Formalism and Legalism and Post-Modernism

Niel Clements, "Built. Lacking " (2009)

Speaking of the Rectification of Names -- which I do from time to time -- and the continuing redefinition of the most basic terms to suit whatever political agenda one (or one's group) may have, I should say something about Formalism and Legalism, both of which seem to be heavily relied on in our Post-Modern political systems as rationales for belief, foundations for ideologies, and excuses for both action and inaction.

Formalism is more of an arts reform movement than a political philosophy, but its basic tenets are just as appropriate to politics as to the arts. The main idea of Formalism is that the form (or structure) of the work is more important than the content. A variation asserts that the process is more important than the product -- or outcome.

Legalism is a doctrine found in theology and Chinese political philosophy that asserts that law and the rule of law are the fundamental factors in salvation and the proper governance of the state.

These are very simple concepts that somehow I thought everybody knew and understood -- regardless of the origins of the terms -- and apparently I was wrong. Not for the first time, either.

Another term I throw in the mix a lot is "Post-Modern" because I see it as the current social and political fashion.

Post-Modernism -- as I use the term -- refers to the tendency to regard all reality as relative and subject to interpretation according to political ideology and/or agenda. This should make both Formalism and Legalism near ideological impossibilities, because there is no "truth," thus there is no "law," and all "form" and "process" are nothing but interpretations of actions and outcomes that are subject to dispute. And yet time and again, Formalism and Legalism are at the foundations of Post-Modern descriptions and interpretations of events and results.

Both Formalism and Legalism are vital parts of the Post-Modern world-view because they can be subjected to infinite interpretations based entirely on one's own perspective -- political, religious, or what have you.

If you believe that what you do is not as important as how you do it, or that the product of action matters less than the action itself, you are living a deeply Post-Modern version of "what matters most."

If you believe that the Law and the Rule of Law (that is, the observance of Law regardless of its content) is more important than justice, or that the enactment and observance of Law is by definition justice, and that you personally (or someone) have the power and authority to interpret Law to produce Justice, you are living a deeply Post-Modern version of "rule by the scholars."

With neither facts nor truth but only form/structure and rule/process by which to understand society and politics, one is left flailing for substance and sanity, because there isn't any in the Post-Modern Formalist and Legalist world view. One frets continually over the least important matters, one argues endlessly over the meaning of "meaning," and one is paralyzed by indifference, since nothing actually matters in any case.

One constantly seeks heroes to correct the perceived imbalances, to restore proper governance, to adhere to the imprecise and incomprehensible rules of the Law and the Prophets, to interpret for the rest of us what is and what should be, to define and dispense justice, and of course to reveal the Face of God.

And when no heroes are forthcoming, one despairs, one rages, and in a frenzy of anger, one continually repeats one's actions in the hopes of one day producing the results one seeks, heroes and all.

It doesn't work. It doesn't work any more than Chicago School Economics work to produce "something better" -- unless you accept the notion that everything is abstraction, nothing is real, and "better" is simply relative to someone else's "worse."

We live in those interesting times we were warned about.

Formalism and Legalism versus Justice and Sir Thomas More

I ended yesterday's post on this note:

[Note: I would ask those who use the "Giving the Devil the Benefit of the Law" scene in "A Man for All Seasons" as justification for putting terrorism suspects in Federal Court whether they believe Justice was done in the trial of Sir Thomas More. If so, how? And if not, why not? It is the fundamental issue here. And it is, perhaps, what the theme of this whole blog has been.]

The point being, of course, that Sir (later Saint) Thomas More had all the advantages of Law and extensive Due Process as it was conceived at the time, and many, many, many opportunities to recant, confess, sign, -- to do his liege lord's bidding, in other words. And he refused. Adamantly. He refused on the basis of Law, he refused on the basis of Custom, he refused on the basis of Honor, he refused on the basis of Process, he refused on the basis of Conscience and Higher Law, he refused on the basis of the Rights and Privileges of an Englishman, a Gentleman, and on and on.

