I
can certainly agree with Allan's last comment, that an adequate statement
of the formalist position would take a book or more. Some brief comments
on why such a book is sorely needed, if that position is to be taken
seriously. It seems to me that Jason and Allan are attacking straw men.
Throughout,
they have suggested that the non-formalists (?informalists) acknowledge
no limits to the considerations that a court should take into account
- that we are "trying to make a better world" without reference to established
doctrine, that we want to "abolish[..] law or at least appellate courts",
and so on. Yet there is nothing in the posts to which they are replying
to support any such position. They are, I suppose, using a slippery
slope argument:- "If you people can take into account insurance (or
whatever), what is to stop you taking into account anything you choose?".
In fact, however, no such anarchy appears in the opposing argument,
no-one has been unwilling to set limits. It is simply that our limits
are broader than those allowed by the formalists, and that we are more
reluctant to dogmatise on what the limits should be.
Equally with separation-of-powers arguments. Nothing said against the
formalists denies that there is such a separation, or that there are
some jobs that judges can't or shouldn't do. Again, there is the false
argument "you must choose between the formalist position and complete
anarchy". In particular, does Allan *really* mean to argue that because
the executive does social research, and does it better than the judges
ever could, *therefore* the judiciary should ignore the products of
such research? This certainly reads like a non sequitur - I think the
book of which he speaks will need to be a long one if it justifies arguments
such as this.
There
are also repeated attempts to insinuate that infomalism is a modern
vice, that it departs from established tradition. Yet no serious historical
case to that effect has been made, and it is hard to see how it could
be made. In all periods, a certain amount of attention is paid to the
social consequences of doctrine - the amount varies and indeed the types
of consequences vary, but that is another matter. What we informalists
are arguing for is what some judges have always argued for; there is
no "golden age" of formalism to return to.
The formalists, therefore, are really not so different from the rest
of us as they would have us think. The real difficulty I have is not
that I reject the formalist case - I do not get to that stage. The difficulty
is in making sense of the formalist proposal. What does it *mean* to
judge matters simply as between the parties, ignoring other considerations?
Neither party is an island, and most lives can have only a limited meaning
without reference to other people. There is no such thing as a major
accident affecting *only* the injured and the injurer - others are necessarily
dragged in. To isolate the parties from the world in which they live,
to ignore all the other societal support mechanisms designed to deal
with their predicament - this is to encourage judges to ignore plain
facts, and the label "fiction" is quite properly applied to it.
