Brian Z. Tamanaha (St. John's University) has posted The Bogus Tale About the Legal Formalists on SSRN. Here is the abstract:
It is widely accepted that legal formalist views dominated at the turn of the last century: judges, legal academics, and lawyers purportedly believed that law was comprehensive, gapless, and logically ordered, and believed that judges reasoned mechanically or deductively from this body of law to produce right answers in individual cases. This view of law held sway until the 1920s and 1930s, when the legal realists destroyed formalist beliefs by exposing gaps and indeterminacy in law, and by arguing that bias infects judging.
This story has been repeated innumerable times by legal historians, legal theorists, political scientists, and many others. The formalist-realist antithesis shapes contemporary views and debates about judging.
This familiar story is false. A previous draft, The Realism of the Formalist Age, showed some of the evidence for this, but inadequately and without understanding its full implications. This completely revised version expands on the evidence and explains how the story got started, why it is fundamentally wrong, and how it nonetheless successfully secured a place in conventional accounts of US legal history. Through a combination of mistakes and deliberate deceptions, the initial piece of the story was constructed early in the century by political opponents of courts. In the 1970s, motivated by contemporary concerns, leftist legal historians and legal theorists reached back to the earlier period and reinvented the story about the legal formalists, producing an account which then swept the legal academy. This false story has been taken as true ever since.
This article is not just about getting our history right. It provides an object lesson in how modern practices of legal history and legal theory - how reliance upon specialists, and the adoption and repetition of stock stories - can lead to the spread and perpetuation of a falsehood, with real consequences.
And from the text:
Every account of the formalists and their belief in “mechanical jurisprudence,” it turns out, has been written by critics like Roscoe Pound and Jerome Frank, and by modern historians and theorists relying upon their accounts. As legal theorist Tony Sebok observed, “Formalism, so to speak, does not really have an identity of its own: As a theory of law, it exists only as a reflection of scholars like Holmes, Pound, Llewellyn, and Frank.”19 Although Pound repeatedly claimed that turn-of-the century judges and lawyers, influenced by legal science and prevailing jurisprudential theories, widely believed that judging was an exercise in mechanical deduction, he offered no quotes or citations to that effect by anyone who actually espoused this purportedly dominant view of judging. The main authority Pound identified for this set of beliefs came from German legal scholars discussing German legal science.20 This pattern shows up repeatedly in writings about the formalists.
The seminal originating piece in the creation of the image of judging as an exercise in mechanical, deductive reasoning was Roscoe Pound’s 1908 article, “Mechanical Jurisprudence.” Pound began his inquiry by posing the question: “What is scientific law?”127 To which, he answers: “the marks of a scientific law are, conformity to reason, uniformity, and certainty. Scientific law is a reasoned body of principles for the administration of justice, and its antithesis is a system of enforcing magisterial caprice, however honest, and however much disguised under the name of justice or equity or natural justice.”128 The danger of scientific law, Pound warned, is a “petrification” which “tends to cut off individual initiative in the future, to stifle independent consideration of new problems and of new phases of old problems, and so to impose the ideas of one generation upon the other.”129 Contemporary U.S. law, Pound claimed, was mired in this state: “the jurisprudence of conceptions tends to decay. Conceptions are fixed. The premises are no longer to be examined. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules. This is the condition against which sociologists now protest, and protest rightly.”130 He argued that historical jurisprudence and analytical jurisprudence, the main legal theories of the day, exacerbated this stultified approach because they tended to emphasize abstract concepts and logical analysis.131
As an example of conceptual jurisprudence, Pound offered the infamous Lochner (and Adair) case, in which the Supreme Court invalidated as a violation of the freedom of contract a New York law limiting the working hours of bakers to no more than 10 hours a day and six days a week.132 “The conception of freedom of contract is made the basis of a logical deduction” wrote Pound. “The court does not inquire what the effect of such a deduction will be, when applied to the actual situation.”133 With courts paralyzed in this state of mechanical jurisprudence, Pound argued, the only solution was for legislation to provide new starting points for the common law.134
