American Realism And The 'Policy Of Certainty': An Evaluation Of Salomon V Salomon

AuthorGerard W. Sadlier
PositionBCL (Hons) NUI, LLM candidate, UCC
Gerard W Sadlier*
‘If we never do anything which has not been done before, we shall
never get anywhere. The law will stand still while the rest of the
world goes on, and that will be bad for both.’1
During the late nineteenth century, Anglo-American legal discourse
was dominated by ‘classical’ legal formalism.2 In line with the intellectual
climate of the time,3 formalists4 placed great emphasis on a priori reasoning in
law,5 to the exclusion of public policy considerations,6 and even substantive
justice itself.7 The law, they averred, was a hallowed body of settled
* BCL (Hons) NUI, LLM candidate, UCC.
I would like to thank Dr Shane Kilcommins for his comments on an earlier draft, during the
pre-publication review process. Any errors which remain are my sole responsibility.
1 Packer v Packer [1953] 2 All ER 127, 129 (Denning LJ). This quotation also appears in the
preface to Lord Denning's book The Discipline of Law (Butterworths London 1978).
2 The formalism of this period is here described as classical to distinguish it from various
more modern ‘formalistic’ conceptions of the law, with which it has little in common. For an
excellent exposition of the many differences between classical formalism and the various
strands of modern neo-formalist thought see RH Pildest ‘Forms of Formalism’ (1999) 66 U
Chicago L Rev 607.
3 Particularly in fields such as philosophy, social sciences and economics, which shared with
the legal formalists a reverence for the logic of mathematics and the natural sciences and a
desire to apply similar a priori reasoning in their own areas of study. The significance of these
intellectual interconnections is emphasised by M Freeman Lloyd’s Introduction to
Jurisprudence (7th edn Sweet & Maxwell London 2001) 799 hereinafter Lloyd
4 Notably Ames, Beale and (perhaps most famously) Langdell.
5 A view they shared with and may have derived from thinkers such as Bentham (whose
hedonic calculus of pleasures and pains seems a particularly apt example of a priori thinking)
and Austin (whose jurisprudence, with its emphasis on the command of the sovereign seems
largely formalist in tone, discounting as it does all considerations of morality or efficiency).
6 In this reluctance to take such matters into account, formalists exaggerated rather than
replicated the common law’s traditional reluctance to ride the ‘unruly horse’ of public policy
(Pildest (n 2) 608, who refers to Langdell’s treatment of the postal rule to illustrate this
point). Blake Brown and Kimball (‘When Holmes Borrowed from Langdell: The “Ultra Legal”
Formalism and Public Policy of Northern Securities (1904)’ (2001) 45 Am J Leg Hist 278) go
further at 279, suggesting that formalists regarded law as entirely ‘divorced from morals or
public policy.’ It may be that this last view is somewhat caricatured.
7 B Bix Jurisprudence: Theory and Context (4th edn Sweet & Maxwell London 2006), 179.

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