5
1
9780226774954
By Arthur L. Stinchcombe
All right reserved.
ISBN: 0226774961
CHAPTER ONE - INTRODUCTION: WHY IS FORMALITY SO UNPOPULAR?
Perhaps the subtitle for this book should be: "How and Why Formality Works, If and When it Does." This means that the book is about how one can build formalities so they work, and tend them so they continue to work. That of course does not mean that I think formality works all the time. It would not be complicated enough to write a book about how it can work, if it always worked. And much of the time formalities are designed to be rituals, and not to work. Very often they are perverted from their intended purpose to serve corrupt purposes for which they were not designed. I will try to remind the reader from time to time that I do not believe formality always works.
This book is akin to one that explains how a healthy liver works without mentioning cirrhosis, or diabetes, or liver cancers, or jaundice, or blocked bile ducts. A physiologist discussing how a liver must look if it is to serve its functions would hardly be considered a hopeless utopian--a Pollyannish functionalist--merely because he or she did not write about the pathologies. It is however a much more serious matter for a sociologist, even one who has written at somelength about how formalities were invented by former slaveowners after emancipation in the British Empire so as to reconstruct a system as close to slavery as possible without the formality of owning slaves (Stinchcombe 1995, chap. 10). These formalities were invented to evade the implications of the formalities dictated by parliament. Spanish colonials were more explicit about it, in the phrase: "I submit, but do not obey," when they thought a law unwise.
Because the gut reaction of sociologists is that formality is all a fraud, I am led to write a book emphasizing that formality can work and that one can tell whether formality satisfies the criteria that can make it work.
Sometimes it is built to work for purposes I think are basically bad ones, such as the rightlessness of aliens in American immigration law, which I analyze in chapter 6. My purpose there is to show that formal rightlessness can work for the purposes for which it was designed, even though I would want no part of the designing. It is as if an oncologist were to write about why and how a cancer of the liver could satisfy the purpose of growing and metastasizing; chapter 6 analyzes a cancer on due process of law.
Formality is central to the distinction between law and the rest of social life, and the controversy over formality is prevalent within law. Formality used to be a central criterion for the differences between "formal organizations" and other kinds of social structures. Our naming or definitional conventions no longer emphasize the formality of organizations, because in our theories the formality has become epiphenomenal.
I believe that much of the difficulty we have in dealing with formality is that we lack a nuanced definition of what we are talking about, a typology of its varieties, and a theory of the mechanisms by which it is caused and has its effects. In particular, I think Max Weber--and the whole tradition following or supplementing him that contrasts formality with informal social organization--got it wrong. I propose to study several cases of formalization, by which I mean creating an abstraction in such a way that it can be taken as a "fact," so that most people, most of the time, do not have to go behind it. My purpose is to develop the theory of formalization, by which I mean analysis of the conditions under which formalization as I will define it occurs, the effects that people hope for from it that sometimes follow it, and its pathologies. Most of chapter 2 is an essay on the definition of formality and formalization. In this introduction, I write more briefly about why it is important to get clear about what formality is and about some of the difficulties with defining it in the way we have done in the past. I also outline the chapters that follow.
My basic argument then is that formality is unpopular because it has been misconceived as consisting mainly of its pathologies, while its virtues have been thought to obtain only in those rare cases where substance does not matter. I argue that a clearer understanding of how formality works to accurately and usefully reflect substance will allow us to see, in a variety of specific instances in the book, that at its best it does better with the substance than we could do informally.
THE IMPORTANCE OF FORM
I suspect that law (or mathematics) would be impossible without formalization, but to explain why, for example, "informal law" will not serve we have to build the theory of form so that it does not necessarily contradict substance. If the formality of law is useful, it must be useful because it substantively achieves something. When form does not represent substance, formality is a pathology, will not have the desired effects, and so will, in the long run, be unstable.
