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Formalism
Author(s): Frederick Schauer
Source: The Yale Law Journal, Vol. 97, No. 4 (Mar., 1988), pp. 509-548
Published by: The Yale Law Journal Company, Inc.
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The
Yale
Law
Journal
Article
Formalism
Schauer*
Frederick
yet little
Legal decisions and theories are frequently condemned as formalistic,
*
*
discussion has occurred regarding exactly what the term formalism* means.
In this Article, Professor Schauer examines divergent uses ofthe term to elucidate its descriptive content. Conceptions of formalism, he argues, involve the
notion that rules constrict the choice of the decisionmaker. Our aversion to
formalism stems from denial that the language of rules either can or should
constrict choice in this way. Yet Professor Schauer argues that this aversion to
formalism should be rethought: At times language both can and should re?
strict decisionmakers. Consequently, the term "formalistic" should not be used
as a blanket condemnation of a decisionmaking process; instead the debate
regarding decision according to rules should be confronted on its own terms.
With
demned
accelerating
as "formalist"
is so bad
about
agreement
on what
it?
legal
frequency,
or "formalistic."
Even a cursory
it is for decisions
decisions
and
But what
and what
is formalism,
reveals scant
literature
look
at the
in law,
theories
or perspectives
are
on law,
con?
to be
* Professorof Law,
University of Michigan. I am grateful to audiences at Brooklyn Law School,
Cornell Law School, DePaul University College of Law, Duke University School of Law, Indiana
University at Bloomington School of Law, New York University School of Law, and the American
Political Science Association for helping me to clarify some of my good ideas and jettison some of my
bad ones. I am also indebtedto Alex Aleinikoff, Bruce Frier, Leo Katz, James Krier, William Miller,
and Richard Pildes for commenting on earlier versions of this article with just the right blend of
hostility and sympathy.
509
510
The
formalistic,
or scholars
except
would
Law
that whatever
describe
"formal"
connotations
Yale
of the word
509
97:
formalism
themselves
seems
[Vol.
Journal
almost
a linguistic
error.
in concert
"formalism,"
legal
thinking,
or
legal
theory
with
which
the
user
of
the
term
disagrees.
Yet this temptation
should be resisted. There does seem to be descrip?
tive content in the notion of formalism,
even if there are widely divergent
uses of the term. At the heart of the word "formalism,"
in many of its
to rule. For?
uses, lies the concept of decisionmaking
according
is the way in which rules achieve their "ruleness"
by
precisely
screening off from a
doing what is supposed to be the failing of formalism:
decisionmaker
would otherwise
take
factors that a sensitive decisionmaker
numerous
malism
into
off takes
it appears
that this screening
Moreover,
the
in
rules
are
written.
force
of
the
which
largely through
language
tool
the tasks performed
for
which
the
rules
are
tasks
primary
by
account.
place
Thus
is the
that
to rule?and
therefore
for formalism.
according
formalism
is always good or that legal systems ought
I do not
often
or
1. See, e.g., H.L.A. Hart, The Concept of Law 124-30 (1961) (formalism as refusal to ac?
knowledgenecessityof choice in penumbralarea of rules); M. Horwitz, The Transformation of
American Law 254 (1977) (formalism as refusal to recognize instrumental functions of law); K.
Llewellyn, Jurisprudence: Realism in Theory and Practice 183-88 (1962) (formalism as
excessive reliance on canonicallywritten language of rules); R. Unger, The Critical Legal Stud?
ies Movement 1-2 (1986) (formalism as constrainedand comparativelyapolitical decisionmaking);
Kennedy,Legal Formality, 2 J. Legal Stud. 351, 355 (1973) (formalismas view that rule applica?
tion is mechanical and that mechanical rule application is just); Strauss, Formal and Functional
Approaches to Separation-of-Powers Questions?A Foolish Inconsistency?, 72 Cornell L. Rev.
488, 489 (1987) (formalism as refusal to acknowledge practical consequences of judicial decisions);
Tushnet, Anti-Formalismin Recent Constitutional Theory,83 Mich. L. Rev. 1502, 1506-07 (1985)
(formalism as artificial narrowing of range of interpretivechoices).
One can avoid the confusion of multiple usage by simply stipulating a meaning for the term "for?
malism." See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and
the Constitution, 37 Case W. Res. L. Rev. 179, 181-82 (1986). This tack, however, evades most of
the interesting problems. Having stipulated that "formalism" means deductive logical reasoning,
Judge Posner proceeds easily to the conclusion that formalist reasoning has no application to the
interpretationof canonical texts. That conclusion, however, follows, if at all, only from the narrowness of the stipulated definition. By not stipulating a meaning in advance of the analysis, I intend to
focus on a broaderrange of issues. In the process, I will explore the way in which deduction,even in
Posner's sense, may be related to the interpretationof canonical texts. See infra note 48.
Formalism
1988]
511
A.
Choice
Few
York.2
I.
Formalism
Within
Norms
as the
Denial
of
Choice
v. New
as often as Lochner
are charged with formalism
in Lochner
Peckham's
what makes Justice
opinion
majority
unrestricted
Court
an
that
the
it
is
not
just
protected
Surely
decisions
But
formalistic?
when
clauses
decisions
like
"liberty"
are criticized
is hardly a candiLochner
the charge of formalism
narrowness,
suggests
for
but
not for being narrow,
date. We criticize Lochner
being excessively
broad.
for the length
Lochner
is criticized
Although
reveals that it is not the result that is condemned
inheres in its
in Lochner
for that result. The formalism
the justification
choices involved in the
denial of the political,
moral, social, and economic
and indeed in its denial that there was any choice at all. Justice
decision,
that "[t]he general right to make a contract in
Peckham simply announced
is part of the liberty of the individual
protected by
or to sell
and that "[t]he right to purchase
the Fourteenth
Amendment"3
To these prolabor is part of the liberty protected by this amendment."4
that "[o]f course the liberty
statement
nouncements
he added the confident
to his business
relation
of contract
Justice
statutory
It is precisely
for this
demn
as formalistic
Lochner
reason
that
We con?
draws criticism.
his opinion
it involves a choice, but because
not because
2. 198 U.S. 45 (1905). For condemnationsof Lochner (and the era of which it is taken to be
archetypal) as formalistic, see Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57, 99 (1984);
Peller, The Metaphysicsof American Law, 73 Calif. L. Rev. 1151, 1193, 1200-01 (1985); Seidman,
Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of
Constitutional Law, 96 Yale L.J. 1006, 1006-07 (1987); Developments in the Law?Immigration
Policy and the Rights of Aliens, 96 Harv. L. Rev. 1286, 1292 (1983); Note, The Constitutionalityof
Rent Control Restrictions on Property Owners*Dominion Interests, 100 Harv. L. Rev. 1067, 1077
(1987); Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth
and Fifth Amendments,90 Harv. L. Rev. 945, 951 (1977); Powers, Book Review, 1985 Duke L.J.
221, 232; Rotenberg,Politics, Personality and Judging: The Lessons of Brandeis and Frankfurter
on Judicial Restraint (Book Review), 83 Colum. L. Rev. 1863, 1875 n.60 (1983).
3. 198 U.S. at 53.
4. Id.
5. Id. at 56.
512
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What
strikes
is described
509
us clearly
in Lochner
as definitionally
within the meaning
of a broad term. Thus,
incorporated
choice is masked by the language
of linguistic
inexorability.
When I say that pelicans
are birds, the truth of the statement
follows
from the meaning
or
of the term "bird." If someone
inexorably
disagrees,
a
at
is
a
"That
not
and
bird,"
points
living, breathing,
flying pelican
says
she simply
We criticize
does not know what the word "bird" means.7
Lochner
as formalistic
because
of liberty,
then
is condemned
tween
(as
pelicans
One can understand
and
"liberty"
strained labor
yet
the word
you just
don't
know
what
the word
"lib?
be?
because the analogy
precisely
fails.
unrestricted
(as liberty)
contracting
about the concept of liberty and about the word
as formalistic
birds)
much
still
it treats
and
deny
contracting.8
that
Thus,
the privilege
they include
a decisionmaker
who knows
of
uncon-
or should
know
than
513
Formalism
1988]
to treat
formalism
for treating
choices.9
substantive
nondefinitional,
in which a false assertion
Lochner is merely one example
criticism
Much
is
decried
as
formalistic.
ity
contemporary
of inexorabil-
of Blackstone,
on
jurisprudence
attacks their
and others of their persuasion
Langdell,
contestable
similar grounds.10
applica?
They stand accused of presenting
within the meaning of
tions of general terms as definitionally
incorporated
the relationship
to understand
the general term. It is important,
however,
between
stone's
the linguistic
and the ontological
questions
view that certain abstract
vision. Blackstone's
for those
of Black-
terms
definitionally
to his percep?
a wide range of specific results is tied intimately
incorporate
tion of a hard and suprahuman
reality behind these general terms. If the
and
some underlying
describes
for example,
word "property,"
actually
specific embodiare part of the
part of that reality, just as pelicans
that is the universe of birds. These instantiations
might
then
noncontingent
reality,
ments are necessarily
underlying
still follow
it follows
easily
that
certain
reality
even if the general term is not a natural kind whose existence
and demarcation
is beyond the control of human actors. There is nothing
but it is neverthe?
natural or noncontingent
about the term "basketball,"
in this culture
less an error
people hitting
ent sticks. Still,
natural
to perceive
lieves that
reality
deception,
kinds
the choices
that
rather
a general
term reflects
the view that certain
actors,
follows
Thus,
with
and con?
like liberty, property,
categories
than human artifacts, they were less likely
we would now not think to deny. When one be?
believed
and others
tract were
human
at this time
hard balls
insofar as
clarity and rigidity are both facilitated
linguistic
track the natural kinds of the world. To the extent that Black?
the words
stone
small
one
with
view
either
the power of
reality beyond
are
part of that
particulars
necessarily
a deep
special ease.
of the vice of formalism
of oneself
or of others.
To
takes
disguise
that
vice
a choice
to be one
of
in the lan-
514
The
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509
of definitional
guage
questions
ently. Use of the word
of
in this sense hinges on the existence
or
whose
contested
(or phrase, sentence,
application
paragraph11)
the choice. Some terms, like "liberty"
are perand "equality,"
generates
"formalism"
a term
indeterminate.
It is not that such terms have no content whatsovasively
it
is
that
ever;
every concretization,
every instantiation
every application,
requires the addition of supplementary
premises to apply the general term
to specific cases.12 Therefore,
of that term that denies the
any application
choice
made
among
sense.13
in this
various
eligible
supplementary
premises
More
the indeterminacy
to be
however,
commonly,
sionmaker's
choice is not pervasive throughout
the range
a term. Instead, the indeterminacy
is encountered
only
term's meaning.
As H.L.A.
