What is the value, if any, of legal formalism?
Formalism is a self determining system that states: to reach the most fitting conclusion, judges must look to the existing bodies of law and engage in a purely mechanical deduction to produce single correct outcomes. However, the impracticality of this system deems the value of formalism void as the principle doesn 't always fit the facts.
Formalists strongly believe that the answers are already present within the law. They believe judges must look to existing bodies of law with limited judicial discretion to produce the correct conclusion. It is also viewed that there is no need to consider external non-legal factors, such as the judges own moral beliefs or the current political climate and
Herman Pritchett continued throughout the 19th century and its grip finally broke, through the efforts of Oliver Wendell Holmes, Benjamin N. Cardozo and the legal realists. The legal realists main desire was to discover how judicial decisions were reached in reality, and in pursuing this, they criticised the value of formalism and stated that in actuality, every answer to every case is not already present within the law. For example, in Dolan v Corby when the judge conflated the Family Law Act 1996 when considering whether to make an occupation order, he had exercised his discretion and therefore the consequent order could not be quashed. This shows that not all answers to cases are already present within the law, as here the judges used their discretion to overrule these legislative provisions.The realists rebelled against the mechanical model of courts and judges, arguing instead that legal decisions were a “mixture of law, politics and policy” and that judges’ decisions were influenced by their backgrounds, training, personality and ideology. The legal realists in political science cared about judicial behaviour and judicial decision making, not just about legal structures and
A solution, based in precedent, must be found to illustrate that judges are not consumed by their own opinions and agendas. Setting new precedent in the courtroom is essential to
Rehnquist, William H., Brennan, William J. "A Casebook on the Law and Society: What Rights
Law is a system of rules that are implemented throughout social establishments to govern behavior. A principle for judging acts as reasonable or unreasonable and they may seem objective, universal, and knowable, which dispositions are guide. Our function is rational activity, and our rational nature gives us dispositions when we are naturally disposed to seek to know, understand, and be
In contrary to its contemporary antagonist philosophical schools, who advocate the practices of humanness and the rightness and set ideal of the past, the Legalists, in their complete rejection of the traditional ethics, embraces the efficacy of political power and uphold a society of laws and punishments. As the old feudal states decayed and the smoke of endemic warfare suffused, the need for a more rational government that can afford greater centralized power so as to strengthen a state against its rival increased substantially among the Warring States. Such a rising urge necessitated the emergence of the Legalists and further predetermined the Legalists’ inherent nature – realistic, totalitarian and problem-solving – which, with the realization of its significance and duty in the stream of history, finds its hegemonic character as well.
Mr Justice Wilson, ‘Lectures on Advocacy and Ethics in the Supreme Court’ (1979) 15 Legal Research Foundation Inc.
In order to understand whether judges would be better at making decisions if they were more truthful, if is essential that an examination of the manner in which they decide cases is undertaken. Many judges will decide based on their own personal back ground. For example, if the judge had a clash in the past with a member of a different race that might play a role in the decision making process. Judicial impartiality is a fundamental characterized in a legal system under the rule of law. The law against bias together with the right to be heard from the principles of natural justice. Judicial proceedings must follow stricter procedural requirements. Implying that proceedings must be similar to those followed in court proceedings. If the requirement is not followed, the decision could be invalidated by a court if it is challenged. Plea bargaining in the United States is controversial issue because the practice of plea bargaining is necessary as long as the United States has high crime rates and facilities for cases. Plea bargaining allows the flexibility necessary if the system is to respond with any degree of concern for the circumstances of individual cases, however, it may also entice defendants to plead guilty to crimes they did not commit rather than risk their constitutional right to
Hird and Blair, ‘Minding your own business – Williams v Roffey revisited: Consideration reconsidered’ [1996] JBL 254
In this essay I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this is essay is the distinction between formal and substantive theories of the rule of law. In order to reach my conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil.
Like everything in life there are pros and cons. As a business owner you can help provide products, services, and jobs but it can also have its downfalls like causing personal liability exposure. The matric shows the types of forms that can be chosen, and a business can help reduce those liabilities by choosing the best organization form.
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
Rackley, E (2010). In Conversation with Lord Justice Etherton: Revisiting the Case for a More Diverse Judiciary. Public Law
Everyone know that Law is a system of rules which are developed in community with a aim to govern a society maintaining, justice, protect individuals and property. There are a lot of countries and they have own set of rules and norms including itself constitutional, criminal, contract, trust, international, tort, administrative and property. During the long time law improving and developing a lot and become more invulnerable and fair. Therefore, in a modern society and most of countries law has become similar with similar legal system. Nowadays there are several general types of legal system in the world and two main most popular of them, which had mostly spread through the world. They
Although there are many more modern conceptions of the rule of law, I will begin by speaking about A.C Dicey’s conception of the Rule of Law (ROL). Dicey developed three well known principles to explain how the ROL functions.
Natural law is also not a valid theory of law. Natural law is directly opposed to positivism. While positivists insist on a strict separation of law and morality, adherents of natural law insist on a clear link between the two. They believe that the operations of law and legality should be informed by God given values. However, this system is just too moral based. There are so many interpretations of nature, and we all have different sets of morals and values (which we are entitled to.) Regardless of our right to be entitled to our own morals and values, they should not have a place in court. While legal realism also relies partly on morals, it is not done to the extent of natural law. Legal realists argue that in order to understand the legal process, and make a decision, various factors (such as political, economic and social) must be taken into account. With legal realism, every little detail is considered, making it a reasonable legal theory. However, every legal theory has its pitfalls. There is always room for improvement, as no legal theory is perfect. With legal realism, judges are the authors of the law. There is a lot of responsibility and power in their hands when they are given the freedom to make their own judgements for cases. A great example of this is the case of Kim Davis. She attempted to deny marriage licenses to multiple homosexual couples, despite the
Law is one of the most important elements that transform humans from mere beasts into intelligent and special beings. Law tells us what is right and wrong and how we, humans, should act to achieve a peaceful society while enjoying individual freedoms. The key to a successful nation is a firm, strong, and fair code of high laws that provides equal and just freedom to all citizens of the country. A strong government is as important as a firm code of law as a government is a backbone of a country and of the laws. A government is a system that executes and determines its laws. As much as fair laws are important, a capable government that will not go corrupt and provide fair services holds a vital role in building and maintaining a strong country.