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.
Formalism remains one of the most influential and important theories of adjudication and has been called the thesis to which realism is the antithesis. Formalism sees adjudication as the uncontroversial application of accepted principles to known facts to derive the outcome in the manner of a deductive syllogism.
Formalists believe that the relevant principles of law of a given area can be discerned by surveying the case law of that area. Christopher Columbus Langdell believed that the only resources needed to create a science of law was a law library.
Formalism has been called an 'autonomous discipline', 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. 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'.
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". 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".
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.
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:
Scalia's strongest claim on Formalist credentials can be found in an essay entitled The Rule of Law as a Law of Rules.
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". 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.
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.
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 LobbanBar (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:
Legal formalism, legal positivist view that the substantive justice of a law is a question for the legislature rather than the judiciary
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.
Formalism (art), that a work's artistic value is entirely determined by its form
Formalist film theory, focused on the formal, or technical, elements of a film
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 1930sFrederick 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
American Society for Political and Legal Philosophy
António Castanheira Neves
Arthur Linton Corbin
Bartolomé de las Casas
Biblical law in Christianity
Carl Joachim Friedrich
Charles de Secondat, baron de Montesquieu
Critical legal studies
Critical race theory
Daniel N. Robinson
Declaration of Delhi
Dignitas (Roman concept)
Divine command theory
Duncan Kennedy (legal philosopher)
Emerich de Vattel
Ernesto Garzón Valdés
Ethical arguments regarding torture
Expounding of the Law
Eye for an eye
Feminist legal theory
First possession theory of property
Freedom of contract
Friedrich von Hayek
Georg Wilhelm Friedrich Hegel
German Historical School
Giorgio Del Vecchio
Global Justice or Global Revenge?
H. L. A. Hart
Indeterminacy debate in legal theory
International Association for Philosophy of Law and Social Philosophy
International legal theory
John Austin (legal philosopher)
John Macdonell (jurist)
Joseph H. H. Weiler
Juan de Mariana
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
Legal Education and the Reproduction of Hierarchy
Legal origins theory
Legal process (jurisprudence)
Legalism (Chinese philosophy)
Legalism (Western philosophy)
Letter and spirit of the law
Libertarian theories of law
Lon L. Fuller
Manuel de Lardizábal y Uribe
Monism and dualism in international law
Monopoly on violence
Natural order (philosophy)
New legal realism
Oliver Wendell Holmes, Jr.
Paul Johann Anselm Ritter von Feuerbach
Philippe de Mornay
Philosophy of copyright
Prediction theory of law
Principles of Islamic jurisprudence
Public policy doctrine (conflict of laws)
R. Kent Greenawalt
Robert P. George
Roberto Mangabeira Unger
Rule by decree
Rule of Faith
Rule of law
Scepticism in law
State of emergency
State of exception
The Case of the Speluncean Explorers
The Concept of Law
The Golden Rule
Translating "law" to other European languages
Unitary executive theory
Wesley Alba Sturges
Wesley Newcomb Hohfeld
Zechariah ChafeeInterpretivism (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.
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