Jeffrey A. Pojanowski

Faces of Formalism

Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. Yet with success have come uncertainty and dissatisfaction. Formalists and their critics observe that textualism and originalism can seem as open-ended as the purposive and dynamic methods they were supposed to replace. This Article tries to diagnose the source of this discontent. It does so by identifying two different faces of formalist interpretation: the formalism of authority—adherence to original sources of law—and the formalism of method—constraint through predictable, rule-bound interpretation. Defenses of formalism often assume these two paths to constraint run together, but they can come apart. The careful search for an authoritative source is not readily amenable to rules. At the same time, seeking certainty and impersonality through mechanical methods risks interpretive drift from original, authoritative norms.

Once we notice this tension, we see it everywhere in arguments about interpretive formalism: intentionalism versus public meaning, what kind of intentionalism, what kind of public meaning, the force of original expected applications, whether to treat interpretive method as law, and the centrality of rules over standards. Answers to these questions turn on how we reconcile or prioritize these two faces of formalism. It turns out that the standard contrasts between “form and substance,” or “form and function,” or “letter and spirit,” miss important parts of the picture. Different substantive visions about law and interpretation compete within the confines of form. Method formalism’s goals are more functional, while the spirit of authoritative formalism is less likely to confine itself to the letter. Although no synthesis should obscure either face of formalism entirely, the most plausible approach places the search for authority at the center of the practice.

Introduction

Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. At the same time, jurists and scholars today cannot seem to agree about what it means for an approach to be “formal.” There is basic agreement on a core principle that formalist interpretation should direct decision-making and constrain normative judgment about what the law ought to be. But beyond that, things get messy. In fact, recent works by formalists and their critics observe that textualism and originalism can seem as open-ended as the purposive and dynamic methods they were supposed to replace.1 1.See generally, e.g., Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 292–95 (2020) (noting that one of the goals of “early textualists” was to “constrain judicial discretion,” while highlighting that the textualism employed by some members of the Court today “carries an analogous risk of interpretive leeway”); Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1276 (2020) (arguing that “the Court’s textualist Justices have been quietly engaging in a form of purposive analysis”); James A. Macleod, Standard Textualism, 124 Mich. L. Rev. 661, 680–81 (2026) (“[M]odern pluralism’s recourse to extratextual factors may make it the more rule-like, discretion-constraining method.”); Andrew S. Oldham, On Inkblots and Truffles, 135 Harv. L. Rev. F. 154, 170 (2022) (“[W]e need more and more work that shows particular constitutional provisions have objectively determinate meanings based on rigorous analysis and academic debate over relevant sources of original meaning.”).Show More

For a less abstract setup of the problem, consider Bostock v. Clayton County.2 2.140 S. Ct. 1731, 1738–39 (2020).Show More Title VII of the Civil Rights Act of 1964 makes it “unlawful” for employers to discriminate against a person “because of such individual’s race, color, religion, sex, or national origin.”3 3.42 U.S.C. § 2000e-2(a)(1).Show More Writing for the majority, Justice Gorsuch held that the “ordinary public meaning of its terms at the time of its enactment” compelled the judgment that Title VII prohibits employment discrimination against gay and transgender persons.4 4.Bostock, 140 S. Ct. at 1738, 1741.Show More Justice Gorsuch rejected the objection that “few in 1964 would have expected Title VII to apply to” such discrimination.5 5.Id. at 1749.Show More He replied that such arguments “impermissibly seek[] to displace the plain meaning of the law in favor of something lying beyond it.”6 6.Id. at 1750.Show More That something, whether it be unwritten intention, purpose, or lurking policy preferences, is not the law.

Justice Alito, joined by Justice Thomas, dissented, claiming that the majority was engaging in “legislation” under the guise of interpretation.7 7.Id. at 1754 (Alito, J., dissenting, joined by Thomas, J.).Show More He likened the majority opinion to a pirate ship, smuggling in statutory updates under the false flag of textualism.8 8.Id. at 1755–56.Show More No reader in 1964, he objected, “would have thought” the statute bore the “exotic meaning” that Justice Gorsuch elicited through the implications of the language “because of ‘sex.’”9 9.Id. at 1771–72.Show More Justice Kavanaugh’s dissent objected that good textualism looks for the “ordinary meaning of phrases,” not the “literal meaning” of the words in a phrase taken separately.10 10.See id. at 1828 (Kavanaugh, J., dissenting).Show More Ordinary meaning draws on “relevant social and linguistic conventions” to “read the text in context.”11 11.Id. at 1825 (quoting John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) [hereinafter Manning, Absurdity Doctrine]).Show More He argued that the context of the 1964 enactment and a range of subsequent discrimination legislation show that “common parlance and common legal usage” foreclose the majority’s opinion.12 12.Id. at 1828–30, 1832–33.Show More