I believe, then, that the best intuition to follow is that formality and formalization have to do with abstraction so as to preserve what is essential in the substance. When formalization works well, its purpose then is the same as the purpose of all the substance. But it has been transformed into an abstraction (for example, the blueprints of chapter 3) so that that substance (say, the client's intentions about a building) can govern the activities of others (contractors and craftsmen and craftswomen). Further, that formality of the blueprint is written into a contract so that, if that governing of others' activities goes wrong, the difficulty can be taken into court to have it put right (or bargaining can go on in the shadow of what would happen in court). Just as gasoline, jet fuel, lubricating oil, and Vaseline are not the opposite of crude oil but refined versions for specialized uses, so formality, when it works, is not the opposite of the informal substance but a refined version (or versions) of it. I think understanding formalization is central to understanding the relation of law, or mathematics, or formal organization to the rest of social life. My argument is that when law (or mathematics, or organization) works, it is the same substance as the rest of social life, but formalized for one purpose or another.
The basic dependent variable I want to explain is "formalization," a process. Unless formality is seen as active, as a direction of change, one cannot understand how it can grasp a rapidly changing reality. One main kind of formalization is creating a socially valid rule, such as a law, that applies a set of abstract requirements (for example, "Thou shalt not kill," with the appropriate exceptions for accident, war, self-defense, in the course of duty as a policeman, abortion in the first trimester, and so on) to a large number of concrete cases. Formalization entails the development of an abstraction of a large amount of concrete data (as a "guilty of murder" verdict and a sentence are abstractions of the evidence brought to court, certifying among other things that the various excuses for violating the commandment are not satisfied), arrived at in such a way that further social action (such as a course of action by the penal system) is governed by that abstraction, without in general going back to the original data. "Abstraction," "governed by," and "not going behind" are matters of degree, and so "formalization" is a variable; from this point of view, the tablets brought down from the mountain were not fully formalized, with all the excuses and adaptations to a changing reality of "Thou shalt not kill" that God later allowed to Moses.
The analysis of formalization begins in this chapter with defining Our beginning comment on formalization in this chapter will first define the different sorts of informality that formality is contrasted to. Then in chapter 2 I analyze abstractions by which formalized action is governed to see what features they must have to be good for governing, and what features that the government of social action must have to make good use of good abstractions so developed. Some of the features of abstractions that make them useful for government (for example, "correctability") require that sometimes one has to "go behind" the abstraction in order to improve it. In its turn, that means that, to be a good representation of the substance, a process of formalization has to have provisions to allow people to go behind the formalities to help improve their grasp of the substance. It is of the essence of formality that most people most of the time do not have to go behind the formality to the substance, because someone else can be trusted to have done so already and to do so again when necessary.
It is exactly this substantive rationality embedded in the formalization (and reformalization) process that Max Weber quite missed in his analysis of "rationalization," and so led us astray. In particular, in his sociology of law, he tried to characterize formality (in the sense of certainty of the meaning of a rule in the law) without paying attention to formalized debate about that meaning (for example, in appeals courts). My basic argument in this case (analyzed in more detail in chapter 4) is that certainty of meaning amounts only to various current resting places in a process of improving that certainty by substantive debate, in appeals courts, in legislatures, or in administrative implementing regulations. I undertake a reanalysis of Weber on rationalization and formalization in the final chapter.
But this means that if sociologists want to contrast the formal meaning of the law with, for example, substantive justice, they have to outthink the appeals court judges and the legislators who make their living improving the fit between law and substantive justice. Or (perhaps more often) such sociologists have agreed with a dissenting opinion that one of these improvers of formalities has already expressed. But for a sociologist to have a minority opinion on how to make the formality just is not the same as the sociologist being on the side of substance against formality. We must not confuse unjust formality (by some sociologist's standard) with formality ineffective for the standard of justice it holds itself to.
The same applies to organizations: before a sociologist can show in publications how to improve formality for the substantive purpose of the organization, the formality is very likely to have changed in the direction he or she recommends. If not, the investigator may find, after a close look at his or her interviews, the recommendation appearing in the opinion of someone in the organization who failed to get it adopted. But to understand this dilemma, it is better to set up a typology of ways of being informal that have different relations to the formality, so as to keep it straight.