Yet all the forms of the Court were followed, perhaps too exactly, and all the legal niceties were observed, and Sir Thomas was beheaded at the Tower for his trouble, and the trouble he had given the King. The charge was High Treason; the crime was Sir Thomas's failure to obey.

And I asked, "Was Justice done?"

Perhaps the answer is another question: "For whom?"

The King had a desire, and under the circumstances, a necessity to assert his power and authority over his subjects especially with regard to marriage (his own) and the succession to the Crown. In doing so, he broke with the long-held British royal custom of submission to Papal authority in matters spiritual as well as temporal. In doing that, he violated both custom and law; by his command, law was brought into conformity with his desire. Sir Thomas's refusal to submit to this King's law was the source of the charge of High Treason, which ultimately resulted in his trial and execution. This rid the realm of one dissenter from the rule and authority of the King to assert his power over God's Law -- as it was understood at the time -- but there would be more, oh so many more, and in due time, there would come a Civil War in Britain over such matters as the authority of the Crown over the lives and religion of its subjects, among other things.

Was Justice done in Sir Thomas's case?

If you believe that following the forms and the due processes of the Law is the definition of Justice, then Justice was done. Even if the outcome was wrong in some higher sense, Sir Thomas was not subjected to the arbitrary authority of a lawless monarch.

If you believe that Justice is to be found in the actions taken to fulfill the requirements of the Rules of the Game, in other words, then you cannot but agree that Justice was indeed done in the case of Sir Thomas More.

That was certainly King Henry's belief, sorry as he was about the outcome and all that.

But Sir Thomas was arrested, held and tried on trumped up charges and he was convicted on false witness. Surely that cannot be Justice even to a formalist and legalist for whom all things boil down to following correct procedure and applying the law as it is written and received. But if the charges are trumped up and the witness is false, how is the Law to know that? How is a follower of Legalism and Formalism to know that? And if there is no such knowledge, how can there be injustice when the forms of the law and the rules of procedure are followed?

We know now that the charges were trumped up and the witness was false, and so we can say now that perhaps there was some injustice done in the case of Sir Thomas More, but was it known at the time? And if it was, who knew? Did the Court know? If the Court did not know, then wasn't the judgment of the Court correct according to both Law and Procedure, and wasn't the sentence just under the law at the time?

And yes, Sir Thomas lost his head, but there is nothing to be done about that now, and besides, the Church later canonized him, so he got a kind of comeuppance -- if not exactly Justice -- in the end anyway, didn't he?

Sir Thomas wrote about Justice in his Utopia, and as we consider the differences between formalism and legalism on the one hand, and Justice on the other, we might do well to consider Sir Thomas's own thoughts on the matter.

From Utopia: [A long excerpt]

They have but few laws, and such is their constitution that they need not many. They very much condemn other nations, whose laws, together with the commentaries on them, swell up to so many volumes; for they think it an unreasonable thing to oblige men to obey a body of laws that are both of such a bulk and so dark as not to be read and understood by every one of the subjects.


They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters and to wrest the laws; and therefore they think it is much better that every man should plead his own cause, and trust it to the judge, as in other places the client trusts it to a counsellor. By this means they both cut off many delays, and find out truth more certainly: for after the parties have laid open the merits of the cause, without those artifices which lawyers are apt to suggest, the judge examines the whole matter, and supports the simplicity of such well-meaning persons, whom otherwise crafty men would be sure to run down: and thus they avoid those evils which appear very remarkably among all those nations that labor under a vast load of laws. Every one of them is skilled in their law, for as it is a very short study, so the plainest meaning of which words are capable is always the sense of their laws. And they argue thus: all laws are promulgated for this end, that every man may know his duty; and therefore the plainest and most obvious sense of the words is that which ought to be put upon them; since a more refined exposition cannot be easily comprehended, and would only serve to make the laws become useless to the greater part of mankind, and especially to those who need most the direction of them: for it is all one, not to make a law at all, or to couch it in such terms that without a quick apprehension, and much study, a man cannot find out the true meaning of it; since the generality of mankind are both so dull and so much employed in their several trades that they have neither the leisure nor the capacity requisite for such an inquiry.