All three opinions claimed adherence to the Supreme Court’s governing mode of statutory interpretation: original public meaning textualism. Each opinion also claimed that those on the other side of the judgment were doing it wrong. We can multiply such examples beyond Bostock: Is tobacco a “drug” subject to FDA regulation? The literal terms of the Federal Food, Drug, and Cosmetic Act’s (“FDCA”) definitions indicate it is.13 13.See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 164 (2000) (Breyer, J., dissenting).Show More Yet an opinion joined by textualist Justices Scalia and Thomas held that inferences from the broader structure of the statutory regime and other tobacco-specific legislation compelled the opposite conclusion.14 14.See id. at 126 (majority opinion) (holding that “[s]uch authority is inconsistent with the intent that Congress has expressed in the FDCA’s overall regulatory scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA”).Show More Do the Eleventh Amendment’s protections extend only to suits against a state brought by the citizens of other states and nations? There are strong arguments, grounded in original public meaning of the constitutional text, that it is so limited.15 15.See, e.g., John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1740–49 (2004) [hereinafter Manning, Eleventh Amendment] (making that argument). For a collection of citations to such arguments, see Anthony J. Bellia Jr. & Bradford R. Clark,State Sovereign Immunity and the New Purposivism, 65 Wm. & Mary L. Rev. 485, 527 n.182 (2024).Show More At the same time, the Court has held repeatedly that the original meaning of the text, in light of its legal backdrops, means more.16 16.See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (explaining “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms” (alteration in original) (quoting Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991) (Scalia, J.))); Bellia & Clark, supra note 15, at 531 (“Although Seminole Tribe did not provide a comprehensive account of state sovereign immunity, the Court suggested that the constitutional basis of such immunity was independent of—and predated—the Eleventh Amendment.”).Show More The arguments here concern competing inferences not merely about the same textual evidence, but about what text and context count as good evidence for finding the law.

Recent scholarship on interpretive formalism follows suit. Professor Lawrence Solum contends that public meaning textualism cannot stop at bare semantic meaning, but must also account for the text’s richer pragmatic context.17 17.See generally Lawrence B. Solum, Pragmatics and Textualism, 33 J.L. & Pol’y 2, 7–9 (2025) [hereinafter Solum, Pragmatics and Textualism]. See also Saikrishna Bangalore Prakash, Spirit, 173 U. Pa. L. Rev. 937, 945 (2025) (arguing that “every sort of originalist should come to grips with spirit’s pervasive role” in Founding-era interpretation).Show More Professor Stephen Sachs has noted “originalists’ serene acceptance—or smug disregard, as their critics might say—of the difficulties of doing legal history or the frequent mistakes of prominent judges.”18 18.Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777, 779–80 (2022) [hereinafter Sachs, Standard and Procedure].Show More Sachs replies that if such a search leads to an answer that “is right about the law, then it’s right about the law, though it may be hard to carry out well.”19 19.Id. at 780.Show More There is no reason why “the correct approach” must “also be a practical one.”20 20.Id. at 792.Show More Others are less sanguine. Professor Tara Leigh Grove objects that sweeping in wide contextual evidence to define public meaning permits just the kind of judicial discretion that textualism was supposed to avoid.21 21.See Grove, supra note 1, at 292–95.Show More Judge Andrew Oldham worries that an originalism that hardly ever leads to ready answers may not be one worth defending.22 22.See Oldham, supra note 1, at 156 (“The best (dare I say only?) way to define and defend originalism against its critics is to show that some (dare I hope all?) provisions of the Constitution have determinate or ‘thick’ original meanings—that is, that we can find the true, genuine, and objectively correct meaning of a constitutional provision with greater ease than a hound blindly searching for a truffle.”).Show More Professor James Macleod offers the ironic observation that the purportedly formalist textualism at today’s Supreme Court looks much more like a law of standards, not a law of rules.23 23.Macleod, supra note 1, at 668 (arguing that “[t]he more strictly text-based the interpretation” in today’s Supreme Court, “the more standard-like the resulting legal content”).Show More

