69. Tamanaha, footnote 10 above, p. 91. 10, especially 186-196, Tamanaha expands on his earlier description of «balanced realism» and attributes nine assertions about jurisprudence to realism (his extensive discussion is somewhat repetitive, so I`ve shortened the list a bit here): (1) «When judges perceive facts, interpret the law, and render judgments, they are influenced by cognitive framing in the same way, how all cognition is affected» (id. to 187), but the inevitability of cognitive framing is not the same as «deliberate judgment,» which, unlike the former, «is not ubiquitous and not inevitable» (id. to 188); (2) «When judges make judicial decisions, except in the most common cases, the objectives underlying the applicable rules and the consequences of the decision will play a role» (id. to 189); 3) «Uncertainties will inevitably arise in the interpretation and application of laws and principles» (id., p. 190); 4) «The domain of legal uncertainty is the place where judges make decisions with the least legal guidance and where the combination of judges of legal and social opinions has the greatest scope and impact, although always in a context filled with legal norms» (id., p. 190); 5) «Judges are sometimes confronted with what they consider to be `bad rules` or `bad results`» even if they «do not adopt a uniform position or follow the same path in such situations» (id. at 191), although sometimes in such cases there is «an increased potential for the influence of the judge`s personal values» on the decision (ibid., 192); (6) «The common law and statutes contain various standards, such as fairness and reasonableness, or provisions that require balance or judges.
to make judgments. The required judgments cannot be rendered in a regulatory manner and are not determined solely by legal factors», although judges may often agree because they share «similar training in the legal tradition and its values» as well as «social opinions» (ibid., 192); (7) «Judges are not machines or computers» (id., p. 194); (8) «judicial decisions are often compatible with and determined by the law» (id., p. 194); 9) «The law is constantly being developed by judges» (ibid., p. 195). Some of these claims are quite commonplace at this level of the general public or just the other side of the coin of denial of vulgar formalism (e.g. 3, 7 & 9); some have a questionable realistic pedigree (e.g. 1, 2 and 6); and some are challenged by other case law, as noted in the text. This descriptive conception of «legal formalism» can be extended to a normative theory according to which judges should decide cases by applying undisputed principles to the facts; «Well-founded legal decisions can be justified as valid deductive syllogisms.» [3] 12.
Tamanaha, op. cit. Cit. note 10, p. 3. This non sequitur is not simply an artifact of the book`s introduction; Tamanaha repeats it much later: «Any approach that defines `formalism` in these terms has dubious validity, as the preceding chapters have shown. These ideas were not widespread in the American legal tradition, if at all they were defended by jurists» (id., p. 160). In A Matter of Interpretation, Scalia defended textualism – and thus formalism – and said: 55. Tamanaha, op. cit. cit., note 10, p.
68. He also denies that «right-wing realists formed a group or movement.» Id., p. 68. His testimony is that «the main characterizations of legal realism put forward by theorists and historians» – he cites only Laura Kalman, Robert Summers, John Henry Schlegel and Morton Horwitz – «the promotion of an instrumental view of law as a means of achieving social goals, the pursuit of approaches to law in the social sciences, the efforts of reformers to transform legal education, improve legal practice and evaluation. and attempts by reformers to advance a progressive political agenda in and through law – or a merger of the four. Id., p. 70. He then rightly notes that those who are often listed as realists «did not agree among themselves on these positions».
Since it inexplicably omits the attempts of legal authors to formulate explicitly striking jurisprudential theses that are characteristic of realism – namely mine and those of Fred Schauer (although he also cites our work) – this is hardly surprising. But we come back to this topic below. Frederick Schauer, a professor at the University of Virginia School of Law, published an article entitled «Formalism» in the Yale Law Journal in 1988.