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Brian Leiter
University of Chicago Law School

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Thursday, September 9, 2010

Tamanaha, Formalism, and Realism Redux

Brian Tamanaha (Wash U/St. Louis) has chosen to respond to a 30-page review essay examining in detail the arguments of his book Beyond the Formalism-Realism Divide with a blog posting.   I do not think a blog is a suitable forum for a serious scholarly dispute, and so will keep my reply brief, and below the fold.  Anyone genuinely interested in the issues, my actual criticisms, and my actual views, should look at my essay.

1.  Contrary to Tamanaha, I am not a "prime example" of someone who defends historical claims about the formalist age. (He misrepresented me that way in the book, and I corrected that misrepresentation in the review essay, so it's really a bit scandalous to repeat the misrepresentation here. Indeed, Tamanaha even quotes the same passage that he used in the book, failing, again, to note that I am characterizing a theory of adjudication, whose interest or plausibility does not turn on its historical pedigree.) The historical claims are, indeed, irrelevant for philosophical purposes, and Tamanaha does not show otherwise (indeed, I take it he actually concedes the point). I am primarily interested in formalism and realism as philosophical theories about law and adjudication, as I indicated quite clearly in my review essay. (Unlike formalism, however, I have also defended at length historical claims about what the American Realists thought, and here I do contest Tamanah's historical claims, which trade on sloppy characterizations of Realism.)

2. I do not (as Tamanaha says) "opine[] that the conventional story about the formalist age withstands [his] challenge." To the contrary, as I state, even in the abstract of the paper, Tamanaha makes a prima facie case against anyone who wants to claim that Natural Law Formalism and Vulgar Formalism were prevalent in the 19th-century. Tamanaha does not shed any light, however, on whether philosophically interesting forms of formalism, what I call Sophisticated Formalism, were or were not prevalent in the 19th-century. There are also evidential questions Tamanaha neglects that would be necessary to address in order to persuausively establish his thesis that there was no formalist age, but that doesn’t mean the “conventional story” withstands Tamanaha's criticisms as they stand: he has shifted the burden of proof on this historical thesis (that’s what it means to say he made a prima facie case).

http://leiterlawschool.typepad.com/leiter/2010/09/tamanaha-formalism-and-realism-redux.html

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