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The Yale Law Journal
Volume 97, Number 4, March 1988
Article
Formalism
Frederick Schauer*
Legal decisionsand theories arefrequently condemned asformalistic,yet little
discussion has occurredregardingexactly what the term "'formalism"means.
In thisArticle, ProfessorSchauer examines divergent uses of the term to elucidate
its descriptivecontent. Conceptions offormalism, he argues, involve the
notion that rules constrict the choice of the decisionmaker. Our aversion to
formalism stemsfrom denial that the language of rules either can or should
constrict choice in this way. Yet ProfessorSchauer arguesthat this aversion to
formalism should be rethought:At times language both can and should restrict
decisionmakers.Consequently,the term "'formalistic"should not be used
as a blanket condemnation of a decisionmaking process; instead the debate
regardingdecision accordingto rules should be confronted on its own terms.
With accelerating frequency, legal decisions and theories are condemned
as "formalist" or "formalistic." But what is formalism, and what
is so bad about it? Even a cursory look at the literature reveals scant
agreement on what it is for decisions in law, or perspectives on law, to be
* Professor of 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 indebted to 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.
The Yale Law Journal
formalistic, except that whatever formalism is, it is not good.' Few judges
or scholars would describe themselves as formalists, for a congratulatory
use of the word "formal" seems almost a linguistic error. Indeed, the pejorative
connotations of the word "formalism," in concert with the lack of
agreement on the word's descriptive content, make it tempting to conclude
that "formalist" is the adjective used to describe any judicial decision, style
of legal thinking, or legal theory with which the user of the term
disagrees.
Yet this temptation should be resisted. There does seem to be descriptive
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
numerous uses, lies the concept of decisionmaking according to rule. Formalism
is the way in which rules achieve their "ruleness" precisely by
doing what is supposed to be the failing of formalism: screening off from a
decisionmaker factors that a sensitive decisionmaker would otherwise take
into account. Moreover, it appears that this screening off takes place
largely through the force of the language in which rules are written. Thus
the tasks performed by rules are tasks for which the primary tool is the
specific linguistic formulation of a rule. As a result, insofar as formalism
is frequently condemned as excessive reliance on the language of a rule, it
is the very idea of decisionmaking by rule that is being condemned, either
as a description of how decisionmaking can take place or as a prescription
for how decisionmaking should take place.
Once we disentangle and examine the various strands of formalism and
recognize the way in which formalism, rules, and language are conceptually
intertwined, it turns out that there is something, indeed much, to be
said for decision according to rule-and therefore for formalism. I do not
argue that formalism is always good or that legal systems ought often or
1. See, e.g., H.L.A. HART, THE CONCEPT OF LAW 124-30 (1961) (formalism as refusal to acknowledge
necessity of choice in penumbral area of rules); M. HORwrrz, 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 canonically written language of rules); R. UNGER, THE CRITICAL LEGAL STUDIES
MOVEMENT 1-2 (1986) (formalism as constrained and comparatively apolitical decisionmaking);
Kennedy, Legal Formality,2 J. LEGAL STUD. 351, 355 (1973) (formalism as view that rule application
is mechanical and that mechanical rule application is just); Strauss, Formal and Functional
Approaches to Separation-of-PowersQuestions-A Foolish Inconsistency?, 72 CORNELL L. REV.
488, 489 (1987) (formalism as refusal to acknowledge practical consequences of judicial decisions);
Tushnet, Anti-Formalism in Recent ConstitutionalTheory, 83 MICH. L. REV. 1502, 1506-07 (1985)
(formalism as artificial narrowing of range of interpretive choices).
One can avoid the confusion of multiple usage by simply stipulating a meaning for the term "formalism."
See, e.g., Posner, Legal Formalism,Legal Realism, and the InterpretationofStatutes 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
interpretation of 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 broader range of issues. In the process, I will explore the way in which deduction, even in
Posner's sense, may be related to the interpretation of canonical texts. See infra note 48.
[Vol. 97: 509
Formalism
even ever be formalistic. Nevertheless, I do want to urge a rethinking of
the contemporary aversion to formalism. For even if what can be said for
formalism is not in the end persuasive, the issues should be before us for
inspection, rather than blocked by a discourse of epithets.
I. FORMALISM AS THE DENIAL OF CHOICE
A. Choice Within Norms
Few decisions are charged with formalism as often as Lochner v. New
York.2 But what makes Justice Peckham's majority opinion in Lochner
formalistic? Surely it is not just that the Court protected an unrestricted
privilege of labor contracting against the first stirrings of the welfare state.
For the Court to make such a political decision under the rubric of broad
constitutional clauses like "liberty" is a far cry from what seems to be
meant when decisions are criticized as being formal. To the extent that
the charge of formalism suggests narrowness, Lochner is hardly a candidate.
We criticize Lochner not for being narrow, but for being excessively
broad.
Although Lochner is criticized for the length of its reach, a closer look
reveals that it is not the result that is condemned as formalistic but rather
the justification for that result. The formalism in Lochner inheres in its
denial of the political, moral, social, and economic choices involved in the
decision, and indeed in its denial that there was any choice at all. Justice
Peckham simply announced that "[t]he general right to make a contract in
relation to his business is part of the liberty of the individual protected by
the Fourteenth Amendment"' and that "[t]he right to purchase or to sell
labor is part of the liberty protected by this amendment."4 To these pronouncements
he added the confident statement that "[olf course the liberty
of contract relating to labor includes both parties to it."5
Justice Peckham's language suggests that he is explaining a precise
statutory scheme rather than expounding on one word in the Constitution.
It is precisely for this reason that his opinion draws criticism. We condemn
Lochner as formalistic not because it involves a choice, but because
2. 198 U.S. 45 (1905). For condemnations of Lochner (and the era of which it is taken to be
archetypal) as formalistic, see Gordon, CriticalLegal Histories, 36 STAN. L. REV. 57, 99 (1984);
Peller, The Metaphysics ofAmerican 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
ConstitutionalLaw, 96 YALE L.J. 1006, 1006-07 (1987); Developments in the Law-Immigration
Policyand the Rights ofAliens, 96 HARV.L. REV. 1286, 1292 (1983); Note, The Constitutionalityof
Rent Control Restrictionson PropertyOwners' Dominion Interests, 100 HARV. L. REV. 1067, 1077
(1987); Note, Formalism,Legal Realism, and ConstitutionallyProtectedPrivacy Under the Fourth
and Fifth Amendments, 90 HARM. L. REV. 945, 951 (1977); Powers, Book Review, 1985 DUKE L.J.
221, 232; Rotenberg, Politics, PersonalityandJudging: The Lessons of Brandeis and Frankfurter
onJudicialRestraint (Book Review), 83 COLUM. L. REV. 1863, 1875 n.60 (1983).
3. 198 U.S. at 53.
4. Id.
5. Id. at 56.
1988]
The Yale Law Journal [Vol. 97: 509
it attempts to describe this choice as compulsion.6 What strikes us clearly
as a political or social or moral or economic choice is described in Lochner
as definitionally incorporated within the meaning of a broad term. Thus,
choice is masked by the language of linguistic inexorability.
When I say that pelicans are birds, the truth of the statement follows
inexorably from the meaning of the term "bird." If someone disagrees, or
points at a living, breathing, flying pelican and says "That is not a bird,"
she simply does not know what the word "bird" means.' We criticize
Lochner as formalistic because it treats the word "liberty" (or the words
"life, liberty, or property, without due process of law") as being like the
word "bird" and the privilege of contracting as being like a pelican, i.e.,
subsumed in the broader category. According to the reasoning in Lochner,
if you don't know that contracting for labor without governmental control
is an example of liberty, then you just don't know what the word "liberty"
means.
Lochner is condemned as formalistic precisely because the analogy between
pelicans (as birds) and unrestricted contracting (as liberty) fails.
One can understand much about the concept of liberty and about the word
"liberty" and yet still deny that they include the privilege of unconstrained
labor contracting.8 Thus, a decisionmaker who knows or should
6. This was noted by Holmes in his now-famous observation, "General propositions do not decide
concrete cases." Id. at 76 (Holmes, J., dissenting).
7. Of course when I use the term "inexorable," I do not mean that the world and our language
could not have been otherwise; the word "bird" could have referred to frogs instead of pelicans, or to
only puffins, robins, and sparrows, but not pelicans, ostriches, and condors. Definitions are contingent
and subject to change, and therefore the word "bird" might yet come to be the word that speakers of
English use to refer to frogs, or only to small and not to large birds. Yet although there remains a
possibility that the word "bird" will come to mean these things, this is only a possible world-it is not
our world. In our world, the exclusion of frogs and the inclusion of large birds is definitionally part of
the meaning of the word "bird." As I argue below, see infra notes 56-57 and accompanying text, the
contingency of definition hardly entails the view that it is within the province of any one actor, legal
or otherwise, to change it. Neither you nor I have the power to make it proper to use the word "bird"
to refer to a frog, even though the word "bird" could in another world be used to refer to frogs.
8. The extent to which this is true for morally and politically loaded words such as "liberty" is
likely to vary with time, place, and culture. Take, for example, the transformation of the "honor
codes" at various venerable universities. These codes were phrased in quite general terms at their
inception in the 18th and 19th centuries because these schools contained homogeneous student bodies
who shared a common conception of the type of conduct definitionally incorporated within the word
"honor." If a person thought that purchasing a term paper from a professional term paper service was
consistent with being honorable, then that person simply did not know what "honor" meant. As
values have changed and as student bodies have become less homogeneous, however, shared definitions
of terms such as "honor" have broken down. Some people now do think that buying a term paper can
be honorable, and this breakdown in shared meaning has caused general references to "honor" to be
displaced in such codes by more detailed rules. There may now be little shared agreement about what
the precept "be honorable" requires, but there is considerable agreement about what the rule "do not
purchase a term paper" requires.
Thus, the criticism of Lochner and its ilk as "formalistic" in the sense discussed in the text is
ambiguous. The critic could mean that the term we now take to be susceptible to debate was not as
debatable at the time of the relevant decision. But this would hardly explain the pejorative, unless we
want to condemn an entire era and the conceptual and linguistic apparatus that reflected its understandings.
The alternative is that the term "formalism" charges that there was at the time room for
debate about the application of the general term to the particular case, but the relevant decisionmakers
either did not recognize that fact (perhaps because they refused to look outside their own socioeco-
512 ,
Formalism
know that such a choice is open, but treats the choice as no more available
than the choice to treat a pelican as other than a bird, is charged with
formalism for treating as definitionally inexorable that which involves
nondefinitional, substantive choices.'
Lochner is merely one example in which a false assertion of inexorability
is decried as formalistic. Much contemporary criticism of Blackstone,
Langdell, and others of their persuasion attacks their jurisprudence on
similar grounds.10 They stand accused of presenting contestable applications
of general terms as definitionally incorporated within the meaning of
the general term. It is important, however, to understand the relationship
between the linguistic and the ontological questions for those of Blackstone's
vision. Blackstone's view that certain abstract terms definitionally
incorporate a wide range of specific results is tied intimately to his perception
of a hard and suprahuman reality behind these general terms. If the
word "property," for example, actually describes some underlying and
noncontingent reality, then it follows easily that certain specific embodiments
are necessarily part of that reality, just as pelicans are part of the
underlying reality that is the universe of birds. These instantiations might
still follow even if the general term is not a natural kind whose existence
and demarcation is beyond the control of human actors. There is nothing
natural or noncontingent about the term "basketball," but it is nevertheless
an error in this culture at this time to apply that word to a group of
people hitting small hard balls with one of a collection of fourteen different
sticks. Still, linguistic clarity and rigidity are both facilitated insofar as
the words track the natural kinds of the world. To the extent that Blackstone
and others believed that categories like liberty, property, and contract
were natural kinds rather than human artifacts, they were less likely
to perceive the choices we would now not think to deny. When one believes
that a general term reflects a deep reality beyond the power of
human actors, the view that certain particulars are necessarily part of that
reality follows with special ease.
