Thomas C. Grey - New Formalism

STANFORD LAW SCHOOL
The New Formalism
by
Thomas C. Grey
Stanford Law School
Working Paper No. 4

Date 9/6/99
Stanford Public Law and

Legal Theory
Working Paper Series
Stanford Law School
Crown Quadrangle
Stanford, California 94305-8610
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Work in progress, 9/6/99 – please don’t cite or quote without permission.
THE NEW FORMALISM
Thomas C. Grey
It has long been an insult in sophisticated legal circles to call someone a formalist. Thus
Duncan Kennedy can still write in a very recent and distinguished book that “[l]egal theorists ...
unanimously reject any kind of ‘formalism,’”1 glossing the term to refer either to an indefensible
theory of universally mechanical jurisprudence, or the more humble error of overemphasis on the
role of deduction in the working law.2
But within the last decade or so (overnight in jurisprudential time) this has changed;
formalism has become an important movement with prestigious champions. Their leader is
Justice Scalia, who proudly proclaims:
Of all the criticisms leveled against textualism, the most mindless is that it is
“formalistic.” The answer is that is, of course it is formalistic! The rule of law is about
form.... Long live formalism. It is what makes a government of laws and not of men.3
And Justice Scalia is hardly alone. Fred Schauer issued a “prolegomenon to a theory of
presumptive formalism”4 in 1988, and he has since developed his theory in an important book.5
Ernest Weinrib invokes the “discredited name of legal formalism” to designate his own
comprehensive theory of private law, insisting that “formalism ... embodies a profound and
inescapable truth about law’s inner coherence.”6 Robert Summers calls for an understanding of
“How Law is Formal and Why it Matters.”7 Richard Epstein proclaims Simple Rules for a
1
Kennedy, Critique of Adjudication (fin de siècle) 25 (1997). The subtitle makes clear that Kennedy
intends a timely rather than a timeless account of his subject. Similarly, Neil Duxbury’s recent learned and
comprehensive history of modern American legal thought, Patterns of American Jurisprudence (1995), makes no
reference to the revival of formalism, though he does take account of critical race and feminist developments in
legal thought that are no less recent.
2
Kennedy, 105-106: formalism is either the “theory [with] no known American proponents... that all
questions of law can be resolved by deduction”on the one hand; or on the other “the mistake of thinking that a
particular abstract legal norm can generate a particular subrule” or “a general tendency to overestimate the capacity
of norms in general to generate subrules by deduction.”
3
Scalia, in A Matter of Interpretation, xx.
4
97 Yale 509, 548.
5
Playing by the Rules.
6
Weinrib, The Idea of Private Law 21-22 (1995).
7
82 Cornell 1165.
Page 2 The New Formalism
Complex World as the cure for the contemporary plague of too much law and too many lawyers.8
And Robert Bork denounces the tempting of America from democracy and the rule of law by a
century of antiformalist jurisprudential heresies.9
Do all these “new formalists” describe a single phenomenon, as distinguished from a
scattering of positions designated by the same epithet? It is not immediately clear that the various
positions they support are even mutually consistent, much less that they support each other or
have a common rationale. We currently identify at least one very general and three more specific
jurisprudential tendencies as formalist.10
• Objectivism: At the most general level, formalists want law to be determinate -- to take
the form of rules rather than open-ended standards.11
• Originalism: In constitutional law, they favor originalism and reject the idea of a living
constitution.
• Textualism: In dealing with statutes, they favor text-based over purposive interpretation.
• Conceptualism: When they come to the common law, they prefer to treat abstract
categories like contract and tort as coherent structures of concepts and principles, rather
than as bodies of sublegislation generated in the course of judicial dispute-resolution.
Critics on the lookout for incoherence in present-day formalism will notice at least four
conflicts among these four tendencies.
8
Cite.
9
Bork, The Tempting of America.
10
Contemporary formalists have not much stressed two other familiar devices in the trick-bag of lawyers,
argument on the basis of precedent and argument by analogy. For reflection on precedent and its relation to rule-
based reasoning, see Schauer, Precedent; for reflection on the relation between analogical argument and systematic
reasoning, see Sunstein, Legal Reasoning and Political Conflict, chapters 2 and 3.
11
Determinacy as sought by formalists has nothing to do with Professor Dworkin’s thesis that the law
provides a right answer even in hard cases. Cases are hard because reasonable lawyers differ about how they should
come out (in Dworkin’s terms, about what the right answer is). Formalist objectivism has to do with how many
cases are hard (the fewer the better, ceteris paribus), not with whether we should regard judicial decision in such
cases as the search for the right answer or the exercise of discretion. It is not about truth, but agreement. See
Waldron, The Irrelevance of Moral Objectivity, in R George (ed), Natural Law Theory (1992).
Similar considerations apply to Margaret Jane Radin’s thoughtful examination of the extent to which
Wittgenstein’s critique of the concept of “following a rule” undermines traditional notions of the rule of law.
Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781 (1989). Radin notes, id. at 783, that
under that critique "agreement in action does not follow from there being a pre-existing rule; agreement in action is
the only basis for claiming that there is a rule." Relative “agreement in action” is all I mean by determinacy here,
though a Wittgensteinian “social practice” conception of rule-following can affect the implications of concepts like
“original meaning.”
Thomas Grey Page 3
• Originalism vs. Textualism: The preference for linguistically oriented statutory

interpretation, particularly the rejection of resort to legislative history associated with it,
seems inconsistent with the originalist emphasis on framer intent in constitutional law.
• Objectivism vs. Textualism/Originalism: Both textualism and originalism can cut

against the objectivist general preference for rules, when fidelity either to plain meaning
or original intent requires a flexible standard rather than a clear rule.
• Conceptualism vs. Objectivism: The abstractions that emerge from conceptualist

doctrinal elaboration tend to produce either open-ended standards or ambiguities; only a
more frankly legislative approach is likely to produce determinate rules.
• Conceptualism vs. Textualism/Originalism: Both textualism and originalism suggest

taking each piece of enacted law on its own terms, and so they resist the urge toward
overall coherence that drives the formalist approach to common law.
The charges of incoherence support those who see contemporary formalism not as a
serious jurisprudential movement, but as a conceptually unrelated set of strategic interventions
into legal theory, united only by the support they offer to the various projects of conservative-
libertarian politics. And of course neo-formalists do tend to be Reagan-Thatcher conservatives in
their politics. It is equally true that most of the functionalist critics who brought an older
formalism into disrepute early in this century were political Progressives. In each case, it is easy
to see how the legal theory helped advance positions favored by the political movement.
But there was more to functionalism than partisan ideology; for one thing, it attracted
some conservatives, notably its great founding figure Holmes. Similarly, leading promoters of
contemporary academic formalism include liberals like Fred Schauer and Akhil Amar. I think
there is plenty of food for thought left over after purely political explanation has done its work on
this important new movement in legal thought.
The claim of inconsistency can be met by careful delineation of the scope and force of the
four apparently conflicting strands of contemporary formalism. The factor unifying these strands
is what Justice Scalia said it was in the passage quoted above, the urge to establish the rule of
law, and particularly the commitment to an independent judiciary, as an important constituent of
the working theory of liberal government.
Most believers in liberal democracy, not just conservative libertarians, are committed to
the linked ideals of the rule of law and an independent judiciary. The adoption of the rule of law
as one of the pillars of post-communist political reconstruction in Eastern Europe has greatly
enhanced the prestige of this concept in the West. Contemporary legal theorists of all ideological
stripes would like to have a theory of law that accommodates and indeed supports these
commitments.12
12
See the explicit statements of acceptance of the rule of law as a political value by writers of a Critical and
political left orientation: Kennedy, Critique of Adjudication, at 13-14; Radin, note 10 supra. Cf the well-known
debate between E P Thompson and Horwitz over whether leftists can accept adherence to the ideal of the rule of law
The rule of law, a concept as contested as it is beloved, is sometimes described in such

sweeping terms that it seems to encompass all the political virtues.13 But Duncan Kennedy (not
given to liberal pieties) offers an unsentimentally minimal version that I will take as my guide:
The version of the rule of law that I... [support] as a matter of political morality ...
requires: That there be justiciable legal restraints on what one private party can do to
another, and on what executive officials can do to private parties; That judges understand
themselves to be enjoined to enforce these restraints independently of the views of the
executive and the legislature, and of political parties; That judges understand themselves
to be bound by a norm of interpretive fidelity to the body of legal materials that are
relevant to whatever dispute is before them.14
In what follows, I’ll try to show how this mainly institutional concept of the rule of law,
stressing an independent judiciary as its heart and soul, gives coherence and unity to the disparate
strands of the new formalism. First, I set the inquiry in historical context by telling how we got
from the old to the new formalism in American legal theory, via a functionalist critique joined to
a policy-based affirmative account of law that has become a kind of modern orthodoxy. The
story shows how the mainstream functionalists ran into difficulty attempting to give an account
of adjudication that would justify an active independent judiciary.
Then, drawing on this story, I’ll try to make explicit how the new formalism responds to
this difficulty, tying together together its four apparently disparate strands around the concept of
the rule of law. But in its most persuasive contemporary form, for example as expounded by
Justice Scalia, that argument turns out to be distinctly instrumental and functionalist in character,
and also relatively loose and informal – in a word, pragmatist.
The concept of the rule of law that we can extract from Justice Scalia’s writings requires
striking a rough balance among a number of competing values: the law’s determinacy, its fidelity
to legitimate authority, and its transparency. None of these values are absolute; when they
conflict they must be accommodated or balanced, with no formal metric guiding that process.
What is more, the rule-of-law virtues are not absolute or overriding even taken together, but have
only presumptive controlling force on judges; they must be accommodated to the substantive
concerns of utility and fairness at every level of the legal process.
In his underlying style of argument, then, Justice Scalia turns out to be closer to early
twentieth-century pragmatic functionalists like Holmes, Pound, and Cardozo, than to the
exponents of nineteenth century formalism. Justice Scalia’s formalist rhetoric is notoriously
as an unqualified human good.

