LEGAL

FORMALISM
Jan Paul Claudio
Lea Joyce Lansang
James Ryan Villena
 What is

FORMALISM?
What can you say about
these paintings?
 What is

FORMALISM?
Form over content
Formalist
Literal content
“Rules of the Game”
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 the
game,” 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. .
 Who are these?
Procedurally Formalist
Transactionally Formalist
Administratively Formalist
Rule Formalist
Textual Interpretative Formalist
Precedential Interpretative Formalist
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.
-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 legal
order, 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).
 What is

LEGAL
FORMALISM?
“Judges should apply the
law and not make it.”
-An example of pejorative use: “What is legal formalism? That’s
‘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 process

hinges on the application of the legal rule or rules on the facts of the
case.”
 The formalist concept of the
adjudicative process hinges on the
application of the legal rules on the
facts of the case.

-PASCUAL
 AREAS
Legal Formalism is prominent:

(5)Constitutionalism
(6)Statutory Construction
-2 AREAS Legal Formalists are prominent:

(1) Constitutional Law

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

(2) Statutory Construction

-Formalism is associated with “plain meaning” theory—that
statutes should be interpreted so that the words and phrases have their
ordinary meaning.
 Formalism is
CONCEPTUA
LISM.
-(by Legal dictionary):

Legal Formalism also known as CONCEPTUALISM.

-Formalists believe that in the same way a

mathematician or scientist identifies the relevant
axioms, applies them to given data.

-Relies on inductive reasoning.

 Formalism relies on

INDUCTIVE
REASONING.
 Formalism is an
IMPORTANT
CONTESTED
CATEGORY.
-(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, as
well 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.
 Where did
FORMALISM
come from?
-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 state
judges 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 redistributions
of 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.
 From AMERICAN ERAS:

(4)Courts were not legislatures

(5)Judge is different from jury.
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 in
individual 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 and
jury.
-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.
 2 HISTORICAL PHENOMENA:

•Primitive Formalism.
•Formulary Justice.
-MODERN USE (from Encyclopedia of Social &Behavioral
Sciences):
-Modern law, in the 19th century view, was characterized by its
movement 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 19th
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.
How does Legal
Formalism define

LAW?
 Law
is more or less a “closed”
NORMATIVE system.
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 recognized
by 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 or
nonsensical-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.
 Formalism seeks the
SEPARATION
OF POWERS.
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.
“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 English
law, 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 only if 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
 Formalism
•Use 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 proper
logical method (that is not objective)
to determine the truth
 Formalism

•Adjudication should be
objective, apolitical and value-
neutral process

•Commitment to consistency
and objectivity
 Anti-Formalism
•Claims adherence to values of democracy
by saying that the judiciary has the
obligation to enforce limits on government by
restraining other branches to protect
individual rights and liberties prescribed in
the Constitution

•Can’t avoid making controversial moral

value judgment in course of legal reasoning
•Skeptical about existence of one correct
legal method
•Law is dynamic and evolves over time
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
judgments from legal reasoning
 FORMALISM –POSITIVISM

•Virtually the same view, except that

formalism takes the judge’s
standpoint, whereas positivism takes
the legislator’s standpoint
•However, this has significant
consequences in terms of justification
of the law
•Formalists stress the internal
coherence of the law, whereas
positivists stress its ultimate
source (Hobbes’ sovereign or
 FORMALISM –POSITIVISM

Legal formalists try to codify the judge’s

conscience in terms of Aristotle’s 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 is
potentially implicated in redressing any
damages
 FORMALISM –POSITIVISM

The difference between commutative and

distributive justice depends on the terms in
which people are thought to have consented to
the legal system.
Commutative = Everyone equally consented
and have benefited sufficiently equally
Distributive = Not everyone has consented to
the same extent and have not benefited to
the same extent
 FORMALISM –POSITIVISM

•Legal formalism and positivism claim to go back

to the most basic function of the law, which is to
provide an accountable mechanism for dispute
resolution

•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)