Thus, one view of the vice of formalism takes that vice to be one of
deception, either of oneself or of others. To disguise a choice in the lannomic
and political class) or intentionally chose to hide it.
9. Formalism may be more broadly viewed as extending to any justification that treats as inexorable
a choice that is not. In this broader sense, the claimed inexorability might come from something
other than rule formulations. To mask, for example, a political, moral, or social choice in the language
of "original intent" when original intent in fact does not provide a uniquely correct answer to
the issue might be considered formalistic in the same way that masking a political, moral, or social
choice in the language of the meaning of a rule is considered formalistic when that language does not
provide a uniquely correct answer. Similarly, masking choice in the language of mathematical economic
derivation or in the language of a unique solution to some "balance" might be considered
formalistic if these methods are in fact comparatively indeterminate.
10. See, e.g., Grey, Langdell'sOrthodoxy, 45 U. PITT. L. REv. 1 (1983); Hart, Positivismand
theSeparation ofLaw and Morals,71 HARV. L. REV. 593, 610 (1958); Kennedy, The Structure of
Blackstone's Commentaries, 28 BUFFALO L. REv. 205 (1979); Lyons, Legal Formalism and Instrumentalism-A
PathologicalStudy, 66 CORNELL L. REV. 949, 950 (1981).
1988]
The Yale Law Journal
guage of definitional inexorability obscures that choice and thus obstructs
questions of how it was made and whether it could have been made differently.
Use of the word "formalism" in this sense hinges on the existence of
a term (or phrase, sentence, or paragraph 1 ) whose contested application
generates the choice. Some terms, like "liberty" and "equality," are pervasively
indeterminate.It is not that such terms have no content whatsoever;
it is that every application, every concretization, every instantiation
requires the addition of supplementary premises to apply the general term
to specific cases.12 Therefore, any application of that term that denies the
choice made among various eligible supplementary premises is formalistic
in this sense."'
More commonly, however, the indeterminacy to be filled by a decisionmaker's
choice is not pervasive throughout the range of applications of
a term. Instead, the indeterminacy is encountered only at the edges of a
term's meaning. As H.L.A. Hart tells us, legal terms possess a core of
settled meaning and a penumbra of debatable meaning. 4 For Hart, formalism
derives from the denial of choice in the penumbra of meaning,
where applying the term in question is optional. Thus, Hart conceives of
formalism as the unwillingness to acknowledge in cases of doubtful application,
such as the question of whether a bicycle is a vehicle for purposes
of the prohibition on vehicles in the park, that choices must be made that
go far beyond merely ascertaining the meaning of a word.
Hart's conception of formalism 5 is closely aligned with that undergirding
those who criticize both Blackstone and Lochner. 6 Hart's formalist
takes the penumbra to be as clear as the core, while the Lochner formalist
takes the general term to be as determinate as the specific. Both
deny the extent of actual indeterminacy, and thus neither admits that the
application of the norm involves a choice not determined by the words of
the norm alone.
11. See infra note 85.
12. For a discussion of the often-ignored necessity of relying on such supplementary premises in
the application of the term "equality," see Westen, The Empty Idea of Equality, 95 HARv. L. REV.
537 (1982). 1 disagree, however, with Westen's argument that the necessity of adding those supplementary
premises to give the primary term meaning renders the primary term superfluous. Because a
term is not self-standing does not mean that it serves no purpose, even if it needs external assistance in
order to serve that purpose.
13. On the choices necessitated (but often denied) by general terms, see Cohen, Transcendental
Nonsense and the FunctionalApproach, 35 COLUM. L. REV. 809 (1935); Dewey, Logical Method
and Law, 10 CORNELL L.Q. 17 (1924); Honvitz, Santa Clara Revisited. The Development of Corporate
Theory, 88 W. VA. L. REV. 173, 175-76 (1985); Singer, The Player and the Cards: Nihilism
and Legal Theory, 94 YALE L.J. 1, 9-25 (1984).
14. Hart, supra note 10, at 608-12; see also H.L.A. HART, supra note 1, at 121-50.
15. H.L.A. HART, supra note 1, at 121-50; Hart, supra note 10, at 608-12.
16. See, e.g., Gordon, supra note 2; Grey, supra note 10; Peller, supra note 2.
[Vol. 97: 509
Formalism
B. Choice Among Norms
Implicit in Hart's conception of formalism is the view that in the core,
unlike in the penumbra, legal answers are often tolerably determinate.
Even if this is true, and I will examine this claim presently, the possibility
remains that a decisionmaker has a choice of whether or not to follow a
seemingly applicable norm even in its core of meaning. The question in
this case is not whether a bus is a vehicle, or even whether the core of the
rule excludes buses from the park, but whether the rule excluding vehicles
must be applied in this case. At times a decisionmaker may have a choice
whether to apply the clear and specifically applicable norm. In such cases
we can imagine a decisionmaker having and making a choice but denying
that a choice was in any way part of the process. Thus, a variant on the
variety of formalism just discussed sees formalism as involving not denial
of the existence of choices within norms, but denial that there are frequently
choices about whether to apply even the clear norms.
As an example of this type of formalism, consider the unreported and
widely unknown case of Hunter v. Norman.1" Hunter, an incumbent
state senator in Vermont seeking re-election, filed his nominating petition
in the Windsor County Clerk's office on July 21, 1986 at 5:03 p.m. In
doing so he missed by three minutes the petition deadline set by title 17,
section 2356, of the Laws of Vermont.18 The statute provides, in its entirety,
that "Primary petitions shall be filed not later than 5:00 p.m. on
the third Monday of July preceding the primary election prescribed by
section 2351 of this title, and not later than 5:00 p.m. of the forty-second
day prior to the day of a special primary election." 9 The Windsor
County Clerk, Jane Norman, duly enforced the statute by refusing to accept
Hunter's petition, observing that "I have no intention of breaking the
law, not for Jesus Christ himself."20 Hunter's name, consequently, was to
be withheld from appearing on the September Democratic primary election
ballot.
Hunter, not surprisingly, took his disappointment to the courthouse and
filed an action in equity against Norman for extraordinary relief.2" 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 conversation with 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 extraordinary legal remedy of
mandamus or a mandatory injunction in equity.
19881
The Yale Law Journal
the necessity of signing forms consenting to his nomination. In fact, these
consent forms were not due until a later date. Hunter claimed that had he
not been led to appear in person by receiving this erroneous advice, the
petition would have been filed earlier in the day. He argued that in light
of the erroneous information given to Hunter by the Clerk's office, the
clerk (and the state) were estopped from relying on the statutory deadline.
In support of this proposition, Hunter offered Ryshpan v. Cashman,2 2 in
which the Vermont Supreme Court, on similar facts, held that because
"reliance on erroneous actions on behalf of the State has put . . . its citizens
in inescapable conflict with the literal terms of one of the time requirements
instituted by that same sovereignty . ..[t]he statutory time
schedule must . . . as a matter of equity . . . yield.' 23
Ultimately, Hunter prevailed, and it appears that Ryshpan v. Cashman
saved the day-or at least saved Hunter's day. Ryshpan therefore seems
to have operated as an escape route from the. rigors of the statute. Suppose,
however, that everything in Hunter's case had been the same, including
the existence of Ryshpan, but that the judge had ruled against
Hunter solely on the basis of the statutory language. Had this hardly unrealistic
alternative occurred, it would seem but a small step from the
brand of formalism discussed above to a formalist characterization of this
hypothetical decision. As long as Ryshpan exists, the judge has a choice
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 of choice would therefore deny the reality of the choice that was
made. The crux of the matter is that this choice was present as long as
Ryshpan existed, whether the judge followed that case or not. The charge
of formalism in such a case would be but a variation of formalism as the
concealment of choice: Instead of a choice within a norm, as with either
pervasively indeterminate language or language containing penumbras of
uncertainty surrounding a core of settled meaning, here the choice is between
two different norms.
This variation on Ryshpan reveals the reasons we condemn the masking
of choice. When the statute and Ryshpan coexist, neither determines
which will prevail. Thus, the choice of the escape route represented by
Ryshpan over the result indicated by the statute, or vice versa, necessarily
would be made on the basis of factors external to both. These factors
might include the moral, political, or physical attractiveness of the parties;
the particular facts of the case; the judge's own views about deadlines; the
judge's own views about statutes; the judge's own views about the Vermont
Supreme Court; the judge's own views about clerks of courts; and so
on. Yet were any of these factors to cause a particular judge to decide that
22. 132 Vt. 628, 326 A.2d 169 (1974).
23. Id. at 630-31, 326 A.2d at 171.
[Vol. 97: 509
19881 Formalism 517
the statute should prevail, mere citation of the statute as inexorably dictating
the result would conceal from the litigants and from society the actual
determinative factors. Insofar as we expect the reasons for a decision to be
open for inspection (and that, after all, is usually the reason judges write
opinions),2' failure to acknowledge that a choice was made can be criticized
because knowing how the choice was made helps to make legitimate
the products of the system.
C. Is There Always a Choice?
Ryshpan v. Cashman is a trifle obscure, but it is hardly unique. Consider
the number of Ryshpan equivalents that allow decisionmakers to
avoid the specific mandates of a particular rule. A decisionmaker may determine
that the literal language of a rule does not serve that rule's original
intent, as the Supreme Court has interpreted the Civil Rights Act of
1964,5 the contracts clause of the Constitution,"6 and the Eleventh
Amendment.1 7
Or a decisionmaker may apply the 'mischief rule" or its
variants to determine that a literal application of the rule would not serve
the rule's purpose.28
Or a decisionmaker may apply a more general rule
that denies relief to a claimant entitled to relief under the most locally
applicable rule; 29
for example, 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 ofJudicial Candor, 100 HARv. L. Ry. 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 legitimately may depart from a reflection of the process that generated it. While recognizing
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. Say. & Loan Ass'n v. Guerra, 107 S. Ct. 683, 691 (1987); United
Steelworkers v. 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 unnecessarily restricts the meaning of the term "purpose." Purpose gleaned
from the words of a rule itself should not be confused with the psychological intentions of the drafters.
Consider a rule which specifically excludes from a park children, radios, musical instruments, dogs
but not cats, 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 psychological intentions 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 involving
a dog, more locally applicable than "animals should be restrained." Similarly, "beneficiaries
named by the testator are to inherit according to 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 applicability captures
our intuition that a more specifically applicable rule is somehow more applicable than a less specifically
applicable, but still applicable, rule.
The Yale Law Journal
unclean hands or laches, 0 the legal principle of in pari delicto,3 1 or the
civil law principle of abuse of right.3
Any reader of this article could
easily add to this list. s
Yet, what if none of these established routes were available in a particular
case-would a judge then be forced to apply the specifically applicable
rule? To answer this question, let us examine another variation on
Hunterv. Norman. Suppose that Ryshpan v. Cashman did not exist, but
that everything else about the facts and the applicable law in Hunter remained
the same. What choices, if any, would be open to the judge? The
judge could, of course, simply hold that the statute applied and rule
against Hunter. But must he? Could the judge instead "'create" Ryshpan
by concluding that Hunter should win because he was misled by the
clerk's office?
