Law and Formalism
University of San Diego School of Law
San Diego Legal Studies Paper No. 07-18
On Line Journal of the Law Faculty of Torcuato di Tella University, Buenos Aires, Argentina, Forthcoming
My thesis is simple: law is essentially formalistic. My plan to establish this thesis is as follows: First, I define what I mean by formalism. Second, I present my argument for why law is essentially formalistic. I maintain that the problem law is meant to solve is that of information, not immoral motivation - that men are not gods, rather than that men are not angels. To solve this problem, law must consist of determinate rules. Standards are unhelpful. And theories of law such as the "justice-seeking Constitution" or other heavily moralized versions of constitutional or statutory interpretation recreate the very problem law is meant to solve.
Third, I identify the basic dilemma that formalistic law presents and then canvass various methods that have been advanced as solutions to that dilemma. The dilemma raises the question whether formalism, and hence law, is a possibility for fully rational agents who understand its nature. Finally, I raise, not the question whether formalistic law is possible, but the question whether formalistic law is by its very nature a violation of deontological side constraints. I conclude that law may turn out to be a moral possibility only for consequentialists.
Number of Pages in PDF File: 39
Keywords: rules v standards, settlement function, coordination
JEL Classification: K10
Date posted: October 19, 2005