Legal formalism

Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists believe that judges reach their decisions by applying uncontroversial principles to the facts. Although the large number of decided cases implies a large number of principles, formalists believe that there is an underlying logic to these principles that is straightforward and which legal experts can readily discover. The ultimate goal of formalism would be to formalise the underlying principles in a single and determinate system that could be applied mechanically (hence the label 'mechanical jurisprudence'). Formalism has been called 'the official theory of judging'. It is the thesis to which legal realism is the antithesis.

As a normative theory, formalism is the view that judges should decide cases by the application of uncontroversial principles to the facts.

Definition

Formalism remains one of the most influential and important theories of adjudication and has been called the thesis to which realism is the antithesis.[1] Formalism sees adjudication as the uncontroversial application of accepted principles to known facts to derive the outcome in the manner of a deductive syllogism.[2]

Formalists believe that the relevant principles of law of a given area can be discerned by surveying the case law of that area.[3][4] Christopher Columbus Langdell believed that the only resources needed to create a science of law was a law library.[5][6]

Formalism has been called an 'autonomous discipline',[7] in reference to the formalist belief that judges require only the facts and the law, all normative issues such as morality or politics being irrelevant.[8] If judges are seen to be simply applying the rules in a mechanical and uncontroversial manner, this protects judges from criticism. For this reason, formalism has been called 'the official theory of judging'.[9]

Formalists, contrary to Realists, take the judge at face-value, assuming that the facts and principles as recorded in a judge's reasons reflect the facts that the judge considered to be relevant, and the principles that the judge arrived at to reach the judgement. They therefore place little emphasis on the means by which a judge determines the facts.

As a normative theory, legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers. This argument finds its most eloquent expression in the Massachusetts Constitution of 1780, which provides that the judiciary "shall never exercise the legislative and executive powers, or either of them; to the end [that Massachusetts' government] may be a government of laws, and not of men".[10] Formalism seeks to maintain that separation as a "theory that law is a set of rules and principles independent of other political and social institutions".[11]

Comparison to legal realism

Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism. Instrumentalism is the view that creativity in the interpretation of legal texts is justified in order to assure that the law serves good public policy and social interests, although legal instrumentalists could also see the end of law as the promotion of justice or the protection of human rights. Legal formalists counter that giving judges authority to change the law to serve their own ideas regarding policy undermines the rule of law. This tension is especially interesting in common law, which depends on judicial precedent. The "claim to fame" of common law systems is that the task of developing and updating law is best done incrementally by courts that keep in close touch with social, economic, and technological realities than by political organs that, every so often, will attend to legal reforms. Thus legal realism or "relationalism" has been favored in some common law jurisdictions, where the kind of legal codification associated with civil law are virtually unknown.

Justice Scalia and formalism

The late United States Supreme Court Justice Antonin Scalia was noted for his formalist views about a variety of topics, particularly his view that the United States Constitution should be interpreted in accord with its original meaning and his view that statutes should be read in accord with their plain meaning.

In A Matter of Interpretation, Scalia defended textualism – and, by extension, formalism – saying:

Of all the criticisms leveled against textualism, the most mindless is that it is formalist. The answer to that is, of course it's formalistic! The rule of law is about form ... A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbor with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism! It is what makes us a government of laws and not of men.[12]

Scalia's strongest claim on Formalist credentials can be found in an essay entitled The Rule of Law as a Law of Rules.[13]

Frederick Schauer

Frederick Schauer, a professor at the University of Virginia School of Law, in 1988 published a law review article titled "Formalism" in The Yale Law Journal. In it he urges scholars to rethink the "contemporary aversion to formalism" and states that his goal is to "rescue formalism from conceptual banishment".[14] He argues formalism should be conceptually rethought, not in terms of merely whether it is a good or bad thing, but rather in terms of how language both can and should be used to restrict the power of decision-makers in the decision-making process.

Woleński

In his essay "Formal and informal in legal logic", Jan Woleński contends that there are "rhetorical functions of metalogical concepts that are used in legal discourse", and hence the introduction of the informal into otherwise imperative logic. He reviews Jørgensen's paradox to introduce deontic logic, and acknowledges this innovation by Georg Henrik von Wright.[15]

