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DeGirolami on Tamanaha on Formalism & Realism

By Lawrence Solum

Marc O. DeGirolami (St. John's University School of Law) has posted The Vanity of Dogmatizing (Constitutional Commentary, Vol. 27, 2010-2011) on SSRN. Here is the abstract:

This essay considers Brian Tamanaha?s ?Beyond the Formalist-Realist Divide,? a book which takes aim at one of the most deep-rooted jurisprudential dichotomies of the last century: the concepts of legal formalism and legal realism. The book aims ?to free us from the formalist-realist stranglehold,? an exercise that, it is claimed, will allow ?us [to] recover a sound understanding of judging.?

After summarizing the historical features of the book, this essay explores Tamanaha?s interesting critical reconstruction, one which attempts to explain why the formalist/realist dichotomy achieved such salience in the face of copious contrary historical evidence. In the context of assessing the author?s critique, the essay expresses some reservations about Tamanaha?s appeal to ?balanced realism.? In specific, the essay argues that a book that purports to debunk certain conceptual categories should not return to the same dry conceptual well after purporting to drain it.

This recursive move suggests that even after all the historical smudge-marks have been identified and retouched, the best that can be done is resignation to a kind of murky via media somewhere between formalism and realism?s grosser excesses. The essay offers two interpretations of Tamanaha?s backslide to ?balanced realism,? which it calls the metaphysical and the historicist interpretations.

What might all of this mean for legal scholarship? The question is too large to be pursued in any detail here, but the essay concludes by speculating about how adopting the metaphysical and historicist modes in legal theory might influence one facet of constitutional theory: originalist and living constitutionalist theories of interpretation. It is tentatively suggested that in light of the sorts of systematic academic distortions that Tamanaha so adeptly documents in the area of jurisprudence, the historicist mode, though rarely pursued by legal theorists, offers a more promising future for this debate in constitutional theory as well as for the formalist/realist question itself.

And from the text:

In fact, Tamanaha overstates his theoretical claims when he argues that all meanings of formalism are ?empty? (pp. 176-80), or that self-described ?new formalists? can excise the term without any loss. The overstatement is surprising because Tamanaha is well-aware of the differences between the new formalism and anti- formalism; indeed, he compiles a list of seven salient differences, and he says (rightly) that ?[w]hen this cluster of ideas is taken at the most general level, a broad contrast among contemporary jurists can be drawn between those identified as formalists and their opponents? (p. 179). Why isn?t that enough to preserve the divide? That these new formalists and anti-formalists may reject ?exaggerated? (p. 179) claims does not mean that there are no non- exaggerated differences between them. Likewise, the fact that Tamanaha purports to incorporate these various moderate formalist theses into balanced realism does not mean that he has stripped formalism of any legitimate content. He has simply subsumed it. Perhaps Tamanaha still can make the case for junking the term ?formalism? for pragmatic reasons (e.g., because by this point the term itself is confusing, given its history), but this is merely a matter of picking names. Conceptually, balanced realism is still committed to formalism.

There is much of great interest in this review. Highly recommended.

Full post as published by Legal Theory Blog on September 15, 2010 (boomark / email).