Abstract
In this paper, I will (1) state and clarify my main theses about the formal character of law, (2) sketch out and briefly illustrate how I am developing and defending these theses, (3) differentiate in a very general way my theses from the concerns of other theorists, and (4) explain how the truth or soundness of my theses may be important. But this is only a preliminary account. A book will eventually follow.1
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Notes
This is one of several preliminary essays on the formal character of law. The first such essay was initially presented as the Goodhart Lecture on 4 December 1991 while the author was the Arthur L. Goodhart Visiting Professor of Legal Science at Cambridge University. This first essay was published as The Formal Character of Law, 51 Cambridge Law Journal 242 (1992). The second essay, a further development of the first, has been published in German in Arsp and is entitled Der formale Charakter des Rechts Il See also other essays in this Part of the present book. The present essay is different from the first and second in significant ways. See also Chapter Five of this book.
The criticism might be made that this thesis is ultimately “tautologous”, or the like. It is true that most objects of human creation must take some form. This is most evident in the case of many physical objects of human creation. But even if this is also generally true of non-physical objects of human creation, I hope to show that in the case of law, legal phenomena, and legal systems, form requires the kind of special attention I propose to provide here, and also more at length in my projected book. The appropriate conceptual explication and description of the form of a legal construct is often far from obvious. Moreover, particular legal embodiments of form, even when initially appropriate, are more at risk of degeneration or distortion than is true of form in physical objects of human creation. Also, the values served by form in law tend to be relatively latent. For this reason, among others, form may not get its due in actual practice, let alone in the work of theorists.
H.L.A. Hart, The Concept of Law pp. 189–195 (Oxford U. Press, Oxford, 1961).
Hans Kelsen, The General Theory of Law and State pp. 18–50 (Harvard U. Press, Cambridge 1945).
It might be thought that this thesis, too, is subject to the criticism of being ultimately tautologous. But see note 1.
A formal feature of legal phenomena may reveal itself as a legal requirement, or part of a legal requirement. For example, that a statute be duly adopted by the duly constituted legislature and duly signed by the executive constitutes a legal requirement or requirements. Given this, it might seem superfluous to go on and assert, as in the text, that what is already a legal requirement (or part thereof) is a desideratum in its own right. After all, any legal requirement must be some kind of desideratum. There are several answers to this. First, my focus here is only on the formalness of any requirement as a desideratum. And in some legal cultures, including my own, the general desirability of formality in the law is frequently questioned. Second, not all formal features of law are legal requirements, in any straightforward way. For example, what I will call the external form of a given legal rule, that is, whether it is embodied in, say, a statute, or in common law, is not a “legal requirement”.
For more extended discussion, see R.S. Summers, The Formal Character of Law 51 Cambridge Law Journal 242,247–251 ( 1992).
Fuller, The Forms and Limits of Adjudication, 92 Harvard Law Review 353 (1978).
Lon L. Fuller, Positivism and Fidelity to Law; A Reply to Professor Hart, 71 Harvard Law Review, 630 (1958); Compare also Klaus Füßer, Rechtspositivismus und ’gesetzliches Unrecht, Arsp 78 (1992), pp. 301ff., 319f.
Max Weber, Critique of Stammler 79 (1977 Free Press ed’n.).
Hans Kelsen, The Pure Theory of Law, pp. 62–69 (U. of Calif. Press, Berkeley 1967).
Lon L. Fuller, The Morality Of Law (Yale U. Press, New Haven 2nd ed. 1969). See also, R.S. Summers, Lon L. Fuller, pp. 36–40 (Stanford U. Press, Stanford 1984) and R.S. Summers, Professor Fuller’s Jurisprudence and America’s Dominant Philosophy of Law, Harv. L. Rev. 92 (1978), pp 433–449.
See, e.g., Frederick Schauer, Playing By The Rules (Oxford U. Press, Oxford 1991).
See Hart supra note 1.
See, for example, K. Engisch, Form und Stoff in der Jurisprudenz, Beitrage Zur Rechtstheorie p. 251 (1984).
See Hart supra note l.
I have argued elsewhere that the formalness of law also largely accounts for its relative autonomy as a social phenomenon. See R.S. Summers, Judge Richard Posner’s Jurisprudence, 89 Mich. L. Rev. 1302, 1327–1331 (1991).
K. Llewellyn, The Bramble Bush pp. 157–58 (Oceana, 1951 ed.).
R.S. Summers, Theory, Formality and Practical Legal Criticism 106 Law Q. Rev. 407, 418(1990). J. Rawls, A Theory of Justice (Harvard U. Press 1971).
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Summers, R.S., McRoberts, W.G., Goodhart, A.L. (2000). The Formal Character of Law. In: Essays in Legal Theory. Law and Philosophy Library, vol 46. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9407-3_6
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