I announced last week that we are beginning a new series this week with David Opderbeck, a professor of law. He will educate us on law — should be fun.
By the late Nineteenth Century, however, many legal scholars
and jurists had come to recognize that the supposedly universal foundations for
formalistic law were neither universal nor secure. Broadly speaking, this skepticism was in accord with
post-Enlightenment intellectual history.
These scholars and jurists began to develop what we now call a “realist”
definition of “law.”
A famous text in the development of “legal realism” is
Oliver Wendell Holmes’ essay “The Path of the
Law.” In that essay, Holmes
views the law from the perspective of a “bad man” – a person whose conduct
might run afoul of the law.
According to Holmes, the “bad man” cares nothing about whether “law” is
grounded in reason, God, or Natural Law.
The “bad man’s” only concern is whether, and to what extent, a
particular judge or jury will punish him for his actions. As Holmes eloquently put it, “If you want to know the law and nothing
else, you must look at it as a bad man, who cares only for the material
consequences which such knowledge enables him to predict, not as a good one,
who finds his reasons for conduct, whether inside the law or outside of it, in
the vaguer sanctions of conscience.”
In short, viewed from the “bad man’s” perspective, “law” is
merely a social construct used to produce whatever social outcome the judge or
jury deems desirable. References
to reason, God, or Natural Law in relation to “law” are superfluous at best.
The “realist” approach has had a profound effect on Western
jurisprudence. The dominant
perspectives reflected in American legal education, including “law and
economics” and “critical legal studies,” have roots in legal realism. Few law professors today would identify
themselves as formalists (though in some circles there is a move towards a “new
formalism”). In most law school
classrooms, including my own, judicial precedents are analyzed to examine the
policy motivations behind the rules adopted by the court, not primarily to
extract from them universal principles of law.
Which approach – formalism or realism – better accounts for
“law” and for the role of “law” in society? As Christians living in a post-industrial, scientific, and/or
postmodern age, are there approaches to “law” we can adopt without falling into
either an extreme formalism or an extreme legal realism?
Larry Solum’s “Legal Theory Blog” includes an excellent
entry on formalism vs. instrumentalism (realism).
Harold J. Berman’s two-volume Law and Revolution: The Formation of the Western Legal Tradition
and Law and Revolution, II, The Impact of the Protestant Reformations on the Western Legal Tradition
is a magisterial treatment of how Christianity shaped early
Western notions of law.