This option of creating Ryshpan does not seem inconsistent with the
way the American legal system operates. Despite the lack of 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 call for an investigation of the judge's competence, as someone
might had the judge ruled for Hunter because Hunter was a Capricorn
and Norman a Sagittarius. If the creation of such an escape route would
be consistent with American judicial traditions, then the judge can be seen
to have had a choice between deciding for Hunter and deciding for Norman
even without Ryshpan. Thus a judge who ruled against Hunter on
the basis 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 from a state official. Rather, the judge would justify this conclusion
by reference to general principles that lurk in various corners of
the legal system. For example, the judge might say that, as a general principle,
parties are estopped from relying on laws whose contents they have
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) thereinafter
LAW'S EMPIRE] and R. DWORKIN, TAKING RIGHTS SERIOUSLy 23 (1977) [hereinafter TAKING
RIGHrs SERIoUsLy], presents a similar issue. Riggs is significant because the most locally applicable
legal rule, the relevant statute of wills, would allow the murdering heir to inherit. Only the imposition
of the less locally applicable general principle that no person should profit from his own wrong allowed
the court to avoid the result indicated by the most directly applicable legal norm. From the
perspective of the result dictated by the most immediately applicable legal rule, Riggs is not a hard
case, but an easy one. Understanding Dworkin's enterprise requires an understanding of his attempt
to explain the ways in which the result "easily" dictated by the most locally applicable rule frequently
yields to less locally applicable legal and nonlegal norms. See Schauer, TheJurisprudenceof Reasons
(Book Review), 85 MIcH. L. REv. 847 (1987).
32. See generally Gutteridge, Abuse of Rights, 5 CAMBRIDGE L.J. 22 (1935) (discussing possibility
of incorporating principle forbidding exercise of legal rights for purposes of malevolence).
33. See Singer, supranote 13, at 17-18.
[Vol. 97: 509
1988] Formalism 519
misstated to the disadvantage of another; a decision against the clerk
would be merely a specific instance of the application of that general principle.
Or, the judge might cite other particular principles, such as the
principle of reliance in securities law, and analogize this case to those."'
Under either analysis the judge would attempt to ground the new principle
in some already existing principle.
On the basis of these variations, we can distinguish three possible models
of escape route availability. Under one model, the existing escape
routes in the system represent an incomplete list of principles to ameliorate
the rigidity of rules, and the judge may add to this list where amelioration
is indicated but no applicable ameliorative principle exists. In such
instances, the judge might discuss justice or fairness or some other general
value and explain why this value supports the creation of a principle like
that in Ryshpan v. Cashman. The implicit ideal of this system is the
availability of an ameliorative principle whenever the circumstances demand
it. Thus the judge who creates a new ameliorative principle on an
appropriate occasion furthers the goals of this system.
Alternatively, we could develop a model of a system in which there is
already a more or less complete stock of ameliorative principles. In such a
system, a judge would always have some escape route available if all the
circumstances indicated that the applicable norm was not the best result to
be reached in that case. If Ryshpan itself did not exist, the judge would be
able to pick other extant ameliorative principles that would get Hunter's
name on the ballot.
Both the first model, which resembles Dworkin's account of the law, 5
and the second, which borrows from Llewellyn's, 6 acknowledge the pervasiveness
of judicial choice in their recognition of the judge's opportunity
(or perhaps even obligation) to avoid the arguably unjust consequences of
mechanical application of the most directly applicable legal rule. If either
of these models is an accurate rendition of some legal system, then a decisionmaker
within such a system who simply applies the most directly applicable
legal rule without further thought or explanation either denies
herself a choice that the system permitted or required, or denies to others
an explanation of why she chose not to use the escape routes permitted by
the system. This failure to explain the choice to apply the most locally
applicable rule is simply a variation on the more egregious forms of formalism
as denial of choice.3
34. Use of precedent is not as simple as I make it out to be here, but these subtleties of precedential
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 avoidance where none exist, whether
The Yale Law Journal
These two models-one allowing the creation of rule-avoiding norms,
and the other presenting a complete list of such norms for use 3 -must be
contrasted with a third model. Under this third model, the stock of extant
rule-avoiding norms is not temporarily incomplete but completable, as in
the first model, nor is it complete, as in the second. Instead, it is both
incomplete and closed. A decisionmaker will therefore be confronted with
situations in which the immediately applicable rule generates a result the
decisionmaker wishes to avoid but for which the system neither contains
an escape route nor permits one to be created. Under this model, a judge
who followed the rule-rather than the course she otherwise would have
taken on the basis of all relevant factors-would not have acted formalistically
in the sense now under discussion. Where there was no choice, a
decisionmaker following the mandates of the most directly applicable
norm could not be accused of having a choice but denying its existence.
If we can imagine a model in which a rule-avoiding norm is both nonexistent
and precluded in some instances, then we can also imagine a
model in which no rule-avoiding norms exist at all. In such a system, a
decisionmaker would be expected simply to decide according to the rule
when there was a rule dealing specifically with the situation. Because
there was no choice to be made, the decisionmaker could not be charged
with masking a choice.
This third model presents the conceptual possibility of a different type
of formalism than that which has been the focus of this section. In this
third model, the charge of "formalism" would possess a different significance
than in the other two models, for the decisionmaker accused of being
formalistic might not be denying a choice made in the decisionmaking
process, but might never have had a choice at all. To investigate the possibility
of this type of formalism we must determine whether a system can
truly foreclose choices from the decisionmaker. It is to this issue that I
now turn.
II. FORMALISM AS THE LIMITATION OF CHOICE
A. Can Language Constrain?
Each of my variations on Hunter v. Norman presupposed that the
judge reached a conclusion that was not influenced by the language of the
judges in fact create such norms, and whether a sufficient stock of rule-avoiding norms exists such that
judges need only apply them are all unavoidably empirical questions. See Kennedy, Toward a Critical
Phenomenology ofJudging, 36 J. LEGAL EDUC. 518, 547-48, 562 (1986); see also Trubek, Where the
Action Is: CriticalLegal 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 avoidance norms applicable to administrative determination of individual social security claims be
identical to that applicable to Supreme Court adjudication of constitutional questions.
38. There need not be any conceptual inconsistency between the two models. The second can be
conceived of as the end product of the first.
[Vol. 97: 509
1988] Formalism 521
rule."' This rule-independent conclusion presents the possibility that the
results required by the most locally applicable statute may diverge from
the result 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 between a judge's unconstrained judgment and
the result indicated by the most locally applicable statute, a rigid requirement
that the decision follow the statutory language would limit the
choices open to the judge.4°
Insofar as rigid adherence to the most locally applicable statute is required,
either by the norms governing a decisional domain or by a judge's
understanding of her role, a judge following that requirement would not
be formalistic in the sense discussed in the previous section. Nevertheless,
legal theorists condemn this type of decisionmaking as formalistic because
it requires that a decisionmaker allow her best judgment about what
should be done in this situation to yield to the dictates of a mere rule. In
particular, it is the language of the rule that is perceived as binding the
decisionmaker;"' critics therefore condemn this decisionmaking process as
formalistic because it appears to be a commitment to constraint by mere
words on a printed page, words chosen and perpetuated without consideration
of the exact situation now at hand. Formalism in this sense is not
the denial of choice by the judge, as above, but the denial of choice to the
judge. To be formalistic, it is said, is to be enslaved by mere marks on a
printed 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 considerations comprising an ideal decisionmaker's totally particularized decisionmaking
process. Instead, I seek merely to distinguish the concept of a complete array of factors
that any particularizing decisionmaker would take into account, regardless of the source of the particularizing
norms, from the more limited array of factors available to a decisionmaker inhibited by
rules.
40. I assume here a distinction between internal and external constraint. A host of factors defining
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 derision to appear clothed rather than naked at the football game.
Even if I could overcome these 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 distinguishable from external constraints, such as rules, that come from outside
the judge's personal determination of what should be done.
Rules are only one possible example of external constraints. A decisionmaker also may believe
herself to be externally constrained by statutory purpose. As I will demonstrate below, however, see
infra text accompanying notes 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
constraint only when someformulation of that purpose, on paper or in the mind, operates in substantially
the same way that a canonically formulated rule operates.
41. I explore this issue in depth below. See infra Section I-C.
42. For an example of this common use of the term "formalism," see Levinson, What Do Lawyers
Know (andWhat Do They Do with Their Knowledge)? Comments on Schauerand Moore, 58 S. CAL.
L. REV. 441, 445 (1985) (erroneously concluding that Schauer "is much too sophisticated a theorist to
endorse . . . linguistic formalism"). This usage of the term "formalism" parallels that of other disciplines.
See, e.g., Michaels, Against Formalism:The Autonomous Text in Legal and LiteraryInter-
The Yale Law Journal [Vol. 97: 509
Formalism as the linguistic limitation of choice can be illustrated in a
number of ways. Think of the judge who evicts the destitute widow and
her family on Christmas Eve because "the law" permits no other result.
Consider the classic, fictional case of R. v. Ojibway,'3 in which the judge
determines that a pony with a down pillow on its back is a small bird
because it literally fits a statutory definition of a small bird as a twolegged
animal covered with feathers."" And recall Justice White's dissent
in Bowsher v. Synar,"5 in which he accuses the majority of being "formalistic"
for taking its narrow reading of article II to be more important than
the practical consequences of striking down attempts to deal with the deficit
problem."6
These cases exemplify a decisionmaking process that, by distinguishing
the literal mandates of the most locally applicable legal norm from some
arguably better result reachable by considering a wider range of factors,
reinforces the systemic isolation, or closure, of the legal system.' Those
who condemn such an outlook as formalistic criticize the perception of law
as a closed system, within which judgments are mechanically deducible
from the language of legal rules.4s Note that this description of formalism
pretation, 1 PoETscs TODAY 23 (1979).
43. Pomerantz & Breslin, Judicial Humour-Construction of a Statute, 8 CRIM. L.Q. 137
(1966).
44. Note, of course, that four-legged animals have two legs-and more. Id. at 138.
45. 478 U.S. 714, 106 S. Ct. 3181, 3205 (1986) (White, J., dissenting).
46. The plausibility of Justice White's dissent indicates that the majority opinion may also have
been formalistic in the first sense considered in this article, see supraSection I, for it suggests that the
majority had a choice. Yet by phrasing the opinion largely in terms of the clear mandate of the
Constitution, the majority denied the existence of that choice and thus denied its audience the benefit
of knowing how that choice was made. See Strauss, supra note 1.
47. On the relationship between the idea of systemic isolation and the more familiar terminology
of legal positivism and its opponents, see infra note 81.
48. See, e.g., M. HoRwITz, supra note 1, at 250-51. After defining formalism as syllogistic deduction,
Judge Posner concludes that formalism is inapplicable to statutory rules (rules with a canonical
embodiment) because the derision to take these rules literally is itself a choice. Posner, supranote
1. Posner stumbles, however, in taking this preliminary choice to distinguish rule interpretation from
common law adjudication. He offers the following as an instance of a common law deduction: "So if
an enforceable contract is a promise supported by consideration, and A's promise to B was supported
by consideration, the promise is a contract." Id. at 182. He then contrasts that example with the
following requirement: "[Olne must be at least thirty-five to be eligible Ito be President], X is not
thirty-five, therefore X is not eligible." Id. at 188. The latter case, says Posner, is not deductive,
superficial appearances to the contrary, because interpreting the text to produce the premise is not
deductive. According to Posner, the text could have been interpreted nonliterally; thus interpretation
of the text to require that a President actually be at least thirty-five years old, rather than some less
determinate measure of maturity, involves a nondeductive choice.
