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Why Judicial Formalism is Incompatible with the Rule of Law

  • Marcin Matczak

Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of the main tenets of the rule of law. In this paper, I argue that judicial formalism is based on a misguided model of language, and as such cannot deliver what it promises. In fact, judicial decisions based on formalistic reasoning are surprising to their addressees and instead of promoting predictability, they undermine it. A judicial strategy fully compliant with the rule of law requires a different vision of language than that proposed by judicial formalism, and as a consequence, a different, moderately non-formalistic conception of legal interpretation.

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1. Brian Bix, in A Dictionary of Legal Theory (Oxford University Press, 2004) at 69-70, defines ‘formalism’ as a group of opinions about legal interpretation that includes both textualism and other opinions accepting as correct interpretation consistent with the original legislative intentions.

2. Textualism supports a so called “plain meaning” understood as an acontextual meaning resulting from the semantic autonomy of language, i.e., the capacity of language to convey meanings independently from the speaker’s intent. See Anthony D’Amato, “Counterintuitive Consequences of ‘Plain Meaning’” (1991) 33:3 Ariz L Rev 529.

3. See Frederick Schauer, “Formalism” (1988) 97:4 Yale LJ 509.

4. Ibid at 522

5. “Of all the criticisms leveled against textualism, the most mindless is that it is “formalistic.” The answer to that is, of course it’s formalistic! The rule of law is about form,” see Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, edited by Amy Gutmann (Princeton University Press, 1997) at 25.

6. Marcus Tullius Cicero, On Obligations (De Officiis), translated by PG Walsh (Oxford University Press, 2008) at 33.

7. “Predictability ranks fairly high among the legal virtues. It is part of what people mean by the Rule of Law. When the law is uncertain, human autonomy itself suffers, since without knowing what is permitted and what is forbidden it is less safe to act at all”. Maimon Schwarzschild, “Keeping It Private” (2007) 44 San Diego L Rev 677 at 686.

8. Paul N Cox, “An Interpretation and (Partial) Defence of Legal Formalism” (2003) 36 Ind L Rev 57 at 58.

9. Neil Duxbury, Patterns of American Jurisprudence (Clarendon Press, 1995) at 9.

10. See Bix, supra note 1.

11. See Thomas Grey, “The New Formalism” (1999) Stanford Law School Public Law and Legal Series Working Paper No 4.

12. Cox, supra note 8 at 61.

13. See Roscoe Pound, “Mechanical Jurisprudence” (1908) 8:8 Colum L Rev 605.

14. See Mark Tushnet, “Anti-Formalism in Recent Constitutional Theory” (1985) 83:6 Mich L Rev 1502 who perceives formalism as an artificial narrowing of available interpretative choices.

15. Schauer, supra note 3 at 522.

16. Ibid at 512; Cass Sunstein, “Must Formalism Be Defended Empirically?” (1999) 66:3 Chicago L Rev 636; Pildes, 1999 Richard H Pildes, “Forms of Formalism” (1999) 66:3 Chicago L Rev 607 at 612.

17. Schauer, supra note 3 at 519.

18. Ibid.

19. William N Eskridge, “The New Textualism” (1990) 37:4 UCLA L Rev 621 at 648.

20. Burton, Steven J, Judging in Good Faith (Cambridge University Press, 2004) at 141.

21. Kozak, Artur, Granice prawniczej władzy dyskrecjonalnej (Kolonia Limited, 2002) at 78.

22. Frederick Schauer, “Formalism: Legal, Constitutional, Judicial” in Gregory A Caldeira, R Daniel Kelemen & Keith E Whittington, eds, The Oxford Handbook of Law and Politics (Oxford University Press, 2008) 428 at 433-34.

23. Hodder-Williams, Richard, Judges and Politics in the Contemporary Age (Bowerdean, 1996) at 2.

24. Eskridge, supra note 19 at 667.

25. Schauer, supra note 3 at 548.

26. Sunstein, supra note 16 at 654.

27. See Jesper Kallestrup, Semantic Externalism (Routledge, 2012).

28. Krygier, Martin, “Ethical Positivism and the Liberalism of Fear” in Campbell, T & Goldsworthy, J, eds, Judicial Power, Democracy and Legal Positivism (Routledge, 2000) at 63.

29. Fuller, Lon L, The Morality of Law (Yale University Press, 1969) at 39, 8189 ; Waldron, Jeremy, “The Rule of Law and the Importance of Procedure” in Fleming, JE, ed, Getting to the Rule of Law (New York University Press, 2011) 3 at 8.

