I.
(b) Realism, Formalism, Normativity
The question is whether we should continue to regard realism
as the antithesis of formalism; as marking the moment of a
shift in consciousness or a singular strategy undermining
a particular mode of intellectual domination. This question
is not posed as a prelude to historical investigations resulting
in a more precise account of either formalism or realism,
or a contextualization suggesting only a relative independence.
What is at stake is not a mythology of abandonment and substitution,
nor a more precise and elaborate articulation of theories
of process for which some modest synthetic claim might be
made. The question is posed upon the hypothesis that realism
was the salvation of formalism rather than its contradiction,
a supplementation rather than an antithesis, a support rather
than an erosion.
Realism
as antithesis is a product of the attributed deficiencies
of formalism: the predominance of part to whole relations,
the elaboration of conceptual structures and hierarchies,
and its preoccupation with universals are alien to a world
of variety and difference characteristic of shifting alignments
and arrangements, the ebb and flow of events and the tendency
of human behavior to be both episodic and differentially constrained.
The contribution of realism may not lie, however in correcting
deficiencies, filling gaps or otherwise being what formalism
was not, but in its relation to what formalism affirmed and
supported. Formalism demonstrated that it was possible to
retain the notion of authority and its transgression at the
center of law severed from monarchy, cleansed of an archaic
natural reason and forever holding at bay a sensate empiricism
which threatened to introduce a Lutheran revolution into the
heart of secular political society. At the core of law was
authority and its transgression supported by reason and its
truth.
It
is here that realism as the universal sign of unreason supposedly
takes hold and establishes its revolutionary claim that the
truth of reason is merely the power of authority, and that
from the perspective of its functioning formalism is neither
reasonable nor true. Hence the double thrust of its behaviorism:
as an undermining of the truth of reason, and as an elucidation
of the buried but nonetheless articulable alternative order
which will provide the foundation for reform.
In
order to set aside this claim it is necessary to call into
question the tightly woven 19th century unity formed around
positivism, legal science and formalism: formalism understood
as the legal science of sovereign authority expressed in positive
law. Must we assume that formalism exhausts the possibilities
for a legal science even though, for example, the psychology
of William James effected no closure on a science of the mind?
If, in spite of the enormity of the ruptures they introduced,
Einstein and Keynes may be nevertheless situated within a
scientific continuity why must realism mark the death of legal
science; and what may be said of its affect on positivism
- the third figure of the indisoluable trinity?
Formalism,
in the 19th century, could stand alongside certain other sciences
as the unification of a multitude of singularities and aggregations.
As the science of sexuality concerned itself with individual
bodies and populations, as economics reconciled individual
self interest with growth and utility, as medicine understood
physiology through pathology, so formalism could lay claim
to being that science of law situating all particularities
within a generalized conceptual schema. Perhaps more importantly,
this legal science preserved sovereign authority according
to the model of monarchy. No matter that the source of law
was legislative; no matter that through the insertion of an
encompassing representation the subjects and objects of law
became merely two indistinguishable points of an endless circularity.
This legal science confirmed the timeless truth of law as
authority and transgression. Whatever affect representational
democracy may have on politics, the truth of law was heirarchial
authority. Science, tradition and order were the three virtues
of formalism.
In
the 19th century sense, however, formalism was bad science.
While the other human sciences were studying behavior in order
to produce a norm in relation to which deviance could be defined,
punished, controlled or cured, formalism merely articulated
the demands of sovereignty according to a monarchial model
of authority and transgression. Should we be surprised that
realism, from the moment of its delayed inception, specified
normativity and deviance as its central problematic? If a
theory of general utility could be constructed around the
norm of individual self interest, if a theory of language
could be built upon the foundation of discoursive practices,
should we be surprised that realism insisted that legal rules
be reformed to reflect the normal behavior of legal subjects?
The
fundamental error of our perception has been to regard formalism
as legal science appropriately situated with the other human
sciences of the 19th century - as though in obedience to some
principle of even development in the movement of history.
Proceeding from this assumption we needed to explain its singular
failure to survive the 20th century. To be sure, the other
human - and natural - sciences experienced dramatic shifts
and reformulations, but all have deepened, spread and solidified
their claims to science. None, save law, abandoned it. As
a consequence of this fundamental error, we have come to accept
two propositions: that 19th century formalism was not a science
regardless of how sincerely the belief may have been held
by those who practiced it; that realism put an end, perhaps
finally, to the very possibility of a legal science. At the
moment there seems little point in arguing whether formalism
was a bad science or none at all. The second proposition is
much more significant because it fails to appreciate realism's
positive contribution to the formalist program. Rather than
being its antagonist, realism deepened and intensified the
scientific program initiated by formalism. The success of
this extention may be attributed to an absolute penetration
by normativity and the displacement of truth.
