formalism_report (group 12)

8/14/2019 Formalism_report (Group 12)

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LEGAL

FORMALISM

Jan Paul Claudio

Lea Joyce Lansang

James Ryan Villena


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What is

FORMALISM?


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What can you say about

these paintings?


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What is

FORMALISM?Form over content

Formalist

Literal content

Rules of the Game


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Formalism describes an emphasis on form over content or meaning in the arts,

literature, or philosophy.

-A practitioner of formalism is called a formalist.

-A formalist holds that there is no transcendent meaning to that discipline other

than the literal content created by the practitioner.

-EXAMPLE: Formalists within mathematics claim that mathematics is no more

than the symbols written down by the mathematicians, which is based on logic

and a few elementary rules alone.

-This is as opposed to non-formalists, within that field, who hold that there are

some things intuitively true, and are not, necessarily, dependent on the symbols

within mathematics so much as a greater truth.

-Formalist within a discipline are completely concerned with the rules of thegame, as there is no other external truth that can be achieved beyond those

given rules.

-Formalism lends itself well to the disciplines based upon axiomatic system. .


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Who are these?Procedurally Formalist

Transactionally Formalist

Administratively Formalist

Rule FormalistTextual Interpretative Formalist

Precedential Interpretative Formalist


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FORMALISM AS A DESCRIPTIVE CATEGORY:

(From Encyclopedia of Social and Behavioral Sciences):

-Greater or lesser formalism is one of the dimensions along which we compare legal regimes and

assess internal change, whether at the level of detail, of large ensemble of rules.

-In this usage, no positive or negative evaluation is indicated by categorizing a body of legal rules as

more or less formal or formalist.

-A system is procedurally formalist to the extent that it makes the success of a substantive legal

claim depend on following procedural rules (Schauer 1988).

-It is transactionally formalist to the extent that it requires specific formalities for transactions such as

contracts or marriages (von Jhering 1869, Demogue 1911, Fuller 1941).

-It is administratively formalist to the extent that it surrounds the exercise of state power with

procedural and transactional formalities.

-Rule formalism is a general preference for rules over standards.

-2 important dimensions of formality:(1) degree of insistence on compliance with formalities (what exceptions are permitted),

(2) degree f absoluteness of the sanction of nullity for failure to comply (what remedies, if any, for a

person who fails to comply).

-The degree of formality varies within systems, between systems, and over time.

-What binds the types together is the willingness of the formalist to sacrifice substantive justice (or

equity) in the the particular case.


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-A different descriptive use of the legal formalism refers to a range of

techniques of legal interpretation based on the meaning of norms (whether

established privately, as in contracts, or publicly, as in statutes), and refusing

reference to the norms purposes, the general politics underlying the legalorder, or the extra-juristic preferences of the interpreter.

-Textual interpretive formalism decides by identifying a valid norm applicable

to the case and then applying it by parsing the meaning s of the words that

compose it.

-Textual formalism is literalist to the extent that it refuses to vary meaning

according to context, and originalist to the extent that it finds meaning only

through the context at the time of enactment (Schauer 1988).

-Conceptual interpretative formalism constructs general principles thought

necessary if the legal system is to be understood as coherent.

-Precedential interpretative formalism interprets according to the meaning of

norms derived as the holdings of prior cases (Grey 1983).


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What is

LEGAL

FORMALISM?


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Judges should apply the

law and not make it.


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-An example of pejorative use: What is legal formalism? Thats

mechanical jurisprudence, when a judge decides a case without

thinking about the purpose of the rule.

-EXAMPLES of formalist quotes by scholars:

(1) Judges should apply the law and not make it.

(2) There are legal rules that constrain what legal actors may lawfully

do.

(3) There is a difference between following the law and doing what you

think is best.(4) Judges should decide cases in accord with the text of the applicable

constitutional or statutory provision or with the holding of controlling

precedents.

-PASCUAL definition: The formalist concept of the adjudicative processhinges on the application of the legal rule or rules on the facts of the

case.


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AREASLegal Formalism is prominent:

(5)Constitutionalism(6)Statutory Construction


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-2 AREAS Legal Formalists are prominent:

(1) Constitutional Law

-Formalism is associated with originalism, the view that theconstitution should be interpreted in accord with its original meaning.

(2) Statutory Construction

-Formalism is associated with plain meaning theorythat

statutes should be interpreted so that the words and phrases have their

ordinary meaning.