THREE KINDS OF INFORMALITY
Formality is, of course, the high end of a variable, so its meaning depends on what it is contrasted to. Part of the problem here is that "informality" has a strong meaning in sociology, Habermasian philosophy, and much of the humanities: a world of warm personal relations subverting formal purposes and rules, a world of feuding and uncontrolled power struggles in the back room, a world of sexual harassment, or of the fraud and force or white collar crime, of union busting, and of conspiracies in restraint of trade. By the traditional sociological argument, informality is to formality as machine politics, with its warm personal relations within ethnic neighborhoods and corruption in appointments and contracts, is to "good government."
Much of the informality in this book is quite the opposite--loose joints between different kinds of formality. In chapter 4, for example, we take up the fact established by Karl Llewellyn (1960) that in about 9 percent of appeals cases the appeals court decides on the basis, not of the reason for the decision in the precedent, but of a reason in the "other reasons" (obiter dicta) given as legitimate in the precedent. That is, there is still, even in the decision to overturn a formality, reasoning that was there in the precedent. The appeals court does not go all the way back to the analysis of raw social life to find the reasons for its decision, but only back to what appeals courts of the past gave as legitimate reasons. But the precedent has mentioned more than one valid reason that applies in cases like the one the precedent decided. Thus the precedent itself is (or at least becomes, in the text of the opinion of an appeals court) a mixture of different formalities.
It is then at the discretion of the appeals court, in the case being appealed this time, to choose among those previous reasons. The appeals court cannot, except in extraordinary circumstances, go "outside the law" for its reasons. But the precedent had not only the ratio decidendi, the deciding reason, in its case, but also numerous other reasons that applied to the previous court's analysis of that case. The form of the "informality" or "discretion" of the appeals court is to appeal to a different part of the formalities of the precedent, in some 9 percent of the cases. In most of the other 91 percent, the appeals court simply affirms the precedent. "Overturning" a precedent is very rare; distinguishing the present case from the case of the precedent, using another of the reasons applicable from the precedent, is the usual "informality" of the appeals court authorities. I want to distinguish the kind of informality that chooses among embedded formalities by a somewhat informal process from anarchical formality that pays no attention to the system.
I call this sort of informality "informally embedded formality." That is, there is nothing un-abstract or un-governing about the appeals court overturning a lower court decision. Appeals are almost invariably more abstract than the case being appealed--and have more impact on the overall government of activity by the, possibly new, legal abstractions-- than any particular lower court case is likely to have. But the contingency of an appeal is in the informal background of the lower court, in the anticipated process of an attorney deciding to appeal and drafting the writ of error, and of that writ's being accepted by the appeals court. That is, the writ of error is much of the time part of a process of formalizing a new distinction in legal reasoning, based on previous legal reasoning. Further, in the relevant 9 percent of the cases, the appeals court is not committed to following the formality of the precedent, but instead has decided it is willing to go behind those formalities to see if they are right. So the embedding of the higher court's authority in the lower court process is informal, even though according to my definition given above, the appeals court is nearer to the essence of the formality of the system as a whole: it is improving that system so it can be formal in more different situations without as much uncertainty.
Informally embedded formality has two main forms. The first is the hierarchical form that we see in the lower court-appeals court example, where the embedded formality provides for review by "superiors" who have greater authority in any particular case, and wider authority over many cases of different kinds. The second is a division of labor form that we see in an electrical contractor taking on the responsibility of meeting the electrical standards of the building code, of the Underwriters' Laboratories testing of the components, and of the standards of the skill, workmanship, and technical adequacy embedded in the world of electricians, electrical workers' unions, electrical engineers, and electrical contractors' associations. The authority is embedded and not formally governed by the architect because it is specialized, and can be better embedded correctly in the design of the building by letting the electrical contractor and electrical engineer, and ultimately the electrician, manage the details.
