Formalism

Formalism
Author(s): Frederick Schauer

Source: The Yale Law Journal , Mar., 1988, Vol. 97, No. 4 (Mar., 1988), pp. 509-548
Published by: The Yale Law Journal Company, Inc.
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The Yale Law Journal
Volume 97, Number 4, March 1988
Article
Formalism
Frederick Schauer*
Legal decisions and theories are frequently condemned as formalistic, yet little
discussion has occurred regarding exactly what the term * formalism* * means.
In this Article, Professor Schauer examines divergent uses ofthe term to eluci-
date its descriptive content. Conceptions of formalism, he argues, involve the
notion that rules constrict the choice of the decisionmaker. Our aversion to
formalism stems from denial that the language of rules either can or should
constrict choice in this way. Yet Professor Schauer argues that this aversion to
formalism should be rethought: At times language both can and should re?
strict decisionmakers. Consequently, the term "formalistic" should not be used
as a blanket condemnation of a decisionmaking process; instead the debate
regarding decision according to rules should be confronted on its own terms.
With accelerating frequency, legal decisions and theories are con?

demned as "formalist" or "formalistic." But what is formalism, and what
is so bad about it? Even a cursory look at the literature reveals scan
agreement on what it is for decisions in law, or perspectives on law, to b
* Professor of Law, University of Michigan. I am grateful to audiences at Brooklyn Law Schoo

Cornell Law School, DePaul University College of Law, Duke University School of Law, Indian
University at Bloomington School of Law, New York University School of Law, and the America
Political Science Association for helping me to clarify some of my good ideas and jettison some of my
bad ones. I am also indebted to Alex Aleinikoff, Bruce Frier, Leo Katz, James Krier, William Mill
and Richard Pildes for commenting on earlier versions of this article with just the right blend
hostility and sympathy.
509

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510 The Yale Law Journal [Vol. 97: 509
formalistic, except that whatever formalism is, it is

or scholars would describe themselves as formalists,
use of the word "formal" seems almost a linguistic er
rative connotations of the word "formalism," in con
agreement on the word's descriptive content, make it
that "formalist" is the adjective used to describe any
of legal thinking, or legal theory with which th
disagrees.
Yet this temptation should be resisted. There does seem to be descrip?
tive content in the notion of formalism, even if there are widely divergent
uses of the term. At the heart of the word "formalism," in many of its
numerous uses, lies the concept of decisionmaking according to rule. For?
malism is the way in which rules achieve their "ruleness" precisely by
doing what is supposed to be the failing of formalism: screening off from a
decisionmaker factors that a sensitive decisionmaker would otherwise take
into account. Moreover, it appears that this screening off takes place
largely through the force of the language in which rules are written. Thus
the tasks performed by rules are tasks for which the primary tool is the
specific linguistic formulation of a rule. As a result, insofar as formalism
is frequently condemned as excessive reliance on the language of a rule, it
is the very idea of decisionmaking by rule that is being condemned, either
as a description of how decisionmaking can take place or as a prescription
for how decisionmaking should take place.
Once we disentangle and examine the various strands of formalism and
recognize the way in which formalism, rules, and language are concep-
tually intertwined, it turns out that there is something, indeed much, to be
said for decision according to rule?and therefore for formalism. I do not
argue that formalism is always good or that legal systems ought often or
1. See, e.g., H.L.A. Hart, The Concept of Law 124-30 (1961) (formalism as refusal to ac?
knowledge necessity of choice in penumbral area of rules); M. Horwitz, The Transformation of
American Law 254 (1977) (formalism as refusal to recognize instrumental functions of law); K.
Llewellyn, Jurisprudence: Realism in Theory and Practice 183-88 (1962) (formalism as
excessive reliance on canonically written language of rules); R. Unger, The Critical Legal Stud?
ies Movement 1-2 (1986) (formalism as constrained and comparatively apolitical decisionmaking);
Kennedy, Legal Formality, 2 J. Legal Stud. 351, 355 (1973) (formalism as view that rule applica?
tion is mechanical and that mechanical rule application is just); Strauss, Formal and Functional
Approaches to Separation-of-Powers Questions?A Foolish Inconsistency?, 72 Cornell L. Rev.
488, 489 (1987) (formalism as refusal to acknowledge practical consequences of judicial decisions);
Tushnet, Anti-Formalism in Recent Constitutional Theory, 83 Mich. L. Rev. 1502, 1506-07 (1985)
(formalism as artificial narrowing of range of interpretive choices).
One can avoid the confusion of multiple usage by simply stipulating a meaning for the term "for?
malism." See, e.g., Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and
the Constitution, 37 Case W. Res. L. Rev. 179, 181-82 (1986). This tack, however, evades most of
the interesting problems. Having stipulated that "formalism" means deductive logical reasoning,
Judge Posner proceeds easily to the conclusion that formalist reasoning has no application to the
interpretation of canonical texts. That conclusion, however, follows, if at all, only from the narrow-
ness of the stipulated definition. By not stipulating a meaning in advance of the analysis, I intend to
focus on a broader range of issues. In the process, I will explore the way in which deduction, even in
Posner's sense, may be related to the interpretation of canonical texts. See infra note 48.

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1988] Formalism 511
even ever be formalistic. Ne

the contemporary aversion
formalism is not in the end
inspection, rather than bloc
I. Formalism as the Denial of Choice
A. Choice Within Norms
Few decisions are charged with formalism as often as Lochner v. New

York.2 But what makes Justice Peckham's majority opinion in Lochn
formalistic? Surely it is not just that the Court protected an unrestricte
privilege of labor contracting against the first stirrings of the welfare sta
For the Court to make such a political decision under the rubric of broa
constitutional clauses like "liberty" is a far cry from what seems to
meant when decisions are criticized as being formal. To the extent th
the charge of formalism suggests narrowness, Lochner is hardly a candi
date. We criticize Lochner not for being narrow, but for being excessive
broad.
Although Lochner is criticized for the length of its reach, a closer loo
reveals that it is not the result that is condemned as formalistic but rather
the justification for that result. The formalism in Lochner inheres in its
denial of the political, moral, social, and economic choices involved in the
decision, and indeed in its denial that there was any choice at all. Justice
Peckham simply announced that "[t]he general right to make a contract in
relation to his business is part of the liberty of the individual protected by
the Fourteenth Amendment"3 and that "[t]he right to purchase or to sell
labor is part of the liberty protected by this amendment."4 To these pro-
nouncements he added the confident statement that "[o]f course the liberty
of contract relating to labor includes both parties to it."5
Justice Peckham's language suggests that he is explaining a precise
statutory scheme rather than expounding on one word in the Constitution.
It is precisely for this reason that his opinion draws criticism. We con?
demn Lochner as formalistic not because it involves a choice, but because
2. 198 U.S. 45 (1905). For condemnations of Lochner (and the era of which it is taken to be
archetypal) as formalistic, see Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57, 99 (1984);
Peller, The Metaphysics of American Law, 73 Calif. L. Rev. 1151, 1193, 1200-01 (1985); Seidman,
Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of
Constitutional Law, 96 Yale L.J. 1006, 1006-07 (1987); Developments in the Law?Immigration
Policy and the Rights of Aliens, 96 Harv. L. Rev. 1286, 1292 (1983); Note, The Constitutionality of
Rent Control Restrictions on Property Owners* Dominion Interests, 100 Harv. L. Rev. 1067, 1077
(1987); Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth
and Fifth Amendments, 90 Harv. L. Rev. 945, 951 (1977); Powers, Book Review, 1985 Duke L.J.
221, 232; Rotenberg, Politics, Personality and Judging: The Lessons of Brandeis and Frankfurter
on Judicial Restraint (Book Review), 83 Colum. L. Rev. 1863, 1875 n.60 (1983).
3. 198 U.S. at 53.
4. Id.
5. Id. at 56.

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it attempts to describe this choice as compulsion.6 Wh

as a political or social or moral or economic choice is d
as definitionally incorporated within the meaning of a
choice is masked by the language of linguistic inexorab
When I say that pelicans are birds, the truth of the
inexorably from the meaning of the term "bird." If s
points at a living, breathing, flying pelican and says "
she simply does not know what the word "bird" m
Lochner as formalistic because it treats the word "libe
"life, liberty, or property, without due process of law
word "bird" and the privilege of contracting as being
subsumed in the broader category. According to the r
if you don't know that contracting for labor without g
is an example of liberty, then you just don't know w
erty" means.
Lochner is condemned as formalistic precisely because the analogy be?
tween pelicans (as birds) and unrestricted contracting (as liberty) fails.
One can understand much about the concept of liberty and about the word
"liberty" and yet still deny that they include the privilege of uncon-
strained labor contracting.8 Thus, a decisionmaker who knows or should
6. This was noted by Holmes in his now-famous observation, "General propositions do not decide
concrete cases." Id. at 76 (Holmes, J., dissenting).
7. Of course when I use the term "inexorable," I do not mean that the world and our language
could not have been otherwise; the word "bird" could have referred to frogs instead of pelicans, or to
only puffins, robins, and sparrows, but not pelicans, ostriches, and condors. Definitions are contingent
and subject to change, and therefore the word "bird" might yet come to be the word that speakers of
English use to refer to frogs, or only to small and not to large birds. Yet although there remains a
possibility that the word "bird" will come to mean these things, this is only a possible world?it is not
our world. In our world, the exclusion of frogs and the inclusion of large birds is definitionally part of
the meaning of the word "bird." As I argue below, see infra notes 56-57 and accompanying text, the
contingency of definition hardly entails the view that it is within the province of any one actor, legal
or otherwise, to change it. Neither you nor I have the power to make it proper to use the word "bird"
to refer to a frog, even though the word "bird" could in another world be used to refer to frogs.
8. The extent to which this is true for morally and politically loaded words such as "liberty" is
likely to vary with time, place, and culture. Take, for example, the transformation of the "honor
codes" at various venerable universities. These codes were phrased in quite general terms at their
inception in the 18th and 19th centuries because these schools contained homogeneous student bodies
who shared a common conception of the type of conduct definitionally incorporated within the word
"honor." If a person thought that purchasing a term paper from a professional term paper service was
consistent with being honorable, then that person simply did not know what "honor" meant. As
values have changed and as student bodies have become less homogeneous, however, shared definitions
of terms such as "honor" have broken down. Some people now do think that buying a term paper can
be honorable, and this breakdown in shared meaning has caused general references to "honor" to be
displaced in such codes by more detailed rules. There may now be little shared agreement about what
the precept "be honorable" requires, but there is considerable agreement about what the rule "do not
purchase a term paper" requires.
Thus, the criticism of Lochner and its ilk as "formalistic" in the sense discussed in the text is
ambiguous. The critic could mean that the term we now take to be susceptible to debate was not as
debatable at the time of the relevant decision. But this would hardly explain the pejorative, unless we
want to condemn an entire era and the conceptual and linguistic apparatus that reflected its under?
standings. The alternative is that the term "formalism" charges that there was at the time room for
debate about the application of the general term to the particular case, but the relevant decisionmakers
either did not recognize that fact (perhaps because they refused to look outside their own socioeco-

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1988] Formalism 513
know that such a choice is

than the choice to treat a
formalism for treating as
nondefinitional, substantive
Lochner is merely one exam
ity is decried as formalistic
Langdell, and others of th
similar grounds.10 They sta
tions of general terms as de
the general term. It is impo
between the linguistic and
stone's vision. Blackstone's
incorporate a wide range of
tion of a hard and suprahum
word "property," for exam
noncontingent reality, then
ments are necessarily part
underlying reality that is t
still follow even if the gen
and demarcation is beyond
natural or noncontingent a
less an error in this cultur
people hitting small hard ba
ent sticks. Still, linguistic cl
the words track the natural kinds of the world. To the extent that Black?
stone and others believed that categories like liberty, property, and con?
tract were natural kinds rather than human artifacts, they were less likely
to perceive the choices we would now not think to deny. When one be?
lieves that a general term reflects a deep reality beyond the power of
human actors, the view that certain particulars are necessarily part of that
reality follows with special ease.
Thus, one view of the vice of formalism takes that vice to be one of
deception, either of oneself or of others. To disguise a choice in the lan-
nomic and political class) or intentionally chose to hide it.

