacy of legal outcomes. This shortcoming is internal to the critique. If a formalist approach truly permitted all the legal outcomes that heaven allows, then the realist counterargument would lose most of its relevance. A judge could pursue a desired social goal under formalist pretense. Rather, a formalist approach enables a narrow field of possible outcomes. Consequently, the putative loss of intellectual honesty may be offset by a social gain from increased stability. Therefore, while realism is useful as a tool to analyze past decisions and predict future outcomes, its value as a theory of judicial license is dubious.

-- BrookSutton - 14 May 2010