Hart tells us, legal terms
settled
meaning
derives
malism
and a penumbra
the denial
from
where
is formalistic
filled
by a deciof applications
of
at the edges of a
possess a core of
of debatable
of choice
of the prohibition
on vehicles in the park, that choices must
far
the meaning
of a word.
go
beyond merely ascertaining
Hart's
girding
ist takes
malist
deny
be made
that
of formalism15
is closely
with that underconception
aligned
those who criticize both Blackstone
and Lochner.16
Hart's formal-
the penumbra
to be as clear as the core, while the Lochner
forthe general term to be as determinate
the
Both
as
specific.
the extent of actual indeterminacy,
and thus neither admits that the
takes
of the norm
application
the norm alone.
involves
a choice
not determined
by the words
of
Formalism
1988]
B.
Choice
Among
515
Norms
of formalism
is the view that in the core,
Implicit in Hart's conception
unlike in the penumbra,
are often tolerably
determinate.
legal answers
Even if this is true, and I will examine
this claim presently,
the possibility
remains
that
a decisionmaker
applicable
seemingly
this case is not whether
norm
of whether
has a choice
or not to follow
of meaning.
The question
in
or even whether the core of the
in its core
even
a bus is a vehicle,
from the park, but whether the rule excluding
vehicles
must be applied in this case. At times a decisionmaker
have
a
choice
may
whether to apply the clear and specifically
In
such
norm.
cases
applicable
we can imagine a decisionmaker
having and making a choice but denying
rule excludes
buses
that a choice
was
of formalism
variety
of the existence
of choices
within
norms,
but denial
that
there
are fre?
state senator
section
of this title, and not later than 5:00 p.m. of the forty-second
the day of a special
The Windsor
election."19
day prior
primary
enforced
the
statute
County Clerk, Jane Norman,
duly
by refusing to ac?
2351
to
ballot.
not surprisingly,
took his disappointment
to the courthouse
and
Hunter,
filed an action in equity against
Norman
for extraordinary
relief.21 He
asked that the court order her to accept his petition and to ensure that his
name would appear on the primary ballot. At the hearing, Hunter alleged
that he had called the clerk's office earlier on the date in question
and
been told that he was required
to deliver
the petition
in person
because
of
17. No. S197-86-WrC (Vt. July 28, 1986). The following account of the case is drawn from
Judge Cheever's brief opinion, the pleadings, news accounts in the Rutland Herald of July 22, 23,
24 and 26, 1986, and a conversationwith Marilyn Signe Skoglund,Assistant Attorney General in the
Office of the Attorney General, State of Vermont.
18. Vt. Stat. Ann. tit. 17, ? 2356 (1982).
19. Id.
20. Rutland Herald, July 23, 1986, at 5, col. 4.
21. The petition is unclear as to whether Hunter was seeking the extraordinarylegal remedy of
mandamus or a mandatory injunction in equity.
516
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clerk (and the state) were estopped from relying on the statutory deadline.
in
v. Cashman22
In support of this proposition,
Hunter offered Ryshpan
which the Vermont
Court, on similar
facts, held that because
Supreme
on erroneous
its citi?
actions on behalf of the State has put ...
in inescapable
conflict with the literal terms of one of the time re?
. . . [t]he statutory
time
instituted
quirements
by that same sovereignty
schedule
must . . . as a matter of equity . . . yield."23
"reliance
zens
v. Cashman
Hunter prevailed,
and it appears that Ryshpan
Ultimately,
saved the day?or
at least saved Hunter's
therefore
seems
day. Ryshpan
to have operated
as an escape route from the rigors of the statute. Sup?
that everything
in Hunter's
case had been the same, in?
however,
the
existence
of
but
that
the judge had ruled against
cluding
Ryshpan,
Hunter solely on the basis of the statutory language.
Had this hardly unpose,
realistic
brand
alternative
of formalism
occurred,
discussed
it would
above
seem
but
to a formalist
decision.
As long as Ryshpan
exists, the judge has a choice
hypothetical
whether to follow the letter of the statute or instead to employ the escape
route. To make this choice and merely cite the statute as indicating
the
absence
made.
of choice
The
crux
would
therefore
of the matter
existed, whether
Ryshpan
of formalism
in such a case would
concealment
of choice:
pervasively
indeterminate
uncertainty
tween two
Instead
be but a variation
of a choice
within
of formalism
a norm,
as the
as with
either
or language
of
language
penumbras
containing
core
of
a
settled meaning,
here the choice is be?
surrounding
different
norms.
This
variation
on Ryshpan
reveals the reasons we condemn
the mask?
of
choice.
When
the
statute
and
neither
determines
coexist,
ing
Ryshpan
which will prevail.
Thus, the choice of the escape route represented
by
over
the
result
indicated
the
or
vice
statute,
versa,
Ryshpan
by
necessarily
would
be made
on the
basis
of factors
external
to both.
These
factors
include
any of these
factors
to cause
a particular
judge
to decide
that
Formalism
1988]
the statute
517
should
for inspection
failure
opinions),24
open
C.
Is There
Always
a Choice?
Con?
is a trifle obscure, but it is hardly unique.
v. Cashman
Ryshpan
to
that allow decisionmakers
of Ryshpan
sider the number
equivalents
rule. A decisionmaker
of a particular
avoid the specific mandates
may de?
of a rule does not serve that rule's origi?
that the literal language
the Civil Rights Act of
nal intent, as the Supreme
Court has interpreted
and the Eleventh
of the Constitution,26
clause
the contracts
1964,25
rule" or its
Or a decisionmaker
Amendment.27
may apply the "mischief
termine
variants
to determine
the rule's
that
applicable
she might
apply
the equitable
principle
of
24. Although it is generally accepted that judges should write opinions explaining their actual
reasons for decision, see, e.g., Shapiro, In Defense of Judicial Candor, 100 Harv. L. Rev. 731
(1987), some scholars have suggested that there may be reasons to avoid a candid explanation of the
reasoning process.See sources cited id. at 731 n.4. Thus an opinion might be equated with a statute,
whose message legitimatelymay depart from a reflectionof the processthat generatedit. While recog?
nizing that reasons going to the symbolic, guiding, and persuasive function of opinions may urge
against candid explanation of the decision process, I address here only opinions in which honesty is
deemed appropriate.
25. See, e.g., California Fed. Sav. & Loan Ass'n v. Guerra, 107 S. Ct. 683, 691 (1987); United
Steelworkersv. Weber, 443 U.S. 193, 201 (1979).
26. See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 107 S. Ct. 1232, 1251 (1987).
27. See, e.g., Monaco v. Mississippi, 292 U.S. 313, 329-30 (1934); Hans v. Louisiana, 134 U.S.
1, 10-11 (1890).
28. Heydon's Case, 76 Eng. Rep. 637 (Ex. 1584), phrases the rule as deriving from original
legislative intent. See infra note 68. However, limitation of the purpose of a rule to the intent of the
legislature that passed it unnecessarilyrestrictsthe meaning of the term "purpose." Purpose gleaned
from the words of a rule itself should not be confusedwith the psychologicalintentions of the drafters.
Consider a rule which specifically excludes from a park children, radios, musical instruments, dogs
but not eats, and cars and trucks but not bicycles. One might conclude from reading this rule that its
purpose is to prevent noise. Even if the drafters of the rule intended to promote safety rather than
prevent noise, their psychologicalintentions would not negate this reading of purpose from the rule's
words themselves,any more than a person, having said "stop," could deny the import of that phrase
because she in fact meant "go."
29. See Singer, supra note 13, at 17-18. The most "locally" applicable rule (or statute) is that
which most narrowly pertains to the situation at hand. "Dogs should be leashed" is, in a case involv?
ing a dog, more locally applicable than "animals should be restrained." Similarly, "beneficiaries
named by the testator are to inherit accordingto the will" is more locally applicable than "no person
should benefit by his own wrong." The idea of local applicability distinguishes the rules in each of
these pairs, for in each pair both rules might apply to the same situation. Local applicabilitycaptures
our intuition that a more specifically applicable rule is somehow more applicable than a less specifi?
cally applicable, but still applicable, rule.
518
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reader
easily
that
Hunter
should
win
because
he
was
misled
by the
This
with the
does not seem inconsistent
option of creating
Ryshpan
the
American
of
the
lack
way
legal system operates.
Despite
any specific
statute or case authorizing
such a result, allowing
Hunter
to win because
he was misled would raise no eyebrows
in American
legal circles. No one
would
with
American
had a choice
even
the basis
as someone
a Capricorn
route would
judicial
between
without
Ryshpan.
of the statute would
be denying
the extent to which there was
still a choice to create Ryshpan
and thereby rule for Hunter.
Of course, a judge who decided to "create" Ryshpan
would probably
not simply assert that Hunter
should win because he relied on erroneous
information
clusion
Rather,
to general principles
by reference
For
the judge might say that, as a general prin?
system.
example,
are
from
parties
estopped
relying on laws whose contents they have
the legal
ciple,
30. See, e.g., Brenner v. Smullian, 84 So. 2d 44 (Fla. 1955) (unclean hands); Gorham v. Sayles,
23 R.I. 449, 50 A. 848 (1901) (laches).
31. See, e.g., Rozell v. Vansyckle, 11 Wash. 79, 39 Pac. 270 (1895). Riggs v. Palmer, 115 N.Y.
506, 22 N.E. 188 (1889), made famous in R. Dworkin, Law's Empire 15-20 (1986) [hereinafter
Law's Empire] and R. Dworkin, Taking Rights Seriously 23 (1977) [hereinafter Taking
Rights Seriously], presents a similar issue. Riggs is significant because the most locally applicable
legal rule, the relevantstatute of wills, would allow the murderingheir to inherit. Only the imposition
of the less locally applicable general principle that no person should profit from his own wrong al?
lowed the court to avoid the result indicated by the most directly applicable legal norm. From the
perspectiveof the result dictated by the most immediately applicable legal rule, Riggs is not a hard
case, but an easy one. UnderstandingDworkin's enterprise requires an understandingof his attempt
to explain the ways in which the result "easily" dictatedby the most locally applicable rule frequently
yields to less locally applicable legal and nonlegal norms. See Schauer, TheJurisprudence of Reasons
(Book Review), 85 Mich. L. Rev. 847 (1987).
32. See generally Gutteridge,Abuse of Rights, 5 Cambridge L.J. 22 (1935) (discussing possibil?
ity of incorporatingprinciple forbiddingexercise of legal rights for purposes of malevolence).
33. See Singer, supra note 13, at 17-18.
Formalism
1988]
519
the clerk
to the disadvantage
of another;
a decision
against
be merely a specific instance of the application
of that general prin?
such as the
ciple. Or, the judge might cite other particular
principles,
this case to those.34
of reliance
in securities
law, and analogize
principle
misstated
would
either analysis
the judge would attempt to ground the new princi?
in
some
ple
already existing
principle.
three possible mod?
