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.
Evidence
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 (
#complicates, via linked claim)
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 (
#qualifies, via linked claim)
Categorization
- XREF: connects to: Rules necessarily overreach their justifications because of their intrinsic generality — Frederick Schauer, Thinking Like a Lawyer, 46; Defending the idealized version of a practice cannot guide real-world policy — , The Rod and the Child: A Global History…, 6473; 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. (+11 more)
Related
- 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 0.92)
- 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 0.91)
- Formalism’s refusal to consider variable factors is what gives rules their force. (similarity 0.89)
- Formalism is treating as inexorable any choice that is not. (similarity 0.89)
- Formalism disguises the need for judicial choice by freezing rule meaning (similarity 0.89)
- Decision by rule has genuine virtues that formalism deserves credit for. (similarity 0.88)
- Formalism is a central and distinctive feature of law (similarity 0.87)
- 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 0.87)
- Thus, choice is masked by the language of linguistic inexorability. (similarity 0.86)
- 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 0.85)
- Believing abstract legal terms are natural kinds hides the choices behind their application. (similarity 0.84)
- Legal formalism masks the class rule behind supposedly impersonal law. (similarity 0.83)
- Formalism answers legal questions by pedigree, not by what works. (similarity 0.81)
- Nominalist legal theory reduces to an attack on mechanical jurisprudence (similarity 0.81)
- Frederick Schauer — Formalism (similarity 0.81)
Broader Connections
- 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…
#exemplifies(0.70) - Formalism disguises the need for judicial choice by freezing rule meaning
#complicates(0.60) — HLA Hart, The Concept of Law (Clarendon Law…, 370 - Formalism is treating as inexorable any choice that is not.
#qualifies(0.55) — Frederick Schauer, Formalism, 34