Formalism is a central and distinctive feature of law

Evidence

Justice Peckham’s formalism was the formalism of disingenuousness and fully entitled to the stigma it has attracted. When we look at another conception of formalism, however, the formalism of Justice Thurgood Marshall in United States v. Locke, for example, it is not so clear that formalism deserves to be treated as a vice at all. It is, to be sure, formalistic to take the literal meaning of the words “prior to December 31” in United States v. Locke as dictating a result other than what seems to be the most sensible one, because it is to treat the form of a legal rule as more important than its deeper purpose, or more important than reaching the best all-things-considered judgment in the particular context of a particular case. But although Locke is from this perspective formalistic, it is also formalistic in just the same way to use the 55-mile-per-hour speed limit to penalize the driver who is driving safely at 70, to penalize the short-swing trader who in fact has no inside information, to allow those with twenty-one-dollar claims to demand a jury trial, and to prohibit otherwise qualified thirty-four-year-olds from becoming president. In all of these cases, law operates formally in treating the meaning of the words of a rule as more important than achieving the law’s deeper purpose and reaching the ideal result in this particular case. Formalist this may be, but formalism is, as these and countless other examples demonstrate, a central feature of what makes law distinctive. — Frederick Schauer, Thinking Like a Lawyer, 54

Categorization

• DEFINE: Defines formalism as preferring the words of a rule over the best all-things-considered outcome, and argues it is law’s defining feature.
• XREF: connects to: 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, indeed much, to be said for decision according to rule—and therefore for formalism.; Formalism disguises the need for judicial choice by freezing rule meaning — HLA Hart, The Concept of Law (Clarendon Law…, 370; Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension — Richard A. Posner, What Has Pragmatism to Offer Law?, 96 (+10 more)

Related

• 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)
• 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 0.87)
• Decision by rule has genuine virtues that formalism deserves credit for. (similarity 0.86)
• 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 0.86)
• Formalism answers legal questions by pedigree, not by what works. (similarity 0.84)
• Formalism’s refusal to consider variable factors is what gives rules their force. (similarity 0.84)
• Formalism disguises the need for judicial choice by freezing rule meaning (similarity 0.84)
• Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension (similarity 0.80)
• The Rule of Law values predictability and uniformity over individual justice (similarity 0.80)
• Formalism is treating as inexorable any choice that is not. (similarity 0.79)
• Legal formalism masks the class rule behind supposedly impersonal law. (similarity 0.79)
• Nominalist legal theory reduces to an attack on mechanical jurisprudence (similarity 0.78)

Broader Connections

• 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,… #corroborates (0.85)
• Decision by rule has genuine virtues that formalism deserves credit for. #corroborates (0.80) — Frederick Schauer, Formalism, 10
• Formalism might be seen not as embodying an embarrassingly crude understanding of communication, but as a sensible and highly pragmatic response to institutional limits of generalist judges and… #expands (0.75)
• Formalism disguises the need for judicial choice by freezing rule meaning #qualifies (0.70) — HLA Hart, The Concept of Law (Clarendon Law…, 370
• Pragmatism inverts formalism by deriving legal rules from social need rather than semantic extension #complicates (0.65) — Richard A. Posner, What Has Pragmatism to Offer Law?, 96
• Deductive legal analysis applies established characteristic propositions to new cases #expands (0.60) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 680
• Patterson begins by characterizing contemporary jurisprudence as dominated by two approaches. In one, a body of law is explained in light of various principles or insights (often drawn from… #expands (0.50)