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)

Broader Connections