INTRODUCTION

Legal systems recognize varied functional units that are preceptual in nature, including rules, principles, maxims, and general orders. Each variety takes its own overall form. When well-designed, such purposive systematic arrangements can contribute to the realization of policy or other preceptual content. As Jhering held, there can be no realization of such content without form. Due form in rules can also serve general values of the rule of law, and these values may even conflict with, and justifiably over-ride, policy or other content to an extent, a truth I stress here. Form in rules can contribute as well to the realization of democracy, justice, freedom, security, rationality, and other fundamental political values. As we will see, the form and formal features of rules leave major imprints and other effects on the contents of rules. Here, too, much of what may already be familiar will be presented anew in the idiom of form and the formal.

Rules have long occupied legal theorists and other scholars. Rules may be said to be the “workhorse” precepts of legal systems and are worthy of extended attention. Yet despite the long history of legal studies, the overall form of rules and its constituent features have not received their due. It will be sufficient to concentrate here on a common paradigm of the overall form of a statutory rule, the constituent features of such form, complementary content, and how all these are unified.

INTRODUCTION

This chapter opens with a general account of, and rationale for, the selection of functional legal units to be treated in this book. Thereafter I develop and refine my general definition of the overall form of any such unit as the purposive systematic arrangement of the makeup, unity, instrumental capacity, distinct identity, and other attributes of that unit. I then set forth the justifications for adopting this general definition of form.

Next, I turn to the varied types of general purposes that determine the systematic arrangement of any functional legal unit. I then clarify the main difference between the overall form and constituent formal features of a legal unit and the complementary material or other components of that unit. I also explain why I have not adopted the perhaps more familiar “form v. substance” contrast as central. Along the way, I explain how my uses of “form” and “formal” are similar to, or different from, certain ordinary uses of these words in English and also similar to, or different from, certain technical uses of these words by legal theorists and other scholars.

A SELECTION OF FUNCTIONAL LEGAL UNITS AND THEIR OVERALL FORMS

As we have seen, a functional legal unit may be institutional in nature, such as a legislature, or preceptual, such as a statutory rule, or a nonpreceptual species of law, such as a contract, or a methodological unit, such as an interpretive methodology for statutes, or an enforcive unit, such as a sanction of imprisonment.

INTRODUCTION

In this and in the next five chapters, we will systematically concentrate on a selection of paradigms of functional legal units in developed Western legal systems. One general type of unit is institutional, and includes: legislatures, courts, administrative agencies, other entities such as state corporations, and special bodies that administer sanctions, and deploy other enforcive devices. To demonstrate how it is possible to advance understanding of legal institutions through the study of their overall forms and the imprints and other effects of these forms and to reveal the types of credit that may be due such forms when well-designed, we will illustratively analyze the overall form of a single major variety of institution – that of the centralized legislature with substantial nationwide jurisdiction. Although the analysis that follows is addressed generally to an abstract paradigm of centralized legislatures in developed Western systems and although there are variations in how these legislatures converge on this paradigm, the analysis here can be readily applied, by extrapolation, to particular legislative institutions in these systems. The analysis can also be readily applied, mutatis mutandis to courts, administrative agencies, and still other institutions. Much of what may already be familiar will be presented anew here in the idiom of form and formal.

I first lectured on themes here while I was the Arthur L. Goodhart Visiting Professor of Legal Science at Cambridge University in 1991–2, and began the book a number of years later. I have written it not only for those with academic interests in law and legal systems, such as law students, professors of law, legal theorists, and other scholars, but for lawyers and judges as well. The scope of the book is not confined to Anglo-American systems. It is addressed more generally to the forms and functions of legal phenomena in developed Western societies, and its central themes apply still more widely. I now offer the book as an ambitious yet unhurried attempt to develop systematic ways of giving form in law its due, both as an avenue of understanding and as a means of serving a variety of purposes: policy and related ends, rule of law values, and fundamental political values.

