211 Law in Time: Legal Theory & Legal History Failing to comprehend the varieties of formalism and the essential role of formalism in high complexity societies – and the critical-constructive potential formalism holds – anti-formalism generalized an ephebic, caricatured version of formalism – call it formulaic formalism – as formalism tout court . 20 Often succumbing to the strawman fallacy, critiques of formalism both described and idealized law not as conceptual symphony, but as jazzy improvisation, thus easily falling into the arms of consequentialisms, pragmatisms, and functionalisms of sundry types. In the post-legal realist age in Europe and the Americas, pointing to formalism as of the essence of law in complex societies may be seen as adventure in staled orthodoxy. This mistake brings to mind the insight that Borges put in the mind of a conservative – “the heresies we ought to fear are those that can be confused with orthodoxy.” (BORGES, 1970). To briefly recover the significance of formalism – and to set aside the strawman of formulaic formalism – I introduce the notion of critical-constructive formalism. Rather than rejecting the inherent tension between functional adaptation and the structural integrity that is usually attributed to formalism, critical-constructive formalism embraces the tension by elevating it to its proper intellectual and practical significance. Critical-constructive formalism explains the form of law as a fundamental element of the conceptual integrity of law understood in its historicist, rationalist, and voluntarist roots. All that said, the ultimate test for paradigms of law rests in their resilience. They are also tested on their ability to answer questions about the epistemic status of thinking normatively about an object – law – the phenomenology of which includes past-willed commands to guide present behavior into future outcomes. That is why any successful 20 Not to mention the difficult conciliation in critical legal thought of a critique of formalism and systemic or structural critique of law. Karl Klare thus describes the difficulty: “The radical critics’ problem, of course, is that the antiformalist critique constantly collides with and undermines the structuralist perspective. Structural or systemic theories, whether critical or apologetic, seem to require some version of formalism, some claim or assumption that legal orders have an in-built structure (given either by their core philosophical principles or by functional attributes of the social system) that locks in routine legal decision-making. One cannot convincingly attribute observed regularities in legal outcomes to basic systemic principles or functions without at the same time providing some account of the structural constraints on routine legal decision-making. Yet the antiformalist impulse aims precisely to show the pervasiveness of contingency, choice, and personal responsibility in the legal process. It therefore renders problematical all claims of structural constraint.” Karl E. Klare, Social Construction and System in Legal Theory: A Response to Professor Preuss (2011).
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