On the basis of these variations,
we can distinguish
Under
one model,
the existing
els of escape
route availability.
escape
to amelioroutes in the system represent
an incomplete
list of principles
Under
rate the rigidity of rules, and the judge may add to this list where amelioexists. In such
ration is indicated
but no applicable
ameliorative
principle
the judge might discuss justice or fairness or some other general
instances,
like
value and explain why this value supports the creation of a principle
v. Cashman.
in Ryshpan
of an ameliorative
availability
that
mand
it. Thus
appropriate
The
ideal
implicit
whenever
principle
system is the
de?
the circumstances
of this
on an
the judge who creates a new ameliorative
principle
furthers the goals of this system.
we could develop a model of a system in which there is
occasion
Alternatively,
a more
already
or less complete
stock of ameliorative
have
route
some
principles.
available
escape
always
norm was not the best
that the applicable
itself did not exist, the judge
be reached in that case. If Ryshpan
that would get
able to pick other extant ameliorative
principles
name
In such a
if all the
result
would
to
be
Hunter's
on the ballot.
mechanical
of these
sionmaker
within
plicable
legal
herself a choice
such
rule
without
legal
rule.
system,
the most
then
If either
a deci?
directly ap?
applies
or explanation
either denies
or required,
or denies to others
as denial
of choice.37
34. Use of precedentis not as simple as I make it out to be here, but these subtleties of preceden?
tial reasoning need not detain us here. For a discussion of precedent, see Schauer, Precedent, 39
Stan. L. Rev. 571 (1987).
35. See Law's Empire, supra note 31; Taking Rights Seriously, supra note 31. See also
discussion of Dworkin, supra note 31.
36. See especially Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or
Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950).
37. Whether a system allows judges to create norms of rule avoidancewhere none exist, whether
520
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These
two
models?one
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the creation
allowing
a complete
presenting
a third model. Under
of rule-avoiding
norms,
be
list of such norms for use38?must
decisionmaker
wishes
to avoid
of all
on the basis
in the sense
tically
decisionmaker
norm
If we can imagine
and precluded
in which
decisionmaker
when
there
there
was
under
masking
This third
of formalism
mandates
in some
a rule
no choice
with
the
factors?would
discussion.
no rule-avoiding
would be expected
was
dealing
to be made,
not have
Where
of
the
there
acted
was
formalis-
no choice,
most
then we
instances,
norms exist at all.
simply
to decide
with
specifically
the decisionmaker
can
also
In such
a
imagine
a system, a
to the rule
according
the situation.
could
Because
not be charged
a choice.
model
than
of a different
presents the conceptual
type
possibility
that which has been the focus of this section.
In this
third
of "formalism"
two models,
not be denying
ing formalistic
might
process, but might never
bility
applicable
directly
of having a choice but denying
its existence.
a model in which a rule-avoiding
norm is both non-
existent
model
than
relevant
now
following
not be accused
could
one to be created.
made
in the decisionmaking
at all. To investigate
the possi?
truly
now turn.
II.
A.
Can
Each
judge
Formalism
Language
as the
Limitation
of
Choice
Constrain?
of my variations
reached a conclusion
on Hunter
v.
Norman
that the
presupposed
of the
by the language
judges in fact create such norms, and whether a sufficient stock of rule-avoidingnorms exists such that
judges need only apply them are all unavoidablyempirical questions. See Kennedy, Toward a Critical
PhenomenologyofJudging, 36 J. Legal Educ. 518, 547-48, 562 (1986); see also Trubek, Where the
Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984). There is no reason,
of course, to presume that the answers to these empirical questions will remain consistent across all
decisional domains within a legal system. For example, no logical necessity dictates that the stock of
rule avoidancenorms applicable to administrativedeterminationof individual social security claims be
identical to that applicable to Supreme Court adjudicationof constitutionalquestions.
38. There need not be any conceptual inconsistencybetween the two models. The second can be
conceivedof as the end product of the first.
rule.39
results
521
Formalism
1988]
This
conclusion
rule-independent
required
by the most
presents
the possibility
that
the
from
statute
locally applicable
may diverge
the judge considers to be the optimal result for this case in light
of a range of factors wider than that specifically
mandated
by the statute.
In cases of such divergence
and
between a judge's unconstrained
judgment
the result
the result
ment
indicated
that
the
by the most
decision
follow
choices
of the exact
judge.
printed
situation
now
at hand.
Formalism
in this
sense
is not
the denial
of choice
page.42
39. I need not consider here which factors the judge actually used to reach a conclusion, for I am
not trying to catalog the considerationscomprisingan ideal decisionmaker'stotally particularizeddeci?
sionmaking process. Instead, I seek merely to distinguish the concept of a complete array of factors
that any particularizingdecisionmakerwould take into account, regardlessof the source of the particularizing norms, from the more limited array of factors available to a decisionmakerinhibited by
rules.
40. I assume here a distinctionbetween internal and external constraint.A host of factorsdefining
what I am and how I got that way constrain me from appearing unclothed in a football game at
Michigan Stadium. Some of these are internal constraints?the factors that shape my very existence.
These internal constraints may be psychological,ideological, or economic, but all shape what I am
internally up to the moment of decision to appear clothed rather than naked at the football game.
Even if I could overcomethese internal constraints,however, external ones, such as social disapproval
and a formal rule against such behavior, still might deter me from that action. Similarly, all sorts of
internal factors influence the decision a judge might reach about the optimal result in this case. But
these influences are distinguishablefrom external constraints, such as rules, that come from outside
the judge's personal determinationof what should be done.
Rules are only one possible example of external constraints. A decisionmakeralso may believe
herself to be externally constrainedby statutorypurpose. As I will demonstratebelow, however, see
infra text accompanyingnotes 77-79, statutory purpose is an external constraint when, and only
when, it operates as a rule in the sense central to my argument. That is, purpose is an external
constraintonly when someformulation of that purpose, on paper or in the mind, operates in substan?
tially the same way that a canonically formulated rule operates.
41. I explore this issue in depth below. See infra Section II-C.
42. For an example of this common use of the term "formalism,"see Levinson, What Do Lawyers
Know (and What Do TheyDo with Their Knowledge)?Commentson Schauer and Moore, 58 S. Cal.
L. Rev. 441, 445 (1985) (erroneouslyconcludingthat Schauer "is much too sophisticateda theorist to
endorse . . . linguistic formalism").This usage of the term "formalism"parallels that of other disci?
plines. See, e.g., Michaels, Against Formalism: The Autonomous Text in Legal and Literary Inter-
522
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Formalism
as the linguistic
limitation
of choice can be illustrated
in a
of ways. Think of the judge who evicts the destitute
widow and
her family on Christmas
Eve because "the law" permits no other result.
number
Consider
determines
because
it literally
fits a statutory
definition
of a small bird as a twoanimal
covered
with
feathers.44
And
recall
White's
dissent
legged
Justice
in Bowsher v. Synar,4* in which he accuses the majority of being "formal?
istic" for taking its narrow reading of article II to be more important
than
the practical consequences
cit problem.46
These
the literal
arguably
reinforces
of striking
down
attempts
to deal with
the defi?
cases
a decisionmaking
exemplify
process that, by distinguishing
mandates
of the most locally applicable
legal norm from some
better result reachable
a
wider
by considering
range of factors,
the systemic
or closure, of the legal system.47 Those
isolation,
who condemn
as a closed
such an outlook
within
system,
from the language
of legal
as formalistic
which
rules.48
the perception
of law
are
deducible
judgments
mechanically
of formalism
Note that this description
criticize
Formalism
1988]
523
mechanical
and the existence
conjoins two different elements:
deducibility
of a closed system.
the
Neither
element
on its own necessarily
implies
we
If
had
Mechanical
not
entail
closure.
need
other, however.
deducibility
a legal
rule
Nations,
prohibiting
all actions
specifically
of the rule
for example,
the coverage
if the answers were found
even
nable,
construed).
boundaries
Conversely,
of a single
nonmechanical
system.49 Consider
be a three-point
shot in basketball
ball. These are not easy questions
(nor are
answers are internal
to the games at issue;
the
would
outside
should
whether
by the United
be readily determi-
condemned
(narrowly
within the
there
the questions
of whether
or a designated
hitter in base?
ones), but their
they important
of
they involve a determination
mechanical
tion,
or theories
available
as "formalistic,"
to a decisionmaker.51
because
both
limit
the
domain
of choices
choice is limited
posited a model in which the decisionmaker's
accu?
this
model
is
we
now
must
determine
whether
descriptively
by rules,
which I will take
rate and normatively
sound. The descriptive
question,
Having
whether
the
choices
constrained
deci?
open to a seemingly
to an unconthe same as those available
decisionmaker.
49. For an important defense of this variety of formalism, see Weinrib, Legal Formalism, 97
Yale L.J. (forthcoming 1988).
50. My point here parallels Dworkin's notion of "fit." As Dworkin illustrates the point, the de?
terminationwhether the existence of a homosexual relationshipbetween David and Steerforthbest fits
David Copperfieldis by no means mechanical,but its resolutiontakes place largely within the bound?
aries of the novel. Dworkin, No Right Answer?, in Law, Morality and Society: Essays in Hon?
our of H.L.A. Hart 58 (P. Hacker & J. Raz eds. 1977). A slightly different version of this article
appears under the same title in 53 N.Y.U. L. Rev. 1 (1978) and as Is There Really No Right Answer
in Hard Cases?, in R. Dworkin, A Matter of Principle 119 (1985). In a later work, Law's
Empire, supra note 31, Dworkin broadens the systemic boundaries with which he is concerned to
encompassthose norms commonly understoodas legal, political, and moral. The expansion of these
boundariesis a separateissue, however;one could agree with Dworkin that it is possible to look for fit
within a domain while disputing the size of the relevant domain.
51. The mechanical aspects of formalism are stressed in the important discussion in Kennedy,
supra note 1. The concept of formalismas not necessarilymechanicalbut involving significant limita?
tions on otherwise eligible results is the focus of Tushnet, supra note 1. See also, Grey, The Constitu?
tion as Scripture, 37 Stan. L. Rev. 1, 4 n.8 (1984) (distinguishing between "operative" textual
norms that guide decisions themselves and "non-operative"textual norms that tell decisionmakersto
use decisive norms outside text).
524
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At first glance,
is both artificial
seems to be "no."
question
and contingent
and therefore
appears insuffithe choices of the human actors who have created it.
Language
to this
the answer
in having
this answer
several
different
confuses
words
used
the
to describe
the
to refer
language
the varieties
of
to canines,
of the Es?
long-term
language
mobility
and is a conclusion
to taking the
plasticity,
comparable
ous progress
of a glacier as indicating
that it will move if we
it
and
is a human
shoulders
Of
course
push.
against
language
short-term
of snow.
with
its
ponderour
put
creation,
of language
are contingent,
in the sense that they
could have been different.
It is also beyond controversy
that the rules of
reflect a range of political,
factors that are
social, and cultural
language
and of course
the rules
a priori.
But this artificiality
or
even
short-term,
intermediate-term,
hardly
to a hardware
store
and
and
contingency
request
a mistake,
even though it is artificial,
contingent,
and possibly temporary
that the word "hammer"
hammers
and
represents
not screwdrivers.
a rule requiring
candidates
to file nominating
Similarly,
screwdriver
has made
Hunter,
at 5:03
had filed
at or before
5:00
p.m.
the possibility
of linguistic
constraint
can be clarified by considering
in
the
rule
vehicles
the
again
park. But
prohibiting
now let us turn from its peripheral
to
the
central
applications
applica?
The
questions
tions?whether
p.m.,
about
cars
and
trucks
are excluded.
