Legal formalism

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that (1) the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases (e.g., cases that reach the stage of appellate review); and (2) adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.

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Angle of Deflection

Collected Essays ◽

10.3828/liverpool/9781904113997.003.0018 ◽

2020 ◽

pp. 407-422

Author(s):

Haym Soloveitchik

Keyword(s):

Economic Activity ◽

Internal Dynamic ◽

Islamic World ◽

Social Pressures ◽

Legal Formalism ◽

Breaking Work

This chapter reflects on the principle of 'angle of deflection' or 'measurable deflection'. This principle has been utilized superbly by Mark Cohen in his path-breaking work on Jewish economic activity in the Islamic world. But the principle of angle of deflection still has its critics. Some have seen in it a reflection of legal formalism. Whether law develops from within, as a consequence of an internal dynamic, or whether its motor force is social pressures and the personal predilections and ideologies of judges is an ancient jurisprudential question. The principle of angle of deflection is, however, not a jurisprudential but an evidentiary one. Both formalists and realists agree that the dominant motor force in a system does not operate to the exclusion of all else. The rule of the angle of deflection provides the historian with a criterion by which to assess whether or not a specific jurist in a specific case was influenced by outside considerations.

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New Rights for Old?

The Cambridge Law Journal ◽

10.1017/s000819730008096x ◽

1994 ◽

Vol 53 (3) ◽

pp. 573-595

Author(s):

Andrew Halpin

Keyword(s):

Legal Theory ◽

Human Condition ◽

The World ◽

Legal Formalism ◽

The Human Condition

The objective of this article is very limited, but if realised, I believe it has far-reaching implications. I want to examine the narrow topic of Unger's approach to rights. In exploring this objective I shall not be concerned with considering Unger's general approach to law, or with other aspects of his legal theory. Nor shall I question the assumptions that Unger may be making about the human condition or the nature of the world in which we live. Ignoring these wider concerns, my objective is to demonstrate that the new rights of Unger's deviationist doctrine in fact embody the old rights of legal formalism that their author has purported to abandon. The implications are twofold. First, for Unger's general enterprise: if it turns out that there is nothing new in his radical showpiece of rights, then some aspersions must be cast on the claims of novelty and radical efficacy made for “the program of empowered democracy” in which this showpiece is set.

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10.1093/oxfordhb/9780198794356.013.23 ◽

2018 ◽

Author(s):

Michael Lobban

Keyword(s):

Common Law ◽

Constitutional Interpretation ◽

Specific Approach ◽

Legal Thought ◽

Legal Formalism ◽

Rational Order ◽

New Generation

This chapter considers the era of ‘legal formalism’, which is usually taken to refer to the period in American legal thought between the 1860s and the 1920s, when a new generation of post-bellum treatise-writers and legal academics sought to discover the underlying principles of common law cases, and put them into a rational order. This period is sometimes also referred to as the era of ‘classical legal thought’. In contemporary jurisprudence, the term ‘formalism’ refers to a specific approach to adjudication and constitutional interpretation, which has its defenders as well as its critics. However, in the era under study, it was neither a term which jurists used to describe themselves, nor one which their critics used to describe them.

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