The Trivial Nature of Strict Legalism

In a series of articles John Gava has argued for judges to apply a strict legalist style of judging in contract cases.1 Gava’s view that judges must be held accountable to a judicial method based on strict legalism is the guiding principle that animates his scholarship. It is a compelling standpoint that invites a searching analysis. In brief, the purpose of this short paper is to pick up on the implications of Gava’s suggestion that whilst strict legalism is right to exhibit fidelity to the concept of law as a system of rules it may well be ‘an inappropriate style of judging for the modern world’.2 In developing this theme Gava considers the idea that strict legalism is ‘true but trivial’.3 At first blush this seems a strange admission from someone so strongly wedded to doctrinal scholarship. But upon closer investigation Gava is clearly not stepping back from his championing of strict legalism. His aim is to reinforce the belief that departing from the clarity of the rules based system opens a Pandora’s Box. To support his premise Gava observes that studies have empirically highlighted that at the market level contract law is of marginal importance to business people when planning transactions or settling disputes.4 For Gava this reality makes judges driven by the goal of shaping contract doctrine to support the market quixotic figures. They are adopting policy considerations in contract cases that aim at facilitating transactional practice without taking into account whether commerce appreciates or requires their proactive brand of legal reasoning.5 In contrast to misplaced judicial activism Gava opines that formal contract law rules offer market participants clear blue lines to transact and a cogent settlement mechanism if necessary.6 Gava rebukes the instrumentalist