What the Realists Got Right

Document Type

Article

Publication Date

2025

Publication Information

70 Am. J. Juris. 203 (2025).

Abstract

For the past several decades, realists and formalists have been deeply at odds. They have, however, mostly been talking past one another, with each side trading in caricatures of the other. In this article, I aim to show the benefits of a more tempered approach; in my case, the approach of a formalist to realist thought. I closely examine the unreconstructed legacy of realist thought, focusing on realist ideas that have proven especially influential. Along the way, I uncover some surprising affinities and compatibilities between realist and formalist thought. Acknowledging that it is hard to take the measure of realism, I argue that we can credit it with eight important ideas about law. For each of these, I also locate correlative unsound ideas. That these pairings of ideas—sound and unsound—travel together has made it difficult to understand and to critically evaluate realism. This, in turn, has made it difficult for realists and formalists to join one another in productive debate. It is all too easy for those sympathetic to realism to see only the sound ideas, or to be swayed by rhetorically powerful expression of unsound ones. Likewise, it has been all too easy for formalists to see only the unsound ideas. This article aids in the disentanglement of the many strands of realist thought and hence furnishes a basis for more discriminate assessment of the relative merits of realism and formalism, respectively.

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