13
A good recent review of the literature on the rule of law concept, with a taxonomy of versions of varying
breadth, is Richard Fallon, The ‘Rule of Law’ as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1
(1997).
14
Kennedy, op. cit., at 13. Similar relatively minimal accounts, which stress that the rule of law is only one
of the virtues of a political system and one that may conflict with others equally appealing, can be found in Radin,
loc. cit., and Joseph Raz, The Rule of Law and its Virtue, in The Authority of Law 210-232 (1979).
Thomas Grey Page 5
fierce, but the doctrine underneath it is a strikingly moderate one, congruent with the teachings of
orthodox modern American functionalist legal theories. After noting two stronger versions of the
new formalism, which I think have little promise of gaining acceptance, I end with the question
whether Justice Scalia’s kind of pragmatic justification drags the new formalists back into the
quagmire of result-oriented political jurisprudence that they are struggling to escape.
I. THE STORY
Classical Formalism
Present-day legal formalism has earned the name by displaying important similarities to
its predecessor, the late nineteenth century orthodoxy made up of Langdellian private law theory
and Lochner-style laissez-faire constitutionalism. This orthodoxy provided the target for the
early Progressives, whose critique led to the development of a new orthodoxy, functionalist
policy jurisprudence.
With their entirely secular and positivist theory of law, the Langdellians marked the
transition of American legal thought to modernity. Institutionally, they were America’s first
professional corps of jurisconsults, the teacher/scholars who staffed the new university law
schools built on Langdell’s Harvard model. They passionately believed that law study belonged
in the university as a discipline that was scientific in character and distinct from other disciplines.
At the same time, they regarded legal science as practical, generative of a technology that could
improve the work of the bench and bar.
The early law professors were not given to theorizing, but their jurisprudential
assumptions can be inferred from the issues they addressed and the arguments they made.15 Law
had three requirements. First, it must be determinate, its judgments following from the
application of norms to facts, without the exercise of discretion or contestable judgment. Second,
it must be systematic, forming a coherent structure of relatively abstract concepts and principles.
Finally, it must be autonomous, deriving its norms from distinctively legal sources, rather than
from the contestable claims of religion, philosophy, or political economy.16
In the Langdellian synthesis, determinacy and system were achieved together, by way of a
hierarchical deductive structure of rules and principles. The rules were particular directives,
deducible from the principles, which could in turn be applied to facts to deduce legal outcomes.
The principles deployed a small number of concepts that were abstract enough to cover all
imaginable cases, and formed an intelligibly coherent system. The rules and principles were
15
See Grey, Langdell’s Orthodoxy, for the derivation. Here I just summarize the results.
16
A brief note on terminology. I’ve previously called Langdellian jurisprudence “classical orthodoxy,” and
used “formality” and “formalism” to refer to what in this paper I call “determinacy” and “objectivism,” the
preference for formally realizable legal norms, rules rather than standards. But in line with what has become
virtually universal usage, I have switched over to using the label “formalism” for the whole larger phenomenon
(encompassing at least the Langdellians, the laissez-faire constitutionalists, and Justice Scalia and his present-day
allies).
analogous to Euclid’s theorems and axioms, and legal reasoning was ideally as deductive and
certain as geometry.
The common-law system achieved autonomy in that the principles themselves were
derived not from some external source, but from positive legal authority, the decisions of the
appellate courts. Legal science complemented the work of judges, because correct legal
principles did not necessarily correspond to articulated judicial holdings, but rather were the most
coherent simple set of premises from which most results could be deduced. Decisions that could
not be reconciled with a structure of principle were discarded as judicial errors.
The mix of simplicity, coherence, and explanatory power that went into selecting correct
legal principles made the work of the legal scientist more than simple deduction. There was an
element of art to it. But this did not vitiate its scientific pretensions; elegance had always been
one of the criteria of theory choice used by mathematicians and natural scientists.
Further, the Langdellians allowed potentially political considerations of acceptability –
justice or utility – to play a role in deciding between alternative principled accounts of a body of
case law.17 But this role was subject to the severe constraint that every decision had to follow
from some relatively abstract principle which itself was coherent with the other principles of the
system, and which also fit most of the cases. A decision or low-level rule that was ad hoc,
justified by the direct application of considerations of justice or convenience, but not deducible
from a systemically embedded principle, could not be legally correct; nor could justice or
convenience help resolve disputes about the interpretation of the rules or principles of the system.
In its reduction of the mass of case law to an axiomatic structure of rules and principles,
the Langdellian theory satisfied the academic demand that law should be a positive, secular, and
distinctive scientific discipline. It helped meet the needs of the working bench and bar, as legal
scholars directed their energies to the systematic arrangement of the substantive private law
under overarching abstract categories of contract, tort, and property, each of which was then
analyzed in terms of a small number of basic principles. The work of Langdellian commentators
along these lines, culminating in the great private law treatises and the Restatements, represented
a notable advance in clarity and intelligibility over both the procedure-based arrangement
implicit in the common-law writ system, and the substantive arrangements used by the older
general commentators such as Blackstone and Kent.18
Finally, though this was not emphasized by its academic proponents, the Langdellian
account helped support the broad interpretation of the rule of law that judges and commentators
made the basis for the libertarian, anti-Progressive constitutional law dominant between 1870
and 1930 – the Lochner era. The Langdellians were not themselves laissez-faire
constitutionalists; they excluded constitutions along with statutes and other forms of enacted law
17
This point was explicit but not emphasized in Langdellian literature; see Langdell’s Orthodoxy at xx .
18
The Langdellian system fit Max Weber’s analysis of nineteenth century law as based upon “formal
rationality” – commitment to the apolitical decision of questions of law by deduction from a gapless and coherent
system of abstract principles. Weber, educated as a German lawyer, took as his model the classical texts of Roman
law, and the European civil codes constructed in their image. His account stressed determinacy and system in the
same way as did the Langdellians, but as he described it nineteenth century European law attained autonomy by
virtue of its status as commentary on enacted codes, rather than on the mass of appellate decisions. Cite
Thomas Grey Page 7
from the ambit of legal science, treating them as the output of a political process too arbitrary to
be amenable to scientific treatment.19 Legal scientists could maintain their disciplinary purity
only by withdrawing from contact with politics, while conceding (like the good legal positivists
they were) that the legislative sovereign was free to alter the law at will. Laissez-faire, a theory of
political economy, could not dictate legal outcomes without compromising law’s autonomy, and
the same was true of older philosophical or religious theories that treated property and freedom
of contract as natural rights. If the law derived by legal science corresponded closely to the public
policies recommended by classical political economists, or the natural rights proclaimed by
social contract philosophers, that had little relevance to their status as fundamental legal
principles.20
But others were less chastely concerned than the Langdellians to preserve the pure
autonomy of legal science from considerations of justice and utility. The Lochner-era judges and
public law commentators thought that the rule of law, or republican constitutionalism,21 or (its
distinctive American constitutional designation) due process of law,22 meant that the whole law
should be unified around the system that the Langdellians found in the private law. The basic
principles of the common law of contract, tort, and property were the legal underpinnings of the
society as a whole, and as such were constitutionally protected. Legislation infringing on those
principles could only be sustained if it fell within the traditional “police powers” of
government.23 And the correspondence of common-law principles with natural rights and the
19
Langdellians tended to be strongly textualist and deferential to legislation in their public law writing. See
Langdell, The Status of Our New Territories, 12 Harv. L. Rev. 365 (1899); Williston, Freedom of Contract, 6
Cornell L. Rev. 365, 375-380 (1921). Akhil Amar analyzes Langdell’s article just cited in Intratextualism, xxx
Harv. L. Rev. xxx, finding it a unusually mechanical example of purely textual analysis.
20
The relevance was “little” rather than “none” because of the minor role the Langdellians allowed to
considerations of acceptability; see note 14, supra, and accompanying text.
21
The equation of republican government with the rule of law traces back to Aristotle’s account in the
Politics of a republic as a government by the many, subordinated to law by an effective separation of powers.
Influential later accounts continuing the linkage between republicanism, government by law, and separation of
powers were those of Harrington (who coined the phrase “a govenment of laws and not of men”), and Montesquieu,
who gave a famous ideal-typical description of the English constitution as embodying a government under law by
way of a separation of powers.
22
Many American constitutions use the phrase “the law of the land,” which has always been treated as
equivalent in meaning to “due process of law,” while better conveying the idea that government generally must
proceed under the control of law – the idea that nineteenth century courts and commentators associated with due
process. The nineteenth century writers did not make our distinction between substantive and procedural due
process, which rough corresponds to relatively substantive as against relatively formal accounts of the rule of law.
See Richard Fallon, supra, for a valuable discussion of American constitutional approaches to the concept of the
rule of law, which, however, does not emphasize the overlap of the concept with due process/law of the land as
much as I would.
23
And these principles constrained the administration of legislation as well, under the favorite laissez-faire
canon that statutes in derogation of the common law must be strictly construed. The Langdellian synthesis gave
clearcut meaning to the “common law” from which the legislature would be presumed not to deviate.
dictates of sound political economy firmly supported the status of these principles as
constitutional guarantees, under the traditional conception of common law as judicially filtered
“right reason.”
Lochnerism thus somewhat compromised pure legal autonomy, in exchange for the
support given to law’s fundamental principles by other respected bodies of thought – political
economy and philosophically or religiously derived natural rights.24 It also yielded some of the
determinacy cherished by the Langdellians, in that the “police power” test – whether legislation
challenged was “reasonably related” to the public health, safety, or morals – was less than
perfectly objective.
On the other hand the Lochnerians added to the strength of the formalist synthesis by
extending the requirement of systematicity or principled coherence to the whole of the law. It
was part of the job of judges and legal scientists in a constitutional republic to see that statutory
as well as common law fit together into an intelligibly coherent system. That system gained its
unity from the fundamental principles of the substantive private law, which established the rights
of the individual to life, liberty, and property. The state and the apparatus of public law and
legislation were instruments for protection of those rights, and the rule of law (or due process)
meant that an independent judiciary was available to check a sovereign legislature or executive
that illegitimately used its power to undermine the rights it was supposed to enforce.
Though the Langdellian purists eschewed laissez-faire constitutionalism, their analysis
offered indirect support to it. They portrayed the private rights protected against legislation by
conservative judges as derivable by a scientific (hence non-political) form of legal analysis. The
Lochnerian rule of law added the further feature that an independent judiciary should protect
these rights against the political branches of government.25 Lochnerians accepted the ultimate
power of the people over the law, through constitutional amendment. But short of that, judges did
not depart from their appropriate stance of political neutrality when they interpreted the
constitution and statutes as well as the common law itself so as to make the whole law
correspond as nearly as possible to a coherent system of principles.
24
That Langdellians were more concerned with disciplinary autonomy and Lochnerians more concerned
with acceptability seems naturally to reflect their relevant primary reference groups — the emerging university on
the one hand, and the traditional bench and bar on the other.
25
Note on Dicey’s influential formulation of the rule of law, more minimalist and purely procedural, more
Langdellian than Lochnerian in spirit, as legal positivism had become entirely dominant in England, whereas a
natural law tradition survived in America. Dicey argued that the Rule of Law required that private rights (whatever
they may be – the positivist side of his account) must be protected against infringement by government to the same
degree as they were protected at common law against private violation. I believe the German ideal of the Rechtstaat
was generally formulated in similar formal terms. The Lochnerians added a substantive account of the content of the
private rights, fortified by the work of the Langdellians; but the effect of their doctrine resembled that of Dicey’s, as
English and American private law were in their essentials the same. The classical American formulation of the rule
of law was not Dicey, but the “government of laws and not of men” guarantee of separation of powers from the
Massachusetts Constitution. The separation of powers meant among other things that an independent judiciary was
in place to apply the law, and that law included the (neutrally derived) basic common law system of private rights.
Thomas Grey Page 9
The Functionalist Critique and Synthesis
Langdellian/Lochnerian formalism was subjected to an effective critique during the early