9. Formalism may be more broadly viewed as extending to any justification that treats as inexora-
ble a choice that is not. In this broader sense, the claimed inexorability might come from something
other than rule formulations. To mask, for example, a political, moral, or social choice in the lan?
guage of "original intent" when original intent in fact does not provide a uniquely correct answer to
the issue might be considered formalistic in the same way that masking a political, moral, or social
choice in the language of the meaning of a rule is considered formalistic when that language does not
provide a uniquely correct answer. Similarly, masking choice in the language of mathematical eco?
nomic derivation or in the language of a unique solution to some "balance" might be considered
formalistic if these methods are in fact comparatively indeterminate.
10. See, e.g., Grey, LangdelVs Orthodoxy, 45 U. Pitt. L. Rev. 1 (1983); Hart, Positivism and
the Separation ofLaw and Morals, 71 Harv. L. Rev. 593, 610 (1958); Kennedy, The Structure of
Blackstone''s Commentaries, 28 Buffalo L. Rev. 205 (1979); Lyons, Legal Formalism and Instru-
mentalism?A Pathological Study, 66 Cornell L. Rev. 949, 950 (1981).

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guage of definitional inexorability obscures that cho

questions of how it was made and whether it could h
ently. Use of the word "formalism" in this sense hin
a term (or phrase, sentence, or paragraph11) whose
generates the choice. Some terms, like "liberty" and
vasively indeterminate. It is not that such terms ha
ever; it is that every application, every concretizati
requires the addition of supplementary premises to a
to specific cases.12 Therefore, any application of that
choice made among various eligible supplementary p
in this sense.13
More commonly, however, the indeterminacy t

sionmaker's choice is not pervasive throughout the r
a term. Instead, the indeterminacy is encountered o
term's meaning. As H.L.A. Hart tells us, legal te
settled meaning and a penumbra of debatable meani
malism derives from the denial of choice in the p
where applying the term in question is optional. Th
formalism as the unwillingness to acknowledge in c
cation, such as the question of whether a bicycle is
of the prohibition on vehicles in the park, that cho
go far beyond merely ascertaining the meaning of
Hart's conception of formalism15 is closely align
girding those who criticize both Blackstone and Loc
ist takes the penumbra to be as clear as the core, wh
malist takes the general term to be as determinat
deny the extent of actual indeterminacy, and thus n
application of the norm involves a choice not determ
the norm alone.
11. See infra note 85.

12. For a discussion of the often-ignored necessity of relying on such supplementary premises in
the application of the term "equality," see Westen, The Empty Idea of Equality, 95 Harv. L. Rev.
537 (1982). I disagree, however, with Westen's argument that the necessity of adding those supple?
mentary premises to give the primary term meaning renders the primary term superfluous. Because a
term is not self-standing does not mean that it serves no purpose, even if it needs external assistance in
order to serve that purpose.
13. On the choices necessitated (but often denied) by general terms, see Cohen, Transcendental
Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935); Dewey, Logical Method
and Law, 10 Cornell L.Q. 17 (1924); Horwitz, Santa Clara Revisited: The Development of Corpo?
rate Theory, 88 W. Va. L. Rev. 173, 175-76 (1985); Singer, The Player and the Cards: Nihilism
and Legal Theory, 94 Yale L.J. 1, 9-25 (1984).
14. Hart, supra note 10, at 608-12; see also H.L.A. Hart, supra note 1, at 121-50.
15. H.L.A. Hart, supra note 1, at 121-50; Hart, supra note 10, at 608-12.
16. See, e.g., Gordon, supra note 2; Grey, supra note 10; Peller, supra note 2.

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1988] Formalism 515
B. Choice Among Norms
Implicit in Hart's concepti

unlike in the penumbra, l
Even if this is true, and I w
remains that a decisionmaker has a choice of whether or not to follow a
seemingly applicable norm even in its core of meaning. The question in
this case is not whether a bus is a vehicle, or even whether the core of the
rule excludes buses from the park, but whether the rule excluding vehicles
must be applied in this case. At times a decisionmaker may have a choice
whether to apply the clear and specifically applicable norm. In such cases
we can imagine a decisionmaker having and making a choice but denying
that a choice was in any way part of the process. Thus, a variant on the
variety of formalism just discussed sees formalism as involving not denial
of the existence of choices within norms, but denial that there are fre?
quently choices about whether to apply even the clear norms.
As an example of this type of formalism, consider the unreported and
widely unknown case of Hunter v. Norman.17 Hunter, an incumbent
state senator in Vermont seeking re-election, filed his nominating petition
in the Windsor County Clerk's office on July 21, 1986 at 5:03 p.m. In
doing so he missed by three minutes the petition deadline set by title 17,
section 2356, of the Laws of Vermont.18 The statute provides, in its en-
tirety, that "Primary petitions shall be filed not later than 5:00 p.m. on
the third Monday of July preceding the primary election prescribed by
section 2351 of this title, and not later than 5:00 p.m. of the forty-second
day prior to the day of a special primary election."19 The Windsor
County Clerk, Jane Norman, duly enforced the statute by refusing to ac?
cept Hunter's petition, observing that "I have no intention of breaking the
law, not for Jesus Christ himself."20 Hunter's name, consequently, was to
be withheld from appearing on the September Democratic primary elec?
tion ballot.
Hunter, not surprisingly, took his disappointment to the courthouse and
filed an action in equity against Norman for extraordinary relief.21 He
asked that the court order her to accept his petition and to ensure that his
name would appear on the primary ballot. At the hearing, Hunter alleged
that he had called the clerk's office earlier on the date in question and
been told that he was required to deliver the petition in person because of
17. No. S197-86-WrC (Vt. July 28, 1986). The following account of the case is drawn from
Judge Cheever's brief opinion, the pleadings, news accounts in the Rutland Herald of July 22, 23,
24 and 26, 1986, and a conversation with Marilyn Signe Skoglund, Assistant Attorney General in the
Office of the Attorney General, State of Vermont.
18. Vt. Stat. Ann. tit. 17, ? 2356 (1982).
19. Id.
20. Rutland Herald, July 23, 1986, at 5, col. 4.
21. The petition is unclear as to whether Hunter was seeking the extraordinary legal
mandamus or a mandatory injunction in equity.

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the necessity of signing forms consenting to his nom

consent forms were not due until a later date. Hunter claimed that had he
not been led to appear in person by receiving this erroneous advice, the
petition would have been filed earlier in the day. He argued that in light
of the erroneous information given to Hunter by the Clerk's office, the
clerk (and the state) were estopped from relying on the statutory deadline.
In support of this proposition, Hunter offered Ryshpan v. Cashman22 in
which the Vermont Supreme Court, on similar facts, held that because
"reliance on erroneous actions on behalf of the State has put ... its citi?
zens in inescapable conflict with the literal terms of one of the time re?
quirements instituted by that same sovereignty . . . [t]he statutory time
schedule must . . . as a matter of equity . . . yield."23
Ultimately, Hunter prevailed, and it appears that Ryshpan v. Cashman
saved the day?or at least saved Hunter's day. Ryshpan therefore seems
to have operated as an escape route from the rigors of the statute. Sup?
pose, however, that everything in Hunter's case had been the same, in?
cluding the existence of Ryshpan, but that the judge had ruled against
Hunter solely on the basis of the statutory language. Had this hardly un-
realistic alternative occurred, it would seem but a small step from the
brand of formalism discussed above to a formalist characterization of this
hypothetical decision. As long as Ryshpan exists, the judge has a choice
whether to follow the letter of the statute or instead to employ the escape
route. To make this choice and merely cite the statute as indicating the
absence of choice would therefore deny the reality of the choice that was
made. The crux of the matter is that this choice was present as long as
Ryshpan existed, whether the judge followed that case or not. The charge
of formalism in such a case would be but a variation of formalism as the
concealment of choice: Instead of a choice within a norm, as with either
pervasively indeterminate language or language containing penumbras of
uncertainty surrounding a core of settled meaning, here the choice is be?
tween two different norms.
This variation on Ryshpan reveals the reasons we condemn the mask?

ing of choice. When the statute and Ryshpan coexist, neither determines
which will prevail. Thus, the choice of the escape route represented by
Ryshpan over the result indicated by the statute, or vice versa, necessarily
would be made on the basis of factors external to both. These factors
might include the moral, political, or physical attractiveness of the parties
the particular facts of the case; the judge's own views about deadlines; th
judge's own views about statutes; the judge's own views about the Ver
mont Supreme Court; the judge's own views about clerks of courts; and s
on. Yet were any of these factors to cause a particular judge to decide th
22. 132 Vt. 628, 326 A.2d 169 (1974).

23. Id. at 630-31, 326 A.2d at 171.

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1988] Formalism 517
the statute should prevail, m

ing the result would conceal
determinative factors. Insof
open for inspection (and th
opinions),24 failure to ack
cized because knowing how
the products of the system.
C. Is There Always a Ch
Ryshpan v. Cashman is a
sider the number of Rysh
avoid the specific mandates
termine that the literal lan
nal intent, as the Supreme
1964,25 the contracts cla
Amendment.27 Or a decisio
variants to determine that
the rule's purpose.2* Or a
that denies relief to a claim
applicable rule;29 for examp
24. Although it is generally accepte

reasons for decision, see, e.g., Sha
(1987), some scholars have suggested
reasoning process. See sources cited i
whose message legitimately may depar
nizing that reasons going to the sym
against candid explanation of the dec
deemed appropriate.
25. See, e.g., California Fed. Sav. &
Steelworkers v. Weber, 443 U.S. 19
26. See, e.g., Keystone Bituminou
27. See, e.g., Monaco v. Mississipp
1, 10-11 (1890).
28. Heydon's Case, 76 Eng. Rep. 6
legislative intent. See infra note 68. H
legislature that passed it unnecessari
from the words of a rule itself should
Consider a rule which specifically ex
but not eats, and cars and trucks but
purpose is to prevent noise. Even if
prevent noise, their psychological inte
words themselves, any more than a p
because she in fact meant "go."
29. See Singer, supra note 13, at 1
which most narrowly pertains to th
ing a dog, more locally applicable
named by the testator are to inherit
should benefit by his own wrong."
these pairs, for in each pair both rule
our intuition that a more specificall
cally applicable, but still applicable,

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unclean hands or laches,80 the legal principle of in

civil law principle of abuse of right.82 Any reade
easily add to this list.38
Yet, what if none of these established routes were
ular case?would a judge then be forced to apply th
ble rule? To answer this question, let us examine
Hunter v. Norman. Suppose that Ryshpan v. Cashm
that everything else about the facts and the applica
mained the same. What choices, if any, would be op
judge could, of course, simply hold that the sta
against Hunter. But must he? Could the judge ins
by concluding that Hunter should win because h
clerk's office?
This option of creating Ryshpan does not seem
way the American legal system operates. Despite the
statute or case authorizing such a result, allowing H
he was misled would raise no eyebrows in American
would call for an investigation of the judge's com
might had the judge ruled for Hunter because H
and Norman a Sagittarius. If the creation of such
be consistent with American judicial traditions, the
to have had a choice between deciding for Hunter an
man even without Ryshpan. Thus a judge who ru
the basis of the statute would be denying the exten
still a choice to create Ryshpan and thereby rule fo
Of course, a judge who decided to "create" Rysh
not simply assert that Hunter should win because h
information from a state official. Rather, the judge
clusion by reference to general principles that lurk
the legal system. For example, the judge might say t
ciple, parties are estopped from relying on laws wh
30. See, e.g., Brenner v. Smullian, 84 So. 2d 44 (Fla. 1955) (unclea

23 R.I. 449, 50 A. 848 (1901) (laches).
31. See, e.g., Rozell v. Vansyckle, 11 Wash. 79, 39 Pac. 270 (1895
506, 22 N.E. 188 (1889), made famous in R. Dworkin, Law's Empir
Law's Empire] and R. Dworkin, Taking Rights Seriously 23
Rights Seriously], presents a similar issue. Riggs is significant becau
legal rule, the relevant statute of wills, would allow the murdering heir
of the less locally applicable general principle that no person should p
lowed the court to avoid the result indicated by the most directly ap
perspective of the result dictated by the most immediately applicable
case, but an easy one. Understanding Dworkin's enterprise requires an
to explain the ways in which the result "easily" dictated by the most loc
yields to less locally applicable legal and nonlegal norms. See Schauer,
(Book Review), 85 Mich. L. Rev. 847 (1987).
32. See generally Gutteridge, Abuse of Rights, 5 Cambridge L.J. 22
ity of incorporating principle forbidding exercise of legal rights for pu
33. See Singer, supra note 13, at 17-18.

