Legal Formalism - Formalism Explained

Formalism Explained

The most obvious characteristic of legal formalism is the purported separation of legal reasoning (or "application" of norms to facts) from normative or policy considerations. The "formalist fiction" is that the process that produced the legal norms has exhausted normative and policy considerations; accordingly, law can be seen as a more or less "closed" normative system. Thus formalistic logic would tend to work well with the Aristotelian logic of definition by closed sets of necessary and sufficient conditions, yet is deficient when applied to areas where definition by "family resemblance" (Wittgenstein) is more suitable. For example, in private law, such tight systems as the law of negotiable instruments (for the US example see Uniform Commercial Code Art. 3) are frequently described as "formalistic" because decisions rest on a relatively closed-set of logically-organized rules; while contract law tends to be more "relational" than formalistic as it deals with much wider sets of relations and cases. Legal formalism thus needs not be a manifestation of positivistic commitments, but can be justified in some areas on functionalist grounds.

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:

he judicial 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. It is a "theory that law is a set of rules and principles independent of other political and social institutions."

Lawrence Solum's Legal Theory Lexicon describes Formalism as:

" commitment to a set of ideas that more or less includes the following:

1. The law consists of rules.

2. Legal rules can be meaningful.

3. Legal rules can be applied to particular facts.

4. Some actions accord with meaningful legal rules; other actions do not.

5. The standard for what constitutes following a rule vel non can be publicly knowable and the focus of intersubjective agreement."

Formalism is closely related to positivism:

The legal positivist concentrates his attention on law at the point where it emerges from the institutional processes that brought it into being. It is the finally made law itself that furnishes the subject of his inquiries. How it was made and what directions of human effort went into its creation are, for him, irrelevant

If Positivism is understood as an explanation of what law is, Formalism can be said to be a positivist explanation of how law and legal systems operate.