Some of their neighbors, who are masters of their own liberties, having long ago, by the assistance of the Utopians, shaken off the yoke of tyranny, and being much taken with those virtues which they observe among them, have come to desire that they would send magistrates to govern them; some changing them every year, and others every five years. At the end of their government they bring them back to Utopia, with great expressions of honor and esteem, and carry away others to govern in their stead. In this they seem to have fallen upon a very good expedient for their own happiness and safety; for since the good or ill condition of a nation depends so much upon their magistrates, they could not have made a better choice than by pitching on men whom no advantages can bias; for wealth is of no use to them, since they must so soon go back to their own country; and they being strangers among them, are not engaged in any of their heats or animosities; and it is certain that when public judicatories are swayed, either by avarice or partial affections, there must follow a dissolution of justice, the chief sinew of society.


The Utopians call those nations that come and ask magistrates from them, neighbors; but those to whom they have been of more particular service, friends. And as all other nations are perpetually either making leagues or breaking them, they never enter into an alliance with any State. They think leagues are useless things, and believe that if the common ties of humanity do not knit men together, the faith of promises will have no great effect; and they are the more confirmed in this by what they see among the nations round about them, who are no strict observers of leagues and treaties. We know how religiously they are observed in Europe, more particularly where the Christian doctrine is received, among whom they are sacred and inviolable; which is partly owing to the justice and goodness of the princes themselves, and partly to the reverence they pay to the popes; who as they are most religious observers of their own promises, so they exhort all other princes to perform theirs; and when fainter methods do not prevail, they compel them to it by the severity of the pastoral censure, and think that it would be the most indecent thing possible if men who are particularly distinguished by the title of the "faithful" should not religiously keep the faith of their treaties. But in that newfound world, which is not more distant from us in situation than the people are in their manners and course of life, there is no trusting to leagues, even though they were made with all the pomp of the most sacred ceremonies; on the contrary, they are on this account the sooner broken, some slight pretence being found in the words of the treaties, which are purposely couched in such ambiguous terms that they can never be so strictly bound but they will always find some loophole to escape at; and thus they break both their leagues and their faith. And this is done with such impudence, that those very men who value themselves on having suggested these expedients to their princes, would with a haughty scorn declaim against such craft, or, to speak plainer, such fraud and deceit, if they found private men make use of it in their bargains, and would readily say that they deserved to be hanged.


By this means it is, that all sorts of justice passes in the world for a low-spirited and vulgar virtue, far below the dignity of royal greatness. Or at least, there are set up two sorts of justice; the one is mean, and creeps on the ground, and therefore becomes none but the lower part of mankind, and so must be kept in severely by many restraints that it may not break out beyond the bounds that are set to it. The other is the peculiar virtue of princes, which as it is more majestic than that which becomes the rabble, so takes a freer compass; and thus lawful and unlawful are only measured by pleasure and interest. These practices of the princes that lie about Utopia, who make so little account of their faith, seem to be the reasons that determine them to engage in no confederacies; perhaps they would change their mind if they lived among us; but yet though treaties were more religiously observed, they would still dislike the custom of making them; since the world has taken up a false maxim upon it, as if there were no tie of nature uniting one nation to another, only separated perhaps by a mountain or a river, and that all were born in a state of hostility, and so might lawfully do all that mischief to their neighbors against which there is no provision made by treaties; and that when treaties are made, they do not cut off the enmity, or restrain the license of preying upon each other, if by the unskilfulness of wording them there are not effectual provisos made against them. They, on the other hand, judge that no man is to be esteemed our enemy that has never injured us; and that the partnership of the human nature is instead of a league. And that kindness and good-nature unite men more effectually and with greater strength than any agreements whatsoever; since thereby the engagements of men's hearts become stronger than the bond and obligation of words.

One cannot read Sir Thomas's considerations of Justice in his Utopia without recognizing that he is condemning both Legalism and Formalism as means to achieve Justice, and that our own Founders were more than a little influenced by Sir Thomas's vision of what the Law -- and what Justice -- should be in an ideal state and society.

But still the question remains, was Justice done in the trial and execution of Sir Thomas More? If so, how? If not, why not?