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1988] Formalism 519
misstated to the disadvan

would be merely a specific i
ciple. Or, the judge might
principle of reliance in secu
Under either analysis the ju
ple in some already existing
On the basis of these varia
els of escape route availab
routes in the system repres
rate the rigidity of rules, an
ration is indicated but no ap
instances, the judge might d
value and explain why this
that in Ryshpan v. Cashm
availability of an ameliorati
mand it. Thus the judge w
appropriate occasion furthe
Alternatively, we could de
already a more or less comp
system, a judge would alw
circumstances indicated that
be reached in that case. If R
able to pick other extant am
name on the ballot.
Both the first model, which resembles Dworkin's account of the law,35
and the second, which borrows from Llewellyn's,36 acknowledge the per-
vasiveness of judicial choice in their recognition of the judge's opportunity
(or perhaps even obligation) to avoid the arguably unjust consequences of
mechanical application of the most directly applicable legal rule. If either
of these models is an accurate rendition of some legal system, then a deci?
sionmaker within such a system who simply applies the most directly ap?
plicable legal rule without further thought or explanation either denies
herself a choice that the system permitted or required, or denies to others
an explanation of why she chose not to use the escape routes permitted by
the system. This failure to explain the choice to apply the most locally
applicable rule is simply a variation on the more egregious forms of for?
malism as denial of choice.37
34. Use of precedent is not as simple as I make it out to be here, but these subtleties of preceden?
tial reasoning need not detain us here. For a discussion of precedent, see Schauer, Precedent, 39
Stan. L. Rev. 571 (1987).
35. See Law's Empire, supra note 31; Taking Rights Seriously, supra note 31. See also
discussion of Dworkin, supra note 31.
36. See especially Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or
Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950).
37. Whether a system allows judges to create norms of rule avoidance where none exist, whether

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
These two models?one allowing the creation of

and the other presenting a complete list of such no
contrasted with a third model. Under this third mod
rule-avoiding norms is not temporarily incomplete
the first model, nor is it complete, as in the seco
incomplete and closed. A decisionmaker will therefo
situations in which the immediately applicable rule
decisionmaker wishes to avoid but for which the sy
an escape route nor permits one to be created. Unde
who followed the rule?rather than the course she otherwise would have
taken on the basis of all relevant factors?would not have acted formalis-
tically in the sense now under discussion. Where there was no choice, a
decisionmaker following the mandates of the most directly applicable
norm could not be accused of having a choice but denying its existence.
If we can imagine a model in which a rule-avoiding norm is both non-
existent and precluded in some instances, then we can also imagine a
model in which no rule-avoiding norms exist at all. In such a system, a
decisionmaker would be expected simply to decide according to the rule
when there was a rule dealing specifically with the situation. Because
there was no choice to be made, the decisionmaker could not be charged
with masking a choice.
This third model presents the conceptual possibility of a different type
of formalism than that which has been the focus of this section. In this
third model, the charge of "formalism" would possess a different signifi?
cance than in the other two models, for the decisionmaker accused of be?
ing formalistic might not be denying a choice made in the decisionmaking
process, but might never have had a choice at all. To investigate the possi?
bility of this type of formalism we must determine whether a system can
truly foreclose choices from the decisionmaker. It is to this issue that I
now turn.
II. Formalism as the Limitation of Choice
A. Can Language Constrain?

Each of my variations on Hunter v. Norman presuppose
judge reached a conclusion that was not influenced by the lang
judges in fact create such norms, and whether a sufficient stock of rule-avoiding norm
judges need only apply them are all unavoidably empirical questions. See Kennedy,
Phenomenology of Judging, 36 J. Legal Educ. 518, 547-48, 562 (1986); see also Tru
Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984). Th
of course, to presume that the answers to these empirical questions will remain con
decisional domains within a legal system. For example, no logical necessity dictates
rule avoidance norms applicable to administrative determination of individual social se
identical to that applicable to Supreme Court adjudication of constitutional question
38. There need not be any conceptual inconsistency between the two models. Th
conceived of as the end product of the first.

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 521
rule.39 This rule-independen

results required by the mos
the result the judge consider
of a range of factors wider
In cases of such divergence
the result indicated by the
ment that the decision fo
choices open to the judge.40
Insofar as rigid adherence
quired, either by the norm
understanding of her role,
be formalistic in the sense
legal theorists condemn thi
it requires that a decision
should be done in this situa
particular, it is the languag
decisionmaker;41 critics the
formalistic because it appea
words on a printed page, w
ation of the exact situation now at hand. Formalism in this sense is not
the denial of choice by the judge, as above, but the denial of choice to the
judge. To be formalistic, it is said, is to be enslaved by mere marks on a
printed page.42
39. I need not consider here which factors the judge actually used to reach a conclusion, for I am
not trying to catalog the considerations comprising an ideal decisionmaker's totally particularized deci?
sionmaking process. Instead, I seek merely to distinguish the concept of a complete array of factors
that any particularizing decisionmaker would take into account, regardless of the source of the partic-
ularizing norms, from the more limited array of factors available to a decisionmaker inhibited by
rules.
40. I assume here a distinction between internal and external constraint. A host of factors defining
what I am and how I got that way constrain me from appearing unclothed in a football game at
Michigan Stadium. Some of these are internal constraints?the factors that shape my very existence.
These internal constraints may be psychological, ideological, or economic, but all shape what I am
internally up to the moment of decision to appear clothed rather than naked at the football game.
Even if I could overcome these internal constraints, however, external ones, such as social disapproval
and a formal rule against such behavior, still might deter me from that action. Similarly, all sorts of
internal factors influence the decision a judge might reach about the optimal result in this case. But
these influences are distinguishable from external constraints, such as rules, that come from outside
the judge's personal determination of what should be done.
Rules are only one possible example of external constraints. A decisionmaker also may believe
herself to be externally constrained by statutory purpose. As I will demonstrate below, however, see
infra text accompanying notes 77-79, statutory purpose is an external constraint when, and only
when, it operates as a rule in the sense central to my argument. That is, purpose is an external
constraint only when some formulation of that purpose, on paper or in the mind, operates in substan?
tially the same way that a canonically formulated rule operates.
41. I explore this issue in depth below. See infra Section II-C.
42. For an example of this common use of the term "formalism," see Levinson, What Do Lawyers
Know (and What Do They Do with Their Knowledge)? Comments on Schauer and Moore, 58 S. Cal.
L. Rev. 441, 445 (1985) (erroneously concluding that Schauer "is much too sophisticated a theorist to
endorse . . . linguistic formalism"). This usage of the term "formalism" parallels that of other disci?
plines. See, e.g., Michaels, Against Formalism: The Autonomous Text in Legal and Literary Inter-

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Formalism as the linguistic limitation of choice ca

number of ways. Think of the judge who evicts the
her family on Christmas Eve because "the law" perm
Consider the classic, fictional case of i?. v. 0jibway,4
determines that a pony with a down pillow on it
because it literally fits a statutory definition of
legged animal covered with feathers.44 And recall J
in Bowsher v. Synar,4* in which he accuses the major
istic" for taking its narrow reading of article II to b
the practical consequences of striking down attempts
cit problem.46
These cases exemplify a decisionmaking process that, by distinguishing
the literal mandates of the most locally applicable legal norm from some
arguably better result reachable by considering a wider range of factors,
reinforces the systemic isolation, or closure, of the legal system.47 Those
who condemn such an outlook as formalistic criticize the perception of law
as a closed system, within which judgments are mechanically deducible
from the language of legal rules.48 Note that this description of formalism
pretation, 1 Poetics Today 23 (1979).

43. Pomerantz & Breslin, Judicial Humour?Construction of a Statute, 8 Crim. L.Q. 137
(1966).
44. Note, of course, that four-legged animals have two legs?and more. Id. at 138.
45. 478 U.S. 714, 106 S. Ct. 3181, 3205 (1986) (White, J., dissenting).
46. The plausibility of Justice White's dissent indicates that the majority opinion may also have
been formalistic in the first sense considered in this article, see supra Section I, for it suggests that the
majority had a choice. Yet by phrasing the opinion largely in terms of the clear mandate of the
Constitution, the majority denied the existence of that choice and thus denied its audience the benefit
of knowing how that choice was made. See Strauss, supra note 1.
47. On the relationship between the idea of systemic isolation and the more familiar terminology
of legal positivism and its opponents, see infra note 81.
48. See, e.g., M. Horwitz, supra note 1, at 250-51. After defining formalism as syllogistic de?
duction, Judge Posner concludes that formalism is inapplicable to statutory rules (rules with a canoni?
cal embodiment) because the decision to take these rules literally is itself a choice. Posner, supra note
1. Posner stumbles, however, in taking this preliminary choice to distinguish rule interpretation from
common law adjudication. He offers the following as an instance of a common law deduction: "So if
an enforceable contract is a promise supported by consideration, and A's promise to B was supported
by consideration, the promise is a contract." Id. at 182. He then contrasts that example with the
following requirement: "[OJne must be at least thirty-five to be eligible [to be President], X is not
thirty-five, therefore X is not eligible." Id. at 188. The latter case, says Posner, is not deductive,
superficial appearances to the contrary, because interpreting the text to produce the premise is not
deductive. According to Posner, the text could have been interpreted nonliterally; thus interpretation
of the text to require that a President actually be at least thirty-five years old, rather than some less
determinate measure of maturity, involves a nondeductive choice.
Posner's conclusion is correct, but only because of Posner's sleight of hand in drawing the prelimi?
nary distinction between statutory rule application and common law adjudication. Posner builds into
the common law case a hardly noticeable "if." Thus, although the statutory case is not deductive
because the generation of the major premise involves an interpretive choice, neither is the common law
case deductive, because its major premise is also a choice. Note that although both are equally
nondeductive, both can be equally deductive once the major premise is generated. We therefore can
reformulate the issue this way: If we make the original determination that the language of a rule is to
be interpreted literally, then the process of rule application is indeed deductive in any case in which a
putative application is definitionally incorporated within the scope of the rule as set forth in its major
premise.

