The Place of Formalism in Legal Theory, 70 N.C
Total Page:16
File Type:pdf, Size:1020Kb
NORTH CAROLINA LAW REVIEW Volume 70 | Number 5 Article 4 6-1-1992 The lP ace of Formalism in Legal Theory Michael Corrado Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Michael Corrado, The Place of Formalism in Legal Theory, 70 N.C. L. Rev. 1545 (1992). Available at: http://scholarship.law.unc.edu/nclr/vol70/iss5/4 This Comments is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. ESSAY THE PLACE OF FORMALISM IN LEGAL THEORY MICHAEL CORRADO* I understand formalism to be the claim that law is an autonomous area of knowledge. To say that it is autonomous is to say that it is self- contained, that it is not dependent on other areas of knowledge like mo- rality or politics or sociology. In particular it is to say that law is not reducible to those other areas, in a sense of reducibility I will try to make clear. There is a version of formalism that is true. This version of formal- ism does not claim that law is unrelated to other areas of knowledge. It admits that legal argument makes use of moral, political, and sociologi- cal information. But it insists that, although much that is extra-legal is taken into account in deciding a question of law, it remains extra-legal; it does not become part of the law.' I. THE AUTONOMY OF LAW Interest in logic as a philosophical instrument has taken two differ- ent and mutually exclusive forms over the course of the twentieth cen- tury. It has found expression, on the one hand, in the attempt to use the machinery of symbolic logic to show that all knowledge can be "re- duced" to a basis-some small set of elementary or primitive terms and propositions involving those terms-a project known as reductionism. The manifestations of this attempt are logical empiricism, logical beha- viorism, logicism in mathematics, and emotivism and naturalism in eth- ics. Each of these, if successful, would contribute to the larger goal of universal reduction of all knowledge. If the reduction is epistemological * Associate Professor of Law, University of North Carolina at Chapel Hill. B.A. 1965, B.S. 1966, Pennsylvania State University; A.M. 1968, Ph.D 1970, Brown University; J.D. 1984, University of Chicago. 1. Ernest Weinrib defended a version of formalism in Legal Formalism: On the Imma- nent Rationality of the Law, 97 YALE L.J. 949 (1988). In addition to coming out of a philo- sophical tradition different from the one in which this Essay is based, Weinrib's position differs in significant ways from the one presented here. As I understand him, Weinrib believes that the internal logic of the law determines what the law ought to be, or how legal terms ought to apply to the facts. See id. at 1012-14. 1546 NORTH CAROLINA LAW REVIEW [Vol. 70 in nature, meant to duplicate the structure of knowledge, then the terms of the basis will be phenomenal or sense-data predicates. The other form this interest in logic has taken is the attempt to for- malize and systematize autonomous areas of knowledge, without reduc- ing them to one another. For each such area the aim is to provide a set of primitive terms and primitive propositions which would generate all the relevant terms and conceptual truths of that area, and which could be applied to the available factual information in that area.2 The classic (but incomplete) example of such a systematization is Euclid's geometry, and in the last century a number of areas of mathematics were so formalized. In this century philosophers have applied the method to discrete areas of philosophical interest, and there are studies of the internal logic of the modalities (necessity, possibility, impossibility); of obligations; of knowledge and belief, of semantic relations; of evidentiary relations; and so on. Take, for example, the modalities: necessity, possibility, impossi- bility. Philosophers have shown not only how to define "possibility" and "impossibility" in terms of necessity, but also how to define implicitly different senses of "necessity" by means of axiom sets.3 (Such a study might just as easily start with possibility or even impossibility as primi- tive; but whatever the primitive term is will have to be characterized by 2. A primitive term is an undefined term. A primitive proposition is a proposition from which other propositions in the relevant area of study are derivable, and which is not itself derivable. The various terms of geometry are defined, ultimately, by means of certain primi- tive terms that are not themselves defined. To suppose every term in the system could be defined would be to presuppose a certain circularity; there must be a stopping point to defini- tion. This point of view supposes that something similar is true of the propositions that deline- ate the conceptual part of a discipline as well. Not every proposition in geometry can be proved; we must start with unprovable axioms and postulates. 