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FORMALISM EXPLAINED Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts by their Plain Meaning , 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: judicial shall never exercise the legislative and executive powers, or either of them; to the end [that Massachusetts' government 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''." Larry Solum's Legal Theory Lexicon describes Formalism as: :"'' {Link without Title} 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''. FORMALISM COMPARED TO LEGAL REALISM Legal formalism can be contrasted to legal instrumentalism, a view associated with American Legal Realism . Instrumentalism is usually 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 about good policy undermines the rule of law. FORMALISM CRITIQUED BY CRITICAL LEGAL THEORISTS Another critique of legal formalism has been offered by the Critical Legal Studies movement, which has argued, inter alia, that law is Indeterminate and that formalism ignores the relationship between law and the established power structure. Sammy Adelman & Ken Foster have written from this perspective that: :Legal formalism . . . has three principal dimensions.
:These characteristics of formalism are frequently hailed as virtues yet merely serve to emphasise the false separation of judgement from political and social factors. These characteristics are not broadly in dispute, and one's view of formalism will largely rest upon whether one sees these characteristics as virtues or vices. Adelman & Foster aver that Formalism engenders a "''false'' separation of judgement from political and social factors" (emphasis added); while they clearly regard this as a ''vice'' of the theory, an adherent of Formalism would see the separation of judgement from political and social factors as one of its principle ''virtues''. Adelman & Foster - on behalf of critical legal theorists - are distressed that legal formalism leads courts to condone injustice, while adherents of legal formalism note that to do otherwise is to take from the legislatures - and thus, the democratic process - the power to make laws for the governance of society, which is itself represented by the legislature. JUSTICE SCALIA & FORMALISM Justice Antonin Scalia of the United States Supreme Court is noted for his formalist views about a variety of topics, particularly his view that the United States Constitution should be interpreted in accord with its Original Meaning and his view that statutes should be read in accord with their Plain Meaning . In ''A Matter of Interpretation'', Scalia defended textualism - and, by extension, formalism - saying: :Of all the criticisms leveled against textualism, the most mindless is that it is formalist. The answer to that is, ''of course it's formalistic!'' The rule of law is ''about'' form . . . A murderer has been caught with blood on his hands, bending over the body of his victim; a neighbour with a video camera has filmed the crime and the murderer has confessed in writing and on videotape. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. Is that not formalism? Long live formalism! It is what makes us a government of laws and not of men. Scalia's strongest claim on Formalist credentials can be found in an essay entitled ''The Rule of Law as a Law of Rules'' . Scalia's performance as a Supreme Court justice has led some commentators to claim that his attachment to originalism is dropped when it conflicts with his politically preferred outcome (eg. his treatment of the Interstate Commerce Clause in his concurring opinion in '' Gonzales V. Raich ''). FOOTNOTES AND REFERENCES |
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