Formalism and Formality

For many law professors formalism generally draws at best mixed reviews (there are exceptions, of course -- I've heard tell of some maverick neo-formalists as well as formalists in the great white north of Toronto).  Brian Tamanaha's recent book even goes so far as to claim that some formalists of yesteryear didn't embrace the designation.  But in this post, I don't want to plunge into those ship-wrecking waters.  I want instead to play on safer shoals -- to think about the connection, if there is one, between the ideas of formalism in law and formality of behavior or manner.  I'm particularly interested in the question whether, from the standpoint of teachers of future lawyers, there is a relationship between formalism in law and formality in one's written expression, one's professional interactions, and one's general professional deportment.

Formalism in law is itself a contested idea, but for my light-hearted purposes, I hope we can agree that formalism means some degree (I leave this intentionally vague) of estimation of rules.  That definition will include just about everyone, so here's something that might not.  Formalists believe that there are rules, that the rules are meaningful and knowable, and that rules are somehow very good.  It is that last component -- the goodness of rules -- that I want to focus on here.  In what way are they good? 

Some (of course not close to all) of the answers given by serious people who have thought about this question might be organized in increasing degree of thickness.  On the thinnest end of the spectrum, rules provide general standards for guiding behavior and they make social coordination possible.  It is because of rules that people can make their plans.  Relatedly, but getting somewhat thicker now, rules are also good because they constrain those with power from veering off in entirely unexpected directions; rules entrench a status quo and they limit the degree of deviation by individuals.  Yet another good: rules, as Larry Alexander puts it, are vehicles to achieve "authoritative settlements"; they are debate enders, mechanisms that cut off what might otherwise be interminable disputes. 

Here's a different, but also comparatively thick, answer that Guido Calabresi offered some time back, in talking about the law's "unresponsiveness" to "democratic aspirations" in fascist Italy: "law and legal systems [are] staters and protectors of ideals that humans necessarily botch up and fail to live up to in practice."  Calabresi mentions "ideals" but that doesn't ring true for me.  Ideals and principles are far too manipulable to achieve the healthful "unresponsiveness" that he is talking about -- it's only really the hardness of a rule that can get you that type of stubborn resistance. 

Even thicker: rules are in themselves deserving of respect because they are the embodiment of the community's judgments.  Perhaps the thickest argument I know of belongs to Robert Summers in a very nice piece called "How Law Is Formal And Why It Matters."  Summers says that formalism in law is an affirmative and intrinsic social good -- appropriate forms have positive "inventive" possibility that is unattainable in their absence, because it is exactly through the disciplining rigor of rules (and not by ignoring or circumnavigating around them) that the best sort of change occurs. 

With all of these justifications for formalism and forms, is there any relationship or connection between formalism in law and formality in personal or professional behavior of various sorts?  I'll focus on professional written expression, and I can think of two possible connections. 

First, following Calabresi above (but surely many others too), we might think of at least part of the "good" of formalism -- and of forms -- as its (and their) protective quality.  Forms protect people against one another -- the assumption being that we are in dire need of protection against one another's desires, intentions, and wills.  Formalism takes a decidedly bleak view of humanity -- we are neither angels nor gods and so we need to devise methods to cope with our awful selves and the darkness that would, unless preventatively "ruled" out, suffocate us.  It isn't only that the absence of forms would prevent us from making our life plans or predicting how our legal claims might go; it's that the terror of a formless world would entail the raw horrors of our fellow human beings unleashed -- denuded of all of the salutary constraints of rule-based custom, written or unwritten.  

I often think that this justification for formalism can be over-sold in law -- I'm just not sure that without hard and fast rules we would descend into these horrors.  Still, there is a connection to formality in the protective justification.  To express oneself formally (in writing, for example) -- according to customary modes of what is considered appropriate expression -- is to protect the expectation of the target of one's expression.  Formal expression protects the audience by keeping hidden (clothed, if you will) how one would naturally (nakedly) choose to express oneself.  Most people want very much to be protected from what lies beneath the manicured surface of their fellow human beings, and with good reason.  On this protective view, formality betokens respect for other people's sensibilities, accompanied by the hope for reciprocity.

What makes this justification for formality less powerful than it was in Calabresi's context is that one might plausibly say that the protection of forms is much more important when we're dealing with resisting unjust political regimes than when we're talking about sparing ourselves each other's raw inner selves.  It's far more necessary to have highly resistant forms that protect core political values than forms which protect us from inelegant written expression. That's of course true, but I wonder whether this is merely a difference of degree of protection required by forms rather than one of kind.

At any rate, the second connection between formalism and formality might depend on some of Summers's thoughts about the affirmative (as opposed to the negative, protective, restraining) good of forms.  Consider this statement from a point late in his piece: "Through appropriate legal form, a system expresses, enshrines, symbolizes, radiates, and enforces commitment to fundamental political values, including democracy."  One could make a similar statement about the good of formality as a professional ideal for lawyers, but the analogous commitment would not be to "political values."  What might one substitute?  Perhaps aesthetic values.  One could say that formality in written expression "enshrines, radiates..." an individual and social commitment to professional elegance, style, refinement.  We are talking about the conventions of elegance as being intrinsically worthwhile, and for myself, I think that elegance does, in fact, have great intrinsic value.  But someone who disagreed with me might wonder -- why?  Why should I value (conventional) elegance as a social good?

Here's a possible answer, though offered hesitatingly.  If I were to receive an email from a student that said, "D-G -- what's up?  Think u cn cxl class tmr cause of all that snow?  Hahahaha -- LOL!!  Take it easy" the problem with the form-lessness -- with the lack of formality -- wouldn't be one of coordination, or failure to understand the substance, or restraint, or even protection (though there may be something there too).  It would be one of inelegance denoting a self-conscious, willful lack of care, and a related absence of respect.  I think I can say the same for any written expression which does not exhibit a certain degree of formality. 

Formality is a way to demonstrate personal -- and, for lawyers, professional -- respect for other people.  When I act formally, I do so with the understanding that the social formalities that most people think of as elegant and tasteful will be welcomed by those people -- that they will think well of me because I have con-formed to an aesthetic rule which betokens respect.  I try to write in such a way to convey that respect, and I hope to receive writings in which that respect is reciprocated.

We could go even further analogizing from Summers: it is through the channels of the forms of conduct that one can best change the rules of formality, recognizing that change itself combines ideas of alteration with stasis -- change being only the sense that something has been altered from a remembered and still present sameness.  So that changes in written expression, for example, which are positive developments, come from deep within the formalities of what is considered elegant writing.

It's probably worthwhile to note that I'm not myself convinced that some of these relationships between formalism and formality are wholly persuasive.  There are certainly disanalogies and incongruities.  But perhaps there is some kind of diffuse connection, whether along the lines that I suggest or others that readers, I hope, can identify.