From Legal Formalism To Legal Realism

Any legal research is superficial, unless it reaches the level of jurisprudence. The dissertation tries to analyze the American conflicts theories from the perspective of jurisprudence. Without doubt, it is a formidable virgin area, because there are so many misunderstandings either of the American Legal Realism or of the American conflicts theories in China now. It is a common trick for many Chinese scholars to make foreign theories seem naive and then attack upon them heavily. So do many scholars in the conflicts law area. Therefore, there are few works which fully comprehend the spirit of American conflicts theories and reveal the true reasons of its evolution from the perspective of jurisprudence. Even though a few scholars deal with such issues occasionally, their research is superficial and many errors have occurred. On the other hand, American scholars are restricted by their cultural atmosphere and consider that such questions are so commonplace that it is not worth of doing such kinds of research. In addition, they are inclined to focus on micro questions rather than macro ones. As a result, few American scholars have made efforts to introduce American conflicts theories to foreigners from the perspective of jurisprudence. The dissertation attempts to find the resources and nature of American conflicts theories, exposes the mysterious veil of their evolution and reveals their surprising fascination and jurisprudential cornerstone by the author's detailed reasoning.With the method of historical analysis and comparative analysis, the dissertation strives to demonstrate that the evolution of American conflicts theories from the past to the present is in fact the play of legal formalism and legal realism in turn on the arena of conflicts law. In comparison with the evolution of jurisprudence, the evolution of conflicts theories have always arrived late. This phenomenon is in fact due to the conclusion that conflicts law is the maidservant of jurisprudence and civil law. The American practice only demonstrates it once again. Therefore, the dissertation first analyzes the American Legal Realist Movement and aspires to find the truth of American legal realism in the numerous works and articles on it; then reveals that how the legal formalism influenced Beale's vested rights theory and the First Restatement of Conflict of Laws; then shows how the early legal realists critiqued Beale's theory and rules; finally selects the five most prevalent modern conflict theories to demonstrate that how the legal realism has gradually dominated the arena of conflicts law in Conflicts Revolution and was incorporated into the Second Restatement of Conflict of Laws.The dissertation consists of eight chapters in detail:Chapter One, The Jurisprudential Cornerstone of the Evolution of American Conflicts Theories, is the basis of the whole dissertation and the most difficult part to work on. The author turns to the history of American jurisprudence and analyzes in detail why and how the American legal realists reverted against and finally overthrew Langdell's legal formalism which had dominated American legal community for decades. The author is surprised to find out that the contents of legal realism are abundant and consist of legal skepticism, legal functionalism and particularism of rules. Most Chinese scholars mistook legal realism as legal skepticism and even criticize legal realists as overlooking the fact that law is comprised of rules. However such arguments catch the wrong objects and do not conform to the historical truth. On the other hand, the author finally points out that the fatal defects of legal realism actually exist in the fact that the legal realists usually paid more attention to attacks upon old theories and neglected the construction of new ones. The conclusion will be demonstrated again in the American modern conflicts theories, which were deeply influenced by legal realism. This fact can show that the fates of legal realism and Conflicts Revolution are similar.Chapter Two, Formalism in Conflicts Law, is devoted to American traditional conflicts theory and its nature of legal formalism and is the basis of latter parts. As the representative of American traditional conflicts theory, Beale was one of the professors who taught for the longest period at Harvard Law School, and his research area covered conflicts law, jurisprudence and penal law, and the conflicts course which he taught was once a while the pride of Harvard Law School. Why was such an eminent law professor so maligned by many conflicts scholars? Why did his vested rights theory even led to the Conflicts Revolution which astonished the world? This part fully examines the jurisprudential basis and historical background of vested rights theory. The First Restatement, Beale as its reporter, is also explored so as to demonstrate Beale's theory. This Chapter tries to explain that why and how Beale was deeply influenced by legal formalism. Meanwhile, the author points out that Beale's theory and rules reflected the demands of his times, many parts are reasonable in themselves, and they are representative of the important phase of the localization of American conflicts law. That is the reason why the Second Restatement absorbed and reserved many parts of the First Restatement.Chapter Three, The Early Critique by the Legal Realists, explores the logical basis and ideological resources of American Conflicts Revolution. When Beale's vested rights theory dominated the arena of conflicts law with the influence of legal formalism and the authority of American Law Institute, several legal realists first criticized Beale's theory and rules. Cook, Yntema and Lorenzen, who were among the 20 most well-known legal realists listed by Llewellyn in his article, adeptly applied legal realism to attack upon Beale's theory and rules with their erudite knowledge and deep wisdom. They not only diminished the domain of Beale's influence, but also provided different methods and perspectives to solve conflicts problems. Cavers, who studied conflicts law from Beale at Harvard Law School, chose to love