The Law Wants to be Formal

Abstract

This Article examines the relationship between the formalism of an area of law, and whether it plays a central role in the legal system. English and American law were traditionally comprised of formalist private law doctrines. The influence of legal realism and the New Deal, however, caused these systems to diverge. While American private law was recast in realist terms, it also became less significant to the overall legal system. In its place, procedure and statutory interpretation emerged, and in turn became more formalized. Realism was never as influential in England where private law remains more formal and at the center of legal analysis. Procedural and interpretation doctrines, by contrast, are less prevalent and less formalized.

These trends are related. Law is attracted to formalism because a confined account of judging provides the necessary contrast between constrained judicial decisionmaking and unfettered political policymaking. When private law is formalized, it can sustain the distinction between law and politics. But when private law is seen as too pliable, pressure mounts to recast the law in a more formalist mode. Realism did not eliminate formalism from American law but caused it to migrate from the receding private law to the ascendant interpretation and procedure doctrines.

Keywords: private law, formalism, English law, textualism, Anglo-American law