Posner's conclusion is correct, but only because of Posner's sleight of hand in drawing the preliminary
distinction between statutory rule application and common law adjudication. Posner builds into
the common law case a hardly noticeable "if." Thus, although the statutory case is not deductive
because the generation of the major premise involves an interpretive choice,neither is the common law
case deductive, because its major premise is also a choice. Note that although both are equally
nondeductive, both can be equally deductive once the major premise is generated. We therefore can
reformulate the issue this way: If we make the original determination that the language of a rule is to
be interpreted literally, then the process of rule application is indeed deductive in any case in which a
putative application is definitionally incorporated within the scope of the rule as set forth in its major
premise.
Formalism
conjoins two different elements: mechanical deducibility and the existence
of a closed system. Neither element on its own necessarily implies the
other, however. Mechanical deducibility need not entail closure. If we had
a legal rule prohibiting all actions specifically condemned by the United
Nations, for example, the coverage of the rule would be readily determinable,
even if the answers were found outside the legal system .(narrowly
construed). Conversely, nonmechanical judgments can be made within the
boundaries of a single system.4 ' Consider the questions of whether there
should be a three-point shot in basketball or a designated hitter in baseball.
These are not easy questions (nor are they important ones), but their
answers are internalto the games at issue; they involve a determination of
whether the proposed change serves the goals of the game."0 Although
mechanical deducibility is thus analytically severable from systemic isolation,
the two are commonly conjoined when critics deride legal decisions
or theories as "formalistic," because both limit the domain of choices
available to a decisionmaker.51
Having posited a model in which the decisionmaker's choice is limited
by rules, we now must determine whether this model is descriptively accurate
and normatively sound. The descriptive question, which I will take
up first, is whether such limitation of choice by the words on a printed
page is possible. To put it differently, and to distinguish this version of
formalism from that considered in the previous section, the question is
whether choice can be constricted by a canonical set of words on a printed
page, or whether the choices open to a seemingly constrained decisionmaker
are in fact virtually the same as those available to an unconstrained
decisionmaker. This descriptive question in turn has both conceptual
and psychological aspects. Even if it may be conceptually possible for
language to constrain choice, it may still be beyond the psychological ca-
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 determination
whether the existence of a homosexual relationship between David and Steerforth best fits
David Copperfield is by no means mechanical, but its resolution takes place largely within the boundaries
of the novel. Dworkin, No RightAnswer?, in LAW, MORALITY AND SocIEr: ESSAYS IN HONOUR
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. RPv. 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
encompass those norms commonly understood as legal, political, and moral. The expansion of these
boundaries is a separate issue, 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 formalism as not necessarily mechanical but involving significant limitations
on otherwise eligible results is the focus of Tushnet, supranote 1.See also, Grey, The Constitution
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 decisionmakers to
use decisive norms outside text).
19881
The Yale Law Journal
pacity of those who make decisions to abide by these constraints. But let
us turn first to the conceptual question.
Is it possible for written norms to limit the factors that a decisionmaker
considers? At first glance, the answer to this question seems to be "no."
Language is both artificial and contingent and therefore appears insufficiently
rigid to limit the choices of the human actors who have created it.
The word "cat," for example, could have been used to refer to canines,
and the English language could have followed the language of the Eskimos
in having several different words to describe the varieties of snow.
Yet this answer confuses the long-term mobility of language with its
short-term plasticity, and is a conclusion comparable to taking the ponderous
progress of a glacier as indicating that it will move if we put our
shoulders against it and push. Of course language is a human creation,
and of course the rules of language are contingent, in the sense that they
could have been different. It is also beyond controversy that the rules of
language reflect a range of political, social, and cultural factors that are
hardly a priori. But this artificiality and contingency does not deny the
short-term, or even intermediate-term, noncontingency of meaning. If I go
to a hardware store and request a hammer, the clerk who hands me a
screwdriver has made a mistake, even though it is artificial, contingent,
and possibly temporary that the word "hammer" represents hammers and
not screwdrivers. Similarly, a rule requiring candidates to file nominating
petitions at a certain place by a certain time on a certain day is violated by
filing in the wrong place or after the specified time. Whatever the real
judge did say in Hunterv. Norman, and whatever some judge might have
said in any of my hypothetical variants, none of them would be that
Hunter, in filing at 5:03 p.m., had filed at or before 5:00 p.m.
The questions about the possibility of linguistic constraint can be clarified
by considering again the rule prohibiting vehicles in the park. But
now let us turn from its peripheral applications to the central applications-whether
cars and trucks are excluded. Hart assumed that,
whatever else the rule did, it excluded cars and trucks. This was the rule's
"core" of settled meaning and application." Against this, Fuller offered
the example of a statue of a truck erected as a war memorial by a group
of patriotic citizens. According to Fuller, the example challenges the idea
that a rule will have a settled core of meaning which can be applied without
looking at the rule's purpose. Fuller argues that it cannot be determined
whether the truck, which is a perfectly functional vehicle, falls into
the rule's periphery or core unless one considers the purpose of the rule.53
Fuller's challenge is ambiguous, however; there are three variant interpre-
52. Hart, supra note 10, at 607.
53. Fuller, Positivism and Fidelity to Law - A Reply to ProfessorHart,71 HARV. L. REv. 630,
663 (1958).
[Vol. 97: 509
Formalism
tations of his challenge to the theory of linguistic constraint." One interpretation
of Fuller's challenge is that legal systems necessarily incorporate
rule-avoiding norms such as those discussed earlier.55 Legal systems must
provide some escape route from the occasional absurdity generated by literal
application because applying the literal meaning of a rule can at
times produce a result which is plainly silly, clearly at odds with the purpose
behind the regulation, or clearly inconsistent with any conception of
wise policy. Insofar as a legal system offers its decisionmakers no legitimate
escape from unreasonable consequences literally indicated by the
system's norms, the system is much less a legal system, or is at least not a
legal system worthy of that name. This argument, however, asserts a normative
point about how legal systems should operate, rather than any necessary
truth about how the norms themselves operate. Moreover, the argument
itself admits the potential binding authority of rules: If rules
require an escape route to avoid the consequences of literal application,
then it must be that literal application can generate answers different
from those which a decisionmaker would otherwise choose. Thus, this interpretation
fails to challenge the possibility of linguistic constraint; it
merely points out the undesirability of employing it too rigorously in certain
domains.
Alternatively, Fuller might be arguing that legal systems necessarily require
the interpretation of regulatory language in light of the purpose of
the regulation. As with the first interpretation of the challenge, however,
this interpretation focuses on whether a rule should bind, and it leaves the
claims of linguistic determinacy untouched. We still can imagine a system
in which decisionmakers do not interpret clear regulatory language according
to its purpose if its purpose diverges from the regulatory language.
The outcome in some instances might seem absurd, but it is question-begging
to use the existence of the absurd result as an attack on the
possibility of a core of literal meaning.
Finally, Fuller might be interpreted as making a point about language
itself: He might be arguing that meaning cannot be severed from the
speaker's purpose and that meaning must be a function of the specific
context in which words are used. Fuller's argument that the idea of literal
meaning is incoherent, 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 circumstances of its creation figure prominently in criticism of formalism.
See, e.g., Moore, A NaturalLaw Theory ofInterpretation,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 Politicsof Reason: CriticalLegal Theory andLocal Social Thought, 133
U. PA. L. REv. 685, 708-13 (1985) [hereinafter The Politics of Reason] (arguing that words do not
1988]
The Yale Law Journal
mistaken view of the nature of language. Fuller and his followers fail to
distinguish the possibility and existence of meaning from the best or fullest
meaning that might be gleaned from a given communicative context.
In conversation, I am assisted in determining what a speaker intends for
me to understand by a number of contextual cues, including inflection,
pitch, modulation, and body language, as well as by the circumstances
surrounding the conversation. That such contextual cues assist my understanding,
however, does not imply that the words, sentences, and
paragraphs used by the speaker have no meaning without those cues. The
"no vehicles in the park" rule clearly points to the exclusion of the statue
from the park even if we believe that the exclusion is unnecessary from
the point of view of the statute's purpose.
If I come across an Australian newspaper from 1827, I can read it
because I understand, acontextually, the meaning of most of the words
and sentences in that newspaper, even though with better historical understanding
I might understand more of what was written by a colony of
transported English convicts. This example does not demonstrate that language
is unchanging, nor that language can be perfectly understood without
attention to context, but rather that some number of linguistic conventions,
or rules of language, are known and shared by all people having
competence in the English language. Linguistic competence in a given language
involves understanding some number of rules also understood by
others who are linguistically competent in the same language. When individuals
understand the same rules, they convey meaning by language conforming
to those rules." Members of the community of English speakers,
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) (discussing
Hobbes' rejection of notion of linguistic essences). In passing, I note my disagreement with
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
footnote in a law review article is hardly the place to debate interpretations of Wittgenstein, including
whether Wittgenstein can even plausibly be interpreted to support a pragmatist/particularist theory 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 recognize the seductive quality of phrases like "post-Wittgensteinian," which suggest
that if the reader acknowledges Wittgenstein's genius, then she must agree with the point described in
those terms. It is better to discuss the point at issue without attempting to lean on the argumentative
props of associations with philosophers whose names are currently fashionable in legal circles. In light
of the still-raging disputes about the most foundational questions in the philosophy of language, to
substitute Wittgenstein's name for an argument is unwarranted even if the use of his name is accurate.
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 presentation of 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 confronted directly. Boyle's useful perspectives
are ill-served by clothing them in what appears to me to be an idiosyncratic misreading of
Wittgenstein.
57. For a particularly insightful and influential articulation of the view that meaning exists inde[Vol.
97: 509
1988] Formalism
for example, possess shared understandings that enable them to talk to all
other members of the community.
Among the most remarkable features of language is its compositional
nature, i.e., the way in which we comprehend sentences we have never
heard before. We can do this because rules, unspecified and perhaps unspecifiable,
allow us to give meaning to certain marks and certain noises
without having to inspect the thought processes of the speaker or the full
context in which words appear. Words communicate meaning at least
partially independently of the speaker's intention. When the shells wash
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
paragraphs 489-512 of L. WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (G.E.M. Anscombe
trans. 3d ed. 1953). A similar interpretation of Wittgenstein, relying on different passages, is G.
BAKER & P. HACKER, WIrrGENSTEIN: RULES, GRAMMAR AND NECESSrrY 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 .,etwork of determinate patterns."
Wright, Rule-Following, Objectivity and the Theory of Meaning, in WITTGENSTEIN: To
FOLLOW A RULE 99, 105 (S. Holtzman & C. Leich eds. 1981).
Interpretations of Wittgenstein apart, acceptance of the possibility of literal meaning has passed
into the commonplace of contemporary analytical 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 andIntention,in CAVEATS AND CRITIQUES: PHILOSOPHICAL
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 INTERPRETATION
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's words:
It is a platitude-something only a philosopher would dream of denying-that there are conventions
of language, although we do not find it easy to say what those conventions are. If we
look for the fundamental difference in verbal behavior between members of two linguistic communities,
we can be sure of finding something which is arbitrary but perpetuates itself because
of a common interest in coordination. In the case of conventions of language, that common
interest derives from our common interest in taking advantage of, 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, Languagesand 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 discussed in other circles, including literary theory. Part of the difference
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 branches of legal theory, with their focus on difficult interpretations in 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 important
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. Nevertheless,
the very differences in 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 perspectives to law cannot take place without
some theoretical slippage.
The Yale Law Journal
not of frogs or Oldsmobiles precisely because those marks, themselves,
convey meaning independently of what might have been meant by any
speaker. Of course there can never be totally acontextual meaning.58 The
community of speakers of the English language is itself a context. Yet
meaning can be "acontextual" in the sense that that meaning draws on no
other context besides those understandings shared among virtually all
speakers of English.
