This writing is a response to the expression thatformalism offers a true version of law’s internal coherence and a resultantfeasibility of separating the judicial from the political. Looking at works oftheorists and other writers, we will critically examine whether law isinternally coherent, as formalism envisages it to be. This point of view willbe examined also in a postmodern context. This writing will discuss how theconcept of deconstruction aims to achieve justice, by examining the case of Rv R 1992 1 AC599.
They will be considered in parts, starting with formalism.From the discussion in the work it will be concluded,that formalism and postmodernism; without leaning towards any, are two distincttheories of law in their approaches towards law. II.
Formalists on law – is lawindeed internally coherent?Praises are accorded to Bentham and Austin for theirpioneering works on legal formalism, although none of them identified with thatideal, but as legal positivists. Although very influential, little referencewould be given to their work as it is required. An excerpt from Cox’s articlemay suffice as an insight into the meaning of legal formalism: “… an ideology where answers to legal questions couldand should be based upon distinctly legal materials, without reference tosources external to law, most obviously without reference to the socialsciences.”1From the above text, formalism is about thestrict application of only the rules in the book to the facts of a case. Hence itwas dubbed the phrase “black-letter tradition”. It was from this premise, whichis no news, that it received a wealth of criticisms mostly by legal realists. It is an accepted wisdom that formalists assertedthree things. First,it could be said thatlegal concepts, like consideration in contract or ownership in property, couldbe identified through induction, through perhaps the evidence of review in caselaw.
Second, formalists placed emphasis on logic so it was believed thatparticular rules could be derived “logically” from the concept induced from thecase law. Lastly, it was held that the result would lead to internallyconsistent, systemized and rationalized law, just like geometry, and that by referenceto logic, correct answers relating to law could be given to any question orissue raised, following this system. Our focus will be on thethird admission as it is relevant to this work. It does not go from here without asking whether this is anaccurate depiction of how law is. A position taken by a realist and a pragmatistis that: “the life of the law has not been logic; it has been experience.
“2In the US landmark case of Lochner v New York3, Joseph Lochner, abakery owner, was charged with violating the Bakeshop Act. The Act stated thatthe maximum working time for employees was 10 hours per day and 60 hours perweek. These provisions may have appeared neutral but it was believed to target foreign-bornbakers who were willing to work more hours than American bakers. Thus, thecharge was in connection with the granting of permission to an employee to workmore than 60 hours in one week. This decision was sustained in the uppercourts.
Lockner appealed to the Supreme Court on the ground that the maximumhour set by the Bakeshop Act was a constitutional limitation on the freedom tocontract and thus violated the Fourteenth Amendment. Like the lower courts, theSupreme Court did not think so. This majority decision can be contrasted withthe popular dissent of Holmes: “General propositions do not decide concrete cases. Thedecision will depend on a judgment or intuition more subtle than any articulatemajor premise.”4 Inother words, judges should be liberal rather than constrained to the rules inthe book when deciding cases. And such expressions should be given on a case bycase basis, as facts differ in each case. For that reason, the idea of having ageneral concept to apply to different cases may not produce a favourableoutcome. Accordingly, it can be said that the majority judges took a formalistposition while Holmes maintained a realist one.
The use of logic is integral in making judgment. So isintuition. A judge, whether deciding a case as formalists or the realistssuggest, may not be able to avoid this phenomenon. This questions the truthsthat formalism holds. By the use of intuition and logic it can be argued thatthe black-letter tradition is not as strict as it presented to be. In additionto this flaw, a judge tries to balance “his philosophy,…his analogies, hishistory, his customs, and his sense of right”5in deciding a case.
When all these add up there is a great chance that theoutcome may not be as that described by Frank, that the outcome of a case “iscertain and exact as an answer to a problem in mathematics.”6To put it another way, and borrowing a text from Cox, “judges are not in fact bound byconcepts or rules as they may be manipulated.”7We have seen that various factors are considered by judgeswhen they are making decisions. The belief of a “correct legal answer” like ingeometry is defeated by this realisation. Hence it has been commented that “formalism’s geometrical aspirations are normativelysuspect. What is needed instead…is a concrete focus upon considerations ofsocial advantage and disadvantage.”8Of course, laws need to be certain for those working in thelegal sector to make prediction of what certain rules mean, and in what circumstancesthey may apply. However, as discussed above, law cannot be regarded as beingconsistent or coherent as “it is filled with gaps and contradictions, thatmake it…indeterminate.
