Abstract Formalist thinking and legal doctrine are regaining respectability and scholarly attention, and not only in the circles of the New Private Law. Modern-day legal realists readily acknowledge the importance of legal doctrine as a systemic constraint, just as their forebears did. Substantial disagreement remains, however. Notwithstanding their conciliatory rhetoric, legal realists hold steadfastly to the critique of doctrinal reasoning as formalist “window dressing,” castigate exercises in fruitless abstract taxonomy, and emphasize the indeterminacy of judicial decision-making at the appellate level. This leaves legal theory to deal with a two-fold conundrum: First, if “judges cannot really decide difficult cases with the tools of formalism,” and if doctrine cannot effectively rein in decision-making at the appellate level, then how can doctrine cabin the unlimited exercise of judicial power? Second, if ideology is pervasive and “constrained activist judges put a great deal of time and energy into working out a legal interpretation” to adjust the law’s meaning to better fit their policy preferences, how can members of the judiciary “submit to it if they can’t come up with a good legal argument” supporting their goals? Addressing these issues, this article sketches a formalism for realists. To this end, it articulates a novel perspective on how legal doctrine comes into play in legal decision-making. Borrowing from artifact theory, the article characterizes legal doctrine as a public norm that legal officials must consider. Formalist reasoning as an expression of legal doctrine structures the creation of legal artifacts and thereby restricts the extent to which individual preferences of judges shape the outcome. This article offers an analysis that does what realists ask for, namely, it explains why it is sometimes legitimate to say that a court was wrong in terms of the law. The approach presented in the article allows for change over time and thus is able to address the realists’ critique of formalism’s (supposed) failure to account for law’s nature as a social and dynamic process. As the article also explains, the flip side, unavoidably, is indeterminacy. Its aim is not so much to offer the next round on the general issue of “determinacy” vs. “indeterminacy.” Instead, the article tries to approach the more granular question of how the law may—within limits—restrain, presuming that it does so, even from a realist perspective.
Thilo Kuntz (Tue,) studied this question.