On the Dangers of Legal Formalism, from the Perspective of Iraq
As anyone who is even casually aware of my earlier posts, I do consider myself and my work heavily influenced by the traditions of American Legal Realism, but for the most part the debate tends to be an academic one. There are, however, dangers to my mind to more simplistic and extreme types of legal formalism that I witness firsthand in Iraq.
In Iraq, the idea that the law, and the interpretation of the law, is first and foremost a political and ideological matter is largely dismissed as not only as fallacious, but also as dangerous. It is a world where no neutrality is possible, no answer is right, rules protect none, but rather all is left to the whims of people in black robes to muddle about as they like without any meaningful constraint. This of course is not very far from traditional complaints of legal realism, whatever the merits of such complaints, and I suppose I can see why people find such comfort in some austere, blind neutral presence known as "law" that people are supposed to discover rather than invent.
Most of us who consider ourselves in the realist camp don't talk of formalism as dangerous so much as naive ("normatively appealing and descriptively preposterous" was how a colleague of mine when I was at Columbia once described Ron Dworkin). That is, we aren't saying it's good or bad that law in creation and interpretation is politically and ideologically motivated, only that it is. But what is wrong, one may ask, with failing to recognize it, with living within the myth of a formal law that lies somewhere pure and untouched waiting to be discovered by strict application of neutral interpretive principles?
In Iraq, I think there are dangers. Most prominently, issues that are clearly political and ideological in nature are raised as technical ones--by all sides. So then what happens is one side sets forth its argument ("oil and gas may be controlled by regional authorities for the following reasons"), and backed by a pretty decent legal position. Then the other side gets up and makes a pretty good argument on the other side, using similar sources and coming to precisely the opposite conclusion.
To most of us, this is unremarkable. Only the strictest formalist would think it never happens. Yet Iraq is filled with the strictest formalists. They keep providing their arguments, marshaling their sources, presenting them with increasing levels of eloquence and eventually desperation and can't understand why the other side is too biased to see the clearly correct answer. Ideological bias, it seems, like Swift's description of satire, is a glass where the viewer sees all but himself. It is harder to see the other side when you think there is only one correct answer. Because if there has to be one correct answer, then of course your side has to be the correct one. Which means the other side is wrong. That the other side might just be looking at it differently--she's of an ethnic minority and is scared of majority rule that will result in some form of persecution--doesn't work in this mindset. It's not a question of what she thinks, it's a question of the LAW, and the LAW properly interpreted means something else. Similarly for the minority, the perspective of the majority member (he wants to make sure government works efficiently and that the will of the people is largely respected in organizing government) isn't viewed as a valid reason to come to the proper interpretation. He's reading the LAW wrong, which must mean he secretly hates the minority. Otherwise why would he persist in his error.
This is even extended into law creation where even the American public, formalist as it is in its understanding of law, would never place it. Americans generally think politicians with their biases make law but that judges are these neutral automatons who just pronounce it. Many of the Iraqi elite think somehow much (not all) of lawmaking is bound up in technical minutiae as well. That's not to say that all ways of drafting laws are equal, clearly some are better than others, but whether or not to give a Prime Minister emergency powers, and of what sort, or to define a capital's boundaries, and how, or to grant regional autonomy, and in what form, is quite often not a question of technical expertise, but rather of simple pure political preference. Sometimes Iraqis agree with this assessment, depending on the law or the dispute in question, but often they don't. The other side just isn't drafting it right, they are making mistakes, and technically it's just poor. The real problem isn't technical though, it's purely ideological. Specific examples, alas, will have to wait for a later date.
To be clear, and to pull back from a more extreme position, I am not saying that formalism is the only, or even the principal, factor involved in disputes of this sort. clearly the inability of different sides to recognize the legitimacy of the other is a very serious problem in any place of ethnic or sectarian tension. Clearly, such tension is not a product of legal formalism, in fact it exists even in societies with a near total absence of law. But still, I do think a formal approach to the law helps to exacerbate the problem among the elites at least, because it leads them to conclude there is a right answer, and the other side is terribly misguided in not seeing it. Once you can see that both sides are right, that all sides are right, that there is no law to find, only one to create, by humanity, with all its foibles and biases, it becomes all that much easier to understand the other side's point of view.
