Measuring Legal Formalism: Reading Hard Cases with Soft Frames

• Published date: 10 February 2012
• DOI: https://doi.org/10.1108/S1059-4337(2012)0000057008
• Pages: 161-199
• Date: 10 February 2012
• Author: Michal Alberstein

MEASURING LEGAL FORMALISM:

READING HARD CASES WITH SOFT

FRAMES

Michal Alberstein

ABSTRACT

The formality of modern law is a constitutive element in its operation, but

the ‘‘revolt against formalism’’ and the charge of mechanical jurispru-

dence are also as old as the law. This chapter focuses on formalism in

legal decision-making in hard cases and assumes that contemporary

decision-making in law combines formalistic with nonformalistic expres-

sions as part of its routine operation. The research develops a sensitive

multidimensional measure that will be used to evaluate legal texts by

examining various vectors of formalism. It begins by exploring diverse

jurisprudential cultures of formalism, which have developed mainly in

American legal thought. Based on the historical analysis of cultures of

formalism, the chapter continues to frame eight claims of formalism that

have all been contested in legal writing. It proposes to examine the

following parameters, based on these claims: (1) the introduction

and framing of the legal question; (2) the use of extralegal arguments;

(3) reliance on policy arguments and on legal principles; (4) reference to

discretion and choice; (5) the relationship between what is presented as

facts and what is presented as norms; (6) preservation of traditional

boundaries in law; (7) the use of professional judicial rhetoric; (8) the

Studies in Law, Politics, and Society, Volume 57, 161–199

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000057008

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gap between law in the books and law in action; and (9) judicial stability

and institutional deference. Each of these parameters can be used to

evaluate the level of formalism in a concrete text. The interplay between

diverse evaluations of the same case is a subject for inquiry and

contemplation. These parameters can also be redefined as variables for a

quantitative content analysis, and legal decisions can be coded accordingly.

This will enable an analysis of differences between justices, legal issues,

legal jurisdictions, and time frames, as well as the correlation between the

various parameters of formalism. The tendency to formalism, according to

the analysis here, is never pure and is part of a complex legal culture that

usually combines formalistic elements with nonformalistic ones.

INTRODUCTION

The formality of law is an inherent quality that is present in all its

institutional manifestations (Summers, 1992, 1997). Legal rules, legal

decisions, legal fields, and legal jurisdictions are all based on formal

differentiations, and mastering the order and reason underlying legal

categories is an important component in the qualification of any lawyer.

Although formal applications of the law are considered the rule, much of

legal education focuses on problematic cases in which the formal application

of law is a subject of controversy, and the question of the existence of one

formal solution is in itself a subject of inquiry (H.L.A. Hart, 1961;Horwitz,

1977;Kennedy, 1973, 1997;Unger, 1986). Legal decision-making by judges,

especially Supreme Court and appeal court judges, is one of the important

areas in which the formality of law is questioned and debated and will be the

focus of this chapter.

1

In an interesting way, especially in hard cases when

legal controversies and multiple interpretations exist, some systematic

deviations from formal principles can be found in the writing of judges.

These deviations are the focus of evaluation and inquiry in this research.

Every legal system addresses the tension between rules and values or other

considerations beyond rules, and for more than a century, formalism has

been the target of theoretical attacks. Legal formalism, as an overemphasis

on rules, has become more suspect and condemned as part of a bro ader

modern attack on formalist thinking, which pervades many academic

disciplines such as philosophy, history, and economics (White, 1947). Within

the legal context, the Legal Realist movements and other legal movements

have developed a systematic critique of fundamental assumptions regarding

MICHAL ALBERSTEIN162

legal decision-making, and the notion of formalism is used today in a

pejorative way, signifying rigidity and lack of sophistication (H.L.A. Hart,

1958;Schauer, 1989).

At the same time, the aspiration for legal formality in decision-making

has always remained an important ideal in legal practice. The notion of

formal language, which is not contaminated by politics, morality, or

emotions, is central to teaching and practicing law and oscillation between

formal and nonformal argumentation has been part of legal writing. In

jurisprudential thought, there have been a number of efforts to reconstruct

legal formalism by overcoming the critique of the Realist movement (Peller,

1988). Some scholars developed a new legal language of policies and

purposive interpretation (H.M. Hart & Sacks, 1994). Others have suggested

substituting adherence to rules with coherence of principles in an

interpretive quest for integrity (Dworkin, 1978, 1986;Weinrib, 1988). Some

scholars have invoked external sciences such as economics (Posner, 2007),

suggesting that objectivity can be achieved by following formal economics

and imitating the market. Other theoreticians of law have defended legal

formalism and emphasized the importance of certain of its tenets (Schauer,

1989;Weinrib, 1988).

The purpose of this research is not to promote or reject legal formalism

and not to evaluate it as an all or nothing phenomenon. The purpose is,

rather, to examine the manifestations of formalist and antiformalist

expressions in precedential legal decisions.

2

The claim in this chapter is that

the form-scale of typical hard cases in legal decision-making is inherently

diverse, and judges combine formalistic with nonformalistic elements in

order to produce legitimacy and communicability. In contrast to the divide

between formalism and values, which often frames the debate on formalism

as related to political struggles between right and left, the claim here is that

only a nuanced report on the various measures of formalism and the interplay

among them is a correct approach to the phenomenon of formalism.

The notion of formalism is analyzed in this chapter as a social construct

that contains diverse jurisprudential cultures. In contrast to more

conceptual and analytic accounts of the formality of law (Summers,

1997), which focus on the characteristics of legal rules or of the legal system

as a whole, formalism is analyzed here as a cultural phenomenon, which

entails rigid adherence to basic professional tenets of modern law.

Formalism includes rigid assumptions about fact-finding, relations between

legal decision-making and reality, the level of discretion and creativity and

style in decision-making.

3

Formalism is defined according to various

(eight) claims of law that are related to its operation as a distinct language.

Measuring Legal Formalism: Reading Hard Cases with Soft Frames 163