The Symbols of Governance: Thurman Arnold and Post-Realist Legal Theory

Abstract

The legal realist and New Dealer Thurman Arnold's mid-1930s books, The Symbols of Government (1935) and The Folklore of Capitalism (1937), proposed a new field of interdisciplinary post-realist legal scholarship. Called Political Dynamics, it eschewed realism's commitment to cleansing legal scholarship of the formalist assumption that law lives an independent existence as a quasi-scientific, comprehensive, complete, and conceptually ordered system. Instead, Arnold proposed to study the symbols of legal formalism - including its commitment to procedural rituals and its fetish of the judiciary - as cultural objects through which governing institutions attempt to exercise their political will. Realists sought to debunk formalism's symbols; Arnold sought to understand and ultimately use them to support the New Deal. Arnold's break from legal realism - typically forgotten in descriptions of Arnold as a radical realist - took a number of forms: he abandoned realism's focus on law as a distinct discourse and set of institutions for a wider study of law as one among many governing institutions; he embraced a wide range of qualitative methodologies from the social sciences as appropriate for the study of law and governing institutions generally; and he adopted a detached, ironic voice that enhanced his critical approach with an absurdist sense of humor attractive to readers outside of the confines of legal academia. Nevertheless, though successful in their time and still a source of droll attacks on legal pretensions, Symbols and Folklore failed to establish a coherent and recognizable field of inquiry with a replicable methodology. This Article makes two claims. First, to the extent that Arnold both built on and broke from his realist colleagues, Symbols and Folklore force us to consider the limits of realism's continuing relevance as a foundation of contemporary scholarship. Second, in his ironic and accessible monographs Arnold established a critical public voice for the legal academic; that voice remains a compelling, if limited, model for legal scholarship that hopes to intervene in the public sphere. Ultimately, the monographs' position within the narrative of American legal theory provides both an inspiring account of cross-disciplinary inquiry and a cautionary tale of interdisciplinarity's perils.