Legal formalism

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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 numerous decided cases imply numerous 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.

Normative generally means relating to an evaluative standard. Normativity is the phenomenon in human societies of designating some actions or outcomes as good or desirable or permissible and others as bad or undesirable or impermissible. A norm in this normative sense means a standard for evaluating or making judgments about behavior or outcomes. Normative is sometimes also used, somewhat confusingly, to mean relating to a descriptive standard: doing what is normally done or what most others are expected to do in practice. In this sense a norm is not evaluative, a basis for judging behavior or outcomes; it is simply a fact or observation about behavior or outcomes, without judgment. Many researchers in this field try to restrict the use of the term normative to the evaluative sense and refer to the description of behavior and outcomes as positive, descriptive, predictive, or empirical.

A trier of fact, or finder of fact, is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred. Various aspects of a case that are not in controversy may be the "facts of the case" and are determined by the agreement of the separate parties; the trier of fact need not decide such issues.

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.


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. [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]

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

Case law is the collected body of decisions written by courts and similar tribunals in the course of deciding past cases, in which the tribunals analyzed the law to resolve ambiguities and fill gaps to set principled rules for deciding those past cases. These past decisions are called "case law," or precedent to the extent that those past decisions are used by future judges to decide future cases. Stare decisis—a Latin phrase meaning “let the decision stand”—is the principle by which judges are bound to such past decisions. These judicial interpretations are distinguished from statutory law, which are codes enacted by legislative bodies, and regulatory law, which are established by executive agencies based on statutes. In some jurisdictions, case law can be applied to ongoing adjudication; for example, criminal proceedings or family law.

Christopher Columbus Langdell American lawyer and academic

Christopher Columbus Langdell was an American jurist and legal academic who was Dean of Harvard Law School from 1870 to 1895.

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]

The separation of powers is a model for the governance of a state. Under this model, a state's government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in parliamentary systems and semi-presidential systems where the executive and legislative branches overlap.

The judiciary is the system of courts that interprets and applies the law in a country, state or an international community. The first legal systems of the world were set up to allow citizens to settle conflicts without violence.

A legislature is a deliberative assembly with the authority to make laws for a political entity such as a country or city. Legislatures form important parts of most governments; in the separation of powers model, they are often contrasted with the executive and judicial branches of government.

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.

In philosophy of science and in epistemology, Instrumentalism is a methodological view that ideas are useful instruments, and that the worth of an idea is based on how effective it is in explaining and predicting phenomena. Instrumentalism is a pragmatic philosophy of John Dewey that thought is an instrument for solving practical problems, and that truth is not fixed but changes as problems change. Instrumentalism is the view that scientific theories are useful tools for predicting phenomena instead of true or approximately true descriptions.

Justice Concept of moral fairness and administration of the law

Justice, in its broadest context, includes both the attainment of that which is just and the philosophical discussion of that which is just. The concept of justice is based on numerous fields, and many differing viewpoints and perspectives including the concepts of moral correctness based on ethics, rationality, law, religion, equity and fairness. Often, the general discussion of justice is divided into the realm of social justice as found in philosophy, theology and religion, and, procedural justice as found in the study and application of the law.

Human rights Inalienable fundamental rights to which a person is inherently entitled

Human rights are moral principles or norms that describe certain standards of human behaviour and are regularly protected as natural and legal rights in municipal and international law. They are commonly understood as inalienable, fundamental rights "to which a person is inherently entitled simply because she or he is a human being" and which are "inherent in all human beings", regardless of their nation, location, language, religion, ethnic origin, or any other status. They are applicable everywhere and at every time in the sense of being universal, and they are egalitarian in the sense of being the same for everyone. They are regarded as requiring empathy and the rule of law and imposing an obligation on persons to respect the human rights of others, and it is generally considered that they should not be taken away except as a result of due process based on specific circumstances; for example, human rights may include freedom from unlawful imprisonment, torture, and execution.

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.


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. 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

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