What is Legal Formalism?

This article was written by Anupam Tewatia, a student of Macquarie University, Sydney

Introduction

Legal formalism is considered to be one of most influential theories of adjudication and it marks the authority of law as a primary aspect for the decision making and adjudication of a dispute.[1] The term “Formalism” does not have its own status, it is merely a thought of philosophers like Homes, Pound and Frank[2]. Formalism beside its many uses, is the way in which the rules gets their “ruleness” by abiding to the rules and law directly and on the face of it, excluding the factors that a sensitive decision maker would take into account.[3]

Formalism has been originated from natural law and positivist varieties. Positivism is known as what the law is, and formalism is a positivist’s elaboration how the legal system functions. As discussed by Christopher Columbus, formalism and positivism both explain and consider law to be scientific.[4] The formalists, in a descriptive sense, believe that the decision makers provide a settlement according to the uncontroversial rules and facts. The final goal of formalism it to provide and formalise the underlying principles in a single and mundane system that the judges could apply while making a decision. That is another reason why formalism is called the “official theory of judging.”

Views of some philosophers

Jeremy Bentham and Lon Fuller have also influenced legal formalism in a significant manner while providing their views on the theories of adjudication. Bentham has always been in support of judges being the tutor of citizen’s expectations. He wanted to lessen the judges’ role in applying prima facie legal rules and statutory laws while resolving a case without considering any other legal factors. He believed that it can be done by proposing amendments to the code of legislature.[5]

According to Lon Fuller, the judges should not apply rules directly as per their literal meaning. Fuller believed that even in easy cases with clear literal meaning, judges should consider other aspects of the case rather than just rigidly following the statuary laws provided.

Demerits of Formalism

According to me as a researcher, formalism, even though it has been an essential part of jurisprudence and adjudication, has been overpowered and concentrated towards only one single aspect of a case. It is overpowered in the sense that it gives a huge responsibility to the judge who decides the case merely on the basis of rules and regulations provided in the statute and secondly, to the law makers of the country who are expected to make just and perfect laws for adjudication.

The American case of Palsgraf v Long Island Railroad [6] was marked as the first criticism related to formalism. The defendant was helping the consumer in lifting a package which was fragile and could explode. Due to the carelessness of the defendant, the package fell and exploded causing some injuries to the plaintiff. The explosion caused injuries to the plaintiff, the confusion was whether the defendant should be held responsible for all the harm and damages that have been cause by the explosion and defendant’s negligence.

The majority of judges held that the plaintiff could only be held liable for the injuries that has been given to the customers he was attempting to help. The other judges held that ‘because of convenience, of public policy, of a harsh sense of justice, the law unreasonably denies tracing a series of events beyond a definite stage. This is illogical and is practical politics’[7]

Merits of Formalism

Even though formalism has its ill effects on the adjudication process, it is safe to say that with ill effects it also has some beneficial aspects as well.

Formalists believe that law is ‘rationally’ definite, that implies that the legal reasons applicable to a judgement can only lead to one result and hence the adjudication is ‘autonomous’ where the judge can take a decision without taking into political or normative reasoning. Such formalists are also known as ‘sophisticated formalists’. The reason why Formalists insist that formalism is the accurate approach is due to the reason that if a judgement is made using the formalist approach as compared to for example, the realist approach, the formalist approach ensures that the controversial decision is taken by someone with democratic ancestry as opposed to the unelected judges following the realist approach.[8]

As formalism has also been considered very efficient in deciding a case as the judges directly look at the laws and rules making it an easy task for them. However, as formalism and the laws are common for all, it maintains a consistence and predictability among the society.

It is human nature for a person to be influenced by their economic, social, and personal background and judges are no exceptions. This influence is also indirectly reflected in their judgements. This influence and personal reinterpretation of rules risks the judiciary’s objectivity and impartiality too.

Conclusion

Formalism is something that in the modern world has been losing its creditability and the judges have given more freedom to adjudicate in a manner it is supposed to be done, giving more significance to the morality, ethics and non-legal manner which are crucial in deciding a case. It has its own merit and demerits; however the main purpose is to provide justice to the aggrieved party. According to me, without looking into the moral and ethical sphere of the case, it would be a bit difficult to do so. It is a famous saying that it is better to acquit an accused individual rather than to convict an innocent one and formalism has the characteristics to convict the innocent as it only plainly looks at the statutes while deciding a case.

Formalism also does not look at the modern aspects and lags behind in time which make it a bit difficult to continue, even though, with all the advantages it provides, the demerits are more deeper and essential in the process of adjudication.

[1] Grey, T. C, ‘Langdell’s Orthodoxy’ [1983] University of Pittsburgh Law Review, 45,.3.

[2] Neil Duxbury, ‘The Birth of Legal Realism and the Myth of Justice Holmes’ (1991) 20 Anglo-Am Law Rev 81,87.

[3] Frederick Schauer, ‘Formalism’ (1988) 97(4) Yale Law Journal 509.

[4] Ibid.

[5]  ‘Adjudication and Expectations: Bentham on the Role of Judges’ (2013) 25(2) Cambridge University Press 140.

[6] Palsgraf v Long Island Railroad 248 N.Y 339, 162 N.E. 99 (1928).

[7] Ibid.

[8] ‘Legal Formalism Theory Analysis’, Law Teacher (Web Page, 11 July 2019) https://www.lawteacher.net/free-law-essays/jurisprudence/legal-formalism-theory-analysis-0127.php#_ftn15.