Document Type

Book Review

Publication Title

Constitutional Commentary

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First Page




The year 1661 saw the publication of Joseph Glanvill’s The Vanity of Dogmatizing, a polemic advocating an intellectual break from Aristotle and the Schoolmen in favor of the sort of empiricism that eventually came to fruition in the philosophy of David Hume. Glanvill was deeply irritated by what he perceived as the encrusted academic orthodoxies of his age: “The Disease of our Intellectuals,” he railed, “is too great, not to be its own [evidence]: And they that feel it not, are not less sick, but stupidly so.” What was needed was a skeptical cast of mind— thinkers who would shatter the tiresomely durable scholarly categories of the past centuries. The entrenchment of certain archetypical ways of knowing had led to the desiccation of knowledge and eventually to its distortion. True knowledge, said Glanvill, “requires an acuteness and intention to its discovery; while verisimility . . . is an obvious sensible on either hand, and affords a large and eas[y] field for loose [i]nquiry.”

The passing of academic generations often witnesses challenges to older scholarly categories in favor of the next best thing. But it is rarer to see the attempted upending of an entire way of thinking about a historical phenomenon whose existence has achieved unspoken universal assent. In his book, Beyond the Formalist-Realist Divide, Brian Tamanaha takes up Glanvill’s mantle, and his target is one of the most deep-rooted jurisprudential dichotomies of the last century: the concepts of legal formalism and legal realism. The book aims “to free us from the formalist-realist stranglehold,” an exercise that, it is claimed, will allow “us [to] recover a sound understanding of judging” (p. 3).

The book makes three contributions—historical, critical, and theoretical. First, it convincingly resuscitates several unjustly discredited figures in American legal history. Second, it offers various perceptive criticisms of the way in which legal scholars and commentators have distorted the views of their predecessors for ideological and other ill-gotten gains. Third, it calls for the repudiation of the formalist and realist categories in favor of what the author touts as "balanced realism" (p. 6), which he claims is both an accurate picture of the way that many judges always have done and continue to do their work, and a normatively attractive jurisprudential account.

This essay summarizes and praises the historical features of the book in Part I. These are the best parts of a very good book. In Part II, the essay explores Tamanaha's interesting critical reconstruction, one which attempts to explain why the formalist/realist dichotomy achieved such salience in the face of copious contrary historical evidence. In the context of assessing the author's critique, the essay expresses some reservations about Tamanaha's appeal to "balanced realism." In specific, it argues that Tamanaha's ultimate reliance on the very scholarly categories that he spends the bulk of his book debunking is surprising and somewhat deflating. This recursive move suggests that even after all the historical smudge-marks have been identified and retouched, the best that can be done is resignation to a kind of murky via media somewhere between formalism and realism's grosser excesses. The essay offers two interpretations of Tamanaha's backslide to "balanced realism," which it calls the metaphysical and the historicist interpretations.


Book review of: BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING. Brian Z. Tamanaha. Princeton University Press. 2010.

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