Professional Documents
Culture Documents
Formalism
Realism
Note: essentially stereotypes. Judges may move
between both poles.
Formalist Judges
Two claims:
A claim about the nature of judicial reasoning - Adjudication is autonomous
from other forms of reasoning. Law is a closed system of rules and judges
can reach the required decision without recourse to any non-legal normative
considerations, e.g. morality/philosophy.
A claim about the structure of legal rules - Legal rules are rationally
determinate if applied logically they can justify only one unique outcome.
Habits of judging:
Mechanical the giant syllogism machine
Tendency to purify and clean up the rules, insisting on coherence.
Is Adjudication Really
Autonomous?
Last 3 lectures
Fact Scepticism Applying the Rule to What?
Selecting
Narrating
Rule scepticism
Precedent Which Rule?
Categorisation
Analogies
Realist Judges
Not entirely rule-driven
Do not assume autonomy of legal reasoning.
Do not assume determinacy of legal rules.
Further Reading
Llewellyn, Some Realism About
Realism-Responding to Dean Pound,
44 HARV. L. REV. 1222 (1931)
Veitch et al. Jurisprudence: Themes
and Concepts Part III
Penner and Melissaris, McCoubrey
and Whites Textbook on
Jurisprudence Chapter 9
Tamanaha, On The Rule of Law.