Law & Society Blog

In my opinion, the debate between formalism and instrumentalism can fruitfully be recast as the distinction between first and second order observations. The first order observer must by definition assume the normative relevance of the law. From an internal point of view, questions of indeterminacy will appear as issues of construction or interpretation and will be dealt with the tools provided by and immanent to the law. The second order observer, in contrast, has no built-in normative commitment. He or she looks at the law as text, literature, economic phenomenon, sediment of a power struggle, social institution, etc. In most instances, observing the first order observer (and the fact of his or normative commitment) is also a significant part of second order observation. (Strictly speaking, a second order observation is defined as observing another observer. For example, a sociologist observing a judge. But second order observation, at least in my view, is not limited to only observing observers.) 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.