Thomas Nachbar, ‘Twenty-First Century Formalism’

ABSTRACT
Formalism is one of the most widely applied but misunderstood features of law. Embroiled in a series of conflicts over the course of the twentieth century, formalism’s meaning has become confused as formalism has been enlisted by both proponents and opponents of specific legal methodologies. For some, it has simply become an epithet used to describe virtually anything they dislike in legal thinking. Used often and inconsistently as a stand-in (and frequently a straw-man), formalism’s distinct identity has been lost, its meaning merged with whatever methodology it is being used to support or attack.

This paper seeks to separate formalism from those debates, identifying formalism for what it is: a commitment to form in legal thinking. Form is critical to understanding law; because law is a shared enterprise, it can only be understood and applied as it exists in some form. Formalism recognizes the form-bound nature of law and expands on that recognition by engaging with law in its various forms rather than as an abstraction.

The paper makes three main contributions to understanding formalism: First, it provides a modern definition of formalism, separating it from confusion over formalism caused by its invocation in a series of debates over law in the twentieth century. Second, it describes how formalism operates in methodologies and contexts beyond the textualism and originalism, the two methodologies with which formalism is usually identified. Third, it explores the power of formalism beyond its value in determining the content of law. The form of law is what drives the various ways the law categorizes conduct, and law’s categories in turn give meaning to conduct beyond just the application of enforceable legal constraints. It is time for us to bring formalism into the twenty-first century and recognize it for its distinct role in understanding law and legal institutions.

Nachbar, Thomas, Twenty-First Century Formalism (February 14, 2020). Virginia Public Law and Legal Theory Research Paper No 2020-15.

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