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form and function in a legal system –
a general study
This book addresses three major questions about law and legal systems:

(1) What are the defining and organizing forms of legal institutions, legal
rules, interpretive methodologies, and other legal phenomena? (2) How
does frontal and systematic focus on these forms advance understanding of
such phenomena? (3) What credit should the functions of forms have when
such phenomena serve policy and related purposes, rule of law values, and
fundamental political values, such as democracy, liberty, and justice? This
is the first book that seeks to offer general answers to these questions and
thus give form in the law its due. The answers not only provide articulate
conversancy with the subject, but also reveal insights into the nature of law
itself, the oldest and foremost problem in legal theory and allied subjects.
Robert S. Summers is the William G. McRoberts Professor of Research in
the Administration of Law at Cornell Law School. He has won international
acclaim for his work in contracts, commercial law, jurisprudence, and legal
theory. He has authored and coauthored multiple works in these fields
for which he has received honorary degrees and other recognition. His
treatise on the Uniform Commercial Code, coauthored with James White,
is the most widely cited on the subject by courts and scholars. Professor
Summers has served as official advisor both to the Drafting Commission for
the Russian Civil Code and to the Drafting Commission for the Egyptian
Civil Code. He lectures annually on jurisprudence and legal theory in the
United States, Britain, Scandinavia, and Europe.

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a selection of other books by the author
Form and Substance in Anglo-American Law, coauthored with Patrick S. Atiyah
(Oxford University Press, third reprinting with minor revisions, 2002).
Contract and Related Obligation: Theory, Doctrine and Practice (4th ed.), coauthored
and coedited with Robert A. Hillman (West Group, 2001).
La Naturaleza Formal del Derecho (Mexico City, Fontamara, 2001, in Spanish).
Collected Essays in Legal Theory (Amsterdam, Kluwer Academic Publshers, 2000).
The Uniform Commerical Code, coauthored with James J. White (West Group,
5th ed. of 1 vol. ed. of multi-volume treatise, 2000).
Interpreting Precedent – A Comparative Study, coedited and coauthored with
members of the Bielefelder Kreis (Dartmouth Press, 1997).
The Uniform Commercial Code, 4 vols., coauthored with James J. White (West
Group, 4th ed., 1995, with annual supplement).
Essays on the Nature of Law and Legal Reasoning (Berlin, Duncker and Humblot,
1992).
Interpreting Statutes – A Comparative Study, coedited and coauthored with members
of the Bielefelder Kreis (Dartmouth Press, 1991).
Law: Its Nature, Functions, and Limits (3rd ed.), coauthored and coedited with
several others (West Pub. Co., 1986).
Lon L. Fuller (Stanford University Press, 1984).
Pragmatischer Instrumentalismus (Karl Alber, Freiburg, 1983, German translation of
next item below).
Instrumentalism and American Legal Theory (Cornell University Press, 1982).
Collective Bargaining and Public Benefit Conferral – A Jurisprudential Critique

(Cornell University, ILR Monograph Series, 1976).
More Essays in Legal Philosophy (University of California Press, and Blackwells,
Oxford, 1971).
Essays in Legal Philosophy (University of California Press, and Blackwells, Oxford,
1968).

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FORM AND FUNCTION IN A LEGAL
SYSTEM – A GENERAL STUDY
ROBERT S. SUMMERS
William G. McRoberts Professor of Research in the
Administration of Law, Cornell Law School, and
Arthur L. Goodhart Visiting Professor of Legal Science,
Cambridge University, 1991–2
B.S. 1955, University of Oregon; LL.B. 1959, Harvard Law School;
Doctor of Laws, Honoris Causa, University of Helsinki, 1990;
Doctor of Laws, Honoris Causa, University of G¨ottingen, 1994

iii


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Published in the United States of America by Cambridge University Press, New York
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© Robert S. Summers 2006
This publication is in copyright. Subject to statutory exception and to the provision of
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GENERAL TABLE OF CONTENTS