Given that the meaning of words may be acontextually derived from
our understandings of language, the central question becomes whether
enough of these understandings exist to create the possibility of literal language.
In other words, we must ask whether words hae sufficient acontextual
import so that communication can take place among speakers of
English in such a way that at least a certain limited range of meaning, if
not one and only one meaning, will be shared by all or almost all speakers
of English. The answer to this question is clearly "yes." As with the shells
that washed up on the beach in the shape of C-A-T, words strung together
in sentences point us toward certain meanings on the basis of our
shared understandings. At times these sentences may be descriptive, but at
other times these comprehensible sentences may be general prescriptions-rules.
Because we understand the rules of language, we understand
the language of rules. Contextual understanding might be necessary to
determine whether a given application does or does not serve the purposes
of a rule's framers. Yet the rule itself communicates meaning as well,
although that meaning might depart from the purposes behind the rule or
from the richer understanding to be harvested from considering a wider
range of factors than the rule's words. That we might learn more from
considering additional factors or from more fully understanding a
speaker's intentions does not mean that we learn nothing by consulting the
language of rules themselves.
Of course, certain obvious, accessible, and by and large undisputable
features of rules distinguish the meaning we cull from them from our
interpretation of other types of communications. For example, when we
interpret a rule of law, we understand that it is a law and that it is to be
interpreted in light of surrounding language in the same law. In addition,
ordinary "lawspeak" (habeas corpus, certiorari, party, appeal) can be
viewed as a language for a subcommunity in the community of English
speakers, capable of doing within the subcommunity what ordinary language
does within the larger community of English speakers. Thus, although
all those reading a statute come to that task with certain shared
58. See J. SEARLE, LiteralMeaning, in EXPRESSION AND MEANING 117 (1979) (literal meaning
exists albeit only against a set of background assumptions about contexts in which sentence could
appropriately be uttered); Moore, supranote 54, at 304-07 (arguing that minimal context allows and
is required for fixing references to singular terms).
[Vol. 97: 509
1988] Formalism
assumptions, it is probable that almost all lawyers add to these an additional
set of assumptions which are shared mainly by lawyers.59
Both those within the legal community and those within the larger linguistic
community are capable of deriving the literal import of rules, even
though the literal lawyer's meaning may occasionally diverge from the
literal lay meaning of the same term. A law that limits membership in
Parliament to those who take an oath "on the true faith of a Christian"
literally excludes Jews by its language.60 A statute requiring that the
master of a vessel shall record in the log book "[e]very birth happening on
board, with the sex of the infant, and the names of the parents,""1 can be
understood by virtually any speaker of English as requiring the master to
take certain actions. 2 In these and countless other cases, statutes can be
wrenched from most of the context of their enactment and application and
still be read and understood.
59. Note that I am talking about language and about two different embellishments on 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 difference between normative and descriptive language and conventions telling them to
interpret words in light of surrounding language in the same rule or statute. This suggests only that
all competent speakers of the language in which the text is written have access to a certain minimal
amount of noncontroversial information about what kind of text it is.
Second, literal meaning is not necessarily ordinary meaning, because linguistic conventions may
exist within a technical or professional subcommunity of a larger community. For example, photographers
may have a literal sense of the meaning of the term "burning in," 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, Objectivity and Interpretation,34 STAN. L. REV. 739 (1982). The
conventionalist legal literature talks merely about the conventions of permissible legal argument and
does not confront the question of the relationship between the conventions of permissible legal argument
and the conventions of literal meaning, whether ordinary or technical. Thus, legal conventionalists
such as Fiss avoid questions regarding whether 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 permissible
arguments in the legal interpretive community, 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 Ordealof Young Tuppy, quoted in S. BLACKBURN, SPREADING THE WORD:
GROUNDINGS IN THE PHILOSOPHY OF LANGUAGE 3 (1984).
The Yale Law Journal
B. Does Language Constrain?
The conceptual question of whether literal meaning is possible can
therefore be answered affirmatively. Rules may point to results that diverge
from those that a decisionmaker would have reached apart from the
literal meaning of the rule. When there is such divergence, however, the
psychological question remains: Is it possible in such cases for decisionmakers
to follow the literal meaning of the rule rather than their own
judgment regarding how the case should be resolved?
The psychological challenge to formalism involves the claim that decisionmakers
will usually take all factors they believe to be relevant into
account, or at least that they will usually feel compelled to reach "reasonable"
results whether or not the language of the rule points in that direction.
3 When expressed this way, it is obvious that the psychological question
is an empirical one. Accordingly, it cannot be answered by mere
argument. Yet despite legal scholarship's sorry"failure to take the psychological
challenge seriously," the possibility that judges usually obey their
own rule-independent judgment is, on its face, quite plausible. We can
easily imagine a world in which decisionmakers consider everything that
they feel relevant and ignore, or at least slight, any inconsistent external
instructions in making their decisions. The question is whether that is the
world of the law.
Certainly some legal decisionmakers conform to this model. Although
one may dispute as excessive the generalizations of the more extreme
Realists, it is difficult to deny the existence of decisionmakers who consult
the rules only to create post hoc rationalizations. Indeed, to the extent that
legal systems resemble the model in which a rule-avoiding norm is always
available, such behavior is encouraged. Insofar as the view ever prevailed
that there were few decisionmakers who rejected, ignored, or bent the
plausibly determinate mandates of governing rule, it is important that that
view be shown for the optimistic fantasy it is. Yet to accept that some
judges arrive at decisions without considering rules does not imply that all
or most decisionmakers act in such a way as either an inevitable feature of
human nature or even as a contingent feature of judicial behavior.
Just as it is a mistake to assume that because some judges ignore rules
most judges do so, it is also a mistake to assume that because rules sometimes
constrain, they usually constrain. The truth, an empirical rather
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 empirical work that has been
63. See Aleinikoff, ConstitutionalLaw 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 impressionistic way.
[Vol. 97: 509
1988] Formalism
done on the question, it is sufficient for my purposes to note that this
research has, not surprisingly, yielded the result of "sometimes."65 In
some settings, decisionmakers sometimes apply instructions external to
their own decisional process even if those instructions diverge in outcome
from the results the decisionmakers otherwise would have reached. This
conclusion should cause no surprise as long as we recognize that people
often do what others think best. If privates in the army often follow orders
instead of making autonomous choices, and if privates might behave in
this way with respect to general orders in addition to particularized commands,
we can imagine judges doing the same with respect to rules.66
We have seen that, as a descriptive and conceptual matter, rules can
generate determinate outcomes; that those outcomes may diverge from
what some decisionmakers think ought to be done; and that some decisionmakers
will follow such external mandates rather than their own best
particularistic judgment. The normative question of formalism now remains:
To what extent should a system legitimate the avoidance of literal
meaning when avoidance seems to be the optimal outcome to the decisionmaker?
To put it simply, now that we have established that formalism-in
the sense of following the literal mandate of the canonical formulation
of a rule-is conceptually and psychologically possible, we must ask
whether it is desirable. Before turning to that question, however, I want
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, andJudicialDecision Making:
Lower Federal Court Uses of Supreme Court Decisions, 21 LAW & SoC'Y REV. 325 (1987);
Scandura, New Directionsfor Theory andResearch on Rule Learning,28 ACTA PSYCHOLOGICA 301
(1968).
66. There is something unrealistic about all of this, because it erroneously assumes that my paradigm
"easy" cases are representative of the kinds of decisions that come before decisionmakers. They
arc not, at least when we take "decisionmaker" in a somewhat narrow sense to refer to formal decisionmakers
such as judges sitting in courts of law. In most legal systems, various screening devices
ensure that cases at the center of decisional determinacy will not enter the formal adjudicative process.
The time and expense of litigation and the widespread inclination to avoid futile battles are such that
decisions at the core of settled meaning seldom confront any formal decisionmaking process. See Priest,
Reexamining the Selection Hypothesis: Learningfrom 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 Disputesfor 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 contingent feature 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 "breach of etiquette" whenever there is a transgression of the rules. Obvious
logistical problems prevent 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 previously
clear norms confront the 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 uncomfortable result. 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.
532 The Yale Law Journal [Vol. 97: 509
to answer an important counterargument to the possibility of the type of
formalism defined in this section.
C. Language and Rules
Until this point my argument may appear to create a false dichotomy. I
have counterpoised the vision of decisionmakers who follow the literal language
of a rule with that of decisionmakers who follow the dictates of
their own externally unguided opinions. But are these the only alternatives?
Although rules can and do constrain, is it not possible that these
rules need not be equated with the literal meaning of .the language in
which they happen to be articulated? In other words, is portraying the
vice of formalism as the vice of literalism actually confusing rules with the
literal meanings of their explicit formulations?
The argument that rules can be distinguished from the language in
which they are written has a distinguished lineage in Anglo-American legal
thought. We see, for example, Ronald Dworkin urging interpreters to
search for or to construct the "real" rule lying behind the mere words on
a printed page.6 7 Somewhat less explicitly, the "mischief rule" of the common
law compels the literal language of a rule to yield to the purpose
behind a rule when application of the literal language would frustrate the
rule's purpose."' Indeed, the mischief rule and related principles urging
the primacy of purpose over text are features of the thinking of Fuller, of
Hart and Sacks, and also of Llewellyn's "Grand Style" of judging.6 As a
matter of fact, Llewellyn distinguished the Grand Style from the Formal
Style because he believed that formalism, as the obeisance to the literal
language of a rule, could frustrate the rule's purpose and lead to difficulties
where the practical consequences of the decision would indicate a different
result.
The language in which a rule is written and the purpose behind that
rule can diverge precisely because that purpose is plastic in a way that
literal language is not. Purpose cannot be reduced to any one canonical
formulation, for when purpose is set down canonically, that canonical formulation
of purpose may frustrate the purpose itself. It is because purpose
is not reduced to a concrete set of words that it retains its sensitivity to
novel cases, to bizarre applications, and to the complex unfolding of the
human experience. Thus, for the recourse to purpose to "solve" the problem
of formalism, the purpose must not be imprisoned in the rigidity of
67. LAW'S EMPIRE, supra note 31, at 16-17.
68. The standard references for this rule are Heydon's Case, 76 Eng. Rep. 637 (Ex. 1584), and
Church of the Holy Trinity v. United States, 143 U.S. 457 (1892); see discussion supranote 28. See
also J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION §§ 45.05, 45.09 (N. Singer
rev. ed. 1984).
69. K. LLEWELLYN, supranote 1, passim;see W. TWINING, KARL LLEWELLYN AND THE REALIST
MOVEMENT 210-11 (1973).
