Formalism’s refusal to consider variable factors is what gives rules their force.

Evidence

At the heart of the word “formalism,” in many of its numerous uses, lies the concept of decisionmaking according to rule. Formalism is the way in which rules achieve their “ruleness” precisely by doing what is supposed to be the failing of formalism: screening off from a decisionmaker factors that a sensitive decisionmaker would otherwise take into account. Moreover, it appears that this screening off takes place largely through the force of the language in which rules are written. Thus the tasks performed by rules are tasks for which the primary tool is the specific linguistic formulation of a rule. As a result, insofar as formalism is frequently condemned as excessive reliance on the language of a rule, it is the very idea of decisionmaking by rule that is being condemned — Frederick Schauer, Formalism, 9

Categorization

• DEFINE: Recasts formalism not as a pejorative but as the core mechanism of rule-following itself — the screening-off of factors is rule-ness, not a defect.
• XREF: Connects to welfarist/instrumental critiques of legal formalism and to the H.L.A. Hart-Fuller debate over the open texture of rules. — connects to: Formalism answers legal questions by pedigree, not by what works. — Richard A. Posner, What Has Pragmatism to Offer Law?, 90; Rules without concrete instances are meaningless hindrances — Burton, Steven J, An Introduction to Law and Legal…, 148; Rules necessarily overreach their justifications because of their intrinsic generality — Frederick Schauer, Thinking Like a Lawyer, 46 (+3 more)

Related

• Yet Professor Schauer argues that this aversion to formalism should be rethought At times language both can and should restrict decisionmakers. Consequently, the term formalistic should not be… (similarity 0.89)
• Once we disentangle and examine the various strands of formalism and recognize the way in which formalism, rules, and language are conceptually intertwined, it turns out that there is something,… (similarity 0.88)
• Decision by rule has genuine virtues that formalism deserves credit for. (similarity 0.87)
• The pejorative connotations of the word formalism, in concert with the lack of agreement on the word’s descriptive content, make it tempting to conclude that formalist is the adjective used to… (similarity 0.85)
• Formalism disguises the need for judicial choice by freezing rule meaning (similarity 0.84)
• Formalism is a central and distinctive feature of law (similarity 0.84)
• Formalism answers legal questions by pedigree, not by what works. (similarity 0.83)
• Formalism is treating as inexorable any choice that is not. (similarity 0.81)
• Legal formalism masks the class rule behind supposedly impersonal law. (similarity 0.80)
• Frederick Schauer — Formalism (similarity 0.80)
• Nominalist legal theory reduces to an attack on mechanical jurisprudence (similarity 0.79)
• Reductionist legal theories obscure the diverse functions of rules within a social system (similarity 0.79)
• Rules that always yield to rule-free optimization cease to function as rules (similarity 0.79)

Broader Connections

• Formalism disguises the need for judicial choice by freezing rule meaning #complicates (0.70) — HLA Hart, The Concept of Law (Clarendon Law…, 370
• Rules without concrete instances are meaningless hindrances #contradicts (0.60) — Burton, Steven J, An Introduction to Law and Legal…, 148
• Formalism is treating as inexorable any choice that is not. #complicates (0.60) — Frederick Schauer, Formalism, 34
• Rules necessarily overreach their justifications because of their intrinsic generality #expands (0.50) — Frederick Schauer, Thinking Like a Lawyer, 46