In their essay, Bridges Between Realism and Formalism, introducing a special symposium issue of the American Journal of Jurisprudence, Andrew Gold and Thilo Kuntz provide a clear and helpful survey of the impressive array of contributions, with a stimulating variety of perspectives on the relationship between Realism and Formalism. More than this, the authors produce an illuminating commentary on the ways these differing perspectives might be related and offer suggestions for possible directions for future research.
The contributions to the symposium are considered in two sections of the essay. In Section I, Gold and Kuntz emphasize the role of legal concepts and the possibility of change to those concepts, drawing on Natasha Sarna and Kevin Tobia’s empiricist study of “reasonableness” (Pp. 123-24), Andrew Gold and Henry Smith’s portayal of the mechanisms of conceptual change in the law (P. 124), Shyamkrishna Balganesh and Taisu Zhang’s account of how legal reasoning can employ concepts so as to integrate internal and external considerations on the development of the law (Pp. 124-25), and Thilo Kuntz’s employment of artifact theory to provide an explanation of how legal change is possible, but with constraints upon judicial activism. (P. 125.)
Where the contibutions surveyed in Section I may be regarded as offering some sort of compromise, or even reconciliation, between realist and formalist approaches – the particular subtleties of how this might be managed have to be explored by a more detailed engagement with each contribution – those considered in Section II are viewed by Gold and Kuntz as displaying “the tensions between realism and formalism.” (P. 123.)
Paul Miller is prepared to recognize some genuine insights provided by realism, but also insists on pointing out a number of defects in adopting a realist approach at the expense of ignoring formalist features of law. (Pp. 125-26.) Emily Sherwin suggests that an excessive influence of realism upon adjudication peculiar to the United States has been detrimental to the recognition of a distinctive body of rights and duties in private law. (P. 126.) Finally in this section, Marietta Auer offers not so much a perspective on the tensions between realism and formalism, but a view on how the presentation of differences between progressive and more established thinking about law in terms of realism may be culturally specific, pointing to a rejection of realism and an insistence on the systemic character of law by leading German scholars, despite their progressive tendency. (Pp. 126-27.)
It is in Section III of their essay that Gold and Kuntz consider “the potential insights that emerge from reading these papers in combination,” leading to two distinct parts of this section, proposing the possibilities for future research on (A) a richer understanding of the nature of constraint, and (B) the role of a legal system and the sensitivity of concepts to context (P. 127). Both of these parts display a thought-provoking engagement with a wider literature.
On the nature of constaint in (A), a key move suggested by Gold and Kuntz is to appreciate the creative potential of constraint, which they nicely illustrate by referring to work in the theory of art (Pp. 127-28), and deftly tie in to a pronouncement from Cardozo that “there is an apparent analogy to be made between the way courts look for the right path in the common law and the way that poets look for the ‘just word.’” (P. 128.)
This thought is then related back to the papers surveyed in Section I, producing further novel suggestions – notably, that it becomes possible to recognize “a ‘blended’ conceptual domain, one that is recognizably internal but draws on features of the external” (P. 129); and, that “the functionalism that runs through so much of legal realism can support more robust, and occasionally even formalist, approaches to concepts.” (P. 130.)
If this line of thinking leaves a “balance between certainty and flexibility” hanging in the air, then the suggestion is that “some guidance for striking the right balance” might be found within the reflections offered in the following Part (B). (P. 130.) It is here that Gold and Kuntz take prompts from the papers surveyed in Section II in proposing that the tensions between realism and formalism may be resolved in ways that display “variation in different settings, both within and across legal systems” (P. 127); and that this may be seen in the recognition of “shallower concepts, [which] lie closer to the facts of the case in which they apply” in some domains but not others (P. 130); and in the recognition that “legal concepts may be sufficiently separated across domains” (P. 131) – so reducing their transferability between subsystems of a single legal system or between different legal systems. (Pp. 131-32.)
In a concluding summary of the issues to be considered in a programme of future research – based on “realist insights,” but effectively arising from their study of the relationship between realism and formalism – Gold and Kuntz propose as the key questions (P. 132):
What are the legal concepts at issue, and how do judges think of them? How do they relate to other concepts? How do they relate to facts? How are they reformed? How does system matter for all of this? And, what will the legal culture permit?
That the authors have indeed opened up a fertile ground for future research should be clear, but to reinforce the point, a few brief further observations are provided.
Two key terms are related in the discussion provided by Gold and Kuntz: concept and context. More particularly, the capacity of concepts for being used in both constraining and creative modes, and the relevance of context for determining how the tension between these two modes might be resolved. On the subject of context, it is clear from the discussion that different types of context are being considered. Certainly, differences of context between different parts (subsystems) within a legal system (Pp. 130-31), between different economic and political factors affecting different legal systems (P. 132), and between different legal cultures (Pp. 126-27), but there are also some references to a different context composed of judicial personnel with one inclination or another. (Pp. 127, 132.)
There is an additional use of context at the level of the facts of a particular case, where it is possible for different perspectives on the factual context at issue to arise, producing different versions of that context. This type of context is recognized by Karl Llewellyn’s “situation sense” as providing a reading of the case so as to give some certainty on the legal outcome. But how the situational context will be read will differ depending on the perspective of the person (judge) reading it. As William Twining has pointed out, this requires a close affinity with the community affected by the context. Twining refers to Lord Mansfield dining regularly with merchants, and also speculates on the lesser prospect of judges dining with trade union leaders.1
On the matter of different legal cultures, particularly the difference between civilian and common law cultures addressed by Auer, the possibility is raised that this difference in context relates less to the extent of the phenomena of constraining and creative opportunities in the law, and more to a difference in the legal cultural ideologies in confronting them: civilians see a systemic accomplishment of the creative opportunities where common lawyers are more prepared to acknowledge judicial activity.2
Once such a difference in ideological temperament as affecting the representation of constraining and creative opportunities is admitted, then it is possible to discern this at work even within a common law culture, between those more attracted to a formalist or realist persuasion.3 Pursuing these further observations would take us beyond the confines of a Jot, but the existence of the stimulus to do so can be treated as a manifestation of the value of Gold and Kuntz’s essay.
- William Twinning, Karl Llewellyn and the Realist Movement 224-225 (2nd ed. 2012).
- See further Pablo Navarro and Jorge Rodríguez, Legal Norms and Normative Relevance in Jurisprudence in the Mirror: The Common Law World Meets the Civil Law World 97 (Luka Burazin, Kenneth Einar Himma & Giorgio Pino eds., 2024), and Andrew Halpin, The Systematization of Legal Norms: Reply to Navarro and Rodríguez, in id. at 119.
- See, Brian Tamanaha, Understanding Legal Realism, 87 Tex. L. Rev. 731 (2008).
