Formalism

You can watch the “conversation” between Supreme Court Justices Antonin Scalia and Stephen Breyer through C-SPAN as they discuss “Whether Foreign Court Decisions Should Impact American Constitution Law” (Real Video). The event was co-sponsored by American University Washington College of Law and the U.S. Association of Constitutional Law and it was a highly informative and entertaining discussion. While watching it I was reminded of Justice Scalia’s fabulous book, A Matter of Interpretation, which I recommend for both for laypeople and lawyers. Rather than address the subject of their discussion, which they do in more than sufficient fasion, I wanted to turn to a specific passage from Scalia’s book:

The rule of law is about form. If, for example, a citizen performs an act – let us say the sale of certain technology to a foreign country – which is prohibited by a widely publicized bill proposed by the administration and passed by both houses of Congress, but not yet signed by the President, that sale is lawful. It is of no consequence that everyone knows both houses of Congress and the President wish to prevent that sale. Before the wish becomes a binding law, it must be embodied in a bill that passes both houses and is signed by the President. Is that not formalism? A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime; and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish the miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism. It is what makes a government a government of laws and not of men.

This formalism, as Scalia makes abundantly clear, is essential to the law (its degree is a matter of debate). What Justice Scalia does not address, but which I think is implied, is that formalism is often in conflict with a sort of result-driven analysis – what I will call “resultism”. To use his examples, resultism would seek to render the above mentioned sale of technology illegal. After all, a resultist would argue, the clear intention and desired result of society is that it’s illegal. The resultist might also be much more willing to charge and label the hapless murderer without the formalities of a trial; or forgo a Constitutional restriction/requirement in favor of a more sensible and just result. Yet the formalism is still necessary if we are to be governed by laws and not by the whims of men and women in long black robes.

I think the necessity of formalism carries over into several aspects of life, including economics. The most desirable economic system promotes justice by protecting the rights of men from infringement by others through the formalism of freedom. It contains basic checks and balances that can guarantee the protection of rights. Free enterprise grants us a measure of freedom in choices regarding consumption and production. This economic freedom protects the individual from coercion by the state and encourages responsibility and reward. In other words, economic formalism is less concerned with money or results than it is with the formalities – freedom, justice, and responsibility. The opposing view – resultism – would argue against such formalism in the market in favor of a system that focuses on equitable or just results.
I don’t want to over-simplify economics, but that’s exactly what I’ve done. Such are the limitations of blog writing. Yet the formalism we see in this simple economic description – freedom in spite of its headaches – is necessary to make society a society of all and not just a few. It’s a paradox on its surface that the formalism, which will reward some more than others, is the better philosophy for all. But the formalities are not just the means, they are also an important end of economic theory: offering men and women not equal results but the freedom to seek justice and fulfillment.