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1988] Formalism 523
conjoins two different elem

of a closed system. Neithe
other, however. Mechanical
a legal rule prohibiting all
Nations, for example, the c
nable, even if the answers
construed). Conversely, non
boundaries of a single syste
should be a three-point sho
ball. These are not easy que
answers are internal to the
whether the proposed cha
mechanical deducibility is t
tion, the two are commonl
or theories as "formalisti
available to a decisionmaker.51
Having posited a model in which the decisionmaker's choice is limited

by rules, we now must determine whether this model is descriptively accu?
rate and normatively sound. The descriptive question, which I will take
up first, is whether such limitation of choice by the words on a printed
page is possible. To put it differently, and to distinguish this version of
formalism from that considered in the previous section, the question is
whether choice can be constricted by a canonical set of words on a printed
page, or whether the choices open to a seemingly constrained deci?
sionmaker are in fact virtually the same as those available to an uncon-
strained decisionmaker. This descriptive question in turn has both concep?
tual and psychological aspects. Even if it may be conceptually possible for
language to constrain choice, it may still be beyond the psychological ca-
49. For an important defense of this variety of formalism, see Weinrib, Legal Formalism, 97
Yale L.J. (forthcoming 1988).
50. My point here parallels Dworkin's notion of "fit." As Dworkin illustrates the point, the de?
termination whether the existence of a homosexual relationship between David and Steerforth best fits
David Copperfield is by no means mechanical, but its resolution takes place largely within the bound?
aries of the novel. Dworkin, No Right Answer?, in Law, Morality and Society: Essays in Hon?
our of H.L.A. Hart 58 (P. Hacker & J. Raz eds. 1977). A slightly different version of this article
appears under the same title in 53 N.Y.U. L. Rev. 1 (1978) and as Is There Really No Right Answer
in Hard Cases?, in R. Dworkin, A Matter of Principle 119 (1985). In a later work, Law's
Empire, supra note 31, Dworkin broadens the systemic boundaries with which he is concerned to
encompass those norms commonly understood as legal, political, and moral. The expansion of these
boundaries is a separate issue, however; one could agree with Dworkin that it is possible to look for fit
within a domain while disputing the size of the relevant domain.
51. The mechanical aspects of formalism are stressed in the important discussion in Kennedy,
supra note 1. The concept of formalism as not necessarily mechanical but involving significant limita?
tions on otherwise eligible results is the focus of Tushnet, supra note 1. See also, Grey, The Constitu?
tion as Scripture, 37 Stan. L. Rev. 1, 4 n.8 (1984) (distinguishing between "operative" textual
norms that guide decisions themselves and "non-operative" textual norms that tell decisionmakers to
use decisive norms outside text).

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pacity of those who make decisions to abide by these c

us turn first to the conceptual question.
Is it possible for written norms to limit the factors t
considers? At first glance, the answer to this question
Language is both artificial and contingent and therefo
ciently rigid to limit the choices of the human actors w
The word ucat," for example, could have been used
and the English language could have followed the la
kimos in having several different words to describe th
Yet this answer confuses the long-term mobility o
short-term plasticity, and is a conclusion comparable to
ous progress of a glacier as indicating that it will m
shoulders against it and push. Of course language is
and of course the rules of language are contingent, in
could have been different. It is also beyond controvers
language reflect a range of political, social, and cultura
hardly a priori. But this artificiality and contingency
short-term, or even intermediate-term, noncontingency
to a hardware store and request a hammer, the cler
screwdriver has made a mistake, even though it is arti
and possibly temporary that the word "hammer" repr
not screwdrivers. Similarly, a rule requiring candidate
petitions at a certain place by a certain time on a certai
filing in the wrong place or after the specified time.
judge did say in Hunter v. Norman, and whatever som
said in any of my hypothetical variants, none of t
Hunter, in filing at 5:03 p.m., had filed at or before
The questions about the possibility of linguistic cons
fied by considering again the rule prohibiting vehic
now let us turn from its peripheral applications to
tions?whether cars and trucks are excluded. Hart assumed that,
whatever else the rule did, it excluded cars and trucks. This was the rule's
ucore" of settled meaning and application.52 Against this, Fuller offered
the example of a statue of a truck erected as a war memorial by a group
of patriotic citizens. According to Fuller, the example challenges the idea
that a rule will have a settled core of meaning which can be applied with?
out looking at the rule's purpose. Fuller argues that it cannot be deter?
mined whether the truck, which is a perfectly functional vehicle, fails into
the rule's periphery or core unless one considers the purpose of the rule.53
Fuller's challenge is ambiguous, however; there are three variant interpre-
52. Hart, supra note 10, at 607.

53. Fuller, Positivism and Fidelity to Law ? A Reply to Professor Hart, 71 Harv. L. Rev. 630,
663 (1958).

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 525
tations of his challenge to t

pretation of Fuller's challen
rule-avoiding norms such a
provide some escape route f
eral application because ap
times produce a result whic
pose behind the regulation,
wise policy. Insofar as a leg
mate escape from unreaso
system's norms, the system
legal system worthy of tha
mative point about how lega
essary truth about how the
gument itself admits the
require an escape route to
then it must be that liter
from those which a decisio
terpretation fails to challe
merely points out the undes
tain domains.
Alternatively, Fuller might be arguing that legal systems necessarily re?
quire the interpretation of regulatory language in light of the purpose of
the regulation. As with the first interpretation of the challenge, however,
this interpretation focuses on whether a rule should bind, and it leaves the
claims of linguistic determinacy untouched. We still can imagine a system
in which decisionmakers do not interpret clear regulatory language ac?
cording to its purpose if its purpose diverges from the regulatory lan?
guage. The outcome in some instances might seem absurd, but it is ques-
tion-begging to use the existence of the absurd result as an attack on the
possibility of a core of literal meaning.
Finally, Fuller might be interpreted as making a point about language
itself: He might be arguing that meaning cannot be severed from the
speaker's purpose and that meaning must be a function of the specific
context in which words are used. Fuller's argument that the idea of literal
meaning is incoherent, an argument also made by other critics,56 reveals a
54. Fuller's example and other illustrations of seemingly absurd results generated by applying a
rule without attention to the circumstances of its creation figure prominently in criticism of formalism.
See, e.g., Moore, A Natural Law Theory of Interpretation, 58 S. Cal. L. Rev. 277, 386-88 (1985);
H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law
1148-78 (tentative ed. 1958) (unpublished manuscript); see also Dworkin's use of Riggs v. Palmer,
supra note 31.
55. This use of the term "necessarily" to describe the essential features of anything properly
called a legal system would be consistent with the general tenor of Fuller's jurisprudence. See L.
Fuller, The Morality of Law (1964); R. Summers, Lon L. Fuller 27-31, 36-40 (1984).
56. See, e.g., Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133
U. Pa. L. Rev. 685, 708-13 (1985) [hereinafter The Politics of Reason] (arguing that words do not

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
mistaken view of the nature of language. Fuller and h

distinguish the possibility and existence of meaning fr
lest meaning that might be gleaned from a given com
In conversation, I am assisted in determining what a s
me to understand by a number of contextual cues, inc
pitch, modulation, and body language, as well as by
surrounding the conversation. That such contextual cu
standing, however, does not imply that the wor
paragraphs used by the speaker have no meaning with
uno vehicles in the park" rule clearly points to the exc
from the park even if we believe that the exclusion is
the point of view of the statute's purpose.
If I come across an Australian newspaper from 1
because I understand, acontextually, the meaning of
and sentences in that newspaper, even though with be
derstanding I might understand more of what was wr
transported English convicts. This example does not de
guage is unchanging, nor that language can be perfect
out attention to context, but rather that some number
tions, or rules of language, are known and shared b
competence in the English language. Linguistic compet
guage involves understanding some number of rules
others who are linguistically competent in the same la
viduals understand the same rules, they convey meani
forming to those rules.57 Members of the community
have essences or core meanings); Boyle, Thomas Hobbes and the Invente
Reflections on Language, Power, and Essentialism, 135 U. Pa. L. Rev.
cussing Hobbes' rejection of notion of linguistic essences). In passing, I n
those who describe as "post-Wittgensteinian" the view that meaning can
particular context of a particular utterance. E.g., Boyle, The Politics
footnote in a law review article is hardly the place to debate interpretation
whether Wittgenstein can even plausibly be interpreted to support a pragm
meaning. Yet I would briefly note that a fair reading of Wittgenstein revea
meaning of a word is a function of how that word is contingently used
community, but emphatically not a function of how the word is used on
particular member of that community.
It is crucial to recognize the seductive quality of phrases like "post-Wittge
that if the reader acknowledges Wittgenstein's genius, then she must agree
those terms. It is better to discuss the point at issue without attempting to
props of associations with philosophers whose names are currently fashiona
of the still-raging disputes about the most foundational questions in the
substitute Wittgenstein's name for an argument is unwarranted even if
rate. When that use is mistaken or at the very least contested, the dangers
other disciplines are compounded.
This criticism of the presentation of Boyle's argument has no bearing
however. Although I disagree with much of what he and Fuller argue, th
questions about the nature of law which I believe should be confronted d
spectives are ill-served by clothing them in what appears to me to be an
Wittgenstein.
57. For a particularly insightful and influential articulation of the view that meaning exists inde-

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 527
for example, possess shared

other members of the comm
Among the most remarkab
nature, i.e., the way in wh
heard before. We can do t
specifiable, allow us to give
without having to inspect t
context in which words a
partially independently of
up on the beach in the sha
pendent of speaker's purpose or oth

Essay in the Philosophy of Langu
paragraphs 489-512 of L. Wittg
trans. 3d ed. 1953). A similar interpr
Baker & P. Hacker, Wittgenstein:
even those who are rightly concern
Wittgenstein would not dispute that
terns." Wright, Rule-Following, O
Follow a Rule 99, 105 (S. Holtzma
Interpretations of Wittgenstein apa
into the commonplace of contempora
hotly dispute the source or explanat
Language 74-75 (1964); M. Black,
sophical Essays in Language, Log
Modern Philosophy, in Must We
and Acknowledging, id. at 238, 2
tion xix, 243-64 (1984); D. Holdcroft, Words and Deeds: Problems in the Theory of
Speech Acts 122-23 (1978); R. Martin, The Meaning of Language 217 (1987); M. Platts,
Ways of Meaning: An Introduction to a Philosophy of Language 130-32 (1979); I.
scheffler, beyond the letter: a philosophical inquiry into ambiguity, vagueness and
Metaphor in Language 81 (1979).
In one philosopher's words:
It is a platitude?something only a philosopher would dream of denying?that there are con?
ventions of language, although we do not find it easy to say what those conventions are. If we
look for the fundamental difference in verbal behavior between members of two linguistic com?
munities, we can be sure of finding something which is arbitrary but perpetuates itself because
of a common interest in coordination. In the case of conventions of language, that common
interest derives from our common interest in taking advantage of, and in preserving, our ability
to control others' beliefs and actions to some extent by means of sounds and marks. That
interest in turn derives from many miscellaneous desires we have; to list them, list the ways
you would be worse off in Babel.
D. Lewis, Languages and Language, in 1 Philosophical Papers 163, 166 (1983).
Obviously some tension exists between the way that language is discussed in analytic philosophy of
language and the way that it is discussed in other circles, including literary theory. Part of the differ?
ence between the terms of the debate in these two circles can be explained by the different extent to
which the two disciplines focus on "difficult" interpretations. This may also explain the extent to
which some branches of legal theory, with their focus on difficult interpretations in linguistically hard
cases, have been drawn to literary theory. Moreover, insofar as literature exists primarily to illumi-
nate, inspire, and transform, its very existence encourages attempts to pierce literal meaning. The
relationship between the enterprise at issue and the view of literal meaning adopted suggests an im?
portant question: Might the purposes of the legal enterprise be so different from those of interpreting
literature that literal meaning is no longer an obstacle but instead a tool? I have no answer to this
question, nor do I intend to offer a few easy citations to suggest a familiarity I do not possess. Never?
theless, the very differences in focus between analytic philosophy of language and literary theory may
suggest that it is a bit too easy, for me or for those who draw on literary theory or other perspectives
on language, to assume that the applications of these perspectives to law cannot take place without
some theoretical slippage.

