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 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 the 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, a holding that expands a rule by expanding the set of decisions it derives from cannot be incorrect purely as a matter of law. In principle, the rule always admits an exception. 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 when applied to a new case. Taken together, these challenges indicate 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 legal 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 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. Holmes’s 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 realist thinkers conclude that legal decisions are inherently and inescapably political. Under their analysis, even a respect for precedent represents a political commitment. Thus, law is always politics by another name. Consequently, 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 legal conclusion, either by reasoning exclusively from precedent or by abandoning it completely 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 goal, 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 policy goal as her objective, 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 persuasive 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 is blind to its psychological substrate.

Conclusion

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 truly permitted all conceivable legal outcomes, then the realist counterargument would lose much of its relevance. A judge could pursue a desired social goal under formalist pretense. Instead, a formalist approach enables a narrower field of possible outcomes, circumscribed by the applicable rule. Consequently, any putative loss of intellectual honesty incurred by a formalist jurisprudence may be offset by a social gain from increased stability and predictability in the law. Therefore, 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.