years of this century, and has had a bad press among legal writers since. The critique is usually
called Legal Realist, a term that calls to mind the skeptical legal writers of the 1925-40 period --
Jerome Frank, Karl Llewellyn, Max Radin, Underhill Moore, and others – who did indeed
contribute to it. But the basic terms of the antiformalist critique were stated in the half-century
before 1925 by an earlier generation of legal thinkers, mostly Progressives, notably Holmes,
Pound, and Cardozo.26 And unlike the later Realists, these earlier thinkers went on from their
attack on formalism to advocate a functionalist policy-oriented affirmative account of law that
has become modern orthodoxy.27
The critique and reconstruction of legal thought proposed by these writers proceeded as
follows. First, they repeatedly showed that the Langdellians were not really deducing determinate
legal rules from high-level abstract concepts. Concepts general and evaluative enough to provide
a plausible gapless grid capturing all legal transactions tended to be fuzzy and interpretively
contestable. This did not mean (as later Realists would argue) that the concepts and principles of
Langdellian doctrinal analysis were useless. But rather than an axiomatic structure, they served as
pigeonholes and guidelines designed to help judges classify and decide disputes in the public
interest.28 “General principles do not decide concrete cases,” said Holmes, famously; though not
being a Legal Realist he added (less famously) that a good general principle could “carry us far”
toward sound decision.29
26
Unlike Realism, the earlier Progressive critique-cum-reconstruction does not have an agreed name; Pound
called it Sociological Jurisprudence, which remains probably the most familiar tag, but a misleading one, as the
theory had little to do with what later emerged as the social science of sociology.
27
Holmes, The Common Law, “The Path of the Law,” “Law in Science and Science in Law;” Pound, “The
Need for a Sociological Jurisprudence,” “Mechanical Jurisprudence,” “Common Law and Legislation,” “The
Theory of Judicial Decision;” Cardozo, The Nature of the Judicial Process. Other important pre-Realist contributors
to the pragmatic functionalist consensus were Arthur Corbin and Morris Cohen. The pragmatic functionalists were
generally critical of both the behaviorism and the extreme distrust of doctrinal generalization that the Realists added
to their own critique of formalism. Cite Cardozo, Pound, Morris Cohen. In their turn the Realists, with the notable
exception of Felix Cohen, were skeptical of the efforts of the functionalists to replace a “jurisprudence of concepts”
with an equally abstract “jurisprudence of interests,” arguing that the real determinants of the content of the law
were and should be highly particularized habits and practices embedded in the multifarious type-situations of
everyday life. Most of the modifications that the Realists proposed to the pragmatic functionalist synthesis have not
taken hold or become orthodox in American legal thought.
28
Thus Corbin on Contracts uses a scheme of concepts and principles as general and abstract as (and
similar in content to) that used in Williston on Contracts, but treats the concepts and principles as rough
classificatory devices and rules of thumb, whereas Williston had treated them as establishing an axiomatic system.
Later Realist contract commentators would abandon the structure of abstract concepts like offer and acceptance,
unilateral and bilateral contracts, for one devised around real-world type-situations: construction contracts, retail
installment sales, contracts of employment, and the like. Like most distinctively Realist innovations, this one did not
take hold.
29
Lochner dissent.
Secondly, the critics noted that Langdellian and Lochnerian formalism encouraged judges
and commentators to believe they were engaging in deduction when they were really making
debatable policy choices. This was particularly so when judges’ strongest and least conscious
class biases were engaged, as in disputes between capital and labor. Formalism hence became the
enemy of the genuine political impartiality that should guide judges; it emboldened them in their
insubordination to a legislative process that better represented the actual array of social interests
than could their own livmited perspective.30
Third, the inevitable gaps and leeways in the existing legal structure meant that even if
judges faithfully subordinated themselves to the rules laid down, they sometimes had to make
rather than find law in order to decide cases.31 They should face this task self-consciously, guided
by the same considerations of acceptability (justice and utility) as properly moved the legislature.
“The final cause of law is the welfare of society,” Cardozo wrote.32 The traditional formal legal
virtues of objectivity, systematicity, and autonomy were derived from and subject to this highest
criterion, and judges should respect legalism as far, but only as far, as was consistent with the
public welfare.33 Nothing justified the exclusion of substantive considerations of acceptability
from influencing decisions at every level of the judicial process.34
To summarize, law was a branch of the science of public policy, guided by and aimed at
the ultimate goal of serving the sum of the interests of individuals and social groups. This did not
30
Holmes, Path of the Law. Add Pound’s (Brandeis’s, Frankfurter’s) point about legislature’s better access
to relevant social facts; Holmes was less optimistic about the likely greater wisdom of legislation.
31
Holmes is Southern Pac. v. Jensen, interstitial legislation.
32
Nature of the Judicial Process, .
33
As far as systematicity goes, see Pound, Common Law and Legislation, for the recommendation that
judges should take the policies that guided them in their gap-filling common-law decisionmaking more from the
purposes manifested by current legislation, and less from arguments of principle based on the internal coherence of
the common law. With respect to determinacy, see Pound, Theory of Judicial Decision, for the point that reasons of
policy made some areas of law (real property, negotiable instruments) appropriate to guidance mainly by clear rules,
while other areas (personal injury, family law) were more suited to governance by broad standards. Holmes had
anticiptated this functionalist account of the rule-standard tradeoff in his classic discussion of the comparative
advantages of the case-by-case application of the standard of due care in negligence cases, as against judicial
particularization through its codification in the form of particularized safety rules. Common Law at xxx-xxx.
Contemporary literature on the rule-standard tradeoff fruitfully elaborates the considerations first raised by Holmes
and Pound in different directions; see Kathleen Sullivan, The Justices of Rules and Standards, for a development in
terms of constitutional theory and doctrine, and Louis Kaplow, Rules and Standards: An Economic Analysis, for
what its subtitle promises, with special stress on the contribution of information cost economics to the argument for
rules. On autonomy, see Holmes, The Path of the Law, cite, for the observation that clear understanding of the basic
content of the law was advanced by a focus on it in isolation from its social determinants, but that borderline cases
were better argued and decided by lawyers and judges trained to attend to legislative policy considerations.
34
In the language made familiar by Weber, the functionalists reconceived the law as guided by
“substantive” rather than “formal” rationality. The German Interessenjurisprudenz (Jurisprudence of Interests)
seems to have been a rough equivalent of the functional pragmatism of the American Progressives, as the German
Freirechtschule (Free Law School) seems to have been parallel to American Legal Realism.
Thomas Grey Page 11
mean that the distinctively legal values associated with formal rationality were unimportant, but
only that decisionmakers had to justify the weight given to formal considerations in substantive
policy terms – as advancing social values such as the accessability, stability, and predictability of
norms governing state action. No separate criteria ultimately governed the work of judges and
jurists on the one hand, and legislators on the other. Adjudication was continuous with, but
subordinate to, legislation, as both responded to the array of values that made up the public
interest.
Functionalism and Pragmatism
Functionalism responded effectively to the general shift in the American intellectual

climate toward pragmatism.35 Langdell had argued in essentialist style that since (1) a contractual
acceptance must qualify as a promise in order to supply the required consideration, and (2) by its
very nature, a promise must be communicated, (3) it therefore follows ineluctably that the
acceptance of a contractual offer must be received and read, not merely mailed, before a valid
contract can be formed.36 A Platonic or Aristotelian theory of concepts was assumed; a concept
delineated the essence of a species or natural kind. An conceptual analysis then stated the
necessary and sufficient conditions for classifying a particular as an instance of its appropriate
kind. Ihering’s much-cited parodic account of the Heaven of Juristic Concepts which it was the
task of formalist analysis to discover emphasized this feature of classical legal theory.37
Under the influence of Darwinism, the pragmatist revolution recharacterized human
thought as a natural and biologically-based mode of coping the environment, rather than as the
activity of an ontologically distinct mind seeking correspondence with an independent ideal realm.
Animals possessed concepts, which underlay their behaviorally evident ability to ascribe relevant
similarities to particular objects and events. Similarities were relevant because grouping
particulars in one way rather than another had survival value for that organism in its environment,
and animal neurology (including learning capacity) had evolved accordingly. Human beings were
distinguished from other animals not by the fact that they had an immaterial mental substance
joined to their bodies that gave them access to the world of ideas, but by the difference of degree
that their relatively larger brains gave them the ability to create and learn languages, and hence
generate and transmit culture, specific finite capacities that had been shaped for a particular
organism in its environment. And in taking account of the centrality of culture, pragmatism was
influenced by nineteenth century historicism, according to which social practices embodying ideas
35
Pound and Cardozo made the pragmatist connection explicit. Cites. Holmes was a more complex case; he
overtly rejected William James’s pragmatism by name, though I think he was responding not to its basic core ideas,
but to James’s use of it to defend religion and spiritualism. Holmes indicated his deep sympathy with the naturalistic
pragmatism of John Dewey. For full development of the argument identifying Holmes with American pragmatism,
see Grey, Holmes and Legal Pragmatism, the Appendix to which analyzes the complexities of Holmes’s relations to
James and Dewey.
36
Langdell, Summary of Contracts.
37
Cite.
and modes of thought survived, flourished, and differentiated themselves insofar as they satisfied
human needs or contributed to the success of different societies with varying histories and
environments.
In the light of these evolutionary and historicist notions, legal theorists like Ihering and
Holmes came to treat legal categories and concepts as instruments for making practical
judgments. A legal concept had the shape it did because it promoted judgments that had survival
value, were useful to some practical purpose. Thus on the question of when a contract by mail
became binding, Holmes argued that both the mailbox rule accepted by the courts and Langdell’s
received-and-read rule were compatible with plausible analogies from established doctrines. He
concluded that the choice between them should be made on grounds of convenience.38
The pragmatists’ analysis of concepts fit together with their instrumental problem-solving
account of inquiry. The shaping of concepts for convenience meant that their application was a
matter of degree, as particulars varied in the extent to which their classification under one concept
rather than another advanced practical purposes. Some degree of referential stability had to be
maintained for language to serve its communicative purposes, but this was itself an instrumental
concern, to be balanced against other practical considerations, in deciding whether a concept
should subsume a particular fact in a given legal context.
The most general of legal ideas, the concept of law itself, was subject to the same
treatment. Langdellians had pronounced that law had to be determinate, systematic, and
autonomous. This meant that legal concepts must have sharp edges and necessary and sufficient
conditions, and be relatively few in number. It also required excluding instrumental concerns from
all influence on particular legal judgments. If asked why, Langdellians simply argued that such
was the true nature of law.39
Naturally the functionalists asked what practical good was advanced by understanding law
in this way.40 Why shouldn’t legal decisonmakers take account of the factors that made decisions
acceptable in light of the public interest? The formalists had admitted considerations of
acceptability at the level of theory-choice; why should such considerations be excluded at the
level of interpretation of principles and rules, especially as formalist legal reasoning seemed to be
pervasively if silently influenced by practical and ideological considerations? No answer was
forthcoming, except the increasingly unpersuasive implicit appeal to the very nature of law.
Holmes was able to characterize this as either self-indulgence in a merely aesthetic mannerism,
the elegantia juris, on the part of mandarins who were entrusted with the administration of a set of
38
Common Law.
39
Beale. A similar purely conceptual approach to the analysis of the concept of law had animated the work
of the early utilitarian positivists, Bentham and Austin – one of the several features of their jurisprudence that
differentiates them from the later pragmatists.
40
"I cannot understand those who write on law asking abstractly 'What is law?' How can that question be
answered without asking another -- 'Why do you want to know?'" John Noonan, Persons and Masks of the Law ix
(1973). Compare Professor Dworkin’s “semantic sting” argument; Law’s Empire, cite.
Thomas Grey Page 13
important practical institutions that were meant to serve the public interest,41 or as an unconscious
defense mechanism concealing the implementation of class-biased ideology in the guise of
scientific law.42
Functionalism flourished in a climate of opinion that treated human inquiry and judgment
generally, and legal inquiry and judgment in particular, as natural functions embodied in practices
whose ultimate criterion was how well they met human needs. As already noted, the Progressive
functionalist account treated the legislature as an all-purpose sovereign institution designed to
pursue the public interest by faithfully reflecting the desires of the electorate. Courts existed in the
shadow of this sovereign legislature. They were there to perform four functions: (1) to resolve
disputes of fact that arose in the application of law, (2) to resolve interpretive disputes where the
meaning of legislation was contested but resolvable, and (3) to resolve disputes arising in the gaps
inevitably left by the existing rule system. Incidental to this latter function, they were (4) to fill
those gaps with new rules and standards judicially legislated in light of the public interest.43
Functionalism, the Rule of Law, and Judicial Independence
Functionalist jurisprudence seemed to reduce the judge to a faithful servant of the

