(Pix (c) Larry Catá Backer)
The problem of formalism (or the
essence of its nature) is that, at its limit, formalist systems, like
those focused on text, becomes detached from the realities of the
system it is meant to order, and ultimately irrelevant. Similarly,
the problem of functionalism (or the essence of its nature) is that, at
its limit, functionalism reduces the formal structure of governance,
the ordering system of its politics, to irrelevance. The most successful systems manage a balance between formal and functional--but the maintenance of that balance is impossible in the long run. The possibility of system failure is built into every organization.
My students have been wrestling with the problem of interpretive ideology, especially in the construction of legitimating systems of constitutional interpretation. They have come to understand the power of text and intent as frameworks to apply text to the specific context in which its application appears required as these notions have been elaborated in the conventional writings of jurists and academics.
They understand the disciplining overlay of the two great oppositional principles on which the American political union is founded from the earliest jurisprudence of the Republic--a preference for dividing and sharing power within the state apparatus (the avoidance of tyranny) and an equal preference for enhancing a workable government (the promotion of efficiency). This was perhaps well put recently by "the Honorable David H. Souter ’61, LL.B. ’66, former associate justice of the U.S. Supreme Court, [who] spoke of the necessity in constitutional law to choose between 'values that may very well exist in tension with each other,” pointing out that decisions are never “straightforward exercise[s] of reading fairly and viewing facts objectively.' The Constitution, he declared, reflects 'the desire of the American people…to have things both ways. We want order and security, and we also want liberty…These pairs of desires…can clash.'" American Values and Constitutional Law, Harvard Magazine, May 28, 2010.
Students appear willing enough to accept oppositional values of this sort in the construction of the state and the interpretation of its basic law. But what is proving distressing is the apparently self destructive natures of ideologies of interpretation based on either a text or on the intent of its authors or of the political community from out of which it emerged. This problem of text and intent can be understood as inherent in the nature of the ideologies of formalism (text) and functionalism (intent).
The problem of formalism (or the essence of its nature) is that, at its limit, formalist systems, like those focused on text, becomes detached from the realities of the system it is meant to order, and ultimately irrelevant.
Similarly, the problem of functionalism (or the essence of its nature) is that, at its limit, functionalism reduces the formal structure of governance, the ordering system of its politics, to irrelevance.
In both cases, detachment serves as the ends and destruction of the governance system each is supposed to enhance. Ideologies of structure, to which academics and judges become overly fond, then serve another purpose--as a mechanism for shifting control of both ordering system and its operation. Backer, Larry Catá, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of American Judges, William & Mary Bill of Rights Journal 12:117-178 (2003).
Logical systems may well be contained within their own realities, and devote considerable effort to the elaboration of its rules; yet at its limit this systemic approach is driven to sacrifice the objectives of legitimate pronouncements of legislatures for the purity of its formal expression. "For law this means: specific criteria for legal enactment; procedural safeguards; and a specialist judiciary and legal profession to interpret the law. Let us imagine that law is a sausage factory, transforming conflict into justice by the operation of some great mill. . . .[T]he quality of its sweetmeats is not assured by inspecting the sausages it produces, but rather by the regular machine that grinds the meat, and the white-coated technicians who keep it oiled." Desmond Manderson, "Formalism and Narrative in Law and Medicine: the Debate over Medical Marijuana Use." Journal of Drug Issues 29(1):121 (1999).
Likewise systems grounded in effects, in the results, may well devote considerable energies toward developing those expressions of discovering and balancing popular desire; yet at its limit this systemic approach is driven to sacrifice the very system for ordering power to achieve perceived objectives ineffectively expressed through that system. "[I]f one accepts the principle that the object of judicial interpretation is to determine the intent of the legislature, being bound by genuine but unexpressed legislative intent rather than the law is only the theoretical threat. The practical threat is that, under the guise or even the self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires." Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, Princeton: Princeton University Press, 1997, at 17-18.
Contradiction produces irony. Both form and function ideologies tend toward the production of formal systems in which the system becomes its own object. "The 'purity' of the process is guaranteed by the invariant structure which produces each and every result and by the specialists who administer it. Provenance and expertise, therefore, are the twin essences of formalism." Pierre Bourdieu, The Logic of Practice, Stanford, CA: Stanford Univ. Press, 1990, at 83. Formalization, within either ideologies of form or function--text or intention--is necessary to systematization within institutional frameworks. Yet systematization betrays the object for which it was created, at least at its limit.
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