I focus here on paradigms of the forms of a varied selection of functional legal units: legislatures and courts; statutory and other rules; species of law besides rules, such as contracts and property interests; legal methodologies, such as those for interpreting statutes; and enforcive devices, such as sanctions and remedies. In addressing the make-up, unity, instrumental capacity, distinct identity, and other attributes of these functional legal units with focus on their forms, the book provides a new way of viewing the familiar.

INTRODUCTION

In the preceding chapter, I defined and clarified central concepts and terminology in the general theory of legal form set forth in this book. The present chapter is also broadly methodological, but differently so. Section Two is devoted in summary terms to general questions of approach that arise in seeking to advance understanding of functional legal units by focusing on their overall forms. Section Three treats possible empirical and other methodological issues that may arise in attributing credit to forms for ends realized through such legal units. Section Four explains the major differences between a Hartian “rule-oriented” approach to the problems addressed in this book, and what I deploy here as a “form-oriented” approach.

ADVANCING UNDERSTANDING THROUGH STUDY OF FORM

Through study of the overall form of a functional legal unit, of constituent features of this form, and of any forms of component parts of a unit, it is possible to advance understanding of the unit as a whole. Such understanding is worth having for its own sake, as well as for its instrumental value. What, then, is it to understand a functional legal unit?

INTRODUCTION

Law in due form must be created, but once created, it is not self-implementing. This is true of law in the form of precepts such as statutory rules and common law principles, nonpreceptual species of law such as contracts and property interests, and all other varieties of law, whether state-made or privately created. Law must be implemented by its addressees. These include private individuals and entities, and public officials and bodies of all kinds. The law to be implemented must be validly made in the first place, and we have seen how form can figure in this. Valid law must also be accessible and duly communicated, and form is essential here, too. For addressees to implement valid law effectively it must be in form and content suitable for implementation.

In earlier chapters, we saw how form defines and organizes law creating institutions and processes. We also saw how formal records facilitate reliable determinations that purported law to be applied today was validly created in the past. We also saw how choices of well-designed form in rules, in contracts, and in other species of law thus validly created, can contribute to the capacity of addressees to formulate reasons for determinate action and decision arising under such law.

INTRODUCTION

A highly concrete, felicitous, and revealing way to draw together, summarize, and highlight major contributions of duly designed form in a standard modern use of law that has itself been highly successful, is: (1) to present a synoptic overview of the main stages in an illustrative linear progression in which functional legal units are deployed concurrently or in sequence to create and to implement law to serve a standard legal policy, (2) to identify how systematizing devices, and resultant formal features of the legal system as a whole, contribute in this overall process, focusing especially on how various legal units are, at these main stages, combined, integrated, and coordinated within one or more of the law's five basic operational techniques for the creation and implementation of law, all in accord with principles of the rule of law, (3) to identify and review how major choices of form and of complementary material or other components in discrete legal units, and how major choices of form in the formation of the system as a whole, contribute by way of imprints and other effects to the operation of this progression at each stage, and (4) to consider the cumulative and synergistic effects of such choices of form and complementary material and other components, at each stage and at subsequent stages of the progression, as these imprints and other effects converge and add up in the processes and outcomes involved, and thus ultimately contribute to the realization of purposes.

INTRODUCTION

The legal system of a developed Western society includes a vast heterogeneous array of what may be called “first-level” functional legal units. These varieties take their own overall forms, and have their own constituent formal features, with complementary material and other components. In Chapters Four through Nine, we considered a selection of major varieties of such functional units: institutions of a legislative nature, precepts consisting of rules, nonpreceptual law including contracts and certain property interests, interpretive methodologies, and sanctions and remedies. We now turn to how what I will call various “second-level” systematizing devices organize these first-level units (and still others) into the overall form of a legal system as a whole. The overall form of this resulting system is itself a highly complex purposive systematic arrangement designed to govern in accord with law a population typically residing in a geographically contiguous area. The system-wide material and other components of this complex system include this population and this geographical area. H. L. A. Hart stressed that such a system as a whole includes a characteristic minimum of first-level “primary” rules in due form with content protecting persons, property, and promises. As I have emphasized, Hart should have stressed that the first level here also characteristically includes many other major varieties of functional legal units besides rules.