legislature, and thus had difficulty defending an independent judiciary as an essential safeguard of
the rule of law. If the job of judges was to apply the rules laid down by a democratic legislature,
and occasionally sublegislate to fill gaps in those rules using the same considerations as directed
legislators, why should judges be made independent of political pressures? In a democracy,
“political pressures” were assumed to drive the legislative process in the direction dictated by the
public interest, which was simply the sum of the desires of the citizenry. Given the Progressive
account of legislation and adjudication, judges should presumably be maximally responsive to
democratic “political presssures,” rather than insulated from them.
The failure of their theory to justify judicial independence did not much bother the early
Progressives, who were trying to rein in the conservative judges of their era by such populist
devices as the election of judges and judicial recall. But during the 1930s, the development of
fascist and communist police states renewed the devotion of Western liberals to the ideal of the
rule of law and its associated commitment to an independent judiciary. Many old Progressives,
otherwise supporters of the New Deal, were troubled by the Roosevelt Court-packing plan and its
assault on the political independence of the Supreme Court. And a major perceived evil of the
totalitarian states was their consolidation of all state power under the rule of a dominant party, and
their failure to maintain the separation of governmental powers, particularly the independence of
the judiciary.44
41
Holmes, Book Review of Langdell, Summary of Contracts; letter to Pollock.
42
Common Law; Path of the Law; Privilege, Malice, and Intent.
43
The famous Article I of the Swiss Civil Code gave formal expression to this view of the judicial process
in a Civil Law context: [quote].
44
Purcell, Crisis of Democratic Theory.
The prestige of pure majoritarian democracy suffered in this climate, as it was not clear
that the totalitarian dictators lacked majority support among their populations. What was clear was
that minorities – political opponents of the regime, and designated class and racial enemies –
were brutally oppressed under systems that openly brushed aside the formal restraints of
constitutional government, due process, and the rule of law. A dominant party could claim to
represent the interests of the majority of the people, and could then adopt a police apparatus as the
most efficient means for carrying out the people’s will. All this seemed at least roughly consistent
with Progressive ideology and the associated brand of policy jurisprudence, which essentially
equated good law with efficient public administration in the interest of the people, embodied in
the majority.45
The association of the rule of law and an independent judiciary with the protection of
minority rights against majoritarian excesses became a major theme of American liberals in the
post-War years, as New Dealers took over the machinery of American government and staffed the
judiciary with their own kind. No longer did the rule of law (due process) and the independent
judiciary connote judicial nullification of the welfare state in the name of property and free
contract. Now these values were associated with the judicial protection of criminal defendants and
religious and political dissenters, and most decisively with the judicial attack on racism
epitomized in the Brown decision of 1954. Majoritarian control of the judiciary no longer
connoted the recall of laissez-faire judges who stood in the way of welfare legislation; it was now
represented by “Impeach Earl Warren” billboards.
Legal theorists who supported the Progressives and New Dealers needed an account of the
distinctive contribution of the judiciary, hence the law, to liberal democratic government. Nothing
smacking of Lochner or Langdellianism would do, as initiation into the antiformalist critique in
the law school classroom was established as a professional rite of passage for American lawyers.
After World War II, theorists came up with three interpretations of the rule of law ideal that did
not emphasize the formalist commitment to legal determinacy.
First, judges trained in the common law tradition were said to be uniquely well-positioned
to hold the political system to an informal kind of internal consistency that the legislative process
was not likely to achieve on its own. Through “reasoned elaboration” – nonformal coherence-
based reasoning – judges would generate “neutral and general principles” to serve as constraining
guidelines (though not axiomatic rules) in legal reasoning. An independent judiciary would thus
safeguard equality before the law (the like treatment of like cases), providing a check on the kind
of oppression of political, religious, and racial minorities that was the hallmark of the totalitarian
regimes.46
The second idea was that the democratic legislative process, particularly given a winner-
take-all” election system, was systematically biased against the interests of “discrete and insular
45
Note the equation by Catholic natural law writers, Lucey, Palmer and others, of American functionalist
pragmatists, most notably Holmes, with the political theory and jurisprudence of the totalitarian regimes.
46
Frankfurter, Harlan; Wechsler, Hart and Sacks, Bickel, et al. This approach more or less retained legal
autonomy, as the rule of law was to be achieved with the filtering of the output of public law through the traditional
consistency-based common-law technique of reasoning by analogy.
Thomas Grey Page 15
minorities.” The special task of the judiciary was to correct the majoritarian tilt.47 As with the first
idea, the common law training of judges was thought to suit them to this task, and their
independence protected them against retaliation from the biased majoritarian system.
The third idea, building on the revival among political theorists of Kantian and
deontological approaches to moral philosophy,48 postulated that a democratic legislative process
was well-suited to advancing the net satisfaction of preferences, but not to respecting the side-
constraints that guaranteed justice and human rights. Among public authorities, judges were
uniquely suited by their praxis of consistency-based reasoning to “taking rights seriously” and
thereby serving as the political system’s “forum of principle.” Under philosophical examination,
common law method’s devotion to treating like cases alike presupposed the overarching Kantian
human right to “equal concern and respect.”49
None of the three jurisprudential developments purported to restore the central formalist
commitment to the determinacy of legal reasoning. Each invoked the common-law method to
distinguish legal from legislative deliberation, implying that the practice of reasoning by analogy
would press the law toward overall consistency, which would tend to protect minorities and
correct the tendency of majoritarian democracy toward lawlessness.50 And all three were
vulnerable to the Realist claim, revived by both leftist Critics and conservatives, that any method
of legal reasoning falling short of deductive rigor is likely to collapse back into “political” or all-
things-considered decisionmaking. Justifying judicial independence by vague and nonformal
methods of reasoning frees judges to launch partisan political projects under the cover of their
office, thus violating both the republican commitment to popular sovereignty, and the rule of
law’s own requirement that all authority be subject to verifiably constraining law.
47
Stone in Carolene Products; Ely. This approach mildly compromised legal autonomy, as judges were to
work as political scientists, estimating what the substance of the law would look like if the majoritarian bias didn’t
exist, and trying to nudge the output of the system in that direction, insofar as that could be done consistent with a
commitment to informal analogical common-law style reasoning.
48
Rawls.
49
Dworkin, David Richards; Justice Brennan and “human dignity.” Like the second approach, this one
compromised legal autonomy to the extent it made explicit its importation of the methods and results of academic
moral and political philosophy into legal reasoning. But to the extent contemporary philosophy made use of a
“method of reflective equilibrium” that closely resembled traditional common-law reasoning, the sense of alien
intrusion and associated violation of law’s autonomy (and lawyers’ comfort) could be minimized.
50
I call these approaches nonformal accounts of the rule of law because they do not stress the determinacy
of what they designate as the distinctively legal methods of reasoning. Contrast the terminology of Roberto Unger,
The Critical Legal Studies Movement, at 1-2, who classifies the Wechslers, Elys, and Dworkins as “formalist”
because they purport to distinguish legal from political or all-things-considered normative reasoning. Unger (writing
before the neo-formalist revival) calls the Langdell/Lochner complex “the anomalous, limiting case” of formalism.
Others also call writers like Hart/Sacks and Dworkin formalist, see e.g. Brian Leiter, Positivism, Formalism,
Realism, 99 Colum. L. Rev. 1138, 1146 (1999) (Dworkin as “sophisticated formalist,” to be distinguished from
“vulgar formalists” who stress determinacy); but I think it is better to keep the term for writers who make not only
the distinctiveness (partial autonomy) but also the relative determinacy of legal reasoning a major feature of their
legal theory.
II. THE ARGUMENT
The Consistency of Contemporary Formalism
Now in light of the historical context, let me come back to the contemporary scene and ask
whether a coherent legal-theoretic position can be constructed around the four elements of the
new formalism – objectivism (a general preference for rules over standards), constitutional
originalism, statutory textualism, and common-law conceptualism. The alternative is to see them
as conceptually unrelated initiatives that take advantage of various accidents of history to advance
the current conservative-libertarian political platform.51
The foregoing historical sketch suggests the most likely candidate for a coherent account:
the four strands are tied together by a primary commitment to differentiating judges from
legislators while bringing them under determinate restraint. This was the aspect of the rule of law
slighted by the functionalist accounts popular during the preceding period. History also suggests
an innocent explanation for the conservative political slant of the current formalism. Because the
judiciary of the period 1940-1980 disproportionately represented an elite politically to the left of
the general public, and was freed to carry out its political projects by nonformal accounts of the
rule of law and the judicial function, the critique of that judiciary’s law and legal theory would
naturally come mainly from the conservative minority of the legal elite. This no more undermined
the validity of their critique than was antiformalism undermined by the fact that its proponents
came disproportionately from the minority of Progressive lawyers. In each case a legal theory is
being attacked as false and apologetic, and it is quite natural that the critique comes mainly from
those who lack sympathy with the results it rationalizes.52
The four strands I have identified as definitive of contemporary formalism overlap
considerably with the values of Langdellian formalism: that law should be determinate,
systematic, and autonomous. Straightforwardly common to both formalisms is objectivism, the
general requirement of determinacy or preference for rules over standards. The common-law
conceptualism of the new formalists mirrors the requirement of systematicity imposed by their
predecessors. And both constitutional originalism and statutory textualism are meant to promote
legal autonomy, insulating judicial interpretation of enacted law against partisan politics and other
extra-legal sources of controversy.
51
A “pure politics” account would go roughly like this: Rules as against standards reduce judicial
discretion, and over the last two generations, judges have been more liberal than the rest of the political system, at
least until very recently. Constitutional originalism reduces the discretion of relatively liberal present judges, and
justifies rolling back the law created by their predecessors toward periods (1787-91 and the late 1860s) in which the
prevailing political ideology was more libertarian than that prevailing this century. Statutory textualism knocks out
legislative history made during a long period during which Democrats and liberals mostly controlled the machinery
for making it. Common-law conceptualism pushes private law subjects toward the only simple scheme of principles
available to organize them, the libertarian system of private law devised in the late nineteenth century.
52
The point is fortified by the fact that Critical Legal Scholars to the left of the mainstream liberals made
essentially the same critique of Wechslerian, Elyite, and Dworkinian jurisprudence as did the conservative
formalists – that the methods of reasoning that they claimed distinguished judicial from purely political analysis
were too vaguely specified and unrigorous to provide any real constraint. Kelman, Kennedy.
Thomas Grey Page 17
This congruence of the new formalism with the formalism of a century ago does not prove
its internal coherence, but it does at least tell against the claim that it is a grab-bag of incongruous
positions seized upon to advance present-day conservative politics. It would be a coincidence if
the same conceptually unrelated positions were advanced under the false pretense of being a
coherent package by sophisticated legal thinkers in both eras. (This leaves open the possibility that
a legal formalism that stresses determinacy, while it may be a relatively coherent jurisprudence,
still qualifies as a political ideology because it has an intrinsic concealed slant toward the political
right.)53
In assessing the coherence of contemporary formalism, it is useful to recall Joseph Raz’s
account of the three senses of coherence. First is the logical claim that coherent elements are
mutually consistent; second is the heuristic claim that taken together they give an intelligible and
perspicuous account of their common subject matter; and third is the epistemic claim that they
mutually reinforce each other.54 In examining the coherence of formalism, I’ll be taking account
of these three (progressively stringent) senses of the term.
Originalism vs. Textualism
The first charge of inconsistency involves the alleged clash between constitutional
originalism and statutory textualism. The problem is that textualists hold that statutes should be
construed on the basis of linguistic or “plain” meaning, as opposed to legislative intent, when the
two conflict, whereas originalism makes the intent of the framers the guiding criterion in
constitutional interpretation.
Of course there are differences between statutes and constitutions. But more
straightforwardly, a consistent formalist simply holds that enacted law must be understood as
written, in context. Textualism emphasizes the “as written” and originalism the “in context” part
of this formula. The primary contrast in each case is to “living”55 or “dynamic”56 methods of
interpretation that attribute changed meanings to statutory or constitutional language in the light of
post-enactment changes in circumstances.57
53
As argued by Duncan Kennedy, Form and Substance in Private Law Adjudication.
54
Raz, The Relevance of Coherence.
55
Cites.
56
Eskridge; note also “common=law” or adaptive method, Calabresi, Strauss.
57
Formalists of course allow that the application of unchanged norms to different circumstances produces
changed results, but want to sharply distinguish this from change in the meaning of the norms, and disfavor the
latter. Further, in the name of stability, itself a formal virtue, all formalists do allow for some legitimate change in
the effective meaning of enactments through the entrenchment of errors of interpretation under the doctrine of stare
decisis. Common-law approaches, see note 34 supra, treat adaptive judicial departure from original meaning in the
light of changed circumstances as sometimes a good thing. For formalists, the normative weight given by the
common-law doctrine of precedent to decisions departing from original meaning is a choice of the lesser evil, not a
positive good.
The remaining issue separating textualism and originalism is technical: how to use
legislative history in establishing original meaning. Justice Scalia has been on a crusade to
eliminate the use of committee reports, floor debates, and the like, in deciding statutory cases, at
least where the language of the statute can be given a plain meaning. He has not launched similar
strictures against the use of such materials in constitutional interpretation. He argues that he
considers evidence of “framer intent” in constitutional law only insofar as it clarifies the general
“original understanding” of the words chosen, and he treats evidence establishing context as
relevant in statutory interpretation as well. Professor Dworkin offers the clarification that any
textualist must be a “semantic originalist,”58 and Justice Scalia accepts this as the ground for the
courts’ power to look behind even plain legislative language to detect and correct “scrivener’s
errors.”
Professor Eskridge has argued forcefully that Justice Scalia’s exclusionary rule against the
legislative history of statutes is not fully consistent with his ready resort to the Federalist Papers
and like materials in constitutional cases.59 In each case, legislative history may be useful in
ascertaining the legislature’s “semantic intentions,” either by way of the policy context of
enactment, or the contemporary general understanding of the terms used. A statute with a
scrivener’s error may be perfectly clear in its linguistic meaning, even in context; which under the
Scalia exclusionary doctrine should preclude courts from looking to legislative history at all.60
And there is no difference in principle between the scrivener’s error and the more common case
where evidence of context suggests that the legislature would have changed the statutory language
if it had noticed its implications.61
But these are relatively minor points, and in constructing our ideal formalist position we
can treat Justice Scalia’s campaign against legislative history either as an anomaly, or as a policy-
based exclusionary rule that is independent of his jurisprudential formalism.62 The formalist wants
58
Matter of Interpretation.
59
Scalia, Matter of Interpretation; William Eskridge, Should the Supreme Court read The Federalist but
Not Statutory Legislative History, 66 Geo. Wash. L. Rev. 1301 (1998).
60
An example is United States v. Locke, 471 U.S. 84 (1985), in which the Supreme Court upheld the literal
application of a statutory requirement that a title renewal be filed “prior to December 31" of the relevant year on the
ground that the language was plain, against the protest of dissenters that this must be corrected as a scrivener’s
error. The case was decided the year before Justice Scalia joined the Court and it would be interesting to know how
he would have come out on it. The case is also interesting as a study in the politics of legal formalism, in that the
literal reading supported a liberal result, the cancellation of a mining patent of the sort disapproved by
environmentalists. The Sierra Club filed an amicus brief supporting the result, and Justice Marshall wrote the
prevailing (literalist) opinion, while Justice Brennan joined the (antiformalist) dissent of Justice Stevens.
61
As for example in Professor Dworkin’s favorite examples, Riggs v. Palmer, cite, and TVA v.Hill, cite;
see Law’s Empire xxx.
62
Professor Eskridge himself defends Justice Scalia’s different treatment of legislative and constitutional
background materials on grounds of policy independent of the formal virtues, arguing that judicial resort to
legislative history in reading statutes is likely to create perverse incentives for Congress, an ongoing body, but
similar distortions are much less likely with the diffuse and sporadic process of constitutional amendment. Eskridge,
Thomas Grey Page 19
both statutory or constitutional law to have the meaning people thought it had when it was
enacted. Let’s call the merged position originalism, as its heart is the rejection of the view that the
meanings of statutes and constitutions legitimately vary with changes in their context of
application. As we shall further explore below, originalism so defined should not be regarded as
itself an ultimate rule-of-law value. Rather it represents a practical doctrine designed to advance,
while accommodating, two more fundamental aspects of the rule-of-law, fidelity and determinacy.
Originalism vs. Objectivism
Another charge of inconsistency against contemporary formalism is that many legal