PART ONE: INTRODUCTION, BASIC CONCEPTS AND DEFINITIONS,
AND A GENERAL APPROACH

1

Introduction

3

2

Basic Concepts and Definitions

37

3

A General Approach

64

PART TWO: THE FORMS OF FUNCTIONAL LEGAL UNITS

4

Forms of Institutions – Legislative

91

5

Forms of Precepts – Rules

136

6

Form and Content within a Rule – Continued

182

7

Forms of Nonpreceptual Law – Contracts and Related

Property Interests

211

8

Forms of Legal Methodologies – Statutory Interpretation

241

9

Forms of Sanctions and Remedies

283

PART THREE: THE OVERALL FORM OF A LEGAL SYSTEM
AND ITS OPERATION

10

The Overall Form of a Legal System as a Whole

305

11

Cumulative and Synergistic Effects of Legal Forms – A
Schematic Practical Application

351

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DETAILED TABLE OF CONTENTS

Preface
Acknowledgments

page xiii
xv

PART ONE: INTRODUCTION, BASIC CONCEPTS AND DEFINITIONS,
AND A GENERAL APPROACH

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3
17
24
33

Section One: Preliminary Overview
Section Two: Importance of Legal Form
Section Three: The Neglect of Form
Section Four: Protests Against Misunderstanding

2

Basic Concepts and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
37

Section One: Introduction

Section Two: A Selection of Functional Legal Units and Their Overall
Forms
Section Three: The Overall Form of a Functional Legal Unit – A
General Definition and Refinements
Section Four: Types of Purposes That Overall Form Is to Serve – A
More Extended Account
Section Five: Rationales for the General Definition of Overall Form
Adopted Here
Section Six: Differentiation of the Overall Form From Material or
Other Components of a Functional Legal Unit
Section Seven: The “Form v. Substance” Contrast

3

37
39
42
47
57
61

A General Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
64
64
66

Section One: Introduction
Section Two: Advancing Understanding through Study of Form
Section Three: Attributing Credit to Form for Purposes Served
Section Four: A Form-Oriented Approach as Primary, with a

Rule-Oriented One Secondary

72

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Detailed Table of Contents

PART TWO: THE FORMS OF FUNCTIONAL LEGAL UNITS

4

Forms of Institutions – Legislative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section One: Introduction
91
Section Two: Overall Legislative Form and Its Constituent Features

97
Section Three: The Compositional Feature
101
Section Four: The Jurisdictional Feature
108
Section Five: The Structural Feature
112
Section Six: The Procedural Feature
116
Section Seven: The Preceptual Feature
126
Section Eight: Form and the Unity of the Legislature
127
Section Nine: Skepticism about Institutional and Other Form,
and Responses Thereto
131

5

Forms of Precepts – Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section One: Introduction
Section Two: Internal Formal Features of Rules
Section Three: The Feature of Prescriptiveness
Section Four: The Feature of Completeness
Section Five: The Feature of Definiteness
Section Six: The Feature of Generality
Section Seven: The Feature of Structure
Section Eight: The Encapsulatory Feature
Section Nine: The Expressional Feature
Section Ten: Responses to Objections

136
136
141
143
147
155
161
164
170
176
179

6

Form and Content within a Rule – Continued . . . . . . . . . . . . . . . . . . . . .
Section One: Introduction
Section Two: General Purposes of the Form and Content of
Rules – A Summary
Section Three: Initial Choices of Policy or Other Content and of
Formal Features in a Projected Rule
Section Four: Further Initial Choices of Formal Features
Section Five: Final Choices of Form and Final Choices of Policy
and Other Content
Section Six: General Interactions and Other Inter-relations Between
Choices of Form and Choices of Content
Section Seven: Further Responses to Objections

182
182

7

Forms of Nonpreceptual Law – Contracts and Related
Property Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section One: Introduction
Section Two: Choices of Form and of Complementary Material or
Other Components of Content in a Contract
Section Three: Due Credit to Form
Section Four: Formal Prima-Facie Validity and Further Credit Due to
Form

183
188
190
199
203
207

211
211
215
221
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Detailed Table of Contents
Section Five: Contractual Form and Related Property Interests – Still
Further Credit to Form
Section Six: Implementation of Contractual and Related Property
Law – Credit to Form Continued
Section Seven: Responses to Form-Skeptics and Law-Is-Policy
Reductionists

8

232
236
238

Forms of Legal Methodologies – Statutory Interpretation . . . . . . . . . . . 241
241

Section One: Introduction
Section Two: Sources of Needs for a Well-Designed Methodology to
Interpret Statutes
Section Three: Study of the Overall Form of a Particular Interpretive
Methodology As an Avenue for Advancing Understanding
Section Four: The General Credit That May Be Due the Overall Form

of an Interpretive Methodology for Statutes
Section Five: Other Related Factors of Form
Section Six: Formalistic Statutory Interpretation
Section Seven: Methodological Forms and Other Forms