The appeals court example leads immediately to another sort of informality that occupies much of this book and that I call "formality being constructed." The book's basic idea is that formality works best when it is based on an abstraction of reality that is effective for the purpose at hand. Either of two sorts of informality tend to happen, however, when the abstraction proves to be out of accord with the situation: one that constructs a more formal, or better, formal system, or one that simply patches up the mistakes that formality would lead to. In this sense, informality can take the form of discussion, experimentation, distinguishing cases, writing memos (or briefs to a higher court)--attempts to locate the problems in the abstraction and discern what change or adaptation could grasp the substance sufficiently well for further action--all in the interest of improving the abstraction. Or informality can take the form of deviant action aimed at achieving the ends that the abstraction failed to achieve.
For example, an essay examination for a degree, common in the British higher educational system, is intended to abstract from the competencies of the student a grade summarizing his or her overall competence. If a student has missed the instruction that said to answer one out of three questions, and has answered all three, then each question might be said to measure one-third of the relevant competence, and their sum would be an adequate measure. But the abstraction for grading the examination did not give any instruction of how to grade an answer that covers one-third of what is expected, nor how to add three inadequate answers to get a whole one. A university might invent an informal method of dealing with the particular problem at hand, inventing a retest because the test as it turned out was not really the test they had intended, or asking the examiners to pretend that they had asked for three answers and grade it on that basis. One sort of informality, then, is making a patch on the system to get the right result for the case at hand, but not modifying the system of abstractions for future formality.
Or the university might try to invent a routine for the future that would force students first to copy the question they intend to answer, so that particular problem would not happen again. The ritualistic (and stupid) answer is simply to ignore the fact that the candidate took a different test than the others, and to pretend that the answer to the first question (because it was "chosen" first) is an adequate abstraction of the talent and learning being measured. Any of these is an informal response to the inadequacy of the abstraction for the particular case in hand; but some are true to the purpose of the original abstraction, others are not. Some address the error with the purpose of getting the right answer in this case; others with the purpose of improving the examination procedure henceforth.
Continues...
1. Introduction: Why Is Formality So Unpopular?
2. A Redefinition of the Concept of Formality
3. Legal Formality and Graphical Planning Languages
4. Certainty of the Law: Reasons, Situation-Types, Analogy, and Equilibrium
5. The Social Structure of Liquidity: Flexibility in Markets, States, and Organizations
Bruce G. Carruthers and Arthur L. Stinchcombe
6. Formalization of Rightlessness in Immigration Law and Administration
7. Formalizing Epistemological Stratification of Knowledge
8. Conclusion: The Varieties of Formality
References
Index
When Formality Works: Authority and Abstraction in Law and Organizations available in Hardcover
When Formality Works: Authority and Abstraction in Law and Organizations
by Arthur L. Stinchcombe
Arthur L. Stinchcombe
- ISBN-10:
- 0226774953
- ISBN-13:
- 9780226774954
- Pub. Date:
- 09/15/2001
- Publisher:
- University of Chicago Press
When Formality Works: Authority and Abstraction in Law and Organizations
by Arthur L. Stinchcombe
Arthur L. Stinchcombe
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Overview
In this innovative exploration of the concept of formality, or governing by abstraction, Arthur Stinchcombe breathes new life into an idea that scholars have all but ignored in recent years.
We have come to assume that governing our social activities by advance planning—by creating abstract descriptions of what ought to happen and adjusting these descriptions as situations change—is not as efficient and responsive as dealing directly with the real substance of the situation at hand. Stinchcombe argues the opposite. When a plan is designed to correct itself and keep up with the reality it is meant to govern, it can be remarkably successful. He points out a wide range of examples where this is the case, including architectural blueprints, immigration law, the construction of common law by appeals courts, Fannie Mae's secondary mortgage market, and scientific paradigms and programs.
Arguing that formality has been misconceived as consisting mainly of its defects, Stinchcombe shows how formality, at its best, can serve us much better than ritual obedience to poorly laid plans or a romantic appeal to "real life."