The discussion of law takes a radically different turn with Cicero. He departs not only from Plato, whom he regarded as his master, but also from the entire Greek tradition by taking little interest in what the Greeks emphasized: that law consists of rules that are clear and fixed and publicly known to be so. One reason for this may be that Cicero was reflecting on the very different experience of the Roman Republic where there was little law in the form familiar to Plato and Aristotle, that is to say, explicitly formulated rules authoritatively declared to the public. The Twelve Tables, which were supposedly based on Greek models and enacted in the middle of the fifth century, were not a set of rules, but decisions on certain matters that were commonly disputed. Their provisions varied in form as well as substance and, taken as a whole, the Twelve Tables hardly constituted a comprehensive system of law. Nor is it clear how they were related to the many different sources of lex or rules for both private and public actions.

Although in the early Republic lex was generally spoken of as a declaration of the unchanging law, it was by no means obvious whether such rules were enactments of new law or merely declarations of existing law. And what constituted existing “law” was far from clear. Not only the edicts of a great variety of magistrates, but also informal arguments were used to settle disputes.

Aristotle, like Plato, understood the character of law by analogy with a conception of the universe as a cosmos in which the elements of disorder are reduced to unity by reason. Just as reason governs the soul of a human being, so law is the source of order in communal life: “He who commands that law should rule may thus be regarded as commanding that God and reason alone should rule; he who commands that a man should rule adds the character of the beast. Appetite has that character; and high spirit, too, perverts the holders of office, even when they are the best of men. Law [as the pure voice of God and reason] may thus be defined as ‘Reason free from all passion.’” Moreover, Aristotle made the distinction between arbitrary government and the rule of law the foundation of his analysis of the varieties of political life. The manner of selecting the ruler or of apportioning offices was for him secondary to the question: Are all public decisions subject to rules of law? Monarchy, aristocracy, and politeia are all legitimate forms of government, Aristotle says, because they are all ruled by law, but a democracy, where the majority decide as they please from one moment to the next, is just as tyrannical as rule by one man without law because in both there is the same subjection to arbitrary will.

One reason why the renunciation of the idea of law has seemed plausible and gained increasing acceptance is the failure of Hobbes's successors to complete his account of law as a purely human artifact. They explored new aspects of the traditional idea by questioning and explicating much that had never before been noticed. But they failed to provide a way of understanding the relation of the rule of law to the civilization that it had shaped. The many refinements on the idea of law offered no adequate anchor for law in a world where human intelligence lacks the power to discover rational certainties such as Plato and Aristotle had relied on. The task of discovering a new kind of anchor for a system of legal rules was completed by Michael Oakeshott in what may be best described as a skeptical jurisprudence.

The originality and significance of Oakeshott's jurisprudence is, however, difficult to grasp. For it rests on the paradoxical character of Oakeshott's skepticism. The pattern for that character was established by David Hume. What makes both Hume and Oakeshott paradoxical is that, although they are skeptics in the sense that they recognize no rational source of indisputable truth, they could hardly be more antagonistic to nihilism. They both insist, without qualification, that men can know truth from falsehood and right from wrong.

An escape from the tension between justice and liberty was provided by Thomas Hobbes's radical renunciation of the ancient idea of a cosmos where human reason has access to indisputable knowledge. In his attack on Aristotelianism, Hobbes ruthlessly spelled out the implications of living in a Christian universe. By pursuing St. Augustine's rejection of the pagan universe to its logical conclusion, Hobbes unequivocally replaced the concern with law as a link to divinity and an instrument of education with a picture of law as man's only resource against violence in a world that has no anchor to indisputable truth. By exploring the postulates and implications of this picture of law, Hobbes defined a new set of questions and opened the modern discussion of law.