30. Krygier, supra note 28 at 63.

31. Waldron, supra note 29 at 4.

32. Saul A Kripke, Naming and Necessity (Basil Blackwell, 1980) at 25-29. One important feature of semantic internalism is its reliance on the speaker’s internal states of mind, in particular his or her intention, when identifying meaning. This reliance could suggest that semantic internalism rather than legal formalism underpins another normative theory of interpretation, namely intentionalism. In this paper, I leave aside the issue of whether semantic internalism may serve as a theoretical basis for other normative theories of legal interpretation to focus on the criterial characteristic of meaning (rather than on its intentional aspect). This is not to say that an insurmountable dichotomy exists between the criterial and the intentional aspects of semantic internalism. To the contrary, within the semantic internalism the object of the speaker’s intention, what the speaker’s intention is about, is a set of criteria and their application to the reality.

33. The criticism concerning the use of definitions in legal interpretation can itself be questioned on the basis that varieties of formalism exist which make use of corpus linguistics instead of definitions when interpreting legal texts. In response, I would argue that making use of corpus linguistics to analyse the real meaning of the words does not rule out a criterial approach. Corpus analysis may lead to the formation of a set of criteria to be applied to a new case (a formalist, criteria-based approach), or can be paradigm-based. Consider whether a kung-fu master’s use of his hands during a robbery qualifies as the use of a dangerous tool. A corpus-based analysis of this case may lead to the identification of criteria that a dangerous tool must fulfil, and that analysis will be formalistic even if it does not make use of dictionary definitions.

34. Putnam, Hilary, “The Meaning of ‘Meaning’” in Mind, Language and Reality. Philosophical Papers, vol. 2 (Cambridge University Press, 1975) 215 at 227.

35. Millikan, Ruth Garrett, Language, Thought and Other Biological Categories: New Foundations for Realism (MIT Press, 1984) at 28.

36. Nicos Stavropoulos, Objectivity in Law (Clarendon Press, 1996) at 10.

37. Kripke, supra note 32 at 91-92.

38. Hughes, Christopher, Kripke: Names, Necessity, and Identity (Clarendon Press, 2006) at 36.

39. Stavropoulos, supra note 36 at 8.

40. Kripke, supra note 32 at 106.

41. Devitt, Michael, Designation (Columbia University Press, 1981) at 26.

42. Ibid at 138.

43. Millikan, Ruth Garrett, Language: A Biological Model (Oxford University Press, 2005) at 38. Lineages can be understood as historically perceived Wittgensteinian language games.

44. In this paper I assume that the original area of application of semantic externalism, namely proper names and natural kind terms, may be extended to include fields of social practice where one uses theoretical concepts, and law is undeniably such a field. The scope of this paper prevents me from proving the validity of the assumption made. However, the viability of extending semantic externalism to cover concepts other than proper names or natural terms has been demonstrated in Stavropoulos, supra note 36 at 67-68, where he treats at length semantic externalism’s relevance for the language of law, and Devitt, supra note 41 at 199, who suggests that the causal theory of reference can be applied to terms other than proper names and natural terms, for example to theoretical concepts. See also Tyler Burge, “Individualism and the Mental” (1979) 4:1 Midwest Studies in Philosophy 73 and David O Brink“Semantics and Legal Interpretation (Further Thoughts)”, 1989 and David O Brink, “Semantics and Legal Interpretation (Further Thoughts)” (1989) 2:2 Can JL & Jur 181.

45. Stavropoulos, supra note 36 at 46.

46. “Howard Wettstein distinguishes ‘definition-based’ from ‘paradigm-based’ stories about the application of general terms. On the paradigm-based story, one is ‘exposed to a certain number of cases, and … perhaps corrected on a number of occasions on the application of the term, one [then] gets the feel for what is to count as a genuine application of the term, somewhat like the way one gets the feel for how to serve in tennis.’” Jackson, Frank, From Metaphysics to Ethics: A Defence of Conceptual Analysis (Oxford University Press, 1998) at 65.

47. Recanati, François, Literal Meaning (Cambridge University Press, 2004) at 141.

48. Ibid at 143. Although Recanati does not use her terminology, the chains of the source situations resemble Millikan’s lineages.

49. This is an actual case heard by the Polish Supreme Court.

50. Recanati, supra note 47 at 143.

51. Ibid at 147.

52. Frederick Schauer, Playing by the Rules. A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford University Press, 1991) at 113.