We have come to assume that governing our social activities by advance planning—by creating abstract descriptions of what ought to happen and adjusting these descriptions as situations change—is not as efficient and responsive as dealing directly with the real substance of the situation at hand. Stinchcombe argues the opposite. When a plan is designed to correct itself and keep up with the reality it is meant to govern, it can be remarkably successful. He points out a wide range of examples where this is the case, including architectural blueprints, immigration law, the construction of common law by appeals courts, Fannie Mae's secondary mortgage market, and scientific paradigms and programs.
Arguing that formality has been misconceived as consisting mainly of its defects, Stinchcombe shows how formality, at its best, can serve us much better than ritual obedience to poorly laid plans or a romantic appeal to "real life."
Product Details
| ISBN-13: | 9780226774954 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 09/15/2001 |
| Edition description: | 1 |
| Pages: | 218 |
| Product dimensions: | 6.20(w) x 8.90(h) x 0.90(d) |
About the Author
Arthur L. Stinchcombe is a professor emeritus of sociology at Northwestern University. He is the author of the award-winning books Constructing Social Theories and Information and Organization.
Read an Excerpt
When Formality Works: Authority and Abstraction in Law and Organizations
By Arthur L. Stinchcombe
University of Chicago Press
Copyright © 2001 Arthur L. StinchcombeAll right reserved.
ISBN: 0226774961
CHAPTER ONE - INTRODUCTION: WHY IS FORMALITY SO UNPOPULAR?
Perhaps the subtitle for this book should be: "How and Why Formality Works, If and When it Does." This means that the book is about how one can build formalities so they work, and tend them so they continue to work. That of course does not mean that I think formality works all the time. It would not be complicated enough to write a book about how it can work, if it always worked. And much of the time formalities are designed to be rituals, and not to work. Very often they are perverted from their intended purpose to serve corrupt purposes for which they were not designed. I will try to remind the reader from time to time that I do not believe formality always works.
This book is akin to one that explains how a healthy liver works without mentioning cirrhosis, or diabetes, or liver cancers, or jaundice, or blocked bile ducts. A physiologist discussing how a liver must look if it is to serve its functions would hardly be considered a hopeless utopian--a Pollyannish functionalist--merely because he or she did not write about the pathologies. It is however a much more serious matter for a sociologist, even one who has written at somelength about how formalities were invented by former slaveowners after emancipation in the British Empire so as to reconstruct a system as close to slavery as possible without the formality of owning slaves (Stinchcombe 1995, chap. 10). These formalities were invented to evade the implications of the formalities dictated by parliament. Spanish colonials were more explicit about it, in the phrase: "I submit, but do not obey," when they thought a law unwise.
Because the gut reaction of sociologists is that formality is all a fraud, I am led to write a book emphasizing that formality can work and that one can tell whether formality satisfies the criteria that can make it work.
Sometimes it is built to work for purposes I think are basically bad ones, such as the rightlessness of aliens in American immigration law, which I analyze in chapter 6. My purpose there is to show that formal rightlessness can work for the purposes for which it was designed, even though I would want no part of the designing. It is as if an oncologist were to write about why and how a cancer of the liver could satisfy the purpose of growing and metastasizing; chapter 6 analyzes a cancer on due process of law.
Formality is central to the distinction between law and the rest of social life, and the controversy over formality is prevalent within law. Formality used to be a central criterion for the differences between "formal organizations" and other kinds of social structures. Our naming or definitional conventions no longer emphasize the formality of organizations, because in our theories the formality has become epiphenomenal.
I believe that much of the difficulty we have in dealing with formality is that we lack a nuanced definition of what we are talking about, a typology of its varieties, and a theory of the mechanisms by which it is caused and has its effects. In particular, I think Max Weber--and the whole tradition following or supplementing him that contrasts formality with informal social organization--got it wrong. I propose to study several cases of formalization, by which I mean creating an abstraction in such a way that it can be taken as a "fact," so that most people, most of the time, do not have to go behind it. My purpose is to develop the theory of formalization, by which I mean analysis of the conditions under which formalization as I will define it occurs, the effects that people hope for from it that sometimes follow it, and its pathologies. Most of chapter 2 is an essay on the definition of formality and formalization. In this introduction, I write more briefly about why it is important to get clear about what formality is and about some of the difficulties with defining it in the way we have done in the past. I also outline the chapters that follow.
