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Legal Formalism

Legal Formalism

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Encyclopediaof 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
 
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Training Lawyers in the European Community
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A Study of the Continuing Legal EducationNeeds of Beginning Solicitors
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Report of the Committee on Legal Education
. HMSO Cmnd. 4595, LondonPearce D 1987
Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Commission
. Australian Pub-lishing Service, Canberra, AustraliaStevensR1983
LawSchool:EducationinAmericafromthe1850sto the 1980s
. University of North Carolina Press, Chapel Hill,NCSusskind R 1998
The Future of Law
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Facing the Challenges of Information Technology
. Oxford University Press, Oxford,UKSutherlandA E1967
TheLawatHar
ard.AHistoryofIdeasand Men 1817–1967 
. Belknap Press, Cambridge, MATwining W 1994
Blackstone’s Tower: The English Law School 
.Sweet & Maxwell, London
K. Economides
Legal Formalism
‘Legal formalismis an important category in thehistory of law, the sociology of law, comparative law,and the cultural study of law, as well as in thephilosophy of law and the interdisciplinary fieldcurrently called ‘legal theory.’ It is used in differentsenses in these different fields, and within each field itis a contested concept, rather than a well-establishedterm with a clear meaning. This entry presents acatalogue of different usages and a brief introductionto the modes of contestation of the meaning of theterm.The modern usages of the word derive from thework of leading legal theorists of the late nineteenthand early twentieth centuries who were much con-cerned with two historical phenomena that play littlerole in the late twentieth-century discussion. One of these was ‘primitive formalism,’ meaning the practiceof deciding disputes through devices such as oraclesand trial by battle, regarded as ‘irrational.’ The otherwas the ancient Roman and medieval English systemof ‘formulary justice’ or ‘strict law,in which aclaimant could get redress through the legal systemonly by fitting his case into a closed class of ‘actions.’No overarching principles were available, at leastaccording to the theory, to deal with cases that felloutside the class, but within generally held ideas of moral responsibility. Modern law, in the nineteenth-century view, was characterized by its movementbeyond both primitive formalism and formulary jus-tice, but had to find a way to preserve some of thevirtues of these earlier systems. (Maine 1917, vonJhering 1869, Holmes 1881, Pollock and Maitland1898, Weber 1954).
1. Formalism as a Descripti 
e Category
Greater or lesser formalism is one of the dimensionsalong which we compare legal regimes and assessinternal change, whether at the level of detail, of alarge ensemble of rules, or of a system as a whole. Onemight also just say ‘more or less formal,’ or call it thedimension of ‘formality.’ In this usage, no positive ornegativeevaluationisindicatedbycategorizingabodyof legal rules as more or less formal or formalist. Asystem is procedurally formalist to the extent that itmakes the success of a substantive legal claim dependon following procedural rules (Schauer 1988). It istransactionally formalist to the extent that it requiresspecific formalities for transactions such as contractsormarriages(vonJhering1869,Demogue1911,Fuller1941).Itisadministrativelyformalisttotheextentthatit surrounds the exercise of state power with pro-cedural and transactional formalities. Rule formalismis a general preference for rules over standards.Two important dimensions of formality are thedegree of insistence on compliance with formalities(what exceptions are permitted?), and the degree of absoluteness of the sanction of nullity for failure tocomply (what remedies, if any, for a person who failstocomply?).Thedegreeofformalityineachdimensionvaries within systems, between systems, and over time.What binds the types together is the willingness of theformalist to sacrifice substantive justice (or ‘equity’) inthe particular case. Western legal discourse provides ahighly developed set of arguments in favor of andagainst adopting more or less formal rule systems, anda rich literature on the moral and political meaningand practical consequences of the choice. Everyargument for greater formality has a symmetricalopposite urging less formality (Kennedy 1976).A different descriptive use of the term legal for-malism refers to a range of techniques of legalinterpretation based on the meaning of norms(whether established privately, as in contracts, orpublicly, as in statutes), and refusing referencetothenorms’purposes,thegeneralpoliciesunderlyingthe legal order, or the extrajuristic preferences of theinterpreter. Textual interpretive formalism decides byidentifying a valid norm applicable to the case andthen applying it by parsing the meanings of the wordsthat compose it. Textual formalism is literalist to theextent that it refuses to vary meaning according tocontext, and originalist to the extent that it findsmeaning only through the context at the time of enactment (Schauer 1988).8634
Legal Education
 
