Legal formalism

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Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's legal positivism can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not (as positivism does) suggest that the substantive justice of a law is irrelevant, but rather, that in a democracy, that is a question for the legislature to address, not the Judge.


The most obvious characteristic of legal formalism is the purported separation of legal reasoning (or "application" of norms to facts) from normative or policy considerations. The "formalist fiction" is that the process that produced the legal norms has exhausted normative and policy considerations; accordingly, law can be seen as a more or less "closed" normative system. Thus formalistic logic would tend to work well with the Aristotelian logic of definition by closed sets of necessary and sufficient conditions, yet is deficient when applied to areas where definition by "family resemblance" (Wittgenstein) is more suitable. For example, in private law, such tight systems as the law of negotiable instruments (for the U.S. example see Uniform Commercial Code, Article 3) are frequently described as "formalistic" because decisions rest on a relatively closed-set of logically-organized rules; while contract law tends to be more "relational" than formalistic as it deals with much wider sets of relations and cases. Legal formalism thus needs not be a manifestation of positivistic commitments, but can be justified in some areas on functionalist grounds.[1]

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".[2] 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".[3]

Lawrence Solum describes it as a "commitment to a set of ideas that more or less includes":[4]

  • The law consists of rules.
  • Legal rules can be meaningful.
  • Legal rules can be applied to particular facts.
  • Some actions accord with meaningful legal rules; other actions do not.
  • The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement.

Formalism is closely related to positivism, which concerns "law at the point where it emerges from the institutional processes that brought it into being", meaning that how the law was made and the "directions of human effort [that] went into its creation are irrelevant".[5] If positivism is understood as an explanation of what law is, formalism can be said to be a positivist explanation of how law and legal systems operate.

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 depend 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

Justice Antonin Scalia of the United States Supreme Court is 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 neighbour 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.[6]

Scalia's strongest claim on Formalist credentials can be found in an essay entitled The Rule of Law as a Law of Rules.[7]

Formalism and Frederick Schauer

Frederick Schauer, a professor at the University of Virginia School of Law, in 1988 published an 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".[8] 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 decisionmakers in the decisionmaking process.

See also

Footnotes and references

  1. Jonathan Yovel, "Relational Formalism and the Construction of Financial Instruments", American Business Law Journal, pp. 371-407 (2011).
  2. [1] Mass. Const. (1780).
  3. Black's Law Dictionary 913 (7th ed. 1999)
  4. Legal Theory Lexicon
  5. Fuller, Anatomy of the Law 177–8 (1968). Cf. Justice Scalia's rejection of intentionalism, quoted in Originalism: "If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words".
  6. Antonin Scalia, A Matter of Interpretation 25 (1997) (emphasis in original).
  7. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)
  8. Frederick Schauer, Formalism, 97(4) Yale L. J. 19-58 (1988)

External links