My basic argument then is that formality is unpopular because it has been misconceived as consisting mainly of its pathologies, while its virtues have been thought to obtain only in those rare cases where substance does not matter. I argue that a clearer understanding of how formality works to accurately and usefully reflect substance will allow us to see, in a variety of specific instances in the book, that at its best it does better with the substance than we could do informally.
THE IMPORTANCE OF FORM
I suspect that law (or mathematics) would be impossible without formalization, but to explain why, for example, "informal law" will not serve we have to build the theory of form so that it does not necessarily contradict substance. If the formality of law is useful, it must be useful because it substantively achieves something. When form does not represent substance, formality is a pathology, will not have the desired effects, and so will, in the long run, be unstable.
I believe, then, that the best intuition to follow is that formality and formalization have to do with abstraction so as to preserve what is essential in the substance. When formalization works well, its purpose then is the same as the purpose of all the substance. But it has been transformed into an abstraction (for example, the blueprints of chapter 3) so that that substance (say, the client's intentions about a building) can govern the activities of others (contractors and craftsmen and craftswomen). Further, that formality of the blueprint is written into a contract so that, if that governing of others' activities goes wrong, the difficulty can be taken into court to have it put right (or bargaining can go on in the shadow of what would happen in court). Just as gasoline, jet fuel, lubricating oil, and Vaseline are not the opposite of crude oil but refined versions for specialized uses, so formality, when it works, is not the opposite of the informal substance but a refined version (or versions) of it. I think understanding formalization is central to understanding the relation of law, or mathematics, or formal organization to the rest of social life. My argument is that when law (or mathematics, or organization) works, it is the same substance as the rest of social life, but formalized for one purpose or another.
The basic dependent variable I want to explain is "formalization," a process. Unless formality is seen as active, as a direction of change, one cannot understand how it can grasp a rapidly changing reality. One main kind of formalization is creating a socially valid rule, such as a law, that applies a set of abstract requirements (for example, "Thou shalt not kill," with the appropriate exceptions for accident, war, self-defense, in the course of duty as a policeman, abortion in the first trimester, and so on) to a large number of concrete cases. Formalization entails the development of an abstraction of a large amount of concrete data (as a "guilty of murder" verdict and a sentence are abstractions of the evidence brought to court, certifying among other things that the various excuses for violating the commandment are not satisfied), arrived at in such a way that further social action (such as a course of action by the penal system) is governed by that abstraction, without in general going back to the original data. "Abstraction," "governed by," and "not going behind" are matters of degree, and so "formalization" is a variable; from this point of view, the tablets brought down from the mountain were not fully formalized, with all the excuses and adaptations to a changing reality of "Thou shalt not kill" that God later allowed to Moses.
The analysis of formalization begins in this chapter with defining Our beginning comment on formalization in this chapter will first define the different sorts of informality that formality is contrasted to. Then in chapter 2 I analyze abstractions by which formalized action is governed to see what features they must have to be good for governing, and what features that the government of social action must have to make good use of good abstractions so developed. Some of the features of abstractions that make them useful for government (for example, "correctability") require that sometimes one has to "go behind" the abstraction in order to improve it. In its turn, that means that, to be a good representation of the substance, a process of formalization has to have provisions to allow people to go behind the formalities to help improve their grasp of the substance. It is of the essence of formality that most people most of the time do not have to go behind the formality to the substance, because someone else can be trusted to have done so already and to do so again when necessary.
