ABSTRACT
This chapter opens the part of the book that describes the kind of arguments employed in legal reasoning, and the normative theories behind them, which focus on what kinds of arguments are appropriate to legal reasoning. We look at how theorists and judges approach and answer these questions in different ways, and what they say about the nature of legal reasoning, the nature of law, and the connection between the two. This chapter looks at two competing and highly influential traditions of legal reason. The first, which we introduce with the help of the theory of Max Weber, is formalism. Formalism in an extreme form presents a picture in which law is and should be an entirely self-determining system in which all questions that arise are answered from within the law itself, and where judges are never faced with choices or alternative interpretations of a kind that would be resolvable only through recourse to extra-legal considerations, such as moral or political values. For a formalist such considerations never enter into the determination of legal outcomes. To this image of law that emerges as particularly powerful in the 19th century, both in codified legal systems on the Continent and among common lawyers, stands opposed the realist tradition. The revolt against formalism was particularly vigorous in the US in the 1920s and 1930s where the American legal realists argued that formalism involved a descriptively inaccurate version of legal reasoning, but also a normatively problematic one which ignored the social interests on which law was truly based and by reference to which it ought to be interpreted and developed.