provisions, read faithfully according to their language and original context, enact standards rather
than rules. Thus formalists argue that the Cruel and Unusual Punishment clause of the Eighth
Amendment cannot be read to invalidate the death penalty, because contemporaneously enacted
provisions of the Bill of Rights expressly contemplate execution as a lawful punishment, which
proves that the framers could not have regarded it as abolished by the Eighth Amendment.
Professor Dworkin responds not with the standard trope of the “living constitution” but with an
originalist argument.63 The framers enacted the Eighth Amendment in the form of a standard
rather than a rule, choosing “cruel,” a general and evaluative term, when they could have used
more specific and less value-laden language if they had wished to codify their own conception of
what constitutes cruelty in punishment. To adopt a standard instead of rule is to tell future
interpreters to exercise their own best judgment in making the value judgments contemplated by
the enacted language. The framers expected that the final interpreter of constitutional language
would be the Supreme Court, and no one advocates overruling Marbury v. Madison.
Further, acting in the light of Marbury, the framers of the Fourteenth Amendment chose
the broad and value-charged rather than code-like language of “equal protection,” “privileges and
immunities,” and “life, liberty, and property.” Reinforcing these considerations is the fact that the
Constitution contains its own interpretive canon, the Ninth Amendment, which forbids denying or
disparaging unenumerated rights. Finally, there is good evidence that both in the 1790s and the
1860s, judges were expected to enforce natural or fundamental common-law rights even in the
absence of clear legislative guidance or authorization.
The formalist’s best response to this line of argument is to treat determinacy and fidelity as
distinct aspects of the rule of law.64 Constitutionalism not only means textual fidelity, but also
requires a presumption in favor of restraining all state power by law. Judicial review is a device
for restraining legislative and executive power, but also a grant of potentially overweening power
supra, Note 37, at .