Hart
assumed
that,
else the rule did, it excluded cars and trucks. This was the rule's
ucore" of settled meaning
and application.52
this, Fuller offered
Against
the example
of a statue of a truck erected as a war memorial
by a group
whatever
whether
the rule's
Fuller's
challenge
is ambiguous,
however;
there
are three
variant
interpre-
Formalism
1988]
525
One inter?
of his challenge
to the theory of linguistic
constraint.54
of
Fuller's challenge
is that legal systems necessarily
pretation
incorporate
norms such as those discussed
earlier.55 Legal systems must
rule-avoiding
provide some escape route from the occasional
by lit?
absurdity
generated
tations
eral
application
times
a result
system's
itself
of rules: If rules
binding
authority
potential
of literal application,
require an escape route to avoid the consequences
then it must be that literal application
answers
different
can generate
gument
admits
from those
which
terpretation
fails
merely points
tain domains.
the
a decisionmaker
would
to challenge
the
out the undesirability
otherwise
re?
might be arguing that legal systems necessarily
of regulatory
in
of
the
language
light
purpose of
As with the first interpretation
of the challenge,
however,
Fuller
Alternatively,
the
quire
interpretation
the regulation.
this interpretation
focuses
on whether
claims
a rule should
of linguistic
untouched.
determinacy
in which decisionmakers
do not interpret
cording
guage.
to its purpose
if its purpose
outcome in some instances
The
tion-begging
possibility
of a core of literal
Finally,
itself: He
Fuller
might
meaning.
as making a point about
might be interpreted
that meaning
be arguing
cannot be severed
and
speaker's
purpose
context in which words
meaning
is incoherent,
language
from the
that
must be a function
of the specific
meaning
are used. Fuller's argument
that the idea of literal
an argument
also made by other critics,56 reveals a
54. Fuller's example and other illustrations of seemingly absurd results generated by applying a
rule without attention to the circumstancesof its creationfigure prominentlyin criticismof formalism.
See, e.g., Moore, A Natural Law Theory of Interpretation, 58 S. Cal. L. Rev. 277, 386-88 (1985);
H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law
1148-78 (tentative ed. 1958) (unpublished manuscript);see also Dworkin's use of Riggs v. Palmer,
supra note 31.
55. This use of the term "necessarily"to describe the essential features of anything properly
called a legal system would be consistent with the general tenor of Fuller's jurisprudence. See L.
Fuller, The Morality of Law (1964); R. Summers, Lon L. Fuller 27-31, 36-40 (1984).
56. See, e.g., Boyle, The Politics of Reason: Critical Legal Theoryand Local Social Thought, 133
U. Pa. L. Rev. 685, 708-13 (1985) [hereinafterThe Politics of Reason] (arguing that words do not
The
526
mistaken
view
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fail to
of language.
Fuller and his followers
or
from the best
and existence
of meaning
fulcontext.
from a given communicative
be gleaned
of the nature
the possibility
distinguish
lest meaning
that might
I understand,
in that
sentences
derstanding
I might
transported
English
guage is unchanging,
purpose.
acontextually,
un?
even though with better historical
newspaper,
more of what was written by a colony of
understand
that lan?
does not demonstrate
convicts. This example
with?
understood
can be perfectly
nor that language
conven?
to context, but rather that some number of linguistic
are known and shared by all people having
tions, or rules of language,
in a given lan?
in the English language.
competence
competence
Linguistic
out attention
guage
others
viduals
forming
involves
understanding
are linguistically
understand
the same
who
to those
rules.57
number
some
also
understood
When
by
indi?
language.
conby language
they convey meaning
of English
of the community
speakers,
competent
rules,
Members
of rules
in the same
have essences or core meanings); Boyle, Thomas Hobbes and the Invented Tradition of Positivism:
Reflections on Language, Power, and Essentialism, 135 U. Pa. L. Rev. 383, 408-19 (1987) (dis?
cussing Hobbes' rejectionof notion of linguistic essences). In passing, I note my disagreementwith
those who describe as "post-Wittgensteinian"the view that meaning cannot be separated from the
particular context of a particular utterance. E.g., Boyle, The Politics of Reason, supra, at 708. A
footnotein a law review article is hardly the place to debate interpretationsof Wittgenstein, including
whether Wittgensteincan even plausibly be interpretedto support a pragmatist/particularisttheory of
meaning. Yet I would briefly note that a fair reading of Wittgenstein reveals that he argued that the
meaning of a word is a function of how that word is contingently used in an existing linguistic
community, but emphatically not a function of how the word is used on a particular occasion by a
particular member of that community.
It is crucial to recognizethe seductivequality of phrases like "post-Wittgensteinian,"which suggest
that if the reader acknowledgesWittgenstein'sgenius, then she must agree with the point describedin
those terms. It is better to discuss the point at issue without attempting to lean on the argumentative
props of associationswith philosopherswhose names are currentlyfashionablein legal circles. In light
of the still-raging disputes about the most foundational questions in the philosophy of language, to
substitute Wittgenstein'sname for an argument is unwarrantedeven if the use of his name is accu?
rate. When that use is mistaken or at the very least contested, the dangers of facile borrowing from
other disciplines are compounded.
This criticism of the presentationof Boyle's argument has no bearing on its underlying validity,
however. Although I disagree with much of what he and Fuller argue, those arguments raise central
questions about the nature of law which I believe should be confronteddirectly. Boyle's useful per?
spectives are ill-served by clothing them in what appears to me to be an idiosyncraticmisreading of
Wittgenstein.
57. For a particularlyinsightful and influential articulationof the view that meaning exists inde-
527
Formalism
1988]
for example,
possess shared understandings
other members
of the community.
that enable
them
to talk to all
of language
is its compositional
features
the most remarkable
Among
we have never
sentences
nature, i.e., the way in which we comprehend
and perhaps unheard before. We can do this because rules, unspecified
to certain marks and certain noises
allow us to give meaning
specifiable,
without
context
having to inspect
in which
words
partially
independently
up on the beach in the shape
of C-A-T,
I think
of small
house
pets
and
pendent of speaker's purpose or other related aspects of context, see J. Searle, Speech Acts: An
Essay in the Philosophy of Language 42-50 (1969). This view also seems to be the import of
Philosophical Investigations
(G.E.M. Anscombe
paragraphs 489-512 of L. Wittgenstein,
trans. 3d ed. 1953). A similar interpretationof Wittgenstein, relying on different passages, is G.
Baker & P. Hacker, Wittgenstein: Rules, Grammar and Necessity 329-38 (1985). Indeed,
even those who are rightly concerned with the foundational rule-following questions posed by
Wittgenstein would not dispute that "communal language constitutes a network of determinate pat?
To
terns." Wright, Rule-Following, Objectivityand the Theory of Meaning, in Wittgenstein:
Follow a Rule 99, 105 (S. Holtzman & C. Leich eds. 1981).
Interpretationsof Wittgenstein apart, acceptance of the possibility of literal meaning has passed
into the commonplaceof contemporaryanalytical philosophy of language, even while philosophers
hotly dispute the source or explanation of that phenomenon.See, e.g., W. Alston, Philosophy of
Language 74-75 (1964); M. Black, Meaning and Intention, in Caveats and Critiques: Philo?
sophical Essays in Language, Logic, and Art 109 (1975); S. Cavell, Aesthetic Problems of
Modern Philosophy, in Must We Mean What We Say? 73, 80-82 (1969); S. Cavell, Knowing
and Acknowledging,id. at 238, 248-49; D. Davidson, Inquiries into Truth and Interpreta?
tion xix, 243-64 (1984); D. Holdcroft, Words and Deeds: Problems in the Theory of
Speech Acts 122-23 (1978); R. Martin, The Meaning of Language 217 (1987); M. Platts,
Ways of Meaning: An Introduction
to a Philosophy of Language 130-32 (1979); I.
scheffler, beyond the letter: a philosophical inquiry into ambiguity, vagueness and
Metaphor in Language 81 (1979).
In one philosopher'swords:
It is a platitude?something only a philosopherwould dream of denying?that there are con?
ventions of language, although we do not find it easy to say what those conventionsare. If we
look for the fundamentaldifferencein verbal behaviorbetween membersof two linguistic com?
munities, we can be sure of finding something which is arbitrarybut perpetuatesitself because
of a common interest in coordination. In the case of conventions of language, that common
interest derives from our commoninterest in taking advantageof, and in preserving,our ability
to control others' beliefs and actions to some extent by means of sounds and marks. That
interest in turn derives from many miscellaneous desires we have; to list them, list the ways
you would be worse off in Babel.
D. Lewis, Languages and Language, in 1 Philosophical Papers 163, 166 (1983).
Obviously some tension exists between the way that language is discussed in analytic philosophy of
language and the way that it is discussedin other circles, including literary theory. Part of the differ?
ence between the terms of the debate in these two circles can be explained by the different extent to
which the two disciplines focus on "difficult" interpretations.This may also explain the extent to
which some branchesof legal theory, with their focus on difficult interpretationsin linguistically hard
cases, have been drawn to literary theory. Moreover, insofar as literature exists primarily to illuminate, inspire, and transform, its very existence encourages attempts to pierce literal meaning. The
relationship between the enterprise at issue and the view of literal meaning adopted suggests an im?
portant question: Might the purposes of the legal enterprise be so different from those of interpreting
literature that literal meaning is no longer an obstacle but instead a tool? I have no answer to this
question, nor do I intend to offer a few easy citations to suggest a familiarity I do not possess. Never?
theless, the very differencesin focus between analytic philosophy of language and literary theory may
suggest that it is a bit too easy, for me or for those who draw on literary theory or other perspectives
on language, to assume that the applications of these perspectivesto law cannot take place without
some theoretical slippage.
528
not
The
of frogs
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or Oldsmobiles
because
those marks,
themselves,
precisely
of what might have been meant by any
convey meaning
independently
The
meaning.58
speaker. Of course there can never be totally acontextual
Yet
is
itself
a
context.
of
of
the
English
language
community
speakers
in the sense
speakers
Given
our
understandings
of words
of language,
understandings
of these understandings
exist
enough
guage.
textual
In other
the
we must
words,
so that
draws
virtually
on no
all
derived from
may be acontextually
whether
central
becomes
question
of literal lan?
to create the possibility
ask whether
words
have
sufficient
acon?
of
place among speakers
if
of
a
limited
a
least
certain
that
at
meaning,
range
English
way
will be shared by all or almost all speakers
not one and only one meaning,
of English.
The answer to this question is clearly "yes." As with the shells
words strung to?
that washed
up on the beach in the shape of C-A-T,
on the basis of our
gether in sentences
point us toward certain meanings
import
in such
communication
can take
but at
At times these sentences
may be descriptive,
understandings.
be
sentences
times these comprehensible
prescrip?
may
general
we understand
the rules of language,
Because we understand
tions?rules.
shared
other
to
of rules. Contextual
might be necessary
understanding
language
whether a given application
does or does not serve the purposes
determine
as well,
of a rule's framers.
