Difference between American Formalism and American Realism

Sociological Movement of Law –

It is an organized critique of American Legal Formalism. This movement was sought to replace the American legal formalism with American legal realism, which was considered to be more pragmatic, predictive and positivistic. The American civil war and the World War – I shaped the thinking of the Americans. The Movement was characterized by three great American legal thinkers namely – Oliver Wendell Holmes, Roscoe Pound and Karl Llewellyn. It is a transformation from Grand Style to American Formalism and then to American Realism.

Grand Style

Grand Style system of adjudication that prevailed earlier in American was based on “situation sense”. This system considered more of extra legal factors rather than considering just the abstract legal principles. It was not general but was specifically applied from case to case.

Development of American Formalism

When the American civil war ended in 1865, the golden age of American entrepreneurship had begun. There was also a shift of economy from agrarian to industrial one. They required a legal system with high degree of generality and logic. They did not want the interference of the courts too much in their specific business transactions. In order to satisfy their economic interests they were interested in law that was self conditioned, apolitical and made legal reasoning as that of Mathematics. The American Formalism was the successful efforts by these entrepreneurial groups to transform their interests.

Legal Formalism

This system of law was highly logical, general and conceptualized. Conceptualism is a theory that means that there are number of legal principles which can be stated in schematic form. Judges derived their rules from these abstract principles and applied them mechanically. It was popular from 1870 to 1940.

American Realism and the thinkers behind its development

Oliver Wendell Holmes Jr.

The famous work of Holmes critiquing the American Formalism is “The Common Law”.   It is not just the judicial system per se but it is the society that determines which legal rules are to survive and how they will be used. Law is not based on logico deductive method but it is connected to practical experiences of everyday life. The true source of law is the will of the defacto supreme power of the community. Life of law has not been logic but practical experience.

Roscoe Pound

He contended that the problem with the American Formalism was it was not able to meet the changing conditions. There was a lot of discrepancy between the law in book and law in fact. Though the scientific nature of American Formalism reduced the biasness and corruptness of the judge, but at the same time it has transformed the law making and judicial decision into an artificial and abstract enterprise. Law had become a static entity and it had lost its practical function.

American Formalism

American Formalism was based on pragmatic jurisprudence and it was highly critical of the contention made by the American Formalism that it possesses high degree of certainty, predictability and uniformity. “William James” and “John Dewey” had the notable influence on the development of American Realism. William James is considered to be father of “Pragmatism”. The word ‘Pragmatism’ is derived from the Greek word “Action”. This theory was more dominant during 1920s and 1930s. Pragmatism is looking towards the last things, fruits, consequences and facts.  William James contended that legal principles are fluid not fluid as propounded by American Formalism but they change every time a new factor is introduced in the case. John Dewey proposed instrumental thinking as a substitute for rigid deductive procedure of legal formalism.

Karl Nickerson Llewellyn

His article “A realist jurisprudence – the next step” was the first self conscious statement of legal realism. He distinguished between “paper rules” [which was contained in the books] to “real rules” [ which was applied practically].

He propounded these tenets –

• Law is not static but it is ever changing. The judiciary also creates law and not the legislature.
• Law is not an end in itself but a means to attaining desired social ends.
• Society changes at a faster rate than the pace at a law changes. Law has to be reviewed regularly in order to meet the changing needs of society.
• He told to distinguish between “is” and “ought” in order to achieve objective science of law.

In this way these thinkers helped in changing the system of “American formalism” which was more rigid and based on logical deductive reasoning into “American realism which was more predictive, pragmatic, and positivistic. 

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