truth more than his master. His classic article, 'A Critique of the Choice of Law Problem' was published in 1933, a year before Beale's First Restatement was published. He concluded that all the old choice-of-law approaches are jurisdiction-selecting and proposed a brand-new approach of choosing among the conflicting rules of law in light of the result that the application of each rule would yield in a particular case.Chapter Four, Skepticism of Rules and One Special Approach of Policy Analysis, comprehensively inquires Currie's "theory of governmental interest analysis". The mistranslation of "governmental interest analysis" in China has impeded the comprehension of the truth and spirit of Currie's theory. Currie put the skepticism and policy analysis of legal realism to the extreme and suggested a special approach of "governmental interest analysis" mainly on the basis of Cavers' and Cook's research and some selected cases. The new approach would lead to a fresh classification of conflicts into "true conflict", "false conflict", "apparent conflict" and "unprovided-for case", which provides a brand-new perspective to the conflicts cases. "We would be better off without choice-of-law rules." Currie's famous aphorism had once been the symbol and banner of American Conflicts Revolution. However, his belated success and early death implied that his theory might be full of defects and errors which drew many sharp criticism. Nevertheless his "seductive style" of common law "hypnotized a whole generation of American lawyers". Even nowadays, there are still some followers who argued for his theory. Needless to say, Currie' s theory is the main cause which divides the conflicts scholars into two different groups.Chapter Five, Searching the True Rules, examines the truth of Ehrenzweig's lex-fori theory which was generally neglected by Chinese scholars. Ehrenzweig had studied law at several top European and American law schools from his youth, so it is not surprising that he knew well both civil law and Anglo-American law. He skillfully combined American legal realism with German Wachter's "lex-fori theory", aspired to find "true rules" advocated by Llewellyn, and emphasized that judges were the instruments of local legislative polices and the law of the forum were the starting point and the basis of choice of law. He was prolific and his works were once popular for several years. However, his civil law writing style and unrestricted use of Latin, German and French words in his works have frustrated a lot of scholars. Gradually his theory has been put aside in several textbooks.Chapter Six, From Rules to Principles, returns to Caver's conflicts theory. As a protagonist of Conflicts Revolution, he was not only good at theorizing conflicts problems, but also eager to fulfill legal realism. Soon after the Great Depression in 1929, he was devoted to Roosevelt's New Deal. After World War II, he began to advocate new approaches of legal research. Although no articles on conflicts law were published for many years, he had never stopped to observe and contemplate the new developments in this area. The uncertainty unleashed by the revolution caused his deep concern about the future of conflicts law. He therefore proposed eight "principles of preference" to solve the intractable choice-of-law problems in "true conflict cases" after absorbing the reasonable factors in Currie' s theory and German Kegel's "conflicts justice", in order that judges who are reluctant to jump into the wild field of ad hoc approaches would not return to Beale's rules. However, "principles of preference" are only transitional and demonstrative. Particularism of rules remains the long-term aim. Skepticism of rules and policy analysis are still the basis of his theory in the latter part of his life.Chapter Seven, Revealing "Law in Action", probes Leflar's theory of "five choice-influencing considerations". As a legal realist, Leflar penetrated the mist of words in case law and searched "law in action". Based on the works of Reese, Cheatham and Yntema, he refined all kinds of choice-influencing policies into "manageably compact form" and expected that judges would make use of them to guide their adjudication. Among the five considerations, "application of better rule of law" was well received by judges but seriously criticized by scholars. Therefore, his theory is also referred to as "better law approach".Chapter Eight, From Policy Analysis to the Developing New Rules, analyzes Reese's legal thought in conflicts law and the Second Restatement of Conflict of Laws. His "exceptionally lucid and straightforward Hemingway style" makes his works "direct and to the point": He grasped the spirit of legal realism, refined the dominant conflicts theories, focused on the new developments of case law, and finally proposed his own conflicts theory. Its main points are that policy analysis is the basis, particular rules are the aim, "principles" and "approaches" are transitional. During Conflicts Revolution, his principle of "most significant relationship" as a transitional approach is the most outstanding feature of the Second Restatement of Conflict of Laws. But this principle provoked heated discussions and even criticism among scholars. Some scholars call it "no-rule rule". The eclecticism in his theory constitutes the mainstream in American conflicts community and Reese's Second Restatement is the most popular regime in judiciary.Almost all the materials used in the dissertation are in English because of the lack of useful Chinese materials. It is brand-new in China to explore the American conflicts theory from the perspective of jurisprudence. It is also the first time to fully examine Lorenzen, Yntema and Reese's conflicts theories. The Chinese translations of "governmental interest analysis", "unprovided-for case" and "nonrule" are innovative. The introductions and reviews on "local law theory", "the theory of governmental interest analysis", "the theory of lex fori" are unique compared with the prevailing views about them. Certainly, whether these new points are right or hold water needs to be testified by the future research.