Legal Theory Lexicon 043: Formalism and Instrumentalism

Abstract

American law students learn about formalism and instrumentalism early on — although those particular terms may not be introduced explicitly in classroom discussion. Many law students hunger for “black letter law": they are looking for legal rules that can be memorized and applied to the facts in a more or less determinate (or even "mechanical") fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences — perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice. Many are progressive or liberal; a few are conservative or libertarian.

In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize sexual activity between persons of the same sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text does not seem to be much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government — even though it is unmistakably clear that the 14th amendment applies only to the state.

But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution — discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.

In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students — especially first year law students — with an interest in legal theory.

Keywords: formalism, legal formalism, instrumentalism, realism, legal realism, originalism, plain meaning, jurisprudence, philosophy of law