Paul Miller offers a manifesto for an approach to private law—more precisely, for theories of doctrinal areas within private law–that is both traditional and quite new. In his new article, The New Formalism in Private Law, he names the approach, “New Private Law Theory” (and I will follow his practice of abbreviating it “NPL”). It is grounded on a rejection of the sort of reductive, cynical, and skeptical approaches to law and legal rules associated with American Legal Realism, and it promotes a more internal (less instrumental) understanding of law.
Miller offers the following as the essential positive claim of NPL. “[P]rivate law contributes to the law’s wider essential function: providing practically reasonable normative guidance to its addressees through authoritative resolution of conflict and coordination issues that face a political community, thereby enabling the community to realize its aspirations to legality.” (P. 178, emphasis omitted.) NPL focuses on both form and substance, and on both the institutional nature and the normative claims of (private) law: i.e., that “legal systems are historically iterated, constructed normative systems, and that these systems claim practical authority over their addressees.” (P. 179.)
The article is worth close reading just for its very useful overview of the sometimes overlapping, sometimes contrary uses of “formalism” in American legal scholarship over the decades. The article nicely summarizes many of the theories labeled “formalist” by either their authors or by critics. (Pp. 179-95.)
Miller summarizes the features of NPL: including judges acting in good faith; the value of “legality” as such; close attention to doctrine and legal structures; and a concern with the systematicity of law. (P. 196.) NPL also emphasizes certain categories of legal form through which law structures behavior: status, holdings, transactions, relationship, and associations. (P. 205.) At the same time, Miller insists that such internal interpretations of law should not be confused with or “slide[] into apologetics.” (P. 235.)
Miller’s response to the cynical view that law is just a pretense offered for judicial decisions reached for other (extralegal) reasons or based on hidden motives is to note that this is a descriptive claim, subject to empirical verification or falsification, while objecting that the cynical view offers no normative guidance on what law should do and how legal officials should act. (Pp. 212-13.) For NPL, the prescription for judges is straightforward: “act in good faith and giv[e] effect to the law.” (P. 214.) NPL recognizes that judges sometimes act in bad faith, and that sometimes political or social culture may encourage this, but according to NPL these are defects to be fought, not worldly wisdom to be celebrated. (Pp. 214-15.)
NPL’s focus on “practical reason as guided by law” (P. 209) shows how the approach might be understood as a sort of middle path between classical American Legal Realism, on one hand, and the “legal dogmatics” of traditional continental European jurisprudence, on the other. Like many Legal Realists (in particular, Karl Llewellyn), NPL focuses on how law, interacting with other forms of normativity, affects actual behavior. On the other side, modern legal dogmatics1 (pure doctrinal thought) assumes that there is a truth about law which we can discover, but tends to be less concerned about effects the law has in the world, or how (in the terms of NPL) law fits into our practical reasoning. NPL’s rich sense of “legality” borrows from ideas developed by Lon Fuller back in the 1960s (Pp. 198, n.237) and also from more recent writings, like those of David Dyzenhaus (n.197, n.217; see also Paul B. Miller, The Long Arc of Legality (2022)) to develop this middle path.
Perhaps it is not a coincidence that the idea of taking doctrine seriously can be found both in “the new formalism” of the New Private Law (P. 222) and the movement known as “the New Legal Realism.”2
After a period in which it was often said that “we are all legal realists now,” perhaps we are coming full circle, to an enriched understanding of “formalism” as no longer a mere pejorative, but rather as a label for serious and complex efforts to determine the distinctively legal way that doctrinal categories and structures can and should guide the behavior of judges and citizens subject to law.
- For a nice, if slightly satiric, overview of this approach see Alexander Somek, Two Worlds of Legal Scholarship and the Philosophy of Law, in Common Law – Civil Law 141 (Nicoletta Bersier, Christoph Bezemek & Frederick Schauer eds., 2022).)
- For an overview of the New Legal Realism, and how it takes legal doctrine seriously (more seriously than the original legal realists), see, e.g., 1 The New Legal Realism (Elizabeth Mertz, Stewart Macaulay & Thomas W. Mitchell eds., 2016); Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz & Heinz Klug eds., 2021).
