The Stages of Legal Reasoning: Formalism, Analogy, and Realism
79 Pages Posted: 7 Nov 2010 Last revised: 8 Nov 2010
Date Written: 2003
Legal reasoning embodies both logic and moral reasoning. As such, legal reasoning exhibits the same stage structure that has been observed by psychologists in the development of cognitive and moral reasoning. This structure becomes evident when changes in society, including changes that result from scientific progress, give rise to novel legal problems. When faced with new fact situations the reasoning of the courts frequently follows a typical sequence. First, courts attempt to formalistically apply existing rules of law according to their terms to new facts. If the courts are unable to define the terms of existing rules so that they apply to the new case, then the courts draw analogies between the new situations and familiar ones, applying existing rules by analogy. If these analogies break down, courts fashion new rules by means of a realistic balancing of policies and interests. The progression from formalism to realism reflects the process of assimilation and accommodation described by James Mark Baldwin, the cognitive change from concrete operations to formal operations described by Jean Piaget, and the change from conventional to postconventional moral thought described by Laurence Kohlberg.
Reasoning by analogy may be either formalist or realist. Courts may draw analogies by noting the factual similarities between previous cases and new cases, and if these formalist analogies are deemed sufficient then the rule of the previous case will be applied to the case at hand. If the formalist analogy is deemed insufficient, the courts may proceed to identify the values that are served and the interests that are protected by existing rules of law in considering whether those interests and values will be similarly promoted by applying the existing rule to the case at bar. If the realist analogy is also insufficient to persuasively justify a result, the courts may then proceed to the third stage of legal reasoning, and may develop new rules of law by directly balancing the underlying values and interests that were identified through the use of realist analogies. In this way reasoning by analogy serves as a bridge between formalism and realism.
Furthermore, as rules evolve into standards, and as standards evolve into rules, a critical stage in the process is judicial experience applying the law. For standards to become rules, the courts must draw formalist analogies between cases interpreting the standards, and for rules to become standards, the courts must draw realist analogies among the cases interpreting the rules. This pattern in the evolution of rules and standards supports the concept that formalism, analogy, and realism are the stages of legal reasoning, and that analogy serves as the bridge between formalism and realism.
Keywords: Formalism, Analogical Reasoning, Realism, Policy Analysis
JEL Classification: K10, K19
Suggested Citation: Suggested Citation