This descriptive conception of “legal formalism” can be extended to a normative theory according to which judges should decide cases by applying undisputed principles to the facts; “Informed legal decisions can be justified as conclusions of valid deductive syllogisms.” [3] Frederick Schauer, a professor at the University of Virginia School of Law, published a legal journal article entitled “Formalism” in the Yale Law Journal in 1988. In it, he urges researchers to reconsider “contemporary aversion to formalism” and explains that his goal is to “save formalism from conceptual banishment.” [19] He argues that formalism should be reconsidered conceptually, not only in terms of whether it is a good or bad thing, but also in terms of how language can and should be used to limit the power of decision-makers in the decision-making process. Formalism is the appropriate theory for understanding private law from within. Legal formalism makes the concept of form a central issue for the understanding of legal relationships. The form combines the three ideas of character, type and unity. Applied to private law, form refers to an understanding that incorporates the characteristic concepts, distinctiveness and coherence of the relationship between the plaintiff and the defendant. Among these, coherence is of paramount importance. Using the illustration of loss diversification, this chapter explains the nature of consistency, its importance for private law as a justification enterprise, and its role in understanding private law. It concludes with an examination of the shortcomings of the formalist point of view of certain contemporary theories, both instrumental and non-instrumental (the economic analysis of law, Charles Fried`s theory of contract as a promise and George Fletcher`s theory of apologies). Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. [1] In its descriptive sense, formalists assert that judges make their decisions by applying undisputed principles to the facts; Formalists believe that there is an underlying logic to the many legal principles that can underlie various cases. These principles, they argue, are simple and can be easily discovered by anyone with some level of legal expertise. The ultimate goal of this type of formalism would be to describe the underlying principles in a single, specific system that could be applied mechanically – hence the term “mechanical jurisprudence.” The antithesis of formalism is legal realism, which has been said to be “the most widespread and accepted theory about how judges arrive at legal decisions.” [2] Legal formalism can be juxtaposed with legal instrumentalism, a view associated with American legal realism.
[16] Instrumentalism believes that creativity in the interpretation of legal texts is justified to ensure that the law serves public order and social interests, although legal instrumentalists may also consider the end of law as the promotion of justice or the protection of human rights. It also calls for the exercise of judicial discretion. However, legal formalists counter that it undermines the rule of law to give judges the power to change the law to serve their own political ideas. This tension is particularly interesting in common law, which depends on a precedent. The “claim to glory” of common law systems is that the task of developing and updating the law is best accomplished progressively by courts that are in close contact with social, economic and technological realities, rather than by political bodies that deal with legal reforms from time to time. Thus, legal realism, or “relationalism,” has been favored in some common law legal systems, where the type of legal codification associated with civil law is virtually unknown. [Citation needed] In his essay “Formal and Informal in Legal Logic”, Jan Woleński argues that there are “rhetorical functions of metalogical concepts used in legal discourse”, and thus the introduction of the informal into an otherwise imperative logic. He reviews Jørgensen`s paradox for the introduction of deontic logic and recognizes this innovation by Georg Henrik von Wright. [20] In A Matter of Interpretation, Scalia defended textualism – and thus formalism – with words: Formalism was called “autonomous discipline”[10], in relation to the formalistic belief that judges only require facts and law, with all normative issues such as morality or politics irrelevant. [11] When judges simply apply the rules in a mechanical and non-controversial way, it protects judges from criticism.
For this reason, formalism has been called “the official theory of judgment.” [12] Some researchers deny that there has ever been a legal formalism. [13] As a normative theory, legal formalists argue that judges and other public officials should be limited in their interpretation of legal texts, suggesting that it is contrary to the separation of powers to give the judiciary the power to say what the law should be, rather than limiting it to explaining what the law says. This argument finds its most eloquent expression in the Massachusetts Constitution of 1780, which states that the judiciary “shall never exercise legislative and executive powers or any of them; until the end [that the government of Massachusetts] can be a government of laws, not people. [14] Formalism seeks to maintain this separation as a “theory that law is a set of rules and principles independent of other political and social institutions.” [15] A personal account can be used to receive email notifications, save searches, purchase content, and activate subscriptions. Oxford Academic is home to a variety of products. The institutional subscription may not cover the content you want to access. If you think you have access to this content, please contact your librarian. Access to Oxford Academic content is often made possible through subscriptions and institutional purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways: Many companies offer single sign-on between the company`s website and Oxford Academic.
If you see “Register on the Society`s website” in the registration section of a journal, Scalia`s strongest claim about formalistic references can be found in an essay titled The Rule of Law as a Law of Rules. [18] The access of society members to a journal is done in one of the following ways: Formalists believe that the relevant legal principles of a particular territory can be recognized by the collection of jurisprudence of that territory. [6] [7] Christopher Columbus Langdell believed that the only resources needed to create jurisprudence were a legal library. [8] [9] The late U.S. Supreme Court Justice Antonin Scalia was known for his formalistic views on various issues, particularly his view that the U.S. Constitution should be interpreted in accordance with its original meaning, and for his view that laws should be read in accordance with their clear meaning.