64. I will limit my comments on Tamanaha`s erroneous criticisms of me to a footnote. I have already commented above on Tamanaha`s misrepresentation of James Carter`s views in relation to his critique of my assertion that the distinctive realist thesis concerns responsiveness to situational types as the best explanation of appellate decisions. Tamanaha also claims at one point to challenge my assertion that “American legal realism was, rightly, the most important intellectual event in American legal practice and scholarship of the 20th century” (Leiter, Naturalizing, op. cit. note 8, p. 1), but since, as we see above, it does not really discuss the distinctive views of the realists on which my request was based, There is no dispute. Everyone can agree with Tamanaha that before realism, there were at least some jurists and scholars who recognized the influence of politics on judicial decision-making and were skeptical that mechanical deduction did justice to the nature of legal reasoning, but that would do nothing to show that “realism about judgment was common decades before the emergence of legal realists.” Tamanaha, op. cit. cit., note 10, p. 68.
A more egregious case—because I pointed out the error to Tamanaha in an earlier version of this material—is the alleged criticism (id. to 2) of my account of formalism in Ladder, Brian, Positivism, Formalism, Realism, 99 Colum. L. Rev.1138 (1999)Google Scholar, without noticing that I have articulated contradictory substantive views on the jurisprudence, and that I have not made a historical claim of the kind he criticized. Even if most authors of the late nineteenth century were “realists” rather than “formalists,” it would have no bearing on the jurisprudential question of how we should understand jurisprudence. 57. See, for example, Brian Leiter, Legal Realism, in A Companion to the Philosophy of Law and Legal Theory (D. Patterson ed., 1995); and my 1997 essay Leiter, Rethinking Legal Realism, supra note 16, which Tamanaha cites, but not for his precise characterization of realism.
And for Schauer`s work on realism, see, for example, Schauer, Frederick, Judging in a Corner of the Law, 61 pp. Cal. L. Rev.1717 (1988)Google Scholar; and Frederick Schauer, Playing by the Rules (1991), pp. 191-196. Schauer gives a concise summary of his views on realism in Frederick Schauer, Thinking Like a Lawyer Kap. 7 (2009). 8. For a detailed discussion and evidence, see Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (2007), particularly chaps. 1–3. For a shorter discussion, see Leiter, American Legal Realism, in The Blackwell Guide to Philosophy of Law and Legal Theory (M.
Golding & W. Edmundson eds., 2005). The description in the text refers to what I call the “sociological wing” of realism, which was the mainstream. Jerome Frank`s views were slightly different on the second and third points. Well, this philosophical battle has been fought for many centuries. At its heart is the clash of two schools of jurisprudence known as “legal realism” and “legal formalism.” “Legal formalism” is probably what most people think of when they imagine how a judge thinks. “Legal formalism” is the idea that all political questions have been and must be posed by the legislator alone. Legal formalism is primarily about enforcing what the law actually says, not what it could or should say. It is a theory that law is a set of rules and principles independent of other political and social institutions.
This theory is the most famous advanced by Supreme Court Justice Antonin Scalia. 5. Although they do not believe that all questions of law have a clear answer, when the law, particularly constitutional law, is unclear, they choose to defer to legislative majorities. 56. Id., p. 6; cf. ibid. 95-96. It should be noted that balanced realism is not simply an empirical observation of judicial behaviour; It is based on a jurisprudential view of the vagueness of legal reasoning, so that judges have to make decisions and can interpret rules and precedents in different ways, etc.25 While the formalism of natural law has historically been associated with Blackstone, it still has a well-known defender who is almost entirely absent from Tamanaha`s book: Ronald Dworkin. Dworkin believes that the duty of the judge is always to discover the law that already exists in all cases, although he does not support Tamanawa`s second “formalist” thesis, which we will discuss later.