The real and the formal: Legal realism revisited


Polat N.

SOCIAL & LEGAL STUDIES, cilt.8, sa.1, ss.47-74, 1999 (SSCI İndekslerine Giren Dergi) identifier identifier

  • Cilt numarası: 8 Konu: 1
  • Basım Tarihi: 1999
  • Doi Numarası: 10.1177/096466399900800103
  • Dergi Adı: SOCIAL & LEGAL STUDIES
  • Sayfa Sayıları: ss.47-74

Özet

The article aims to pursue a reassessment of one fundamental binary opposition legal realism invokes - the real and the formal. While some of the realist objections to the formal, mechanistic concept of adjudication have been insightful, the realist writers have been for the most part unaware of some of the formalistic and ultimately self-refuting presuppositions of their own rhetoric. This article argues that realism betrays its very rationale and mimics the mainstream formalism, as it effectively supplants the formalistic considerations of law as a system of rules with its own markedly formalistic preoccupations of law as the right method or theory. The article ventures to indicate some of the realist associations with the earlier European realism, with that of Francoise Geny in particular, which have consistently been neglected in the traditional assessments of the legal realist critical legacy. In so doing, the article relies not only on deconstructive strategies, but it also greatly presumes both the Wittgensteinean argument on 'privacy' and Stanley Fish's critique of formalism in literary and legal studies.