His account of law rests on a division of the universe into two wholly separate domains: a world of concrete contingent being, which men inhabit, confronting another wholly alien world of infinite being, God the Creator. This picture of the universe – which explains the novelty in Hobbes's conception of law – is a radical departure from the ancient and medieval conception of human beings as products of matter informed by God's reason. Instead, Hobbes's human being is a creature made by God out of nothing, not according to any pattern, but as God in his infinite power willed. As this God is a Creator, and not an intelligible principle, the reason of man cannot in any way penetrate His ideas.

No philosopher is more emphatic about the opposition between law and tyranny than Plato. He defines a tyrant as a ruler who is at liberty to do what he pleases, to kill, to exile, to follow his own pleasure in every act, and he condemns tyranny in a number of different contexts. In the Seventh Letter, he urges that Sicily should not be subject to the despot, but to law. In the Eighth Letter, he says that “either servitude or freedom, when it goes to extremes, is an utter bane. … The due measure of servitude is to serve God. The extreme of servitude is to serve man. The god of sober men is law.” To substitute the rule of law for tyranny ought to be the aim of every ruler, for only in that way could a city prosper. Indeed, so obvious is this truth, Plato concludes, that anyone disposed to establish a tyranny should “turn back and to flee for their lives. … Let them endeavor to put on the form of a king and to be subject to kingly laws, enjoying the highest honors by the consent of willing subjects and of the laws.” In the Statesman, Plato describes as the best of all constitutions “The rule of one man, if it has been kept within the traces, so to speak, by the written rules we call laws,” and he warns that when the rule of one man is “lawless it is hard, and the most grievous to have to endure.”

Edward H. Levi

Although ancient and medieval theorists of law took it for granted, as we have seen, that human law cannot produce certainty, only recently has the relationship between the logic of the law and its capacity to combine stability with change and uncertainty been spelled out. In the classic modern work on the subject, An Introduction to Legal Reasoning (1948), Edward Levi says bluntly that the law operates under a pretense: “The pretence is that the law is a system of known rules applied by a judge.” He goes on to explain that it is a pretense because no rule of law can absolutely specify a decision. This gap between general rules and particular decisions means that rules of law are always ambiguous. The ambiguity is inescapable because of the logical relationship between any general proposition and a more particular one. Any given particular can be fitted into a variety of general statements, and the particulars that could be implied by a general statement cannot be exhaustively stated. Thus, the character of the logical relationship between a general rule and a particular instance makes it impossible for any general rule, however clear, to yield only one correct decision.

Only with general statements of a perfectly abstract nature, as with figures the sum of whose angles is 180 degrees, can the particulars fitting under it be unambiguously identified. In the law, the rules are general but not abstract.

The new way of thinking about law, introduced by Immanuel Kant, has a surprising affinity with the philosophies of both Aristotle and Hobbes. For Kant derives his view of law from the requirements of moral integrity, but does so without appealing to either revelation or transcendent metaphysics. Kant has accordingly been acclaimed as the founder of the modern philosophy of law. Yet he has also been charged with having no philosophy of law.

Both reputations are plausible because Kant saw human beings as inhabitants of two wholly distinct worlds. On the one hand, their bodily existence makes them components of the natural, empirical world where all objects are moved by causes external to themselves. In this respect, human beings are mechanisms whose operation is determined by sensory stimuli in accordance with the laws that govern the natural world. But on the other hand, human beings are rational persons. They are not only capable of exercising “theoretical reason” to discover, as Newton had, the laws of the natural world, but they are also possessed of “practical reason,” which enables them to choose which purposes to pursue by means of utterances and actions without reference to contingent wants or circumstances. Human beings are consequently distinguished by the “freedom” to choose and to act as they “will.” Their frequent lack of power to achieve their purposes does not qualify this “freedom.” And their conduct cannot be said to be directed to their achievement of a single comprehensive end, such as “happiness.”