Formalism
words. This unrigidified purpose can be explained, clarified, and enriched
as new examples and applications come to our attention. The purpose
behind the "No vehicles in the park" regulation is not embarrassed by the
statue of the truck exactly because purpose can bend to the circumstances
of the moment in a way that language, with its acontextual autonomy of
meaning, cannot. In contrast, the term "vehicles," at least at the core,
literally refers to vehicles;70
if it turns out that the prohibition of some
vehicles does not serve the purpose of the regulation, then the embarrassment
is unavoidable. 1
If adhering to concretized language causes this embarrassment, then
why not adhere to the purpose of the rule rather than the words of the
rule? To do so would conform with the models advocated by Fuller,72
Hart and Sacks, 3 Dworkin, 4 and Llewellyn 5 and would match what
can be called, with only negligible exaggeration, the current paradigm of
American statutory interpretation.7
1 Yet locating the idea and the force of
a rule in its purpose rather than in its formulation poses the same problem
posed by concretized rules, except at one remove. To illustrate the
point, suppose the purpose of the "no vehicles in the park" regulation is
the preservation of peace and quiet in the park. Suppose, as well, that this
purpose derives from an even deeper purpose of maximizing the pleasure
of the residents of the town. Now imagine that a town native who has just
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 formulation of 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 indeterminacy of 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-Inthe Classroom
and in the Courtroom, 50 U. CI. L. REv. 800, 819-820 (1983). Insofar as purpose becomes both
concrete and determinate, as when everyone agrees what the purpose is, the argument that "ruleness"
resides in purpose becomes more plausible. But when some conception of purpose is determinate,
noncanonical purpose itself can operate formalistically. Conversely, if purpose is comparatively indeterminate,
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 indeterminacy of
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 Construction
in the Supreme Court, 95 HARV. L. R~v. 892 (1982). Recent manifestations of this paradigm
include G. CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); Eskridge, DynamicStatutory
Interpretation,135 U. PA. L. REV. 1479 (1987); Langevoort, StatutoryObsolescence
and the JudicialProcess: The Revisionist Role of the Courts in FederalBanking 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, irrespective of statutory purpose).
19881
The Yale Law Journal
won six gold medals in the Olympic Games is returning to this park, the
scene of her youth, along with a widely popular President of the United
States. Suppose as well that the park with the "no vehicles in the park"
regulation is the only suitable place for the motorcade, which must be a
motorcade because the President is disabled and cannot walk. Under these
circumstances, the purpose behind the "no vehicles in the park" rule
would be served by excluding the motorcade, but the purpose behind that
purpose would be frustrated. Thus the same logic that requires the formulation
of a rule to be defeasible in the service of its purpose would also
require that purpose to be defeasible in the service of the purpose behind
it.
As the example reveals, the potential tension between the general goal
and its concretized instantiation exists at every level. At one level, the tension
is between language and purpose; at the next, it is between that purpose
and the deep purpose lying behind it; at the next, between the deep
purpose and an even deeper purpose; and so *on. When we decide that
purpose must not be frustrated by its instantiation, we embark upon a
potentially infinite regress in which all forms of concretization are
defeasible.
The view that rules should be interpreted to allow their purposes to
trump their language in fact collapses the distinction between a rule and a
reason, and thus loses the very concept of a rule.7
7 Rules are by definition
general. They gather numerous known and unknown particulars under
headings such as "vehicles," "punishment," "dogs," and "every person
who is directly or indirectly the beneficial owner of more than 10 per
centum of any class of any [registered] equity security (other than an exempted
security)." After identifying a category of items or events to which
the rule applies, in the protasis,rules then prescribe what shall be done
with these particulars in the apodosis 8 Occasionally, however, not all of
the particulars comprising the rule's category of coverage are suitable for
the prescribed treatment; the generalizations that are a necessary part of
any rule treat all members of the class in a manner that may be appropriate
only for most members of the class. What, then, is to happen when a
case arises in which the generalization does not apply to this particular?
When a rule's prescribed treatment is unsuitable, if the decisionmaker
77. Note, however, that this claim is not inconsistent with the view that rules should be interpreted
to further their purposes when several interpretations of the rule are possible and all are
supported by the languageof the rule. In such cases, it is not only possible but positively desirable to
choose the interpretation that will serve the rule's purpose. See H.L.A. HART, Introduction,in EsSAYS
IN JURISPRUDENCE AND PHILOSOPHY 1, 8 (1983).
78. On this terminology for the structure of rules, which distinguishes the part of the rule specifying
its operative facts from the part describing the consequences flowing from the existence of those
facts, see W. TWINING & D. MsaRs, How To Do THINGS WITH RULES 136-40 (2d ed. 1982). See
also Friedman, Legal Rules and the ProcessofSocial 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).
[Vol. 97: 509
Formalism
were to ignore the rule, the rule would not be a real rule providing a
reason for decision but would be a mere rule of thumb, defeasible when
the purposes behind the rule would not be served. If every application
that would not serve the reason behind the rule were jettisoned from the
coverage of the rule, then the decision procedure would be identical to one
applying reasons directly to individual cases, without the mediation of
rules. Under such a model, rules are superfluous except as predictive
guides, for they lack any normative power of their own. By contrast, if in
cases in which the particular application would not serve the reasons behind
the rule, the rule nevertheless provides its own reason for deciding
the case according to the rule, the rule itself has a normative force that
provides a reason for action or decision.
In summary, it is exactly a rule's rigidity, even in the face of applications
that would ill serve its purpose, that renders it a rule.79
This rigidity
derives from the language of the rule's formulation, which prevents the
contemplation of every fact and principle relevant to a particular application
of the rule. To be formalistic in Llewellyn's sense is to be governed
by the rigidity of a rule's formulation; yet, this governance by rigidity is
central to the constraint of regulative rules. Formalism in this sense is
therefore indistinguishable from "rulism," for what makes a regulative
rule a rule, and what distinguishes it from a reason, is precisely the unwillingness
to pierce the generalization even in cases in which the generalization
appears to the decisionmaker to be inapposite. A rule's acontextual
rigidity is what makes it a rule.
D. The Idea of a Closed System
We now are in a position to reconsider the charge that formalism embodies
the erroneous view that law (or any other decisional domain) is a
closed system. We have seen that rules can generate answers or exclude
otherwise eligible answers from consideration. We also have seen that
there are rules, such as one prohibiting the shooting of pelicans, whose
application throughout much of their range requires recourse only to the
rule and to uncontroversial judgments of meaning and identification of
discrete particulars. There can therefore be systems whose operations require
recourse only to the norms of the system and to accepted linguistic
and observational skills.
Such a system would be closed, but it would not necessarily be complete.
Closedness and completeness are different properties. Closedness refers
to the capacity of a system to decide cases within the confines of that
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 decisionmaking in which generalizations have independent normative power
from a form of decisionmaking in 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 addressed below. See infra Section III.
1988]
The Yale Law Journal
system, while completeness refers to the extent to which a system deals
with those cases at all. A mathematical system is closed insofar as the
rules of mathematics provide an answer to the question "What is the sum
of 97 and 53?" But that same system is incomplete insofar as it provides
no answer to the question "What should the United States do about the
problem of poverty?" The dimension of completeness, although perhaps
unimportant for mathematics, is important for law precisely because most
modem legal systems claim the ability to deal with a wide range of issues.
Insofar as the human experience is especially complex and fluid, the legal
system is likely to be frustrated by its incompleteness, its frequent inability
to answer the questions it wants to answer. Commonly, we plan for
these frustrations by rendering the norms of the law less determinate and
thereby using vagueness as the tool by which we plan for the open texture
of experience.8" As a result, legal systems, to avoid the consequences of
widespread incompleteness, often employ norms sufficiently indeterminate
to accommodate much that is important in the world at large, and in doing
so sacrifice the occasional virtues of closedness. Such systems are more
open even at the expense of being less predictable and less constraining of
their decisionmakers.
Thus, legal systems often reject closedness because they must deal with
a large array of problems presented by a complex and fluid world. But
this is to say that comparatively closed systems may sometimes be undesirable,
not that they are not possible. The importance of drawing this distinction
is to stress that the degree of closedness may vary, and that closedness
is a tool that might be usable in some domains even if, in untempered
form, it is not the only tool we would want to use for an entire system of
social control.
When applied to individual norms rather than to entire systems, closedness
is merely another word for ruleness. By limiting access to the reasons
behind the rule, rules truncate the array of considerations available to a
decisionmaker 81 Rules get in the way. They exclude from consideration
factors that a decisionmaker unconstrained by those rules would take into
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
different terminology. Any version of legal positivism is premised on what Ronald Dworkin, no positivist,
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
pedigreed as constituting some sort of a dosed system, although that system will not necessarily decide
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 pedigrecability thesis by arguing that in no case is the distinction
between pedigreed and nonpedigreed norms dispositive and consequently the characterization of law
in terms of pedigreed norms is descriptively inaccurate.
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Formalism
account. Understanding the way in which rules truncate the range of reasons
available to a decisionmaker helps us to appreciate the distinction
between formalism and functionalism, or instrumentalism.82 Functionalism
focuses on outcomes and particularly on the outcome the decisionmaker
deems optimal. Rules get in the way of this process, and thus
functionalism can be perceived as a view of decisionmaking that seeks to
minimize the space between what 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 consideration
reasons that might have been available had the decisionmaker
not been constrained by a rule. Second, the rule itself becomes a reason for
action, or a reason for decision.
The notion of a rule as a reason for decision requires further exploration.
What makes formalism formal is this very feature: the fact that taking
rules seriously involves taking their mandates os reasons for decision
independent of the reasons for decision lying behind the rule.8 If it were
otherwise, the set of reasons considered by a decisionmaker would be congruent
with the set of reasons behind the rule, and the rule would add
nothing to the calculus. Rules therefore supply reasons for action qua
rules. When the reason supplied by a rule tracks the reasons behind the
rule, then the rule is in a different way superfluous in the particular case.
Rules become interesting when they point toward a different result than
do the reasons behind the rule-when they indicate, for example, that
statues of vehicles ought to be excluded even though the reasons behind
the rule indicate that the statues ought not to be excluded. To take these
occasionally perverse reasons as always relevant and therefore sometimes
dispositive is condemned as "formalistic" because it abstracts the mandates
of a rule from the reasons behind it. Yet that is what rules do. Refusal to
abstract the rule from its reasons is not to have rules. This refusal reduces
rules to rules of thumb, useful but intrinsically unweighty indicators of
the results likely to be reached by direct application of reasons.
Thus, the essential equivalency of formalism and "ruleness" is before
us. Viewing formalism as merely rule-governed decisionmaking does not
make it desirable. Yet recognizing the way in which formalism is merely a
way of describing the process of taking rules seriously allows us to escape
82. See, e.g., R. SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL THEORY 136-75 (1982);
Aleinikoff, supranote 63, at 985; Summers, ProfessorFuller'sJurisprudenceand America's Dominant
Philosophy of Law, 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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the epithetical mode and to confront the critical question of formalism:
What, if anything, is good about the unwillingness to go beneath the rule
and apply its purpose, or the purposes behind that purpose, directly to the
case before the decisionmaker?
III. SHOULD CHOICE BE RESTRICTED?
Let me recapitulate. One conception takes the vice of formalism to consist
of a decisionmaker's denial, couched in the language of obedience to
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,
and decisionmakers can abide by those limitations. Those limitations come
in most cases from the literal language of a rule's formulation, for to take
a rule as anything other than the rule's formulation, or at least the meaning
of the rule's formulation,8 is ultimately to deny the idea of a rule.
Thus, formalism merges into ruleness, and both are inextricably intertwined
with literalism,b i.e., the willingness to make decisions according
to the literal meaning of words or phrases or sentences or paragraphs on a
printed page, even if the consequences of that decision seem either to frustrate
the purpose behind those words or to diverge significantly from what
the decisionmaker thinks-the rule aside-should be done. But does dem-
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 ofRules, in MODELS AND METAPHORS: STUDIES
IN LANGUAGE AND PHILOSOPHY 95 (1962); D. SHWAYDER, THE STRATIFICATION OF BEHAVIOUR
241 (1965); G. VONWRIGHT, PRACTICAL REASON 68 (1983). "Do not walk on the grass," "Walking
on the grass is prohibited," and "No walking on the grass" constitute one and not three rules. Referring
to these three formulations as formulations of only one rule, however, presupposes that all have
the same meaning, that the differences are syntactical and not semantic. Thus, the distinction between
a rule and its formulation is like the distinction between a proposition and 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 references to "literalism" are slightly metaphorical. As noted above, see supra note 59,
literalism includes those aspects of context, such as the appearance of 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 understand a sentence we have never seen before. See D. DAVIDSON, Truth and Meaning,
in INQUIRIES INTO TRUTH AND INTERPRETATION 17 (1934). This assertion, however, superficially
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 without
its detractors and 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
acontextual meaning insofar as an entire sentence or paragraph may supply enough context to make
its meaning comparatively clear. As texts become lengthier and richer it is often more possible to
understand those texts without departing from them and thus more possible for them to have acontextual
meaning.