What are we to make of these disagreements? This Article tries to sort out the problem by taking a closer look at what interpretive formalism is for. Interpretive formalists share a common goal of constraint through conformity to an external rule or standard.24 24.See infra Part I.Show More But there are different ways of being constrained. One way—the formalism of authority—focuses on conforming to original sources of law.25 25.See infra Section I.A.Show More Another way—the formalism of method—conforms to a predictable, rule-bound approach to interpretation.26 26.See infra Section I.B.Show More Formalists often assume these two paths to constraint run together: normative arguments for methods like originalism and textualism both respect the authoritative choices of the people and are more manageable and predictable than freewheeling purposive or moral inquiries. Yet these two paths to constraint often, in fact, diverge. The basic reason is this: a careful search for an original, authoritative source is not amenable to mechanical methods, and interpretive simplicity risks interpretive drift from original, authoritative norms.27 27.See infra Part II.Show More

If we can no longer believe that authority and method support a unified approach to formalist constraint, we have to make sense of a fragmented world east of methodological Eden. Part of that is appreciating how so many neuralgic questions for formalists trace back to disagreements over whether to prioritize original authority or methodological clarity. In Bostock, for example, Justice Gorsuch’s adherence to the formalism of method led him to rule for the petitioner and accuse his context-friendly dissenters of backdoor purposivism, so to speak.28 28.See Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); Krishnakumar, supra note 1, at 1278 (contending that textualist jurists “at times engage in a form of backdoor purposivism, or at least speculation about legislative intent, that looks surprisingly similar to the intent speculation inherent to traditional purposivism”).Show More The dissenters’ allegiance to the formalism of authority led them to return the favor by characterizing Justice Gorsuch’s more algorithmic method as statutory updating on the sly.29 29.See Bostock, 140 S. Ct. at 1755–56 (Alito, J., dissenting).Show More More generally, understanding this tension within formalism illuminates a number of vexed topics in formalist circles, such as original intention versus original public meaning; if intentionalism, what kind; if public meaning, what kind; the role of original expected applications; whether interpretive method should be treated as law; and the role of rules and standards in formalist interpretation.

In the name of constraint, then, some formalist interpretation prioritizes authoritative sources and other practices emphasize method. In doing so, however, these contrasting approaches point to very different accounts of the meaning and goals of interpretive constraint. Each one also draws on different accounts of what law is and what it is for, even if these accounts are implicit. An understanding of constraint that focuses on authority is open to methodological complexity that would surprise the first wave of formalists. An account of constraint that prioritizes method points toward an understanding of authoritative sources very different from the theory from which it originated. It turns out, then, that the standard contrasts between “form and substance,” or “form and function,” or “letter and spirit,” miss important parts of the picture. Different substantive visions about the nature and purposes of law and interpretation compete within the confines of form. Method formalism’s goals are more functional, while the spirit of authoritative formalism is less likely to confine itself to the letter. Formalists, in the end, need to choose which understanding of constraint to prioritize in their interpretive methods. This Article contends that, while no new synthesis should obscure either face of formalism entirely, the most plausible reconstruction of interpretive formalism should place the search for authority at the center of the practice.

Two quick notes before starting. First, on scope: an article addressing statutory and constitutional interpretation assumes that both practices call for similar methods. I am inclined to think they do, but that could be wrong. Nevertheless, I treat them similarly for purposes of argument, particularly since many scholars and jurists discussed here do too. This focus might also be too narrow for ignoring contracts, wills, and trusts. I do not discuss them because I have less considered views about interpreting private-law instruments and, for better or worse, most of the work engaged here does not address them, either. In short, I am smoothing over complexities in an Article that is already long enough.

