Law & Society Blog

In Law and Formalism, Lawrence Alexander explains that law is essentially formalistic, because it addresses the problem of information, not of immoral motivation, or, as he puts it, “that men are not gods, rather than that men are not angels.” To solve the problem of information, “law must consist of determinate rules,” which are abstract and general directives for conduct. Standards or principles are unhelpful, because they import the very uncertainties into the law that formal legal rules were meant to overcome. The paradoxical result is that having a body of general and abstract rules is morally desirable, because such rules cannot do justice to each individual case.

What Alexander describes as formalism is more commonly known as the process of positivization of law, as prominently discussed by Emile Durkheim, Max Weber, and Niklas Luhmann. The two key elements of positivization are operational closure through functional differentiation and temporalization. Faced with rapidly accelerating social change and increasing commercial and intellectual interdependence in the Europe of the 16th and 17th Century, the problem of securing expectations could no longer be handled adequately by the moral and the religious systems. Positive laws with their characteristic formal qualities and the corresponding exclusive focus of the legal system on the distinction lawful/unlawful, provided both the reduction of complexity required to successfully secure expectations, and the flexibility to adjust to social change. The latter refers to temporality as the second defining feature of positive law. The laws of old were binding, because they could not be changed. Positive laws are characterized by just the opposite, they are not binding. A parliament is not bound by its own laws, it can always elect to change them, and a modern court is not bound by precedent, it can always overrule prior decisions. Thus the need for stabilizing features, such as a hierarchy of norms and of judicial organization.

I agree with Alexander that formalism, properly understood, is a necessary feature of positive law, if the law is to achieve its primary purpose of securing expectations by reducing complexity. I also agree that the main purpose of the law, so understood, is to solve a cognitive problem. I don’t believe, however, that standards are, in fact, quite as unhelpful as Alexander thinks they are. In fact, standards are necessary. Standards secure the expectation that no expectations can be fully secured by legal rules.

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