This formalism. From the discussion in the work it

This writing is a response to the expression that
formalism offers a true version of law’s internal coherence and a resultant
feasibility of separating the judicial from the political. Looking at works of
theorists and other writers, we will critically examine whether law is
internally coherent, as formalism envisages it to be. This point of view will
be examined also in a postmodern context. This writing will discuss how the
concept of deconstruction aims to achieve justice, by examining the case of R
v R 1992 1 AC
599.
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 distinct
theories of law in their approaches towards law.  

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II. Formalists on law – is law
indeed internally coherent?

Praises are accorded to Bentham and Austin for their
pioneering works on legal formalism, although none of them identified with that
ideal, but as legal positivists. Although very influential, little reference
would be given to their work as it is required. An excerpt from Cox’s article
may suffice as an insight into the meaning of legal formalism:

“… an ideology where answers to legal questions could
and should be based upon distinctly legal materials, without reference to
sources external to law, most obviously without reference to the social
sciences.”1

From the above text, formalism is about the
strict application of only the rules in the book to the facts of a case. Hence it
was dubbed the phrase “black-letter tradition”. It was from this premise, which
is no news, that it received a wealth of criticisms mostly by legal realists.

It is an accepted wisdom that formalists asserted
three things. First,
it could be said that
legal concepts, like consideration in contract or ownership in property, could
be identified through induction, through perhaps the evidence of review in case
law. Second, formalists placed emphasis on logic so it was believed that
particular rules could be derived “logically” from the concept induced from the
case law. Lastly, it was held that the result would lead to internally
consistent, systemized and rationalized law, just like geometry, and that by reference
to logic, correct answers relating to law could be given to any question or
issue raised, following this system. Our focus will be on the
third admission as it is relevant to this work.

It does not go from here without asking whether this is an
accurate depiction of how law is. A position taken by a realist and a pragmatist
is that: “the life of the law has not been logic; it has been experience.”2
In the US landmark case of Lochner v New York3, Joseph Lochner, a
bakery owner, was charged with violating the Bakeshop Act. The Act stated that
the maximum working time for employees was 10 hours per day and 60 hours per
week. These provisions may have appeared neutral but it was believed to target foreign-born
bakers who were willing to work more hours than American bakers. Thus, the
charge was in connection with the granting of permission to an employee to work
more than 60 hours in one week. This decision was sustained in the upper
courts. Lockner appealed to the Supreme Court on the ground that the maximum
hour set by the Bakeshop Act was a constitutional limitation on the freedom to
contract and thus violated the Fourteenth Amendment. Like the lower courts, the
Supreme Court did not think so. This majority decision can be contrasted with
the popular dissent of Holmes: “General propositions do not decide concrete cases. The
decision will depend on a judgment or intuition more subtle than any articulate
major premise.”4 In
other words, judges should be liberal rather than constrained to the rules in
the book when deciding cases. And such expressions should be given on a case by
case basis, as facts differ in each case. For that reason, the idea of having a
general concept to apply to different cases may not produce a favourable
outcome. Accordingly, it can be said that the majority judges took a formalist
position while Holmes maintained a realist one.

The use of logic is integral in making judgment. So is
intuition. A judge, whether deciding a case as formalists or the realists
suggest, may not be able to avoid this phenomenon. This questions the truths
that formalism holds. By the use of intuition and logic it can be argued that
the black-letter tradition is not as strict as it presented to be. In addition
to this flaw, a judge tries to balance “his philosophy,…his analogies, his
history, his customs, and his sense of right”5
in deciding a case. When all these add up there is a great chance that the
outcome may not be as that described by Frank, that the outcome of a case “is
certain and exact as an answer to a problem in mathematics.”6
To put it another way, and borrowing a text from Cox, “judges are not in fact bound by
concepts or rules as they may be manipulated.”7

We have seen that various factors are considered by judges
when they are making decisions. The belief of a “correct legal answer” like in
geometry is defeated by this realisation. Hence it has been commented that “formalism’s geometrical aspirations are normatively
suspect. What is needed instead…is a concrete focus upon considerations of
social advantage and disadvantage.”8

