What is LEGAL FORMALISM? What does LEGAL FORMALISM mean? LEGAL FORMALISM meaning & explanation

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What is LEGAL FORMALISM? What does LEGAL FORMALISM mean? LEGAL FORMALISM meaning - LEGAL FORMALISM definition - LEGAL FORMALISM explanation. Source: Wikipedia.org article, adapted under https://creativecommons.org/licenses/by-sa/3.0/ license. Legal formalism is both a positive or descriptive theory of adjudication and a normative theory of how judges ought to decide cases. In a descriptive sense, formalists believe that judges reach their decisions by applying uncontroversial principles to the facts. Although the large number of decided cases implies a large number of 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, 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. 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 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". 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 depend 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.

What is LEGAL FORMALISM? What does LEGAL FORMALISM mean? LEGAL FORMALISM meaning & explanation

• Report rights infringement
• published: 04 Oct 2016
• views: 233

What is LEGAL FORMALISM? What does LEGAL FORMALISM mean? LEGAL FORMALISM meaning - LEGAL FORMALISM definition - LEGAL FORMALISM explanation. Source: Wikipedia.org article, adapted under https://creativecommons.org/licenses/by-sa/3.0/ license. Legal formalism is both a positive or descriptive theory of adjudication and a normative theory of how judges ought to decide cases. In a descriptive sense, formalists believe that judges reach their decisions by applying uncontroversial principles to the facts. Although the large number of decided cases implies a large number of 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, 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. 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 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". 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 depend 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.