Legal Formalism (A Refresher on Form)

O.K. for you law people, this will all be pretty familiar.   For you non-law people, this is  an acid challenge—a test of your tolerance for excruciatingly picayune legal exegesis.   One bit of solace I can offer you is that, conveniently, you need not know or learn any law here.  What will be important here is not the substance or the semantics, but the form and the grammar.    The other bit of solace I can offer is that formalism in law bears some similarity to (some) formalism in other domains.   William James, the great American pragmatist, was on to this:

In manners we find formalists and free-and-easy persons. In government, authoritarians and anarchists. In literature, purists or academicals, and realists. In art, classics and romantics. You recognize these contrasts as familiar; well, in philosophy we have a very similar contrast expressed in the pair of terms “rationalist” and “empiricist,” “empiricist” meaning your lover of facts in all their crude variety, “rationalist” meaning your devotee to abstract and eternal principles. No one can live an hour without both facts and principles, so it is a difference rather of emphasis; yet it breeds antipathies of the most pungent character between those who lay the emphasis differently; and we shall find it extraordinarily convenient to express a certain contrast in men’s ways of taking their universe, by talking of the “empiricist” and of the “rationalist” temper. These terms make the contrast simple and massive.

I will add, at the risk of a certain juridical parochialism and a total neglect of theological precedent, that legal formalism (or Langdellian formalism, as I will call it) is—well, it’s almost the pure form.  Exquisite in its exactitude and decisive in its determinations.   At least, that was the plan.

So being duly forewarned, begin with the observation that in trying to understand an ideational construct (in this case, Langdellian formalism) it is often helpful to have a view of the problem the construct seeks to address.  Here, the answer is relatively easy to come by, at least on a superficial level.  Christopher Columbus Langdell was seeking to present law as a science (in its nineteenth century sense) and thus he sought to impose a certain taxonomy on the unruly set of case precedents in his fields.  This was to be the sort of  taxonomy through which, among other things, it could be determined, whether a case had been correctly decided or not.

Taxonomic construction and classification was a serious business back then.   And indeed, much of the work of American legal academics celebrated at that time consisted of building elaborate conceptual taxonomies in order to facilitate the task of classification.   To give a flavor of the style, let me quote from the beginning of Christopher Columbus Langdell’s article entitled A Brief Survey of Equity Jurisdiction, 1 Harv. L. Rev. 55 (1887) which ironically (and not)  goes on for several separate installments.  Here goes then—this is from the second paragraph of the introduction.  (Pay no attention to the substance or to reverse the Holmesian edict: think words, not things.)

Rights are either absolute or relative.  Absolute rights are such as do not imply any correlative duties.  Relative rights are such as do imply correlative duties.

Or to put it differently:

Moving on then:

Absolute rights are of two kinds or classes: First, those rights of property which constitute ownership or dominion as distinguished from rights in the property of another,–jura in re aliena; secondly, personal rights….

With this further specification, we have:

This rigorous concept-splitting then carries over to the second page of the article, where we find out that:

Obligations are either personal or real, according as the duty is imposed upon a person or thing….

And from thence onto the next page where things really pick up:

Every violation of a right is either a tort or a breach of obligation.  Every violation of an absolute right is, therefore,…

Or accordingly:

I think that pretty much exemplifies the style.  Here’s another way to think about it. (This will resonate with law students.)

And another way (which will also resonate with law students.)

For those of you who are beginning to tire of this style–to feel the incipient impingements of a closed juridical universe, know that you are not the first. See for example here.

Moreover, if you are not the first, neither are you likely to be the last–for, in law at least, the aesthetics of formalism repeat themselves. Indeed, there seems to be something about law or maybe the disciplines generally that prompts and motivates the rebuilding of formalism over and over again (and, of course, the tearing down as well) with both happening more or less simultaneously.   If so, then maybe we should start thinking about all this in terms of different moments–formalization and deformalization, paying greater attention to their distribution… what gets formalized and what doesn’t when?

[To be continued…. ]

This entry was posted in Experimental, Nature/Culture, Random Jurisprudence, The BAT Cave and tagged , , , , . Bookmark the permalink.

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