9

xi

245
250
266
273
275
282

Forms of Sanctions and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
283
287

Section One: Introduction
Section Two: The Forms of Enforcive Functional Units – General
Section Three: The Sanction of State Imprisonment for Criminal
Offenses
Section Four: Remedies for the Private Wrong of Breach of Contract

289
295

PART THREE: THE OVERALL FORM OF A LEGAL SYSTEM

AND ITS OPERATION

10

The Overall Form of a Legal System as a Whole . . . . . . . . . . . . . . . . . . . . 305
305

Section One: Introduction
Section Two: Systematization of Institutions and Entities –
Centralized and Hierarchical Ordering within Each Main Type of
Jurisdictional Sphere: Legislative, Judicial, Administrative, and
Private-Ordering
Section Three: Systematization as between Jurisdictional Spheres of
Institutions and Private Entities – Prioritization
Section Four: Systematization of Valid Laws within Discrete Fields
Section Five: Systematization through Uniformity of Interpretive and
Other Methodologies, and in Regard to Sanctions and Remedies
Section Six: Further Systemization of Functional Legal Units through
Basic Operational Techniques
Section Seven: Operation of Basic Techniques in Conformity with
Principles of the Rule of Law
Section Eight: The Roles of Further Systematizing Factors
Section Nine: Formalness As One Major Characteristic of a Legal
System As a Whole

311
315
319
323
326

332
344
345


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Detailed Table of Contents

Cumulative and Synergistic Effects of Legal Forms – A Schematic
Practical Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section One: Introduction
Section Two: Choices of Forms of Basic Operational Techniques
Section Three: Choices of Forms in Legislatures, Administrative
Bodies, or Other Entities
Section Four: Choices of Preceptual and Related Forms at the
Law-Making Stage

Section Five: Choices of Form at the Stage of Public Promulgation
Section Six: Form and the Stage of Addressee Self-Application
Section Seven: An Exceptional yet Important Stage – Administrative
Intervention
Section Eight: Ultra-Exceptional Stage – Trial and Appellate Court
Action
Section Nine: Choices of Form – Summary of Major Cumulative and
Synergistic Effects
Section Ten: The Roles of Form and Information in a Linear
Progression
Section Eleven: The Limits of Form and Also Its General Potency

Name Index
Subject Index

351
351
363
367
369
377
379
381
383
386
387
390

393
395

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PREFACE

I first lectured on themes here while I was the Arthur L. Goodhart Visiting
Professor of Legal Science at Cambridge University in 1991–2, and began the
book a number of years later.1 I have written it not only for those with academic
interests in law and legal systems, such as law students, professors of law, legal
theorists, and other scholars, but for lawyers and judges as well.2 The scope
of the book is not confined to Anglo-American systems. It is addressed more
generally to the forms and functions of legal phenomena in developed Western
societies, and its central themes apply still more widely. I now offer the book as an
ambitious yet unhurried attempt to develop systematic ways of giving form in law
its due, both as an avenue of understanding and as a means of serving a variety of
purposes: policy and related ends, rule of law values, and fundamental political
values.
I focus here on paradigms of the forms of a varied selection of functional legal
units: legislatures and courts; statutory and other rules; species of law besides
rules, such as contracts and property interests; legal methodologies, such as those

for interpreting statutes; and enforcive devices, such as sanctions and remedies.
In addressing the make-up, unity, instrumental capacity, distinct identity, and
other attributes of these functional legal units with focus on their forms, the book
provides a new way of viewing the familiar. These functional units, and the system
as a whole, are subjected to a special mode of analysis that I introduce here and
call “form-oriented.” It is so named because it focuses frontally, systematically,
and holistically on how paradigms of the overall forms of such units are generally
defined and organized, and also on how a paradigmatic version of the overall form
of a developed Western legal system is generally defined and organized, all to serve
1
2

See R. S. Summers, “The Formal Character of Law,” 51 Cambridge L. J. 242 (1992).
Many American lawyers and judges will recognize this work as highly compatible with a treatise that I
coauthored: J. White and R. Summers, The Uniform Commercial Code, 4 vols. (4th ed., West Group, St.
Paul, Minn. 1995, with annual supplements). Indeed, Chapter Seven of the present book applies the
theory of form set forth here to the fields of contract and commercial law.