Pound’s Mechanical Jurisprudence picked up on themes pressed a few years earlier by Oliver Wendell Holmes. In The Path of the Law (1897), one of the most famous legal articles ever written, Holmes took as his target the “fallacy” “that the only force at work in the development of the law is logic.”135 “The danger of which I speak is…the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms.”136
This Section will produce evidence that, contrary to what Pound and others have asserted (and Holmes implied), lawyers, academics, and judges at the time did not widely believe that judging was an exercise in mechanical deduction. Before moving to examine the evidence, it is worth noting once again that when setting out his portrayal of mechanical judging Pound quoted no actual “formalists” making these claims, and he made repeated references to German jurists discussing German legal science.137 It is also essential to recognize that the image of mechanical, deductive judging was deprived of its main conceptual underpinning in the preceding Section. The earlier quotes from Pound, Haines, Frank, and Gilmore all tied the mechanical view of judging directly to the traditional view of the common law (updated in terms of legal science): judges purportedly reasoned mechanically from—and were able to do so because—the law pre-existed in a comprehensive, gapless, logically ordered complex of rules and principles. If most people in legal circles did not in fact believe in this classic theory of the nature of law (updated to law as science), the theory of deductive judging loses its mooring.
Almost without warning,298 a cluster of articles from important legal historians and legal theorists discussing the “legal formalists” and “legal formalism” arrived in the mid-1970s. Gilmore’s Ages of American Law was published in 1977, preceded by the publication of an advance synopsis in the 1975 Yale Law Journal.299 Morton Horwitz published “The Rise of Legal Formalism,” also in 1975, in the American Journal of LegalHistory.300 Duncan Kennedy published a theoretical analysis entitled “Legal Formalin the 1973 volume of the Journal of Legal Studies.301 William Nelson extensively elaborated on the rise of legal formalism in connection with antislavery cases in a 1974article in the Harvard Law Review.302 Legal formalism was a central theme in JusticeAccused, Robert Cover’s book on judicial treatment of slavery cases.303 All of these scholars worked at elite law schools (Harvard, Yale, and Pennsylvania), and all were politically on the left. Kennedy and Horwitz were founding members of the Critical Legal Studies Movement, which mounted a radical critique of liberal legalism from the late 1970s through the the 1980s.
There is undoubtedly a connection between this sudden critical attention to legal formalism and the searing political events of the 1960s and 1970s—when universities anlaw schools were wracked by civil rights and anti-war protests. Cover drew the linkhis Acknowledgements, mentioning that his book was inspired by a comparison of“judicial complicity in the crimes of Vietnam” with “judicial acquiescence in the injustices of Negro slavery.”304 Among the left, it was a time of seething skepticism about law.305 The student editors of the Harvard Law Review wrote in 1970 that “It is true that what passes for logic in some judicial opinions (and in many classrooms) is a little more than finely spun sophistry. It is also important to note that pure logic doeoffer a solution to all [legal] problems.”306 Little imagination is required to see the parallels between these attitudes and the forthcoming preoccupation with legal formalismIn the closing Chapter of Ages of American Law, Gilmore argued that the 1970s were ushering in a “New Conceptualism” resembling that of the formalist age. “In our own history, both in the late nineteenth century and in our own time,” he wrote, “the components of the formalist approach have included the search for theoretical formulas assumed to be of universal validity and the insistence that all particular instances should be analyzed and dealt with in the light of the overall theoretical structure.”307 A group of scholars deeply disaffected at the law in the 1970s reached back to the work of the previous episode of disaffection (Pound and the legal realists) to resurrect a portrait of what was perceived to be a common enemy.
Once again, a must read from Tamanaha, who has produced a compelling case for a pattern of distortion in writing about "legal formalism." Tamanaha's work suggests that we all need to rethink fundamental assumptions about the development of legal thought.
Highly recommended. Download it while its hot!