“9Theillustration of law as coherent which leads to a particular outcome has been arguedto be “not an accurate depiction of law as it is now, even if, which isdoubtful, it once was such a depiction.”10Professor Wells however strongly argues that “notwithstanding the stereotype of Langdell as a formalist,there is no quicker way to misunderstand his theory than to assume that he isengaged in creating a logical system.”11She addresses this in her persuasive article by distinguishing Langdell’sargument from demonstrative reasoning. She described it as a determinate numberthat is known to all intuitively, which solely proceed perhaps throughdeductive arguments.
This, she notes, contributes to the timeless, universaland necessary character of mathematics which when applied to law, means that inevery legal case there would be only one right answer, correct in everycircumstance.12 Thusshe argues that “Langdell does not believe that the results of his theory aretimeless, universal and independent of circumstances. If he did believe this,he would not offer so much explanation and justification for the results inparticular cases.”13An example is his introduction of the concept of offer and acceptance as seenin his contract theory contained in his Summary.14Langdell does not only lay down these concepts but goes further bydistinguishing between unilateral and bilateral offers. III.
The separation of the juridical fromthe politicalIt is now goingto be considered whether legal formalism distinguishes the juridical from thepolitical. First, what do these terms mean? Tadros, in analysing what the term”juridical” in Foucault’s work is, wrote that “the term juridical describes anarrangement and a representation of power rather than the law.”15Such power can be safely translated as judicial power conferred upon judges byvirtue of them becoming one.
“Political” on the other hand, could be taken to meansomething relating to the state or government of a country. Thus, to go a stepfurther would be to say that formalism encourages the separation of powersbetween the branches of a government. A system ofadjudication proposed by the formalists is going to be used to analyse thisview: “mechanical adjudication.
“16 Thisholds that rules could be applied to facts mechanically, where the “relevantsets of fact appears, the rule is applied and when it does not the rule isnot applied.”17One would strongly fault this view on the ground that if rules are strictlyapplied according to how they appear in their written form, then judges are notjudging but involved in simply transposing the text rules onto particularfacts. Hence, there cannot be seen a stark separation between the judiciaryfrom the legislature or the executive who sometimes make law in the form ofprivate members’ bill. Consequently, the theory that the rule as a majorpremise and a set of facts as a minor premise generates a right answer18does not encourage the separation of powers but makes Parliament more sovereign.However, this is not the case in most legal systems as there are checks andbalances put in place to prevent the abuse that such reasoning may suggest.Bentham andAustin held opposing views on adjudication. The latter encouraged judge madelaw.
In his book Austin wrote that “jurisprudence…comprises the science oflegislation,”19stating further that, and wondering, how “society could possibly have gone onif judges had not legislated…”20 Bentham,on the other hand referred judge-made law to “dog law”. What is apparent of thetwo disparities is Bentham’s view that judges should not make law but should beinvolved in the application of it. The closest thing to a judge made law can besaid to be precedents. Of the two views, Bentham’s could be said to encourage theseparation of the juridical from the political.
As judges stick to interpretingthe law and Parliament sticks to making legislation, there would be no interferenceof function, whereas a judge made law may conflict with the intention of Parliament.In a democratic society where the members of Parliament are elected and judgesare appointed one would favour that laws should be made by the elected bodyrather than the appointed.Another way toconsider this matter is to say that judges’ decisions are independent ofpolitical influences. But following our discussion in II above,it was persuasively argued by the realists, most notably Holmes and Cardozo,that judges do take into account other factors in deciding cases, such as policies,personal beliefs, and public opinion. This further disputes the reference toformalism as separating the juridical from the political, and presents it as anincorrect conclusion. IV. Postmodernism: the relation between theconcept of deconstruction and the notion of justice Lyotarddefines postmodernism as ‘incredulity towards meta-narratives’.
21 Postmodernism is notconcerned with the internal coherence of law like formalism, but offers somecriticism on the matter. It is a unique theory in that it does not look attheorising what law is or how it should be or operate, but focuses on conceptssuch as epistemology. They have regards for the interpretative and linguisticreasoning behind law. They thus see law as a language. Partly, postmodernism “seeks to provide…careful readingof texts to ascertain what other meanings or texts is contained in theinterpreted text and what meanings or texts are left out.”22 One way they achieve this aim is through deconstruction: a processof deciphering words in the hope of understanding how they are interpreted(mostly in writing).
