In his essay, "The Chaotic Indeterminacy of Tort Law: Between Formalism and Nihilism," Denis J. Brion , professor of law at Washington and Lee University School of Law, explains that two very distinct interpretations of the law have existed side by side for a number of years.
He calls one of these two the o ries formalism and the other nihilism. Brion explains the two theories in the following way: In "Legal Formalism: On the Immanent Rationality of Law," Ernest Weinrib offers . . . the idea that the law can be accurately described in terms of . . . its "inner coherence."
He argues that the law is altogether distinct from politics and that it can only be understood from within itself. The function of judges is to "make transactions and distributions" in the social world conform to the "latent unity" of the law. The function of legal scholars is to make explicit the internal coherence and intelligibility of the law. In The Disorder of Law: A Critique of Legal Theory, Charles Sampford sets out to criticize the various theories of law that seek to describe it as systematic.
His principal thesis is that society itself is without system-his term is the "social melee"-and that the law, as an integral part of society, is correspondingly disordered-the "legal melee." He concludes that, because of this disorder, the impact of legal doctrine on social and individual practices is strongly attenuated.
A third alternative is offered by Lawrence Friedman in his treatise Law in America . The law, Friedman says, is not a separate autonomous system. Rather, the law "is, essentially, a product of society; and as society changes, so does its legal system. Feudal societies have feudal legal systems; socialist societies have socialist systems; tribal societies have tribal systems; capitalist societies have capitalist legal systems. How could it be otherwise?"
Self-Evident Questions
1. Of the three theorists, which one has the more accurate view of the legal system? Explain.
2. Which view supports the idea that the judicial-economic system is a balancing act that aims at creating a flexible and responsive system? Explain.
3. Which view is supported by the evidence in this chapter concerning the regulation of the legal profession? Explain.
4. Of the three theorists, which one reflects your own personal view? E x plain.
5. Of the three views, which one best explains the need for laws like Sarbanes-Oxley and DoddFrank? Explain.