Legal formalism

Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases.^[1] In its descriptive sense, formalists maintain that judges reach their decisions by applying uncontroversial principles to the facts; formalists believe that there is an underlying logic to the many legal principles that may be applied in different cases. These principles, they claim, are straightforward and can be readily discovered by anyone with some legal expertise. Supreme Court Justice Oliver Wendell Holmes Jr., by contrast, believed that "The life of the law has not been logic: it has been experience".^[2] The formalist era is generally viewed as having existed from the 1870s to the 1920s, but some scholars deny that legal formalism ever existed in practice.^[3]^[4]

The ultimate goal of legal formalism would be to describe the underlying principles in a single and determinate system that could be applied mechanically—from which the term "mechanical jurisprudence" comes. The antithesis of formalism is legal realism, which has been said to be "[p]erhaps the most pervasive and accepted theory of how judges arrive at legal decisions."^[5]

This descriptive conception of "legal formalism" can be extended to a normative theory, which holds that judges should decide cases by the application of uncontroversial principles to the facts; "sound legal decisions can be justified as the conclusions of valid deductive syllogisms."^[6]

^ Posner, Richard A., "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution," Case Western Reserve Law Review, vol. 37, no. 2 (1986), pp. 179-217.
^ Holmes, Oliver Wendell Jr. (1881). The Common Law. Vol. I. Boston: Little, Brown and Company. Archived from the original on April 14, 2021.
^ Tamanaha, Brian Z., Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press, 2009) Review; Alschuler, Albert W., Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2000), p. 98.
^ After quoting a passage from page 36 of Holmes's The Common Law about "the failure of all theories which consider law only from its formal side", Alschuler writes, "For generations, readers of this passage have inferred that someone (perhaps even someone notable) had attempted to deduce the entire corpus of law from a priori postulates. Why else would Holmes have disparaged the idea? Possibly some now-obscure German legal theorist fit Holmes's description of the deductive formalist bogeyman, but I know of no American who did". Alschuler, Albert W., Law Without Values, p. 98.
^ Capurso, Timothy J., "How Judges Judge: Theories on Judicial Decision Making," University of Baltimore Law Forum, vol. 29, no. 1 (Fall 1998)
^ Lyons, David, "Legal Formalism and Instrumentalism-a Pathological Study," Cornell Law Review, vol. 66, issue 5 (June 1981).

[1] Posner, Richard A., "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution," Case Western Reserve Law Review, vol. 37, no. 2 (1986), pp. 179-217.

[Common-2] Holmes, Oliver Wendell Jr. (1881). The Common Law. Vol. I. Boston: Little, Brown and Company. Archived from the original on April 14, 2021.

[3] Tamanaha, Brian Z., Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press, 2009) Review; Alschuler, Albert W., Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2000), p. 98.

[4] After quoting a passage from page 36 of Holmes's The Common Law about "the failure of all theories which consider law only from its formal side", Alschuler writes, "For generations, readers of this passage have inferred that someone (perhaps even someone notable) had attempted to deduce the entire corpus of law from a priori postulates. Why else would Holmes have disparaged the idea? Possibly some now-obscure German legal theorist fit Holmes's description of the deductive formalist bogeyman, but I know of no American who did". Alschuler, Albert W., Law Without Values, p. 98.

[5] Capurso, Timothy J., "How Judges Judge: Theories on Judicial Decision Making," University of Baltimore Law Forum, vol. 29, no. 1 (Fall 1998)

[6] Lyons, David, "Legal Formalism and Instrumentalism-a Pathological Study," Cornell Law Review, vol. 66, issue 5 (June 1981).

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