3. A nice, informal introduction to the logic of the modalities can be found in ARTHUR N. PRIOR, TIME AND MODALITY (1957). The syntax and semantics of the various systems of "modal logic" have been worked out in some detail. Although the study of formal modality dates back at least to the Stoics, see BENSON MATES, STOIC LOGIC (2d prtg. 1961), much of the recent work had its origin in C.I. Lewis's attempt to work out the logic of counterfactual conditionals. One of the simpler systems of logic he worked with had axioms and rules that roughly correspond to the following: Proposition One. If something is necessarily true, then it is true in fact. Proposition Two. If a second thing necessarily follows from a first, and the first thing is necessarily true, then the second thing is necessarily true. Rule of Inference. If something is a true proposition of this system, then it is a necessarily true proposition of this system. A number of stronger systems can be built using this as a base. Where necessity is taken as primitive, a proposition is impossible if it is necessarily false, and a proposition ispossibly true if it is not necessarily false. See CLARENCE I. LEWIS & COOPER H. LANGFORD, SYMBOLIC LOGIC 122-98 (2d ed. Dover 1959) (1932). 1992] LEGAL FORMALISM 1547 means of axioms.) The definitions and axioms are "internal" to the study of modalities; they characterize the meaning of (or at least the structure of the proper use of) the terms. They do not, however, determine the application of the modalities in the real world. The question of how the modalities are applied in the world-what things are really necessary and which are merely possible and so on-is the subject of a different sort of study. The principles that relate modal terms to nonmodal terms ("If A causes B, then the proposition that things like A are followed by things like B is necessarily true"4) may be called "bridge" statements. Similarly, in moral philosophy statements relating moral terms to one another and characterizing the use of moral terms by means of axioms are internal statements, and are sometimes called metaethical principles. They are supposed to be conceptual truths-true in virtue of the meanings of the words involved. But the bridge statements of ethics-the claims of act-utilitarianism that right- ness and wrongness are determined by happiness and suffering, for exam- ple-are substantive principles and cannot be determined just by studying the meanings of the words.5 Or so at least a "formalism" in ethics would claim. I will preface the discussion that follows by saying that although the attempt at universal reduction has been convincingly shown to be impos- sible, the attempt to formalize autonomous areas of knowledge is still very much alive. Though only a small minority of professional philoso- phers cultivate it in symbolic form, it is informally practiced by many.6 4. Notice that Hume would reject this claim. For Hume, as he is usually understood, causation is a contingent relation between events. That is, even in a case in which one event follows another and we are inclined to say the first causes the second, the first does not necessi- tate the second; it might have been otherwise. 5. There is an informal discussion of the distinction in Alvin I. Goldman, What is Justi- fied Belief?, in EMPIRICAL KNOWLEDGE: READINGS IN CONTEMPORARY EPISTEMOLOGY' 171, 171-73 (Paul K. Moser ed., 1986). 6. William Parent, for example, wrote at the beginning of an article on privacy: Defining privacy requires a familiarity with its ordinary usage, of course, but this is not enough since our common ways of talking and using language are riddled with inconsistencies, ambiguities, and paradoxes. What we need is a definition which is by and large consistent with ordinary language, so that capable speakers of English will not be genuinely surprised that the term "privacy" should be defined in this way, but which also enables us to talk consistently, clearly, and precisely about the family of concepts to which privacy belongs. W.A. Parent, Privacy, Morality, and the Law, 12 PHIL. & AFF. 269, 269 (1983). In this pas- sage we can find attitudes common to this sort of philosophy: rejection of a blind reliance on ordinary language, the notion of a family of related concepts, and the emphasis on clarity.