Deconstruction is, according to Derrida, ‘at bottom whathappens or comes to pass;’23which may be interpreted to be justice. In the ensuing paragraphs, the conceptof deconstruction will be used to examine the decision of the court in R vR.24Thecase concerned whether a husband (the appellant) was, and could be found guiltyof attempting to rape his wife. The Sexual Offences (Amendment) Act 1976 s. 1(1)was consulted and he was found guilty of the offence contrary to the Act, asthe wife “at the time of the intercourse, did not consent to theintercourse.”25 This decision questionedthe longstanding “legal subjectivity of ‘a wife'”26in the work of Sir Hale who wrote that a husband cannot be found guilty ofrapping his lawful wife by the virtue of their matrimonial consent.27Lord Keith in his judgment referred to that idea as a “common law fiction.”28Thus, a new meaning was given to the thought of ‘a wife’ being raped by herhusband: she could decline to take part in a sexual intercourse, and a husbandwho refuses to respect that decision could be found to rape his wife.
29It can be said that the language of Sir Hale was indeterminate and so replacedby the judgment of the courts; as language is spoken from an unstable system (man); 30owing to this was that the saying was a fiction which had not being broughtunder the scrutiny of a higher court. Movingon, and considering how the concept of deconstruction may bring justice, it isaccepted that ethics and justice are centre to the heart of postmodernism andthey work to present the law in a fashion which deals with the concern of boththemes. It has however been argued that “deconstruction…does not support anyparticular vision of justice.”31 Thisis due to the contradiction in Derrda’s work, that justice: is impossible, and notdeconstructible, and that law is deconstructible. He says that this makes deconstructionpossible which then leads to justice,32 likein the case of R v R.33 Thereis little wander why Balkin thinks this is so.
First, it is clear that Derridais guilty of the very essence of his concept. He tries to find the truemeanings of words and language by using complex statements, thus confusing thereader. If justice is impossible and law deconstructible, one wonders how this leadsto justice. There may be truth in such expression leading to deconstructiblity,but the question remains by what means it achieves justice, which “however unpresentable it may be, does not wait.” 34 Lloyd’s comment couldbe taken as accurate response thinks the answer is that “deconstructionexecutes a ‘conservative’ reaction as it reaches back beyond a…false doctrineto restore the law to its former pure state of justice …”35 Itcan thus be said that for justice to be achieved, a reaction perhaps of a falsedoctrine is needed. And if that is the needed change, it must conform tothe ideas and workings of the concept of deconstruction; as how ‘a wife’ wasgiven a new and accepted meaning in the case discussed in IV. V.
ConclusionThe concept of deconstruction is similar to the legalformalism in that both seek to achieve accuracy. The former aims to achievea distinct and accurate understanding or interpretation of a word or languagewhile formalism on the other hand offers a single and correct interpretation ofrules in a text. Evident in both works is the use of interpretation. Their goalsand aspirations however should not be mistaken to be the same.Inthis work, we have seen that the wisdom that formalism’s approach towards lawis coherent and produces a certain outcome, if followed, is debatable. Of theviews that criticise this approach, the popular is that of American realism whoseeks to see what really happens in the practical application of law, using apragmatic approach.
Writers like Cox on the other hand assert that “asubstantial degree of formalism is inescapable in law, and a substantialdegree of it is evident in law.”36Formalism is therefore an important theory of law, especially in laying downconcepts and rules like in contract law. On the issue of adjudication underformalism a notable conclusion would be that “Conceptualism is inescapablebecause one does not, contrary to the view of some realists, approach factswithout reference to concepts and expect to do anything intelligible.
“37The use of concept in deciding legal cases is therefore not always in the strictsense that formalism suggest, but a useful tool in deciding the outcome ofcases.Postmodernistsclaim that they do not involve in legal reform but the attempt of interpretingand understanding law in the form of deconstruction can be argued to fulfilthis purpose. Leading to this is the conception that they do not attach meaningto or attempt to define postmodernism. Hence it has been said that they should,rather than hiding behind the veil by failing to admit their involvement inlegal reform, be looking to “attend to questions like how they want the legalsubject to be reconstituted, what law should look like in a postmodern worldand what ethics are applicable.
“38 As seenfrom the examination of R v R, waiting for a reaction on afalse doctrine to occur may take a long time, or not.