Believing abstract legal terms are natural kinds hides the choices behind their application.

Evidence

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. … 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. — Frederick Schauer, Formalism, 31

Categorization

• XREF: Connects to debates about nominalism vs. realism in philosophy of language, and to the natural-kind theory of legal concepts propounded by later critics of formalism. — connects to: The pejorative connotations of the word “formalism,” in concert with the lack of agreement on the word’s descriptive content, make it tempting to conclude that “formalist” is the adjective used to describe any judicial decision, style of legal thinking, or legal theory with which the user of the term disagrees.; 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.; Formalism disguises the need for judicial choice by freezing rule meaning — HLA Hart, The Concept of Law (Clarendon Law…, 370 (+2 more)
• QUESTION: Worth chasing how far the natural-kind analogy extends — are there modern jurists who still implicitly treat terms like ‘property’ as natural kinds?

Related

• Yet Professor Schauer argues that this aversion to formalism should be rethought At times language both can and should restrict decisionmakers. Consequently, the term formalistic should not be… (similarity 0.84)
• Formalism is treating as inexorable any choice that is not. (similarity 0.84)
• 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… (similarity 0.83)
• 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… (similarity 0.79)
• The pejorative connotations of the word formalism, in concert with the lack of agreement on the word’s descriptive content, make it tempting to conclude that formalist is the adjective used to… (similarity 0.79)
• Frederick Schauer — Formalism (similarity 0.79)
• Once we disentangle and examine the various strands of formalism and recognize the way in which formalism, rules, and language are conceptually intertwined, it turns out that there is something,… (similarity 0.79)
• Legal formalism masks the class rule behind supposedly impersonal law. (similarity 0.78)

Broader Connections

• 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… #expands (0.95)
• 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… #expands (0.90)
• Formalism disguises the need for judicial choice by freezing rule meaning #corroborates (0.70) — HLA Hart, The Concept of Law (Clarendon Law…, 370