Introduction
American law students learn about formalism instrumentalism early
on—although those particular terms may not be introduced explicitly in
classroom discussion. Many law students hunger for “black letter law":
they are looking for legal rules that can be memorized and applied to
the facts in a more or less determinate fashion. But in most law school
classrooms, this hunger is not satisfied. Instead, the discussion is
likely to focus on another set of questions: What should the rule be?
What is the purpose of the rule? Would the application of the rule to
these facts serve its purpose? Does that rule make sense? And so on. Of
course, different professors have different ideas about what makes for
good legal rules. Some emphasize good consequences—perhaps as defined
by the economic concept of efficiency. Others might emphasize
considerations of fairness or distributive justice.
In constitutional law, “black letter law” sometimes seems to
disappear entirely. Instead, there is a Supreme Court that seems to act
as some sort of super-legislature, resolving the great questions of the
day, whether it be “Who shall be President?” or “May states criminalize
sexual activity between persons of the same sex?” or “Shall abortion be
legal?” Moreover, students quickly learn that the constitutional text
does not seem to be much of a barrier to a result that the Court really
wants to reach. An obvious example is Bolling v. Sharpe in
which the Supreme Court applied the substance of the equal protection
clause to the federal government—even though it is unmistakably clear
that the 14th amendment applies only to the state.
But even today (and in some ways, especially today), law students
are likely to be exposed to another set of ideas about the law. They
may have a rather old fashioned professor who insists on discussing
cases or statutes as if they did provide rules that decided cases. Some
students encounter constitutional law professors who insist on the
“original meaning” of the Constitution—discussing lots of history (and
fewer cases) than their colleagues. In some courses, students run into
professors who talk about “plain meaning” approaches to statutory
interpretation.
In other words, the legal academy is divided in its allegiance to
various forms of legal formalism and legal instrumentalism. This entry
in the Legal Theory Lexicon introduces the
formalism-instrumentalism debate. As always, the discussion is aimed at
law students—especially first year law students—with an interest in
legal theory.
Legal Formalism
What is legal formalism? The terms “formalism” and “formalist” are
thrown around quite a bit, but they turn out to be surprisingly
difficult to define. In fact, many law students and even some legal
academics have only a very vague notion as to what “legal formalism”
really means. You may have heard something like the following
Legal
formalism? That’s “mechanical jurisprudence,” when a judge decides a
case without thinking about the consequences or the purpose of the rule.
In
other words, “legal formalism” is sometimes used as pejorative label
for unthinking and unintelligent legal reasoning. We can do better
than that. Let’s begin with some of the things that scholars or judges
who self-identify as formalists say:
- Judges should apply the law and not make it.
- There are legal rules that constrain what legal actors may lawfully do.
- There is a difference between following the law and doing what you think is best.
- Judges
should decide cases in ways that are consistent with the text of the
applicable constitutional or statutory provision or with the holding of
controlling precedents
This list go on and on, but you get the general idea. The core idea
of formalism is that the law (constitutions, statutes, regulations, and
precedent) provide rules and that these rules can, do, and should
provide a public standard for what is lawful (or not).
That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:
1. The law consists (at least in part) of rules that are derived
from the linguistic meaning (or semantic content) of authoritative
legal texts.
2. Legal rules can be applied to particular facts.
3. Some actions accord with meaningful legal rules; other actions do not.
4.
The standard for what constitutes following a rule (or not) can be
publicly knowable and the focus of intersubjective agreement.
Contemporary legal formalism is
particularly prominent in two areas, constitutional law and statutory
interpretation. In constitutional law, formalism is associated with
“originalism,” the view that the constitution should be interpreted in
accord with its “original meaning.” In statutory interpretation,
formalism is associated with the “plain meaning” theory—that statutes
should be interpreted so that the words and phrases have their ordinary
meaning. Plain meaning approaches are also associated with the view
that legislative history should not be used, especially if it would
result in an interpretation that differs from the text of the statute.
Legal Instrumentalism
Legal instrumentalism is one of the ideas
that are strongly associated with American legal realism—the great
movement in legal thought that is usually associated with Oliver
Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe
Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism,
instrumentalism is often ill defined, but most instrumentalists would
agree on the idea that legal rules should be interpreted in light of
their purposes. When applying the letter of the law would undermine its
purpose, then the rule should be interpreted so that it does not apply.
And likewise, if the spirit of the law would be served by its
application, then judges should give the rule an expansive
interpretation. Some instrumentalists may go beyond this, and argue
that judges should sometimes nullify statutes that are bad policy or
create judge-made rules, when that would serve the ends of good
policymaking.
The Realist Critique of Legal Formalism
It is easy to see how realists or
instrumentalists would critique legal formalism. If a formalist judge
follows the plain meaning of a statute, that might lead to its
application even in cases where it would be harmful and contrary to the
intentions of its drafters. This is “unthinking” or “mechanical
jurisprudence. Moreover, some realists argued that legal formalism was
actually as sort of fraud. Judges don’t really follow the plain
meaning—the argument goes. Rather, so-called formalist judges really
decide on the basis of their own policy preferences and then dress up
the results in the language of legal formalism. Some realists may have
believed that ideology does the work in legal decisionmaking; legal
formalism dresses it up so that it looks "legitimate."
The Modern Revival of Legal Formalism or Neoformalism
Despite the sustained realist critique,
legal formalism has been making a come back of late. One reason for the
comeback is a realization that extreme versions of instrumentalism make
it very difficult to know what the law is, in advance of a judge’s
decision in a particular case. The point of hard law
(determinate legal rules which draw relatively “bright lines”) is that
they provide certainty, stability, and predictability to the law.
Purposes provide less guidance, and different judges are likely to have
different opinions about what the true purposes of the rule may be.
Political ideology has also played a role
in the formalist revival. Some (but not all) formalists are especially
disturbed by the results reached by the Warren and Burger Courts in
prominent constitutional cases—like Roe v. Wade. Some of these
critics may see legal formalism as a judicial philosophy that can
rationalize the dismantling of these controversial precedents.
Because the terms "formalism" and
"formalist" carry a lot of baggage, some contemporary formalists prefer
to use the term "neoformalism" as a label for their position.
Likewise, some contemporary originalists refer to "the new originalism"
to distinguish their position from others that are called "originalist."
A Word About the History of Formalism and Instrumentalism
Although many contemporary legal
theorists take it for granted that there was a sharp divide between
"legal formalism" and "legal instrumentalism" at some prior historical
period. It is not clear that is the case. The judges and thinkers
that are sometimes labeled as formalists frequently displayed an
awareness of the role of "policy" and "purpose" in legal
decisionmaking. And many so-called "legal realist" or
"instrumentalist" judges believed that the core meaning of
authoritative legal texts limited the legitimate use of instrumentalist
considerations in judging. The line between the historical figures we
now call instrumentalists and formalists may have been quite fuzzy
indeed.
Conclusion
The debate between formalists and
realists is lively and fundamental, but frequently conducted in a
fairly simplistic manner. The best advice I can give for approaching
this debate is to be careful about how the conceptual territory is
mapped and the terms are defined. Much of the seeming disagreement
between formalists and instrumentalists flows from different
conceptions of where the dividing lines lie.
Related Entries
The Rule of Law
Originalism
Rules, Standard, and Principles
Textualism
Bibliography & Links
Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (Cambridge University Press 2006).
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009).
Larry Alexander, Law and Formalism.
Lawrence Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights
(This entry was last modified on January 3, 2010.)