Why Legal Formalism Is Not a Stupid Thing

• Author: Paul Troop
• DOI: http://doi.org/10.1111/raju.12225
• Published date: 01 December 2018
• Date: 01 December 2018

© 2018 The Authors. Ratio Juri s published by Universit y of Bologna and John Wi ley & Sons Ltd.

This is an ope n access art icle under the te rms of the Creat ive Commons Attr ibution Licen se, which perm its use, distr ibution

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Ratio Juris. Vol. 31 No. 4 December 2018 (428–443)

Why Legal Formalism

Is Not a Stupid Thing

PAU L T ROO P

Abstract. Legal formal ism is the foil for many theories of law. Yet formalism rema ins con-

troversial, meani ng that its critics focus on cla ims that are not central. Th is paper sets out a

view of formalism u sing a methodology th at embraces one of formalis m’s most distinct

claims, that form alism is a scient ific theory of law. This nat uralistic vie w of formalism

helps to disting uish two distinct typ es of formalism, “doctrinal formal ism,” the view that

judicial behaviour ca n be represented usi ng rules, and “rule forma lism,” the view that

judges follow external ru les when they are decidi ng cases. Doct rinal forma lism, under-

stood in natural istic terms, overcomes ma ny of the criticism s that have been levelled at

formalism and c an also be used to r ehabilitate the cu rrently out-of-favour “declaratory

theory of law.” Doctrinal forma lism is also a longsta nding view of law, reflecting both what

the origina l formalists thought of law, and what many present-day doctri nal lawyers seem

to believe. The natural istic methodology is u sed to show that the mai n dispute between

doctrina l formalism and A merican legal real ism can be explai ned by a difference of as -

sumptions concern ing whether the value s of judges are relative to societ y, or relative to

other judges.

1. Introduction

Legal formalism ha s been called the thesis, to which moder n American legal thought

is the antithesis (Grey 1983, 3). Yet exactly what formalists bel ieve is unclear. There

are many different concept ions of formalism that sha re very little other tha n a bad

reputation (Simpson 1989, 834; Stone 2004, 167; Weinrib 1988, 950; 2013, 22).

This paper seeks to identif y the central claims of formalism by usi ng a natural-

istic methodology. The focus is primar ily on the original me aning of formali sm,

because it is a historical sc hool of thought that deserves recognition on its own merit

and because it is diff icult to understand the school s of thought that succeed it and

the schools that reacted to it without such a n understanding. The primary justi fica-

tion for the naturalist ic methodology is to develop the original formalist s’ view that

they were practising science.

* The author would like to tha nk David Lagnado, Simon Palmer, the member s of the UCL

Faculty of Laws’ Work in Progress Forum, t wo anonymous reviewers, and the Isaac Newton

Institute for Mathem atical Sciences, Cambr idge, for support and hospital ity during the pro-

gramme Probabil ity and Statistics in Forensic Scie nce, where work on this paper was under-

taken. This work was suppor ted by EPSRC grant no. EP/K032208/1.

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Ratio Juris, Vol. 31, No. 4 © 2018 The Authors. Ratio Juri s published by Universit y of Bologna and John Wi ley & Sons Ltd.

Legal Formalism

Restating the origi nal sense of formalism echoes the reh abilitation of a counter-

point to formalism, America n legal realism. Because of the overwhelmi ng influence

of H. L. A. Hart, realism was for a long time viewed as a conc eptual theory of law

(Hart 1994, 1961, 137–41). Thanks to the natu ralistic approach of Leiter and others,

this view is now generally accepted to h ave been mistaken (Leiter 1999, 263; Bix

2009, 198; Martin 1997, 2). Formalism is not, and ha s rarely been mischa racterised

as, a conceptual theory of law (Weinri b 2013, 31–1), but a naturalistic metho dology

is nonetheless helpful to isolate with g reat clarity exactly what is, and what is not,

central to forma lism.

Corresponding to the natu ralistic emphasis of formal ism, the focus wil l be on

formalism as a descr iptive rather than a normative theor y. For reas ons of tractabil-

ity, the emphasis will be on adjudication and pure common law, rather than on the

interpret ation and application of leg islation.

2. Doctr inal Formalism (from Behaviour to Rules)

The predominant varia nt of formalism i s the view that the behaviour of judges can

be represented using ru les. We can call it the predominant view be cause it most

closely reflects the v iews of the original forma lists and it is the most coherent for-

malist view of adjudication. We will call it “doctrinal for malism” due in part to its

focus on doctri ne, and in part to the close similar ities with the methodology used by

present-day doctrinal lawyers.

Characteristic of forma lism is the focus not on the behaviou r of individual judges,

but on that of all judges within a legal system. T here is assumed to be a core psychol-

ogy shared by all judges which t hey use to decide cases. The forma lists called th is

core psychology the “doctrine” (Beale 1916, 142). The doctrine is what judges pur-

port to represent (accurately or inaccurately) in the form of so-ca lled “black letter”

case law. Because it is relatively rare to draw a distinction bet ween behaviour and

representations of that behaviour, the term doctrine has of ten been used indi scrim-

inately to refer to both. However, in this paper we limit the meani ng of doctrine to

the actual behaviour of judges, not how their behaviou r will be represented (though

accurate black-letter representations will of cour se correspond to the doctrine).

Formalists assume t hat the doctrine is complete i n that there is always a right

answer to the question of how a judge will respond to a par ticular factual scenario

(even if it is to do nothing). Beale approves of the view Judge Grosscup expressed in

Swift v. Philadelphia & Reading Railroad (1894):1 “No plain or val ley, no nook or corner,

to which the dominion of ma n has extended itself, is without some law of the land.

Indeed, law is the breath of dominion” (Beale 1916, 154; see also Grey 1983, 7–8). By

contrast, the black-letter representations that ref lect the doctrine are likely to be in-

complete to some degree, even in a mature legal system, because t hey are made in

the light of the doctri ne (Beever 2011, 225–6).

Unlike natural lawyers, forma lists accept that the doctrine cha nges, both in time

and by place (Beale 1916, 145 n. 1; Grey 1983, 28–9; Langdell 1879, viii; Wambaugh

1894, 93). The doctrine mig ht change where there is a cha nge in social or economic

conditions (Beale 1916, 142; Samuels 1975, 295; Grey 1983, 28–9; but see Beever 2011,

226). Doctrine also varies bet ween different legal system s. Thus Beale (1916, 137)

1 Swift v. Philadelphia & Reading Railroa d Co., 64 F. 59 (Circuit Court, N. Dist. Ill inois., 1894).