American Legal Realism
American Legal Realism (ALR) is a legal ideology or doctrine that emerged in the early 20th century, primarily in the United States, as a reaction against the prevailing legal formalism of the time. It arose when there were major social and technological changes underway in the US. ALR drew heavily from pragmatism, a philosophy that emphasized practical consequences and real-world effects over abstract principles. ALR emphasizes the actual behavior of judges and the social, economic, and political factors influencing legal outcomes. Realists argue that legal rules and principles are not fixed or objective. Instead, they are often ambiguous, contradictory, or incomplete, leading to multiple possible interpretations in judicial decision-making. Under ALR, the law is seen as an instrument for achieving social ends, reflecting the belief that judges should consider fairness, public policy, and societal needs in their decisions. Here, there is an understanding that judicial decisions should be influenced by more than just legal doctrine, including social norms and empirical realities. Legal formalism
Legal formalism posits that law is a set of rules and principles that are independent of other political and social institutions. Formalists believe that by applying a consistent set of legal rules to a given case, sound legal decisions will be the outcome of logical deduction. The law is seen as a rational, scientific system where judges merely apply existing laws without considering external factors like social interests or public policy. Here, judges are expected to align their decisions with current laws without alterations. The role of the judge is to interpret the law, not to analyze or change it. This approach assumes that common law can only progress by following a specific set of principles drawn from legal authority, leading to predictable outcomes
MAGAism
MAGAism does not strictly adhere to either legal realism or legal formalism. Instead, it exhibits characteristics that align more closely with authoritarianism. The MAGA movement has been described as authoritarian, with tendencies towards nativism, opposition to pluralism, and a focus on maintaining power through various means, including undermining democratic institutions (1, 2, 3, 4). The movement's approach to the rule of law appears to be more about using legal mechanisms to achieve political ends rather than adhering to a specific legal philosophy. This includes threats to prosecute political opponents, invoking the Insurrection Act, and plans for mass deportations. The influence of the Federalist Society, which promotes originalist interpretations of the Constitution, suggests a formalist approach in judicial appointments. However, this formalist stance is often used to advance a political agenda rather than a pure commitment to legal formalism. For MAGA, the law is a means to desired ends.
The problem with writing laws
During Brett Kavanaugh's Senate confirmation hearing, senator Ben Sasse (R-NE) made these comments, which reflects a major problem with many important American laws:
“. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”
Here, Sasse a MAGA extremist was voicing criticism of the evil deep state, the damned bureaucrats. He wanted congress to do it job. That is something that congress is not competent to do because congress does not have the expertise that those hated federal bureaucracies have. MAGA got rid of Sasse because MAGA wants DJT to do congress' job. Sasse criticized that. That criticism made DJT angry and MAGA drove Sasse out of the Senate.
See the problem? Which legal doctrine would you want, assuming competent judges acting in good faith, not Trump judges, ALR, legal formalism, or MAGAism?