Yet the rule itself communicates
meaning
the
intentions
of rules
language
Of course,
features
that we learn
nothing
by consulting
the
themselves.
certain
obvious,
of rules
distinguish
of other types
interpretation
that it is a law and that it is to be
interpret a rule of law, we understand
in
of
in the same law. In addition,
interpreted
light
surrounding
language
can be
certiorari,
(habeas
corpus,
party, appeal)
of English
for a subcommunity
in the community
of doing within the subcommunity
what ordinary
lan?
ordinary
"lawspeak"
viewed as a language
speakers,
capable
does within
guage
though
all those
the
larger community
reading a statute come
of English
to that task
Thus, al?
speakers.
with certain shared
58. See J. Searle, Literal Meaning, in Expression and Meaning 117 (1979) (literal meaning
exists albeit only against a set of backgroundassumptions about contexts in which sentence could
appropriatelybe uttered);Moore, supra note 54, at 304-07 (arguing that minimal context allows and
is required for fixing referencesto singular terms).
1988]
Formalism
it is probable
that
assumptions,
tional set of assumptions
which
almost
Both
those
within
529
all lawyers
are shared mainly
and those
add to these
an addi?
by lawyers.69
within
the literal
guistic community
the literal lawyer's
though
meaning
may
literal lay meaning
of the same term. A law that limits
Parliament
to those who take an oath "on the true faith
in
membership
of a Christian"
A statute
that the
Jews by its language.60
requiring
shall record in the log book "[e]very birth happening
on
the sex of the infant, and the names of the parents,"61 can be
excludes
literally
master of a vessel
board, with
understood
the master to
by virtually
any speaker of English as requiring
take certain actions.62 In these and countless
other cases, statutes can be
wrenched
still
be read
of their
enactment
and application
and
and understood.
59. Note that I am talking about language and about two different embellishmentson the main
theme of literal meaning. First, ordinary people within a given linguistic culture might share, as
linguistic conventions,knowledge about how to interpret the language of rules, including conventions
relating to the differencebetween normativeand descriptivelanguage and conventionstelling them to
interpretwords in light of surroundinglanguage in the same rule or statute. This suggests only that
all competent speakersof the language in which the text is written have access to a certain minimal
amount of noncontroversialinformation about what kind of text it is.
Second, literal meaning is not necessarily ordinary meaning, because linguistic conventions may
exist within a technicalor professionalsubcommunityof a larger community.For example, photographers may have a literal sense of the meaning of the term "burningin," physicians may have a literal
sense of the meaning of the term "Cushing's Syndrome,"and lawyers may have a literal sense of the
meaning of the term "assumpsit,"even though none of these are terms used at all or in the same way
by ordinary English speakers. This second embellishment, however, must be sharply distinguished
from other notions of "conventionalism"that build in much more than linguistic meaning. See, e.g., S.
Burton, An Introduction to Law and Legal Reasoning (1985); Fiss, Conventionalism, 58 S.
Cal. L. Rev. 177 (1985); Fiss, Objectivityand Interpretation, 34 Stan. L. Rev. 739 (1982). The
conventionalistlegal literature talks merely about the conventionsof permissible legal argument and
does not confront the question of the relationship between the conventionsof permissible legal argu?
ment and the conventionsof literal meaning, whether ordinaryor technical. Thus, legal conventional?
ists such as Fiss avoid questions regardingwhether and why certain literal readings of legal rules are
or are not permissible arguments within the legal interpretive community. It is these questions, in
some sense more foundational,that concern me here, because my aim is to locate the particular per?
missible arguments in the legal interpretivecommunity, rather than merely to assert the existence of
permissible arguments.
60. Salomons v. Miller, 8 Ex. 778, 155 Eng. Rep. 1567 (1853); Miller v. Salomons, 7 Ex. 475,
155 Eng. Rep. 1036 (1852).
61. 46 U.S.C. ? 201 (1958), repealed by Pub. L. No. 98-89, 97 Stat. 600 (1983).
62. "When you come tomorrow, bring my football boots. Also, if humanly possible, Irish water
spaniel. Urgent. Regards. Tuppy."
"What do you make of that, Jeeves?"
"As I interpret the document,sir, Mr. Glossop wishes you, when you come tomorrow,to bring his
football boots. Also, if humanly possible, an Irish water spaniel. He hints that the matter is urgent,
and sends his regards."
"Yes, that's how I read it, too . . . ."
P.G. Woodehouse, The Ordeal of Young Tuppy, quoted in S. Blackburn, Spreading the Word:
Groundings in the Philosophy of Language 3 (1984).
530
B.
The
Does
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509
Constraint
The
of whether
literal meaning
can
is possible
conceptual
question
be answered
diRules
to
results
that
affirmatively.
may point
would have reached apart from the
verge from those that a decisionmaker
literal meaning
of the rule. When there is such divergence,
the
however,
therefore
remains:
Is it possible
in such cases for deci?
psychological
question
sionmakers
to follow the literal meaning
of the rule rather than their own
how the case should be resolved?
judgment
regarding
The psychological
to formalism
involves the claim that deci?
challenge
sionmakers
will usually
take all factors they believe to be relevant
into
or
at
least
that
will
feel
to
reach
"reason?
account,
they
usually
compelled
able" results whether or not the language
of the rule points in that direc?
tion.63 When
tion
is an
expressed
empirical
Yet despite
this way,
one.
it is obvious
Accordingly,
it cannot
scholarship's
sorry failure to take the psycho?
the possibility
that judges usually obey their
logical challenge
seriously,64
own rule-independent
We can
is, on its face, quite plausible.
judgment
a
world
in
which
decisionmakers
consider
that
easily imagine
everything
argument.
legal
external
they feel relevant and ignore, or at least slight, any inconsistent
instructions
in making their decisions.
The question
is whether
that is the
world of the law.
some legal decisionmakers
conform
to this model. Although
Certainly
one may dispute
as excessive
the generalizations
of the more extreme
it
is difficult to deny the existence
of decisionmakers
who consult
Realists,
the rules
determinate
of governing
mandates
that that
rule, it is important
plausibly
view be shown for the optimistic
it
is.
Yet
to
some
that
fantasy
accept
arrive
at
decisions
without
rules
does
not
all
that
judges
considering
imply
or most decisionmakers
human
Just
most judges do so, it is also a mistake to assume that because rules some?
times constrain,
constrain.
The truth, an empirical
rather
they usually
than a logical one, plainly lies between the extremes
of always and never,
or even between the lesser extremes of rarely and usually. Although
this is
not the place to examine
the rudimentary
work
that
has
been
empirical
63. See Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 985, 1004
(1987).
64. Noteworthy exceptions are J. Frank, Law and the Modern Mind (1930), and Kennedy,
supra note 37. However, legal scholarship still must systematically investigate the important issues
that Frank, Kennedy, and others have raised in an impressionisticway.
done
531
Formalism
1988]
on the
research
some
their
own
from
the results
conclusion
decisional
should
often do what
diverge in outcome
This
have reached.
that people
as long as we recognize
no surprise
best. If privates in the army often follow orders
and if privates
autonomous
choices,
might behave in
cause
others
think
instead of making
comthis way with respect to general orders in addition to particularized
mands, we can imagine judges doing the same with respect to rules.66
We have seen that, as a descriptive
and conceptual
matter, rules can
from
that those outcomes
determinate
outcomes;
generate
may diverge
what some decisionmakers
think ought to be done; and that some deci?
sionmakers
will follow such external mandates
rather than their own best
The
particularistic
judgment.
mains: To what extent should
meaning
sionmaker?
ism?in
lation
whether
when
avoidance
question
of formalism
now
re?
of literal
a system legitimate
the avoidance
outcome
to the deci?
to be the optimal
seems
To put it simply,
the sense of following
of a rule?is
conceptually
it is desirable.
normative
Before
that
we have
the literal
mandate
now
that
formal?
of the canonical
formu?
established
and psychologically
possible, we must ask
I want
to
that
however,
question,
turning
65. See D. Black, The Behavior of Law (1976); L. Friedman, The Legal System: A
Social Science Perspective (1975); Hogan & Henley, Nomotics: The Science of Human Rule
Systems,5 Law & Soc'y Rev. 135 (1970); Johnson, Law, Politics, and Judicial Decision Making:
Lower Federal Court Uses of Supreme Court Decisions, 21 Law & Soc'y Rev. 325 (1987);
Scandura,New Directionsfor Theoryand Research on Rule Learning, 28 Acta Psychologica 301
(1968).
66. There is somethingunrealistic about all of this, because it erroneouslyassumes that my para?
digm "easy" cases are representativeof the kinds of decisions that come before decisionmakers.They
are not, at least when we take "decisionmaker"in a somewhat narrow sense to refer to formal deci?
sionmakerssuch as judges sitting in courts of law. In most legal systems, various screening devices
ensure that cases at the center of decisionaldeterminacywill not enter the formal adjudicativeprocess.
The time and expense of litigation and the widespreadinclination to avoid futile battles are such that
decisionsat the core of settled meaning seldom confrontany formal decisionmakingprocess.See Priest,
Reexamining the Selection Hypothesis:Learning from Wittman's Mistakes, 14 J. Legal Stud. 215
(1985) (develops selection hypothesis to determine which cases are settled and which are litigated);
Priest and Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984) (presents
model to predict whether litigation will be resolved by suit or settlement).
This, however, is but a contingentfeature of modern legal systems. It is possible to imagine a legal
system closer to a sporting event, where umpires call "safe" or "out" on every play, or where officials
with red penalty flags in their back pockets patrol the social landscape, ready to throw the flag and
call "tort,"or "crime,"or "breachof etiquette" whenever there is a transgressionof the rules. Obvi?
ous logistical problemsprevent such a system from being a reality, but it is a useful Gedankenexperiment for thinking about the innumerable instances in which rules are followed or clearly broken
without coming to the attention of the judicial system.
Many legal systems, unlike those with "roving umpires," operate largely in the area of linguistic
indeterminacy,generated either by vagueness of the governing norm or by open texture when previ?
ously clear norms confrontthe unexpected.And in some systems, such as that of the United States, the
likelihood of success is sufficient to make it worth litigating cases in which linguistic determinacy
produces a politically or morally uncomfortableresult. But that is exactly our question, because the
weight the system gives to literal meaning will determine the extent to which it is worth litigating
against literal meaning.
The
532
to answer
formalism
C.
Law
Yale
an important
counterargument
defined in this section.
and
Language
[Vol.
Journal
to the possibility
97:
of the type
509
of
Rules
I
Until this point my argument
may appear to create a false dichotomy.
who follow the literal lan?
have counterpoised
the vision of decisionmakers
who follow the dictates of
guage of a rule with that of decisionmakers
their
own
externally
unguided
rules
can and
Although
tives?
rules
not be equated
In other words, is portraying
to be articulated?
they happen
rules with
vice of formalism
as the vice of literalism
actually confusing
formulations?
literal meanings
of their explicit
need
which
which
that
argument
are
written
they
rules
the
the
in
le?
to
on
because
ferent
result.