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Preface

purposes. Readers so disposed can make this form-oriented mode of analysis part
of their own general intellectual equipment and will find they can apply it to any
functional legal unit and not merely to those selected for analysis here. Formoriented analysis goes beyond analysis of functional legal units in terms of the
contents of those legal rules that are reinforcive or constitutive of such units,
analysis prominent in the works of major legal thinkers, such as H. L. A. Hart and
Hans Kelsen.
Here, each paradigm of an overall form of a functional legal unit is defined
and differentiated from the complementary material and other components of
the unit. These overall forms and their constituent features are then analyzed to
advance understanding of the whole. In this way, we can see that well-designed
forms of functional legal units are not formalistic or bare and thin; instead, they are
intrinsically purposive and value-laden and can, along with the complementary
material and other components of such units, even be highly efficacious. We can
also see how formal devices systematize the various functional legal units into a
coherent and effective operational system.
This study also enables the reader to see how well-designed form can merit much
credit for purposes served through the functioning of the various legal units within
an operational system. Indeed, it is a central thesis of this book that significant
credit for purposes served through deployment of functional legal units should go
to well-designed form and not merely to the material or other components of these
units, such as physical facilities and trained personnel. The frontal and systematic
study of form is important, as well, for those who would construct functional
legal units anew or improve upon existing units within particular systems, all the
better to serve various ends.

There are still further reasons to study legal form. The subject itself is conceptually rich, wide-ranging, and absorbing. Also, because law is of great social
importance, and form is intrinsic to law, legal form, too, is of great importance.
Yet the subject has been neglected. Indeed, the subject has not yet been fully recognized as a discrete subject, let alone one for systematic study. Some American legal
scholars and theorists have even treated aspects of form in law in unqualifiedly
pejorative and dismissive terms. If I am right, this makes the need for such a book
as this all the more pressing, although it is certain to be controversial in those
quarters.
Robert S. Summers
February 17, 2005


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ACKNOWLEDGMENTS

I wish to thank first my diligent research assistants, and the students in my annual
seminars on American Legal Theory at Cornell Law School. All of these have
contributed in various ways to the final version of this book.
I owe a deep debt of gratitude to my former administrative assistant, Mrs.
Pamela F. Finnigan who has worked with me on this book from the beginning.
Without her dedicated and highly effective assistance, it is certain the book would

not yet be completed. I also wish to thank my current administrative assistant,
Anne Cahanin.
I wish to record a special debt to an earlier coauthor, Professor Patrick S. Atiyah
with whom, in the 1980s, I had many productive discussions of the related subject
“form and substance” in law and legal reasoning.1 The present book is a very
different book from the one we coauthored; however, it is unlikely that I would
have written the present one had the earlier one not preceded it.
Of my former teachers, I single out two for their tutelage, insight, and
inspiration: the late H. L. A. Hart of Oxford University and the late Lon L. Fuller
of Harvard University. Only the work of the great nineteenth-century German
jurist, Rudolf von Jhering, has been more of a source of inspiration in the writing
of this book.
I wish to thank numerous colleagues and friends who read part or all of the
manuscript and made numerous helpful comments: Professor Okko Behrends
of the University of G¨ottingen, Professor D. Neil MacCormick of the University
of Edinburgh, Professor Philip Soper of the University of Michigan, Professor
William Ewald of the University of Pennsylvania, the late Dr. Geoffrey Marshall
formerly Provost of the Queen’s College, Oxford University, Professor Pedro
Alem´an L´ain of the University Complutense in Madrid, Professor Manuel
Atienza of the University of Alicante, Professor Glenn Altschuler of Cornell
1

