Form and Substance inAnglo-American LawA Comparative Study of Legal Reasoning,Legal Theory,and Legal InstitutionsP.S.ATIYAHANDROBERT S.SUMMERSCLARENDON PRESS OXFORD1987Oxford University Press,Walton Street,Oxford OX2 6DPOxford New York TorontoDelhi Bombay Calcutta Madras KarachiPetaling Jaya Singapore Hong Kong TokyoNairobi Dar es Salaam Cape TownMelbourne AucklandAssociated companies in Beirut Berlin Ibadan NicosiaOxford is a trade mark ofOxford University PressPublished in the United Statesby Oxford University Press,New YorkP.S.Atiyah and Roberi5.Summers.1987All rights reserved.No part of this publication may be reproduced,stored in a retrieval system,or transmitted,in any form or by any means,electronic,mechanical,photocopying,recording,or otherwise,withoutthe prior permission of Oxford University Press.British Library Cataloguing in Publication DataAtiyah,P.S.Fomm and substance in Anglo-American law:a comparative study of legal reasoning.Legal theory,andLegal institutions.1.Law-England 2.Law-United States 3.Comparative law1.Title Il.Summers,Robert S.344.207KD660SBW0-19-825577-2Library of Congress Cataloging-in-Publication DataAtiyah,P.S.Form and substance in Anglo-American law.Bibliography:p.1.Law-Methodology.2.Law-Philosophy.3.Law-Great Britain-History and criticism.4.Law-United States-History and criticism.I.Summers,Robert S.IL.Title.213.A861987340.287-7639ISBN0-19-825577-2342Printed in Great Britainby David StanfordPrinter to the UniversityPrefaceTHIs book is a contribution both to legal theory and to comparativestudies.Its principal focus is on what we believe to be major differencesin the nature of law and the general style of legal reasoning betweenEngland and America,which we term 'formal'and 'substantive'respectively.In the process of identifying and explaining these differ-ences,we have found it necessary to construct a fairly elaboratetheoretical apparatus about 'formality'as an attribute or property oflegal systems,and we hope that this itself constitutes an originalcontribution to legal theory.If our conclusions about the differencesbetween England and America are correct,we will also have made somecontribution to comparative studies.The reader will understand thesetwo systems better,having come to see in general ways what they are,and what they are not,in terms of form and substance.Our qualifications lie in the fields of law and legal theory,and we haveboth studied the nature of law and legal reasoning in both countries atfirst hand for many years.But this book has required us to venture intomany broad areas,including some regarded as appropriate fields of studyfor students of politics,government,sociology and other social sciencesIn writing of such matters we have been aware that we ourselves lacksome of the expertise of some social scientists,and so (for instance)wehave not attempted any sophisticated statistical analyses of comparativedata in the two countries we have been studying.But we believe that thedifferences we analyse in this book are primarily of a qualitative ratherthan a quantitative character anyway.So although our comparisonsoften take the form of suggesting that English law and legal reasoning are'more formal'and the American 'more substantive',we do not purportto measure these differences,or indeed,suggest that they involveWe must also add that there are more assertions in this book which arebacked largely by our own judgment than we would have wished.Although in fact we cite here an immense range of literature,writings nothitherto so brought together,some of our assertions about the two legalsystems and their different 'styles'depend simply on our own judgment,