It is exactly this substantive rationality embedded in the formalization (and reformalization) process that Max Weber quite missed in his analysis of "rationalization," and so led us astray. In particular, in his sociology of law, he tried to characterize formality (in the sense of certainty of the meaning of a rule in the law) without paying attention to formalized debate about that meaning (for example, in appeals courts). My basic argument in this case (analyzed in more detail in chapter 4) is that certainty of meaning amounts only to various current resting places in a process of improving that certainty by substantive debate, in appeals courts, in legislatures, or in administrative implementing regulations. I undertake a reanalysis of Weber on rationalization and formalization in the final chapter.
But this means that if sociologists want to contrast the formal meaning of the law with, for example, substantive justice, they have to outthink the appeals court judges and the legislators who make their living improving the fit between law and substantive justice. Or (perhaps more often) such sociologists have agreed with a dissenting opinion that one of these improvers of formalities has already expressed. But for a sociologist to have a minority opinion on how to make the formality just is not the same as the sociologist being on the side of substance against formality. We must not confuse unjust formality (by some sociologist's standard) with formality ineffective for the standard of justice it holds itself to.
The same applies to organizations: before a sociologist can show in publications how to improve formality for the substantive purpose of the organization, the formality is very likely to have changed in the direction he or she recommends. If not, the investigator may find, after a close look at his or her interviews, the recommendation appearing in the opinion of someone in the organization who failed to get it adopted. But to understand this dilemma, it is better to set up a typology of ways of being informal that have different relations to the formality, so as to keep it straight.
THREE KINDS OF INFORMALITY
Formality is, of course, the high end of a variable, so its meaning depends on what it is contrasted to. Part of the problem here is that "informality" has a strong meaning in sociology, Habermasian philosophy, and much of the humanities: a world of warm personal relations subverting formal purposes and rules, a world of feuding and uncontrolled power struggles in the back room, a world of sexual harassment, or of the fraud and force or white collar crime, of union busting, and of conspiracies in restraint of trade. By the traditional sociological argument, informality is to formality as machine politics, with its warm personal relations within ethnic neighborhoods and corruption in appointments and contracts, is to "good government."
Much of the informality in this book is quite the opposite--loose joints between different kinds of formality. In chapter 4, for example, we take up the fact established by Karl Llewellyn (1960) that in about 9 percent of appeals cases the appeals court decides on the basis, not of the reason for the decision in the precedent, but of a reason in the "other reasons" (obiter dicta) given as legitimate in the precedent. That is, there is still, even in the decision to overturn a formality, reasoning that was there in the precedent. The appeals court does not go all the way back to the analysis of raw social life to find the reasons for its decision, but only back to what appeals courts of the past gave as legitimate reasons. But the precedent has mentioned more than one valid reason that applies in cases like the one the precedent decided. Thus the precedent itself is (or at least becomes, in the text of the opinion of an appeals court) a mixture of different formalities.
It is then at the discretion of the appeals court, in the case being appealed this time, to choose among those previous reasons. The appeals court cannot, except in extraordinary circumstances, go "outside the law" for its reasons. But the precedent had not only the ratio decidendi, the deciding reason, in its case, but also numerous other reasons that applied to the previous court's analysis of that case. The form of the "informality" or "discretion" of the appeals court is to appeal to a different part of the formalities of the precedent, in some 9 percent of the cases. In most of the other 91 percent, the appeals court simply affirms the precedent. "Overturning" a precedent is very rare; distinguishing the present case from the case of the precedent, using another of the reasons applicable from the precedent, is the usual "informality" of the appeals court authorities. I want to distinguish the kind of informality that chooses among embedded formalities by a somewhat informal process from anarchical formality that pays no attention to the system.
I call this sort of informality "informally embedded formality." That is, there is nothing un-abstract or un-governing about the appeals court overturning a lower court decision. Appeals are almost invariably more abstract than the case being appealed--and have more impact on the overall government of activity by the, possibly new, legal abstractions-- than any particular lower court case is likely to have. But the contingency of an appeal is in the informal background of the lower court, in the anticipated process of an attorney deciding to appeal and drafting the writ of error, and of that writ's being accepted by the appeals court. That is, the writ of error is much of the time part of a process of formalizing a new distinction in legal reasoning, based on previous legal reasoning. Further, in the relevant 9 percent of the cases, the appeals court is not committed to following the formality of the precedent, but instead has decided it is willing to go behind those formalities to see if they are right. So the embedding of the higher court's authority in the lower court process is informal, even though according to my definition given above, the appeals court is nearer to the essence of the formality of the system as a whole: it is improving that system so it can be formal in more different situations without as much uncertainty.
