Law & Society Blog

Following up on a post by Larry Solum and other posts in this blog (for example here and here), I would like to explore what I consider to be a sensible theory of legal formalism.

In order to understand legal formalism, it is helpful to begin with a rough sketch of the core features of legal realism. Legal realism is the descriptive, non-normative study of what determines a judicial decision. Often, the goal of legal realism is explicitly stated as uncovering the causal relationship between inputs (facts and law) and output (decision). Legal norms, according to the realists, are not particularly determinative inputs. Judges are fact driven to a much greater extent than they are norm driven. And there are a number of good reasons for this peculiar weakness of norms as determinants of judicial behavior. Laws are indeterminate, that is, the judge doesn’t get an unequivocal normative input. “Every contract in restraint of trade is illegal,” now what exactly is that supposed to mean? The indeterminacy thesis comes in (at least) two variants. One takes the internal, first-order perspective into account and argues that there is no “one right answer,” which is a form of hermeneutic indeterminacy. Different canons of construction will lead to equally plausible yet contradictory claims, either in all cases, so the more radical versions of the indeterminacy thesis, or at least in “hard cases,” so the more moderate versions. (The same applies, of course, to choosing among the canons themselves.) The other variant, true to the naturalistic roots of realism, assumes the position of a second order observer, for example that of a sociologist, who is observing the judge, who thinks (or rather, is trapped in the delusion) that he or she is “finding” the right answer to a dispute by applying facts to norms. The sociologist is able to see the real determinants of the judge’s behavior, which are either rooted in the judge’s individual psychology or in his or her socialization and features of the social universe at large. Critical legal studies, the heirs of traditional legal realism, take the latter position as their point of departure.

Now what about formalism? Formalism claims that judicial decisions are norm driven, not fact driven. In my view, this claim is correct, it is almost correct by definition, but only if formalism is understood in a very specific and somewhat technical manner. Legal systems are self-referential and self-replicating systems of communication. (Some writers have referred to such systems as autopoietic, but that term carries too much unnecessary baggage for my taste.) In other words, the elements of a legal system produce the elements of a legal system that produce the elements of a legal system, ad infinitum. In this sense, legal systems are closed. They contain nothing and consist of nothing but legal communication. Everything else, including judges, lawyers, courthouses, jails, minds, brains, the world at large, is emphatically not part of the legal system. That is not to say that the legal system could exist without its environment, of course it couldn’t. But the legal system and its environment do not merge. Explaining a legal decision as caused by its environment is similar to explaining thoughts (or other mental states) as caused by the brain. While the mind is structurally coupled to the brain, both operate independently and at no point do their operations merge. Mental operations connect to mental operations connect to mental operations and neuro-physiological operations connect to neuro-physiological operations connect to neuro-physiological operations. But at no time does a thought connect to a neuro-physiological operation and vice versa. The mind cannot access the brain, and the brain cannot access the mind. In the same manner is communication independent from mental operations. Communications are not thoughts and thoughts are not communications. They are both structurally coupled, because without minds there would be no communication, but they do not merge. The legal system is a communicative system. Its elements are legal communications, that is, communications using lawful/unlawful as their operative distinction. Only legal communications connect to legal communications. And that’s what results in the autonomy of the legal system. The legal system is autonomous in its decision as to what (in its environment, seen from from the vantage point of the legal system) is legally relevant, that is, the decision of legal relevancy can only be made on the basis of (prior) legal communications. For example, economics is not about to “overcome” law (as Posner claims). Rather, the law selectively assimilates economics on its own terms. And that leads to the conclusion that the closure of the legal system is a prerequisite for its openness. That is not a paradoxical statement. Consider a cell, which is operationally closed but energetically open. Whatever molecule enters a cell and thus becomes part of the cell metabolism enters only because the cell selectively chooses to “let it in.” In the process, the molecule assumes an additional role as an element of the cell, which is now defined by a self-referential and self-replicating biological system. Of course, we could track the molecule from the outside, but that would tell us little more about the operations of the cell metabolism than observing the judge tells us about the law. Legal formalism is correct in insisting on the autonomy of the legal system. The legal system draws its own boundaries, and it draws it according to legal criteria and legal criteria only. Legal formalism is incorrect when it confuses autonomy with autarky. Legal systems do not exist in a vacuum, they depend on their environment, and they selectively incorporate it. Legal realism is correct in reminding us of the significance of that environment to the legal system. Legal realism is incorrect to the extent that it confuses different modes of operation, for example, legal communication with preferences, interests, or states of mind.