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

• Author: Gerard W. Sadlier
• Position: BCL (Hons) NUI, LLM candidate, UCC
• Pages: 122-133

AMERICAN REALISM AND THE ‘POLICY OF CERTAINTY’:

AN EVALUATION OF SALOMON V SALOMON

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

A INTRODUCTION: THE REVOLT AGAINST FORMALISM

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

122

* 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.