See also

Footnotes and references

  1. ^ Grey, T. C. (1983). Langdell's Orthodoxy. University of Pittsburgh Law Review, 45, 1. p.3
  2. ^ Posner, R. A. (2008). How Judges Think. Cambridge, Massachusetts; London: Harvard University Press. p. 41
  3. ^ Anthony T. Kronman. (1993). The Lost Lawyer: Failing Ideals of the Legal Profession. Cambridge, Massachusetts ; London: Belknap Press of Harvard University Press, p.171
  4. ^ Leiter, B. (1997). Is There an “American” Jurisprudence? Oxford Journal of Legal Studies, 17(2), 367–387. p.373
  5. ^ Langdell, C. C. (1887). Harvard Law School. Law Quarterly Review, 3, 123.
  6. ^ Bix, B. H. (2009). Jurisprudence: Theory and Context (5th edition). Sweet & Maxwell. p.192
  7. ^ Posner, How Judges Think, 2008, p.42
  8. ^ Leiter, B. (2010). Legal Formalism and Legal Realism: What Is the Issue? Legal Theory, 16(02), 111–133. doi:10.1017/S1352325210000121
  9. ^ Posner, How Judges Think, 2008, p.41
  10. ^ [1] Mass. Const. (1780).
  11. ^ Black's Law Dictionary 913 (7th ed. 1999)
  12. ^ Antonin Scalia, A Matter of Interpretation 25 (1997) (emphasis in original).
  13. ^ Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)
  14. ^ Frederick Schauer, Formalism, 97 Yale L.J. 509, 511, 539 (1988)
  15. ^ Jan Woleński (2011) "Formal and Informal in Legal Logic", pages 73 to 86 in Approaches to Legal Rationality, edited by D.M Gabbay, P. Canivez, S. Rahman & A. Thierselin, Springer books ISBN 978-90-481-9587-9

External links

Analytical jurisprudence

Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to try to understand its nature. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was probably the most influential writer in the modern school of analytical jurisprudence, though its history goes back at least to Jeremy Bentham.

Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning is or can be modelled as a mechanical, algorithmic process). Indeed, it was the analytical jurists who first pointed out that legal formalism is fundamentally mistaken as a theory of law.

Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is, must be treated as a strictly separate question to normative and evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.

Springer books commissioned essays on analytical jurisprudence for A Treatise on Legal Philosophy and General Jurisprudence. ISBN 9781402033872

Volume 1: Legal ontology and epistemology by Pattero

Volume 2: Legal foundations by Rottleuthner

Volume 3: Sources and institutions of law by Shiner

Volume 4: Legal doctrine by Peczenik

Volume 5: Legal reasoning by Sartor

Volume 6: History to early modern scholasticism edited by Miller and Biondi

Volume 7: Rome, Middle Ages, & Politics edited by Padovani & Stein

Volume 8: Various including Blackstone & Bentham by Michael Lobban

Bar (law)

In law, the bar is the legal profession as an institution. The term is a metonym for the line (or "bar") that separates the parts of a courtroom reserved for spectators and those reserved for participants in a trial such as lawyers.

Family law

Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.

Felipe Clemente de Diego y Gutiérrez

Felipe Clemente de Diego y Gutiérrez (1866 - 1945) was a Spanish jurist who was instrumental in rebuilding the Spanish state and its judiciary after the Francoist victory in the Spanish Civil War.

Clemente de Diego taught Roman law in Santiago in 1897–99 and civil law in Valladolid, Barcelona and Madrid until 1936. He co-founded the Revista de derecho privado, later the most significant civil law journal in Spain, in 1913. In 1938, the Franquist regime named him president of the Tribunal Supremo (Supreme Court), which post he held until his death.

The principal work of Clemente de Diego is the six-volume Curso elemental de Derecho civil español común y foral (1920–23). He also engaged in the study of the philosophy of law, promoting the adherence to an ideal of natural law founded on Christian ethics in the practice of law, and denouncing legal formalism as the reason for the perceived crisis of the legal system prior to the civil war.

Formalism

Formalism may refer to:

Form (disambiguation)

Formal (disambiguation)

Legal formalism, legal positivist view that the substantive justice of a law is a question for the legislature rather than the judiciary

Formalism (linguistics)

Scientific formalism

Formalism (philosophy), that there is no transcendent meaning to a discipline other than the literal content created by a practitioner

Religious formalism, an emphasis on the ritual and observance of religion, rather than its meaning.

Formalism (philosophy of mathematics), that statements of mathematics and logic can be thought of as statements about the consequences of certain string manipulation rules.