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
not of frogs or Oldsmobiles precisely because those

convey meaning independently of what might have
speaker. Of course there can never be totally acontext
community of speakers of the English language is i
meaning can be "acontextual" in the sense that that m
other context besides those understandings shared
speakers of English.
Given that the meaning of words may be acontext
our understandings of language, the central questio
enough of these understandings exist to create the poss
guage. In other words, we must ask whether words ha
textual import so that communication can take plac
English in such a way that at least a certain limited ra
not one and only one meaning, will be shared by all or
of English. The answer to this question is clearly "yes.
that washed up on the beach in the shape of C-A-T
gether in sentences point us toward certain meanings
shared understandings. At times these sentences may b
other times these comprehensible sentences may b
tions?rules. Because we understand the rules of langua
the language of rules. Contextual understanding mi
determine whether a given application does or does no
of a rule's framers. Yet the rule itself communicat
although that meaning might depart from the purpose
from the richer understanding to be harvested from
range of factors than the rule's words. That we might
considering additional factors or from more fully
speaker's intentions does not mean that we learn nothin
language of rules themselves.
Of course, certain obvious, accessible, and by and
features of rules distinguish the meaning we cull fr
interpretation of other types of communications. For
interpret a rule of law, we understand that it is a law
interpreted in light of surrounding language in the sa
ordinary "lawspeak" (habeas corpus, certiorari, par
viewed as a language for a subcommunity in the com
speakers, capable of doing within the subcommunity w
guage does within the larger community of English
though all those reading a statute come to that task w
58. See J. Searle, Literal Meaning, in Expression and Meaning 11

exists albeit only against a set of background assumptions about contex
appropriately be uttered); Moore, supra note 54, at 304-07 (arguing that
is required for fixing references to singular terms).

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 529
assumptions, it is probabl
tional
set of assumptions w
Both those within the lega
guistic community are capa
though the literal lawyer
literal lay meaning of the
Parliament to those who take an oath "on the true faith of a Christian"
literally excludes Jews by its language.60 A statute requiring that th

master of a vessel shall record in the log book "[e]very birth happening on
board, with the sex of the infant, and the names of the parents,"61 can be
understood by virtually any speaker of English as requiring the master t
take certain actions.62 In these and countless other cases, statutes can be
wrenched from most of the context of their enactment and application an
still be read and understood.
59. Note that I am talking about language and about two different embellishments on the main
theme of literal meaning. First, ordinary people within a given linguistic culture might share, as
linguistic conventions, knowledge about how to interpret the language of rules, including conventions
relating to the difference between normative and descriptive language and conventions telling them to
interpret words in light of surrounding language in the same rule or statute. This suggests only that
all competent speakers of the language in which the text is written have access to a certain minimal
amount of noncontroversial information about what kind of text it is.
Second, literal meaning is not necessarily ordinary meaning, because linguistic conventions may
exist within a technical or professional subcommunity of a larger community. For example, photogra-
phers may have a literal sense of the meaning of the term "burning in," physicians may have a literal
sense of the meaning of the term "Cushing's Syndrome," and lawyers may have a literal sense of the
meaning of the term "assumpsit," even though none of these are terms used at all or in the same way
by ordinary English speakers. This second embellishment, however, must be sharply distinguished
from other notions of "conventionalism" that build in much more than linguistic meaning. See, e.g., S.
Burton, An Introduction to Law and Legal Reasoning (1985); Fiss, Conventionalism, 58 S.
Cal. L. Rev. 177 (1985); Fiss, Objectivity and Interpretation, 34 Stan. L. Rev. 739 (1982). The
conventionalist legal literature talks merely about the conventions of permissible legal argument and
does not confront the question of the relationship between the conventions of permissible legal argu?
ment and the conventions of literal meaning, whether ordinary or technical. Thus, legal conventional?
ists such as Fiss avoid questions regarding whether and why certain literal readings of legal rules are
or are not permissible arguments within the legal interpretive community. It is these questions, in
some sense more foundational, that concern me here, because my aim is to locate the particular per?
missible arguments in the legal interpretive community, rather than merely to assert the existence of
permissible arguments.
60. Salomons v. Miller, 8 Ex. 778, 155 Eng. Rep. 1567 (1853); Miller v. Salomons, 7 Ex. 475,
155 Eng. Rep. 1036 (1852).
61. 46 U.S.C. ? 201 (1958), repealed by Pub. L. No. 98-89, 97 Stat. 600 (1983).
62. "When you come tomorrow, bring my football boots. Also, if humanly possible, Irish water
spaniel. Urgent. Regards. Tuppy."
"What do you make of that, Jeeves?"
"As I interpret the document, sir, Mr. Glossop wishes you, when you come tomorrow, to bring his
football boots. Also, if humanly possible, an Irish water spaniel. He hints that the matter is urgent,
and sends his regards."
"Yes, that's how I read it, too . . . ."
P.G. Woodehouse, The Ordeal of Young Tuppy, quoted in S. Blackburn, Spreading the Word:
Groundings in the Philosophy of Language 3 (1984).

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
B. Does Language Constraint

The conceptual question of whether literal me
therefore be answered affirmatively. Rules may poi
verge from those that a decisionmaker would have r
literal meaning of the rule. When there is such dive
psychological question remains: Is it possible in
sionmakers to follow the literal meaning of the rule
judgment regarding how the case should be resolved
The psychological challenge to formalism involves
sionmakers will usually take all factors they belie
account, or at least that they will usually feel comp
able" results whether or not the language of the ru
tion.63 When expressed this way, it is obvious that
tion is an empirical one. Accordingly, it cannot b
argument. Yet despite legal scholarship's sorry failu
logical challenge seriously,64 the possibility that jud
own rule-independent judgment is, on its face, q
easily imagine a world in which decisionmakers con
they feel relevant and ignore, or at least slight, any
instructions in making their decisions. The question
world of the law.
Certainly some legal decisionmakers conform to this model. Although
one may dispute as excessive the generalizations of the more extreme
Realists, it is difficult to deny the existence of decisionmakers who consult
the rules only to create post hoc rationalizations. Indeed, to the extent that
legal systems resemble the model in which a rule-avoiding norm is always
available, such behavior is encouraged. Insofar as the view ever prevailed
that there were few decisionmakers who rejected, ignored, or bent the
plausibly determinate mandates of governing rule, it is important that that
view be shown for the optimistic fantasy it is. Yet to accept that some
judges arrive at decisions without considering rules does not imply that all
or most decisionmakers act in such a way as either an inevitable feature of
human nature or even as a contingent feature of judicial behavior.
Just as it is a mistake to assume that because some judges ignore rules
most judges do so, it is also a mistake to assume that because rules some?
times constrain, they usually constrain. The truth, an empirical rather
than a logical one, plainly lies between the extremes of always and never,
or even between the lesser extremes of rarely and usually. Although this is
not the place to examine the rudimentary empirical work that has been
63. See Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 985, 1004
(1987).
64. Noteworthy exceptions are J. Frank, Law and the Modern Mind (1930), and Kennedy,
supra note 37. However, legal scholarship still must systematically investigate the important issues
that Frank, Kennedy, and others have raised in an impressionistic way.

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 531
done on the question, it is

research has, not surprisin
some settings, decisionmak
their own decisional process
from the results the decisionmakers otherwise would have reached. This
conclusion should cause no surprise as long as we recognize that people
often do what others think best. If privates in the army often follow orders
instead of making autonomous choices, and if privates might behave in
this way with respect to general orders in addition to particularized com-
mands, we can imagine judges doing the same with respect to rules.66
We have seen that, as a descriptive and conceptual matter, rules can
generate determinate outcomes; that those outcomes may diverge from
what some decisionmakers think ought to be done; and that some deci?
sionmakers will follow such external mandates rather than their own best
particularistic judgment. The normative question of formalism now re?
mains: To what extent should a system legitimate the avoidance of literal
meaning when avoidance seems to be the optimal outcome to the deci?
sionmaker? To put it simply, now that we have established that formal?
ism?in the sense of following the literal mandate of the canonical formu?
lation of a rule?is conceptually and psychologically possible, we must ask
whether it is desirable. Before turning to that question, however, I want
65. See D. Black, The Behavior of Law (1976); L. Friedman, The Legal System: A
Social Science Perspective (1975); Hogan & Henley, Nomotics: The Science of Human Rule
Systems, 5 Law & Soc'y Rev. 135 (1970); Johnson, Law, Politics, and Judicial Decision Making:
Lower Federal Court Uses of Supreme Court Decisions, 21 Law & Soc'y Rev. 325 (1987);
Scandura, New Directions for Theory and Research on Rule Learning, 28 Acta Psychologica 301
(1968).
66. There is something unrealistic about all of this, because it erroneously assumes that my para?
digm "easy" cases are representative of the kinds of decisions that come before decisionmakers. They
are not, at least when we take "decisionmaker" in a somewhat narrow sense to refer to formal deci?
sionmakers such as judges sitting in courts of law. In most legal systems, various screening devices
ensure that cases at the center of decisional determinacy will not enter the formal adjudicative process.
The time and expense of litigation and the widespread inclination to avoid futile battles are such that
decisions at the core of settled meaning seldom confront any formal decisionmaking process. See Priest,
Reexamining the Selection Hypothesis: Learning from Wittman's Mistakes, 14 J. Legal Stud. 215
(1985) (develops selection hypothesis to determine which cases are settled and which are litigated);
Priest and Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984) (presents
model to predict whether litigation will be resolved by suit or settlement).
This, however, is but a contingent feature of modern legal systems. It is possible to imagine a legal
system closer to a sporting event, where umpires call "safe" or "out" on every play, or where officials
with red penalty flags in their back pockets patrol the social landscape, ready to throw the flag and
call "tort," or "crime," or "breach of etiquette" whenever there is a transgression of the rules. Obvi?
ous logistical problems prevent such a system from being a reality, but it is a useful Gedankenexperi-
ment for thinking about the innumerable instances in which rules are followed or clearly broken
without coming to the attention of the judicial system.
Many legal systems, unlike those with "roving umpires," operate largely in the area of linguistic
indeterminacy, generated either by vagueness of the governing norm or by open texture when previ?
ously clear norms confront the unexpected. And in some systems, such as that of the United States, the
likelihood of success is sufficient to make it worth litigating cases in which linguistic determinacy
produces a politically or morally uncomfortable result. But that is exactly our question, because the
weight the system gives to literal meaning will determine the extent to which it is worth litigating
against literal meaning.

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to answer an important counterargument to the possib

formalism defined in this section.
C. Language and Rules

Until this point my argument may appear to create a false dichotomy. I
have counterpoised the vision of decisionmakers who follow the literal lan?
guage of a rule with that of decisionmakers who follow the dictates of
their own externally unguided opinions. But are these the only alterna?
tives? Although rules can and do constrain, is it not possible that these
rules need not be equated with the literal meaning of the language in
which they happen to be articulated? In other words, is portraying the
vice of formalism as the vice of literalism actually confusing rules with the
literal meanings of their explicit formulations?
The argument that rules can be distinguished from the language in
which they are written has a distinguished lineage in Anglo-American le?
gal thought. We see, for example, Ronald Dworkin urging interpreters to
search for or to construct the "real" rule lying behind the mere words on
a printed page.67 Somewhat less explicitly, the "mischief rule" of the com?
mon law compels the literal language of a rule to yield to the purpose
behind a rule when application of the literal language would frustrate the
rule's purpose.68 Indeed, the mischief rule and related principles urging
the primacy of purpose over text are features of the thinking of Fuller, of
Hart and Sacks, and also of Llewellyn's "Grand Style" of judging.69 As a
matter of fact, Llewellyn distinguished the Grand Style from the Formal
Style because he believed that formalism, as the obeisance to the literal
language of a rule, could frustrate the rule's purpose and lead to difficul?
ties where the practical consequences of the decision would indicate a dif?
ferent result.
The language in which a rule is written and the purpose behind that
rule can diverge precisely because that purpose is plastic in a way that
literal language is not. Purpose cannot be reduced to any one canonical
formulation, for when purpose is set down canonically, that canonical for?
mulation of purpose may frustrate the purpose itself. It is because purpose
is not reduced to a concrete set of words that it retains its sensitivity to
novel cases, to bizarre applications, and to the complex unfolding of the
human experience. Thus, for the recourse to purpose to "solve" the prob?
lem of formalism, the purpose must not be imprisoned in the rigidity of
67. Law's Empire, supra note 31, at 16-17.

68. The standard references for this rule are Heydon's Case, 76 Eng. Rep. 637 (Ex. 1584), and
Church of the Holy Trinity v. United States, 143 U.S. 457 (1892); see discussion supra note 28. See
also J.G. Sutherland, Statutes and Statutory Construction ?? 45.05, 45.09 (N. Singer
rev. ed. 1984).
69. K. Llewellyn, supra note 1, passim; see W. Twining, Karl Llewellyn and the Real?
ist Movement 210-11 (1973).