The
rule
language
can diverge
in which
a rule
because
is written
that
precisely
is not. Purpose
cannot
language
for?
for when purpose is set down canonically,
that canonical
formulation,
mulation
of purpose may frustrate the purpose itself. It is because purpose
is not reduced to a concrete
to
set of words that it retains its sensitivity
literal
novel
human
cases,
to bizarre
experience.
lem of formalism,
533
Formalism
1988]
and enriched
can be explained,
clarified,
to
our
The
attention.
come
purpose
applications
is not embarrassed
behind the "No vehicles in the park" regulation
by the
statue of the truck exactly because purpose can bend to the circumstances
words.
This
unrigidified
and
examples
as new
of the moment
ment
of
with its acontextual
in a way that language,
autonomy
at least at the core,
In contrast,
the term "vehicles,"
of some
to vehicles;70 if it turns out that the prohibition
cannot.
meaning,
refers
literally
vehicles
purpose
of the regulation,
then
the embarrass?
If adhering
causes this embarrassment,
to concretized
language
of the rule rather than the words
why not adhere to the purpose
rule?
To
Hart
and
do so would
Sacks,78
can be called, with
American
conform
Dworkin,74
only
with
and
negligible
the
models
Llewellyn75
exaggeration,
Yet locating
advocated
and
would
then
of the
by Fuller,72
match what
of
paradigm
the idea and the force of
the current
statutory interpretation.76
in its purpose rather than in its formulation
poses the same prob?
the
To illustrate
lem posed by concretized
at
one
remove.
rules, except
is
in
the
of
the
"no
vehicles
point, suppose the purpose
park" regulation
as well, that this
the preservation
of peace and quiet in the park. Suppose,
a rule
the pleasure
has just
who
70. Note that the "No vehicles in the park" example may be a flawed illustration of the problem
Hart, Fuller, and I explore, because locomotive capacity may now be definitional of a "vehicle."
Insofar as this is true, the statue is not a vehicle, and no conflict arises between literal meaning and
purpose. This is a defect only in the example, however, rather than in the general formulationof the
issue. I will therefore stipulate, for the purposes of this argument, that a statue of a vehicle is a
vehicle, just as a lion in a cage is still a lion. Consider a rule prohibiting "live animals on the bus"
and whether it would prohibit carrying on the bus three live goldfish in a sealed plastic bag.
71. My point about the plasticity of purpose should not be confused with claims, often correct,
about the indeterminacyof purpose. See, e.g., Easterbrook,Foreword: The Court and the Economic
System, 98 Harv. L. Rev. 4, 15-18 (1984); Easterbrook,Statutes' Domains, 50 U. Chi. L. Rev.
533, 537-38 (1983); Kennedy, supra note 1; Posner, Statutory Interpretation?In the Classroom
and in the Courtroom, 50 U. Chi. L. Rev. 800, 819-820 (1983). Insofar as purpose becomes both
concreteand determinate,as when everyone agrees what the purpose is, the argumentthat "ruleness"
resides in purpose becomes more plausible. But when some conception of purpose is determinate,
noncanonicalpurpose itself can operate formalistically.Conversely, if purpose is comparativelyinde?
terminate, then it looks especially odd to say that the rule exists not in the specific rule-formulation,
but in the quite different and nonspecific purpose. Thus, those who argue for the indeterminacyof
purpose make claims consistent with mine.
72. L. Fuller, supra note 55, at 81-91; Fuller, supra note 53; Fuller, The Speluncean Explorers, 62 Harv. L. Rev. 616, 620-26 (1949) ("opinion" of Foster, J.).
73. H. Hart & A. Sacks, supra note 54.
74. Law's Empire, supra note 31.
75. K. Llewellyn, supra note 1.
76. See Wellman, Dworkin and the Legal Process Tradition: The Legacy of Hart & Sacks, 29
Ariz. L. Rev. 413 (1987); Note, Intent, Clear Statements, and the Common Law: Statutory Con?
struction in the Supreme Court, 95 Harv. L. Rev. 892 (1982). Recent manifestationsof this para?
digm include G. Calabresi, A Common Law for the Age of Statutes (1982); Eskridge, Dy?
namic StatutoryInterpretation, 135 U. Pa. L. Rev. 1479 (1987); Langevoort,Statutory Obsolescence
and the Judicial Process: The Revisionist Role of the Courts in Federal Banking Regulation, 85
Mich. L. Rev. 672 (1987). But see, e.g., United States v. Locke, 471 U.S. 84 (1985) (failure to file
timely claim deprives petitioner of right, irrespectiveof statutory purpose).
The
534
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[Vol.
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won
in the park"
the "no vehicles
behind
the purpose
circumstances,
the
but
the motorcade,
would be served by excluding
purpose behind
the
Thus the same logic that requires
purpose would be frustrated.
in the service of its purpose would
of a rule to be defeasible
mulation
require
it.
that purpose
to be defeasible
in the service
of the purpose
rule
that
for?
also
behind
As the example
and its concretized
under
and unknown
known
particulars
gather numerous
and
as "vehicles,"
"every person
"dogs,"
"punishment,"
headings
owner of more than 10 per
the beneficial
or indirectly
who is directly
centum of any class of any [registered]
equity security (other than an exa
After
category of items or events to which
identifying
empted security)."
what shall be done
then prescribe
rules
in the protasis,
the rule applies,
not all of
in the apodosis7*
with these particulars
however,
Occasionally,
are suitable for
the rule's category of coverage
the particulars
comprising
a
that
are
the
the prescribed
part of
necessary
treatment;
generalizations
be
that
manner
a
in
appropri?
may
any rule treat all members of the class
of the class. What, then, is to happen when a
ate only for most members
does not apply to this particular?
case arises in which the generalization
if the decisionmaker
is unsuitable,
treatment
a rule's prescribed
When
general.
They
such
77. Note, however, that this claim is not inconsistent with the view that rules should be inter?
preted to further their purposes when several interpretationsof the rule are possible and all are
supported by the language ofthe rule. In such cases, it is not only possible but positively desirableto
choose the interpretationthat will serve the rule's purpose. See H.L.A. Hart, Introduction, in Es?
says in Jurisprudence and Philosophy 1, 8 (1983).
78. On this terminologyfor the structureof rules, which distinguishesthe part of the rule specifying its operative facts from the part describing the consequencesflowing from the existence of those
facts, see W. Twining & D. Miers, How To Do Things With Rules 136-40 (2d ed. 1982). See
also Friedman,Legal Rules and the Process of Social Change, 19 Stan. L. Rev. 786, 786-87 (1967)
(same distinction with different labels); Schlag, Rules and Standards, 33 UCLA L. Rev. 379,
381-83 (1985) (same).
Formalism
1988]
were
reason
the
behind
purposes
that would not serve
535
not
rule providing
a
of thumb, defeasible
when
the rule would not be served. If every application
from the
the reason behind the rule were jettisoned
be a real
rule
By contrast, if in
guides, for they lack any normative
power of their own.
not
the reasons be?
would
serve
cases in which the particular
application
own
for deciding
hind the rule, the rule nevertheless
its
reason
provides
the case
according
a reason
provides
In summary,
itself
a normative
has
force
that
from
relevant
of every fact and principle
contemplation
in Llewellyn's
tion of the rule. To be formalistic
by the rigidity
central to the
of a rule's
constraint
to a particular
applica?
sense is to be governed
by rigidity
yet, this governance
in this sense
rules. Formalism
formulation;
of regulative
is
is
ization
D.
acontextual
System
now
the erroneous
closed
otherwise
answers
eligible
are rules,
such
from
as one
much
application
throughout
rule and to uncontroversial
discrete
A rule's
We
bodies
there
of a Closed
to be inapposite.
particulars.
recourse only
quire
and observational
There
consideration.
We
also
have
seen
that
of pelicans,
whose
the shooting
prohibiting
recourse only to the
of their range requires
of
of meaning
and identification
judgments
be systems whose operations
re?
of the system and to accepted linguistic
can therefore
to the norms
skills.
be com?
would be closed, but it would not necessarily
re?
Closedness
and
are
different
plete.
completeness
properties.
fers to the capacity of a system to decide cases within the confines of that
Such
a system
Closedness
79. This is not to say that rules are always or even ever good things to have. My aim now is to
distinguish a form of decisionmakingin which generalizations have independent normative power
from a form of decisionmakingin which the full richness of the particular event always is open to
consideration.The questions of whether rules should be employed, in which domains, and to what
extent, are addressedbelow. See infra Section III.
536
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no answer
modern
Insofar
claim
control.
When
rules
truncate
80. See Schauer, Authority and Indeterminacy, in Authority Revisited: NOMOS XXIX 28
(1987).
81. The closed system/open system dispute merely recasts the debate about legal positivism in
differentterminology.Any version of legal positivism is premised on what Ronald Dworkin, no posi?
tivist, has felicitously referred to as "pedigree."Taking Rights Seriously, supra note 31, at 17.
Positivism posits that legal norms are identified by reference to some other norm, rule, or standard
that distinguishes legal from non-legal norms. Hart's "rule of recognition" serves this purpose,
H.L.A. Hart, supra note 1, as does the "next higher norm" for Kelsen. H. Kelsen, The Pure
Theory of Law 193-278 (M. Knight trans. 1967). The positivist conceives of the set of norms so
pedigreedas constitutingsome sort of a closed system, although that system will not necessarilydecide
all or even most cases that come before the courts. Kelsen, for example, sees every law-applying act as
only partially determined by law. Id. at 233-36, 244-45. By contrast, the opponents of positivism,
most notably Dworkin, attack the pedigreeabilitythesis by arguing that in no case is the distinction
between pedigreed and nonpedigreednorms dispositive and consequently the characterizationof law
in terms of pedigreed norms is descriptivelyinaccurate.
537
Formalism
1988]
account.
sons
ism
on
focuses
sionmaker
and
outcomes
deems
Rules
on the outcome
the deci?
particularly
in
of
this
the
get
process, and thus
way
that seeks to
as a view of decisionmaking
minimize
optimal.
can be perceived
the space between
what
sideration
reasons
functionalism
a particular
decisionmaker
concludes,
all things considered,
should be done and what some rule says should be
done. Rules block consideration
of the full array of reasons that bear upon
a particular
decision in two different ways. First, they exclude from con?
that
action,
The
tion.
notion
What
ing rules
independent
of a rule as a reason
makes
formalism
involves
seriously
of the reasons
for decision
formal
further explora?
requires
is this very feature: the fact that tak?
their mandates
as reasons for decision
taking
for decision
Rules
would
add
reasons
for
supply
tracks the reasons
action
qua
the
the rule,
therefore
by a rule
and
behind
supplied
in the particular
rule, then the rule is in a different way superfluous
Rules become interesting
result
when they point toward a different
do the reasons
for example,
behind the rule?when
they indicate,
statues
of vehicles
to be excluded
ought
that the statues
dispositive
of a rule from the reasons
abstract
rules
as always
as "formalistic"
reasons
perverse
is condemned
ought
behind
the reasons
even
though
not to be excluded.
relevant
because
it abstracts
rules
This
than
that
behind
To take these
and therefore
case.
sometimes
the mandates
do. Refusal
refusal
to
reduces
to rules
the results
make
way
it desirable.
of describing
Yet recognizing
the way in which formalism
the process of taking rules seriously
allows
is merely a
us to escape
82. See, e.g., R. Summers, Instrumentalism and American Legal Theory 136-75 (1982);
Aleinikoff, supra note 63, at 985; Summers, Professor Fuller's Jurisprudence and America's Domi?
nant Philosophy ofLaw, 92 Harv. L. Rev. 433 (1978).
