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,…

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.

Evidence

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. — Frederick Schauer, Formalism, 10 (#corroborates, via linked claim)

The vice known to legal theory as formalism or conceptualism consists in an attitude to verbally formulated rules which both seeks to disguise and to minimize the need for such choice, once the general rule has been laid down. One way of doing this is to freeze the meaning of the rule so that its general terms must have the same meaning in every case where its application is in question. — HLA Hart, The Concept of Law (Clarendon Law…, 370 (#contradicts, via linked claim)

Categorization

• corroborated: 2 independent passages support this claim
• XREF: connects to: Formalism is a central and distinctive feature of law — Frederick Schauer, Thinking Like a Lawyer, 54; In this Article, Professor Schauer examines divergent uses of the term ‘formalism’ to elucidate its descriptive content. Conceptions of formalism, he argues, involve the notion that rules constrict the choice of the decisionmaker. Our aversion to formalism stems from denial that the language of rules either can or should constrict choice in this way. Yet Professor Schauer argues that this aversion to formalism should be rethought: At times language both can and should restrict decisionmakers.; …it casts light on central questions that might otherwise be obscured. At a minimum, we urge that an appreciation of institutional capacities and dynamics is essential to understanding the debate over formalism versus anti-formalism. (+7 more)

Related

• Decision by rule has genuine virtues that formalism deserves credit for. (similarity 0.92)
• 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 0.92)
• 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 0.90)
• Formalism disguises the need for judicial choice by freezing rule meaning (similarity 0.89)
• Formalism’s refusal to consider variable factors is what gives rules their force. (similarity 0.88)
• Formalism is a central and distinctive feature of law (similarity 0.88)
• Indeed it is possible that specialized interpreters should reject formalism but that nonspecialists should embrace it; and academic specialists are unlikely to appreciate this point. Our principal… (similarity 0.84)
• Formalism answers legal questions by pedigree, not by what works. (similarity 0.84)
• …it casts light on central questions that might otherwise be obscured. At a minimum, we urge that an appreciation of institutional capacities and dynamics is essential to understanding the… (similarity 0.83)
• Formalism’s value depends on the interpreter’s specialization level. (similarity 0.81)
• Reductionist legal theories obscure the diverse functions of rules within a social system (similarity 0.81)
• Nominalist legal theory reduces to an attack on mechanical jurisprudence (similarity 0.81)
• Legal formalism masks the class rule behind supposedly impersonal law. (similarity 0.81)
• Formalism is treating as inexorable any choice that is not. (similarity 0.80)
• Literal statutory interpretations are defeasible starting points (similarity 0.79)

Broader Connections

• Decision by rule has genuine virtues that formalism deserves credit for. #corroborates (0.85) — Frederick Schauer, Formalism, 10
• 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… #corroborates (0.80)
• Formalism disguises the need for judicial choice by freezing rule meaning #contradicts (0.70) — HLA Hart, The Concept of Law (Clarendon Law…, 370
• 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… #corroborates (0.60)
• 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 (0.40)
• Interpretive debates require attention to institutional capacities and dynamic effects. #expands (0.40) — Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 19