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Normativity is homeostatic and basically Aristotelian in the
sense of requiring that institutions and rules recognize or
produce clusters of events, practices or responses which maintain
a flow, produce an incremental increase or retard a deterioration.
It is equally useful in the construction of a commercial code,
determining the proper role of adjudication, or adapting and
modifying rules of civil liability. Normativity expresses no
preference respecting that hoary question whether law should
direct or reflect, and it provides no absolute determination
of validity or virtue because its prime function is to control
a discoursive practice: whether, for example, judicial intervention
should be minimal or intrusive generates a discourse which locates
regular functioning at its core. The norm never determines consequences
because within any situation one may identify a multiplicity
of critical points of regularity to which priorities may be
assigned. But it is a mistake to conclude from this indeterminacy
that normativity is unscientific where, by contrast, the inability
to prioritize personality does not eliminate scientific psychology.
It is also a mistake to assume that normal functioning establishes
a privilege for any particular sort of empirical data. For example,
no violence is done to normativity by rejecting negative evidence
of the harmful effects of pornography or the deterrent effect
of capital punishment in favor of ethical beliefs or moral opinions
since the choice is simply between alternative modes of regularity.
The production of regularities provides the basis for a recognized
normativity with reference to which deviance may be arranged.
Though it may appear novel, modern and scientific, normativity
can be situated within an 18th century tradition that identifies
virtue with the elaboration of a middle position between a chaotic
democratic dispersion? on the one handy and totalitarian centralization
on the other; with a rejection of absolutism in favor of the
truth of moderation; with balancing as norm and necessity.
The
truth of the norm is displaced from its substance to normativity
as such. The displacement of truth is produced by the asymmetrical
relation between data and its meaning. The results of an election
or the number of divorces granted each year can be determined
precisely while simultaneously generating an indefinite series
of meaning statements. Deviance does not find its truth in the
norm, nor the norm in the deviance it extrudes. By an upward
displacement truth is located in the norm-deviant relation itself
as an epistemological universal. Hence the privilege of method
within scientific discourse.
Where
classical law found its truth in sovereign authority, scientific
legality refers its validity to relations of normativity. Realism
distributed its science around the norm, and so it appeared
as a radical break with formalism. But the rupture had already
occurred and was elsewhere - in the demise of sovereign authority
in favor of a disciplinary science engaged in the production
of normativity. Formalism bears the same relation to realism
as 18th century psychiatry bears to modern psychology.
In
1842 Joseph Story offered an account of judicial decisions that
simultaneously bowed in the direction of a decadent sovereignty
(state judicial decisions were not law for purposes of the Rules
of Decision Act) and embraced the regularity of commercial practice
as reflected in decisions of tribunals concerned with commercial
matters as the voice of an imperious normativity. On the one
hand, 'written' law produced by the classical agencies of political
representation; on the other hand, a legal 'speech' produced
by the countless voices of commercial actors engaged in the
regularity of a universal practice. Law and norm were thus articulated
upon the legal division of labor (separation of powers) as a
highly problematic jurisprudence. In 1928 Holmes sought to eliminate
this ambiguity by returning all of law to a sovereignty speaking
with a single voice. He had, perhaps, forgotten his own observation
that the life of the law was experience: the confrontation of
human actors with the endless parade of unique events. Did Holmes
consider by what magic experience as an infinite multiplicity
of events could become Experience the congealed singularity
of meaning? Surely he did not return, in thought, to that time
and those places wherein experience was transparent to its community,
But if experience was not a vibrant and immediate presence how
was it to be known? Would we not need investigators to gather
and select, arrange and classify; to perhaps stimulate, interrogate
and otherwise force experience to disclose its dimensions and
meaning? The return for this herculean effort would surely be
the transformation of an absolute diversity of events into a
regularity of practices, choices, concessions and risks which
offered themselves up as a finite and durable norm. The life
of the law was not logic but normativity. Joseph Story was mistaken
because when the norm is articulated upon sovereignty the distinction
is unnecessary, and ultimately impossible.
In
the writing of the history of its failure realism discovers
its moment of absolute triumph, its point of maximum penetration.
Through a detailed accounting of inevitable organizational stresses,
inherent structural limitations, the interplay of personalities
saturated with strengths, deficiencies and neuroses, the failure
of realism may be celebrated in its absolute banality. What
may be expected of institutions and the human relations which
constitute and transect them? Realism's commitment to normativity
and its truth determines the historical account of its decline
and demise: a certain level of conflict among realist scholars
is normal; some degree of personal inadequacy (deviance) is
also normal; unexpected events (deviance) intrude, but they
always do. The history of realism according to norm and deviation
is its truth - not the violence it did to formalism, or the
political virtue of its reformist tendencies, or its ability
to carry the future, or its methodological precision. The truth
of realism, folded back on itself, is that its historical being
was normal.
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