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 533
words. This unrigidified pu

as new examples and appl
behind the "No vehicles in
statue of the truck exactly
of the moment in a way th
meaning, cannot. In contr
literally refers to vehicles;
vehicles does not serve the
ment is unavoidable.71
If adhering to concretized language causes this embarrassment, then
why not adhere to the purpose of the rule rather than the words of the
rule? To do so would conform with the models advocated by Fuller,72
Hart and Sacks,78 Dworkin,74 and Llewellyn75 and would match what
can be called, with only negligible exaggeration, the current paradigm of
American statutory interpretation.76 Yet locating the idea and the force of
a rule in its purpose rather than in its formulation poses the same prob?
lem posed by concretized rules, except at one remove. To illustrate the
point, suppose the purpose of the "no vehicles in the park" regulation is
the preservation of peace and quiet in the park. Suppose, as well, that this
purpose derives from an even deeper purpose of maximizing the pleasure
of the residents of the town. Now imagine that a town native who has just
70. Note that the "No vehicles in the park" example may be a flawed illustration of the problem
Hart, Fuller, and I explore, because locomotive capacity may now be definitional of a "vehicle."
Insofar as this is true, the statue is not a vehicle, and no conflict arises between literal meaning and
purpose. This is a defect only in the example, however, rather than in the general formulation of the
issue. I will therefore stipulate, for the purposes of this argument, that a statue of a vehicle is a
vehicle, just as a lion in a cage is still a lion. Consider a rule prohibiting "live animals on the bus"
and whether it would prohibit carrying on the bus three live goldfish in a sealed plastic bag.
71. My point about the plasticity of purpose should not be confused with claims, often correct,
about the indeterminacy of purpose. See, e.g., Easterbrook, Foreword: The Court and the Economic
System, 98 Harv. L. Rev. 4, 15-18 (1984); Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev.
533, 537-38 (1983); Kennedy, supra note 1; Posner, Statutory Interpretation?In the Classroom
and in the Courtroom, 50 U. Chi. L. Rev. 800, 819-820 (1983). Insofar as purpose becomes both
concrete and determinate, as when everyone agrees what the purpose is, the argument that "ruleness"
resides in purpose becomes more plausible. But when some conception of purpose is determinate,
noncanonical purpose itself can operate formalistically. Conversely, if purpose is comparatively inde?
terminate, then it looks especially odd to say that the rule exists not in the specific rule-formulation,
but in the quite different and nonspecific purpose. Thus, those who argue for the indeterminacy of
purpose make claims consistent with mine.
72. L. Fuller, supra note 55, at 81-91; Fuller, supra note 53; Fuller, The Speluncean Explor-
ers, 62 Harv. L. Rev. 616, 620-26 (1949) ("opinion" of Foster, J.).
73. H. Hart & A. Sacks, supra note 54.
74. Law's Empire, supra note 31.
75. K. Llewellyn, supra note 1.
76. See Wellman, Dworkin and the Legal Process Tradition: The Legacy of Hart & Sacks, 29
Ariz. L. Rev. 413 (1987); Note, Intent, Clear Statements, and the Common Law: Statutory Con?
struction in the Supreme Court, 95 Harv. L. Rev. 892 (1982). Recent manifestations of this para?
digm include G. Calabresi, A Common Law for the Age of Statutes (1982); Eskridge, Dy?
namic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987); Langevoort, Statutory Obsolescence
and the Judicial Process: The Revisionist Role of the Courts in Federal Banking Regulation, 85
Mich. L. Rev. 672 (1987). But see, e.g., United States v. Locke, 471 U.S. 84 (1985) (failure to file
timely claim deprives petitioner of right, irrespective of statutory purpose).

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won six gold medals in the Olympic Games is returning to

scene of her youth, along with a widely popular President
States. Suppose as well that the park with the "no vehic
regulation is the only suitable place for the motorcade, wh
motorcade because the President is disabled and cannot wal
circumstances, the purpose behind the "no vehicles in
would be served by excluding the motorcade, but the purp
purpose would be frustrated. Thus the same logic that req
mulation of a rule to be defeasible in the service of its pu
require that purpose to be defeasible in the service of the
it.
As the example reveals, the potential tension between the general goal
and its concretized instantiation exists at every level. At one level, the ten?
sion is between language and purpose; at the next, it is between that pur?
pose and the deep purpose lying behind it; at the next, between the deep
purpose and an even deeper purpose; and so on. When we decide that
purpose must not be frustrated by its instantiation, we embark upon a
potentially infinite regress in which all forms of concretization are
defeasible.
The view that rules should be interpreted to allow their purposes to
trump their language in fact collapses the distinction between a rule and a
reason, and thus loses the very concept of a rule.77 Rules are by definition
general. They gather numerous known and unknown particulars under
headings such as "vehicles," "punishment," "dogs," and "every person
who is directly or indirectly the beneficial owner of more than 10 per
centum of any class of any [registered] equity security (other than an ex-
empted security)." After identifying a category of items or events to which
the rule applies, in the protasis, rules then prescribe what shall be done
with these particulars in the apodosis7* Occasionally, however, not all of
the particulars comprising the rule's category of coverage are suitable for
the prescribed treatment; the generalizations that are a necessary part of
any rule treat all members of the class in a manner that may be appropri?
ate only for most members of the class. What, then, is to happen when a
case arises in which the generalization does not apply to this particular?
When a rule's prescribed treatment is unsuitable, if the decisionmaker
77. Note, however, that this claim is not inconsistent with the view that rules should be inter?
preted to further their purposes when several interpretations of the rule are possible and all are
supported by the language ofthe rule. In such cases, it is not only possible but positively desirable to
choose the interpretation that will serve the rule's purpose. See H.L.A. Hart, Introduction, in Es?
says in Jurisprudence and Philosophy 1, 8 (1983).
78. On this terminology for the structure of rules, which distinguishes the part of the rule specify-
ing its operative facts from the part describing the consequences flowing from the existence of those
facts, see W. Twining & D. Miers, How To Do Things With Rules 136-40 (2d ed. 1982). See
also Friedman, Legal Rules and the Process of Social Change, 19 Stan. L. Rev. 786, 786-87 (1967)
(same distinction with different labels); Schlag, Rules and Standards, 33 UCLA L. Rev. 379,
381-83 (1985) (same).

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 535
were to ignore the rule, t

reason for decision but wou
the purposes behind the r
that would not serve the re
coverage of the rule, then
applying reasons directly
rules. Under such a mode
guides, for they lack any n
cases in which the particula
hind the rule, the rule nev
the case according to the ru
provides a reason for action
In summary, it is exactly
tions that would ill serve it
derives from the language
contemplation of every fac
tion of the rule. To be form
by the rigidity of a rule's
central to the constraint
therefore indistinguishabl
rule a rule, and what distin
willingness to pierce the ge
ization appears to the decis
rigidity is what makes it a
D. The Idea of a Closed S

We now are in a position t
bodies the erroneous view
closed system. We have se
otherwise eligible answer
there are rules, such as on
application throughout muc
rule and to uncontroversi
discrete particulars. There
quire recourse only to the
and observational skills.
Such a system would be closed, but it would not necessarily be com?
plete. Closedness and completeness are different properties. Closedness re?
fers to the capacity of a system to decide cases within the confines of that
79. This is not to say that rules are always or even ever good things to have. My aim now is to
distinguish a form of decisionmaking in which generalizations have independent normative power
from a form of decisionmaking in which the full richness of the particular event always is open to
consideration. The questions of whether rules should be employed, in which domains, and to what
extent, are addressed below. See infra Section III.

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system, while completeness refers to the extent to wh

with those cases at all. A mathematical system is cl
rules of mathematics provide an answer to the questio
of 97 and 53?" But that same system is incomplete ins
no answer to the question "What should the United
problem of poverty?" The dimension of completeness,
unimportant for mathematics, is important for law pr
modern legal systems claim the ability to deal with a w
Insofar as the human experience is especially complex
system is likely to be frustrated by its incompleteness,
ity to answer the questions it wants to answer. Comm
these frustrations by rendering the norms of the law l
thereby using vagueness as the tool by which we plan f
of experience.80 As a result, legal systems, to avoid
widespread incompleteness, often employ norms suffici
to accommodate much that is important in the world
ing so sacrifice the occasional virtues of closedness. Su
open even at the expense of being less predictable and
their decisionmakers.
Thus, legal systems often reject closedness because th

a large array of problems presented by a complex a
this is to say that comparatively closed systems may so
able, not that they are not possible. The importance of
tinction is to stress that the degree of closedness may v
ness is a tool that might be usable in some domains even
form, it is not the only tool we would want to use for
social control.
When applied to individual norms rather than to entire systems, closed?

ness is merely another word for ruleness. By limiting access to the reasons
behind the rule, rules truncate the array of considerations available to a
decisionmaker.81 Rules get in the way. They exclude from consideration
factors that a decisionmaker unconstrained by those rules would take into
80. See Schauer, Authority and Indeterminacy, in Authority Revisited: NOMOS XXIX 28
(1987).
81. The closed system/open system dispute merely recasts the debate about legal positivism in
different terminology. Any version of legal positivism is premised on what Ronald Dworkin, no posi?
tivist, has felicitously referred to as "pedigree." Taking Rights Seriously, supra note 31, at 17.
Positivism posits that legal norms are identified by reference to some other norm, rule, or standard
that distinguishes legal from non-legal norms. Hart's "rule of recognition" serves this purpose,
H.L.A. Hart, supra note 1, as does the "next higher norm" for Kelsen. H. Kelsen, The Pure
Theory of Law 193-278 (M. Knight trans. 1967). The positivist conceives of the set of norms so
pedigreed as constituting some sort of a closed system, although that system will not necessarily decide
all or even most cases that come before the courts. Kelsen, for example, sees every law-applying act as
only partially determined by law. Id. at 233-36, 244-45. By contrast, the opponents of positivism,
most notably Dworkin, attack the pedigreeability thesis by arguing that in no case is the distinction
between pedigreed and nonpedigreed norms dispositive and consequently the characterization of law
in terms of pedigreed norms is descriptively inaccurate.

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 537
account. Understanding the

sons available to a decision
between formalism and fun
ism focuses on outcomes
sionmaker deems optimal. R
functionalism can be percei
minimize the space betwee
all things considered, shou
done. Rules block considerat
a particular decision in two
sideration reasons that mig
not been constrained by a r
action, or a reason for deci
The notion of a rule as a r
tion. What makes formalism
ing rules seriously involves
independent of the reasons
otherwise, the set of reason
gruent with the set of re
nothing to the calculus. R
rules. When the reason sup
rule, then the rule is in a d
Rules become interesting w
do the reasons behind the
statues of vehicles ought to
the rule indicate that the s
occasionally perverse reason
dispositive is condemned as
of a rule from the reasons behind it. Yet that is what rules do. Refusal to
abstract the rule from its reasons is not to have rules. This refusal reduces
rules to rules of thumb, useful but intrinsically unweighty indicators of
the results likely to be reached by direct application of reasons.
Thus, the essential equivalency of formalism and "ruleness" is before
us. Viewing formalism as merely rule-governed decisionmaking does not
make it desirable. Yet recognizing the way in which formalism is merely a
way of describing the process of taking rules seriously allows us to escape
82. See, e.g., R. Summers, Instrumentalism and American Legal Theory 136-75 (1982);
Aleinikoff, supra note 63, at 985; Summers, Professor Fuller's Jurisprudence and America's Domi?
nant Philosophy ofLaw, 92 Harv. L. Rev. 433 (1978).
83. Insofar as a system permits recourse to the purpose behind a rule's formulation but does not
permit departure from that purpose when adhering to it will produce unfortunate results or will
frustrate the even deeper purpose behind it, that system will still be formal in the sense I am now
using that term. It will also be rule-bound, because the less than totally plastic purpose (although
more plastic than the rule-formulation) will operate as a rule vis-a-vis the higher order reasons that
generated that particular purpose.

