Legal Formalism

Encyclopedia of the Social & Behavioral Sciences Editors-in- Chief Neil J. Smelser Center for Advanced Study in the Behavioral Sciences, Stanford, CA, USA Paul B. Baltes Max Planck Institute for Human Development, Berlin, Germany Volume 13 2001 ELSEVIER AMSTERDAM—PARIS—NEW YORK—OXFORD—SHANNON—SINGAPORE—TOKYO Legal Education Lonbay J 1990 Training Lawyers in the European Community. tice, but had to find a way to preserve some of the The Law Society, London virtues of these earlier systems. (Maine 1917, von MacCrate R 1992 Legal Education and Professional Deel- Jhering 1869, Holmes 1881, Pollock and Maitland opment: An Educational Continuum. Report of the Task Force 1898, Weber 1954). on Law Schools and Profession: Narrowing the Gap. Ameri- can Bar Association, Chicago Nelson J W 1993 A Study of the Continuing Legal Education Needs of Beginning Solicitors. Centre for Legal Education, Sydney, Australia Ormrod Report 1971 Report of the Committee on Legal 1. Formalism as a Descriptie Category Education. HMSO Cmnd. 4595, London Pearce D 1987 Australian Law Schools: A Discipline Assessment Greater or lesser formalism is one of the dimensions for the Commonwealth Tertiary Commission. Australian Pub- along which we compare legal regimes and assess lishing Service, Canberra, Australia internal change, whether at the level of detail, of a Stevens R 1983 Law School: Education in America from the 1850s to the 1980s. University of North Carolina Press, Chapel Hill, large ensemble of rules, or of a system as a whole. One NC might also just say ‘more or less formal,’ or call it the Susskind R 1998 The Future of Law. Facing the Challenges of dimension of ‘formality.’ In this usage, no positive or Information Technology. Oxford University Press, Oxford, negative evaluation is indicated by categorizing a body UK of legal rules as more or less formal or formalist. A Sutherland A E 1967 The Law at Harard. A History of Ideas and system is procedurally formalist to the extent that it Men 1817–1967. Belknap Press, Cambridge, MA makes the success of a substantive legal claim depend Twining W 1994 Blackstone’s Tower: The English Law School. on following procedural rules (Schauer 1988). It is Sweet & Maxwell, London transactionally formalist to the extent that it requires specific formalities for transactions such as contracts K. Economides or marriages (von Jhering 1869, Demogue 1911, Fuller 1941). It is administratively formalist to the extent that it surrounds the exercise of state power with procedural and transactional formalities. Rule formalism is a general preference for rules over standards. Legal Formalism Two important dimensions of formality are the degree of insistence on compliance with formalities ‘Legal formalism’ is an important category in the (what exceptions are permitted?), and the degree of history of law, the sociology of law, comparative law, absoluteness of the sanction of nullity for failure to and the cultural study of law, as well as in the comply (what remedies, if any, for a person who fails philosophy of law and the interdisciplinary field to comply?). The degree of formality in each dimension currently called ‘legal theory.’ It is used in different varies within systems, between systems, and over time. senses in these different fields, and within each field it What binds the types together is the willingness of the is a contested concept, rather than a well-established formalist to sacrifice substantive justice (or ‘equity’) in term with a clear meaning. This entry presents a the particular case. Western legal discourse provides a catalogue of different usages and a brief introduction highly developed set of arguments in favor of and to the modes of contestation of the meaning of the against adopting more or less formal rule systems, and term. a rich literature on the moral and political meaning The modern usages of the word derive from the and practical consequences of the choice. Every work of leading legal theorists of the late nineteenth argument for greater formality has a symmetrical and early twentieth centuries who were much con- opposite urging less formality (Kennedy 1976). cerned with two historical phenomena that play little A different descriptive use of the term legal for- role in the late twentieth-century discussion. One of malism refers to a range of techniques of legal these was ‘primitive formalism,’ meaning the practice interpretation based on the meaning of norms of deciding disputes through devices such as oracles (whether established privately, as in contracts, or and trial by battle, regarded as ‘irrational.’ The other publicly, as in statutes), and refusing reference was the ancient Roman and medieval English system to the norms’ purposes, the general policies underlying of ‘formulary justice’ or ‘strict law,’ in which a the legal order, or the extrajuristic preferences of the claimant could get redress through the legal system interpreter. Textual interpretive formalism decides by only by fitting his case into a closed class of ‘actions.’ identifying a valid norm applicable to the case and No overarching principles were available, at least then applying it by parsing the meanings of the words according to the theory, to deal with cases that fell that compose it. Textual formalism is literalist to the outside the class, but within generally held ideas of extent that it refuses to vary meaning according to moral responsibility. Modern law, in the nineteenth- context, and originalist to the extent that it finds century view, was characterized by its movement meaning only through the context at the time of beyond both primitive formalism and formulary jus- enactment (Schauer 1988). 8634 Legal Formalism Conceptual interpretive formalism ‘constructs’ gen- adjudicative institutions that generated and applied eral principles thought necessary if the legal system is the norms (Pound 1917, Kennedy 2000). to be understood as coherent. It uses the principles to The sociological jurists critiqued the individualist resolve uncertainty about the meaning of extant valid premises of the will theory in the name of ‘social law’ norms, and applies the principles according to their (Gurvitch 1932). They also critiqued its methodology, meaning to fill apparent gaps (Geny 1899). Preceden- on two grounds. First, they argued that in practice it tial interpretive formalism interprets according to involved the widespread abuse of deduction, meaning the meaning of norms derived as the holdings of prior that jurists habitually offered deductive justifications cases (Grey 1983). for interpretations that were in fact logically under- Interpretation positing gaplessness requires the determined (von Jhering 1877–83, Holmes 1897, Geny interpreter to apply in every case, according to their 1899). meanings, the legal norms he or she can derive Second, they argued that the will theory falsely textually, conceptually, or through precedent; it assumed the possibility of constructing the legal order categorically forbids reference to purposes and policies in such a way that it would be gapless in fact, and (Weber 1954). A final descriptive use of the term therefore susceptible to exclusively meaning-based formalism in legal discourse refers to theories that interpretation. The sociological jurists claimed that purport to derive particular rules of law, or pro- particular instances of the abuse of deduction, and the hibitions on adopting particular rules, from a small theory of meaning-based gaplessness generally, dis- group of internally consistent abstract principles and guised the biases of interpreters, and prevented the concepts (e.g., corrective justice, fault) understood as consideration of the ‘legislative’ element in inter- morally binding on legal actors (Weinrib 1988). pretation. They advocated interpretation on the basis As with the discourse of the appropriate degree of of ‘scientifically’ established social desiderata, as well formality of norm systems, there is a wide range of as or instead of according to meaning (von Jhering arguments for and against the adoption of each of 1877–83, Geny 1899, Cardozo 1921). these types of interpretive formalism. There is also It is a matter of dispute in legal historiography to disagreement as to their conceptual coherence and what extent late nineteenth-century legal thought was practicability (Kennedy 1997). well characterized by its critics, and to what extent the will theory and formal methods caused it to have a politically conservative substantive content (contrast 2. Formalism as a Critical Category Kennedy 1980, Grey 1983, Horwitz 1992). It is nonetheless clear that sociological jurisprudence dra- The critical use of the category of formalism was matically changed mainstream legal academic dis- developed by the sociological jurists around the turn course through its critiques of the abuse of deduction of the twentieth century, in their attack on mainstream and of the possibility of meaning-based gaplessness. late nineteenth-century legal thought. According to However, structurally analogous conflicts, involving the critics, the mainstream saw law as having a strong the same elements, preoccupied legal thinkers through- internal structural coherence based on the two traits of out the twentieth century. These reflect a historical ‘individualism’ and commitment to legal interpretive dialectic of critique and reconstruction, in which new formalism. These traits combined in ‘the will theory.’ positions are only uncannily similar to, not identical In the sociological jurists’ version, the will

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