Commenting on Larry Solum’s Legal Theory Lexicon entry on Formalism and Instrumentalism, drhfk recommends recasting the debate as the distinction between first and second order oberservation. This distinction derives from systems theory (particularly Luhmann), and rests on the concept that a social system (such as law) is marked by a fundamental dichotomy (such as “lawful/unlawful”) and that this fundamental dichotomy is applied by first-level observers (lawyers, judges, etc). To find out what law is, you would observe what lawyers and judges etc. are doing: how they apply the fundamental dichotomy and when. That is second-level observation.
I agree that formalism vs. instrumentalism can be recast as first-level vs. second-level observation. Deciding a case, by asking what the law is, is first-level observation; asking what law is, what the law should be, and what effect it has in society, is second-level observation. But it gets fuzzy quickly, and I think the distinction cannot take us as far as drhfk envisions:
In practice, every lawyer oscillates between first and second order observation. However, it remains a requirement of the legal system that every decision be issued and every claim be made on the basis of the code of the legal system: lawful/unlawful. And that requires us to assume the internal perspective of a first order observer. A plaintiff may, in fact, win because his or her victory is efficient, just, or politic. But a court could never say so, or else its ruling would be extra-legal communication. The plaintiff wins because (extra-legal) considerations of efficiency, justice, or national security (visible to the judge as a second order observer) have convinced the court (as a first order observer of the law) that, based on statute or precedent, the plaintiff has a right to the remedy.
What does it mean that the court could never say so? Is it “cannot” or is it “must not”?
To see what “cannot” looks like, imagine a game of chess. One of the players moves his bishop forward on the vertical column and takes his opponent’s piece. Bishops only move on the diagonal in chess. Moving the bishop like a castle is not only a wrong move, it is no move at all: The rules of chess define not only correct/incorrect moves, but also moves/non-moves. Consistently moving the bishop like a castle is meaningless. The game is over, or it is not chess.
Is that how law works? Are there impermissible moves in a judge’s opinion that render the argument extra-legal, such as handing one side the victory based on extra-legal (instrumentalist) considerations and saying so? Or is any argument, simply by virtue of having been written by a judge in his opinion in a formal legal proceeding, a legal argument? The latter is the case from a systems-theory standpoint, but I am not sure that this helps much in explaining the differences between formalism and instrumentalism.
First notice here a subtle stylistic difference between code-based legal systems and the common law. Code-based legal systems tend to incorporate instrumentalist arguments into their legal considerations, by slapping the label “law” on them, if you will. Instrumentalist arguments are viewed as being legal, but of a different order. For example, legal argument may be both de lege lata or de lege ferenda (”law as it has been laid down” or “law as it should be made”). The thrust is to consider everything a judge does legal.
The common law has resisted this move, and has done so long before realism. Equity is an example: It is conceived as a separate normative system, and the premise of equity is that an outcome at (common) law is wrong or otherwise unsatisfactory and requires fixing in a manner the (common) law cannot provide. There were other such separate “legal” systems: ecclesiastical law, the law of the manorial and mayoral courts, the law merchant. In modern times, realism has insisted not only that a formalist legal argument may hide instrumentalist considerations (and other factors), but also that doctrinal and instrumentalist considerations cannot be distinguished. The radical realist position is that there is no law, that the judge should make reference only to instrumentalist considerations, and that the legal form of arguments is at best harmless and at worst serves to obscure the real meaning of the decision behind a cloud of transcendental nonsense.
Here is an example of how internal and external perspectives play out in real life. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Supreme Court faced the question whether to overrule Roe v. Wade. In considering stare decisis, the Court states that “a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” What special reason could this be but an external, instrumentalist reason? Any internal reason would merely make the prior case wrongly decided. The Court goes on to consider its own prestige and reputation:
In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.
License
This work is published under a Creative Commons Attribution-Noncommercial 2.5 License.
0 Responses to “Formalism, Instrumentalism, and Planned Parenthood v. Casey”