The Law Wishes to Have a Formal Existence

Introduction

Stanley Fish’s paper critically examines the limits of legal formalism, arguing that law’s attempt to achieve pure objectivity is an illusion. While formalism seeks to insulate law from subjective interpretation, Fish demonstrates that legal meaning is inevitably shaped by context, interpretive judgments, and underlying social and moral influences. His analysis highlights the rhetorical nature of legal formalism, illustrating how legal doctrines maintain authority through constructed clarity rather than inherent autonomy. This blog post unpacks Fish’s argument by exploring the inherent contradictions in formalism, the ways in which legal doctrines covertly integrate moral considerations, and the role of rhetorical strategies in sustaining law’s legitimacy.

Law’s Struggle for Objectivity

Law aspires to function independently of personal biases, emotions, or subjective perspectives. Yet, achieving a purely formal existence remains a challenge, as legal meaning is constantly shaped by interpretive judgments and contextual factors.

The Limits of Legal Formalism

Legal formalism attempts to maintain objectivity by resisting interpretive and moral influences. However, its claim to autonomy is fundamentally unstable. While the rule of law promises stability, interpretation is unavoidable in judicial practice.

Examples of Judicial Interpretation Compromising Formalism: Cases like Trident Center reveal that even when judges, such as Judge Kozinski, claim to uphold formal clarity, they ultimately rely on extrinsic evidence to achieve coherent judgments. Similarly, in Columbia Nitrogen Corporation v. Royster Company, trade usage cases demonstrate how industry practices challenge formalist ideals by aligning legal meaning with the parties’ intent rather than strict textual reading.

The Parol Evidence Rule and Its Interpretive Paradox: While the parol evidence rule aims to exclude extrinsic evidence, its application inherently requires distinguishing between what constitutes “inside” and “outside” evidence, embedding interpretation into formalism itself.

Moral and Cultural Assumptions in 'Plain Meaning': Courts ascribe meaning to legal terms based on moral and cultural assumptions. For instance, in In Re Soper’s Estate, the definition of “wife” varied based on judges’ moral perspectives, demonstrating that even literal interpretations are shaped by ideological frameworks.

The Rhetorical and Political Nature of Legal Formalism: Formalism achieves “clarity” through persuasive narratives that align with prevailing social values. Drawing on Corbin’s concept of “achieved meaning,” it becomes evident that literal interpretations emerge from shared assumptions rather than an inherently autonomous legal structure.

Rebuilding Law through Flexible Formalism

Legal adaptability is crucial to maintaining legitimacy. While formal doctrines strive for consistency, underlying moral considerations inevitably influence legal decisions.

Consideration as Law’s Shield Against Moral Ambiguities: Contract law formally separates legal obligations from moral ones through the doctrine of consideration, which requires an exchange of value for enforceability. However, fairness concerns often lead courts to reintroduce moral intuitions, revealing consideration as a covert moral filter.

The Doctrine of Consideration as Covert Moral Gatekeeping in Law: Consideration implicitly upholds ethical values, particularly in cases like promissory estoppel and unjust enrichment, embedding moral flexibility within a formalist framework. Restatement (Second) of Contracts Section 86 embodies this balance by acknowledging moral obligations for received benefits while restricting enforceability based on formal consideration.

Transforming Instinct into Intention: Narrative Techniques in Legal Reasoning: Cases like Webb v. McGowinillustrate how courts recast instinctual acts as deliberate choices, framing moral obligations within a transactional light to fit legal consideration requirements.

Judicial Precedent and the Fusion of Justice with Formalism: Judge Samford’s endorsement of adapting doctrine to serve justice underscores the historical assertion that law and justice are intertwined. This demonstrates how contract law sustains dual narratives—formal rules alongside moral subtext—preserving legal authority and adaptability.

The Constructed Authority of Law as a Necessary Illusion

Despite its inherent ambiguities, law maintains legitimacy through rhetorical strategies that obscure its indeterminacies, creating a structured, self-sustaining framework essential for social stability.

The Functional Power of Legal Ambiguity: Law’s inherent flexibility allows judges to interpret concepts like “fairness” and “good faith” on a case-by-case basis. This adaptability ensures consistency in reasoning without rigid adherence to determinate rules, functioning as an “amazing trick” that sustains legal continuity.

The Essential Artifice of Legal Doctrine: Legal frameworks reconcile contradictions—such as the doctrines of consideration and reliance—without directly exposing them, shielding legal authority from destabilizing scrutiny.

The Practical Constraints on Law as Cultural Critique: Theorists like James Boyd White advocate for law as an open dialogue of plural voices. However, the necessity of legal decisiveness prevents courts from engaging in endless cultural critique, reinforcing law’s role as an authoritative structure rather than an open-ended conversation.

The Necessary 'Forgetfulness' in Legal Practice: Peter Goodrich critiques law’s rhetorical mask of neutrality, yet the strategic exclusion of ideological underpinnings is essential for law’s authority. Social institutions function by setting aside broader contingencies, allowing legal actors to focus on practical applications rather than philosophical foundations.

The Inherent Rhetoricity and Self-Justifying Nature of Legal Outcomes: Legal legitimacy arises not from absolute truth but from persuasive argumentation. “Right” outcomes are those successfully justified within the legal process, positioning law as a mediator of human contingency rather than an arbiter of universal correctness.

Conclusion

Legal formalism, while rhetorically useful, cannot fully extricate itself from interpretation and contextual influence. The clarity that law aspires to is a constructed ideal rather than an attainable reality. Law’s authority and stability stem from its ability to balance structured formalism with the necessary adaptability demanded by a dynamic society. This interplay sustains law’s legitimacy, ensuring it remains both an authoritative and responsive institution.