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Formalism is

CONCEPTUA

LISM.


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-(by Legal dictionary):

Legal Formalism also known as CONCEPTUALISM.

-Formalists believe that in the same way amathematician or scientist identifies the relevant

axioms, applies them to given data.

-Relies on inductive reasoning.


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Formalism relies on

INDUCTIVEREASONING.


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Formalism is anIMPORTANT

CONTESTED

CATEGORY.


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-(from Encyclopedia of the Social & Behavioral Sciences): LF is

an important category in the (1) history of law, (2) the sociology

of law, (3) comparative law, and the (4) cultural study of law, aswell as in the (5) philosophy of law and the interdisciplinary field

currently called (6) legal theory.

-It is used in different senses these different fields, and within

each field it is a contested concept, rather than a well-established term with a clear meaning.

-The Encyclopedia of the Social & Behavioral Sciences presents

a catalogue of different usages and a brief introduction to the

modes of contestation of the meaning of the term.


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Where did

FORMALISMcome from?


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-LAW AND POLITICS:

-Jacksonian Democrats identified the law as a bastion of elitism that stood in the

way of government by the people.

-The shift from appointment to election as the dominant method for choosing stateudges reflected the belief that voters could adequately understand legal issues

and should be able to control the bench.

-After 1846 every new state provided for election of at least part of the judiciary, the

supreme courts of Michigan and Pennsylvania became elective bodies in 1850.

-Following the Panic of 1837 led to a long period of economic stagnation that led to

widespread dissatisfaction with the strategies used to foster development, including

the candid formulation of economic policies by the courts.

-The acknowledgement of sharpening class divisions during this economic

downturn prompted the beneficiaries of open-ended judicial powers to foresee that

future courts might use the same policy-making flexibility to approve redistributionsof wealth in favor of the disadvantaged.

-These pressures shaped new assertions of the old idea that the legal

decision0making process was neutral, objective activity unlike the political contest

of interests and subjective values.


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From AMERICAN ERAS:

(4)Courts were not legislatures(5)Judge is different from jury.


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FORMALISM was the most powerful response to these challenges, because

it maintained that judicial decisions should be based on abstract, general

rules rather than explicit policy considerations or an evaluation of fairness inindividual cases.

-By emphasizing what it was not, formalism identified two important areas of

institutional conflict for a judiciary struggling to consolidate the power that it

had successfully claimed in the first half of the century:

(1) Formalism underscored the courts were not legislatures.

-To the contrary, courts increasingly cast themselves in opposition to

legislatures as defenders of timeless values and exercised the authority to

declare statutes unconstitutional.

(2) Legal formalism enforced reinforced the distinctions between judge andury.

-Fundamental inquiries such as the question, whether two parties

had formed a legally binding contract, came to be regarded as issues of law

to be decided by a judge rather than issues of fact to be decided by a jury.


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2 HISTORICAL PHENOMENA:

Primitive Formalism.Formulary Justice.


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-MODERN USE (from Encyclopedia of Social &Behavioral

Sciences):

-Modern law, in the 19th

century view, was characterized by itsmovement beyond both primitive formalism and formulary justice,

but had to find a way to preserve some of the virtues of these

earlier systems.

-It is derived from the work of leading legal theorists of the late 19 th

centuries who were much concerned with 2 historical phenomena

that play little role in the late 20th century discussion.

(6)PRIMITIVE FORMALISM- The practice of deciding disputes

through devices such as oracles and trial by battle, regarded as

irrational.

(2) FORMULARY JUSTICE/ STRICT LAW of the ancient Roman

and medieval English system- Claimant could get redress through

the legal system only by putting his case into a closed class of

actions.


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How does Legal

Formalism define

LAW?


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Law

is more or less a closedNORMATIVE system.


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Definition of Law

-HOW do different schools of thought define law?

Formalism proposes that law is a science.

Realism holds that law is just another name for politics.

Positivism suggests that law must be confined to the written rules and regulations enacted or recognizedby the government.

Naturalism maintains that the law must reflect eternal principles of justice and morality that exists

independent of governmental recognition.

-LAW- is a more or less closed normative system.

-Judges should apply law in sort of mathematical fashion without any regard to real-life normative or

policy issues.

-Judges should not concern themselves with whether the law is good or bad, just or biased, sound ornonsensical-all those issues are for the legislature to decide.