Mathematical formalism

Formalism (art), that a work's artistic value is entirely determined by its form

Formalism (music)

Formalist film theory, focused on the formal, or technical, elements of a film

Formalism (literature)

New Formalism (architecture), a mid-20th century architectural style, sometimes abbreviated to Formalism

Russian formalism, school of literary criticism in Russia from the 1910s to the 1930s

Frederick Schauer

Frederick Schauer (born 15 January 1946) is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia and Frank Stanton Professor (Emeritus) of the First Amendment at the Kennedy School of Government, Harvard University. He is well known for his work on American constitutional law, especially free speech, and on legal reasoning, especially the nature and value of legal formalism. In 2013, Schauer was the third highest paid professor at UVA Law, earning $302,000 that year.In his 1982 book Free Speech: A Philosophical Enquiry, Schauer says that government attempts to restrict freedom of expression have resulted in a disproportionate number of government mistakes. He argued that when governments restrict expression, they are incentivized to censor criticism of themselves, which makes it harder for them to assess the cost and benefits of their subsequent actions.

Index of philosophy of law articles

This is an index of articles in jurisprudence.

A Failure of Capitalism

Alf Ross

American Society for Political and Legal Philosophy

Analytical jurisprudence

Anarchist law

Antinomianism

António Castanheira Neves

Archon

Argumentation theory

Aristotle

Arthur Linton Corbin

Auctoritas

Bartolomé de las Casas

Basic norm

Basileus

Biblical law

Biblical law in Christianity

Boris Furlan

Bruno Leoni

Cafeteria Christianity

Carl Joachim Friedrich

Carl Schmitt

Cautelary jurisprudence

Charles de Secondat, baron de Montesquieu

Compact theory

Constitutionalism

Conventionalism

Corelative

Costas Douzinas

Critical legal studies

Critical race theory

Czesław Znamierowski

Daniel N. Robinson

Decisionism

Declaration of Delhi

Declarationism

Dignitas (Roman concept)

Director primacy

Discourse ethics

Divine command theory

Dualism (law)

Duncan Kennedy (legal philosopher)

Earth jurisprudence

Emerich de Vattel

Ernesto Garzón Valdés

Ethical arguments regarding torture

Expounding of the Law

Eye for an eye

Felix Kaufmann

Feminist legal theory

First possession theory of property

Francesco D'Andrea

François Hotman

Freedom of contract

Friedrich von Hayek

Fritz Berolzheimer

Geojurisprudence

Georg Wilhelm Friedrich Hegel

George Buchanan

German Historical School

Giorgio Del Vecchio

Global Justice or Global Revenge?

Gottfried Leibniz

Gray Dorsey

H. L. A. Hart

Habeas corpus

Hans Kelsen

Hans Köchler

Hart–Dworkin debate

Hart–Fuller debate

Herman Oliphant

Homo sacer

Hozumi Nobushige

Hugo Grotius

Immanuel Kant

Imperium

Indeterminacy debate in legal theory

International Association for Philosophy of Law and Social Philosophy

International legal theory

Interpretivism (legal)

Interregnum

Jean-Étienne-Marie Portalis

Jeremy Bentham

John Austin (legal philosopher)

John Finnis

John Locke

John Macdonell (jurist)

John Rawls

Joseph H. H. Weiler

Joseph Raz

Juan de Mariana

Julius Binder

Jurisprudence

Justice

Justitium

Labor theory of property

Law and economics

Law and Gospel

Law and literature

Law as integrity

Law in action

Law of Christ

Law, Legislation and Liberty

Laws (dialogue)

Learned Hand

Legal Education and the Reproduction of Hierarchy

Legal formalism

Legal humanists

Legal moralism

Legal naturalism

Legal origins theory

Legal pluralism

Legal positivism

Legal process (jurisprudence)

Legal realism

Legal science

Legalism (Chinese philosophy)

Legalism (theology)

Legalism (Western philosophy)

Leon Petrazycki

Letter and spirit of the law

Libertarian theories of law

Lon L. Fuller

Lorenzo Peña

Manuel de Lardizábal y Uribe

Mark Wrathall

Metaconstitution

Monarchomachs

Monism and dualism in international law

Monopoly on violence

Muhammad Hamidullah

Mutual liberty

Natural-law argument

Natural justice

Natural law

Natural order (philosophy)

Naturalization

New Covenant

New legal realism

Nicolas Barnaud

Norm (philosophy)

Oliver Wendell Holmes, Jr.