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the epithetical mode and to confront the critical quest

What, if anything, is good about the unwillingness to
and apply its purpose, or the purposes behind that purp
case before the decisionmaker?
III. Should Choice Be Restricted?
Let me recapitulate. One conception takes the vice of form

sist of a decisionmaker's denial, couched in the language of o
clear rules, of having made any choice at all. Yet rules, if fo
not leave a decisionmaker free choice. Rules can limit deci
and decisionmakers can abide by those limitations. Those lim
in most cases from the literal language of a rule's formulation
a rule as anything other than the rule's formulation, or at lea
ing of the rule's formulation,84 is ultimately to deny the id
Thus, formalism merges into ruleness, and both are inextr
twined with literalism,86 i.e., the willingness to make decisi
to the literal meaning of words or phrases or sentences or pa
printed page, even if the consequences of that decision seem e
trate the purpose behind those words or to diverge significant
the decisionmaker thinks?the rule aside?should be done. But does dem-
84. In a trivial sense, rules differ from their formulations. See, e.g., G. Baker & P. Hacker,
supra note 57, at 41-52; M. Black, The Analysis of Rules, in Models and Metaphors: Studies
in Language and Philosophy 95 (1962); D. Shwayder, The Stratification of Behaviour
241 (1965); G. von Wright, Practical Reason 68 (1983). "Do not walk on the grass," "Walking
on the grass is prohibited," and "No walking on the grass" constitute one and not three rules. Refer?
ring to these three formulations as formulations of only one rule, however, presupposes that all have
the same meaning, that the differences are syntactical and not semantic. Thus, the distinction between
a rule and its formulation is like the distinction between a proposition and a sentence. When I discuss
a rule and equate it with its formulation, I therefore mean that a rule is that set of semantically
equivalent rule formulations.
85. My references to "literalism" are slightly metaphorical. As noted above, see supra note 59,
literalism includes those aspects of context, such as the appearance of words in a statute rather than in
a poem, that are accessible to all or most readers. Moreover, although I often use single words as
examples, statutes are not read word by word, but instead by sentences, paragraphs, and larger units
of text. This is not to deny, however, that the ability to assign meanings to individual words is what
enables us to understand a sentence we have never seen before. See D. Davidson, Truth and Mean?
ing, in Inquiries into Truth and Interpretation 17 (1984). This assertion, however, superfi-
cially in conflict with Frege's assertion that only in the context of a sentence does a word have any
meaning, see G. Frege, The Foundations of Arithmetic (J.L. Austin trans. 1959), is not with?
out its detractors and complexities. See, e.g., Wallace, Only in the Context of a Sentence Do Words
Have Any Meaning, in Contemporary Perspectives in the Philosophy of Language 305 (P.
French, T. Uehling, Jr., & H. Wettstein eds. 1979).
Still, pace Fuller, supra note 53, at 662-63, sentences and paragraphs can have literal and even
acontextual meaning insofar as an entire sentence or paragraph may supply enough context to make
its meaning comparatively clear. As texts become lengthier and richer it is often more possible to
understand those texts without departing from them and thus more possible for them to have acontex?
tual meaning.
Moreover, literal meaning need not always be ordinary meaning. Where some aspect of the mini?
mal and uncontested context makes it plain that a settled specialized or technical meaning of a term or
phrase applies, that technical meaning, rather than the ordinary usage of the man on the Clapham
omnibus, is controlling.

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 539
onstrating that formalism

so good about decision accor
The simple answer to this
"nothing." Little about deci
intrinsically valuable. Once
they gain their ruleness by
the best resolution in a par
pediments to optimally se
making to mediocrity by m
Nor is there anything esse
scarce reason to believe tha
just than are systems in wh
cially a just decisionmaker,
sist her in reaching the bes
sideration by a rule migh
necessary to reach a just re
cases and thus impede opt
mon's wisdom with justice
ing the dispute over the ba
the right solution for that
lowers, but those whose a
scend the inherent limitations of rules.
Still, that rules may be in one sense unjust, or even that they may be
inappropriate in much of what we call a legal system, does not mean there
is nothing to be said for rules. One of the things that can be said for rules
is the value variously expressed as predictability or certainty. But if we
pursue the predictability theme, we see that what most arguments for
ruleness share is a focus on disabling certain classes of decisionmakers
from making certain kinds of decisions.86 Predictability follows from the
decision to treat all instances failing within some accessible category in the
same way. It is a function of the way in which rules decide ahead of time
how all cases within a class will be determined.
Predictability is fostered to the extent that four different requirements
are satisfied. The first of the factors contributing to predictability is the
capacity on the part of those relying on a rule to identify certain particu?
lars as instances of a given category (for example, that pelicans are birds).
When there is a more or less uniform and uncontroversial ability to say
86. See generally A. Kocourek, An Introduction to the Science of Law 165-85 (1930);
R. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification 60-66
(1961); Marsh, Principle and Discretion in the Judicial Process, 68 Law Q. Rev. 226 (1952). Along
with Wasserstrom, supra, at 61, I object to the use of the word "certainty" in this context because,
unlike the term "predictability," it suggests that no doubt is involved. I can predict that it will snow in
Vermont this winter and rely on that prediction in making winter plans, yet still not be certain that it
will snow. Although one usage of "certain" does recognize variability, I prefer the term "predictabil?
ity" because its common usage implies such variability.

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that some item is a member of some category, little

tially variable judgment clouds the prediction of whe
ply to this particular item. This relates to the second
sionmakers in the system will perceive those particul
of the same category perceived by the addressees
perceiving by those affected. That is, people perc
decisionmakers perceive pelicans as birds; and peo
sionmakers will perceive pelicans as birds. Third, th
terms of an accessible category. Predictability requir
category whose denotation is substantially noncon
class of addressees of the rule and common to the addressees of the rule
and those who apply it. Finally, the rule must treat all members of a
category in the same way. Only if the consequences specified in the apod-
osis of the rule are as accessible and noncontroversial as the coverage spec?
ified in the protasis can a rule produce significant predictability of appli?
cation. Thus, predictability comes from the knowledge that if this is a bird
a certain result will follow, and from the confidence that what I now per?
ceive to be a bird will be considered a bird by the ultimate decisionmaker.
This predictability comes only at a price.87 Situations may arise in
which putting this particular into that category seems just too
crude?something about this particular makes us desire to treat it spe-
cially. This vehicle is merely a statue, emits no fumes, makes no noise,
and endangers no lives; it ought to be treated differently from those vehi?
cles whose characteristics mesh with the purpose behind the rule. Serving
the goal of predictability, however, requires that we ignore this difference,
because to acknowledge this difference is also to create the power?the
jurisdiction?to determine whether this vehicle or that vehicle actually
serves the purpose of the "no vehicles in the park" rule. It is the jurisdic?
tion to determine that only some vehicles fit the purpose of the rule that
undermines the confidence that all vehicles will be prohibited. No longer
is it the case that anything that is a vehicle, a moderately accessible cate?
gory, is excluded. Instead, the category is now that of vehicles whose pro?
hibition will serve the purposes of the "no vehicles in the park" rule, a
potentially far more controversial category.
Thus, the key to understanding the relationship of ruleness to predict?
ability is the idea of decisional jurisdiction.88 The issue is not whether the
statue serves the purpose of the "no vehicles in the park" rule. It is
whether giving some decisionmaker jurisdiction to determine what the
87. See, e.g., H.L.A. Hart, supra note 1, at 121-32.

88. On jurisdiction in this sense, see Schauer, Slippery Slopes, 99 Harv. L. Rev. 361, 367-68
(1985). See also Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balanc?
ing Test, 76 Harv. L. Rev. 755, 759-65, 771 (1963) (noting that courts define their competencies in
the process of making substantive decisions); Rawls, Two Concepts of Rules, 64 Phil. Rev. 3, 10
(1955).

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 541
rule's purpose is (as well as

fits that purpose) injects a p
that involved in giving a
whether some particular is
tional question has a doub
first concerned with the r
made in the exercise of tha
ment of the purpose behin
jurisdiction to determine t
cide whether the purpose i
to prevent accidents, and
correct. In addition to incr
certain grants of jurisdictio
nations. Compare "No veh
vehicles whose greatest ho
their greatest vertical perim
eight feet, six inches and (
added to the greatest verti
largest passenger automob
three largest automobile m
ond adds no inherent variab
of decisionmaker error. Cre
purposes of a rule are serv
determination of any of sev
of that jurisdiction engen
might just get it wrong.
Grants of decisional jurisd
and the possibility of "co
sionmakers in determinatio
someone else. We may belie
tain decisions than other
kinds of fact-finding are b
moral or political reasons t
making implicates profoun
legitimately make certain d
that the public rather than
ment should make the mo
United States, even if the U
would make better choices.
Although decreasing the possibility of variance and error by the deci?

sionmaker contributes to the ability of addressees of rules to predict the
consequences of application of those rules, limited variance can serve other
values as well. If decisionmakers are denied jurisdiction to determine
whether a particular instance actually justifies its inclusion in a larger

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
generalization or are denied jurisdiction to determine th

basis of all germane factors, the part of the system
decisionmakers becomes more stable. Treating a large g
particulars in the same way?the inevitable byproduct
tion of rules?dampens the range of variance in result
sideration of a wide range of potentially relevant diffe
ity, not as a necessary condition for predictability but
right, is fostered by truncating the decisionmaking aut
Because rule-bound decisionmaking is inherently stab
ently conservative, in the nonpolitical sense of the wor
ability of decisionmakers to consider every factor rele
rules make it more difficult to adapt to a changing fut
future into the categories of the past. Note the importa
the way in which rules operate not to enable but only
sionmaker can never exceed the optimal result based o
tors. Thus, a rule-bound decisionmaker, precluded f
count certain features of the present case, can never d
worse than a decisionmaker seeking the optimal result
a rule-free decision.
Yet this conservatism, suboptimization, and inflexibility in the face of a
changing future need not be universally condemned. Rules stabilize by
inflating the importance of the classifications of yesterday. We achieve sta-
bility, valuable in its place, by relinquishing some part of our ability to
improve on yesterday. Again the issue is jurisdiction, for those who have
jurisdiction to improve on yesterday also have jurisdiction to make things
worse.90 To stabilize, to operate in an inherently conservative mode, is to
give up some of the possibility of improvement in exchange for guarding
against some of the possibility of disaster. Whether, when, and where the
game is worth the candle, however, cannot be determined acontextually.91
89. See Horwitz, The Rule ofLaw: An Unqualified Human Good? (Book Review), 86 Yale L.J.
561 (1977). I use the term "conservatism" to refer to the desire to hold onto the past or present in the
face of pressures to change. This usage bears only a contingent connection to the range of political
views now labeled "conservative." Left-wing conservatism is not oxymoronic, because one can imagine
left-wing systems adopting preservational (conservative) strategies or systems to prevent movement
away to the right.
90. This is not a logical truth. Grants of jurisdiction can incorporate substantive requirements.
Dworkin, Non-Neutral Principles, in Reading Rawls: Critical Studies of A Theory of Jus?
tice 124 (N. Daniels ed. 1975). Insofar as some grants of jurisdiction aim to increase the ability of
decisionmakers to adapt to an unknown future, however, they will be comparatively open-ended. It is
this open-endedness, whether couched in substantive (do good) or less substantive (determine the pur?
pose) terms, that creates the possibility of unintended and uncontrollable variance.
91. I therefore disagree with Kennedy, Form and Substance in Private Law Adjudication, 89
Harv. L. Rev. 1685 (1976), insofar as he argues that ruleness is acontextually individualistic and
particularization is acontextually altruistic. Even if there is truth in Kennedy's acontextuality, it still
is not clear that his analysis of the acontextual tendencies promoted by ruleness is correct. It is quite
plausible that the inherently stabilizing tendencies of rule-bound adjudication will dampen individual
differences, stifle claims to special treatment as an individual, and encourage decisional modesty rather
than decisional arrogance. It could be argued quite sensibly that all these tendencies foster rather than
impede altruism.

