Mark Tushnet's Argument Against Formalism

Mark Tushnet stated “critical legal studies is a sustained attack on all types of formalism.”1 In the late 1970s a group of like minded left wing scholars came together at a conference and created a movement known as Critical Legal Studies (CLS). Their anti-establishment polemic attack opposed the legal orthodoxy of formalist legal doctrine. This essay will critically evaluate how the CLS movement challenged formalism. Firstly exploring the CLS challenge to the scientific approach of formalism, then considering their view on indeterminacy and the methods they used to reveal this. The concept of contradictions will be analysed and discussed with some examples. Finally in considering the different aspects of the essay draw conclusions of their challenge to formalism. Veitch states “Formalism is a theory about how law does contain within its formal, systematic structure all answers to the questions that can be posed in law and legal argument.”2 The essence of formalism assumes that the answers to legal disputes can be deduced and …show more content…
This concept is against the thinking of CLS scholars as highlighted by Russell “CLS critique is its attack on formalism... [T]he CLS caricature the notion that law is a deductive and autonomous science that is self-contained.”3 Formalists accepted law as science, in 1895 it was stated “An ideal system of law should draw its postulates and its legislative justification from science.”4 The closer we come to structuring a legal system that contains coherent and precise rules and scientifically analysed terms, the closer we will have a rational system of law.5 To consolidate this concept, attempts were made to establish patterns that were used to select precedents, and a logical structure of deduction by using syllogism. So determined were some academics to establish formalism as a science that in 1949 Lee Loevinger conducted a study which explored the study of scientific methods with