Legal formalism

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Legal formalism is a positivist view in jurisprudence and the philosophy of law. While Benthamite 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.

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[edit] 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 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 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:

[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]

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]

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:

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.

[edit] 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. 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.

[edit] Formalism critiqued by critical legal theorists

Another critique of legal formalism has been offered by the critical legal studies movement, which has argued, inter alia, that law is indeterminate and that formalism ignores the relationship between law and the established power structure. Sammy Adelman & Ken Foster have written from this perspective[4] that:

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.

[edit] 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]. Scalia's performance as a Supreme Court justice has led some commentators to claim that his attachment to originalism is dropped when it conflicts with his politically preferred outcome (e.g. his treatment of the Commerce Clause in his concurring opinion in Gonzales v. Raich).[8]

[edit] Footnotes and references

  1. ^ [1] Mass. Const. (1780).
  2. ^ Black's Law Dictionary 913 (7th ed. 1999)
  3. ^ 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."
  4. ^ 1 Critical Lawyer's Handbook 7.
  5. ^ Id.
  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. ^ See [2] [3]. However, n.b. Scalia's opinion in Raich was premised on the scope of the necessary and proper clause, and drew on a line of legal reasoning — that the necessary and proper clause says, in effect, that the Federal Government may take broad measures in pursuit of goals which are themselves Constitutional — the lineage of which stretches back to McCulloch v. Maryland. [4] It is therefore arguable, at best, that Raich constitutes apostasy on Scalia's part. As Prof. Orin Kerr has pointed out, to argue that Scalia voted the way he did in Raich because he doesn't like drug dealers requires one to ignore cases such as United States v. Booker and Kyllo v. United States where Scalia defied his conservative colleagues to vote for drug dealers.

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