Relational Formalism, Linguistic Theory and Legal Construction

Legal formalism and legal relationalism are traditionally thought of as defining opposite poles of jurisprudential analysis. This study develops the notion of “relational formalism” as it emerges from practices of commercial law and from linguistic theory. As an interpretation of practice, relational formalism—although maintaining the precedence of formalist construction over functional analysis—does so while responding to practical concerns and interests entailed by relations. It argues that legal formalism needs not be an expression of positivistic commitments, and can be approached on relational grounds, and must respond to those. The study empirically analyzes a well-known problem of negotiable instruments to support both the tenability of relational formalism and its theoretical and practical fruitfulness. It then uses performative linguistics to sustain a relational construction of formalism. Finally, it claims that tacit judicial divergence over formalism, rather than doctrinal differences, sometimes explains conflicting outcomes in similar cases. I. Preface: Dogmatic and Relational Formalism II. Formalism in the Law of Negotiable Instruments III. Law or Practice? The Problem with Quasi Instruments IV. The Formalist Catch V. What Do Checks Do? A View From Speech Act Theory VI. Form or Reliance? Formalism in the Courts