Formalism is treating as inexorable any choice that is not.

Evidence

Formalism may be more broadly viewed as extending to any justification that treats as inexorable a choice that is not. In this broader sense, the claimed inexorability might come from something other than rule formulations. To mask, for example, a political, moral, or social choice in the language of “original intent” when original intent in fact does not provide a uniquely correct answer to the issue might be considered formalistic in the same way that masking a political, moral, or social choice in the language of the meaning of a rule is considered formalistic when that language does not provide a uniquely correct answer. Similarly, masking choice in the language of mathematical economic derivation or in the language of a unique solution to some “balance” might be considered formalistic if these methods are in fact comparatively indeterminate. — Frederick Schauer, Formalism, 34

Categorization

• DEFINE: Broadens formalism beyond rule-following to any technique that obscures genuine discretion, including originalism and economic modeling.
• XREF: Connects to debates in originalism and law-and-economics about whether those methods truly constrain judicial choice. — connects to: Thus, one view of the vice of formalism takes that vice to be one of deception, either of oneself or of others. To disguise a choice in the language of definitional inexorability obscures that choice and thus obstructs questions of how it was made and whether it could have been made differently. Use of the word ‘formalism’ in this sense hinges on the existence of a term (or phrase, sentence, or paragraph) whose contested application generates the choice. Some terms, like ‘liberty’ and ‘equality,’ are pervasively indeterminate. It is not that such terms have no content whatsoever; it is that every application, every concretization, every instantiation requires the addition of supplementary premises to apply the general term to specific cases. Therefore, any application of that term that denies the choice made among various eligible supplementary premises is formalistic in this sense.; Although Lochner is criticized for the length of its reach, a closer look reveals that it is not the result that is condemned as formalistic but rather the justification for that result. The formalism in Lochner inheres in its denial of the political, moral, social, and economic choices involved in the decision, and indeed in its denial that there was any choice at all.; Thus, one view of the vice of formalism takes that vice to be one of deception, either of oneself or of others. To disguise a choice in the language of definitional inexorability obscures that choice and thus obstructs questions of how it was made and whether it could have been made differently. (+14 more)

Related

• Thus, one view of the vice of formalism takes that vice to be one of deception, either of oneself or of others. To disguise a choice in the language of definitional inexorability obscures that… (similarity 0.94)
• Although Lochner is criticized for the length of its reach, a closer look reveals that it is not the result that is condemned as formalistic but rather the justification for that result. The… (similarity 0.92)
• Thus, choice is masked by the language of linguistic inexorability. (similarity 0.90)
• 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)
• Believing abstract legal terms are natural kinds hides the choices behind their application. (similarity 0.84)
• 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 0.82)
• Formalism’s refusal to consider variable factors is what gives rules their force. (similarity 0.81)
• 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 0.80)
• Decision by rule has genuine virtues that formalism deserves credit for. (similarity 0.80)
• Formalism disguises the need for judicial choice by freezing rule meaning (similarity 0.79)
• Formalism is a central and distinctive feature of law (similarity 0.79)

Broader Connections

• Lochner is merely one example in which a false assertion of inexorability is decried as formalistic. Much contemporary criticism of Blackstone, Langdell, and others of their persuasion attacks… #exemplifies (0.90)
• Formalism disguises the need for judicial choice by freezing rule meaning #expands (0.85) — HLA Hart, The Concept of Law (Clarendon Law…, 370