In the late 19th Century, legal reasoning was dominated by formalistic analysis. Judges and lawyers reasoned deductively from base principles. Legal historians have persuasively described how leading judges and scholars fomented a revolution in legal thought in the 20th Century. Starting about 1910, legal realism--or policy analysis-- entered legal reasoning to the point that today it would be unusual to find a judicial opinion or brief that fails to explore the policy implications of an interpretation of the law. This historical shift from formalism to realism suggests that there are stages of legal reasoning.
In this Article, I argue that formalism, analogy and realism should be considered to be the stages of legal reasoning. First, psychological research suggests that these methods of reasoning correspond to stages of cognitive and moral development. Second, examination of judicial opinions in hard cases reveals that courts progress from formalism, to analogy, to realism, in resolving difficult questions of law. Third, these three forms of reasoning are necessary components in the evolution of rules and standards.
In characterizing these modes of analysis as "stages," I do not mean to imply that analogy is superior to formalism or that realism is superior to them both. In fact, one might reasonably argue, as Justice Antonin Scalia would, that the hierarchy proceeds in the opposite direction, in that one is forced to resort to analogy only where formalism has failed, and that realism is the last resort of all.
It would be even more accurate to reject hierarchy altogether, and the concomitant conceit that one form of legal analysis is superior to another. Rather than levels in a hierarchy, formalism, analogy and realism are all stages of a cycle, each of which is necessary for the law to progress. The ultimate purpose of legal analysis is to create a system of laws that is clear, consistent and just, a code of conduct that is universally understood and accepted. But this is a task that is beyond human ability. As H.L.A. Hart observed, a perfect system of laws cannot be created "because we are men, not gods." However, formalism, analogy and realism each play a critical role in the attempt to create a code of conduct that is logical, predictable and fair.
Accordingly, Part I of this Article defines formalism, analogy and realism by describing the psychological theories of James Mark Baldwin, Jean Piaget and Lawrence Kohlberg insofar as they shed light upon the cognitive and moral aspects of legal reasoning in general and formalism, analogy and realism in particular. Formalism represents the "rule-bound" thinking characteristic of the Piagetian stage of concrete operations and the Kohlbergian stage of conventional thought. Realism, whose concern is what the law might be, represents the Piagetian stage of formal operations and the Kohlbergian stage of postconventional thought. Reasoning by analogy straddles both stages; formalist analogies are concrete and conventional, while realist analogies are abstract and postconventional.
Part II illustrates how formalism, analogy and realism are sequentially invoked to resolve hard cases. When society changes, or other unexpected events occur that give rise to unforeseen legal problems, formalist rules fail us and we rely upon analogies. When these analogies prove insufficient as well, we turn to realism, balancing all of the underlying values and interests to develop new rules of law. In hard cases, reasoning by analogy serves as a bridge between formalism and realism. Part III argues that the evolution of rules into standards, and standards into rules, also demonstrates the stages of legal reasoning. Evolution of the law in both directions is achieved by drawing analogies. Realist analogies help turn rules into standards and formalist analogies help turn standards into rules. The law evolves from rules to standards and back again in an unending cycle of assimilation and accommodation.
I conclude that none of the three modes of analysis standing alone is adequate to produce a clear, consistent and just system of laws. Legal progress depends upon using all three modes of analysis.