2.5 Legal thought
US legal thought in the 19th century (often called ‘classical legal thought’),
was traditionally formalist and conceptualist, comparable to, and influenced by, legal thought in Europe, especially Germany (Hoeflich, 1997). In
the beginning of the 20th century, formalism was rejected by legal realism,
a development which in turn was influenced by developments in Europe:
German ‘Freirechtsschule’ (Herget & Wallace, 1987), French social theory
of law, but in more radical fashion. Legal realism rejected formalism with
its emphasis on logical deductions, on two grounds. First, formalism was
inconclusive
: legal concepts do not have inherent meanings and thus do not
yield definitive outcomes to solve cases and problems. Second, the autonomy of law as a discipline was questioned on normative and empirical
grounds. Law was influenced by and in turn had influence on real world
issues, and therefore was and should be influenced by insights about the real
world. Politically, legal realism often came with a progressive social agenda
and was instrumental for the New Deal and social legislation.
Legal Realism spurred an array of schools of legal thought, mostly interdisciplinary in nature (Duxbury, 1995). The most influential of these has
been Law and Economics, which can now be considered mainstream and
often serves as a kind of substitute for the lack of legal doctrine.
A politically radical offspring from legal realism was Critical Legal Studies, a
loosely connected movement that combined the antiformalism of legal
realism with leftist political ideas (often drawing on Marxism or the
Frankfurt Critical School) and modern/postmodern philosophical methods
(Joerges & Trubek, 1989). Critical Legal Studies spurred other movements,
including Critical Race Theory, Law and Feminism, and several other
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politically progressive and/or methodologically postmodern groups. All in
all, the rejection of formalism and of doctrine means that an interdisciplinary approach is almost required now in legal writing, although approaches
other than law and economics have rarely been influential on judges
(Zimmermann, 1995/1998).
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