“Die Rechtssätze in ihrem systematischen Zusammenhang zu erkennen” – The Thrust of Legal Formalism

Abstract

Legal formalism stands for a variety of schools, movements, and approaches in jurisprudence that all share a commitment to the logico-conceptual, systemic premises of law. The German conceptualist jurisprudence, as represented by Georg Friedrich Puchta and Bernhard Windscheid, best illustrates extreme legal formalism on the European continent. Jurisprudence as envisioned by Puchta was to be a jurisprudence of legal concepts and their mutual, hierarchical relations. It was a task for the legal doctrine to construct a genealogy, or pyramid, of legal concepts from the source material available. The “Langdellian orthodoxy”, i.e. Christopher Columbus Langdell’s case method in legal education, introduced by Langdell in 1870 at Harvard, counts as the prime instance of American legal formalism. Langdell underscored the doctrine of stare decisis and the relatively few general principles of law that were deemed to be effective behind the voluminous case law. Based on a fertile cross-reading of Ronald Dworkin’s conception of legal rules and legal principles and Robert S. Summers’ idea of the tenets of legal formality, legal rules (a la Dworkin) are defined as legal arguments with high legal formality (a la Summers), and legal principles (a la Dworkin) are defined as legal arguments with low legal formality (a la Summers). The ingredients of legal formality comprise the six categories of constitutive (i.e. validity and rank) formality, systemic formality, mandatory formality, structural formality, methodological formality, and logico-linguistic formality, all adding up to the concept of deontic formality. Finally, legal formalism may be criticized for its blindness to the interest-laden, purpose-oriented, and value-bound tenets of modern law, as pointed out by Rudolf von Jhering and Lon L. Fuller.