Bridges Between Realism and Formalism

Abstract This introductory essay to a symposium issue of The American Journal of Jurisprudence starts from the observation that the relation of legal realism and formalism can be (much) more complicated than is often assumed. Instead of setting realism and formalism in opposition only, a more productive way to proceed is to concentrate on the insights legal realists may gain from formalism and, vice versa, what modern formalists have to learn from legal realism. Natasha Sarna and Kevin Tobia, Andrew Gold and Henry Smith, Shyamkrishna Balganesh and Taisu Zhang, Thilo Kuntz, Paul B. Miller, Emily Sherwin, and Marietta Auer consider these questions from different angles. This introductory essay brings the individual contributions together and indicates how their insights may interrelate. Moreover, it sketches avenues for future research. Section I takes up the theme of the use of concepts and conceptual change. Section II addresses tensions between realism and formalism. Section III closes the Introduction by charting two paths for future research. First, this essay argues that legal concepts, even where they constrain, may induce or facilitate legal creativity. Second, it considers the significance of a complex legal system for understanding approaches to legal concepts.