P. S. Atiyah and R. S. Summers, Form and Substance in Anglo-American Law (Clarendon Press, Oxford,
1987).

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Acknowledgments

University, and Mr. Paul Markwick. I am also indebted to an anonymous reviewer
of the manuscript for Cambridge University Press for various helpful suggestions.
I am grateful as well to numerous hosts and audiences at various universities in
the United States and in Europe for comments and discussions following lectures I
was invited to present over the years on the various themes I take up in this book. In
the United States, I am indebted to hosts and lecture audiences at the Universities
of Chicago, Cornell, Florida, Georgia, and Oregon. Abroad, I am indebted to
hosts and lecture audiences at the Universities of Cambridge, Oxford, London,
and Bristol in England; the Universities of Edinburgh and St. Andrews in Scotland;
the Universities of G¨ottingen, Hamburg, Heidelberg, M¨unster, Bielefeld, Freiburg,
T¨ubingen, and Kiel in Germany; the Universities of Bologna, Ferrara, and Pavia
in Italy; the Universities of Helsinki and Tampere in Finland; the Universities
of Madrid, Alicante, and Mallorca in Spain; the Universities of Groningen and
Utrecht in the Netherlands; the University of Paris (Sorbonne and also Nanterre),
the University of Brussels, the University of Lund, and the University of Vienna.
I am also grateful to several deans of the Cornell Law School: Russell Osgood,
the late Lee Teitelbaum, and Stewart Schwab, for research and other support.

Finally, I wish to thank my spouse, Dorothy Kopp Summers for all those many
special forms of support and assistance that have always counted for so much in
my book writing and other academic endeavors, and without which this particular
prolonged effort simply could not have come to fruition.
Robert S. Summers
Cornell Law School
Ithaca, New York
February 17, 2005


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Introduction, Basic Concepts
and Definitions, and A
General Approach

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INTRODUCTION

“Theory is the most important part of . . . the law, as the architect is the most

important . . . in the building of a house.”
– O. W. Holmes, Jr.1
“[Die Form] . . . ist im innersten Wesen des Rechts begr¨undet.”
“Form is rooted in the innermost essence of law.”

– Rudolf von Jhering2

section one: preliminary overview
Given the unfamiliar nature of this study, an extended preliminary overview is
called for. The most fundamental question of law and legal theory is: What is
the nature of a legal system? Many leading scholars and theorists of law in the
twentieth century, including H. L. A. Hart3 and Hans Kelsen,4 viewed a legal
system as essentially a system of rules. In developed Western societies, however,
a legal system is far more than this. It is made up of diverse functional units
only one major variety of which consists of rules. These diverse units are, in
turn, duly organized in complex ways to form a system. To grasp the nature of a
legal system, it is first necessary to understand the diverse functional units of the
system. These include institutions, such as legislatures and courts,5 legal precepts,
such as rules and principles,6 nonpreceptual species of law, such as contracts and
1
2

3
4
5
6

Oliver Wendell Holmes, Jr., Collected Legal Papers, 200 (Harcourt Brace and Co., New York, 1921).
R. Jhering, Geist des R¨omischen Rechts: auf den verschiedenen Stufen seiner Entwicklung, vol. 2, at 479
(Scientia Verlag, Aalen, 1993) and see also R. Jhering, Zweck im Recht, (Breitkopf and Hartel, Wiesbaden,

1970) translated as Law As a Means to an End (I. Husik trans., The Boston Book Co., Boston, 1913). I
am also indebted to Professor Okko Behrends here.
H. L. A. Hart, The Concept of Law, 8 (2nd ed., Clarendon Press, Oxford, 1994). See further infra n. 60
and accompanying text. See also Chapter Three at 72.
H. Kelsen, Introduction to the Problems of Legal Theory, 55–6 (B. Paulson and S. Paulson trans., Clarendon
Press, Oxford, 1992). See also Chapter Three, at 72.
See infra Chapter Four.
See infra Chapters Five and Six.

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Introduction

property interests,7 interpretive and other legal methodologies,8 sanctions and
remedies,9 and more. A discrete legal unit does not function independently. It
must be combined and integrated with other units.10