53. William N Eskridge & Philip P Frickey, “Statutory Interpretation as Practical Reasoning” (1990) 42:2 Stan L Rev 321 at 348.

54. Schauer, supra note 52 at 100.

55. Barak, Aharon, Purposive Interpretation in Law, translated by Sari Bashi (Princeton University Press, 2005) at 26.

56. See Stanley Fish, “There Is No Textualist Position” (2005) 42:2 San Diego L Rev 629.

57. John F Manning, “The Absurdity Doctrine” (2003) 116:8 Harv L Rev 2387 at 2393.

58. Celeb Nelson, “What is Textualism?” (2005) 91:2 Va L Rev 347 at 376.

59. Christopher Hutton, Word Meaning and Legal Interpretation: An Introductory Guide (Palgrave Macmillan, 2014) at 44.

60. Schauer, supra note 52 at 17.

61. Roy Harris & Christopher Hutton, Definition in Theory and Practice: Language, Lexicography and the Law (Bloomsbury, 2007) at 212.

62. Hutton, supra note 59 at 45-46.

63. 149 US 304.

64. Excise tax, for instance, is widely used to burden the sale of luxury products, like perfumes, or products (like tobacco and alcohol) whose use the government discourages. On the other hand, sometimes lower rates of VAT are introduced for products whose use is supported by the government (e.g., books or newspapers).

65. .Hence, in Nix v Hedden, supra note 63 at 307, the Court openly diminished the role of definitions in understanding legal text: “dictionaries are admitted not as evidence, but only as aids to the memory and understanding of the court.”

66. 508 US 223.

67. Ibid at 229, the Court explicitly cited the definitions of “to use” from Webster’s New International Dictionary (“to convert to one’s service” or “to employ”) and from Black’s Law Dictionary (“to make use of; to convert to one’s service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of”).

68. This one exception is a colloquial and intransitive use of the verb and represents a separate lineage; e.g., “My brother is using.” Oxford Living Dictionaries, sub verbo “use” (definition 2.1), online:

69. That the definition-based approach of the court is too broad is the main topic in Justice Scalia’s dissent to Smith v United States. As he points out in supra note 66 at 241-42, the word “to use” is “elastic” as its meaning can “range all the way from ‘to partake of’ (as in ‘he uses tobacco’) to ‘to be wont or accustomed’ (as in ‘he used to smoke tobacco’).”

70. Recanati, supra note 47 at 91 and 133 points out that “the word ‘get’ takes on different senses—denotes different relations—depending on what fills the second argument-place of the relation”. The examples he gives include ‘to get the virus’ (‘to contract’) and ‘to get some eggs’ (to acquire). Another example is “to cut” (‘John cut the grass’ and ‘John cut the cake’). A similar remark is made by Justice Scalia, supra note 66 at 245, in his dissent: “Just as adding the direct object ‘a firearm’ to the verb ‘use’ narrows the meaning of that verb”.

71. Fuller, supra note 29 at 39, 81-89.

72. Nelson, supra note 58 at 361.

73. See Frederick Schauer & Virginia Wise, “Nonlegal Information and the Delegalization of Law” (2000) J Legal Stud 495.

74. According to MJ Horwitz, The Transformation of American Law, 1780-1860 (Harvard University Press, 1977) at 254 formalism equates to a refusal to admit that law has instrumental functions. Pildes, supra note 16 at 612, defines formalism as an adherence to the rules without consideration of their purpose.

75. Barak’s theory of interpretation, mentioned in footnote 49 above, intuitively relies on that purposive and functional approach to language. Although Barak does not explicitly support semantic externalism, his conviction that legal language is always used for a purpose, and that the goal of interpretation is to discover this purpose, is in line with the externalists’ conviction that every linguistic tool has a proper function. Cf Millikan, supra note 35 at 17. In other words, Barak’s purposivism is a normative theory of legal interpretation that gets support from the descriptive model of language proposed by semantic externalism.

76. Antonio Rauti, “Multiple Groundings and Deference” (2012) 62:247 Philosophical Quarterly 317 at 317-18.

77. See Ronald Dworkin, Law’s Empire (Harvard University Press, 1986).

78. Antonin Scalia, “The Rule of Law as a Law of Rules” (1989) 56:4 U Chicago L Rev 1175 at 1179

79. As remarked in a 1988 article, Ernest Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988) 97:6 Yale LJ 949.

The author would like to thank the anonymous reviewer for helpful and constructive comments that contributed to improving the final version of the paper.

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