The Stages of Legal Reasoning- Formalism Analogy and Realism
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The Stages of Legal Reasoning- Formalism Analogy and Realism
Volume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realismigitalcommons.law.villanova.edu/vlrCf Part of the Jurisprudence CommonsRecommended CitationWilson Huhn, The Stages of Legal Reasoning: Formalism, Analogy, and Realism, 48 Vill. L. Rev. 305 (2003).Available at: https://digitalcommons.law villanova edu/vlr/vol48/issl/5This Article is brought to you fo The Stages of Legal Reasoning- Formalism Analogy and Realismr free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law ReThe Stages of Legal Reasoning- Formalism Analogy and Realism
view by an authorized editor of Villanova University Charles Widger School of Law Digital Repository.Huhn The Stages of Legal Reasoning Formalism. AnaVolume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realism formalistic analysis.* 1 Judges and lawyers reasoned deductively from base principles.2 Legal historians have persuasively described how leading judges and scholars fomented a revolution in legal thought in the 20th Century.3 Starting about 1910, legal realism—or policy analysis—entered legal reaso The Stages of Legal Reasoning- Formalism Analogy and Realismning4 to the point that today it would be unusual to find a judicial opinion or brief that fails to explore the policy implications of an interpretatiThe Stages of Legal Reasoning- Formalism Analogy and Realism
on of the law. This historical shift from formalism to realism suggests that there are stages of legal reasoning.In this Article, I argue that formaliVolume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realismng correspond to stages of cognitive and moral development. Second, examination of judicial opinions in hard cases reveals that courts progress from formalism, to analogy, to realism, in resolving difficult questions of law. Third, these three forms of reasoning are necessary components in the evolu The Stages of Legal Reasoning- Formalism Analogy and Realismtion of rules and standards.♦ B.A. Yale University. 1972; J.D. Cornell Law School, 1977: McDowell Professor of Law and Research Fellow, ConstitutionalThe Stages of Legal Reasoning- Formalism Analogy and Realism
Law Center, University of Akron School of Law. Research for this Article was funded by a summer fellowship awarded by the University of Akron School Volume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realism Elizabeth Reilly and Dr. jay Levine of the University of Akron School of Law, Professor Todd Brower of Western State University College ol' Law. and Professor Howard Denemark of the Texas Wesleyan School of Law for their generous and useful suggestions.1.See Morton J. Horwitz, The Transformation of The Stages of Legal Reasoning- Formalism Analogy and Realism American Law 1870-1960 16-17, 199 (1992) (describing emergence of formalism in English common law system); see also Grant Gilmore, The Ages of AmericThe Stages of Legal Reasoning- Formalism Analogy and Realism
an Law 41-67 (1977) (describing evolution of American law in period between Civil War and World War I). Horwitz characterizes American legal reasoningVolume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realismg general propositions of law. See Horwitz, supra, at 17 (illuminating nature of Nineteenth century legal thought). Gilmore refers to the same period as “the age of faith," (i.e.. faith in legal principles) in contrast to “the age of anxiety" which followed it. Gilmore, supra, at 41 (examining perce The Stages of Legal Reasoning- Formalism Analogy and Realismption of American law during period from Civil War to World War I).2.See Horwitz, supra note 1, at 199 (describing Legal Realists' critique of orthodoThe Stages of Legal Reasoning- Formalism Analogy and Realism
x legal reasoning).3.See. id. at 199-200 (differentiating legal realism from conceptualism).4.See id. at 18 (describing growing importance of policy iVolume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realisma Law Review. Vói. 43. ki. ỉ [2003]. Art. ỉ306Vii.ianova Law Review [Vol. 48: p. 305In characterizing these modes of analysis as “stages,” I do not mean to imply that analogy is superior to formalism or that realism is superior to them both.5 In fact, one might reasonably argue, as Justice Antonin S The Stages of Legal Reasoning- Formalism Analogy and Realismcalia would, that the hierarchy proceeds in the opposite direction, in that one is forced to resort to analogy only where formalism has failed, and thThe Stages of Legal Reasoning- Formalism Analogy and Realism
at realism is the last resort of all.6It would be even more accurate to reject hierarchy altogether, and the concomitant conceit that one form of legaVolume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realismsary for the law to progress. The ultimate purpose of legal analysis is to create a system of laws that is clear, consistent and just, a code of conduct that is universally understood and accepted. But this is a task that is beyond human ability. As H.L.A. Hart observed, a perfect system of laws can The Stages of Legal Reasoning- Formalism Analogy and Realismnot be created “because we are men, not gods."7 However, formalism, analogy and realism each play a critical role in the attempt to create a code of cThe Stages of Legal Reasoning- Formalism Analogy and Realism
onduct that is logical, predictable and fair.Accordingly, Part I of this Article defines formalism, analog}' and realism by describing the psychologicVolume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realisming as “soft stages" that appear or are invoked sequentially, that arc structurally distinct and that “prepare the way” for subsequent stages. They arc not the invariant and hierarchical “hard stages” of Piaget and Kohlberg. For a discussion of the stages of Piaget and Kohiberg, see infra notes 77-1 The Stages of Legal Reasoning- Formalism Analogy and Realism22 and accompanying text.6.Justice Scalia criticizes realistic analysis as inappropriate judicial “fact-finding," bitt acknowledges that it cannot beThe Stages of Legal Reasoning- Formalism Analogy and Realism
"entirely avoided:"I have not said that legal determinations that do not reflect a general rule can be entirely avoided. We will have totality of the Volume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realismrge is that those modes of analysis be avoided where possible; that the Rule of Law, the law of rules be extended as far as the nature of the question allows; and that, to foster a correct attitude toward the matter, we appellate judges bear in mind that when we have finally reached the point where The Stages of Legal Reasoning- Formalism Analogy and Realismwe can do no more than consult the totality of the circumstances, we are acting more as fact-finders than as expositors of the law.Antonin Scalia. TheThe Stages of Legal Reasoning- Formalism Analogy and Realism
Rule of Law as the Law of Rules, 56 u. Cm. L. Rev. 1175, 1186-87 (1989).7.H.LA. Hart. The Concert of Law 128 (1994) (describing need for flexibility Volume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://di The Stages of Legal Reasoning- Formalism Analogy and Realismo two human shortcomings: “our relative ignorance of fact” and “our relative indeterminacy of aim.” Id. Larry Alexander concurs with Hart by saying “|a]uthoritative rules that are promulgated by human beings of finite reasoning and informational capacities and that arc meant to improve the moral con The Stages of Legal Reasoning- Formalism Analogy and Realismdition of human beings of finite reasoning and informational capacities will always fail to capture precisely the requirements of morality." Larry AleThe Stages of Legal Reasoning- Formalism Analogy and Realism
xander, Can Law Survive the Asymmetry of Authority, in Rules and Reasoning: Essays in Honour of Fred Schauer 39, 41 (Linda Meyer cd., 1999) (assertingVolume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://diVolume 48 Issue 1Article 52003The Stages of Legal Reasoning: Formalism, Analogy, and RealismWilson HuhnFollow this and additional works at: https://diGọi ngay
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