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The Logic of Legal Conflict: The Perplexing Combination of Formalism and Anti-Formalism in Adjudication of Conflicting Legal Norms

87 Pages Posted: 21 Jul 2002  

Carlos E. Gonzalez

Rutgers Law School


How does the legal system mediate conflicts between legal norms demanding mutually exclusive outcomes? Consider a variation on H.L.A. Hart's "no vehicles in the park" hypothetical. Imagine that the legislative body passes a statute prohibiting wheeled vehicles from entering the park. Later, the legislature passes a second statute authorizing bicycle races in the park every Sunday. What governs adjudication of such conflicts?

As this Article comprehensively explains, a pair of remarkably rigid axioms, coupled with an equally rigid hierarchic ordering of legal categories and subcategories, provide clear and incontestable answers in almost all such cases. Moreover, the practice of adjudicating these cases involves a perplexing close juxtaposition of extreme formalism with extreme anti-formalism. Courts adjudicate these cases in two distinct components or phases. First, as a threshold matter, by interpreting the meaning of legal norms either broadly or narrowly, a court determines whether the norms are in irreconcilable conflict. Second, once a court finds a norm pair in irreconcilable conflict, it must resolve the conflict. Flexible anti-formalism characterizes the first phase, while a surprisingly extreme and rigid formalism characterizes the second phase.

In the first phase, because norm interpretation rules fail to constrain, and legal language is often open-textured, courts may adopt expansive or narrow norm interpretations. Broad norm interpretation results in finding that norms stand in a posture of conflict, while narrow norm interpretation can avoid conflict. Moving to the second phase, if a court has found a norm pair to be in a posture of conflict, the rigidly formalistic ordering and axioms come to bear. Here, a court can do little more that mechanistically apply the ordering and axioms to arrive at unavoidable and indisputable results. So rigidly formalistic are the axioms and ordering that the second phase resembles a perfunctory, ministerial act, with ultimate substantive outcomes all but prepackaged in the finding that a norm pair either does or does not stand in a posture of mutually exclusive conflict.

A main function of rigidly formalistic rules, such as the axioms and ordering identified herein, is to tightly constrain courts. Yet the broad and flexible discretion afforded courts in the norm interpretation phase undermines any constraining effect that the rigid axioms and ordering could exercise on judges. Thus, for example, when interpreting norms broadly would bring a norm pair into mutually exclusive conflict, and the rigid formalism of the twin axioms and ordering would resolve that conflict in a substantively undesirable way, a court can use its interpretive discretion to narrowly interpret the norms, avoid the conflict, and thereby reach the opposite substantive outcome. Why bother with a constraining formalistic set of axioms and ordering in the norm conflict resolution phase, when courts can so easily evade those constraints through flexible interpretive discretion in the norm interpretation phase? This is the central puzzle underlying a practice so closely juxtaposing extreme formalism and anti-formalism.

Keywords: formalism, adjudication, norms, interpretation, discretion, conflict

JEL Classification: K40

Suggested Citation

Gonzalez, Carlos E., The Logic of Legal Conflict: The Perplexing Combination of Formalism and Anti-Formalism in Adjudication of Conflicting Legal Norms. Oregon Law Review, Vol. 80, No. 2, Summer 2001. Available at SSRN: or

Carlos E. Gonzalez (Contact Author)

Rutgers Law School ( email )

United States
973-353-5065 (Phone)
973-353-1445 (Fax)

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