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12/06/2021

Legal Theory Lexicon on Formalism and Instrumentalism
Michael Ramsey

At Larry Solum's Legal Theory Lexicon: Formalism and Instrumentalism.  From the description of formalism: 

The core idea of formalism is that the law (constitutions, statutes, regulations, rules of procedure, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not).

That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:

1. The law consists (at least in part) of rules that are derived from the linguistic meaning (or communicative content) of authoritative legal texts.

2. Legal rules can be applied to particular facts.

3. Some actions accord with meaningful legal rules; other actions do not.

4. The standard for what constitutes following a rule (or not) can be publicly knowable and the focus of intersubjective agreement.

Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.  Of course, plain-meaning theories of statutory interpretation could (and should) adopt the originalist thesis that "meaning" (or "plain meaning") is fixed at the time the text is drafted and promulgated.

Agreed, although I would clarify (a) that "plain" meaning is not literal meaning abstracted from context, but rather takes context into account [I know Professor Solum agrees], and (b) that at least in my view, "ordinary meaning" can and indeed often does have a specialized legal meaning derived from its context [I'm less sure Professor Solum agrees].

On instrumentalism:

Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.

I think my quick definition of instrumentalism would be something like interpreting statutes to reach good policy results wherever fairly possible, at least where the text is not crystal clear, and sometimes even when it is.