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 describe any judicial decision, style of legal thinking, or legal theory with which the user of the term disagrees.
Evidence
Often an alleged attack on the “reasoning” of the court is really a disagreement with the value judgment implicit in the court’s major premise—a disagreement with the court’s selection and interpretation of the applicable legal precept. — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 451 (
#corroborates, via linked claim)
Categorization
- XREF: connects to: 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, either as a description of how decisionmaking can take place or as a prescription for how decisionmaking should take place.; 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.; 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 used as a blanket condemnation of a decisionmaking process; instead the debate regarding decision according to rules should be confronted on its own terms. (+5 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 0.91)
- 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 0.90)
- Decision by rule has genuine virtues that formalism deserves credit for. (similarity 0.87)
- Formalism is a central and distinctive feature of law (similarity 0.86)
- Formalism’s refusal to consider variable factors is what gives rules their force. (similarity 0.85)
- Formalism disguises the need for judicial choice by freezing rule meaning (similarity 0.85)
- Formalism answers legal questions by pedigree, not by what works. (similarity 0.82)
- Formalism is treating as inexorable any choice that is not. (similarity 0.82)
- Nominalist legal theory reduces to an attack on mechanical jurisprudence (similarity 0.80)
- 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 0.80)
- Believing abstract legal terms are natural kinds hides the choices behind their application. (similarity 0.79)
- Legal formalism masks the class rule behind supposedly impersonal law. (similarity 0.79)
- Literal statutory interpretations are defeasible starting points (similarity 0.78)
- 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 0.78)
Broader Connections
- 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…
#expands(0.80) - 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…
#expands(0.75) - Legal critique often masks a disagreement over underlying value judgments.
#corroborates(0.60) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 451 - Formalism disguises the need for judicial choice by freezing rule meaning
#expands(0.50) — HLA Hart, The Concept of Law (Clarendon Law…, 370 - Believing abstract legal terms are natural kinds hides the choices behind their application.
#expands(0.50) — Frederick Schauer, Formalism, 31