Two competing demands we make of the law create a troubling conflict that contributes to the law's frequent failure to deliver what we imagine it should. On one hand, we want a formalist system of law—one that is rational and rule-based, and that promises to deliver us from arbitrariness, irrationality, and caprice applied, and blind to the differing social and economic situations of those who come before it.
On the other hand, however, we want the law to be connected to social reality and sensitive to the particular contexts out of which individual cases arise. After all, a body of law is of little use if it delivers justice that is merely procedural as opposed to substantive—i.e., if it cannot in individual cases—that it derive from and relate to subjective experience as well as objective reason.
It seems, then, that we are left with an irreconcilable tension arising from the competing imperatives of formalism and substantive justice. Any attempt to accommodate both principles within the legal system is bound to fail for systemic reasons: formalism cannot produce substantive justice until there is a reasonable degree of social equality. substantive justice within a legal system situated in conditions of social inequality is a misguided project.
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