Abstract
AbstractLegal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic view of formalism helps to distinguish two distinct types of formalism, “doctrinal formalism,” the view that judicial behaviour can be represented using rules, and “rule formalism,” the view that judges follow external rules when they are deciding cases. Doctrinal formalism, understood in naturalistic terms, overcomes many of the criticisms that have been levelled at formalism and can also be used to rehabilitate the currently out‐of‐favour “declaratory theory of law.” Doctrinal formalism is also a longstanding view of law, reflecting both what the original formalists thought of law, and what many present‐day doctrinal lawyers seem to believe. The naturalistic methodology is used to show that the main dispute between doctrinal formalism and American legal realism can be explained by a difference of assumptions concerning whether the values of judges are relative to society, or relative to other judges.
Highlights
Legal formalism has been called the thesis, to which modern American legal thought is the antithesis (Grey 1983, 3)
A naturalistic view of formalism shows that what we have called doctrinal formalism is a respectable theory of law rather than a jurisprudential joke
Central to doctrinal formalism is the belief that doctrine exists as a value framework common to all judges within a legal system that they draw upon to adjudicate
Summary
Legal formalism has been called the thesis, to which modern American legal thought is the antithesis (Grey 1983, 3). Formalists treat cases of “first impression” (where no previous precedent exists) with caution until more courts are able to pronounce on the issue (Beale 1916, 147; Goff 1999, 314; Wambaugh 1894, 56; Weinrib 2013, 13) It follows that because judges do not always follow the doctrine, there is scope for a normative theory of formalism, to the effect that judges should follow the doctrine. For instance, views it as fruitless to form a priori definitions, thinking that theorising is better when informed by factual observation (Samuels 1975, 282) Though this view of formalism as natural science has been criticised (Posner 1987, 762; Grey 1983, 21–2), the methodology does bear many similarities to other areas of science that rely upon human intuition as data.
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