Formalism Versus Substance

This column, while focused on the Arpaio pardon, contains a very good point about the perils of formalism (boldface mine):

Predictably, outrage swiftly followed the pardon. Pointing both to the crime for which Arpaio was convicted and the fact that Trump did not make use of the Justice Department’s normal machinery for considering pardons, many have insisted that the president’s action flouts the rule of law. Some have even argued that it’s outright unconstitutional.

But that’s the wrong way to criticize the Arpaio pardon. The Constitution grants the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The power is broad and (except for the impeachment carve-out) unqualified.

More importantly, one can easily imagine situations in which defiance of a court order is wholly justified, and we would want the pardon power to be available in those cases…

Many people, myself included, would find that pardon not only unobjectionable, but indeed, laudatory. Formally, however, that hypothetical process looks similar to the process Trump used: A president, without waiting for the usual Justice Department procedures to run their course, pardons an ideological ally who had been convicted of contempt of court for using state power in defiance of a federal court order.

This does not, however, suggest that the Arpaio pardon was acceptable. Instead, it points to the limits of thinking about the issue formally. Formal reasoning is seductive, because it holds out the false promise of neutrality — we don’t have to talk about messy issues such as racism, xenophobia or state brutality; instead, we can just dwell on whether normal procedures were followed and whether the president was insufficiently deferential to a judge. We can call those considerations “the rule of law,” because that’s something everyone can get behind

So how should we talk about the Arpaio pardon? Substantively. More specifically, we should talk about why, of all the people with criminal records in this country, Trump chose to make Arpaio his first pardonee.

I see this obsession with formalities too often, especially on the left-ish side of things. Consider the recent arguments over anti-fascist violence. Rather than arguing hypotheticals about whether violence is ever the solution, the question is does anti-fascist violence serve the purpose of stopping fascism–and at what cost? I’ve argued that, historically, there have been examples of successful anti-fascist violence, but that those circumstances currently do not hold. But unless you’re a doctrinaire pacifist or student of the philosophy of non-violence–views which I respect, even if I do not agree with them–there are circumstances where you would probably use violence to stop fascists.

While this is an extreme example, so much discussion, especially online, revolves around formalism and procedural, rather than consequential, arguments, with the most annoying example being the concerns over ‘norms.’ Rather than being shocked by rule (or ‘rule’) breaking, focus on what concrete consequences result from that rule (or norm) breaking. That will be far more effective, than going on about rules and formalities, especially as many Americans believe those very rules need to be broken.

A more trivial example is the silly slippery slope arguments, such as “if you tear down Robert E. Lee statues, what will be next? George Washington?” Nope. Because Washington, while highly flawed, isn’t Lee.

It’s almost like sometimes principles conflict and we have to use judgement or something…

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3 Responses to Formalism Versus Substance

  1. Morbeau says:


  2. itsathought2 says:

    There is a pretense that many people get into is that something is wholly defined by the formalism (or morality or whatever) rather than by the messy reality it of being law, morality, practical reality and emotion. All the world is a huge knot of those things. And all of them are pulling at the knot.

    But of course, the thing that defines most people’s views is their emotional identity with the issue. And they just pull whatever string will support their own emotional “gut” feeling. So even those who define the issues around formalism are really just using the string that supports their gut.

    The hard part is to say – I hate that he did this, it’s morally horrific, but he had every legal right to do it. We are helpless then. So people scream that it must be illegal, thus pulling a string that isn’t actually going to untangle the knot, because it’s not connected to it by reality. They would be better facing the it’s just morally horrific and legal. At least they are pulling a knot that is connected to the problem, even if it won’t untangle it.

  3. I think this is a necessary consequence of media objectivity. So much of what’s annoying in our national discussion stems from the need of journalists to find an objective voice.

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