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 543
In sum, it is clearly true t

always be considered a bad t
wise decisionmakers who se
they accurately pursue the
misguided, incompetent, wi
sionmakers whose own sens
system they serve. The prob
which characterization will
the extent to which we are
simultaneously to disable ba
With these considerations
light. Consider some of th
horribles, examples such as
the park, and the poor Bolo
a patient in the course of p
was prosecuted for violati
streets."92 Each of these e
which application of the lit
sult. But now we can recast
whether the result was absu
decisionmaker should be em
as extreme as these, formal
surdity. More fundamental
Formalism is about power
be formalistic as a decisionm
cern, no matter how comp
plied to the budget crisis or
ble. But when the same attit
moral squalor of the Nazi
cases, or the guilt of the de
wealth of the plaintiff wh
sioned by the defendant's n
take all factors into account is condemnable.
Modesty, of course, has its darker side. To be modest is at times good,

but avoiding authority is also avoiding responsibility. In some circum?
stances we want our decisionmakers to take charge and accept the conse?
quences of their actions.98 But it is by no means clear that just because it
is good for some people to take charge some of the time, that taking
charge, even accompanied by acceptance of responsibility, is a universal
92. The last example, from 1 S. Pufendorf, De Jure Naturae et Gentium Libri Octo
(1672), comes to us through United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 (1868).
93. For a recent articulation of this view, see Michelman, Foreword: Traces of Self-Government,
100 Harv L. Rev. 4 (1986). A useful contrast is Christie, An Essay on Discretion, 1986 Duke L.J.
747.

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good. "Fm in charge here" has a long but not always

tory. Part of what formalism is about is its inculcation
sometimes it is appropriate for decisionmakers to reco
jurisdiction and to defer even when they are convin
judgment is best. The opposite of modesty is arrogance
bility. True, modesty itself carries responsibility, beca
ing modestly is participating and thus assisting in the
grant of authority to someone else. But this is a respon
ent and limited kind. That one accepts partial responsib
sions of others does not entail the obligation to substit
for that of others.
The distinctive feature of rules, therefore, lies in the

mal, to exclude from consideration in the particular
exclusion was determined without reference to the par
This formalism of rules is not only conceptually sou
cally possible, but it also, as I have tried to show, is
tively desirable. Insofar as formalism disables some dec
considering some factors that may appear important t
power to some decisionmakers and away from others. F
achieves its value when it is thought desirable to na
opportunities and the decisional range of a certain clas
I stress that all of this is compatible with agnosticism
bound decisionmaking applies to legal systems in ge
legal systems, or to particular parts of legal systems. It
sary truth that legal systems must be exclusively or ev
as rule-governed institutions. Judgments about when to
are contextual and not inexorable, political and not log
and economic rather than conceptual. It would blunt m
simultaneously plausible and contingent nature of de
rule to offer in this acontextual setting my recommend
any parts of the American or any other legal system
such a fashion. My goal is only to rescue formalism fr
ishment. But having been readmitted to the commu
ideas, formalism, or decisionmaking according to rule
still has the burden of showing that it is appropriately
decisional domain.
IV. The Degrees of Restriction
I have thus far presented formalism and maximally contextual

larism as mutually exclusive opposites, incapable of coexisting wi
same decisional domain. It may therefore appear that the adva
formalism can be attained only within a system willing to ac
proportion of preposterous results and only within a system

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 545
have its decisionmakers ig

before them. Accommodati
might be possible, however
Let us contrast two cases,
park" rule. The first involv
ans' organization. The seco
bicycle, incapable of proce
emitting no noxious fume
cases, exclusion of the objec
any of the purposes behind
was the suppression of noise
of high speeds, or the restr
gerous to pedestrians. Yet d
difference between the cases. The statue seems to lie more outside the
purpose behind the rule than the golf cart. If we assume that something
like twenty miles per hour is dangerous, a totally immobile vehicle is fur?
ther away from the danger point than one that can go ten miles per hour.
Similarly, a vehicle with a totally inoperative engine makes less noise and
emits no more noxious fumes than even an electric motor.
If the difference between the cases is a matter of degree, is there some

way of empowering a decisionmaker to draw the distinction without at the
same time discarding all of the formalist-inspired virtues from the deci?
sionmaking process? That is, can we empower the decisionmaker to over?
ride the rule when its application would be totally preposterous, but not
when its application, still outside the purpose of the rule, would fall short
of the preposterous?
The question is the same one that arises in discussions regarding higher
court scrutiny of lower court decisions, and lower court scrutiny of admin?
istrative decisions and state laws. Can a decisionmaker distinguish those
state interests that are "compelling" from those that are "important" from
those that are merely "rational"? Can a decisionmaker distinguish "proof
beyond a reasonable doubt" from "clear and convincing evidence" from "a
preponderance of the evidence"? Can decisionmakers distinguish "de
novo" review from review only for "abuse of discretion"? The question
raised by all of these standards and others is the same: Can we admit the
possibility of overriding some judgment while at the same time not open?
ing the door to unconstrained substitution of judgment?
It is debatable whether some form of deferential but genuine review is
possible. It might be argued that deferential but not toothless review is an
illusion. Once the reviewing decisionmaker has the authority to look at the
decision below with at least the possibility of overturning it, deference
becomes largely illusory. This hypothesis equates the review process with
Pandora's box: Once the record below is opened, the review is in reality
de novo, and the language of abuse of discretion?or compelling interest

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or whatever?is used merely as a tag line when the deci

to reach a conclusion different from that reached below.
An alternative hypothesis posits some ground between no review and
unfettered intrusiveness. There might be cases in which the presumption
in favor of the result below would cause the decision to stand. Under this
hypothesis, we can have rebuttable presumptions?cases in which the pre?
sumption might be overcome in particularly exigent circumstances but
nevertheless controls in many or even most cases.
If this latter hypothesis is correct, it is correct as a contingent empirical
matter and not as a necessary truth. My instincts are that it is sometimes
correct?that at some times in some domains presumptions can matter
without being irrebuttable. This conclusion is based on my also instinctive
view that presumptions create attitudes, and that attitudes can matter. I
believe, for example, that I am more likely to admire an item of clothing if
I discover it myself than if my mother tells me she saw it in a shop and it
would look very nice on me. But I might be wrong. Even if I am right
about clothing and mothers, those attitudes might not carry over to real
decisions by real decisionmakers, and even if it does, it might be empiri-
cally false more often than it is empirically true.
Moreover, even if attitudes can be changed, it may be that linguistic
instructions are not particularly effective in accomplishing those changes.
The observation that linguistic instructions to adopt a certain attitude are
in fact potent is not universally proved by the observation that such in?
structions are sometimes potent, any more than the observation that such
instructions are sometimes impotent proves that they are never potent.
Given all of this, let me satisfy myself here with the unproved empirical
conclusion that linguistic instructions are sometimes potent.
If such instructions sometimes create presumptions, and if those pre?
sumptions sometimes work, then what does this say about the possibility
of what we might call a presumptive formalism? In order to construct
such a model, we would want to equate the literal mandate of the most
locally applicable written rule with the judgment of the court below. The
court below can be taken to have determined, for example, that in one
case operable and operating automobiles are excluded from the park, in
another case golf carts are excluded from the park, and in a third case
immobile statues of trucks are excluded from the park. We can then
equate the reviewing court with a determination of the correct result from
the perspective of the reasons behind the rule rather than the literal lan?
guage of the rule itself. We might conclude that in the first case even a de
novo application of the reasons would generate the same result as gener?
ated by the formalistic reading, and therefore the formal mandate would
prevail uncontroversially. In the second, a de novo application of reasons
would generate a different result than that generated by the rule, but the
result generated by the rule remains "in the ballpark" and therefore is

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
1988] Formalism 547
upheld despite its diverge

direct application of the re
tion of the reasons indicate
out of bounds, so absurd, s
of discretion and would th
plied in this case.
Under such a theory of pr
sumption in favor of the r
textual interpretation of th
would be presumptive only,
cable norms, including the
cluding norms both withi
offeredespecially exigent r
presumptively applicable n
Such a system would bring
and constraint of decisionm
cording to rule, but would
of such a system with an
avoided when their conseq
system would not be with
necessarily decrease the a
sionmaker restraint. In sho
placing more final authorit
ond, the presumptive force
cable norms would still res
sense, such a system would
strained particularism or u
would risk collapse into on
tical purposes either absolu
Even on the assumption th
decisional domains, this doe
monly call the legal system
that formalism, even only
of the legal system, in ligh
that it ought not to be des
ism ought to be seen as a t
and not in others. Determi
to such treatment is not m
offer is only an argument
condemned. That is not to
applauded, nor that they ar
segment of society we call
we must ask what the legal

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC
for only when we answer that question can we determ

tools it needs to accomplish that task.
V. Conclusion
I have concluded this analysis by venturing no more than

non to a theory of presumptive formalism, which, to avoid
(or at least to select a slightly less pejorative pejorative) mi
theory of presumptive positivism. As I have said, to urg
advantages of such a view in some domains is to say litt
about whether the domain of decisions of judges or the dom
sions of the political state backed by force is amenable to p
positivistic decisionmaking. But even if we put aside the qu
crete applications, the presumptiveness that is central to t
illuminate one final usage of the word "formalistic" in its p
It may be that, in practice, to condemn an outlook as fo
condemn neither the rule-based orientation of a decisional structure nor
even the inevitable over- and under-inclusiveness of any rule-based sys?
tem. It may be to condemn such a system only when it is taken to be
absolute rather than presumptive, when it contains no escape routes no
matter how extreme the circumstances. Such a usage of "formalism" is of
course much narrower than is commonly seen these days. But with that
narrower usage we see that formalism is no longer something to be
roundly condemned, but rather, like the relation of fanaticism to enthusi-
asm, or bullheadedness to integrity, merely the extreme and therefore un-
fortunate manifestation of a fundamentally desirable characteristic. If we
recognize that, we may ultimately cease to use the epithetical deployment
of "formalistic" as a substitute for argument and turn instead to the cen?
tral questions involved in determining what, if anything, lies at the heart
of the idea of law.

104.35.237.16 on Wed, 24 Jun 2020 06:34:07 UTC

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Formalism

Author(s): Frederick Schauer

Stable URL: http://www.jstor.com/stable/796369

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With accelerating frequency, legal decisions and theories are con?

* Professor of Law, University of Michigan. I am grateful to audiences at Brooklyn Law Schoo

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formalistic, except that whatever formalism is, it is

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even ever be formalistic. Ne

I. Formalism as the Denial of Choice

A. Choice Within Norms

Few decisions are charged with formalism as often as Lochner v. New

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it attempts to describe this choice as compulsion.6 Wh

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know that such a choice is

nomic and political class) or intentionally chose to hide it.

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guage of definitional inexorability obscures that cho

More commonly, however, the indeterminacy t

11. See infra note 85.

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B. Choice Among Norms

Implicit in Hart's concepti

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the necessity of signing forms consenting to his nom

This variation on Ryshpan reveals the reasons we condemn the mask?

22. 132 Vt. 628, 326 A.2d 169 (1974).

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the statute should prevail, m

24. Although it is generally accepte

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unclean hands or laches,80 the legal principle of in

30. See, e.g., Brenner v. Smullian, 84 So. 2d 44 (Fla. 1955) (unclea

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misstated to the disadvan

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These two models?one allowing the creation of

II. Formalism as the Limitation of Choice

A. Can Language Constrain?

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rule.39 This rule-independen

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Formalism as the linguistic limitation of choice ca

pretation, 1 Poetics Today 23 (1979).

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conjoins two different elem

Having posited a model in which the decisionmaker's choice is limited

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pacity of those who make decisions to abide by these c

52. Hart, supra note 10, at 607.

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tations of his challenge to t

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mistaken view of the nature of language. Fuller and h

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for example, possess shared

pendent of speaker's purpose or oth

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