Legal methodsLesson 1 of 1 in the course Legal reasoning

Legal Formalism: Deduction, Judicial Constraint, and Realist Critiques

5 flashcards · 5 quiz questions · 5 match pairs · 5 fill-in sentences · English

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Summary

Legal formalism is a theory about how judges make decisions and, separately, how they ought to make them. This lesson introduces its view of legal reasoning as the application of established principles to facts, along with the limits and historical context of that view.

As a descriptive theory, formalism claims that judges decide cases by applying accepted legal principles to the facts. On this account, the principles are generally uncontroversial and can be found through legal expertise and study of the relevant law. The reasoning is presented as structured and guided by an underlying logic shared across legal rules.

All flashcards

Descriptive legal formalism
The view that judges decide cases by applying accepted legal principles to the facts.
Normative legal formalism
The view that judges ought to apply accepted principles and remain constrained when interpreting legal texts.
Legal instrumentalism
A view that supports interpretive creativity when it helps law serve public policy and social interests.
Antonin Scalia's interpretive approach
He advocated interpreting the U.S. Constitution according to its original meaning and statutes according to their plain meaning.
Jan Woleński's contribution to legal logic
He examined formal and informal elements in legal logic, including deontic logic.

Quiz questions

  1. What question did Frederick Schauer emphasize in his 1998 article on formalism?Answer: How language can and should restrict decision-makers' power.
  2. What institutional limit does the Massachusetts Constitution of 1780 express concerning the judiciary?Answer: The judiciary should not exercise legislative or executive powers.
  3. What do legal instrumentalists support when interpretation can advance social interests?Answer: Creative interpretation that helps law serve public policy goals.
  4. What period is generally identified as the formalist era?Answer: The period from the 1870s to the 1920s.
  5. What concern about instrumentalist judging is emphasized by formalists?Answer: Policy-driven judicial choices may weaken the rule of law.

Based on the Wikipedia article Legal formalism, licensed CC BY-SA 4.0. Adapted into a summary, flashcards and quizzes.

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