63
An influential recent version of this mode of argument is Lawrence Lessig’s proposal that faithful
interpretation of the constitution requires “translation” of the meaning of its terms into contemporary context. Cite.
64
Justice Scalia leaves this implicit, arguing that there must be definite evidence (beyond simply the choice
of general and evaluative terms) of an original intent to delegate adaptive interpretive power, before an argument of
Dworkin’s (or Lessig’s) type can be accepted. Matter of Interpretation, cite. Such an interpretive thumb-on-the-scale
requires justification, and it seems clear that determinacy supplies the most plausible support.
to the judiciary. The more judges consider themselves freed by broad constitutional language to
make their own evaluative judgments, the greater the danger that they will undermine the rule of
law by implementing partisan political convictions in the guise of constitutional interpretation.
Judicially enforced constitutional law thus gains legitimacy both by faithfully following
the constitutional text, and by issuing in constrained and determinate form. A stark clash between
these two dimensions of lawfulness would be presented if the constitution flatly told judges to
exercise judicial review (or any other judicial function) on the basis of their independent case–by-
case judgment of what was unwise or unjust. As proponents of the rule of law, formalists would
face a dilemma. Fidelity would require giving the provision effect. But it would be a shocking
denial of the determinacy required by the rule of law.
Luckily for the formalist, there is no such command. Judicial review is not even
established in terms in American constitutional law, but inferred from the status of constitutions
as law, and the “province and function of the judiciary” to interpret and enforce the law in cases
within their jurisdiction.65 Applying traditional conceptions of the judicial function, we classify
constitutional provisions along a dimension of “law-likeness,” treating some as entirely
aspirational, and others (like the Republican Form of Government Guarantee) as binding on the
legislative or executive conscience, but judicially unenforceable because they do not suggest
standards that are “justiciable” – sufficiently determinate to allow us to presume that they were
meant to be applied by judges.66 Though some open-ended standards, such as the Equal
Protection, Due Process, and Cruel and Unusual Punishment clauses, are accepted as justiciable,
this is only because we believe that traditional legal methods sufficiently constrain their
interpretation to make their judicial enforcement consistent with the rule of law.
One of these traditional methods is to examine the context of a vague or ambiguous
provision for evidence of narrowing legislative intent. This is why formalists look to the history
behind constitutional enactments, and also why historians think they do so in a legalistic and
biased way. Formalist historical inquiry is indeed “legalistic,” because it is carried out with
devotion to the spirit of the rule of law – a spirit that when it burns bright often blinds its devotees
to other values.67 And it is biased because lawyers approach the historical evidence with a specific
juristic goal in mind: to render more determinate open-ended concepts like Equal Protection,
Commerce, and Executive Power. Unlike historians, lawyers take no special interest in historical
material that suggests the ambiguity, complexity, and political confusion that often accompanies
constitution-making, though of course as advocates they use such evidence defensively to counter
opposing historical claims. From the point of view of the jurist, it is an unfortunate and not a
65
Marbury.
66
Cite on Guarantee Clause as political question.
67
See Judith Shklar, Legalism 1, 2-3, 8 (2d ed. 1986): “What is legalism? It is the ethical attitude that holds
moral conduct to be a matter of rule following... The habits of mind appropriate, within narrow limits, to the
procedures of law courts in the most stable legal systems have been expanded to provide legal theory and ideology
with an entire system of thought and values... As a social ethos which gives rise to the political climate in which
judicial and other legal institutions flourish, legalism is beyond reproach.... [But it] prevents its exponents from
recognizing both the strengths and weaknesses of law and legal procedures in a complex social world.”
Thomas Grey Page 21
neutral fact that history is messy and the background of important constitutional provisions
complex and ambiguous. If history were more determinate, we could more readily achieve the rule
of law virtues by having judges find the material for rules rather than having to make them up, and
so avoid the necessity for the exercise of essentially personal power.68
Formalists thus operate with a tilt toward finding rather than making doctrine, and toward
doctrine that is determinate rather than open-ended. These are not unprincipled biases distorting
disinterested historical inquiry, but presumptions rooted in the values of the rule of law itself.
Thus a formalist will incline against an interpretation of Equal Protection that requires theorizing
about the nature of equality. He doubts that constitutional framers imbued with the spirit of the
rule of law would have intended such an inquiry, and, independent of particular evidence of
intent, he thinks giving judges this much power runs against the spirit of the rule of law that
pervades the whole constitution.69
What Justice Scalia says in defending his joint commitments to originalism on the one
hand and objectivism on the other is consistent with the approach I’ve sketched here. “The Rule
of Law is a Law of Rules,” and originalism is “The Lesser Evil” because, though history is
complex, costly to excavate, and difficult to clarify, it can make textually fuzzy constitutional
provisions more determinate. Fidelity often promotes determinacy, but when the two values
conflict, the rule of law requires that they be accommodated to each other.
Objectivism v. Conceptualism
The problem here is that contemporary formalists propose a method of common-law

