Christoph Schonberger

Roundtable on Legal Formalism

Claims about formalism in the law are familiar, but at the same time often puzzling. For there is no consensus on what formalism means. Two motifs illustrate the point-the ambiguity of "formalism" and the formalist qua straw man.

Ambiguity of "formalism". In work on nineteenth and early twentieth-century American law, "formalism" has been used to identify phenomena as different as formulaic pleadings (the forms of action), the unity of law, scientism in the law (with sources as different as Auguste Comte and Christopher Columbus Langdell), and judicial decisions that fail to respond to the exigencies giving rise to litigation. There are enough rogh analogues in work on European law of the same period. Do these readings of "formalism" have anything in common?

The formalist as straw man. The language of formalism, often pejorative, is more frequently encountered in the work of the critics than in the work of those being criticized. Indeed, in the latter it is sometimes to identify as formalistic what is said, leading to the suspicion that the critics may well have created a straw man. Addressing the most notorious case of formalism in nineteenth-century German public law, Michael Stolleis in his monumental treatise on the history of German public law (Geschichte des offentlichen Rechts in Deutschland) puts the point nicely: The "resolute expulsion of historical, political, and philosophical elements from legal science, a program usually attributed to the positivism of Gerber and Laband, never took place." Rather, this is "a legend, traceable to the twentieth-century opponents of positivism" (ibid., vol. 2, p. 456). To what degree is the field dominated, as here, by straw men?

Goal. Combing historical, comparative, and juridico-philosophical perspectives, we should like to take up various readings of formalism in the law and in legal theory, exploring the sorts of questions raised above. The inquiry promises a richer understanding of the phenomena in question.