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Legal Formalism
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Legal Formalism
Formalist
Philosophers
Frederick Schauer, a professor at the University of Virginia School of Law, in 1988 published a law review article titled "Formalism" in The Yale Law Journal. In it he urges scholars to rethink the "contemporary aversion to formalism" and states that his goal is to "rescue formalism from conceptual banishment". He argues formalism should be conceptually rethought, not in terms of merely whether it is a good or bad thing, but rather in terms of how language both can and should be used to restrict the power of decision-makers in the decision-making process
Weaknesses
Strengths
> removes all emotion, compassion from serious cases
> dehumanizes traumatic victims
> it does not allow judges authority to change the law to serve their own ideas regarding policy undermines the rule of law
> law would become too scientific for people to understand its workings
> it cuts off individual initiative in the future, disregards independent consideration of new problems and of new phases of old problems, and to impose the ideas of one generation upon another.
> each case is treated equally
> a rather quick decision is made
> less emotion to sensitive cases
> protects judges from critisism
What is it?
> legal formalists argue that judges can't depart from the law or use their disgression in an unusual case
> they believed the role of the judge is to be remote and disinterested, only apply the law
>the introduction to the
Canadian Charter of rights and freedoms challenged the principles of legal formalism
> treats law as though it were a science or math
> believes law consists of a body of rules and nothing more
> believes judges should apply law and have no authority to act outside of the law
>The ultimate goal of formalism would be to formalize the underlying principles in a single and determinate system that could be applied mechanically