Although in developed Western societies, functional legal units of the same
general variety vary somewhat from system to system and even within systems,
those of a given variety do not, for the most part, differ fundamentally. Here,
I address paradigms of a selection of major varieties. Each paradigmatic unit
has its own attributes – its own purposes, makeup, unity, mode of operation,
instrumental capacity, and distinct identity.
According to Hart, Kelsen, and their adherents, functional legal units are generally reducible to one variety, namely rules, although of various types. Some of these
rules are what I call regulative. That is, they regulate primary conduct and thus, for
example, proscribe crimes and rule out tortious behavior. There are many other
rules, too. Many of these other rules do not regulate primary conduct, but rather
are what I call “reinforcive.” They prescribe and otherwise reinforce facets of the
purposes, makeup, unity, instrumental capacity, and other attributes of what in
my view are major functional legal units in no way reducible to rules or analyzable
solely as rules. However, on a general view such as that of Hart, and to an extent
also Kelsen, these other major functional units such as legislatures and courts,
nonpreceptual species of law, such as contracts and property interests, interpretive and other legal methodologies, and sanctions and remedies, for example, are
to be elucidated largely by “unpacking” the contents of those reinforcive rules that
purport to prescribe facets of such units. For scholars and theorists, such as Hart
and Kelsen, then, it may be said that a legal system is largely reducible to a system
of regulative, reinforcive, or other rules.
For introductory purposes, one schematic example will suffice briefly to illustrate the most general version of what might be called the “Hart-Kelsen” mode of
analysis in which, regulative rules aside, functional legal units are to be reduced
to, and analyzed in accord with, the contents of reinforcive rules. I will call this
mode of analysis “rule-oriented.” Consider a functional legal unit that is institutional in nature, such as, a court. Important rules of a reinforcive nature (Hart’s
“rules of adjudication”) prescribe, for example, facets of judicial makeup, unity,
and mode of operation. Thus, we may study the contents of what Hart would call
“rules of composition” and learn such things as how many judges there are to be
and what qualifications they are to have. We may study “rules of jurisdiction” and
learn about the powers of a court. We may also study “rules of procedure” and
learn something about how the body is to function, and so on. Plainly, such rules

7
8
9
10

See infra Chapter Seven.
See infra Chapter Eight.
See infra Chapter Nine.
See infra Chapter Ten.


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5

reinforce the functional legal unit of a court and are even necessary to its very
existence.
Here, I do not seek to elucidate a court, a legislature, or any other functional
unit mainly via an analysis of the contents of reinforcive rules, although I concede a significant role for such rules. Rather, I introduce and apply what I call a

“form-oriented” mode of analysis as the main method for elucidating the nature
of functional legal units and of the legal system as a whole. Each variety of unit is
conceived in terms of its purposes, its overall form, constituent features thereof,
and complementary material or other components. This overall form is defined
here as the purposive systematic arrangement of the unit as a whole – its “organizational essence,” and is to be further analyzed in terms of its constituent features,
and their inter-relations. The overall form of a unit and its constituent formal features does not include, and is to be differentiated from, complementary material
and other components, such as, in a court, physical facilities, the actual judges,
support personnel, and various resources, although overall form does specify such
complementary components as well.
It is true that the overall form of a functional legal unit as a whole, its constituent features, and the complementary material or other components of the
unit are partly prescribed, though not explicitly in these terms, in the contents of
reinforcive legal rules or other positive law. However, these rules could not even
have been drafted in the first place without first formulating the purposes, desired
form, features, and complementary components.
The overall form of a unit – its purposive systematic arrangement – has a reality
of its own that, in varying degrees, is both explicit in general social agreement,
such as “blueprints” and other sources, and implicit in existing practices, as well
as prescribed to some extent, though seldom expressly in terms of form, in the
contents of rules reinforcive of the functional unit. The organizational reality of a
functional unit, such as a court or a legislature, is identifiable and describable apart
from its actual complementary components, such as its personnel and material
resources. The distinct organizational reality of the overall form of a functional
unit, and the constituent features of this form, can be detailed, dense, and complex.
The constituent formal features of the overall form of a functional unit, such as
a court or a legislature, are also inter-related and unified in various ways. Together,
they coherently organize who is to do what, when, how, and by what means. As
already noted, the overall form of a court and its constituent formal features are
to be differentiated from material components of the whole, such as physical
facilities, personnel, and technology.11
11

The individuation of discrete units can be done on the basis of the distinctiveness of both the overall
form of the whole, and the complementary components of each. Different varieties of units do not
overlap very much.


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The purposes, overall forms, and constituent features of units differ greatly as
between different units. Thus, for example, the purposes, overall form, and the
constituent features of a court are designed, defined, and organized very differently
from those of a legislature. The purposes, overall form, and constituent features
of a regulative rule are designed, defined, and organized very differently from
a contract. The purposes and overall forms and constituent features of all the
foregoing differ greatly from those of an interpretive methodology, and so on.
The overall form of any functional legal unit in a particular system is a response
of responsible participants to perceived needs to serve a special cluster of purposes

