Marcin Matczak (Warsaw University - Faculty of Law and Public Administration; Warsaw University - Legal Philosophy) has posted Why Judicial Formalism is Incompatible with the Rule of Law on SSRN. Here is the abstract:
When a judge follows the letter of the law, her judgment may be considered blinkered by the man in the street. Legal professionals, however, would classify the judgment as formalistic. From a theoretical perspective, formalistic decision-making limits the number of premises on which a judge may base a verdict. It asks the judge to focus on the literal meaning of the legal text and to disregard other interpretative premises, like the purpose or function of the law, legislative history or – in civil law jurisdictions – previous court decisions.
Formalism as an art of limiting judicial choices is perceived by many as fully consistent with the rule of law. It seems to both allow the curtailment of interpretive discretion and to ensure fidelity to the will of the lawmaker. This contrasts with an all-things-considered approach, where the premises for judicial decision-making seem unlimited, discretion encouraged, and the will of the lawmaker ignored.
In this paper I show that the apparent compatibility between formalism and the rule of law is based on a particular assumption as to the nature of legal language: that this language is criterial in the sense that in order to understand it, one needs to rely on dictionary definitions understood as sets of criteria. This assumption is misguided, and its flaws are revealed by theoretical advances in the contemporary philosophy of language. Specifically, semantic externalism demonstrates that the meaning of language cannot be discovered merely by reading dictionaries; rather, it requires the investigation of the linguistic practices of a particular communicative community, and an insight into the history and function of individual legal terms.
Because the nature of legal language is different from that assumed by the formalists, the compatibility between formalism and the rule of law collapses. With such a distorted perspective of the characteristics of legal language, formalism cannot ensure fidelity to it. This paper shows that judicial decisions based on applying definitions are very often surprising to the law’s addressees; this contradicts one of the main tenets of the rule of law, namely, the predictability of court verdicts. As a consequence, the rule of law requires a different, moderately non-formalistic approach to legal interpretation. Within this approach, judges can make decisions based on a broader scope of interpretive premises and by doing so ensure a better level of predictability.
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Matczak offers originalism as an example of formalism, citing a 2008 working paper that I wrote and ignoring subsequent published work, both by me and others. To the extent that this citation implies that contemporary constitutional originalism is an instance of "formalism" as Matczak characterizes it, the implication is grossly misleading. First, contemporary originalism in its strongest form explicitly does not require judges "to focus on the literal meaning of the legal text and to disregard other interpretative premises, like the purpose or function of the law, legislative history or – in civil law jurisdictions – previous court decisions." For example, in my work is very explicit on the role of "literal meaning" or more precisely "conventional semantic meaning." Much of the communicative content of legal texts is provided by contextual disambiguation and various forms of contextual enrichments (such as contextual disambiguation, implicature, impliciture, presupposition, and modulation). Evidence of purpose may well be relevant to the determination of communicative content, but whether this is so depends on the factual question whether evidence of the purpose was part of the shared context of legal communication. In the case of the United States Constitution, for example, the records of the Philadelphia Convention were secret at the time of framing and ratification, but other contextual evidence of purpose (such as The Federalist Papers) were part of the public record.
Moreover, contemporary originalism does not assume that the language of the Constitution is "is criterial in the sense that in order to understand it, one needs to rely on dictionary definitions understood as sets of criteria." In a recent paper, Originalist Methodology, and in other work, I have made this explicit. Dictionary definitions are not the best evidence of semantic content, actual patterns of usage (accessed by corpus linguistics and other techniques) are far better evidence. And semantic content is only part of the full communicative content of a text, because of the role of context as described above.
In addition, many of the "new originalists" embrace the proposition that at least some constitutional provisions are underdeterminate, creating "constructions zones"--sets of cases and issues where constraint by the full communicative content of the constitutional text is not sufficient to fully determine the legal content of constitutional doctrine. Originalists disagree among themselves about the resolution of cases in the construction zone: some favor a role for common law; others advocate default rules, such as a presumption in favor of decisions made by democratic institutions. Almost no one takes the position that the content of the constitution is fully determinate by itself, although the advocates of "original methods originalism" take the position that the text when combined with the original methods of constitutional interpretation and construction substantially reduces the underdeterminacy that would obtain from the text alone.
In my view, Matczak's paper engages in what is sometimes called "metalinguistic negotiation" over the meaning of the word "formalism" and the shape of the concept that word designates. Matczak's paper draws the line between formalism and realism in such a way that formalism becomes incoherent and unattractive. Sophisticated contemporary formalists are unlikely to accept this characterization. A better conceptualization would draw the line as follows:
"Formalism" is the view that the communicative content of legal texts should constraint legal officials (paradigmatically but not exclusively judges) in the sense that their actions should (in the absence of limited defeasibility conditions) be consistent with the communicative content of the text.
Which metalinguistic proposal (Matczak's or mine) is superior? Answering that question requires that we engage in conceptual ethics--drawing on the considerations that bear normatively on the shape of our discourse. I would like to suggest that definitions of key concepts like "formalism" and "originalism" ought to take seriously the self-understandings of those theorists who explicitly identify with the position. At the very least, those who engage in discourse over these concepts should recognize the range of opinion about the shape of the concepts.
