Legal formalism and legal realism: What is the issue?: Brian Leiter

Legal Theory 16 (2):111-133 (2010)

Brian Leiter
University of Chicago
In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases ; and adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.1017/S1352325210000121
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 39,062
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

Hohfeld Vs. The Legal Realists.David Frydrych - 2018 - Legal Theory 24 (4):291-344.
Why Legal Formalism Is Not a Stupid Thing.Paul Troop - 2018 - Ratio Juris 31 (4):428-443.

Add more citations

Similar books and articles

Legal Realism & Judicial Decision-Making.Vitalius Tumonis - 2012 - Jurisprudencija: Mokslo darbu žurnalas 19 (4):1361-1382.
Leiter on the Legal Realists.Michael Steven Green - 2011 - Law and Philosophy 30 (4):381-418.
Thucydides and Law: A Response to Leiter.Darien Shanske - 2013 - Legal Theory 19 (3):282-306.
Why Tolerate Conscience?François Boucher & Cécile Laborde - forthcoming - Criminal Law and Philosophy:1-21.
American Legal Realism.Brian Leiter - 2005 - In Martin P. Golding & William A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory. Blackwell.
Naturalizing Jurisprudence.Brian Leiter - 2009 - In John R. Shook & Paul Kurtz (eds.), The Future of Naturalism. Humanity Books.
Why Tolerate Conscience?François Boucher & Cécile Laborde - 2016 - Criminal Law and Philosophy 10 (3):493-514.


Added to PP index

Total views
9 ( #668,875 of 2,320,272 )

Recent downloads (6 months)
9 ( #126,711 of 2,320,272 )

How can I increase my downloads?

Monthly downloads

My notes

Sign in to use this feature