The second note is on relevance. What if you think formalism is bunk?30 30.Cf. Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 8 (2009) (“[O]riginalism . . . is not merely false but pernicious as well.”).Show More Just as there is little point in attending to a missive that seeks to unravel the mysteries of phlogiston, an anti-formalist reader might not want to bother here, either. That would be too quick. Even non-formalist theories give legal formality their due. Professors Henry Hart and Albert Sacks’s purposivism relies heavily on the original enactment and its context.31 31.See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1377–80 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).Show More For Professor William Eskridge, good, old-fashioned statutory text is a crucial segment of his interpretive “funnel of abstraction,” alongside other less formal dimensions.32 32.See William N. Eskridge, Jr., Dynamic Statutory Interpretation 55–56 (1994).Show More To the extent that legal formality plays a role in any approach to interpretation, interpreters face cognate problems confronting the more full-blooded formalist, albeit as a subdivision of a larger, more dynamic approach to reading law.

The Article proceeds as follows. Part I defines interpretive formalism in general and then sketches the two faces of formality in particular through examples and arguments from leading legal formalists. It then shows how formalist jurists often assume these competing approaches are compatible. Part II complicates that picture by explaining how these two paths to interpretive constraint do not always run in parallel. It then traces these complexities through a number of inter-formalist arguments about original intention, public meaning, expected applications, the law of interpretation, and the role of rules and standards. Part III takes stock, first by situating this dilemma in the recent history and conceptual apparatus of interpretive formalism. It then explains how these disagreements at the level of interpretive method are rooted in deeper tensions in moral arguments for legal formality more generally. It identifies the competing visions that prioritize authority or method, respectively, and offers a brief argument for why authority should anchor interpretive practice. A brief conclusion follows.

  1.  See generally, e.g., Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 292–95 (2020) (noting that one of the goals of “early textualists” was to “constrain judicial discretion,” while highlighting that the textualism employed by some members of the Court today “carries an analogous risk of interpretive leeway”); Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1276 (2020) (arguing that “the Court’s textualist Justices have been quietly engaging in a form of purposive analysis”); James A. Macleod, Standard Textualism, 124 Mich. L. Rev. 661, 680–81 (2026) (“[M]odern pluralism’s recourse to extratextual factors may make it the more rule-like, discretion-constraining method.”); Andrew S. Oldham, On Inkblots and Truffles, 135 Harv. L. Rev. F. 154, 170 (2022) (“[W]e need more and more work that shows particular constitutional provisions have objectively determinate meanings based on rigorous analysis and academic debate over relevant sources of original meaning.”). ↑
  2.  140 S. Ct. 1731, 1738–39 (2020). ↑
  3.  42 U.S.C. § 2000e-2(a)(1). ↑
  4.  Bostock, 140 S. Ct. at 1738, 1741. ↑
  5.  Id. at 1749. ↑
  6.  Id. at 1750. ↑
  7.  Id. at 1754 (Alito, J., dissenting, joined by Thomas, J.). ↑
  8.  Id. at 1755–56. ↑
  9.  Id. at 1771–72. ↑
  10.  See id. at 1828 (Kavanaugh, J., dissenting). ↑
  11.  Id. at 1825 (quoting John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) [hereinafter Manning, Absurdity Doctrine]). ↑
  12.  Id. at 1828–30, 1832–33. ↑
  13.  See Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 164 (2000) (Breyer, J., dissenting). ↑
  14.  See id. at 126 (majority opinion) (holding that “[s]uch authority is inconsistent with the intent that Congress has expressed in the FDCA’s overall regulatory scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA”). ↑
  15.  See, e.g., John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663, 1740–49 (2004) [hereinafter Manning, Eleventh Amendment] (making that argument). For a collection of citations to such arguments, see Anthony J. Bellia Jr. & Bradford R. Clark, State Sovereign Immunity and the New Purposivism, 65 Wm. & Mary L. Rev. 485, 527 n.182 (2024). ↑
  16.  See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (explaining “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms” (alteration in original) (quoting Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 779 (1991) (Scalia, J.))); Bellia & Clark, supra note 15, at 531 (“Although Seminole Tribe did not provide a comprehensive account of state sovereign immunity, the Court suggested that the constitutional basis of such immunity was independent of—and predated—the Eleventh Amendment.”). ↑
  17.  See generally Lawrence B. Solum, Pragmatics and Textualism, 33 J.L. & Pol’y 2, 7–9 (2025) [hereinafter Solum, Pragmatics and Textualism]. See also Saikrishna Bangalore Prakash, Spirit, 173 U. Pa. L. Rev. 937, 945 (2025) (arguing that “every sort of originalist should come to grips with spirit’s pervasive role” in Founding-era interpretation). ↑
  18.  Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777, 779–80 (2022) [hereinafter Sachs, Standard and Procedure]. ↑
  19.  Id. at 780. ↑
  20.  Id. at 792. ↑
  21.  See Grove, supra note 1, at 292–95. ↑
  22.  See Oldham, supra note 1, at 156 (“The best (dare I say only?) way to define and defend originalism against its critics is to show that some (dare I hope all?) provisions of the Constitution have determinate or ‘thick’ original meanings—that is, that we can find the true, genuine, and objectively correct meaning of a constitutional provision with greater ease than a hound blindly searching for a truffle.”). ↑
  23.  Macleod, supra note 1, at 668 (arguing that “[t]he more strictly text-based the interpretation” in today’s Supreme Court, “the more standard-like the resulting legal content”). ↑
  24.  See infra Part I. ↑
  25.  See infra Section I.A. ↑
  26.  See infra Section I.B. ↑
  27.  See infra Part II. ↑
  28.  See Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); Krishnakumar, supra note 1, at 1278 (contending that textualist jurists “at times engage in a form of backdoor purposivism, or at least speculation about legislative intent, that looks surprisingly similar to the intent speculation inherent to traditional purposivism”). ↑
  29.  See Bostock, 140 S. Ct. at 1755–56 (Alito, J., dissenting). ↑
  30.  Cf. Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1, 8 (2009) (“[O]riginalism . . . is not merely false but pernicious as well.”). ↑
  31.  See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1377–80 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). ↑
  32.  See William N. Eskridge, Jr., Dynamic Statutory Interpretation 55–56 (1994). ↑

