Miller on Formalism, Legality, and the Rule of Law

Paul Miller  has posted to SSRN Formalism, Legality, and the Rule of Law.  The abstract provides:

This chapter examines the relationship between formalist interpretive methodology and ideals of legality and the rule of law. In other work, I have argued that the structural formality of law and deliberatively formalistic legal reasoning are closely associated with legality and the rule of law. Here, I make the case that association is both conceptual and normative. The very ideas of legality, and of the rule of law, are such as to imply the formality of law and the necessity of deliberatively formalistic engagement with the guidance it supplies. In turn, a limited set of values that belong per se to legality and the rule of law attach by implication to legal form and legal formalism. Should a case need to be made for the law’s reliance on form, for its expectation of deliberative formalism, and/or for sophisticated scholarly formalism, one can build it through appeal to the values advanced by the achievement of legality in comportment with rule of law baselines.

That said, all varieties of formalism engage with extant law and its posited morality. As a matter of methodological choice, sophisticated scholarly formalists focus on interpreting the law as found, and on the public justification(s) given for posited law by lawmakers. This means that one must be mindful of taking the bad with the good. The practical reasonableness of our laws, and of the reasons given in public justification for them, is a contingent thing. It turns on more than the law’s responsiveness to the values of legality and the rule of law. One ought to be aware of the moral limits of legal form as well as the moral and methodological limits of legal formalism. I argue that the moral limits of legal form can be discerned only if due attention is paid to the values of practical reason, of moral right and duty, of political morality, of justice, and of the good. And I suggest that the methodological limits of scholarly formalism are (a) implied by awareness of the moral limits (relative to the moral promise) of legal form; and (b) recognition of the ways in which assessment of the soundness of law points beyond the juridical to normative moral and political theory, and to empirical examination of the likely or actual effectiveness of the normative guidance supplied by law.