Formalism vs. Pragmatism in Legal Philosophy

Abstract

Formalism and pragmatism are contemporary philosophical debate; formalism supports the domination of prevalent doctrine and their absolute implementation whereas pragmatism is practical implementation of doctrine and principles. Formalism follows deductive approach whereas pragmatism applies empirical approach. Nevertheless, both are the branches of positivism. Yet, formalism supports determinacy and pragmatism endorses indeterminacy. There are different types of positivism which are legal positivism, inclusive positivism, exclusive positivism, logical positivism, critical positivism, normative positivism, evolutionary positivism, sociological positivism, and pragmatic positivism. Formalism is the part of positivism because positivism is broader than formalism. Formalism supports the domination of form and structure over the content and matters mentioned in documents. In legal philosophy, it refers to the domination of rule and procedure over external reference and guidance. No emotions, feeling and value judgement can make effect in decision making process of judges which is based on certain procedures and doctrine whatever written in the legal text. Legal formalism treats law as a math and science which implements the provision strictly without considering extraneous matter. It is internally coherent in the decision making process as the formula of mathematics. Contributors of formalism are Bentham, Austin, Prof. Hart, Kelson, and Joseph Raj. Formalism of Dworkin is different than British positivist because he relies on integrity of practices of principles. Pragmatism is first coined and implemented by William James and John Dewey. They burrowed the philosophic pragmatism of Charles Peirce. However they are not the jurist or legal practitioners. Pragmatism is also one of the branches of positivism which follows rule scepticism. American realist rejects to call them as philosophers. American realist i.e. Justice Holmes, Justice Grey, Llewellyn, and Jerome Frank support pragmatism. Moreover, Richard Posner, activist of law and economics, recommends democratic pragmatism. Pragmatism is contextual, anti-foundational, instrumental, and perspectival. It supports open ended, multi dimensional and multi faceted method of decision making. Under pragmatism, fixed accepted principle is rejected. Positivism emerges from the institutional process in which political role is more vital, which is in fact parliamentary process. Despite this notion, if we look at the philosophic tradition, latest philosophy is more pragmatic than prior philosophic movement.