Legal formalism is both a descriptive theory of how judges decide cases and anormative theory of howjudges should decidecases.[1] In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to thefacts; 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 JusticeOliver Wendell Holmes Jr., by contrast, believed that "The life of the law has not been logic: it has been experience".[2] 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.[3][4]
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 "mechanicaljurisprudence" comes. JudgeRichard Posner defined "legal formalism" as "the use of deductive logic to derive the outcome of a case from premises accepted as authoritative".[5] Theantithesis of formalism islegal realism, which has been said to be "[p]erhaps the most pervasive and accepted theory of how judges arrive at legal decisions."[6]
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 legaldecisions can be justified as the conclusions of valid deductivesyllogisms."[7]
Formalism remains one of the most influential and important theories of adjudication and has been called the thesis to which realism is the antithesis.[8] Formalism sees adjudication as the uncontroversial application of accepted principles to known facts to derive the outcome in the manner of a deductive syllogism.[9]
Formalists believe that the relevantprinciples of law of a given area can be discerned by surveying thecase law of that area.[10][11]Christopher Columbus Langdell believed that the only resources needed to create a science of law was a law library.[12][13]
Formalism has been called an "autonomous discipline,"[14] 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.[15] 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."[16]
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 lawshould be, rather than confining them to expositing what the lawdoes say, violates theseparation of powers. This argument is expressed clearly inMassachusetts Constitution of 1780, which provides that thejudiciary "shall never exercise thelegislative andexecutive powers, or either of them; to the end [that Massachusetts' government] may be a government of laws, and not of men."[17] 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."[18]
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 oftextualism andoriginalism.[19]
Legal formalism can be contrasted with legal instrumentalism, a view associated with Americanlegal realism.[20]Instrumentalism 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 ofjustice and the protection ofhuman rights. Legal formalists counter that for judges to change the law to serve their own ideas regarding policy undermines the rule of law.
The lateUnited States Supreme Court JusticeAntonin Scalia was noted for his formalist views about a variety of topics, particularly his view that theUnited States Constitution should be interpreted in accord with itsoriginal meaning and his view that statutes should be read in accord with theirplain meaning.
InA Matter of Interpretation, Scalia defendedtextualism – and, by extension, formalism – saying:
Scalia's strongest claim on formalist credentials can be found in his essay,The Rule of Law as a Law of Rules.[22]
In 1998,Frederick Schauer, a professor at theUniversity of Virginia School of Law, published a law review article titled "Formalism" inThe 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".[23]
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.
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 otherwiseimperative logic. He reviews Jørgensen's paradox to introducedeontic logic, and acknowledges this innovation byGeorg Henrik von Wright.[24]