Reading Statutes in the Common Law Tradition

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters often claim the Anglo-American common law heritage supports their approach to statutory interpretation, and that formalism is an unjustified break from that tradition. Many formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters, especially at the federal level, should no longer understand themselves as bearers of the common law tradition.

Thus, Judge Guido Calabresi’s case for judicial updating of outmoded legislation presents itself as A Common Law for the Age of Statutes, while Justice Scalia celebrates how interpretive formalism imposes discipline on Common-Law Courts in a Civil Law System. This dichotomy is not unique to the federal context. Judith Kaye, writing as Chief Judge of the New York Court of Appeals, rejected a Scalia-style formalism based on her court’s role as a “keeper[] of the common law.” By contrast, Michigan Supreme Court Chief Justice Robert Young Jr., a textualist, rejects Chief Judge Kaye’s approach because statutory interpretation is “not a branch of common-law exegesis.” If anything, rhetoric on common law and statute is more dramatic at the state level, with Chief Judge Kaye offering paeans to “the common law, that ‘golden and sacred rule of reason,’” while Chief Justice Young likens the common law to a “drunken, toothless ancient relative” who has overstayed his welcome.

Contemporary debate in statutory interpretation offers a choice between either continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. As with much conventional wisdom, this framework captures a good deal of truth. Nevertheless, those who accept this neat frame, including myself in past work, miss an important part of the picture. As this Article will argue, formal theories of interpretation like textualism, which today generally distance themselves from the common law tradition, can claim support in that heritage. Furthermore, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more nuanced understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation—namely their continuity with our common law legal tradition. More broadly, we need not understand the debate between formalists and their critics as a disagreement about the common law tradition’s continued validity; rather, it concerns which interpretation of that tradition best suits a modern, complex polity.

To establish these points, this Article takes up central ideas that classical common lawyers held about legislation, interpretation, and the legal system to show how these notions recommend formal, faithful agency in statutory interpretation. The central relevant feature of classical common law thought is its participants’ understanding of their practice as the disciplined refinement and embodiment of a polity’s customs and beliefs. Law, in a common law system, rose up from the practices and beliefs of the people, rather than descending in systematic form from the will of a ruling cadre. This understanding unified the common law justification for law developed in adjudication and legislation alike. In fact, the common law method of adjudication—with its reactive and incremental development of law through structured argument—anticipates the formal, rule-laden, and nonsystematic manner in which American legislatures today translate popular norms and preferences into statutes. Common law adjudication and common law legislation pursue similar ends in analogous fashion.