adjudication that conflicts with their overall commitment to determinacy. This is the project of
extracting and formulating broad and abstract concepts and principles from the mass of decided
cases, and then giving those principles decisive weight in the formulation of rules and the decision
of future cases. This approach is apparent in treatments of tort and property law by Richard
Epstein, contract law by Charles Fried and Randy Barnett, criminal law by George Fletcher and
Larry Alexander, and tort and contract law by Ernest Weinrib, among others.70
This form of analysis recalls Langdellian private law theory, and seems subject to the
critique made against that theory by the functionalists and Realists. The theory would work well
68
This is not to justify making up or falsifying history to establish structure; in formalist terms that is
against the spirit of the rule of law, as the judge is pretending to be guided by a source that really doesn’t give
guidance, and so is exercising discretionary power in disguise. When power is in fact being exercised, rule of law
values favor making the exercise open and so subject to the check of public criticism. But even if it could be shown
that the framers of an indeterminate text did not want their more concrete background understandings used by later
judges to give structure to the doctrine developed under it, so that fidelity told against doing so, judges might
properly use the history in that way on grounds of determinacy alone.
69
Just as in Professor Dworkin’s own approach to the Constitution, all of its provisions are to be read in th
light of an overall presumption in favor of equal concern and respect for all persons that pervades the document; or
in John Hart Ely’s approach, a similar pervasive presumption in favor of representative democracy guides
interpretation.
70
Cites.
and produce no conflicts if the derivation of rules from general legal principles were like the
derivation of geometric theorems from axioms. But legal analysis is not deductive and
demonstrative in that way. Nonetheless, an ingenious legal argument of principle can feel
ineluctable, like a mathematical proof. Every consumer of legal scholarship is familiar with the
experience of being convinced by an argument of principle that the law cannot (consistently)
contain both Rule A and Rule B, though both are generally accepted and applied by the courts.
But, as the familiar experience proceeds, another clever doctrinalist then constructs a
reconciliation showing that on an alternative interpretation of either the principle or one of the
rules, or with the addition of supplementary premises derived elsewhere in the system, Rules A
and B are indeed mutually consistent. The response of the rest of us to each argument as it comes
along is likely to be a non-Herculean “Damn, why didn’t I think of that?”
A classic illustration is the already-mentioned exchange between Langdell and Holmes
over the mailbox rule of contract formation. Langdell, recall, had argued that mailing the
acceptance could not complete a contract, because in order to supply the needed consideration, the
acceptance must operate as a return promise, and a promise by its nature had to be communicated.
Therefore the acceptance must be received and read, not just mailed.
Holmes challenged Langdell’s premise about the esssence of a promise, pointing out that a
covenant (a form of written promise) was binding upon delivery, even though not read by the
promisee. The rationale was that once the promisor actually assented to be bound, the promise
was formed by delivery of a tangible manifestation of that mental act into the promisee’s control.
By analogy in the contract by mail situation, the offeree’s posting the acceptance renounced
control over it, completing the promise.71
When Langdell and Holmes wrote, the few courts that had ruled on the question had opted
for the mailbox rule. A certain kind of formalist who highly valued practical certainty in the law
(Holmes for example) would note that it was a simple rule to apply, not obviously inefficient or
unjust, and supported by the few existing precedents, and on those grounds alone would adopt it.
The Langdellian, by contrast, is led to explore the deeper consistency of this rule with the
underlying principles of contract law, and finding a contradiction, rejects as error the precedents
establishing this useful and concrete rule.
Langdell’s argument seems hard to refute on its own terms when first confronted, but
Holmes was clever enough to find a plausible general argument supporting the mailbox rule.
Moreover, the process might have continued; there might be a further, equally ingenious argument
recharacterizing the rules about covenants, and convincing us that Langdell had been right in the
first place. This kind of to-ing and fro-ing is our normal experience with doctrinal “arguments of
principle.” If no common law rule is sound unless it follows from one of a small number of
principles, few rules are safe from the skilled advocate. The attempt to construct a consistent set
of principles and concepts justifying all or most of the rules of a particular legal system or large
area of law is a difficult game, one that especially rewards conceptual ingenuity on the part of its
players. And the game’s bad effect on legal determinacy is all the worse because it has no referee
or final whistle.
71
Common Law, at 239.
Thomas Grey Page 23
By contrast, it is fairly easy to tell when a particular low-level rule is well accepted and
definite enough to decide most cases. If determinacy is the goal, a concrete and accepted rule
should trump an argument of principle for the same reason that rules are preferable to standards.72
Yet just as determinacy and fidelity are distinct values within the overall concept of the rule of
law, so are the determinacy of specific rules on the one hand, and the transparency of the law on
the other – the practical virtue that is served when the whole law, or some large area of it, is given
perspicuous systematic arrangement. Often determinacy and transparency are, or can be made,
complementary to each other, as we saw with determinacy and fidelity. But sometimes they will
conflict, and in those cases, formalists must balance or accommodate competing claims in order to
advance the rule of law.
Recognizing the Langdellian error, the new formalist does not require that legal principles
stand to concrete legal rules as axioms to theorems.73 General principles are fuzzy at the edges
and do not apply all or nothing. This is because the concepts that allow them to explain large areas
of law are likely to be relatively abstract, and to have normative implications that invite
disagreement in application. For these reasons, principles can overlap and be balanced against
each other, serving as as weighted guidelines or presumptions, rather than as rules that must
dictate results when they apply.74 They offer guidance to jurists in deciding questions of law,
influencing the interpretation of rules in borderline cases, and of standards more generally.
When courts are faced with gaps in the system of first-order rules, a principle can also
operate as a standard and be directly applied for decision of a novel case. For example, the norm
of due care is both a principle and a standard within negligence law. It works as a principle in the
cases where it subsumes and helps to justify concrete rules that specify what constitutes due care.
By contrast, it operates as a first-order standard to be directly applied by the decisionmaker, in the
many cases where no such rules exist.
Though less determinate than a rule, a standard has more content than an instruction to the
judge to fill gaps in the law on the basis of what seems best. So principles that serve as standards
add to the determinacy of the overall system. But principles function mainly as second-order
norms, rendering categories like tort and contract (and their component body of concrete rules)
more intelligible and accessible – more transparent – to citizens, the lawyers who counsel them,
and judges who must eventually decide disputes of law.
As Holmes wrote, the point of systematizing law is to make it “easier to be remembered
and to be understood.”75 The accessibility and intelligibility of the law as a whole – its character
72
Fred Schauer argues that for reasons of determinacy legal systems should and do recognize at least a
strong presumption of “local priority,” requiring that the “most immediately applicable norm” should control in a
situation involving arguable conflict between a relatively concrete norm and a more general and abstract one. The
Jurisprudence of Reasons, 85 Mich. L. Rev. 847, 857 (1987). This is because there is more likely to be actual
agreement on the meaning and application of the more concrete norm.
73
See eg Weinrib, Idea of Private Law, at 222-226.
74
See Dworkin, The Model of Rules; Postema, Bentham and the Common Law Tradition 442-44 (1989).
75
Path of the Law. See also the illuminating discussion in Postema, Bentham and the Common Law
Tradition, at 421-434.
as a relatively transparent system rather than an opaque list – is a formal rule-of-law virtue, just
as is the determinacy conferred by the preference for specific rules over standards as first-order
legal norms. These values work often together; for example, a transparent arrangement makes it
less likely that an applicable rule governing a situation will be missed.
But sometimes they compete with each other, as when an otherwise perspicuous
conceptual arrangement juxtaposes rules so as to uncover previously unnoticed anomalies
between them. Such anomalies not only render the system less intelligible and transparent, but
less just, because like cases are not treated alike. The perception of an anomaly creates pressure
for rule modification, at the expense of the formal virtue of rule stability. When determinacy and
transparency conflict in this way, formalism requires making a tradeoff, just as with determinacy
and fidelity.
Originalism v. Conceptualism
The analysis so far should suggest how the “new formalist” will handle this final conflict.
We have seen that originalism involves the accommodation of two basic rule-of-law virtues,
determinacy and fidelity, while conceptualism likewise balances the virtues of determinacy and
transparency. The conflict between originalism and conceptualism then brings into play all three
of the basic rule-of-law values, determinacy (a component of both originalism and
conceptualism), fidelity (a component of originalism), and transparency (a component of
conceptualism).
This conflict would not arise if formalist conceptualism were confined to judge-made
common law, where the concept of fidelity to enactments does not obviously apply.76 But the
formalist urge toward system as well as determinacy is not confined to this shrinking corner of our
law. This is not surprising, since the common-law tradition continues to pervade our whole
system, so that an interpretation of its method is likely to have wider repercussions – even while
lawyers’ work increasingly deals with subject matter controlled by statutes and regulations. The
combination of an enacted text with a common-law approach to argument, adjudication, and
commentary is most obvious in our constitutional law, but also is evident in the development of
long-lived statutes with open-ended terms, such as those governing antitrust, labor, tax and
securities law.
One might think that contemporary formalists would deplore this combination, and indeed
in Justice Scalia’s latest jurisprudential manifesto, “Common Law Courts in a Civil Law System”
he criticizes the tendency of common-law education and commentary to celebrate the the fluidity
of every rule structure, and the ingenuity of the heroic judge who escapes the bounds of confining
doctrine to do Solomonic justice in the individual case 77 But his argument is not against any
tendency toward excessively abstract systematic thought that he finds in the common law
76
Though it is possible to argue that established and salient common-law rules are in effect enacted by
legislative acquiesence in their continued force.
77
Matter of Interpretation; see Schauer, Is the Common Law Law?, for a more systematic articulation of
these doubts about the consistency of common-law method with an even mildly formalist conception of the rule of
law.
Thomas Grey Page 25
tradition. And indeed the civil law world has shown a much more consistent devotion to
systematic doctrinal elaboration than have the common lawyers.78
In fact, it turns out that far from being opposed to a conceptualist style of doctrinal
elaboration, Justice Scalia has strongly endorsed the effort to bring abstract system to legal
reasoning, in constitutional and statutory as well as common law. “Consistency is the very
foundation of the rule of law,” he tells us, and the most basic principle of legal justice is “that
persons similarly situated should be similarly treated.” Consistency “has a special role to play in
judge-made law” because “the only check on the arbitrariness of federal judges is the insistence
on consistency, and the applications of the teachings of the mother of consistency, logic.” He is
explicit that this point applies as much to “judge-pronounced determinations of the application of
statutory and constitutional provisions” as to common law in the narrow sense.
The surprise here is not Justice Scalia’s opposition to ad hoc judicial decision, but his
remedy for it: not originalist fidelity to text and history, but emphasis on the judge’s obligation to
“apply to each case a system of abstract ... categories developed in earlier cases.” He makes
explicit that when “this elaborate intellectual structure produces a result that seems to the judge...
contrary to governing text, it is not acceptable for him to disregard the structure.” If the judge
cannot reconcile the result he thinks textually dictated to the overall structure, then “his notions of
... textual fidelity are out of whack, and he must subordinate them to the law.”79 The Law as a
whole is thus to control, not the particular laws; the system of abstract concepts, not the concrete
enactment interpreted in isolation.
It is clear that Justice Scalia is not simply advocating consistency in its weakest sense, the
avoidance of outright contradiction. He wants the law to be formulated insofar as possible in “a
system of abstract categories.”80 An array of ad hoc judgments made subject to a requirement of
non-contradiction will not satisfy him. The system must be intelligible and transparent as well as
consistent. Consistency can check judges only to the degree that inconsistency can readily be
identified. This will not be the case with a “system” made up of thousands of independent ad hoc
totality-of-the-circumstances determinations.81
78
As noted by Mary Ann Glendon in her comment on Justice Scalia’s lecture; Matter of Interpretation.
79
Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 588-589
(1990).
80
Justice Scalia describes the law’s abstract concepts as “fictions,” thus emphasizing the element of choice
and the jurist’s constructive role in systematizing the law – the concepts are not there to be discovered, they have to
be made. Compare Bentham’s overtly utilitarian approach to conceptual arrangement, which also described the
abstract principles and concept as “fictions,” as described in Postema, Bentham and the Common Law Tradition at
425-434.
81
“Without such a system of binding abstractions, it would be extraordinarily difficult for even a single
judicial law-giver to be confident of consistency in his many ad hoc judgments; and it would be utterly impossible to
operate a hierarchical legal system in which many individual judges are supposed to produce ‘equal’ protection of
the laws.” Id at 589. Cf The Rule of Law is a Law of Rules, 53 Chi at 1178 (multifactor tests cannot satisfy the
requirement that justice not only be done but be seen to be done).
So the new formalist does indeed treat systematicity and the added transparency it can
bring to the law as a virtue that must be balanced against both originalist fidelity, and the
determinacy that is associated with “local” focus on the text of the most immediately applicable
enacted rule. System matters, and not only in the common law, but in the ever more predominant
fields of constitutional and statutory law as well. And it matters for rule-of-law reasons; a
relatively systematic law is more knowable, thus exposing inconsistency and promoting
accountability.
Acceptability
The Langdellian system purported to remove justice and utility from any influence on
ordinary legal judgments. Substantive acceptability came in only as a tie-breaker in that rare case
where equally simple and perspicuous sets of principles equally fit the case-law. But this followed
from the Langellian account of private law as a purely deductive system, and contemporary
formalists do not attempt to revive this aspect of Langdellianism. Instead they regard legal
