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The Formal Character of Law

Published online by Cambridge University Press:  16 January 2009

Robert S. Summer
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Extract

I feel honoured to be your guest here, and am pleased to have this opportunity to lecture on my academic passion—“The Formal Character of Law”. Law has several fundamental characteristics. My main thesis is that formality is one of these. I define a “formal” feature of law as one that is in some way independent of the substantive content of the law. For example, the definitiveness of a legal rule is a formal feature of the rule's configuration, and is independent of the substantive content of the rule. Formal configuration is one thing, and substantive content another. But as we will see, there are different ways in which a formal feature may be independent of substantive content, and there are still other, related, senses of formal.

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Articles
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The Cambridge Law Journal , Volume 51 , Issue 2 , July 1992 , pp. 242 - 262
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Copyright © Cambridge Law Journal and Contributors 1992

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References

1 See generally, Atiyah, P.S. and Summers, R.S., Form and Substance in Anglo-American Law (Oxford 1987);Google Scholar Summers, “Theory, Formality and Practical Legal Criticism” (1990) 106 L.Q.R. 407; Summers, “Judge Richard Posner's Jurisprudence” (1991) 89 Michigan Law Review 1302; “Statutes and Contracts as Founts of Formal Reasoning” in Cane, P. and Stapelton, J., eds., Essays for Patrick Atiyah (Oxford 1991).Google Scholar I am currently working on a book on the formal character of law.

2 This is not meant to be a complete inventory of common fallacies about legal formality.

3 Atiyah, P.S., “From Principles to Pragmatism” (1980) 65 Iowa Law Review 1249.Google Scholar

4 Unfair Contract Terms Act 1977.

5 The Limitation Act 1980, s. 22.

6 See, for example, Spilada Maritime Corp. v. Cansutex Ltd. [1986] 3 All E.R. 843.

7 Fentiman, R., “Domicile Revisited” [1991] C.L.J. 445.Google Scholar The author is indebted to Mr. Fentiman for assistance with some of the examples here.

8 Regina v. R. [1991] The Times Law Reports 468.

9 On mandatory formality, see the text, infra, at II.D.

10 Bridges, J., “National Legal Tradition and Community Law: Legislative Drafting and Judicial Interpretation in England and the European Community” (1981) 19. J. Common Market Studies 351.CrossRefGoogle Scholar

11 See Atiyah and Summers, supra note 1, at pp. 67–68.

12 See the admirable essay by a former holder of the Goodhart Chair: Fleming, J., The American Tort Process (Oxford 1988).Google Scholar

13 Some German theorists, however, have taken an interest in the systematic study of legal formality broadly conceived. See, for example, Engisch, K. “Form und StoffinderJurisprudenz”, Beitr¨ge zur Rechlstheorie, (1984), p. 251.CrossRefGoogle Scholar

14 See Atiyah and Summers, supra note 1.

15 But no single formal attribute can have complementary content that exhausts the entire material content of a rule. Nor do the complementary contents of all formal attributes taken together specify the whole material content of the rule. As I suggest later, first-level policy informs most such content. I am indebted here to Christian Mammen.

16 Of course, the same substantive content could be good in form and good in substantive content, or good in form and bad in substantive content, or even bad in form yet (within limits) good in content.

17 Just how the varieties of formality serve or fulfil such rationales could be the subject of an extended essay in itself.

18 This topic, too, calls for a separate essay.

19 See generally Summers, “Some Considerations Which May Lead Lawmakers to Modify a Policy When Adopting It As Law” (1985) 141 Zeilschrift für die Cesamte Staalswissenschaft 41. For Fuller's views on this theme, sec the summary and references in Summers, “Professor Fuller's Jurisprudence and America's Dominant Philosophy of Law” (1978) 92 Harvard Law Review433, 437–39. I am also indebted here to John Mansfield and John Moscati.

20 We may differentiate two situations. In the first, legal policy is being fed into an existing rule or set of rules in which we already have a degree of completeness, a level of definitiveness, a level of generality, perhaps a kind of fiat, and an established mode of expression including, possibly, even a highly specialised and precise technical vocabulary. In the second type of situation, we start more or less from scratch, and the norms and constraints of formality are not so dramatic, yet if given their due may exert strong influence on content, as in the “no vehicles” example in the text.

21 Many judges in my country, however, are often tempted to flatten out the over- and under-inclusion of formally general rules in light of policy considerations emergent at point of application. Among other things, this increases systemic uncertainty, upsets reliance, and sacrifices other second-level rationales behind formality. This does not mean it should never be done.

22 See Summers, “Theory, Formality and Practical Legal Criticism” (1990) 106 L.Q.R. 407, 422–23

23 Before the European Communities Act 1972, the validity of English statutes was judged solely by formal, source-oriented criteria.

24 This may seem obvious, but it is not so obvious to a good number of judges in my country. Of course, a system may incorporate corollary doctrines that limit or qualify the principle of stare decisis in various ways that turn on substantive considerations, such as social change combined with unforeseen countervailing substantive considerations emergent at point of application which justify judicial modification.

25 For a general account of the various rationales here, see Summers, R.S., Instrumenialism and American Legal Theory (Cornell 1982), pp. 161–66.Google Scholar

26 See generally, MacCormick, D. Neil and Robert, S. Summers, Interpreting Statutes — A Comparative Study (Dartmouth Pub. Co. 1991).Google Scholar

27 It follows that a methodology that approximates rather more closely to strict than to free interpretation is, in a deep sense, more genuinely interpretive, as opposed to reformative or elaborative.

28 Yet procedural law and the processes it so constitutes are plainly formal not only in the high formality of the precepts out of which processes are constructed but also in the independence of processes from the substantive content of the law interpreted and applied within them. Second-level rationales behind much of this formality are explored (though not so conceptualised) in Summers, “Evaluating and Improving Legal Processes—A Plea for Process Values” (1974) 60 Cornell Law Review 1.

29 Our theory of legal truth is plainly formal to a significant degree. See Summers, “Judge Posner's Jurisprudence” (1991) 89 Michigan Law Review 1302, 1312–1313.

30 Corporate personality is plainly formal in major part. So, too, is the legal personality of most other recognised legal entities, public and private.

31 The systematic study of each variety of formality requires that we address a range of common questions to each. Just what those questions should be is itself a vital question.

32 Justice Brandeis even said that “in most matters it is more important that the applicable rule of law be settled than that it be settled right”. Burnet, Commissioner of Internal Revenue v. Coronado Oil and Gas Co., 285 US 393, 405 (1932).

33 That formal mode of functioning whereby affairs are governed by and through law may be further analysed in terms of law's five formal techniques or “law ways”. See Summers. “The Technique Element in Law” (1971) 59 California Law Review 733. I am also indebted to Lisa Murphy here.

34 Hart, H.L.A., The Concept of Law (Oxford 1961), p. 189.Google Scholar

35 This is true not only in regard to legal precepts such as rules. Indeed, it is all the more true in regard to the varieties of formality in the legal system viewed as a whole. For example, a legal system has rules setting up the institutions of the system itself, and the very substantive content of these constitutive rules comprises complementary substantive content of the system, but this content hardly exhausts the substantive content of the entire system.