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Legal formalism is a Positivist view in jurisprudence and the philosophy of law. Legal positivism is a school of thought in modern and contemporary jurisprudence and the philosophy of law. ...
Jurisprudence is the scientific study of law through a philosophical lens. ...
Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as what is the law?, what are the criteria for legal validity?, what is the relationship between law and morality?, and many other similar questions. ...
Formalism explained Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts by their plain meaning, 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: State nickname: Bay State Other U.S. States Capital Boston Largest city Boston Governor Mitt Romney (R) Senators Edward Kennedy (D) John Kerry (D) Official language(s) English Area 27,360 km² (44th) - Land 20,317 km² - Water 7,043 km² (25. ...
- [T]he judicial 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. [1]
As Justice Scalia argues (see infra), Formalism seeks to maintain that separation. It is a "theory that law is a set of rules and principles independent of other political and social institutions." [2]
Formalism is closely related to positivism:
- The legal positivist concentrates his attention on law at the point where it emerges from the institutional processes that brought it into being. It is the finally made law itself that furnishes the subject of his inquiries. How it was made and what directions of human effort went into its creation are, for him, irrelevant. [3]
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.
Formalism compared to Legal Realism Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism. Instrumentalism is usually 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 about good policy undermines the rule of law. Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). ...
Formalism critiqued by Critical Legal Theorists Another critique of legal formalism has been offered by the critical legal studies movement, which has argued from a Marxist perspective that law is indeterminate and that formalism ignores the possibility that law is a tool of the established power struture. Sammy Adelman & Ken Foster have written from this perspective [4] that: Critical legal studies refers to a movement in legal thought that applied methods similar to those critical theory (the Frankfurt School) to law. ...
Marxism is the political practice and social theory based on the works of Karl Marx, a 19th century philosopher, economist, journalist, and revolutionary, along with Friedrich Engels. ...
The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the critical legal studies movement — primarily legal academics in the United States — argued that the answer to this question is no. ...
- Legal formalism . . . has three principal dimensions.
- First, it represents the notion that law is made by the state and its agencies so that all legal rules appear imperative and willed by the political sovereign . . .
- [Second] is its indifference to substantive justice . . . [E]very citizen [is subject] to the same rules so that formal justice masks [or overrides] substantive social differences and inequalities. Legal discourse is [thereby] isolated from the purview of political, social and ethical/moral discourses, and legal reasoning is severed from any external criterion which can be used to judge and evaluate social behaviour . . .
- [T]hird . . . is its explicitly rational and scientific discourse . . . Legal formalism presents law as a gapless, logical and internally coherent system, in which correct legal decisions can be deduced by formal reasoning.
- These characteristics of formalism are frequently hailed as virtues yet merely serve to emphasise the false separation of judgement from political and social factors. [5]
These characteristics are not broadly in dispute, and one's view of formalism will largely rest upon whether one sees these characteristics as virtues or vices. Adelman & Foster aver that Formalism engenders a "false separation of judgement from political and social factors" (emphasis added); while they clearly regard this as a vice of the theory, an adherent of Formalism would see the separation of judgement from political and social factors as one of its principle virtues. Adelman & Foster - on behalf of critical legal theorists - are distressed that legal formalism leads courts to condone injustice, while adherents of legal formalism note that to do otherwise is to take from the legislatures - and thus, the democratic process - the power to make laws for the governance of society, which is itself represented by the legislature.
Justice Scalia & 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. Justice Antonin Scalia Justice Antonin Scalia (born March 11, 1936) (Sometimes known by the nickname Nino) has been a U.S. Supreme Court Associate Justice since 1986. ...
Seal of the Supreme Court The Supreme Court of the United States is the highest court in the United States of America. ...
The Constitution of the United States is the supreme law of the United States of America. ...
Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy. ...
// Literal rule (plain meaning) Meaning According to this rule, words must be given their plain, ordinary and literal 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].
Footnotes and references - ^ Massachusetts Constitution of 1780, Part The First, Art. XXX.
- ^ Black's Law Dictionary, 6th ed., p.913
- ^ Fuller, Anatomy of the Law (1968 ed.), pp.177-8. 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."
- ^ 1 Critical Lawyer's Handbook 7.
- ^ Ibid.
- ^ Scalia, A Matter of Interpretation, Amy Guttman ed. 1997, at p.25 (emphasis in original).
- ^ Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)
Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy. ...
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