Tamanaha on the Combination of Formalism and Realism

Brian Z. Tamanaha, Washington University, St. Louis, School of Law, has published The Combination of Formalism and Realism as Washington University in St. Louis Legal Studies Research Paper No. 17-03-01. Here is the abstract.

For several generations now, legal scholars in the United States have framed debates about law and judging in terms of formalism-versus-realism. This entrenched framework is grounded in a widely accepted historical account. In this essay, I dismantle this antithesis and reconstruct their relationship. When properly understood, they go together. The first half of the essay shows that the conventional historical narrative is incorrect. Realism about law and judging has long been present in the American legal tradition. This discussion covers the views of Langdell, James Fitzjames Stephen, and other nineteenth and twentieth century jurists. The second half of the essay explains why systematic rule formalism is necessary, why realism is inevitable, and how they go together. The legal system would not work absent formalism, realism is parasitic on formalism, and realism reflects the ameliorating presence of human judgments within formalistic systems. The formalism-versus-realism framework does not allow this relationship to be expressed as a coherent bundle of views about law and judging, and should be discarded.

Download the article from SSRN at the link.