Realism or Formalism?

imagesWhile reading Judge Posner’s Reflections on Judging, I found very interesting his discussion on the differences between the concepts of legal realism and legal formalism. Judge Posner describes legal formalism using the slogan “the law made me do it,” describing the judiciary as interpreters, using a complex style of legal analysis to resolve cases without focusing on the factual complexities of any given case. In contrast, legal realism places more emphasis on the factual complexities of a given case, and taking into account how the case holding will have both case-specific as well as systemic consequences.

I tend to agree with Judge Posner and the theory of legal realism that in many cases, a judge will have to settle for a for a reasonable, sensible result, rather than simply come up with a result that is logically correct. A judge is not merely an interpreter of the law; in supreme-courtcontrast, they are using years of experience in the legal profession to serve as the decision-maker in disputes between two parties with adverse beliefs and demands. While the orthodox materials of legal analysis (as Posner describes them)- statutes, constitutions, regulations, precedents, etc.- are to be used to refine and narrow the holding of any given case to conform with existing legal principles, in the end the judge is not only deciding the legal fate of the parties in the suit at bar, but also the legal fates of cases with similar factual basis.

Judges are not simply using formulas and statutes to decide cases mechanically. There is no “turbo-tax” equivalent to judicial decision making. While analyzing judicial discretion, we must consider that the judges are just as human as the parties who have brought the case before them, and that they have distinct moral feelings, common sense views and sympathies. A judge must weigh constantly the facts of a case and what is a fair result to the parties against the legal ramifications that will result from the holding’s publication. Furthermore, for example, if a judge decides to expand a legal concept to reach an equitable result, the judge must weigh how expanding a given concept will affect the administration of justice, concerning both the judiciary’s economy and efficiency.


Even constitutional rights are subject to layers of analysis beyond the limits of legal formalism. For example, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. U.S. Const. amend. I, § 1. However, the Supreme Court has also stated that constitutional rights do not magically sprout into existence when one reaches the age of majority. See Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976). Now, these concepts are the type of orthodox legal analysis done by a legal formalist. But how can a formalist reconcile these two viewpoints without analyzing the underlying factual situation of a case. For example, this conflict is apparent if a judge handles a case regarding the constitutional rights of a minor regarding their religious beliefs. It is well settled that the parents of a child traditionally make many decisions for minors. But what if the religious views of the parents conflict with a legitimate state interest? Most would argue that if the parent’s religious beliefs are considered dangerous to the child’s well being, the state might intervene to protect the well being of the child.

Now, lets assume that the child is seventeen, and her belief is that she also wishes to respect her religious views. May the state intervene in this situation? On one hand, we have the first amendment that protects religious freedom. On the other hand, we have a situation where the state should intervene to protect the child. The facts of the case have Panorama_of_United_States_Supreme_Court_Building_at_Dusk-897x494great weight in determining the correct answer to this situation. Is the child’s life threatened? Does the child have mental capacity to make this decision even though they are not of the age of majority? This decision on how a judge decides this case will not simply come down to legal concepts. Each judge that may decide the case may have distinct moral feelings, common sense views and sympathies regarding the matter. Does the judge weigh thoughts from the school of psychology regarding the child’s competency? Do the judge’s views if they are a mother or father make them sympathetic to deciding the case one way or the other? Has technology advanced where the intrusion into the minor’s constitutional rights is minimal and outweighs the harm posed by allowing the child to abide by their religious wishes? The external complexities posed by these questions significantly impact the judge’s holding.

index1In conclusion, judges everyday are tasked with using their years of experience in the legal profession to serve as the decision-maker in disputes between two parties with adverse beliefs and demands. To suggest that they consider only the legal ramifications when determining a case would undermine the human component of judicial decision-making. For that reason, I believe the legal realism school of thought is an appropriate way of studying judicial decision-making.

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