Moreover, literal meaning need not always be ordinary meaning. Where some aspect of the minimal
and uncontested context makes it plain that a settled specialized or 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.
Formalism
onstrating that formalism is ruleness rescue formalism? Restated, what is
so good about decision according to rules?
The simple answer to this question, and perhaps also the correct one, is
"nothing." Little about decision constrained by the rigidity of rules seems
intrinsically valuable. Once we understand that rules get in the way, that
they gain their ruleness by cutting off access to factors that might lead to
the best resolution in a particular case, we see that rules function as impediments
to optimally sensitive decisionmaking. Rules doom decisionmaking
to mediocrity by mandating the inaccessibility of excellence.
Nor is there anything essentially just about a system of rules. We have
scarce reason to believe that rule-based adjudication is more likely to be
just than are systems in which rules do not block a decisionmaker, especially
a just decisionmaker, from considering every reason that would assist
her in reaching the best decision. Insofar as factors screened from consideration
by a rule might in a particular case turn out to be those
necessary to reach a just result, rules stand in the w ay of justice in those
cases and thus impede optimal justice in the long term. We equate Solomon's
wisdom with justice not because Solomon followed the rules in solving
the dispute over the baby but because Solomon came up with exactly
the right solution for that case. We frequently laud not history's rule followers,
but those whose abilities at particularized decisionmaking transcend
the inherent limitations of rules.
Still, that rules may be in one sense unjust, or even that they may be
inappropriate in much of what we call a legal system, does not mean there
is nothing to be said for rules. One of the things that can be said for rules
is the value variously expressed as predictability or certainty. But if we
pursue the predictability theme, we see that what most arguments for
ruleness share is a focus on disabling certain classes of decisionmakers
from making certain kinds of decisions."' Predictability follows from the
decision to treat all instances falling within some accessible category in the
same way. It is a function of the way in which rules decide ahead of time
how all cases within a class will be determined.
Predictability is fostered to the extent that four different requirements
are satisfied. The first of the factors contributing to predictability is the
capacity on the part of those relying on a rule to identify certain particulars
as instances of a given category (for example, that pelicans are birds).
When there is a more or less uniform and uncontroversial ability to say
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, Principleand Discretionin theJudicialProcess,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 predict that it will snow in
Vermont this winter and rely on that prediction in making winter plans, yet still not be certainthat it
will snow. Although one usage of "certain" does recognize variability, I prefer the term "predictability"
because its common usage implies such variability.
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that some item is a member of some category, little in the way of potentially
variable judgment clouds the prediction of whether the rule will apply
to this particular item. This relates to the second factor: that the decisionmakers
in the system will perceive those particulars as being members
of the same category perceived by the addressees and will be seen as so
perceiving by those affected. That is, people perceive pelicans as birds;
decisionmakers perceive pelicans as birds; and people know that decisionmakers
will perceive pelicans as birds. Third, the rule must speak in
terms of an accessible category. Predictability requires that a rule cover a
category whose denotation is substantially noncontroversial among the
class of addressees of the rule and common to the addressees of the rule
and those who apply it. Finally, the rule must treat all members of a
category in the same way. Only if the consequences specified in the apodosis
of the rule are as accessible and noncontroversial as the coverage specified
in the protasis can a rule produce significant predictability of application.
Thus, predictability comes from the knowledge that if this is a bird
a certain result will follow, and from the confidence that what I now perceive
to be a bird will be considered a bird by the ultimate decisionmaker.
This predictability comes only at a price.87 Situations may arise in
which putting this particular into that category seems just too
crude-something about this particular makes us desire to treat it specially.
This vehicle is merely a statue, emits no fumes, makes no noise,
and endangers no lives; it ought to be treated differently from those vehicles
whose characteristics mesh with the purpose behind the rule. Serving
the goal of predictability, however, requires that we ignore this difference,
because to acknowledge this difference is also to create the power-the
jurisdiction-todetermine whether this vehicle or that vehicle actually
serves the purpose of the "no vehicles in the park" rule. It is the jurisdiction
to determine that only some vehicles fit the purpose of the rule that
undermines the confidence that all vehicles will be prohibited. No longer
is it the case that anything that is a vehicle, a moderately accessible category,
is excluded. Instead, the category is now that of vehicles whose prohibition
will serve the purposes of the "no vehicles in the park" rule, a
potentially far more controversial category.
Thus, the key to understanding the relationship of ruleness to predictability
is the idea of decisional jurisdiction. 8 The issue is not whether the
statue serves the purpose of the "no vehicles in the park" rule. It is
whether giving some decisionmaker jurisdiction to determine what the
87. See, e.g., H.L.A. HART, supra note 1, at 121-32.
88. On jurisdiction in this sense, see Schauer, Slippery Slopes, 99 HARV. L. REV. 361, 367-68
(1985). See also Fried, Two Concepts ofInterests:Some Reflections on the Supreme Court'sBalancing
Test, 76 H~Av. L. REv. 755, 759-65, 771 (1963) (noting that courts define their competencies in
the process of making substantive decisions); Rawls, Two Concepts of Rules, 64 PHIL.REV. 3, 10
(1955).
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Formalism
rule's purpose is (as well as jurisdiction to determine whether some item
fits that purpose) injects a possibility of variance substantially greater than
that involved in giving a decisionmaker jurisdiction solely to determine
whether some particular is or is not a vehicle. Note also that the jurisdictional
question has a double aspect. When we grant jurisdiction we are
first concerned with the range of equally correct decisions that might be
made in the exercise of that jurisdiction. If there is no authoritative statement
of the purpose behind the "no vehicles in the park" rule, granting
jurisdiction to determine that purpose would allow a decisionmaker to decide
whether the purpose is to preserve quiet, to prevent air pollution, or
to prevent accidents, and each of these determinations would be equally
correct. In addition to increasing the range of correct decisions, however,
certain grants of jurisdiction increase the likelihood of erroneous determinations.
Compare "No vehicles in the park" with "The park is closed to
vehicles whose greatest horizontal perimeter dimension, when added to
their greatest vertical perimeter dimension, exceeds the lesser of (a) sixtyeight
feet, six inches and (b) the greatest horizontal perimeter dimension,
added to the greatest vertical perimeter dimension, of the average of the
largest passenger automobile manufactured in the United States by the
three largest automobile manufacturers in the preceding year." The second
adds no inherent variability, but it certainly compounds the possibility
of decisionmaker error. Creating the jurisdiction to determine whether the
purposes of a rule are served undermines predictability by allowing the
determination of any of several possible purposes; in addition, the creation
of that jurisdiction engenders the possibility that those who exercise it
might just get it wrong.
Grants of decisional jurisdiction not only increase permissible variance
and the possibility of "computational" error, they also involve decisionmakers
in determinations that a system may prefer to have made by
someone else. We may believe that courts are less competent to make certain
decisions than other bodies; for example, we may feel that certain
kinds of fact-finding are better done by legislatures. There may also be
moral or political reasons to restrict the judge's discretion, for decisionmaking
implicates profound questions of just who in a given domain may
legitimately make certain decisions. It is, for example, a plausible position
that the public rather than the University of Michigan philosophy department
should make the moral determinations involved in governing the
United States, even if the University of Michigan philosophy department
would make better choices.
Although decreasing the possibility of variance and error by the decisionmaker
contributes to the ability of addressees of rules to predict the
consequences of application of those rules, limited variance can serve other
values as well. If decisionmakers are denied jurisdiction to determine
whether a particular instance actually justifies its inclusion in a larger
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generalization or are denied jurisdiction to determine the best result on the
basis of all germane factors, the part of the system inhabited by those
decisionmakers becomes more stable. Treating a large group of different
particulars in the same way-the inevitable byproduct of the generalization
of rules-dampens the range of variance in result by suppressing consideration
of a wide range of potentially relevant differences. Thus, stability,
not as a necessary condition for predictability but as a value in its own
right, is fostered by truncating the decisionmaking authority.
Because rule-bound decisionmaking is inherently stabilizing, it is inherently
conservative, in the nonpolitical sense of the word.89 By limiting the
ability of decisionmakers to consider every factor relevant to an event,
rules make it more difficult to adapt to a changing future. Rules force the
future into the categories of the past. Note the important asymmetry here,
the way in which rules operate not to enable but only to disable. A decisionmaker
can never exceed the optimal result .based on all relevant factors.
Thus, a rule-bound decisionmaker, precluded from taking into account
certain features of the present case, can never do better but can do
worse than a decisionmaker seeking the optimal result for a case through
a rule-free decision.
Yet this conservatism, suboptimization, and inflexibility in the face of a
changing future need not be universally condemned. Rules stabilize by
inflating the importance of the classifications of yesterday. We achieve stability,
valuable in its place, by relinquishing some part of our ability to
improve on yesterday. Again the issue is jurisdiction, for those who have
jurisdiction to improve on yesterday also have jurisdiction to make things
worse.90 To stabilize, to operate in an inherently conservative mode, is to
give up some of the possibility of improvement in exchange for guarding
against some of the possibility of disaster. Whether, when, and where the
game is worth the candle, however, cannot be determined acontextually. 91
89. See Horwitz, The Rule ofLaw:An UnqualifiedHuman 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 conservatism is not oxymoronic, because one 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 incorporate substantive requirements.
Dworkin, Non-NeutralPrinciples,in READING RAWLS: CRITICAL STUDIES OF A THEORY OF JUSTICE
124 (N. Daniels ed. 1975). Insofar as some grants of jurisdiction aim to increase the ability of
decisionmakers to adapt to an unknown future, however, they will be comparatively open-ended. It is
this open-endedness, whether couched in substantive (do good) or less substantive (determine the purpose)
terms, that creates the possibility of unintended and uncontrollable variance.
91. I therefore disagree with Kennedy, Form and Substance in PrivateLaw Adjudication, 89
HARV. L. REv. 1685 (1976), insofar as he argues that ruleness is acontextually individualistic and
particularization is acontextually altruistic. Even if there is truth in Kennedy's acontextuality, it still
is not clear that his analysis of the acontextual tendencies promoted by ruleness is correct. It is quite
plausible that the inherently stabilizing tendencies of rule-bound adjudication will dampen individual
differences, stifle claims to special treatment as an individual, and encourage decisional modesty rather
than decisional arrogance. It could be argued quite sensibly that all these tendencies foster rather than
impede altruism.
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Formalism
In sum, it is dearly true that rules get in the way, but this need not
always be considered a bad thing. It may be a liability to get in the way of
wise decisionmakers who sensitively consider all of the relevant factors as
they accurately pursue the good. However, it may be an asset to restrict
misguided, incompetent, wicked, power-hungry, or simply mistaken decisionmakers
whose own sense of the good might diverge from that of the
system they serve. The problem, of course, is the difficulty in determining
which characterization will fit decisionmakers; we must therefore decide
the extent to which we are willing to disable good decisionmakers in order
simultaneously to disable bad ones.
