Legal formalism
Encyclopedia
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 positivists do) 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.
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 US example see Uniform Commercial Code
Art. 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 functional grounds.
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:
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."
Lawrence Solum's Legal Theory Lexicon describes Formalism as:
Formalism is closely related to positivism
:
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.
. 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. This tension is especially interesting in Common Law
traditions, i.e. those that, like the English, US, Indian or Israeli systems, depend on judicial precedent to determine the law. 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 continental (and Japanese) law
are virtually unknown.
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:
Scalia's strongest claim on Formalist credentials can be found in an essay entitled The Rule of Law as a Law of Rules.
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
's legal positivism can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not (as positivists do) suggest that the substantive justice of a law is irrelevant, but rather, that in a democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
, that is a question for the legislature to address, not the Judge.
Formalism explained
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 definitionDefinition
A definition is a passage that explains the meaning of a term , or a type of thing. The term to be defined is the definiendum. A term may have many different senses or meanings...
by closed sets of necessary and sufficient conditions
Necessary and sufficient conditions
In logic, the words necessity and sufficiency refer to the implicational relationships between statements. The assertion that one statement is a necessary and sufficient condition of another means that the former statement is true if and only if the latter is true.-Definitions:A necessary condition...
, 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 US example see Uniform Commercial Code
Uniform Commercial Code
The Uniform Commercial Code , first published in 1952, is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.The goal of harmonizing state law is...
Art. 3) are frequently described as "formalistic" because decisions rest on a relatively closed-set of logically-organized rules; while contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
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 functional grounds.
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:
- [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.
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."
Lawrence Solum's Legal Theory Lexicon describes Formalism as:
- "[A] commitment to a set of ideas that more or less includes the following:
- 1. The law consists of rules.
- 2. Legal rules can be meaningful.
- 3. Legal rules can be applied to particular facts.
- 4. Some actions accord with meaningful legal rules; other actions do not.
- 5. 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
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
:
- 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
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 realismLegal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
. 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. This tension is especially interesting in Common Law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
traditions, i.e. those that, like the English, US, Indian or Israeli systems, depend on judicial precedent to determine the law. 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 continental (and Japanese) law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
are virtually unknown.
Justice Scalia and formalism
Justice Antonin ScaliaAntonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
of the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
is noted for his formalist views about a variety of topics, particularly his view that the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
should be interpreted in accord with its original meaning
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
and his view that statutes should be read in accord with their plain meaning
Plain Meaning Rule
The Plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts...
.
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.
Scalia's strongest claim on Formalist credentials can be found in an essay entitled The Rule of Law as a Law of Rules.
Formalism and Frederick Schauer
In 1988, Frederick Schauer, Professor of Law at the University of Michigan, published an article 'Formalism' in The Yale Law Journal. Schauer 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 decisionmakers in the decisionmaking process.See also
- Critical legal studiesCritical legal studiesCritical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Legal positivismLegal positivismLegal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
- MetacognitionMetacognitionMetacognition is defined as "cognition about cognition", or "knowing about knowing." It can take many forms; it includes knowledge about when and how to use particular strategies for learning or for problem solving...
- OriginalismOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
- Reasonable doubtReasonable doubtProof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Frederick Schauer