Informally embedded formality has two main forms. The first is the hierarchical form that we see in the lower court-appeals court example, where the embedded formality provides for review by "superiors" who have greater authority in any particular case, and wider authority over many cases of different kinds. The second is a division of labor form that we see in an electrical contractor taking on the responsibility of meeting the electrical standards of the building code, of the Underwriters' Laboratories testing of the components, and of the standards of the skill, workmanship, and technical adequacy embedded in the world of electricians, electrical workers' unions, electrical engineers, and electrical contractors' associations. The authority is embedded and not formally governed by the architect because it is specialized, and can be better embedded correctly in the design of the building by letting the electrical contractor and electrical engineer, and ultimately the electrician, manage the details.
The appeals court example leads immediately to another sort of informality that occupies much of this book and that I call "formality being constructed." The book's basic idea is that formality works best when it is based on an abstraction of reality that is effective for the purpose at hand. Either of two sorts of informality tend to happen, however, when the abstraction proves to be out of accord with the situation: one that constructs a more formal, or better, formal system, or one that simply patches up the mistakes that formality would lead to. In this sense, informality can take the form of discussion, experimentation, distinguishing cases, writing memos (or briefs to a higher court)--attempts to locate the problems in the abstraction and discern what change or adaptation could grasp the substance sufficiently well for further action--all in the interest of improving the abstraction. Or informality can take the form of deviant action aimed at achieving the ends that the abstraction failed to achieve.
For example, an essay examination for a degree, common in the British higher educational system, is intended to abstract from the competencies of the student a grade summarizing his or her overall competence. If a student has missed the instruction that said to answer one out of three questions, and has answered all three, then each question might be said to measure one-third of the relevant competence, and their sum would be an adequate measure. But the abstraction for grading the examination did not give any instruction of how to grade an answer that covers one-third of what is expected, nor how to add three inadequate answers to get a whole one. A university might invent an informal method of dealing with the particular problem at hand, inventing a retest because the test as it turned out was not really the test they had intended, or asking the examiners to pretend that they had asked for three answers and grade it on that basis. One sort of informality, then, is making a patch on the system to get the right result for the case at hand, but not modifying the system of abstractions for future formality.
Or the university might try to invent a routine for the future that would force students first to copy the question they intend to answer, so that particular problem would not happen again. The ritualistic (and stupid) answer is simply to ignore the fact that the candidate took a different test than the others, and to pretend that the answer to the first question (because it was "chosen" first) is an adequate abstraction of the talent and learning being measured. Any of these is an informal response to the inadequacy of the abstraction for the particular case in hand; but some are true to the purpose of the original abstraction, others are not. Some address the error with the purpose of getting the right answer in this case; others with the purpose of improving the examination procedure henceforth.
Continues...
Excerpted from When Formality Works: Authority and Abstraction in Law and Organizations by Arthur L. Stinchcombe Copyright © 2001 by Arthur L. Stinchcombe. Excerpted by permission.
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Table of Contents
Acknowledgments1. Introduction: Why Is Formality So Unpopular?
2. A Redefinition of the Concept of Formality
3. Legal Formality and Graphical Planning Languages
4. Certainty of the Law: Reasons, Situation-Types, Analogy, and Equilibrium
5. The Social Structure of Liquidity: Flexibility in Markets, States, and Organizations
Bruce G. Carruthers and Arthur L. Stinchcombe
6. Formalization of Rightlessness in Immigration Law and Administration
7. Formalizing Epistemological Stratification of Knowledge
8. Conclusion: The Varieties of Formality
References
Index
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