Table Of Content■
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WHEN
FORMALITY
WORKS
Authority and Abstraction in Law and Organizations
ARTHUR L. STINCHCOMBE
THE UNIVERSITY OF CHICAGO PRESS • CHICAGO AND LONDON
ARTHUR L. STINCHCOMBE has been a fellow of the American
Academy of Arts and Sciences and is professor emeritus of
sociolog}- at Northwestern University. His book Constructing Social
Theories (1968,1987) won the American Sociological Association’s
Distinguished Scholarly Publication Award, and his Information and
Organizations (1990) won the association’s Weber Award.
The University of Chicago Press, Chicago 60637
The University of Chicago Press, Ltd., London
© 2001 by The University of Chicago
All rights reserved. Published 2001
Printed in the United States of America
10 09 08 07 06 05 04 03 02 01 12 345
ISBN: 0-226-77495-3 (doth)
ISBN: 0-226-77496-1 (paper)
Library’ of Congress Cataloging-in-Publication Data
Stinchcombe, Arthur L.
When formality works: authority and abstraction in law and
organizations / Arthur L. Stinchcombe.
p. cm.
Includes bibliographical references and index.
ISBN 0-226-77495-3 (doth: alk. paper) — ISBN
0-226-77496-1 (pbk: alk. paper)
1. Sociological jurisprudence. 2. Legal authorities.
3. Formalities (Law) 4. Abstraction. I. Title.
K370.S75 2001
340'. 115—dc21
2001027409
® The paper used in this publication meets the minimum
requirements of the American National Standard for Information
Sciences—Permanence of Paper for Printed Library Materials,
ANSIZ39.48-1992.
CONTENTS
Acknowledgments vii
1 introduction: why is formality so unpopular? 1
2 A REDEFINITION OF THE CONCEPT OF FORMALITY 18
3 LEGAL FORMALITY AND GRAPHICAL PLANNING
LANGUAGES 55
4 CERTAINTY OF THE LAW: REASONS, SITUATION-TYPES,
ANALOGY, AND EQUILIBRIUM 76
5 THE SOCIAL STRUCTURE OF LIQUIDITY: FLEXIBILITY IN
MARKETS, STATES, AND ORGANIZATIONS 100
Bruce G. Carruthers and Arthur L. Stinchconibe
6 FORMALIZING RIGHTLESSNESS IN IMMIGRATION LAW
AND ADMINISTRATION 140
7 FORMALIZING EPISTEMOLOGICAL STRATIFICATION OF
KNOWLEDGE 158
8 conclusion: the varieties of formality 179
References 195
Index 203
V
J
ACKNOWLEDGMENTS
I conceived many of the elements of this book while applying for an un
paid visiting appointment to the American Bar Foundation. Labor mar
ket processes require matching what one wants to do and is competent to
do with the mission of some organization. Reexamining what one has be
come in the light of what one might be able to do in some social system
is the central problem of identity. An imagined American Bar Founda
tion, an imagined law and social science community of scholars, and an
imagined future stream of work for myself were central to creating the
line of conduct that has resulted in this book.
Three people were central to maintaining this imaginary future in the
reality of the subsequent four years: Bryant Garth, Carol Heimer, and
Robert Nelson. Bryant Garth defended me from the body of law and
social science peers who thought it was unlikely that this work should
amount to anything. He found the odd corner in the allocation of space,
the unallocated bit of summer salary, the odd bit of textbook chapter
writing I could do easily with what I had already learned, which did not
have to pass peer review. Carol Heimer managed knowing more about
the subject I was writing about, and the audience I was writing for, with
a hard-headed nose for intellectual sloppiness but a keen view of what
could be made of it if I straightened it out. Only the best intellectual
companions can do that. Robert Nelson was the buffer between North
western University and me during the process of my retiring. His assur
ance, backed by work and money, that I was basically the sort of scholar
that graduate students should learn from sustained me against the uncer
tainties of not having a real job.
In an Australian interlude at the Australian Research School of the So-
vii
viii ACKNOWLEDGMENTS
cial Sciences, John Braithewaite and Robert Goodin welcomed me into
the intellectual community and gave cues that all was perhaps not hope
less with this undertaking. I have several aborted books for which neither
others nor mvself supplied sufficient conviction on that matter. Braithe
waite gave me detailed, occasionally scathing, but always kindly sugges
tions on chapter 2. These shaped my fundamental revision of that chap
ter as it appears here, to which I was further persuaded by penetrating
comment on intellectual organization by an anonymous referee for the
University of Chicago Press. Goodin welcomed an early draft of chapter
4 as a submission to fa Journal of Political Philosophy, arranged for pene
trating referees, and forced me to deepen the argument substantially.
Bruce Carruthers is the senior author of chapter 5, and of its prede
cessor as a paper in Theory and Society. In a certain sense his authorship is
recognition enough, and praise from a junior author to a senior author
for knowing more, thinking faster, and working harder is out of place. I
will therefore make no mention of that, or of my wisdom in choosing him
as co-author.
Richard Lempert persuaded me that I had gotten off on the wrong
foot in a subproject on the law of evidence. The general approach of this
book should be at its best when addressing this part of the law, because
the attempt to formalize the transition from common-sense facts to le
gal facts is at the core of my argument. I think Lempert was right to per
suade me my attempt did not do the job, but I still think somebody should
do it
Critical help on particular parts of the work were given by Janet
Gilboy on chapter 3, Jack Heintz on the general approach, Fred Schauer
on an early draft of chapter 4, participants in a Law and Society Con
vention session where I presented an early version of chapter 3, partici
pants in an American Sociological Association session where an early
version of chapter 6 was presented, and many members of the American
Bar Foundation with whom I had frequent casual intellectual conversa
tions.
I think I successfully navigated the troubles I had writing the book and
that, in the end, it holds water. That is, of course, up to the readers and
future research to decide. It is, however, my own responsibility if errors
of fact, reasoning, or choice of problems still mar the work, and not of all
those who helped and encouraged me.
The institutional source of support that heads the list is TIAA-CREF.
My retirement pension ought instead to be called TIAA-CREF Emeri
tus Professorship in Whatever I Please. The office space and welcome of
the American Bar Foundation were essential to the work. I don’t know
what a square foot of office space is worth at 750 North Lake Shore Drive
ix
ACKNOWLEDGMENTS
in Chicago, but they provided me with about two hundred of them for
several years. It was an ideal place to work on a project like this one. Aus
tralian National University provided me an office in the Research School
of the Social Sciences, where I wrote the first drafts of chapters 3,4, and
6. The Lochinvar Society provided both physical and psychological sup
port.
I gratefully acknowledge the kind permission of Blackwell to reprint
parts of chapter 4, previously published in the Journal of Political Philos
ophy 7(3) (September 1999): 209—24; and of Kluwer Academic Publishers
to reprint parts of chapter 5, previously published in Theory and Society 28
(1999): 353-82.
Kai and Per Stinchcombe, my children living at home during this proj
ect, were a joy. I do not imagine that improved the book much, but it sure
helped make life worthwhile while I wrote it.
1
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 de
signed 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 with
out 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 sociolo
gist, even one who has written at some length about how formalities were
invented by former slaveowners after emancipation in the British Em
pire so as to reconstruct a system as close to slavery as possible without
the formality of owning slaves (Stinchcombe 1995, chap. 10). These for
malities were invented to evade the implications of the formalities dic
tated 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.
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