At the heart of the word "formalism," in many of its numerous uses, lies the concept of decisionmaking according to rule. Formalism is the way in which rules achieve their "ruleness" precisely by doing what is supposed to be the failing of formalism: screening off from a decisionmaker factors that a sensitive decisionmaker would otherwise take into account. Moreover, it appears that this screening off takes place largely through the force of the language in which rules are written. Thus the tasks performed by rules are tasks for which the primary tool is the specific linguistic formulation of a rule. As a result, insofar as formalism is frequently condemned as excessive reliance on the language of a rule, it is the very idea of decisionmaking by rule that is being condemned

DEFINE: Explains formalism as rule-based decisionmaking that screens off other factors

Once we disentangle and examine the various strands of formalism and recognize the way in which formalism, rules, and language are conceptually intertwined, it turns out that there is something, indeed much, to be said for decision according to rule-and therefore for formalism.

When I say that pelicans are birds, the truth of the statement follows inexorably from the meaning of the term "bird." If someone disagrees, or points at a living, breathing, flying pelican and says "That is not a bird," she simply does not know what the word "bird" means.' We criticize Lochner as formalistic because it treats the word "liberty" (or the words "life, liberty, or property, without due process of law") as being like the word "bird" and the privilege of contracting as being like a pelican, i.e., subsumed in the broader category. According to the reasoning in Lochner, if you don't know that contracting for labor without governmental control is an example of liberty, then you just don't know what the word "liberty" means.

Of course when I use the term "inexorable," I do not mean that the world and our language could not have been otherwise; the word "bird" could have referred to frogs instead of pelicans, or to only puffins, robins, and sparrows, but not pelicans, ostriches, and condors. Definitions are contingent and subject to change, and therefore the word "bird" might yet come to be the word that speakers of English use to refer to frogs, or only to small and not to large birds. Yet although there remains a possibility that the word "bird" will come to mean these things, this is only a possible world-it is not our world. In our world, the exclusion of frogs and the inclusion of large birds is definitionally part of the meaning of the word "bird." As I argue below, see infra notes 56-57 and accompanying text, the contingency of definition hardly entails the view that it is within the province of any one actor, legal or otherwise, to change it. Neither you nor I have the power to make it proper to use the word "bird" to refer to a frog, even though the word "bird" could in another world be used to refer to frogs.

DEFINE: Clarifies the distinction between a definition being contingent (could have been otherwise in another possible world) and it being within anyone's power to alter it in our world.

The extent to which this is true for morally and politically loaded words such as "liberty" is likely to vary with time, place, and culture. Take, for example, the transformation of the "honor codes" at various venerable universities. These codes were phrased in quite general terms at their inception in the 18th and 19th centuries because these schools contained homogeneous student bodies who shared a common conception of the type of conduct definitionally incorporated within the word "honor." If a person thought that purchasing a term paper from a professional term paper service was consistent with being honorable, then that person simply did not know what "honor" meant. As values have changed and as student bodies have become less homogeneous, however, shared definitions of terms such as "honor" have broken down. Some people now do think that buying a term paper can be honorable, and this breakdown in shared meaning has caused general references to "honor" to be displaced in such codes by more detailed rules. There may now be little shared agreement about what the precept "be honorable" requires, but there is considerable agreement about what the rule "do not purchase a term paper" requires.

XREF: Connects to general linguistics/semantics on how vague terms require shared context, and to sociology of moral vocabulary.

Blackstone's view that certain abstract terms definitionally incorporate a wide range of specific results is tied intimately to his perception of a hard and suprahuman reality behind these general terms. If the word "property," for example, actually describes some underlying and noncontingent reality, then it follows easily that certain specific embodiments are necessarily part of that reality, just as pelicans are part of the underlying reality that is the universe of birds. … To the extent that Blackstone and others believed that categories like liberty, property, and contract were natural kinds rather than human artifacts, they were less likely to perceive the choices we would now not think to deny. When one believes that a general term reflects a deep reality beyond the power of human actors, the view that certain particulars are necessarily part of that reality follows with special ease.

XREF: Connects to nominalism vs. realism debates in philosophy and to contemporary critical legal studies about the constructedness of legal categories. DEFINE: Illuminates the contrast between viewing terms like property and contract as natural kinds versus human artifacts. Builds on: "Formalism wrongly treats legal terms as self-contained categories."

Formalism may be more broadly viewed as extending to any justification that treats as inexorable a choice that is not. In this broader sense, the claimed inexorability might come from something other than rule formulations. To mask, for example, a political, moral, or social choice in the language of "original intent" when original intent in fact does not provide a uniquely correct answer to the issue might be considered formalistic in the same way that masking a political, moral, or social choice in the language of the meaning of a rule is considered formalistic when that language does not provide a uniquely correct answer. Similarly, masking choice in the language of mathematical economic derivation or in the language of a unique solution to some "balance" might be considered formalistic if these methods are in fact comparatively indeterminate.

DEFINE: Broadens formalism from narrow rule-following to any justification that treats non-inexorable choices as inexorable, including original intent, economics, and balance rhetoric. Builds on: "Believing legal categories are natural kinds obscures their contingent choices."

More commonly, however, the indeterminacy to be filled by a decisionmaker's choice is not pervasive throughout the range of applications of a term. Instead, the indeterminacy is encountered only at the edges of a term's meaning. As H.L.A. Hart tells us, legal terms possess a core of settled meaning and a penumbra of debatable meaning.

XREF: Connects to H.L.A. Hart's concept of the open texture of law in The Concept of Law. Pays off: "Formalism wrongly treats legal terms as self-contained categories."