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there are many issues which have been confused, but I can only disentangle some. The charge of formalism has been leveled both at the "positivist" legal theorist and at the courts, but of course it must be a very different charge in each case. Leveled at the legal theorist, the charge means that he has made a theoretical mistake about the character of legal decision; he has thought of the reasoning involved as consisting in deduction from premises in which the judges' practical choices or decisions play no part. It would be easy to show that Austin was guiltless of this error; only an entire misconception of what analytical jurisprudence is and why he thought it important has led to the view that he, or any other analyst, believed that the law was a closed logical system in which judges deduced their decisions from premises. On the contrary, he was very much alive to the character of language, to its vagueness or open character; he thought that in the penumbral situation judges must necessarily legislate, and, in accents that sometimes recall those of the late Judge Jerome Frank, he berated the common-law judges for legislating feebly and timidly and for blindly relying on real or fancied analogies with past cases instead of adapting their decisions to the growing needs of society as revealed by the moral standard of utility. The
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villains of this piece, responsible for the conception of the judge as an automaton, are not the Utilitarian thinkers. The responsibility, if it is to be laid at the door of any theorist, is with thinkers like Blackstone and, at an earlier stage, Montesquieu. The root of this evil is preoccupation with the separation of powers and Blackstone's "childish fiction" (as Austin termed it) that judges only "find," never "make," law.
But we are concerned with "formalism" as a vice not of jurists but of judges. What precisely is it for a judge to commit this error, to be a "formalist," "automatic," a "slot machine"? Curiously enough the literature which is full of the denunciation of these vices never makes this clear in concrete terms; instead we have only descriptions which cannot mean what they appear to say: it is said that in the formalist error courts make an excessive use of logic, take a thing to "a dryly logical extreme", or make an excessive use of analytical methods. But just how in being a formalist does a judge make an excessive use of logic? It is clear that the essence of his error is to give some general term an interpretation which is blind to social values and consequences (or which is in some other way stupid or perhaps merely disliked by critics). But logic does not prescribe interpretation of terms; it dictates neither the stupid nor intelligent interpretation of any expression. Logic only tells you hypothetically that if you give a certain term a certain interpretation then a certain conclusion follows. Logic is silent on how to classify particulars-and this is the heart of a judicial decision. So this reference to logic and to logical extremes is a misnomer for something else, which must be this. A judge has to apply a rule to a concrete case-perhaps the rule that one may not take a stolen "vehicle" across state lines, and in this case an airplane has been taken.37 He either does not see or pretends not to see that the general terms of this rule are susceptible of different interpretations and that he has a choice left open uncontrolled by linguistic conventions. He ignores, or is blind to, the fact that he is in the area of the penumbra and is not dealing with a standard case. Instead of choosing in the light of social aims, the judge fixes the meaning in a different way. He either takes the meaning that the word most obviously suggests in its ordinary nonlegal context to ordinary men, or one which the word has been given in some other legal context, or, still worse, he thinks of a standard case and then arbitrarily identifies certain features in it-for example, in the case of a vehicle, (1) normally
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used on land, (2) capable of carrying a human person, (3) capable of being self-
propelled-and treats these three as always necessary and always sufficient conditions for the use in all contexts of the word "vehicle," irrespective of the social consequences of giving it this interpretation. This choice, not "logic," would force the judge to include a toy motor car (if electrically propelled) and to exclude bicycles and the airplane. In all this there is possibly great stupidity but no more "logic," and no less, than in cases in which the interpretation given to a general term and the consequent application of some general rule to a particular case is consciously controlled by some identified social aim.
Decisions made in a fashion as blind as this would scarcely deserve the name of decisions; we might as well toss a penny in applying a rule of law. But it is at least doubtful whether any judicial decisions (even in England) have been quite as automatic as this. Rather, either the interpretations stigmatized as automatic have resulted from the conviction that it is fairer in a criminal statute to take a meaning which would jump to the mind of the ordinary man at the cost even of defeating other values, and this itself is a social policy (though possibly a bad one); or much more frequently, what is stigmatized as "mechanical" and "automatic" is a determined choice made indeed in the light of a social aim but of a conservative social aim. Certainly many of the Supreme Court decisions at the turn of the century which have been so stigmatized38 represent clear choices in the penumbral area to give effect to a policy of a conservative type. This is peculiarly true of Mr. Justice Peckham's opinions defining the spheres of police power and due process.
But how does the wrongness of deciding cases in an automatic and mechanical way and the rightness of deciding cases by reference to social purposes show that the utilitarian insistence on the distinction between what the law is and what it ought to be is wrong? I take it that no one who wished to use these vices of formalism as proof that
the distinction between what is and what ought to be is mistaken would deny that the decisions stigmatized as automatic are law; nor would he deny that the system in which such automatic decisions are made is a legal system. Surely he would say that they are law, but they are bad law they ought not to be law. But this would be to use the distinction, not to refute it; and of course both Bentham and Austin used it to attack judges for failing to decide penumbral cases in accordance with the growing needs of society.
Clearly, if the demonstration of the errors of formalism is to show the