Organic law

Original intent

Original meaning

Pandectists

Paternalism

Paul Johann Anselm Ritter von Feuerbach

Pauline privilege

Peter Gabel

Petrus Cunaeus

Philippe de Mornay

Philosophy of copyright

Plato

Political jurisprudence

Political naturalism

Political sociology

Polycentric law

Positive law

Positivism

Postglossator

Prediction theory of law

Principles of Islamic jurisprudence

Prohibitionism

Public policy doctrine (conflict of laws)

Purposive theory

R. Kent Greenawalt

Radomir Lukić

Rechtsstaat

Restorative justice

Retributive justice

Richard Posner

Robert Alexy

Robert P. George

Roberto Mangabeira Unger

Ronald Dworkin

Rule by decree

Rule of Faith

Rule of law

Scepticism in law

Soft law

Soft tyranny

Sovereignty

State of emergency

State of exception

Stephen Guest

Strict constructionism

Supersessionism

Textualism

The Case of the Speluncean Explorers

The Concept of Law

The Golden Rule

Theodor Sternberg

Theodore Beza

Therapeutic jurisprudence

Thomas Hobbes

Tony Honoré

Torture

Transitional justice

Translating "law" to other European languages

Underdeterminacy (law)

Unitary executive theory

Virtue jurisprudence

Wesley Alba Sturges

Wesley Newcomb Hohfeld

Wild law

Zechariah Chafee

Interpretivism (legal)

Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law.

Jain law

Jain law or Jaina law is the modern interpretation of ancient Jain law that consists of rules for adoption, marriage, succession and death prescribed for the followers of Jainism.

Joseph Henry Beale

See Joseph Grant Beale for the U.S. Representative from PennsylvaniaJoseph Henry Beale (October 12, 1861 – January 20, 1943) was an American law professor at Harvard Law School and served as the first dean of University of Chicago Law School. He was notable for his advancement of legal formalism, as well as his work in Conflict of Laws, Corporations, and Criminal Law.

Juridical person

A juridical person is a non-human legal entity, in other words any organization that is not a single natural person but is authorized by law with duties and rights and is recognized as a legal person and as having a distinct identity. This includes any incorporated organizations including corporations, government agencies, and NGOs. Also known as artificial person, juridical entity, juristic person, or legal person.The rights and responsibilities of a juridical person are distinct from those of the natural persons constituting it.

Labour Tribunal

Labour Tribunals are tribunals in Sri Lanka formed under the Industrial Disputes Act No.62 of 1957, to handle labour disputes and termination of employment.

Legal archaeology

Legal archaeology is an area of legal scholarship "involving detailed historical reconstruction and analysis of important cases." While most legal scholars confine their research to published opinions of court cases, legal archaeologists examine the historical and social context in which a court case was decided. These facts may show what social and cultural forces were at work in a particular case. Professors can use legal archaeology to "sensitize students as to how inequality, specifically with regard to race, gender and class affects what occurs throughout the cases they study." A legal archaeologist might also research biographical material on the judges, attorneys, and parties to a court case. Such information might show whether a judge held particular biases in a case, or if one party had superior legal representation that caused the party to prevail in a case.

Legal process (jurisprudence)

The legal process school (sometimes "legal process theory") was a movement within American law that attempted to chart a third way between legal formalism and legal realism. Drawing its name from Hart & Sacks' textbook The Legal Process (along with Hart & Wechsler's textbook The Federal Courts and the Federal System considered a primary canonical text of the school), it is associated with scholars such as Herbert Wechsler, Henry Hart, Albert Sacks and Lon Fuller, and their students such as John Hart Ely and Alexander Bickel. The school grew in the 1950s and 1960s. To this day, the school's influence remains broad.

Legal realism

Legal realism is a naturalistic approach to law and is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses have to be tested against observations of the world.

Legal realists believe that the legal science should investigate law exclusively with the value-free methods of natural sciences, also called 'sciences of the real' in some Continental languages (e.g., 'Realwissenschaften', in German). Some legal realists (e.g., Leon Petrażycki and Max Weber) also hold that there should exist, too, a legal dogmatics, which is independent of legal science proper but, this notwithstanding, can be regarded as a science in its own right (and so, despite its being a non-real, or formal, science). However, the focus of all legal realists is on legal science proper.

Private law

Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private individuals, whereas public law involves interrelations between the state and the general population.

Status (law)

Legal status is the position held by something or someone with regard to law. It is a set of privileges, obligations, powers or restrictions that a person or thing has which are encompassed in or declared by legislation.

Statute

A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by legislative bodies; they are distinguished from case law or precedent, which is decided by courts, and regulations issued by government agencies.

Thomas C. Grey

Thomas C. Grey is the Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus, at Stanford Law School. As a legal theorist and a historian of modern American legal thought, Grey has written widely on pragmatism, legal formalism, legal realism, and the jurisprudence of Oliver Wendell Holmes, Jr.

Core subjects
Other subjects
Sources of law
Law making
Legal systems
Legal theory
Jurisprudence
Legal institutions

This page is based on a Wikipedia article written by authors (here).
Text is available under the CC BY-SA 3.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.