-The formalistic logic would tend to work well with Aristotelian logic of definition by closed sets of

necessary and sufficient conditions, yet is deficient when applied to areas where definition by family

resemblance (Wittgenstein) is more suitable.

-EXAMPLES:

(1) In private law, such tight systems as the law of negotiable instruments are frequently described as

formalistic because decisions rest on a relatively closed-set of logically-organized rules.

(2) Contract law tends to be more relational than formalistic as it deals with much wider sets of relations

and cases.

-IN SHORT, legal formalism thus needs not be a manifestations of positivistic commitments, but can be

justified in some areas on functional grounds.


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Formalism seeks the

SEPARATIONOF POWERS.


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On Separation of Powers:

-Legal formalists argue that judges and other public officials should be

constrained in their interpretation of legal texts.

-Formalism seeks to maintain the separation of powers.

-EXAMPLE: Investing the judiciary with the power to say what the law

should be, rather than confining them to expositing what the law does

say, violates the separation of powers.


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Under the principle of separation of powers and the system of

checks and balances, the judicial authority to review decisions of

administrative bodies or agencies is much more limited, as

regards findings of fact made in said decisions. Under the Englishlaw, the reviewing court determines only whether there is some

evidentiary basis for the contested administrative finding; no

quantitative examination of the supporting evidence is undertaken.

The administrative finding can be interfered with onlyif there is no

evidence whatsoever in support thereof, and said finding is,

accordingly, arbitrary, capricious and obviously unauthorized. This

view has been adopted by some American courts. It has, likewise,

been adhered to in a number of Philippine cases. xxx

-LANSANG vs. GARCIA

No. L-33964 Dec 11, 1971


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FormalismUse judicial restraint and deference

to give the legislature more rein and

to maintain a strict separation

between law and politics

Judiciary should find rather than

make law there is a properlogical method (that is not objective)

to determine the truth


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Formalism

Adjudication should be

objective, apolitical and value-neutral process

Commitment to consistency

and objectivity


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Anti-FormalismClaims adherence to values of democracy

by saying that the judiciary has theobligation to enforce limits on government by

restraining other branches to protect

individual rights and liberties prescribed in

the Constitution

Cant avoid making controversial moral

value judgment in course of legal reasoningSkeptical about existence of one correct

legal methodLaw is dynamic and evolves over time


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Anti-Formalism

Following precedent but allowing

room for advance in

science/medicine/progressive thought

Its impossible and maybe undesirable

to eliminate role of subjective value

udgments from legal reasoning


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FORMALISM POSITIVISM

Virtually the same view, except thatformalism takes the judgesstandpoint, whereas positivism takesthe legislators standpoint

However, this has significantconsequences in terms of justificationof the law

Formalists stress the internalcoherence of the law, whereaspositivists stress its ultimate

source (Hobbes sovereign or


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Legal formalists try to codify the judgesconscience in terms of Aristotles distinction

between commutative and distributive justice

(Weinrib)

Commutative justice = the convicted

defendant is solely responsible for redressing

the damage done to the plaintiff

Distributive justice = all of society ispotentially implicated in redressing any

damages


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The difference between commutative anddistributive justice depends on the terms in

which people are thought to have consented to

the legal system.

Commutative = Everyone equally consentedand have benefited sufficiently equally

Distributive = Not everyone has consented to

the same extent and have not benefited to

the same extent


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Legal formalism and positivism claim to go back

to the most basic function of the law, which is toprovide an accountable mechanism for disputeresolution

There are two senses in which positivism and

formalism are concerned with arbitrariness in the law:

Bad arbitrariness = law does not involve the

consent of the governed (e.g. common law, natural

law, church law according to Jeremy Bentham)Good arbitrariness = positive law binds only

because it has the consent of the governed not

because of any transcendental significance (e.g.

contract law)

(Holmes, O, The Common Law, 1. Little Brown and Company, Boston)


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Formalism

TODAY

( p y )


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Proponents

One who argues in support of something;an advocate.

a person who makes a proposal orproposition

a person who espouses or supports a

cause, etc.LAW one who propounds something, esp.

a will for probate


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Justice Antonin Scalia of the US Supreme

Courthis view that the US Constitution should be interpreted in

accord with its original meaninghis view that statutes whould be read in accord with their

plain meaning.

Legal Formalism is a theory that law is a set of rules andprinciples independent of other political and socialinstitutions.

