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Although Lochner is criticized for the length of its reach, a closer look reveals that it is not the result that is condemned as formalistic but rather the justification for that result. The…

Properties2
tagsja-picks, definitional_content, corroborated, xref, category/definitional-content
aliases@schauer_formalism_1988, loc. 34

6 min read

Although Lochner is criticized for the length of its reach, a closer look 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.

Evidence

Formalism may be more broadly viewed as extending to any justification that treats as inexorable 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 language 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 economic derivation or in the language of a unique solution to some “balance” might be considered formalistic if these methods are in fact comparatively indeterminate. — Frederick Schauer, Formalism, 34 (#corroborates, via linked claim)

Categorization

  • corroborated: 9 independent passages support this claim
  • XREF: connects to: Lochner is merely one example in which a false assertion of inexorability is decried as formalistic. Much contemporary criticism of Blackstone, Langdell, and others of their persuasion attacks their jurisprudence on similar grounds. They stand accused of presenting contestable applications of general terms as definitionally incorporated within the meaning of the general term. It is important, however, to understand the relationship between the linguistic and the ontological questions for those of Blackstone’s vision. Blackstone’s view that certain abstract terms definitionally incorporate a wide range of specific results is tied intimately to his perception of a hard and suprahuman reality behind these general terms. If the word ‘property,’ for example, actually describes some underlying and noncontingent reality, then it follows easily that certain specific embodiments are necessarily part of that reality, just as pelicans are part of the underlying reality that is the universe of birds. These instantiations might still follow even if the general term is not a natural kind whose existence and demarcation is beyond the control of human actors. There is nothing natural or noncontingent about the term ‘basketball,’ but it is nevertheless an error in this culture at this time to apply that word to a group of people hitting small hard balls with one of a collection of fourteen different sticks. Still, linguistic clarity and rigidity are both facilitated insofar as the words track the natural kinds of the world. To the extent that Blackstone and others believed that categories like liberty, property, and contract were natural kinds rather than human artifacts, they were less likely to perceive the choices we would now not think to deny. When one believes 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 language of definitional inexorability obscures that choice and thus obstructs questions of how it was made and whether it could have been made differently. Use of the word ‘formalism’ in this sense hinges on the existence of a term (or phrase, sentence, or paragraph) whose contested application generates the choice. Some terms, like ‘liberty’ and ‘equality,’ are pervasively indeterminate. It is not that such terms have no content whatsoever; it is that every application, every concretization, every instantiation requires the addition of supplementary premises to apply the general term to specific cases. Therefore, any application of that term that denies the choice made among various eligible supplementary premises is formalistic in this sense.; To the extent that the charge of formalism suggests narrowness, Lochner is hardly a candidate. We criticize Lochner not for being narrow, but for being excessively broad. (+8 more)

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