Conceptual interpretive formalism ‘constructs’ gen-eral principles thought necessary if the legal system isto be understood as coherent. It uses the principles toresolve uncertainty about the meaning of extant validnorms, and applies the principles according to theirmeaning to fill apparent gaps (Geny 1899). Preceden-tial interpretive formalism interprets according tothe meaning of norms derived as the holdings of priorcases (Grey 1983).Interpretation positing gaplessness requires theinterpreter to apply in every case, according to theirmeanings, the legal norms he or she can derivetextually, conceptually, or through precedent; itcategoricallyforbidsreferencetopurposesandpolicies(Weber 1954). A final descriptive use of the termformalism in legal discourse refers to theories thatpurport to derive particular rules of law, or pro-hibitions on adopting particular rules, from a smallgroup of internally consistent abstract principles andconcepts (e.g., corrective justice, fault) understood asmorally binding on legal actors (Weinrib 1988).As with the discourse of the appropriate degree of formality of norm systems, there is a wide range of arguments for and against the adoption of each of these types of interpretive formalism. There is alsodisagreement as to their conceptual coherence andpracticability (Kennedy 1997).
2. Formalism as a Critical Category
The critical use of the category of formalism wasdeveloped by the sociological jurists around the turnofthetwentiethcentury,intheirattackonmainstreamlate nineteenth-century legal thought. According tothe critics, the mainstream saw law as having a stronginternalstructuralcoherencebasedonthetwotraitsof ‘individualism’ and commitment to legal interpretiveformalism. These traits combined in ‘the will theory.’In the sociological jurists’ version, the will theorywas that the private law rules of the ‘advanced’Western nation states were well understood as a set of rational derivations from the notion that governmentshould help individuals realize their wills, restrainedonlyasnecessarytopermitotherstodothesame.Initsmore ambitious versions, the will theory made publicas well as private law norms follow from this foun-dational commitment (for example, by generatingtheoriesoftheseparationofpowersfromthenatureof rights).The will theory presupposed consensus in favor of the goal of individual self-realization. It was not apolitical or moral philosophy justifying this goal; norwasit apositivehistoricalorsociologicaltheoryabouthow this had come to be the goal. Rather, the theoryoffered a specific, will-based, and deductive inter-pretation of the interrelationship of the dozens orhundreds of relatively concrete norms of the extantnational legal orders, and of the legislative andadjudicative institutions that generated and appliedthe norms (Pound 1917, Kennedy 2000).The sociological jurists critiqued the individualistpremises of the will theory in the name of ‘social law’(Gurvitch 1932). They also critiqued its methodology,on two grounds. First, they argued that in practice itinvolved the widespread abuse of deduction, meaningthat jurists habitually offered deductive justificationsfor interpretations that were in fact logically under-determined (von Jhering 1877–83, Holmes 1897, Geny1899).Second, they argued that the will theory falselyassumed the possibility of constructing the legal orderin such a way that it would be gapless in fact, andtherefore susceptible to exclusively meaning-basedinterpretation. The sociological jurists claimed thatparticular instances of the abuse of deduction, and thetheory of meaning-based gaplessness generally, dis-guised the biases of interpreters, and prevented theconsideration of the ‘legislativeelement in inter-pretation. They advocated interpretation on the basisof ‘scientifically’ established social desiderata, as wellas or instead of according to meaning (von Jhering1877–83, Geny 1899, Cardozo 1921).It is a matter of dispute in legal historiography towhat extent late nineteenth-century legal thought waswell characterized by its critics, and to what extent thewill theory and formal methods caused it to have apolitically conservative substantive content (contrastKennedy 1980, Grey 1983, Horwitz 1992). It isnonetheless clear that sociological jurisprudence dra-matically changed mainstream legal academic dis-course through its critiques of the abuse of deductionand of the possibility of meaning-based gaplessness.However, structurally analogous conflicts, involvingthesameelements,preoccupiedlegalthinkersthrough-out the twentieth century. These reflect a historicaldialectic of critique and reconstruction, in which newpositions are only uncannily similar to, not identicalwith, previous ones.Whether in the form of Geny’s
libre recherchescientifique’ 
(Geny 1899) or Cardozo’s ‘method of sociology(Cardozo 1921), the sociological jurists’proposed alternative method was rejected during the1930sbyanewlegaltheoreticalavant-garde,includingboth the American legal realists and Kelsenian neo-positivists on the Continent, on the ground that itsproponents confused facts and values, scientific andnormativejudgments.Thecriticsarguedthatthesocialpurposes or functions the sociological jurists used tobase their means
\
ends rational derivations of legalrules were either vague or conflicted in particularcases, so that the claim to a scientific method was nomore than a screen for a new form of politicallyprogressivenaturallaw(Llewellyn1930,Kelsen1934).In the US, the progressive academic elite abandonedsociology in favor of two (arguably contradictory)normative projects: in private and administrative law,‘policyanalysis,’understoodastheprocessofreconcil-8635
Legal Formalism

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