EXAMPLE:In his A Matter of Interpretation, he said: A murdererhas been caught with blood on his hands, bending overthe body of his victim, a neighbor with a video camera

has filmed the crime and the murderer has confessed inwriting and on videotape. We nonetheless insist thatbefore the state can punish this miscreant, it must

conduct a full-dress criminal trial that results in a verdictof guilty.


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Christopher Columbus Langdell- father of US legal formalism

Compared the study of law to the study ofscience, and suggested that law schoolclassrooms were the laboratories ofjurisprudence.

Judicial reasoning parallels the reasoning usedin geometric proofs.

Urged professors of law to classify and arrangelegal principles much as taxonomist organizesplant and animal life.


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Professor Ronal Dworkin

Although stops short of explicitly comparing law toscience and math, he maintains that law is bestexplained as a rational and cohesive system ofprinciples that judges must apply with integrity.

The principle of integrity requires that judges provideequal treatment to all litigants presenting legal claims

that cannot honestly be distinguished.

Application of the principle of integrity will produce a

right answer in all cases, even cases presentingknotty and polemical political questions.


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John Chipman Gray

Law is the whole system of rules applied by

the courts and that a law or statute is only a

source of law.


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Sir Edward Coke

Coke believed that the common law was thepeculiar science of judges.

The common law represented the artificialperfection of reason obtained through longstudy, observation, and experience.

Only lawyers, judges, and others trained in

the law could fully comprehend and apply thishighest method of reasoning.

Even the king and queen of England, wasnot sufficiently learned to do so.


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DISSENTERS

Political dissent refers to any expressiondesigned to convey dissatisfaction with or

opposition to the policies of a governing body.Such expression may take forms from vocaldisagreement to civil disobedience to the useof violence. Historically, repressivegovernments have sought to punish political

dissent. The protection of freedoms thatfacilitate peaceful dissent has become ahallmark of free and open societies.


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Justice Oliver Holmes

Law consists of the prophesies of what thecourts will do in fact and nothing morepretentious.

PASCUAL says: Holmes condemned theblack-and-white approach. He stated that abody of law is more rational and morecivilized when every rule it contains is referredarticulately and definitely to an end which it

serves, and when the grounds for desiringthat end are stated or are ready to be statedin word.


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JOHN AUSTIN & THOMAS HOBBES

They were strict positivists who

believed that the only authority courts

should recognize are the commands of

the sovereign because only the

sovereign is entrusted with the power

to back up a command with military

and police force.


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False dichotomyalso called a false dilemma, either or, black or white,the missing middleyou are presented with two choices, when in fact thereare more than two choices. If one choice isdiscredited, then the reader is forced to accept the

other choice. But this is not an adequate argument;the choice favored must be supported by evidence. Examples:

"If today is not Tuesday, it must be Wednesday.""Evolution science is in disarray, so Creationscience must be right."

The dichotomy can also be in the form of a question,which not only restricts choices but also forces adecision.Example:

a salesman will ask "Do you want the red car orthe blue one."


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False Dichotomy of Pragmatism and Ideology

In the legal world, the antithesis of pragmatism is legalformalism, which is broadly understood to be themechanical application of law to a situation., in contrastto the policy driven judicial legislation of a pragmatic

judge.In the political arena, pragmatism is in contrast withideology, and the innate boundaries that political idealsset on enacting the best solution.In accordance with these parameters, pragmatismand idealism/legal formalism are consistently in conflictwith each other, and are thought to be mutuallyexclusive.The dichotomy has been exploited recently as aweapon in both the political and judicial forums.


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Conclusion

In jurisprudence, a question of law (also known as a

point of law) is a question which must be answered byapplying relevant legal principles, by an interpretationof the law. Such a question is distinct from a questionof fact, which must be answered by reference to factsand evidence, and inferences arising from those facts.Answers to questions of law are generally expressed interms of broad legal principles, and are capable of

being applied to many situations, rather than beingdependent on particular circumstances or factualsituations. An answer to a question of law as applied tothe particular facts of a case is often referred to as a"conclusion of law".To illustrate the difference:

Question of fact: Did Mr. and Mrs. Jones leavetheir 10 year-old child home alone with their babyfor 4 days?

Question of law: Does leaving a baby with a 10-year old child for 4 days fit the legal definition ofchild neglect?

formalism_report (group 12)

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