Legal formalism is both a descriptive theory of how judges decide cases and a normative theory of how

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

s should decide cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the

facts A fact is a true datum about one or more aspects of a circumstance. Standard reference works are often used to check facts. Scientific facts are verified by repeatable careful observation or measurement by experiments or other means. For exa ...

; formalists believe that there is an underlying logic to the many legal principles that may be applied in different cases. These principles, they claim, are straightforward and can be readily discovered by anyone with some legal expertise. U.S. Supreme Court Justice

Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an associate justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States, U.S. Supreme Cou ...

, by contrast, believed that "The life of the law has not been logic: it has been experience". The formalist era is generally viewed as having existed from the 1870s to the 1920s, but some scholars deny that legal formalism ever existed in practice. The ultimate goal of legal formalism would be to describe the underlying principles in a single and determinate system that could be applied mechanically—from which the term "mechanical

jurisprudence Jurisprudence, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values ...

" comes. Judge

Richard Posner Richard Allen Posner (; born January 11, 1939) is an American legal scholar and retired United States circuit judge who served on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chicag ...

defined "legal formalism" as "the use of deductive logic to derive the outcome of a case from premises accepted as authoritative". The

antithesis Antithesis (: antitheses; Greek for "setting opposite", from "against" and "placing") is used in writing or speech either as a proposition that contrasts with or reverses some previously mentioned proposition, or when two opposites are introd ...

of formalism is legal realism, which has been said to be " rhaps the most pervasive and accepted theory of how judges arrive at legal decisions." This descriptive conception of "legal formalism" can be extended to a normative theory, which holds that judges should decide cases by the application of uncontroversial principles to the facts; "sound legal decisions can be justified as the conclusions of valid deductive

syllogism A syllogism (, ''syllogismos'', 'conclusion, inference') is a kind of logical argument that applies deductive reasoning to arrive at a conclusion based on two propositions that are asserted or assumed to be true. In its earliest form (defin ...

s."

Definition

Formalism remains one of the most influential and important theories of adjudication and has been called the thesis to which realism is the antithesis. Formalism sees adjudication as the uncontroversial application of accepted principles to known facts to derive the outcome in the manner of a deductive syllogism. Formalists believe that the relevant principles of law of a given area can be discerned by surveying the

case law Case law, also used interchangeably with common law, is a law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...

of that area. Christopher Columbus Langdell believed that the only resources needed to create a science of law was a law library. Formalism has been called an "autonomous discipline," 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. 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." 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 The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...

. This argument is expressed clearly in

Massachusetts Constitution The Constitution of the Commonwealth of Massachusetts is the fundamental governing document of the Commonwealth of Massachusetts, one of the 50 individual states that make up the United States of America. It consists of a preamble, declaration ...

of 1780, which provides that the

judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

"shall never exercise the

legislative A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial powers ...

and

executive Executive ( exe., exec., execu.) may refer to: Role or title * Executive, a senior management role in an organization ** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators ** Executive dir ...

powers, or either of them; to the end hat Massachusetts' governmentmay be a government of laws, and not of men." 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."

Black's Law Dictionary ''Black's Law Dictionary'' is the most frequently used legal dictionary in the United States. Henry Campbell Black (1860–1927) was the author of the first two editions of the dictionary. History The first edition was published in 1891 by Wes ...

913 (7th ed. 1999). Though formalist thought and influence in the United States has been greatly reduced since the early 20th century, some of its influence remains—especially in the theories of textualism and

originalism Originalism is a legal theory in the United States which bases constitutional, judicial, and statutory interpretation of text on the original understanding at the time of its adoption. Proponents of the theory object to judicial activism ...

Comparison to legal instrumentalism

Legal formalism can be contrasted with legal instrumentalism, a view associated with American legal realism.

Instrumentalism 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 natural phenomena. According to in ...

is the view that creativity in the interpretation of legal texts is justified to ensure that the law serves good public policy and social interests, including the promotion of

justice In its broadest sense, justice is the idea that individuals should be treated fairly. According to the ''Stanford Encyclopedia of Philosophy'', the most plausible candidate for a core definition comes from the ''Institutes (Justinian), Inst ...

and the protection of

human rights Human rights are universally recognized Morality, moral principles or Social norm, norms that establish standards of human behavior and are often protected by both Municipal law, national and international laws. These rights are considered ...

. Legal formalists counter that for judges to change the law to serve their own ideas regarding policy undermines the rule of law.

Prominent Figures

Justice Antonin Scalia and formalism

The late

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...

Justice

Antonin Scalia Antonin Gregory Scalia (March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectual an ...

was noted for his formalist views about a variety of topics, particularly his view that the

United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...

should be interpreted in accord with its original meaning and his view that statutes should be read in accord with their

plain meaning The plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts. The other two are the "mischief rule" and the "golden rule". The plain meaning rule dictates that ...

. 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 "formalistic." 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 a government a government of laws and not of men. (emphasis in original). Scalia's strongest claim on formalist credentials can be found in his essay, ''The Rule of Law as a Law of Rules''.Antonin Scalia, ''The Rule of Law as a Law of Rules'', 56 U. Chi. L. Rev. 1175 (1989).

Frederick Schauer

In 1998, Frederick Schauer, a professor at the University of Virginia School of Law, 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".Frederick Schauer, ''Formalism'', 97 Yale L.J. 509, 511, 539 (1988). He argues that formalism should be conceptually rethought, not in terms merely of whether it is a good or bad thing, but also in terms of how language both can and should be used to restrict the power of decision-makers in the decision-making process.

Jan Woleński

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. 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 Springer Science+Business Media, commonly known as Springer, is a German multinational publishing company of books, e-books and peer-reviewed journals in science, humanities, technical and medical (STM) publishing. Originally founded in 1842 in ...

Footnotes and references

External links

{{DEFAULTSORT:Legal Formalism Sociology of law Formalism (deductive) Theories of law