Introduction
Legal formalism is a belief, in the capacity of legal rules, to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness. Formalism posits that judicial interpreters can and should be tightly constrained by the objectively determinable meaning of a statute; if unelected judges exercise much discretion in these cases, democratic governance is threatened. Legal-formalist have been severely criticised by, among others, legal realist and critical legal studies scholars.
This essay aims to discuss the criticism of legal formalism by the above mentioned movement and school of thought. This will be achieved by critically engaging with questions of whether criticisms of legal …show more content…
However, the most fundamental criticisms of the realist movement relates to their approach to rules, and the arbitrary nature of judicial decision making. One distinguished approach of the realist, the so-called predictive theory, is when a judge on the highest court sees the law as a prediction of what the judges will do. The argument against this theory is based on how the highest court is the final word on what the law will mean and there is no other court whose decisions the judges could try to predict. However, the legal realist did not offer a predictive theory of law which advances semantic claims about how we use words, they focused on prediction because of its practical significance for lawyers advising clients. In this regard, the realist have grounds to claim that their movement is misunderstood.
Criticism of legal formalism by legal-realist can be justified by the ultimate purpose of the realists. Unlike legal formalist that wanted to maintain a strict distinction between law as it is and law as it ought to be, the purpose of legal realist being the reform of the law, is that they believed that the ‘ought’ of the law could not be effectively advanced until the ‘is’ was clearly understood. Legal realist wanted people in the legal profession to spend more time thinking about how law appears on the ground: to citizens for whom the law only means prediction of what the trial judge will do in their
Legal formalism is a belief, in the capacity of legal rules, to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness. Formalism posits that judicial interpreters can and should be tightly constrained by the objectively determinable meaning of a statute; if unelected judges exercise much discretion in these cases, democratic governance is threatened. Legal-formalist have been severely criticised by, among others, legal realist and critical legal studies scholars.
This essay aims to discuss the criticism of legal formalism by the above mentioned movement and school of thought. This will be achieved by critically engaging with questions of whether criticisms of legal …show more content…
However, the most fundamental criticisms of the realist movement relates to their approach to rules, and the arbitrary nature of judicial decision making. One distinguished approach of the realist, the so-called predictive theory, is when a judge on the highest court sees the law as a prediction of what the judges will do. The argument against this theory is based on how the highest court is the final word on what the law will mean and there is no other court whose decisions the judges could try to predict. However, the legal realist did not offer a predictive theory of law which advances semantic claims about how we use words, they focused on prediction because of its practical significance for lawyers advising clients. In this regard, the realist have grounds to claim that their movement is misunderstood.
Criticism of legal formalism by legal-realist can be justified by the ultimate purpose of the realists. Unlike legal formalist that wanted to maintain a strict distinction between law as it is and law as it ought to be, the purpose of legal realist being the reform of the law, is that they believed that the ‘ought’ of the law could not be effectively advanced until the ‘is’ was clearly understood. Legal realist wanted people in the legal profession to spend more time thinking about how law appears on the ground: to citizens for whom the law only means prediction of what the trial judge will do in their