AN INTERPRETATION AND (PARTIAL D OF LEGAL …：一种解释（部分D法律….pdf

AN INTERPRETATION AND (PARTIAL) DEFENSE
OF LEGAL FORMALISM
PAUL N. COX*
INTRODUCTION
The origin of this lecture lies in an observation. Specifically, I was struck by
a substantial similarity in the views of Grant Gilmore and of Friedrich Hayek.
What is striking in this observation is that Gilmore was a kind of legal realist.
As a realist his skepticism about law was expressed as an attack upon legal
Hayek, by contrast, is at least generally characterized as a legal
And what I view as Hayek’s very similar skepticism about law was
expressed as advocacy of legal formalism.
What is the nature of the skepticism that I, at least, view as common to both
of these eminent legal thinkers? At bottom, it is, both distrust of and distaste for
centralized, all encompassing legal direction. Gilmore put it this way:
As lawyers we will do well to be on our guard against any suggestion
that, through law, our society can be reformed, purified, or saved. The
function of law, in a society like our own, is altogether more modest and
less apocalyptic. It is to provide a mechanism for the settlement of
disputes in the light of broadly conceived principles on whose
soundness, it must be assumed, there is a general consensus among
Repeatedly in his work, Hayek makes what I believe is a substantially similar
point: “constructivist rationalism,” the belief that, by means of a “scientific” law,
society may be purposefully reconstructed, and human activity directed to serve
collectively determined goals, is a tragically false, dangerous and destructive
Gilmore identifies formalism with that myth. Hayek offers formalism as
* Centennial Professor of Law, Indiana University School of Law—Indianapolis. This
inaugural lecture was delivered on March 7, 2002, at the Indiana University School of
Law—Indianapolis.