83. Insofar as a system permits recourse to the purpose behind a rule's formulation but does not
permit departure from that purpose when adhering to it will produce unfortunate results or will
frustrate the even deeper purpose behind it, that system will still be formal in the sense I am now
using that term. It will also be rule-bound, because the less than totally plastic purpose (although
more plastic than the rule-formulation)will operate as a rule vis-a-vis the higher order reasons that
generated that particular purpose.
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of formalism:
the critical question
mode and to confront
epithetical
the rule
if
is
the
to
beneath
about
What,
good
unwillingness
go
anything,
and apply its purpose, or the purposes behind that purpose, directly to the
case before the decisionmaker?
the
III.
Should
Choice
Be
Restricted?
to conOne conception
takes the vice of formalism
to
of obedience
denial, couched in the language
clear rules, of having made any choice at all. Yet rules, if followed,
may
not leave a decisionmaker
free choice. Rules can limit decisional
choice,
Let me recapitulate.
sist of a decisionmaker's
and decisionmakers
in most cases
can abide
by those
limitations.
Those
limitations
come
for to take
formulation,
language
a rule as anything
or at least the mean?
other than the rule's formulation,
is ultimately
to deny the idea of a rule.
ing of the rule's formulation,84
and both are inextricably
interThus, formalism
merges into ruleness,
twined
of a rule's
with
to make decisions
literalism,86
i.e., the willingness
according
or
on a
of
words
or
sentences
or paragraphs
meaning
phrases
even
if
the
of
that
decision
seem
either
to
frusprinted page,
consequences
trate the purpose behind those words or to diverge significantly
from what
to the literal
the decisionmaker
thinks?the
rule aside?should
be done.
84. In a trivial sense, rules differ from their formulations.See, e.g., G. Baker & P. Hacker,
supra note 57, at 41-52; M. Black, The Analysis of Rules, in Models and Metaphors: Studies
in Language and Philosophy 95 (1962); D. Shwayder, The Stratification
of Behaviour
241 (1965); G. von Wright, Practical Reason 68 (1983). "Do not walk on the grass," "Walking
on the grass is prohibited,"and "No walking on the grass" constituteone and not three rules. Refer?
ring to these three formulationsas formulationsof only one rule, however, presupposesthat all have
the same meaning, that the differencesare syntacticaland not semantic. Thus, the distinctionbetween
a rule and its formulationis like the distinctionbetween a propositionand a sentence. When I discuss
a rule and equate it with its formulation, I therefore mean that a rule is that set of semantically
equivalent rule formulations.
85. My referencesto "literalism"are slightly metaphorical.As noted above, see supra note 59,
literalismincludesthose aspects of context, such as the appearanceof words in a statute rather than in
a poem, that are accessible to all or most readers. Moreover, although I often use single words as
examples, statutes are not read word by word, but instead by sentences, paragraphs,and larger units
of text. This is not to deny, however, that the ability to assign meanings to individual words is what
enables us to understanda sentence we have never seen before. See D. Davidson, Truth and Mean?
17 (1984). This assertion, however, superfiing, in Inquiries into Truth and Interpretation
cially in conflict with Frege's assertion that only in the context of a sentence does a word have any
meaning, see G. Frege, The Foundations of Arithmetic (J.L. Austin trans. 1959), is not with?
out its detractorsand complexities. See, e.g., Wallace, Only in the Context of a Sentence Do Words
Have Any Meaning, in Contemporary Perspectives in the Philosophy of Language 305 (P.
French, T. Uehling, Jr., & H. Wettstein eds. 1979).
Still, pace Fuller, supra note 53, at 662-63, sentences and paragraphs can have literal and even
acontextualmeaning insofar as an entire sentence or paragraphmay supply enough context to make
its meaning comparativelyclear. As texts become lengthier and richer it is often more possible to
understandthose texts without departingfrom them and thus more possible for them to have acontex?
tual meaning.
Moreover, literal meaning need not always be ordinary meaning. Where some aspect of the mini?
mal and uncontestedcontext makes it plain that a settled specializedor technical meaning of a term or
phrase applies, that technical meaning, rather than the ordinary usage of the man on the Clapham
omnibus, is controlling.
539
Formalism
1988]
that formalism
is ruleness rescue formalism?
what is
Restated,
onstrating
so good about decision
to
rules?
according
The simple answer to this question,
and perhaps also the correct one, is
Little
about
decision
constrained
"nothing."
by the rigidity of rules seems
valuable.
Nor
scarce
is there
reason
Once
anything
to believe
we understand
essentially
just
that rule-based
that rules
about
just
than
sideration
in a particular
case turn out to be
by a rule might
to
a
reach
in
the way of justice in
rules
stand
necessary
just result,
cases and thus impede optimal justice in the long term. We equate
mon's wisdom with justice not because Solomon followed
the rules in
those
those
Solosolv-
rules
is the value
pursue
ruleness
variously
the
as predictability
or certainty.
But if we
we see that what most arguments
for
theme,
on disabling
certain classes of decisionmakers
expressed
predictability
share is a focus
from
all
cases
within
a class
will
be determined.
there
86. See generally A. Kocourek, An Introduction to the Science of Law 165-85 (1930);
R. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification 60-66
(1961); Marsh, Principle and Discretion in theJudicial Process, 68 Law Q. Rev. 226 (1952). Along
with Wasserstrom,supra, at 61, I object to the use of the word "certainty"in this context because,
unlike the term "predictability,"it suggests that no doubt is involved.I can predictthat it will snow in
Vermont this winter and rely on that predictionin making winter plans, yet still not be certain that it
will snow. Although one usage of "certain"does recognize variability, I prefer the term "predictabil?
ity" because its common usage implies such variability.
540
The
that some
item
variable
tially
Yale
is a member
judgment
Law
[Vol.
Journal
97:
509
of some
clouds
item.
ply to this particular
sionmakers
in the system will perceive those particulars
as being members
of the same category perceived
and will be seen as so
by the addressees
That is, people perceive
as birds;
perceiving
by those affected.
pelicans
decisionmakers
as
and
that
deci?
know
birds;
perceive
pelicans
people
sionmakers
will perceive pelicans
as birds. Third, the rule must speak in
of an accessible
terms
category.
Predictability
denotation
is substantially
category
class of addressees
of the rule and common
whose
and
those
comes
Thus, predictability
a certain result will follow,
comes
at a price.87 Situations
may arise in
that
seems
too
particular
category
just
about this particular
makes us desire to treat it spe-
predictability
this
putting
crude?something
cially. This vehicle
only
into
and endangers
no lives;
cles whose characteristics
mesh
with
no fumes,
no noise,
vehi?
differently
the purpose behind the rule. Serving
requires that we ignore this difference,
makes
from those
the
power?the
vehicle
actually
It is the jurisdic?
541
Formalism
1988]
some item
whether
to determine
purpose is (as well as jurisdiction
fits that purpose)
of variance substantially
greater than
injects a possibility
that involved
in giving a decisionmaker
solely to determine
jurisdiction
whether some particular
is or is not a vehicle. Note also that the jurisdic?
we are
tional question
has a double aspect. When we grant jurisdiction
rule's
first concerned
with
in the exercise
made
that might be
correct decisions
the range of equally
state?
If there is no authoritative
of that jurisdiction.
ment
of the purpose
in the park" rule, granting
behind the uno vehicles
to de?
a decisionmaker
to
allow
determine
that
would
jurisdiction
purpose
or
cide whether
the purpose is to preserve quiet, to prevent air pollution,
would be equally
to prevent accidents,
and each of these determinations
correct. In addition to increasing
the range of correct decisions,
however,
certain grants of jurisdiction
of erroneous
determi?
increase the likelihood
nations.
vehicles
"No
Compare
whose greatest
their
vehicles
in the park"
horizontal
perimeter
vertical
with
"The
park is closed
when added
dimension,
exceeds the lesser
dimension,
greatest
perimeter
eight feet, six inches and (b) the greatest horizontal
added to the greatest vertical perimeter
dimension,
in the
automobile
manufactured
largest passenger
to
to
of (a) sixty-
dimension,
perimeter
of the average of the
United
States by the
in the preceding
manufacturers
largest automobile
year." The sec?
the possibility
ond adds no inherent variability,
but it certainly compounds
of decisionmaker
error. Creating
to determine
whether the
the jurisdiction
three
the
by allowing
predictability
in
the
creation
addition,
purposes;
undermines
possible
the possibility
that
those
who
exercise
it
else.
decisions
implicates
make
legitimately
United
would
of Michigan
philosophy
department
the possibility
of variance
and error by the deci?
to the ability of addressees
of rules to predict the
of
of
can serve other
those
limited
variance
rules,
consequences
application
values
as well. If decisionmakers
are denied jurisdiction
to determine
Although
decreasing
sionmaker
contributes
whether
a particular
instance
actually
justifies
its inclusion
in a larger
The
542
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Law
[Vol.
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to determine
the best result on the
or are denied jurisdiction
generalization
basis of all germane
factors, the part of the system inhabited
by those
becomes more stable. Treating
a large group of different
decisionmakers
in the same way?the
of the generaliza?
inevitable
particulars
byproduct
tion of rules?dampens
sideration
of a wide
con?
the range of variance in result by suppressing
of
relevant
differences.
stabilThus,
range
potentially
certain
worse
than
a rule-free
features
of the present
a decisionmaker
seeking
decision.
in the face of a
and inflexibility
condemned.
Rules stabilize
by
of the classifications
of yesterday.
We achieve sta-
the importance
in its place, by relinquishing
some part of our ability to
bility, valuable
for those who have
improve on yesterday.
Again the issue is jurisdiction,
inflating
to improve on yesterday
also have jurisdiction
to make things
jurisdiction
worse.90 To stabilize,
to operate in an inherently
conservative
mode, is to
of improvement
in exchange
for guarding
give up some of the possibility
of disaster. Whether,
when, and where the
against some of the possibility
game
is worth
the candle,
however,
cannot
be determined
acontextually.91
89. See Horwitz, The Rule ofLaw: An Unqualified Human Good? (Book Review), 86 Yale L.J.
561 (1977). I use the term "conservatism"to refer to the desire to hold onto the past or present in the
face of pressures to change. This usage bears only a contingent connection to the range of political
views now labeled "conservative."Left-wing conservatismis not oxymoronic,becauseone can imagine
left-wing systems adopting preservational(conservative)strategies or systems to prevent movement
away to the right.
90. This is not a logical truth. Grants of jurisdiction can incorporatesubstantive requirements.
Dworkin, Non-Neutral Principles, in Reading Rawls: Critical Studies of A Theory of Jus?
tice 124 (N. Daniels ed. 1975). Insofar as some grants of jurisdiction aim to increase the ability of
decisionmakersto adapt to an unknown future, however, they will be comparativelyopen-ended. It is
this open-endedness,whether couched in substantive(do good) or less substantive(determinethe pur?
pose) terms, that creates the possibility of unintended and uncontrollablevariance.
