Relational Formalism and the Construction of Financial Instruments
NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law
May 29, 2011
American Business Law Journal, Vol. 48, No. 2, pp. 371-407, 2011
Yale Law School Faculty Scholarship Series No. 33
Legal formalism and legal relationalism are traditionally thought of as defining opposite poles of jurisprudential analysis. This study develops a new position, “relational formalism,” as it emerges from practices of commercial law and financial law in particular. As an interpretation of practice, relational formalism - although maintaining the precedence of formalist construction over functional analysis - does so while responding to practical concerns and interests entailed by relations. It argues that legal formalism needs not be an expression of positivistic commitments, and can be approached on relational grounds.
The study empirically analyzes a well-known problem of financial instruments and negotiability (an area traditionally characterized as intensely formalistic) to support both the tenability of relational formalism and its theoretical and practical fruitfulness. It claims that tacit judicial divergence over formalism, rather than specific doctrinal differences, best explains conflicting outcomes in similar cases in various US jurisdictions. It then applies performative linguistics to sustain a relational construction of formalism independently of its normative appeal. Finally, it contrasts a view of private law as a “model for action” with its view as an interpretative, bottom-up lens for approaching practice.
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Number of Pages in PDF File: 43
Keywords: Commercial Law, Negotiable Instruments, Relational Contract Theory, Legal Formalism, Adjudication, Speech Act Theory, Pragmatice, Performativity, Linguistics, Jurisprudence, Law & SocietyAccepted Paper Series
Date posted: May 30, 2011 ; Last revised: May 31, 2012
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