HAH
In Iraq, the idea that the law, and the interpretation of the law, is first and foremost a political and ideological matter is largely dismissed as not only as fallacious, but also as dangerous. It is a world where no neutrality is possible, no answer is right, rules protect none, but rather all is left to the whims of people in black robes to muddle about as they like without any meaningful constraint. This of course is not very far from traditional complaints of legal realism, whatever the merits of such complaints, and I suppose I can see why people find such comfort in some austere, blind neutral presence known as "law" that people are supposed to discover rather than invent.
Most of us who consider ourselves in the realist camp don't talk of formalism as dangerous so much as naive ("normatively appealing and descriptively preposterous" was how a colleague of mine when I was at Columbia once described Ron Dworkin). That is, we aren't saying it's good or bad that law in creation and interpretation is politically and ideologically motivated, only that it is. But what is wrong, one may ask, with failing to recognize it, with living within the myth of a formal law that lies somewhere pure and untouched waiting to be discovered by strict application of neutral interpretive principles?
In Iraq, I think there are dangers. Most prominently, issues that are clearly political and ideological in nature are raised as technical ones--by all sides. So then what happens is one side sets forth its argument ("oil and gas may be controlled by regional authorities for the following reasons"), and backed by a pretty decent legal position. Then the other side gets up and makes a pretty good argument on the other side, using similar sources and coming to precisely the opposite conclusion.
To most of us, this is unremarkable. Only the strictest formalist would think it never happens. Yet Iraq is filled with the strictest formalists. They keep providing their arguments, marshaling their sources, presenting them with increasing levels of eloquence and eventually desperation and can't understand why the other side is too biased to see the clearly correct answer. Ideological bias, it seems, like Swift's description of satire, is a glass where the viewer sees all but himself. It is harder to see the other side when you think there is only one correct answer. Because if there has to be one correct answer, then of course your side has to be the correct one. Which means the other side is wrong. That the other side might just be looking at it differently--she's of an ethnic minority and is scared of majority rule that will result in some form of persecution--doesn't work in this mindset. It's not a question of what she thinks, it's a question of the LAW, and the LAW properly interpreted means something else. Similarly for the minority, the perspective of the majority member (he wants to make sure government works efficiently and that the will of the people is largely respected in organizing government) isn't viewed as a valid reason to come to the proper interpretation. He's reading the LAW wrong, which must mean he secretly hates the minority. Otherwise why would he persist in his error.
This is even extended into law creation where even the American public, formalist as it is in its understanding of law, would never place it. Americans generally think politicians with their biases make law but that judges are these neutral automatons who just pronounce it. Many of the Iraqi elite think somehow much (not all) of lawmaking is bound up in technical minutiae as well. That's not to say that all ways of drafting laws are equal, clearly some are better than others, but whether or not to give a Prime Minister emergency powers, and of what sort, or to define a capital's boundaries, and how, or to grant regional autonomy, and in what form, is quite often not a question of technical expertise, but rather of simple pure political preference. Sometimes Iraqis agree with this assessment, depending on the law or the dispute in question, but often they don't. The other side just isn't drafting it right, they are making mistakes, and technically it's just poor. The real problem isn't technical though, it's purely ideological. Specific examples, alas, will have to wait for a later date.
To be clear, and to pull back from a more extreme position, I am not saying that formalism is the only, or even the principal, factor involved in disputes of this sort. clearly the inability of different sides to recognize the legitimacy of the other is a very serious problem in any place of ethnic or sectarian tension. Clearly, such tension is not a product of legal formalism, in fact it exists even in societies with a near total absence of law. But still, I do think a formal approach to the law helps to exacerbate the problem among the elites at least, because it leads them to conclude there is a right answer, and the other side is terribly misguided in not seeing it. Once you can see that both sides are right, that all sides are right, that there is no law to find, only one to create, by humanity, with all its foibles and biases, it becomes all that much easier to understand the other side's point of view.
HAH
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