What Is The Value, If Any, Of Legal Formalism? Essay example

What Is The Value, If Any, Of Legal Formalism? Essay example

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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 that they should not draw from other perspectives of law, for example, natural lawyers ideas regarding higher law. Formalists argue that it is not appropriate for a judge to view that there is other types of law out there - other than posited law. When presented with a legal problem, a judge should simply identify the appropriate rule and apply the facts of the case to existing bodies of law. This is an, almost, mechanical approach to applying the law. For example, for a will to be valid in Scotland it requires that it is signed, by the person making the will, on every page. If a court is presented with a number of wills to probate for the same estate, and only one of those wills has been signed by the person in ownership on every page, the court can quickly deduce the correct legal conclusion in a formalistic fashion: each will that hasn 't been signed on each page will have no legal effect, and only the will executed in compliance with the statutory requirements may be probated. Formalists ...


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... series of realist attacks on formalism, insisting that the law was not a set of preexisting concepts of fixed scope but a tool of government which would and should be reshaped as the desires of the community or its politically dominant groups. Holmes once wrote, “The life of the law has not been logic, it has been experience”, when referring to what the judges would do when confronted with a given set of facts in the absence of clear precedent. Formalistic ways would mean it could not be used by the judges of the highest court in the jurisdiction, or even by the judges of the lower courts.


Now, a century after the legal realists’ attack on formalism, we can conclude that formalism is gone, as it proved impractical. Everyone recognises, of course, that the values of the judges making the decisions largely determines all law. This makes the value of formalism void.

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