PrepTest 94+, Section 3, Question 2

Two competing demands we make of the law create a troubling conflict that contributes to the law's frequent failure to deliver what we imagine it should. On one hand, we want a formalist system of law—one that is rational and rule-based, and that promises to deliver us from arbitrariness, irrationality, and caprice in a coherent, reasoned way. It should be a system that we are capable of understanding and generally able to depend on so that we can order our affairs with the knowledge that none of us will be individually disadvantaged before it. In short, it is imperative that the law provide a universal ordering principle that is rational, consistently applied, and blind to the differing social and economic situations of those who come before it.

On the other hand, however, we want the law to be connected to social reality and sensitive to the particular contexts out of which individual cases arise. After all, a body of law is of little use if it delivers justice that is merely procedural as opposed to substantive—i.e., if it cannot deliver results in individual cases that we can recognize as fair and equitable. It need not, of course, be the outcome that we, as individual parties, would want; someone must, after all, lose in an adversarial system. But it must at least be an outcome that we, as parties and observers, can accept as legitimate and justifiable according to some common understanding of fairness and justice. Cases should not, for example, be decided based strictly on the application of unalterable rules without regard for the equity or reasonableness of the outcome. Such extreme formalism, applied neutrally and without prejudice but also without sensitivity to the social contexts of those involved, speaks little to the substance of justice. And it is imperative that the legal system deliver substantive justice in individual cases—that it derive from and relate to subjective experience as well as objective reason.

It seems, then, that we are left with an irreconcilable tension arising from the competing imperatives of formalism and substantive justice. Any attempt to accommodate both principles within the legal system is bound to fail for systemic reasons: formalism cannot produce substantive justice until there is a reasonable degree of social equality. Without this equality, formalism may very well perpetuate injustice; no universal rules can guarantee otherwise. If we cannot aspire to the significant degree of social and economic equality that is required for formalism to be compatible with the achievement of substantive justice, then formalism should be abandoned so that the law can adapt to social reality. The attempt to reconcile formalism and substantive justice within a legal system situated in conditions of social inequality is a misguided project.

Two competing demands we make of the law create a troubling conflict that contributes to the law's frequent failure to deliver what we imagine it should. On one hand, we want a formalist system of law—one that is rational and rule-based, and that promises to deliver us from arbitrariness, irrationality, and caprice in a coherent, reasoned way. It should be a system that we are capable of understanding and generally able to depend on so that we can order our affairs with the knowledge that none of us will be individually disadvantaged before it. In short, it is imperative that the law provide a universal ordering principle that is rational, consistently applied, and blind to the differing social and economic situations of those who come before it.

On the other hand, however, we want the law to be connected to social reality and sensitive to the particular contexts out of which individual cases arise. After all, a body of law is of little use if it delivers justice that is merely procedural as opposed to substantive—i.e., if it cannot deliver results in individual cases that we can recognize as fair and equitable. It need not, of course, be the outcome that we, as individual parties, would want; someone must, after all, lose in an adversarial system. But it must at least be an outcome that we, as parties and observers, can accept as legitimate and justifiable according to some common understanding of fairness and justice. Cases should not, for example, be decided based strictly on the application of unalterable rules without regard for the equity or reasonableness of the outcome. Such extreme formalism, applied neutrally and without prejudice but also without sensitivity to the social contexts of those involved, speaks little to the substance of justice. And it is imperative that the legal system deliver substantive justice in individual cases—that it derive from and relate to subjective experience as well as objective reason.

It seems, then, that we are left with an irreconcilable tension arising from the competing imperatives of formalism and substantive justice. Any attempt to accommodate both principles within the legal system is bound to fail for systemic reasons: formalism cannot produce substantive justice until there is a reasonable degree of social equality. Without this equality, formalism may very well perpetuate injustice; no universal rules can guarantee otherwise. If we cannot aspire to the significant degree of social and economic equality that is required for formalism to be compatible with the achievement of substantive justice, then formalism should be abandoned so that the law can adapt to social reality. The attempt to reconcile formalism and substantive justice within a legal system situated in conditions of social inequality is a misguided project.