Form and Formalism

61 Pages Posted: 16 Jan 2018

See all articles by Thomas Nachbar

Thomas Nachbar

University of Virginia School of Law

Date Written: January 10, 2018

Abstract

Formalism has become an insult. Defined by its critics as the mechanical (even disingenuous) application of rules, or unthinkingly equated with textualism or originalism, the various forms of formalism supposedly promise legal certainty. Having been found unable to provide that certainty, formalism been consigned by its critics to the role of foil for other, more promising, approaches. Yet most critics of formalism inaccurately conflate modern formalism, which emphasizes form, with the deterministic formalism of the Langdellian legal order. Far from the unrealistically deterministic, conceptualist understanding of law attacked by the Realists, modern formalism is best understood as a commitment to form in legal interpretation and legal thinking. Once we free formalism from the role it has been given by its detractors, its merits become more apparent. Formalism allows us to focus not just on legal outcomes, but on the form of the rules that generate those outcomes. Formalism is a recognition that law must appear in some form and that law is an act not only of social control but of social communication. By acknowledging the view of the law that formalism represents we can uncover previously unidentified meaning in law, lawmaking, and adjudication.

Keywords: formalism, textualism, originalism, realism, interpretation

Suggested Citation

Nachbar, Thomas, Form and Formalism (January 10, 2018). Virginia Public Law and Legal Theory Research Paper No. 2018-01. Available at SSRN: https://ssrn.com/abstract=3099472 or http://dx.doi.org/10.2139/ssrn.3099472

Thomas Nachbar (Contact Author)

University of Virginia School of Law ( email )

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Charlottesville, VA 22903
United States
434-924-7588 (Phone)
434-924-7536 (Fax)

HOME PAGE: http://www.law.virginia.edu/fac/tbn4n

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