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Thursday, November 05, 2009

The Vanity of Dogmatizing

I am making my way through Brian Tamanaha's new book, ,''Beyond the Formalist-Realist Divide" a thoroughly enjoyable bouleversement of the standard account by which we explain and classify American legal history of the last century or so.  The evidence that Brian has uncovered fills in many details in the pictures of the so-called formalists of the late 19th century, demonstrating that they were not 'mechanical' jurisprudes at all but keenly aware of the realities of indeterminacy, underdeterminacy, subjectivity, and so on.  All of your old friends are here -- Cooley, Langdell, Hammond -- even crusty old Carter (judges "do not make law," they "find rules") and Tiedeman (the court "simply declares what is the pre-existing law").  All are given well-earned makeovers by the evidence that Brian marshals.  They are shown to be, that is, thinkers in full.  Statements like those just quoted are given context and texture by Brian's careful pen: no longer robots with cartoonish views, but complex minds.  Brian does similar work for the realists of the early 20th century, helpfully complicating the picture.  Jerome Frank and Grant Gilmore (but not only they) come off looking particularly bad, at times manipulating the claims of their formalist predecessors for unmerited rhetorical effect.  It is safe to say that the classic, dualistic paradigm of formalist/realist is dealt a blow by Brian's book (whether it is a mortal blow is not so clear to me). 

But here, I want to set aside the historical issue of how these minds and eras are most accurately characterized and ask instead another question.  What explains the caricaturing of these figures by those who came after?  What is curious to me is not full-blown deceit in the presentation of others' views (that is not such an interesting phenomenon, after all), but the ways in which certain standard modes of explanation and classification gain ascendancy and become entrenched. 

Brian himself, in the book's afterword, offers a few speculative answers.  The first, he claims, is the political motivation of those who created and repeated the formalist/realist meme.  Brian writes that it is the aggressive and unrepentant mixing of politics and scholarship (and he names, in particular, progressives such as Pound and Frank, as well as "the Left in the 1960s and 1970s") that fortified an allegiance to what ultimately was a deeply flawed historical picture.  That Brian, no raving rightist (not, at least, so far as I have known him, but others may judge from his writings, including his posts on Balkinization, that notorious repository of retrogressive lunacy) should say this is interesting in its own right, but I think it probably best simply to observe this comment and pass on.

Second, Brian writes that histories themselves tend to be written in terms of stock narratives, with an emphasis on canonical figures and arch-villains to lend a certain psychological satisfaction to the account.  When the stock narratives are repeated over and over, generation after generation -- and when the legal academic citation protocols reinforce that parroting, the meme becomes not merely a 'story' (to use a regrettably modish piece of academic argot) but reality itself.

Third, Brian notes the appeal of dichotomous historical and theoretical constructions.  Clean, tidy, and radically opposed pairs of intellectual options are easily digested and regurgitated at need; deep down, historians and theorists may know intuitively, in places that never seem to see the light of the printed page, that reality is more complicated, but the dichotomies are "useful" in pointing up the basic intellectual currents.  Clownish reductions are, in a word, pragmatic.

Is it then Brian's view that the natural tendency (almost like a magnetic pull) of theory and history is toward dogma?  Is it that legal theorizing's telos is inevitably legal dogmatizing, sped on its way there by the political, professional, and personal vanities of theorists themselves?  Brian seems to say something like this, arguing that the simplification of reality is necessarily the way that academic knowledge is transmitted most effectively inter-generationally, provided that the simplifications are "essentially correct."

And it is at this point that I am uncertain that Brian has completely convinced me, because it is his view that the formalist/realist simplification is utter nonsense, that it "obscures more than it clarifies."  But if it is wrong to explain away 'realist' sentiment expressed in the late 19th century as mere scraps of "proto-realism" here and there (because one's vanity prevents one from calling it anything else), it is also not quite convincing to slough off the formalist and realist concepts entirely.  They may still be helpful as categories of intellectual orientation -- instruments by which we can understand the landscape of ideas, though, admittedly, darkly and imperfectly -- even as we acknowledge that no historical figure or era is the single embodiment of the formalist or the realist ethos.  

Is there also something of a tu quoque objection here?  If it is true that legal theorizing tends by its nature toward legal dogmatizing, then we should be cautious about taking too much from Brian's own project.  We should be suspicious of it, we should anticipate the same sorts of criticisms that Brian has effectively leveled against his predecessors to apply with equal force to Brian's work, or perhaps to those that follow Brian.  Perhaps this means that there is no escape from the natural progression of theory to dogma -- it is simply an inevitability borne of the fact that it is impossible for either history or theory ever to reflect and capture what is real.    

[Apologies to Joseph Glanvill for appropriating the best part of his rather ponderous book, the title.]

Posted by Marc DeGirolami on November 5, 2009 at 04:20 PM | Permalink


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The first link (to the Princeton University Press site) is just missing the "l" at the very end. (It's now ".htm" when it should be ".html".) Adding the "l" at the end will take you to the correct page, for those interested in the Princeton page.

Posted by: Matt | Nov 6, 2009 8:07:35 AM

Sorry for the broken link. Brian's terrific book can be found here:


Posted by: Marc DeGirolami | Nov 6, 2009 8:03:33 AM

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