UNGER'S CRITIQUE OF FORMALISM IN LEGAL REASONING: HERO, HERCULES, AND HUMDRUM
| Date | 01 January 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02595.x |
| Author | J. W. Harris |
| Published date | 01 January 1989 |
UNGER’S CRITIQUE OF FORMALISM
IN
LEGAL
REASONING: HERO, HERCULES, AND
HUMDRUM
“Doctrine can exist-the formalist says
or
assumes-because
of
a contrast between the more determinate rationalit
of
legal
analysis and the less determinate rationality
of
i
d
eological
contests.
This thesis can be restated as the belief that law making and
law application differ fundamentally, as long as legislation is
seen to be guided only by the looser rationality
of
ideological
conflict
,
.
.
The modern lawyer may wish
to
keep his formalism while
avoidin objectivist assumptions.
He
may
feel
happy to switch
invocations
of
impersonal purpose, policy, and principle in an
adjudicative
or
professional one.
He
is plainly mistaken;
formalism presupposes at least a qualified objectivism.”’
from ta
f
k about interest group politics in a legislative setting to
1.
INTRODUCTION
WHEN,
a decade ago, Professor Hart wrote his celebrated essay on
“American Jurisprudence Through English Eyes: the Nightmare
and the Noble Dream,”* he contrasted the “nightmare” represented
by the legal realist movement with the “noble dream” represented
by Professor Dworkin’s rights thesis. Today, traditional lawyers
find that the realists were, after all, a mere pea under the mattress.
All but the tender-skinned could rest in peace. The true nightmare
was yet to come.
The times are changing. American law faculties have been set by
the ears by a ferment
of
self-conscious radicalism, which is
beginning to spread throughout the common law academic world.
The movement calls itself the “critical legal studies movement.” It
does this officially at well-attended conferences organised in its
name. It expects radical commitment
of
some sort from its
adherents, but it is not an exclusive club.
If
you believe that the
political and legal institutions of western democracies are in some
sense bogus, and you are prepared to instantiate that belief by
reference to any aspect
of
law, legal processes or legal education,
you may call yourself a “Crit.”3
’
R.
M.
Unger, ‘The Critical Legal Studies Movement’ (1983) 96
Harvard Law Review
561 at
p.565.
H. L. A. Hart, “American Jurisprudence through English Eyes: the Nightmare and
the Noble Dream” (1977)
11
Ga. Law Review
969 (reprinted
in
Hart,
Essays
in
Jurkprudence and Philosophy
(Clarcndon Press, 1983) Chap.
4.
’
Cf.
Allan C. Hutchinson and Patrick Monahan, “Law, Politics, and the Critical Legal
Scholars” (1984) 36
Sfan. Law Review
199. Alan Hunt, “The Theory
of
Critical Legal
Studies” (1986) 6 O.J.L.S. 1. Martin Krygier: “Critical Legal Studies
&
Social Theory: a
Response
to
Alan Hunt” (1987) 7 O.J.L.S.
26.
42
JAN.
19891
UNGER’S
CRITIQUE
OF
FORMALISM
43
One
of
the things the realists were sceptical about was formalism
in legal reasoning, the idea that solutions to legal problems could
be rationally supported by appeal to the true meaning
of
legal
concepts. Jerome Frank stigmatised such reasoning as “word
worship” and “verbal mania.’’
He
attributed its prevalence to the
persistence among lawyers
of
medieval scholastic ways
of
thinking
derived from Platonic metaphysical realism; and such persistence
was due, he suggested, to the psychological need for certainty,
which was a carry-over from childish dependence on a father
fig~re.~
The advocates
of
critical legal studies endorse such scepticism
about formalism in legal reasoning but they erect upon it
a
far
more incisive political critique. The legal realists were, for the most
part, New Deal liberals. They were moved to protest by those
decisions
of
the Supreme Court in which moderate, reformist
interventions by legislatures in the economic sphere had been ruled
unconstitutional, on the alleged neutral basis
of
the concepts
embodied in the con~titution.~ However, despite certain flights
of
iconoclasm to be found in their writings, they were not generally
committed to a political onslaught on American legal institutions.
Even Frank, commonly considered to be an extremist in the realist
camp, produced somewhat tame recommendations. He argued that
informal tribunals, as compared with traditional courts, were not
such a bad thing; and that judges, in exercising the discretion
which the inconclusiveness
of
legal materials inevitably confers
upon them, should be as explicit as possible in articulating the
factors which “really” determined their decisions. Karl Llewellyn,
who was a more typical representative
of
the movement, ended by
advocating the merits
of
a “grand style” in common law adjudication
as compared with a more circumscribed formal style
of
legal
reasoning.6 Furthermore, the legal realists were not the only critics
of
formalism. Their contemporary and consistent opponent, Lon
Fuller, also decried it, advocating instead what Robert Summers
has called a “processual theory
of
law,” wherein the process values
implicit in legal institutions should be the dominant factor in
“purposive” rea~oning.~
As
with the realists,
so
with Fuller:
criticism
of
legal formalism did not entail political radicalism.
‘
Jerome Frank,
Law and the Modern Mind
(Brentano, 1930) Chaps. 7 and
8.
For a
recent espousal of metaph sical realism in law, see Michael Moore,
“A
Natural Law
Theory
of
Interpretation” 6985)
58
Southern California Law Review
279.
For
a modern
counterpart to Frank’s psychologism within the critical legal studies movement, employing
the notion of individual “alienation” as the explanation
for
the “reification”
of
the law,
see Peter Gabel, “The Phenomenology
of
Rghts Consciousness and the Pact
of
the
Withdrawn Selves” (1984)
62
Texas
L.R.
1563.
CJ
Edward
A.
Purcell,
jr.,
The
Crkk
of
Democratic Theory
(Kentucky
U.P.,
1973)
Chaps,
5
and
9.
Bruce A. Ackerman,
Reconcfructing American Law
(Harvard U.P.,
1984,) Chap.
2.
Karl Llewellyn,
The Common Law Tradition,
(Little,
Brown
and Co., 1960).
CJ
William Twining,
Karl Llewellyn and the Realkf Movement
(Weidenfeld and Nicolson.
1973). Alan Hunt,
The Sociological Movement in Law,
(Macmillan, 1978), Chap.
3.
R.
S.
Summers,
Lon Fuller,
(Edward Arnold, 1984).
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