Of course, laws need to be certain for those working in the
legal sector to make prediction of what certain rules mean, and in what circumstances
they may apply. However, as discussed above, law cannot be regarded as being
consistent or coherent as “it is filled with gaps and contradictions, that
make it…indeterminate.”9

The
illustration of law as coherent which leads to a particular outcome has been argued
to be “not an accurate depiction of law as it is now, even if, which is
doubtful, it once was such a depiction.”10
Professor 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 is
engaged in creating a logical system.”11
She addresses this in her persuasive article by distinguishing Langdell’s
argument from demonstrative reasoning. She described it as a determinate number
that is known to all intuitively, which solely proceed perhaps through
deductive arguments. This, she notes, contributes to the timeless, universal
and necessary character of mathematics which when applied to law, means that in
every legal case there would be only one right answer, correct in every
circumstance.12 Thus
she argues that “Langdell does not believe that the results of his theory are
timeless, universal and independent of circumstances. If he did believe this,
he would not offer so much explanation and justification for the results in
particular cases.”13
An example is his introduction of the concept of offer and acceptance as seen
in his contract theory contained in his Summary.14
Langdell does not only lay down these concepts but goes further by
distinguishing between unilateral and bilateral offers.

III. The separation of the juridical from
the political

It is now going
to be considered whether legal formalism distinguishes the juridical from the
political. First, what do these terms mean? Tadros, in analysing what the term
“juridical” in Foucault’s work is, wrote that “the term juridical describes an
arrangement and a representation of power rather than the law.”15
Such power can be safely translated as judicial power conferred upon judges by
virtue of them becoming one. “Political” on the other hand, could be taken to mean
something relating to the state or government of a country. Thus, to go a step
further would be to say that formalism encourages the separation of powers
between the branches of a government.

A system of
adjudication proposed by the formalists is going to be used to analyse this
view: “mechanical adjudication.”16 This
holds that rules could be applied to facts mechanically, where the “relevant
sets of fact appears, the rule is applied and when it does not the rule is
not applied.”17
One would strongly fault this view on the ground that if rules are strictly
applied according to how they appear in their written form, then judges are not
judging but involved in simply transposing the text rules onto particular
facts. Hence, there cannot be seen a stark separation between the judiciary
from the legislature or the executive who sometimes make law in the form of
private members’ bill. Consequently, the theory that the rule as a major
premise and a set of facts as a minor premise generates a right answer18
does 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 and
balances put in place to prevent the abuse that such reasoning may suggest.

Bentham and
Austin held opposing views on adjudication. The latter encouraged judge made
law. In his book Austin wrote that “jurisprudence…comprises the science of
legislation,”19
stating further that, and wondering, how “society could possibly have gone on
if judges had not legislated…”20 Bentham,
on the other hand referred judge-made law to “dog law”. What is apparent of the
two disparities is Bentham’s view that judges should not make law but should be
involved in the application of it. The closest thing to a judge made law can be
said to be precedents. Of the two views, Bentham’s could be said to encourage the
separation of the juridical from the political. As judges stick to interpreting
the law and Parliament sticks to making legislation, there would be no interference
of 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 judges
are appointed one would favour that laws should be made by the elected body
rather than the appointed.

Another way to
consider this matter is to say that judges’ decisions are independent of
political 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 to
formalism as separating the juridical from the political, and presents it as an
incorrect conclusion.

 

IV. Postmodernism: the relation between the
concept of deconstruction and the notion of justice

                                                     

Lyotard
defines postmodernism as ‘incredulity towards meta-narratives’.21 Postmodernism is not
concerned with the internal coherence of law like formalism, but offers some
criticism on the matter. It is a unique theory in that it does not look at
theorising what law is or how it should be or operate, but focuses on concepts
such as epistemology. They have regards for the interpretative and linguistic
reasoning behind law. They thus see law as a language. Partly, postmodernism “seeks to provide…careful reading
of texts to ascertain what other meanings or texts is contained in the
interpreted text and what meanings or texts are left out.”22 One way they achieve this aim is through deconstruction: a process
of deciphering words in the hope of understanding how they are interpreted
(mostly in writing). Deconstruction is, according to Derrida, ‘at bottom what
happens or comes to pass;’23
which may be interpreted to be justice. In the ensuing paragraphs, the concept
of deconstruction will be used to examine the decision of the court in R v
R.24