through definitive organization. First, a conception of the overall form of the whole
of a functional unit is needed to serve the founding purpose of defining, specifying,
and organizing the makeup of such a unit so that it can be brought into being
and can fulfill its own distinctive role along with other units in serving ends. For
example, as we have seen, the overall form of a court or a legislature must have
such features as those defining, specifying, and organizing the composition of its
membership, its jurisdiction, and its various procedures.
Secondly, a conception of the overall form of the whole is needed for the purpose
of organizing the internal unity of relations between various formal features of a
functional unit and between each formal feature and the complementary components of the whole unit. For example, the two chambers of a bicameral legislature
each take a form and these chambers and their members must be organized to
function together.
Thirdly, and relatedly, a conception of the overall form of the whole functional
unit is needed to organize further the mode of operation and the instrumental
capacity of the unit. For example, internal committee structures and operational
procedures within a legislature must be designed and internally coordinated to
facilitate the study, debate, and adoption or rejection of proposed statutes.
Fourthly, no legal unit is independently functional. That is, no unit can alone
serve the ends and values in view. For example, a legislature can pass a regulatory
statute, but without other implementive units in operation, the statute would
become a dead letter. Even a simple rule, as signified by an isolated stop sign
positioned along a roadway on a lonely prairie must, to be effective, operate
together with other functional units, including the organized public facility of the
roadway itself, other rules of the road, and an official agency of enforcement. A
conception of the overall form of an operational technique (here, mainly what
may be called the “administrative-regulatory”) is required to combine, integrate,
and coordinate the relations between different functional units so that together
they can effectively create and implement law to serve the ends in view.
Once the overall form and the constituent features of a functional legal unit
are duly defined, organized, and put in place, what keeps the unit “on track?”

That is, what holds these organized realities in place so that they generally operate
more or less as designed? The quality of the original formal design is a major


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factor. For example, well-designed features of overall legislative form simply work
better than ill-designed features, and what works tends to survive. The quality of
training of the personnel responsible for the workings of the unit is another major
factor. The evolution of well-defined customary practices supportive of the unit
can be significant, too. Also, rule-minded theorists would stress the existence of
legal rules the contents of which, in effect, reinforce features of overall form.
Where have all the numerous overall forms of functional legal units recognized
today in Western legal systems come from? In part, they have been inherited
from predecessor systems. In part, they have been borrowed from other systems.
In part, they have evolved over time in response to felt needs. Few have been
invented totally de novo, at least in modern times. Various factors have played

roles in shaping these forms, but purposive and reasoned means-end analysis has
doubtless been most prominent.
The overall forms of functional legal units, as manifest in duly constructed
wholes, stand as tributes to the organizational inventiveness of developed Western
societies. The realization of humanistic values of Western civilization, including
justice, order, liberty, democracy, rationality, the rule of law, and more, has been
heavily dependent on this inventiveness.
Surprising as it may seem, especially given the importance of law and the extensive study of forms, as forms, in other major fields of human learning and endeavor,
the overall forms – purposive systematic arrangements – of most functional legal
units have seldom in the course of Western legal theory been explicitly conceived
as objects of frontal and systematic theoretical inquiry of the kind proferred here.
As a result, these forms and their constituent features have not received their due
either as avenues for advancing understanding of the nature of functional legal
units or as contributing to the efficacy of such units as means to ends.
Even the overall form of that most common of all major varieties of functional
legal units – that of a legal rule – has not yet received its due. Yet if rules are to be
understood, the overall form of a rule and its constituent formal features, namely,
prescriptiveness, completeness, definiteness, generality, internal structure, manner of expression, and mode of encapsulation, must be objects of concentrated
attention. Complementary components of a rule include policy or other contents,
and these must be studied as well. In all this, the effects of overall form, including
the “imprints” of constituent formal features on each other and on components of
content in a rule, must be a central focus.12 As will be demonstrated, rules and all
12

The word “imprint” may, to some, not seem strong enough here to do justice to the effects of welldesigned form on material or other components of content. However, an imprint can be “deep” and
“indelible.” “Imprint” may, therefore, even be too strong in a particular use! Jhering used a different
metaphor: he said that what I call the imprints of form on content, or on other nonformal elements
of a legal unit, comprise the “most sharply etched characteristic of law” supra n. 2, Geist, vol. 2, at 470.
The famed American judge, Benjamin N. Cardozo used still another metaphor when he said form can
be “closely knit to substance” Old Company’s Lehigh, Inc. v. Meeker, Receiver, et. al. 294 US 227, 230

(1935).