Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists believe that judges reach their decisions by applying uncontroversial principles to the facts. Although the numerous decided cases imply numerous principles, formalists believe that there is an underlying logic to these principles that is straightforward and which legal experts can readily discover. The ultimate goal of formalism would be to formalise the underlying principles in a single and determinate system that could be applied mechanically (hence the label 'mechanical jurisprudence'). Formalism has been called 'the official theory of judging'. It is the thesis to which legal realism is the antithesis.
As a normative theory, formalism is the view that judges should decide cases by the application of uncontroversial principles to the facts.
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 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. This argument finds its most eloquent expression in the Massachusetts Constitution of 1780, which provides that the judiciary "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 as a "theory that law is a set of rules and principles independent of other political and social institutions".
Comparison to legal realism
Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism. Instrumentalism is 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 regarding policy undermines the rule of law. This tension is especially interesting in common law, which depends on judicial precedent. 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 civil law are virtually unknown.
Justice Scalia and formalism
The late United States Supreme Court Justice Antonin Scalia was 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 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 us a government of laws and not of men.
Frederick Schauer, a professor at the University of Virginia School of Law, in 1988 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". 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 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 otherwise imperative logic. He reviews Jørgensen's paradox to introduce deontic logic, and acknowledges this innovation by Georg Henrik von Wright.
Footnotes and references
- Grey, T. C. (1983). Langdell's Orthodoxy. University of Pittsburgh Law Review, 45, 1. p.3
- Posner, R. A. (2008). How Judges Think. Cambridge, Massachusetts; London: Harvard University Press. p. 41
- Anthony T. Kronman. (1993). The Lost Lawyer: Failing Ideals of the Legal Profession. Cambridge, Massachusetts ; London: Belknap Press of Harvard University Press, p.171
- Leiter, B. (1997). Is There an “American” Jurisprudence? Oxford Journal of Legal Studies, 17(2), 367–387. p.373
- Langdell, C. C. (1887). Harvard Law School. Law Quarterly Review, 3, 123.
- Bix, B. H. (2009). Jurisprudence: Theory and Context (5th edition). Sweet & Maxwell. p.192
- Posner, How Judges Think, 2008, p.42
- Leiter, B. (2010). Legal Formalism and Legal Realism: What Is the Issue? Legal Theory, 16(02), 111–133. doi:10.1017/S1352325210000121
- Posner, How Judges Think, 2008, p.41
- Mass. Const. (1780).
- Black's Law Dictionary 913 (7th ed. 1999)
- Antonin Scalia, A Matter of Interpretation 25 (1997) (emphasis in original).
- Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)
- Frederick Schauer, Formalism, 97 Yale L.J. 509, 511, 539 (1988)
- 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 ISBN 978-90-481-9587-9