Advocates of nonformal statutory interpretation take this congruence as a cue for courts to depart from faithful agency in the development of statutory regimes. This standard, antiformalist move is a misapplication, or at least a controversial reading, of the common law tradition itself. Common law legislation by its nature is often a product of untidy compromises necessary to secure supermajority support, and is rooted in reasoning that is difficult for outsiders to reconstruct after the fact. If legislation is a modern iteration of common law lawmaking, dynamic interpreters who seek to update or smooth the rough corners of statutes resemble classical common lawyers’ archrivals: philosophers and royalists who sought to rationalize the untidy warrens of common law doctrine. Like those academic lawyers who sought to privilege their isolated reasoning over the shared wisdom of the common law, a dynamic interpreter puts herself in the position not only of a legislator, but a legislature, whose translation of public views and practices into concrete norms she as an individual cannot replicate. By contrast, classical common law lawyers contended their lay competitors’ natural reason was inferior to the disciplined, shared “artificial reason” of the common law in identifying and integrating the common customs of the people. Interpretive formalists respect the artificial reason of common law legislation when refusing to upset awkward legislative compromises or update statutes to comply with contemporary values.

In this light, the central disagreement between formalists and their opponents is an argument within the common law tradition about the deference courts owe to the legislature, an institution that also identifies and translates social norms into common—shared—law. An interpretive formalist can see the legislature as the culmination of the common law tradition, not its nemesis. Accordingly, while such formalists need not reject judicial development of common law in the absence of legislative direction, they defer to reasonably clear statutory norms out of respect for the legislature’s superior and inimitable process of forging shared norms. To be clear, the formalist argument is a development of the classical common law tradition, not a secret history. Nevertheless, the mindset of the interpretive formalist coheres with central ideas in classical common law theory and can be seen as the natural development of a tradition that has increasingly linked law with popular custom and consent. In fact, given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the tradition to survive.

One final note on scope: This work leaves for another day the role of administrative agencies in statutory interpretation and the common law tradition. To some, agencies are today’s true practitioners of the common law. To others, they represent an anathematic return to the Star Chamber. Unpacking this analysis’s implications for the fourth branch of government is neither obvious nor trivial and deserves a separate work.

The Article will proceed as follows. Part I will catalog the received wisdom that our common law heritage presses against formal approaches and in favor of more dynamic methods. Part II will offer a fresh look at the relationship between the common law and legislation, arguing that important figures in the common law tradition championed parliamentary legislation and understood it as an important source of common law. The common law, in fact, plays a central role in a broader conception of law that views law as ascending from the people, rather than descending from a select few. Legislation by assembly, like common law adjudication, aspires to identify and channel popular custom into formal law.

Part III will explicate a theory of legislation as a form of common law. It picks out key features of classical common law theory—the “artificial reason of the law” and its development—and explains how they are manifest not only in adjudication, but also in the style of legislation by American assemblies. Part IV will unpack the interpretive implications of legislation in common law style. In particular, it identifies important breaks between today’s dynamic statutory interpreters and the common law tradition, while also highlighting unappreciated affinities between that heritage and more formal approaches to legislation. Part V will step back to underline mutually reinforcing features of the common law tradition and statutory formalism. From this broader perspective, the statutory formalism’s deference appears a faithful development of the common law tradition and an advance on the more juriscentric versions championed by dynamic interpreters.

Redrawing the Dividing Lines Between Natural Law and Positivism(s): A Commentary on Priel’s “Toward Classical Legal Positivism”

Anglo-American jurisprudence, before it insulated itself in conceptual analysis and defined itself in opposition to broader questions, was properly a “sociable science,” to use Professor Postema’s phrase from his symposium article. And, in part due to the exemplars of history, so it may become again. By drawing on Bentham and Hobbes, Professor Dan Priel’s Toward Classical Positivism points forward toward more fruitful methods of jurisprudence while illuminating the recent history and current state of inquiry. His article demonstrates the virtues and promise of a more catholic approach to jurisprudence. It also raises challenging questions about the direction to take this rediscovered path, and I am not sure I always agree with his suggested answers. Any misgivings I have about Priel’s particular approach, however, do not diminish my appreciation; I find even the points of disagreement to be live and meaningful, and that itself is refreshing.

©Virginia Law Review Association. All rights reserved.