The
case concerned whether a husband (the appellant) was, and could be found guilty
of 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, as
the wife “at the time of the intercourse, did not consent to the
intercourse.”25 This decision questioned
the longstanding “legal subjectivity of ‘a wife'”26
in the work of Sir Hale who wrote that a husband cannot be found guilty of
rapping his lawful wife by the virtue of their matrimonial consent.27
Lord Keith in his judgment referred to that idea as a “common law fiction.”28
Thus, a new meaning was given to the thought of ‘a wife’ being raped by her
husband: she could decline to take part in a sexual intercourse, and a husband
who refuses to respect that decision could be found to rape his wife.29
It can be said that the language of Sir Hale was indeterminate and so replaced
by the judgment of the courts; as language is spoken from an unstable system (man); 30
owing to this was that the saying was a fiction which had not being brought
under the scrutiny of a higher court.

Moving
on, and considering how the concept of deconstruction may bring justice, it is
accepted that ethics and justice are centre to the heart of postmodernism and
they work to present the law in a fashion which deals with the concern of both
themes. It has however been argued that “deconstruction…does not support any
particular vision of justice.”31 This
is due to the contradiction in Derrda’s work, that justice: is impossible, and not
deconstructible, and that law is deconstructible. He says that this makes deconstruction
possible which then leads to justice,32 like
in the case of R v R.33 There
is little wander why Balkin thinks this is so. First, it is clear that Derrida
is guilty of the very essence of his concept. He tries to find the true
meanings of words and language by using complex statements, thus confusing the
reader. If justice is impossible and law deconstructible, one wonders how this leads
to 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 could
be taken as accurate response thinks the answer is that “deconstruction
executes a ‘conservative’ reaction as it reaches back beyond a…false doctrine
to restore the law to its former pure state of justice …”35 It
can thus be said that for justice to be achieved, a reaction perhaps of a false
doctrine is needed. And if that is the needed change, it must conform to
the ideas and workings of the concept of deconstruction; as how ‘a wife’ was
given a new and accepted meaning in the case discussed in IV.

V.
Conclusion

The concept of deconstruction is similar to the legal
formalism in that both seek to achieve accuracy. The former aims to achieve
a distinct and accurate understanding or interpretation of a word or language
while formalism on the other hand offers a single and correct interpretation of
rules in a text. Evident in both works is the use of interpretation. Their goals
and aspirations however should not be mistaken to be the same.

In
this work, we have seen that the wisdom that formalism’s approach towards law
is coherent and produces a certain outcome, if followed, is debatable. Of the
views that criticise this approach, the popular is that of American realism who
seeks to see what really happens in the practical application of law, using a
pragmatic approach. Writers like Cox on the other hand assert that “a
substantial degree of formalism is inescapable in law, and a substantial
degree of it is evident in law.”36
Formalism is therefore an important theory of law, especially in laying down
concepts and rules like in contract law. On the issue of adjudication under
formalism a notable conclusion would be that “Conceptualism is inescapable
because one does not, contrary to the view of some realists, approach facts
without reference to concepts and expect to do anything intelligible.”37
The use of concept in deciding legal cases is therefore not always in the strict
sense that formalism suggest, but a useful tool in deciding the outcome of
cases.

Postmodernists
claim that they do not involve in legal reform but the attempt of interpreting
and understanding law in the form of deconstruction can be argued to fulfil
this purpose. Leading to this is the conception that they do not attach meaning
to 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 in
legal reform, be looking to “attend to questions like how they want the legal
subject to be reconstituted, what law should look like in a postmodern world
and what ethics are applicable.”38 As seen
from the examination of R v R, waiting for a reaction on a
false doctrine to occur may take a long time, or not.