principles as having heuristic and presumptive rather than controlling force in the selection of the
first-order rules of the system.
Does this mean they must admit considerations of acceptability throughout the system?
Not necessarily; if the autonomy of the law from moral and political factors were a sufficiently
compelling value, a non-Langdellian formalist could still adopt a rule excluding them. We often
tell decisionmakers that they can take a wide range of factors into account, but must exclude
certain impermissible ones – race, religion, ideology, and the like. Similarly we could say to legal
decisionmakers: determinacy, fidelity, systematicity, yes; acceptability, no.82
Justice Scalia has made clear that he does not propose any such bar on judges taking
account of considerations of acceptability. In discussing an Eighth Amendment challenge to a
hypothetical flogging statute, for instance, he says that originalism is “medicine too strong to
swallow,” because it would require a court to uphold the statute if it concluded that the framers
accepted flogging. But he thinks few judges would rule this way, himself included. To that extent
he is a “faint-hearted originalist.” Since nothing but considerations of acceptability favor
invalidating the statute, he must be assuming that at least in this extreme case they would properly
carry the day.83
To similar effect is his discussion of the choice between rules and standards as modes of
judicial gap-filling in “The Rule of Law is a Law of Rules.” He begins the lecture by adopting
Aristotle’s presumption in favor of government by rules, defeasible where “the difficulty of
framing general rules for all contingencies” leaves the lawmaker “unable... to make an exact
82
See the discussion of “exclusionary reasons” by Joseph Raz, Practical Reason and Norms, and The
Authority of Law, and by Fred Schauer, Playing by the Rules. Both analyze decision according to rule as involving
second-order instructions to exclude certain otherwise relevant factors in making first-order decisions; it seems that
any concept of the rule of law that justifies judicial independence will have this structure. Professor Dworkin has
argued that judges are subject to the exclusionary reason “don’t take account of considerations of policy,” leaving
considerations of principle as well as positive legal authorities within their legitimate purview.
83
Scalia, Originalism: The Lesser Evil, 57 U.Cinn. L. Rev. 849, 861-62 (1989).
Thomas Grey Page 27
pronouncement.” At the end he repeats, and thus emphasizes, that his preference for rules is
presumptive only. “We will have totality of the circumstances tests and balancing modes of
analysis with us forever.” He asks only that these modes of analysis “be avoided where possible,”
leaving open the question how to decide when that is.
He does not attempt a general answer to this “hardest” question himself, but concludes
with extended quotations from the famous Goodman and Pokora pair of opinions, familiar to
most American lawyers. Goodman was the best-known of Holmes’s several efforts to specify the
tort standard of due care into a code of safety rules, in that case a poorly-conceived requirement
that motorists at railroad crossings whose view is blocked must get out their cars to look up to the
tracks. In Pokora, Cardozo overruled Goodman, arguing that Holmes’s rule was not a good one
for the situation; he also generalized that in the absence of customary guidance, judges were so
likely to botch the job of drafting safety rules that it was better to leave negligence decisions to the
jury under the standard of due care. Cardozo is generally thought to have had the better of the
exchange, and Justice Scalia gives him the last word. And nothing supports Cardozo’s side except
substantive considerations of acceptability. The rule-of-law factors – notice to motorists of what
conduct is expected, reducing jury discretion, encouraging settlement – all these are on the side of
Holmes and rules. If Cardozo was right, it was because sometimes a bad rule is worse than none.
It makes quite a striking rhetorical effect when Justice Scalia ends the best-known
contemporary paean to a formalist conception of the rule of law by quoting a classic passage from
the literature of antiformalism. I take him to be highlighting the extent of his critical distance from
any rule-bound absolutism, and the centrality of his concession that when formalism clearly
produces bad results it should give way. He is thus emphatically a presumptive formalist only,
willing to accept that considerations of acceptability properly affect decision at every level of the
legal system.84
III. CONCLUSION
I have tried to show the coherence of the new formalism along three dimensions.85 First, it
avoids actual contradiction because its precepts are merely presumptive, allowing for balancing or
accommodation in cases of conflict. Second, it is intelligible, organized around the values of
fidelity, determinacy, and transparency, and upon the precepts: “Be originalist,” “Prefer rules to
84
Justice Scalia’s position resembles Fred Schauer’s “presumptive positivism” – a middle ground between
the hard positivism of Joseph Raz on the one hand, who argues that judges legitimately take account only of
“pedigreed” legal norms, and the antipositivism of those who equate sound judicial decision with the best decision
all-things-considered (giving the formal legal virtues their due as policy, but no more weight than that). Schauer’s
idea is that the judge is presumptively bound to make the decision indicated by intra-systemic norms (most of which
are rules), with that presumption subject to rebuttal only when extra-systemic considerations of acceptability press
very strongly the other way. Hence formal legal considerations get “extra weight” with the judge; this makes the
judge’s work special, connects it to the rule-of-law values, and justifies treating judicial independence as an aspect
of the rule of law. Playing by the Rules, 196-206.
85
I believe, though I won’t try to show here, that the most plausible interpretation of the conception of the
rule of law advocated by its most celebrated twentieth century exponent, Friedrich von Hayek, is congruent with the
pragmatist one I’ve ascribed to Justice Scalia here.
standards,” and “Be systematic.” Finally, its values and precepts are mutually supportive, all
aiming to constrain the judicial role and so justify judicial independence as a fundamental
component of the rule of law.
The moderate and pragmatic nature of Justice Scalia’s version of the new formalism is
often concealed by his combative rhetoric. However there is nothing in its analytical content that
Holmes or Cardozo would have rejected, and much that distances it from both the Langdell and
the Lochner old-style formalisms. Essentially, it resembles the approach of Richard Posner, who
calls himself a critic of formalism, and a pragmatist in the line of Holmes and Cardozo.86
. Can the powerful oppositional claims of the contemporary formalist revival really be
domesticated in this way? Surely it offers something more novel (or more dramatically old) than
that! And indeed my account does omit the formalist vanguard, which includes two alternatives
that are “more formalist” than Justice Scalia’s pragmatic account. Though I can’t give them the
detailed attention they deserve, I will mention their essential features, along with their most
obvious difficulties.
Ernest Weinrib’s formalism is like Langdell’s without the geometric pretensions. He
confines himself to private law, which he describes as the arena of pure corrective justice, where a
court should maintain legal autonomy by confining its focus to restoring the unity and coherence
of the juridical relation at issue in the dispute. Such reasoning, though not deductive or strongly
determinate, wholly excludes political and instrumental considerations.“The only purpose of
private law is to be private law.”87 Public law in Weinrib’s account, by contrast, can legitimately
take account both of considerations of distributive justice and forward-looking public goals, and
so cannot be given a comparably formal treatment because of its intrinsically “political”
dimension.88
At least two barriers stand against acceptance of Weinrib’s position as a theoretical
justification of the formalist revival. The first has to do with the shrunken sphere of private law in
the age of the administrative state. Today, a purely private law jurisprudence is difficult to make
into a serious contender to serve as a working ideology for legal practice generally.89
Second, assuming Weinrib’s premise that a judge achieves maximum coherence and unity
of form by doing pure corrective justice, why should these values be trumps, even for private law?
If we can make people better off by overriding coherence in the name of utility or a more
substantive conception of justice – why not do it? An exclusive focus on unity of form seems to
privilege the aesthetic satisfactions of those who administer, teach, and comment on the legal
86
Cites. The Justice thus complies with the prescription of Cass Sunstein, Must Formalism be Defended
Empirically? 6 (unpublished, 1999): “Formalism should be defended pragmatically... in terms of its consequences....
In this sense a good defender of formalism can and (in my view) had better be a legal realist too.” Sunstein also
finds a “genuinely new formalism” in arguments that are based on “the good effects that formalism has,”
preeminently increased predictability and decreased decision costs, and explicitly notes that some of Justice Scalia’s
arguments are of this kind. Id at 8-9.
87
Idea of Private Law at 25.
88
Idea of Private Law at 219.
89
Nor does Weinrib purport to extend his formalism beyond the private law area.
Thomas Grey Page 29
system over the welfare of the public the system is meant to serve. In short, Weinrib is vulnerable
to the connotations of the phrase elegantia juris, so effectively used by Holmes against Langdell.
Another version of formalist jurisprudence is libertarian theory, perhaps best articulated
by Richard Epstein.90 If Weinrib resembles Langdell, Epstein revives the laissez-faire legal
ideology of the Lochner era. Though it is often attacked as incoherent and indeterminate, legal
libertarianism has defenses against both charges.91 But even if they win this long-standing debate,
the libertarians still face the much greater barrier that the all-too-determinate real-world results of
their theory are regarded by public opinion as the extreme version of a recognized controversial
political ideology, free-market conservatism. It thus fails the elementary requirement that any
proposed working jurisprudence must have at least the appearance of political neutrality.
Though pragmatism gives the most promising theoretical account of the new formalism, it
is vulnerable to the charge made against the recent liberal legal theories – a failure to distinguish
judicial decision sufficiently from ordinary politics to justify strong protection of judicial
independence. The pragmatist formalist gives a functional account of the formal judicial virtues
and then proposes a vague multi-factor test, which anyway is only presumptive in force. How can
such a theory restrain judges, in controversial cases, from reaching the results they desire as
political actors? Indeed political motives are surely energizing present-day conservative formalists
(like Justice Scalia himself) to undo what they regard as the excessively liberal judicial law-
making of the last generation. Take away these motives, and what distinguishes the new
formalism from the main line of modern American jurisprudence?
I think the answer is that nothing does – that at its theoretical core, the new formalism is
just the old legal pragmatism, now mostly in the hands of conservatives rather than Progressives,
New Dealers, and post-New-Deal liberals. And to return to the underlying theme of this essay, I
also think that suitably interpreted, the tradition of pragmatic functionalism whose forbears are
Holmes, Pound, and Cardozo has been good enough all along to satisfy the legitimate formalist
demand for a theoretical account of adjudication that justifies the high value placed on judicial
independence by our ideal of the rule of law.
This is so even though the pragmatist account requires judges to consider acceptability
(justice and policy) in every case. What preserves the distinctively legal character of judges’ work
is simply the general presumption that the formal law should prevail, unless strongly
outweighed.92 Judges need independence to safeguard their ability to uphold this presumption
90
Takings, etc. See also the work of Randy Barnett.
91
Critics have urged that libertarianism must presuppose a set of baselines that upon examination are
arbitrary and indefensible. The best libertarian defense is that whatever logical force these criticisms may have,
empirically they introduce only minor problems of degree. See Barbara Fried on Hale for a comprehensive
analytical review of the critical challenges to the coherence and determinacy of legal libertarianism; and see
Epstein’s Simple Rules for the confession-and-avoidance defense.
92
I believe such a presumption is implicit in the work of the early functionalists, in their requirement that
the judiciary must play a distinctly subordinate role in the polity. It it is a mistake to read, e.g., Holmes, Pound, and
Cardozo as simply equating judicial reasoning with all-things-considered deliberation guided by the public interest.
But this is not the place to make the exegetical case.
against the pressure of what is acceptable.93 Whether a mere presumption in favor of “law” over
“policy” can really restrain judges from political abuse of their power is always open to question,
as it should be. The answer for a given legal system turns not on what its theorists say, but on the
ethos and morale of its lawyers and judges, and the support and criticism the profession receives
from the surrounding popular legal culture.94
But theorists have their usual and sometimes important role of formulating conceptual
frameworks and normative guidelines at the upper practical limit of generality. At that level,
presumption in favor of formal positive law is the best we can do. Anything less simply fails to
justify judicial independence. Anything more absolute risks two kinds of error. On the one hand,
if the distinction between law and policy is maintained, it turns the rule of law into its peculiar
excess, rigid legalism. On the other hand, if the urge for justice and common sense prevails in the
face of a theoretical commitment to legal purity, the tendency is for all good things to be folded
into the law, and without any effective distinction between legal and extra-legal sources of
authority we cannot make sense of the rule of law.
93
And contemporary public choice theory supplies arguments tending to show that what is acceptable to the
(legislative and executive) political system systematically distorts the underlying preferences of the electorate. Cite.
94
For the argument that “law” dissolves into “policy” whenever formal legal considerations are subject to
override on grounds of acceptability, see Kennedy, Legal Formality, 2 J. Leg. Stud. 351 (1973). For the counter that
it is an open empirical question whether a mere presumption in favor of formal legal materials can be an effective
restraint, see Schauer, Playing by the Rules 204-206. For the similar point that the force of rules depends on the
contexually variable social practices according to which they are interpreted and applied, see Radin, Reconsidering
the Rule of Law, supra.

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STANFORD LAW SCHOOL

The New Formalism

Working Paper No. 4

Stanford Public Law and

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THE NEW FORMALISM

• Originalism vs. Textualism: The preference for linguistically oriented statutory

• Objectivism vs. Textualism/Originalism: Both textualism and originalism can cut

• Conceptualism vs. Objectivism: The abstractions that emerge from conceptualist

• Conceptualism vs. Textualism/Originalism: Both textualism and originalism suggest

The rule of law, a concept as contested as it is beloved, is sometimes described in such

as an unqualified human good.

The Functionalist Critique and Synthesis

Langdellian/Lochnerian formalism was subjected to an effective critique during the early

Functionalism and Pragmatism

Functionalism responded effectively to the general shift in the American intellectual

Functionalism, the Rule of Law, and Judicial Independence

Functionalist jurisprudence seemed to reduce the judge to a faithful servant of the

II. THE ARGUMENT

The Consistency of Contemporary Formalism

Originalism vs. Textualism

Originalism vs. Objectivism

Another charge of inconsistency against contemporary formalism is that many legal

supra, Note 37, at .

The problem here is that contemporary formalists propose a method of common-law

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