With these considerations in mind, let us approach formalism in a new
light. Consider some of the famous marchers in formalism's parade of
horribles, examples such as R. v. Ojibway, Fuller's statue of the truck in
the park, and the poor Bolognese surgeon who, having opened the vein of
a patient in the course of performing an emergency operation outdoors,
was prosecuted for violating the law prohibiting "drawing blood in the
streets."9 Each of these examples reminds us that cases may arise in
which application of the literal meaning of words produces an absurd result.
But now we can recast the question, for we must consider not only
whether the result was absurd in these cases but also whether a particular
decisionmaker should be empowered to determine absurdity. Even in cases
as extreme as these, formalism is only superficially about rigidity and absurdity.
More fundamentally, it is about power and its allocation.
Formalism is about power, but is also about its converse-modesty. To
be formalistic as a decisionmaker is to say that something is not my concern,
no matter how compelling it may seem. When this attitude is applied
to the budget crisis or to eviction of the starving, it seems objectionable.
But when the same attitude of formalism requires judges to ignore the
moral squalor of the Nazis or the Ku Klux Klan in First Amendment
cases, or the guilt of the defendant in Fourth Amendment cases, or the
wealth of the plaintiff who seeks to recover for medical expenses occasioned
by the defendant's negligence, it is no longer clear that refusal to
take all factors into account is condemnable.
Modesty, of course, has its darker side. To be modest is at times good,
but avoiding authority is also avoiding responsibility. In some circumstances
we want our decisionmakers to take charge and accept the consequences
of their actions."3 But it is by no means clear that just because it
is good for some people to take charge some of the time, that taking
charge, even accompanied by acceptance of responsibility, is a universal
92. The last example, from 1 S. PUFENDORF, DE JURE NATURAE ET GENTiuM LiBRI OcrO
(1672), comes to us through United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 (1868).
93. For a recent articulation of this view, see Michelman, Foreword:Traces of Self-Government,
100 HARV L. REv. 4 (1986). A useful contrast is Christie, An Essay on Discretion,1986 DUKE L.J.
747.
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good. "I'm in charge here" has a long but not always distinguished history.
Part of what formalism is about is its inculcation of the view that
sometimes it is appropriate for decisionmakers to recognize their lack of
jurisdiction and to defer even when they are convinced that their own
judgment is best. The opposite of modesty is arrogance, not just responsibility.
True, modesty itself carries responsibility, because an actor behaving
modestly is participating and thus assisting in the legitimacy of the
grant of authority to someone else. But this is a responsibility of a different
and limited kind. That one accepts partial responsibility for the decisions
of others does not entail the obligation to substitute one's judgment
for that of others.
The distinctive feature of rules, therefore, lies in their ability to be formal,
to exclude from consideration in the particular case factors whose
exclusion was determined without reference to the particular case at hand.
This formalism of rules is not only conceptually sound and psychologically
possible, but it also, as I have tried to show, is on occasion normatively
desirable. Insofar as formalism disables some decisionmakers from
considering some factors that may appear important to them, it allocates
power to some decisionmakers and away from others. Formalism therefore
achieves its value when it is thought desirable to narrow the decisional
opportunities and the decisional range of a certain class of decisionmakers.
I stress that all of this is compatible with agnosticism about how rulebound
decisionmaking applies to legal systems in general, to particular
legal systems, or to particular parts of legal systems. It is far from a necessary
truth that legal systems must be exclusively or even largely operated
as rule-governed institutions. Judgments about when to employ formalism
are contextual and not inexorable, political and not logical, psychological
and economic rather than conceptual. It would blunt my point about the
simultaneously plausible and contingent nature of decision according to
rule to offer in this acontextual setting my recommendations about what if
any parts of the American or any other legal system should operate in
such a fashion. My goal is only to rescue formalism from conceptual banishment.
But having been readmitted to the community of respectable
ideas, formalism, or decisionmaking according to rule in any strong sense,
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 particularism
as mutually exclusive opposites, incapable of coexisting within the
same decisional domain. It may therefore appear that the advantages of
formalism can be attained only within a system willing to accept some
proportion of preposterous results and only within a system willing to
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Formalism
have its decisionmakers ignore the novelty of the situations that come
before them. Accommodation between these two forms of decisionmaking
might be possible, however.
Let us contrast two cases, both arising out of the "No vehicles in the
park" rule. The first involves the statue of the truck erected by the veterans'
organization. The second involves an electric golf cart, as quiet as a
bicycle, incapable of proceeding at greater than ten miles an hour, and
emitting no noxious fumes. Can these cases be distinguished? In both
cases, exclusion of the object under consideration would not seem to serve
any of the purposes behind the rule, regardless of whether the purpose
was the suppression of noise, the reduction of noxious odors, the limitation
of high speeds, or the restriction of forms of conveyance likely to be dangerous
to pedestrians. Yet despite their similarity, there appears to be a
difference between the cases. The statue seems to lie more outside the
purpose behind the rule than the golf cart. If we assume that something
like twenty miles per hour is dangerous, a totally immobile vehicle is further
away from the danger point than one that can go ten miles per hour.
Similarly, a vehicle with a totally inoperative engine makes less noise and
emits no more noxious fumes than even an electric motor.
If the difference between the cases is a matter of degree, is there some
way of empowering a decisionmaker to draw the distinction without at the
same time discarding all of the formalist-inspired virtues from the decisionmaking
process? That is, can we empower the decisionmaker to override
the rule when its application would be totally preposterous, but not
when its application, still outside the purpose of the rule, would fall short
of the preposterous?
The question is the same one that arises in discussions regarding higher
court scrutiny of lower court decisions, and lower court scrutiny of administrative
decisions and state laws. Can a decisionmaker distinguish those
state interests that are "compelling" from those that are "important" from
those that are merely "rational"? Can a decisionmaker distinguish "proof
beyond a reasonable doubt" from "clear and convincing evidence" from "a
preponderance of the evidence"? Can decisionmakers distinguish "de
novo" review from review only for "abuse of discretion"? The question
raised by all of these standards and others is the same: Can we admit the
possibility of overriding some judgment while at the same time not opening
the door to unconstrained substitution of judgment?
It is debatable whether some form of deferential but genuine review is
possible. It might be argued that deferential but not toothless review is an
illusion. Once the reviewing decisionmaker has the authority to look at the
decision below with at least the possibility of overturning it, deference
becomes largely illusory. This hypothesis equates the review process with
Pandora's box: Once the record below is opened, the review is in reality
de novo, and the language of abuse of discretion-or compelling interest
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or whatever-is used merely as a tag line when the decisionmaker wishes
to reach a conclusion different from that reached below.
An alternative hypothesis posits some ground between no review and
unfettered intrusiveness. There might be cases in which the presumption
in favor of the result below would cause the decision to stand. Under this
hypothesis, we can have rebuttable presumptions-cases in which the presumption
might be overcome in particularly exigent circumstances but
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 times in some domains presumptions can matter
without being irrebuttable. This conclusion is based on my also instinctive
view that presumptions create attitudes, and that attitudes can matter. I
believe, for example, that I am more likely to admire an item of clothing if
I discover it myself than if my mother tells me she saw it in a shop and it
would look very nice on me. But I might be wrong. Even if I am right
about clothing and mothers, those attitudes might not carry over to real
decisions by real decisionmakers, and even if it does, it might be empirically
false more often than it is empirically true.
Moreover, even if attitudes can be changed, it may be that linguistic
instructions are not particularly effective in accomplishing those changes.
The observation that linguistic instructions to adopt a certain attitude are
in fact potent is not universally proved by the observation that such instructions
are sometimes potent, any more than the observation that such
instructions are sometimes impotent proves that they are never potent.
Given all of this, let me satisfy myself here with the unproved empirical
conclusion that linguistic instructions are sometimes potent.
If such instructions sometimes create presumptions, and if those presumptions
sometimes work, then what does this say about the possibility
of what we might call a presumptive formalism? In order to construct
such a model, we would want to equate the literal mandate of the most
locally applicable written rule with the judgment of the court below. The
court below can be taken to have determined, for example, that in one
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
equate the reviewing court with a determination of the correct result from
the perspective of the reasons behind the rule rather than the literal language
of the rule itself. We might conclude that in the first case even a de
novo application of the reasons would generate the same result as generated
by the formalistic reading, and therefore the formal mandate would
prevail uncontroversially. In the second, a de novo application of reasons
would generate a different result than that generated by the rule, but the
result generated by the rule remains "in the ballpark" and therefore is
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upheld despite its divergencefrom the result that would be reached by
direct application of the reasons. In the third, however, a de novo application
of the reasons indicates that the result generated by the rule is so far
out of bounds, so absurd, so preposterous that it is analogous to an abuse
of discretion and would therefore be reversed-the rule would not be applied
in this case.
Under such a theory of presumptive formalism there would be a presumption
in favor of the result generated by the literal and largely acontextual
interpretation of the most locally applicable rule. Yet that result
would be presumptive only, subject to defeasibility when less locally applicable
norms, including the purpose behind the particular norm, and including
norms both within and without the decisional domain at issue,
offered especially exigent reasons for avoiding the result generated by the
presumptively applicable norm.
Such a system would bring the advantages of predictability, stability,
and constraint of decisionmakers commonly associated with decision according
to rule, but would temper the occasional unpleasant consequences
of such a system with an escape route that allowed some results to be
avoided when their consequences would be especially outrageous. Such a
system would not be without cost. First of all, the escape route would
necessarily decrease the amount of predictability, stability, and decisionmaker
restraint. In short, it would diminish the amount of ruleness by
placing more final authority in the decisionmaker than in the rule. Second,
the presumptive force attached to the formalist reading of the applicable
norms would still result in some odd or suboptimal results. In this
sense, such a system would fail to honor all of the goals either of unrestrained
particularism or unrestrained formalism. Finally, such a system
would risk collapse into one in which the presumptions were for all practical
purposes either absolute or nonexistent.
Even on the assumption that such a system might be desirable in some
decisional domains, this does not mean that all or part of what we commonly
call the legal system might be one of those domains. It might be
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, formalism
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 treatment is not my agenda here, for what I have attempted to
offer is only an argument that formal systems are not necessarily to be
condemned. That is not to say they are universally or even largely to be
applauded, nor that they are to be pervasive or even frequent within that
segment of society we call the legal system. To answer this last question
we must ask what the legal system, in whole or in part, is supposed to do,
19881
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for only when we answer that question can we determine what kinds of
tools it needs to accomplish that task.
V. CONCLUSION
I have concluded this analysis by venturing no more than a prolegomenon
to a theory of presumptive formalism, which, to avoid the pejorative
(or at least to select a slightly less pejorative pejorative) might be called a
theory of presumptive positivism. As I have said, to urge the potential
advantages of such a view in some domains is to say little if anything
about whether the domain of decisions of judges or the domain of decisions
of the political state backed by force is amenable to presumptively
positivistic decisionmaking. But even if we put aside the question of concrete
applications, the presumptiveness that is central to this model may
illuminate one final usage of the word "formalistic" in its pejorative guise.
It may be that, in practice, to condemn an outlook as formalistic is to
condemn neither the rule-based orientation of a decisional structure nor
even the inevitable over- and under-inclusiveness of any rule-based system.
It may be to condemn such a system only when it is taken 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 usage we see that formalism is no longer something to be
roundly condemned, but rather, like the relation of fanaticism to enthusiasm,
or bullheadedness to integrity, merely the extreme and therefore unfortunate
manifestation of a fundamentally desirable characteristic. If we
recognize that, we may ultimately cease to use the epithetical deployment
of "formalistic" as a substitute for argument and turn instead to the central
questions involved in determining what, if anything, lies at the heart
of the idea of law.
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