PrepTest 94+, Section 3, Question 3
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.
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.
The passage most strongly supports which one of the following statements about a formalist approach to the law?
It tends to be too detailed in its language and is not sufficiently reliant on broad principles.
It may satisfy the demands of objective reason and yet fail to connect to social reality.
It produces substantive justice in individual cases if it is applied neutrally and without prejudice.
Its tension with substantive justice arises from their differing approaches to deductive reasoning.
It can be reconciled with substantive justice by formalizing a recognition of social inequalities.
Explanations
This question asks us which answer choice the passage most strongly supports regarding the formalist legal approach.
The author isn't inherently against the formalist approach. They even highlight some of the desirable outcomes associated with that point of view. But, ultimately, the author notes how the formalist approach has some fundamental incompatibility with the substantive justice, namely that the formalist approach is likely to be socially tone deaf in its strict adherence to the letter of the law.
While I can't predict this answer verbatim, I'm certain the correct answer will sound something like, "It works in principle but it struggles when social complexity enters the picture."
Let's find it.
No, we don't have evidence that the author thinks this about the formalist approach.
Yes. This sums it up nicely. The author suggests at multiple points in the passage that the formalist approach, while adequate to execute the law on a more theoretical level, struggles to execute the law when pitted against the goals of substantive justice. That is, the formalist approach isn't bad. It juststruggles where the rubber meets the road.
No way. The author's view is very much the opposite.
Nah. This had me in the first half but lost me at "from their differing approaches to deductive reasoning." We have no evidence that our author thinks these two theoretical approaches are incompatible based on how they view / apply deductive reasoning. We don't even touch that concept in the passage.
Nope. This lost me at "can be reconciled." Our author explicitly states that these cannot be reconciled at the start of the third paragraph.
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