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.
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 (
#expands, via linked claim)
Categorization
- corroborated: 12 independent passages support this claim
- XREF: connects to: Sincerity can be an active ingredient of self-deception rather than its opposite — Ann Laura Stoler, Along the Archival Grain_ Epistemic…, 1405; 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. (+4 more)
Related
- Formalism is treating as inexorable any choice that is not. (similarity 0.94)
- Thus, choice is masked by the language of linguistic inexorability. (similarity 0.92)
- 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 0.90)
- 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 0.87)
- Believing abstract legal terms are natural kinds hides the choices behind their application. (similarity 0.79)
- 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 0.78)
Broader Connections
- Formalism is treating as inexorable any choice that is not.
#expands(0.80) — Frederick Schauer, Formalism, 34