Is Formalism inevitable?

I Introduction

Through his new book The Law and Ethics of Restitution (hereafter LER), Hanoch Dagan hopes to help revive American interest in a subject that now receives considerably more scholarly attention in England and the Commonwealth than in the United States (328-9). To do this, he proposes a distinct approach to the study of the law of restitution. Contemporary scholarship about restitution is often formalistic: it tends to examine restitution independently of the social context in which the law exists, and to assume that it is internally intelligible.¹ Against this backdrop, Dagan promises what he describes as a legal realist perspective on restitution. As he informs us early on, The Law and Ethics of Restitution will 'largely follow[] [in] the footsteps of mainstream legal realism, represented by the work of Karl Llewellyn and Felix Cohen' (3-4). Instead of approaching restitution law as an autonomous realm, the book will examine the law instrumentally, as an explicit embodiment of three 'policies and values' (4). Moreover, it will do so by considering the law in its social context, just as legal realists advocated.²

Dagan deserves high praise for the intellectually challenging analysis of the law of restitution that follows in the next 300+ pages. Consistent with Dagan's ambitions, LER takes several important steps towards reorienting restitution scholarship. However, it is nonetheless not an entirely successful attempt to examine restitution through a legal realist lens. Most notably, Dagan's analysis of restitution remains largely internal, focusing on the legal rules that make up the doctrine and offering surprisingly little insight into the context in which the law operates. There may be several reasons for this. The ambitious objectives that Dagan sets for himself - 'of understanding, criticizing, and improving the law of restitution' (4) - may lead him towards a largely autonomous study of the law. After all, the breadth of these objectives presupposes that the law of restitution is worth examining on its own, apart from the social context in which it operates. Moreover, on a practical level, the varied circumstances in which restitutionary claims arise may be too diverse for even a committed legal realist to grasp, let alone discuss comprehensively in a single volume.

Regardless of why LER analyses restitution mostly acontextually, it is noteworthy that the book does so notwithstanding Dagan's conscious effort to offer a legal realist perspective. Notably, Dagan is not the first legal realist to be committed to studying law in its social context and to analyse a particular branch of the law with limited understanding of that context. Indeed, he is in excellent company. Karl Llewellyn, one of the most prominent original legal realists and an inspiration to Dagan (3-4), also approached his area of expertise (contract law) with little systematic insight into the context in which it operates.³ The inability of both Dagan and Llewellyn to move beyond largely autonomous considerations of legal doctrine in spite of their methodological commitments is suggestive. Specifically, it raises a fundamental question about whether the study of legal doctrine must be at least somewhat formalistic and, thus, self-contained. Dagan aspires in LER to prove the opposite, by demonstrating the benefits of analysing legal doctrine through a legal realist lens (3). However, the book unintentionally ends up providing evidence for the position he is attempting to disprove, by suggesting that any serious study of legal doctrine inevitably must examine law in at least some isolation from its social context.

Part II of this review briefly situates LER within existing restitution scholarship, in order to underscore the boldness of Dagan's attempt to offer a legal realist perspective on the American law of restitution. Part III attempts to reconstruct his legal realistic interpretation of restitution. Part IV explains why LER remains formalistic in important respects. I conclude by considering the implications of Dagan's inability to exorcise completely the ghost of formalism for the possibility of engaging in legal realistic doctrinal analysis.

II The formalist backdrop

For many decades, restitution has been regarded as the least steady leg on the four-legged stool of Anglo-American private law. While contract...