91. I therefore disagree with Kennedy, Form and Substance in Private Law Adjudication, 89
Harv. L. Rev. 1685 (1976), insofar as he argues that ruleness is acontextually individualistic and
particularizationis acontextuallyaltruistic. Even if there is truth in Kennedy's acontextuality,it still
is not clear that his analysis of the acontextual tendencies promotedby ruleness is correct. It is quite
plausible that the inherently stabilizing tendenciesof rule-bound adjudicationwill dampen individual
differences,stifle claims to special treatmentas an individual, and encouragedecisionalmodesty rather
than decisionalarrogance.It could be argued quite sensibly that all these tendenciesfoster rather than
impede altruism.
Formalism
1988]
543
In sum, it is clearly true that rules get in the way, but this need not
a bad thing. It may be a liability to get in the way of
always be considered
wise decisionmakers
who sensitively
consider all of the relevant factors as
it may be an asset to restrict
However,
or simply mistaken
deci?
wicked,
misguided,
incompetent,
power-hungry,
sionmakers
whose own sense of the good might diverge from that of the
of course, is the difficulty
in determining
system they serve. The problem,
which characterization
will fit decisionmakers;
we must therefore
decide
they
accurately
the extent
to which
good decisionmakers
in order
let us approach
formalism
in formalism's
marchers
in a new
to disable
simultaneously
With these
considerations
Consider
light.
the good.
pursue
some
of the
such
horribles,
the park,
in mind,
famous
as R. v. Ojibway,
Fuller's
statue
parade
of the truck
of
in
examples
and the poor Bolognese
surgeon who, having opened the vein of
a patient in the course of performing
an emergency
outdoors,
operation
was prosecuted
for violating
the law prohibiting
blood in the
"drawing
Each
streets."92
which
sult.
of these
reminds
us that cases may arise in
examples
of
the
literal
of
words
application
meaning
produces an absurd re?
But now we can recast the question,
for we must consider not only
whether
the result
decisionmaker
Formalism
was absurd
should
is about
To
power, but is also about its converse?modesty.
as a decisionmaker
is to say that something
is not my con?
no matter how compelling
it may seem. When this attitude is ap?
be formalistic
cern,
for
charge,
even
some
people
accompanied
to take
charge
by acceptance
some
of the
of responsibility,
92. The last example, from 1 S. Pufendorf, De Jure Naturae et Gentium Libri Octo
(1672), comes to us through United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 (1868).
93. For a recent articulationof this view, see Michelman, Foreword: Traces of Self-Government,
100 Harv L. Rev. 4 (1986). A useful contrastis Christie, An Essay on Discretion, 1986 Duke L.J.
747.
544
good.
The
"Fm
jurisdiction
judgment
97:
509
distinguished
of the view
that
[Vol.
Journal
his?
it is appropriate
for decisionmakers
to recognize
their lack of
and to defer even when they are convinced
that their own
is best. The opposite of modesty is arrogance,
not just responsi?
modesty itself carries
is participating
and
True,
bility.
Law
Part
tory.
sometimes
Yale
responsibility,
thus assisting
because
an actor
behav-
in the legitimacy
of the
ing modestly
to someone else. But this is a responsibility
of a differ?
grant of authority
ent and limited kind. That one accepts partial responsibility
for the deci?
sions of others does not entail the obligation
to substitute
one's judgment
for that of others.
The
distinctive
to exclude
mal,
exclusion
This
of rules, therefore,
in the
consideration
feature
from
was determined
without
lies in their
ability to be for?
case factors whose
particular
to the particular
case at hand.
sound
and
conceptually
psychologi-
reference
formalism
its value
when
it is thought
desirable
to narrow
the decisional
opportunities
range of a certain class of decisionmakers.
I stress that all of this is compatible
with agnosticism
about how rulebound decisionmaking
to
in
to particular
applies
legal systems
general,
systems, or to particular
sary truth that legal systems
as rule-governed
institutions.
legal
are contextual
and economic
rather
simultaneously
rule to offer in this acontextual
about what if
setting my recommendations
or
other
should
in
any parts
any
legal system
operate
such a fashion. My goal is only to rescue formalism
from conceptual
banishment.
But having
been readmitted
to the community
of respectable
of the
American
or decisionmaking
to rule in any strong sense,
ideas, formalism,
according
still has the burden of showing that it is appropriately
used in a particular
decisional
domain.
IV.
The
Degrees
of
Restriction
I have thus
far presented
formalism
and maximally
contextual
particuas mutually
exclusive
of coexisting
within the
opposites,
incapable
same decisional
domain.
It may therefore
of
appear that the advantages
formalism
can be attained
a system willing
to accept some
only within
larism
proportion
of preposterous
results
and
only
within
a system
willing
to
have
545
Formalism
1988]
its decisionmakers
before
them.
might be possible,
Let us contrast
rule.
The
park"
ans' organization.
bicycle,
of the
two
that
situations
forms
come
of decisionmaking
however.
in the
arising out of the "No vehicles
the statue of the truck erected by the veter?
two cases,
first involves
both
emitting
cases, exclusion
The
second
of the object
behind
an electric
involves
under
consideration
would
not seem
of whether
the
to serve
the purpose
the limitation
rule, regardless
of noise, the reduction of noxious odors,
of forms of conveyance
of high speeds, or the restriction
likely to be dan?
to be a
there
their
to
Yet
appears
gerous
despite
similarity,
pedestrians.
the cases. The statue seems to lie more outside the
difference
between
purpose behind the rule than the golf cart. If we assume that something
vehicle is fur?
a totally immobile
like twenty miles per hour is dangerous,
ther away from the danger point than one that can go ten miles per hour.
a vehicle with a totally inoperative
engine
Similarly,
emits no more noxious
fumes than even an electric
makes
less noise
and
motor.
the decisionmaker
sionmaking
process? That is, can we empower
ride the rule when its application
would be totally preposterous,
when its application,
still outside the purpose of the rule, would
of the preposterous?
to over?
but not
fall short
distinguish
evidence"
"proof
from "a
"de
distinguish
The
of discretion"?
question
novo"
possible.
illusion.
decision
becomes
Pandora's
de novo,
Once
the record
below
of abuse
546
The
or whatever?is
to reach
An
Yale
Law
[Vol.
Journal
97:
509
wishes
a conclusion
alternative
no review and
posits some ground between
hypothesis
intrusiveness.
There might be cases in which the presumption
in favor of the result below would cause the decision to stand. Under this
unfettered
hypothesis,
presumptions?cases
in which
the pre?
but
circumstances
in particularly
sumption
might be overcome
exigent
nevertheless
controls in many or even most cases.
If this latter hypothesis
is correct, it is correct as a contingent
empirical
matter and not as a necessary
truth. My instincts are that it is sometimes
correct?that
at some
without
irrebuttable.
in some
times
This
domains
conclusion
being
that presumptions
create attitudes,
that I am more likely
believe, for example,
view
can matter
presumptions
is based on my also instinctive
and that attitudes
can matter. I
Moreover,
instructions
The
even
if attitudes
observation
can
be changed,
it may be that linguistic
effective
in accomplishing
those changes.
instructions
to adopt a certain attitude are
that such in?
proved by the observation
more
than
the
observation
that such
any
instructions
are sometimes
impotent
proves that they are never potent.
all of this, let me satisfy myself here with the unproved
empirical
conclusion
that linguistic
instructions
are sometimes
potent.
Given
If such
instructions
sometimes
create presumptions,
and if those pre?
sometimes
work, then what does this say about the possibility
sumptions
of what we might call a presumptive
In order to construct
formalism?
such a model, we would want to equate the literal mandate
of the most
written
rule with
be taken
to have
the judgment
of the court below. The
for example,
that in one
determined,
case operable
and operating
automobiles
are excluded
from the park, in
another case golf carts are excluded
from the park, and in a third case
immobile
statues of trucks are excluded
from the park. We can then
locally applicable
court below can
by the formalistic
and therefore
the formal mandate
would
reading,
In the second, a de novo application
of reasons
prevail uncontroversially.
would generate a different
result than that generated
by the rule, but the
result generated
the
rule
remains
"in
the
and therefore
is
by
ballpark"
Formalism
1988]
547
a theory of presumptive
formalism
there would be a pre?
the
of
the
result
literal
and largely aconsumption
generated
by
textual interpretation
of the most locally applicable
rule. Yet that result
such
in favor
would
be presumptive
cable
offered
exigent
especially
presumptively
applicable
Such a system would
reasons
for avoiding
the result
generated
by the
norm.
of predictability,
bring the advantages
stability,
of decisionmakers
with
associated
decision
ac?
commonly
to
but
would
the
occasional
rule,
cording
temper
unpleasant
consequences
of such a system with an escape route that allowed
some results to be
and
constraint
avoided
when
their
system
would
not
necessarily
sionmaker
would be especially
Such a
consequences
outrageous.
be without
cost. First of all, the escape route would
decrease
the amount
of predictability,
and deci?
stability,
restraint.
In short, it would diminish
the amount of ruleness by
in the decisionmaker
than in the rule. Sec?
placing more final authority
force attached to the formalist
ond, the presumptive
reading of the appli?
cable norms would still result in some odd or suboptimal
results. In this
sense, such a system
strained particularism
would
tical
would
fail to honor
or unrestrained
Even
decisional
either
were
of unre?
such
a system
for all prac?
on the assumption
that such a system might be desirable
this
does
not mean that all or part of what
domains,
in some
we com?
It might be
monly call the legal system might be one of those domains.
that formalism,
even only presumptively,
is a good idea, but that the goals
of the legal system, in light of the decisions
we ask it to make, are such
that it ought not to be designed
along such a model. More likely, formal?
ism ought to be seen as a tool to be used in some parts of the legal system
and not in others. Determining
which parts, if any, would be susceptible
to such
offer
treatment
is only
condemned.
That
548
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Yale
Law
Journal
can we determine
[Vol.
97:
what
kinds
509
of
tools
V.
I have concluded
Conclusion
this analysis
no more
by venturing
than
a prolegomethe pejorative
of the political
domains
of decisions
to presumptively
by force is amenable
if
But
even
the
of con?
we
aside
positivistic
decisionmaking.
put
question
crete applications,
the presumptiveness
that is central to this model may
illuminate
backed
It may be that,
condemn
neither
even
state
in some
the rule-based
the inevitable
over-
and
orientation
of a decisional
under-inclusiveness
structure
guise.
is to
nor
of any rule-based
when it is taken
sys?
It may be to condemn
such a system only
to be
absolute
rather than presumptive,
when it contains
no escape routes no
matter how extreme the circumstances.
Such a usage of "formalism"
is of
course much narrower
than is commonly
seen these days. But with that
narrower
is no longer
to be
usage we see that formalism
something
tem.
as a substitute
tral questions
involved
of the idea of law.
for argument
in determining
what,
and turn
instead
if anything,
to the cen?