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Legal Formalism, Laissez-Faire, and Sociological Jurisprudence

 

Legal Formalism

The acceptance of the case method and a scientific approach to law were part and parcel of broader intellectual trends associated with the term legal formalism. The movement from legal instrumentalism to legal formalism was "uneven in pace and coverage," and the Civil War became a rough dividing point for these differing approaches to the law. 24

Instrumentalism was the older path, and its heyday was in the antebellum era. Instrumentalists argued that law should be applied as a tool to promote economic growth without resort to regulation. Judges engaged in instrumental activity by using their common law authority to fashion doctrines that expedited and enhanced private business activity and entrepreneurship generally. Instrumentalism was a flexible, adaptive, and freewheeling view of the law that relied extensively on the states' police powers. This instrumentalist approach never died away, either on the bench or in state legislatures and Congress, whose members invoked the law to promote and, later, to regulate economic activity.

Formalism, on the other hand, sounded a retreat from the concentration on results and emphasized instead formal procedures that led to a result. Formalism was anti- legislative, favorable to judicial review, and symptomatic of the increasingly wordy state constitutions that appeared in the late nineteenth century. As a doctrine it held that

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law had universal truths rather than transitory legislation as its base. The law was a whole body of knowledge that scientific legal thinkers could discern and properly trained judges could apply. Formalism, however, did not imply inactivity; to the contrary, it gave judges reason to act. Appellate judges were supposed to be oracular, to propound impartially a set body of doctrine. When legislative activity, carried out in the name of popular and partisan majorities, interfered with formal legal doctrine, then judges were supposed to strike it down mechanically. In this sense, judge-made law was superior to legislative enactments, which were sporadic and molded by popular whim rather than being based on enduring scientific truths. Legal formalists stressed the importance of federal courts because their appointed judges held tenure during good behavior, freeing them, unlike elected state appellate judges, to find and apply legal truths.

The concept of legal formalism connected smoothly with the concept of laissez- faire after the Civil War. Protective and regulatory legislation, for example, became a special object of attack. Christopher Tiedeman, one of the era's most influential law writers, observed in 1886 that "[g]overnmental interference is proclaimed and demanded everywhere as a sufficient panacea for every social evil which threatens the prosperity of society. Socialism, Communism, and Anarchism are rampant throughout the civilized world." 25

Thomas M. Cooley, Tiedeman, and John Forrest Dillon combined laissez-faire and legal formalism in such a way as to equip appellate judges with a thorough rationale on which to limit legislative action. Cooley was chief justice of the Michigan Supreme Court from 1864 through 1885, when the electorate rejected him because of his close attachment to railroad interests. Cooley was a great judge and one of the nineteenth century's most prolific writers of legal treatises. His most important work was Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Nation. Never has the title of a book revealed more about its contents. First published in 1868, and appearing in twelve subsequent revised editions, Constitutional Limitations was the most authoritative treatise written about the relationship between state legislative and state and federal judicial power. Cooley's message was simple: legislatures were to steer clear of any regulatory efforts, and the courts, when legislatures did act, were bound to strike down laws as unconstitutional that violated the free use of property. Such a view was reactionary, in as much as it placed property rights above human interests as defined by legislative authority. But Cooley was also a spokesman for civil liberty, arguing that the individual use of property was a sacred right and that judges were duty-bound to protect it.



At the end of the century, Christopher Tiedeman echoed Cooley's ideas. A professor of law at the University of Missouri and a prolific author, Tiedeman's reputation rested most fully on A Treatise on the Limitations of Police Power in the United States ( 1886). He went even further than Cooley, denouncing any governmental regulation, even usury laws that limited the interest charged by lenders. Tiedeman believed that state legislatures should invoke their police powers only to "provide for the public order and personal security by the prevention and punishment of crimes and trespasses." 26 Justice David J. Brewer of the U.S. Supreme Court summarized Tiedeman's sentiments when he wrote in an 1892 decision: "The paternal theory of government is to me odious. The utmost liberty to the individual, and the fullest possible

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protection to him and his property, is both the limitation and the duty of government." 27

John Forrest Dillon was a judge of the Iowa Supreme Court ( 1862-1868) and the author of the late nineteenth century's most authoritative work on municipal bonds, Law of Municipal Corporations ( 1872). This arcane branch of law was nonetheless important in an era when cities clamored for the legal means by which to encourage economic development only to see their efforts culminate in debt levels that they could not manage. Dillon, who later became a federal circuit court judge and a highly successful Wall Street lawyer, gave national stress to formalism and laissez-faire. He spread the gospel that national judicial constraint on city bond policies was essential when state-elected judiciaries failed to control cities and towns. "Dillon's Rule" held that cities were totally subject to the will of their states and that the federal courts were fully empowered to enforce these requirements when the states refused to do so.

 


Date: 2015-01-29; view: 956


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