You are told that an artillery barrage will begin at 5am and last for ten minutes, after which you are to attack and hold the enemy’s trench. Under no circumstances are you to advance beyond that trench until you receive further instructions. At the appointed time, your regiment scrambles across no-man’s-land and takes the objective with moderate casualties. But now you spy the enemy retreating in disarray down a communications trench perpendicular to the one that you have just taken. It is clear to you that with a minimum of loss you can take and hold the communications trench as well. Moreover, it is clear to you that if you do not take the communications trench, you will be vulnerable to counter-attack while you await further instructions from your commander.
The distinction between legal realism and legal formalism is this and nothing more: In blatant disobedience of orders, the legal realist would take and hold the communications trench. The legal formalist would not.
The appeal of legal realism is that legal realists will be more effective at carrying out the ends of the governmental enterprise, just as the army that nurtures officers who know when to disobey orders will be more effective at defeating the enemy. Nothing more.
Clearly, the distinction between realism and formalism has to do with consequences. It is the possibility of counterattack if you do nothing that induces you to advance. But it would be a mistake to see legal realism as a kind of consequentialism, as David A. Simon seems to do in his surreply to my reply to a piece by Adam Mossoff. At least if by consequentialism Simon means the method of value creation that purports to find values through an examination of their consequences. The problem of value creation–of ends–is for the lawgiver, whether a military general, or the legislature. The problem of the law, by contrast, is how to act according to received values–how to achieve a given end.
Legal realism is a humanism in the sense that it acknowledges and seeks to leverage the capacity of the human being to absorb and carry out the visions of others with a level of effectiveness–of faithfulness to the vision–that simply cannot be captured by mechanical obedience. Realism understands that mechanical obedience fails because of the impossibility of anticipating all possible future states of the world and writing a determinate rule for each. Realism accepts that the mind is able to coordinate with other minds in ways that science is not yet able to spell out. Realism therefore asks those who apply the law to use their minds to internalize the law’s values and take responsibility for realizing them, not merely to obey commands. The realist is to the legal formalist as the AI tasked with achieving an objective is to the conventional computer program executing a set of static instructions. The AI can identify the cat, even if the AI has not been given specific instructions about how to find it, and even though the builders of the AI are unable to explain precisely how the AI is able to achieve that.
But the identification of the objective remains in the hands of the programmer. I have no problem characterizing the sort of obedience owed by the legal realist to the lawgiver as religious in character. The worshiper asks himself: how can I live my life in a way that is obedient to God? The legal realist asks: how can I apply the law in a way that is obedient to the lawgiver? In other words, the legal realist is constantly asking: what would the lawgiver want me to do here? Just as the worshiper is constantly asking: what would God want me to do?
The letter of the law matters to the legal realist, but only to the extent that it helps the legal realist understand better what the lawgiver would want the realist to do, if the lawgiver were standing in the realist’s shoes, surveying the situation in light of what has been revealed about the world between the time when the lawgiver wrote down the law and the present moment.
This is an experience of constraint. Legal realism is not about value creation. The realist must be the lawgiver at a time and place that the lawgiver could not access for himself when the lawgiver wrote the law. This is precisely why legal realism is so much more powerful than formalism: because the realist becomes an extension of the lawgiver. By taking the spirit of the lawgiver into himself, the realist replicates the lawgiver across time and space. But, again, the decisions that the realist makes must be those of the lawgiver, or the realist’s best possible projection of the lawgiver. The decisions are not to be a reflection of the realist’s own personal values.
When the formalist approaches a situation that the lawgiver did not anticipate–which is always, because, in its multiplicity, experience is never as we imagine it to be in advance, when we make our laws–when the formalist approaches such an unanticipated situation, and goes ahead and applies the legal rule as written, not because the formalist believes the rule as written to be what the lawgiver would want the formalist to do in that particular situation, but simply because that is what the writing on the page says to do, the formalist does something unimaginably perverse and stupid.
For the formalist has no reason to believe at all that he is doing what the lawgiver wants. He may in fact be doing precisely what the lawgiver would not want if the lawgiver had known that events would unfold as they have. Moreover, the formalist might well be in a position to intuit, with minimal effort, the fact that the lawgiver would not want the formalist to act according to the letter of the law, if only the formalist would stop and think. The formalist takes the faculty of collective action in humans, evolved over billions of years to allow us to act as one mind, and shuts it off. We spank our children for that kind of behavior, for taking us literally, instead of doing what we want.
When the legal formalist seeks to deduce from existing rules new rules, not by asking what rules would be consistent with the values of the lawgiver, but through analogical thinking, the perversion is even greater, because what the formalist actually ends up doing will not even accord with the letter of existing rules, but only with the new rules that the formalist has dreamed up using some deductive process that is unmoored from the vision of the lawgiver.
Now, the lawgiver may not object to formal obedience; the lawgiver may even punish realism, just as the officer who takes the communications trench may be courtmartialed, or shot. But unless the lawgiver does that out of a fetish for formalism–meaning that one of the lawgiver’s values is formalism itself–in which case the problem of how to apply the law is resolved by mere fiat, the lawgiver does no more than harm himself, hampering his ability to achieve collective action in accordance with his values.
In the United States today, I think it is fairly uncontroversial to say that values are supposed to come from the people, and that the people care about business law only to the extent that it generates an economy that makes them better off. It is in that spirit that I offered, in my reply essay, some illustrative remarks about the considerations that might go into proper legal realist decisionmaking about whether to treat trademark rights as property rights. I did not suggest, however, that legal realism requires that trademark law must always be applied with the end of maximizing consumer welfare in the economic sense. It seems to me that our lawgivers today would like that. But tomorrow they might not — they might prefer that trademark law be applied only to advance worship of the Great Seal of the United States of America. And then the legal realist’s job would be to interpret trademark law to carry out that vision instead.
[Kindly note that I do not view posts on this blog as complete once posted, and do not flag revisions.]