According to conventional wisdom in American legal culture, the 1870s to
1920s was the age of legal formalism, when judges believed that the law
was autonomous and logically ordered, and that they mechanically deduced
right answers in cases. In the 1920s and 1930s, the story continues, the
legal realists discredited this view by demonstrating that the law is
marked by gaps and contradictions, arguing that judges construct legal
justifications to support desired outcomes. This often-repeated
historical account is virtually taken for granted today, and continues
to shape understandings about judging. In this groundbreaking book,
esteemed legal theorist Brian Tamanaha thoroughly debunks the
formalist-realist divide.
Drawing from extensive research into the writings of judges and
scholars, Tamanaha shows how, over the past century and a half, jurists
have regularly expressed a balanced view of judging that acknowledges
the limitations of law and of judges, yet recognizes that judges can and
do render rule-bound decisions. He reveals how the story about the
formalist age was an invention of politically motivated critics of the
courts, and how it has led to significant misunderstandings about legal
realism.
Beyond the Formalist-Realist Divide traces how this false tale has
distorted studies of judging by political scientists and debates among
legal theorists. Recovering a balanced realism about judging, this book
fundamentally rewrites legal history and offers a fresh perspective for
theorists, judges, and practitioners of law.