Formalism

TODAY
 Proponents
•One who argues in support of something;
an advocate.
•a person who makes a proposal or
proposition
•a person who espouses or supports a
cause, etc.
•LAW one who propounds something, esp.
a will for probate
Justice Antonin Scalia of the US Supreme
Court
•his view that the US Constitution should be interpreted in
accord with its original meaning
•his view that statutes whould be read in accord with their
plain meaning.
•“Legal Formalism is a theory that law is a set of rules and
principles independent of other political and social
institutions.”
EXAMPLE:
–In his A Matter of Interpretation, he said: “A murderer
has been caught with blood on his hands, bending over
the body of his victim, a neighbor with a video camera
has filmed the crime and the murderer has confessed in
writing and on videotape. We nonetheless insist that
before the state can punish this miscreant, it must
conduct a full-dress criminal trial that results in a verdict
of guilty.”
Christopher Columbus Langdell- father of US legal formalism

•Compared the study of law to the study of

science, and suggested that law school
classrooms were the laboratories of
jurisprudence.

•Judicial reasoning parallels the reasoning used

in geometric proofs.

•Urged professors of law to classify and arrange

legal principles much as taxonomist organizes
plant and animal life.
 Professor Ronal Dworkin
•Although stops short of explicitly comparing law to
science and math, he maintains that law is best
explained as a rational and cohesive system of
principles that judges must apply with integrity.

•The principle of integrity requires that judges provide

equal 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 presenting
knotty and polemical political questions.
 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.
 Sir Edward Coke
•Coke believed that the common law was “the
peculiar science of judges.”

•The common law represented the “artificial

perfection of reason” obtained through “long
study, observation, and experience.”

•Only lawyers, judges, and others trained in

the law could fully comprehend and apply this
highest method of reasoning.

•Even the king and queen of England, was

not sufficiently learned to do so.
 DISSENTERS
•Political dissent refers to any expression
designed to convey dissatisfaction with or
opposition to the policies of a governing body.
Such expression may take forms from vocal
disagreement to civil disobedience to the use
of violence. Historically, repressive
governments have sought to punish political
dissent. The protection of freedoms that
facilitate peaceful dissent has become a
hallmark of free and open societies.
 Justice Oliver Holmes
•Law consists of “the prophesies of what the
courts will do in fact and nothing more
pretentious.”

•PASCUAL says: “Holmes condemned the

‘black-and-white’ approach. He stated that ‘a
body of law is more rational and more
civilized when every rule it contains is referred
articulately and definitely to an end which it
serves, and when the grounds for desiring
that end are stated or are ready to be stated
in word.”
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.
 False dichotomy
•also called a false dilemma, either or, black or white,
the missing middle
•you are presented with two choices, when in fact there
are more than two choices. If one choice is
discredited, 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 Creation
science must be right."
•The dichotomy can also be in the form of a question,
which not only restricts choices but also forces a
decision.
•Example:
–a salesman will ask "Do you want the red car or
the blue one."
False Dichotomy of Pragmatism and Ideology

•In the legal world, the antithesis of pragmatism is legal

formalism, which is broadly understood to be the
mechanical application of law to a situation., in contrast
to the policy driven judicial legislation of a pragmatic
judge.
•In the political arena, pragmatism is in contrast with
ideology, and the innate boundaries that political ideals
set on enacting the best solution.
•In accordance with these parameters, pragmatism
and idealism/legal formalism are consistently in conflict
with each other, and are thought to be mutually
exclusive.
•The dichotomy has been exploited recently as a
weapon in both the political and judicial forums.
Come back of Legal Formalism

•One reason for the comeback is the

realization that extreme versions of
instrumentalism make it very difficult to know
what the law is, in advance of a judge’s
decision in a particular case.
•The point of HARD LAW is that they provide
certainty, stability, and predictability to the
law.
•Purposes provide less guidance, and
different judges are likely to have different
opinions about what the true purposes of the
rule may be.
 Conclusion
•In jurisprudence, a question of law (also known as a
point of law) is a question which must be answered by
applying relevant legal principles, by an interpretation
of the law. Such a question is distinct from a question
of fact, which must be answered by reference to facts
and evidence, and inferences arising from those facts.
Answers to questions of law are generally expressed in
terms of broad legal principles, and are capable of
being applied to many situations, rather than being
dependent on particular circumstances or factual
situations. An answer to a question of law as applied to
the 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 leave
their 10 year-old child home alone with their baby
for 4 days?
–Question of law: Does leaving a baby with a 10-
year old child for 4 days fit the legal definition of
child neglect?