The real and the formal: Legal realism revisited

The article aims to pursue a reassessment of one fundamental binary opposit ion legal realism invokes - the real and the formal. While some of the real ist objections to the formal, mechanistic concept of adjudication have been insightful, the realist writers have been for the most part unaware of som e of the formalistic and ultimately self-refuting presuppositions of their own rhetoric. This article argues that realism betrays its very rationale a nd mimics the mainstream formalism, as it effectively supplants the formali stic considerations of law as a system of rules with its own markedly forma listic preoccupations of law as the right method or theory. The article ven tures to indicate some of the realist associations with the earlier Europea n realism, with that of Francoise Geny in particular, which have consistent ly been neglected in the traditional assessments of the legal realist criti cal legacy. In so doing, the article relies not only on deconstructive stra tegies, but it also greatly presumes both the Wittgensteinean argument on ' privacy' and Stanley Fish's critique of formalism in literary and legal stu dies.