Legal Formalism

This essay discusses legal formalism as a normative and descriptive theory of adjudication, its views, and criticisms. It also provides reasons why legal formalism is not a defensible theory of adjudication.

Legal Formalism

Contents
Contents...........................................................................................................................................2
INTRODUCTION...........................................................................................................................3
MAIN BODY..................................................................................................................................3
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................6

INTRODUCTION
Judiciary is one of the most important system which evaluates and manages all the laws
which are applied in the court in order to settle the disputes and also to provide the punishments
to the law breakers. There is being managed that all the democratic rules and laws are important
for the society, Australian law implicates to serve and interpret law in order to maintain justice
and equality. Legal Formalism is an important theory which helps in judgement as this serves out
to be normative and descriptive theory about the methods which use by the judges in order to
adjudicate1. This essay will cover views of legal formalism and is that a defensible theory of
adjudication. Further it will also provide two important reasons for the unreasonable and the
unjust rules and application.
MAIN BODY
Legal formalism is the general descriptive and the normative theory which helps out the
judges in deciding the cases and also in giving the formal judgements in descriptive nature and
sense. It id the uncontroversial principles which are applied by the judges in order to give their
judgements. As that are framed according to the logics and the legal principles which helps in
managing the determinate systems. It generally helps the judges to manage all the principles and
the work through which it can regulate all the decisions to be made according to the adjudication
and the legal principles. Legal formalism is well known as the black letter tradition through
which the judge or the person should always manage and try to maintain the all the textual
sources through which the legal issues can be solved with the laws and the applicability being
given. Legal formalism is made from the natural law and legal positivist it defines the legal
system and the roles through which the statutory laws are applied in situations2.
Reasons as Legal formalism is not defensible theory of adjudication as, firstly as
Dworkin illustrated earlier that all the laws are consist of the principles and the rules which are
conclusive and are made in order to manage the principles. It provides that as all the legal rules
and the adjudication are judgement given by the judges should be neutral and objective. As when
the judgement is based on the legal formalism it generally analysed that all the concerned areas
and the laws are implicated according to the rules and the regulation being made, this is a major
1 Troop, Paul, "Why Legal Formalism Is Not A Stupid Thing" (2018) 31(4) Ratio Juris.
2 Gonzalez, Carlos E., "The Logic Of Legal Conflict: The Perplexing Combination Of Formalism And Anti-
Formalism In Adjudication Of Conflicting Legal Norms" [2016] SSRN Electronic Journal.

criticism as judges can’t go with the rational judgement and the general legal rules which they
seem to be applicable. As in the case of Palsgraf v. Long Island Railroad, 248 N.Y., 339,162
N.E. 99 (1928), as when the defendant dropped a package carelessly and it caused a major
explosion and harm to the plaintiff and the court as ordered that this was done at the attempt to
help and there is being analysed and criticise that law was unreasonable and their should not be
made illogical practical politics. This was given that all the judgements should have given on the
basis of logical understanding and along with that in general hypothesis. Dworkin also clarified
that all the judges should impose the political principles in order to manage justification in the
law and also to create the comprehensible process3. They should try to incorporate all the
constitutional provisions, judicial precedents, legal rights and requirements and also all the legal
components in order to provide the proper and clear justification in the law and the general terms
through which law can be sustained with legality. The main purpose of all the adjudication is to
give protection to the persons and also to protect the human rights. This clarifies that all the
judges should try to give their judgements according to the light of the purpose and should not
simple impose the literal meaning. In Speluncean by Fuller's J's Fosters has led to provide all the
limitations in the legal formalism and has underlined that judges are not totally being dependent
on the the Legal formalism as they should not be made slaves to all the black letter law instead of
that they should get the power to gain the rational thinking though which they can manage their
general ideas and knowledge in order to protect the human rights.
Secondly, the Legal formalism creates a major strictness and there should be given a
flexibility to all the judges in order to make the clear and also to make them think widely for
their benefits and for the protection of country. HLA Hart contested that all the judgements
should be imposed on the basis of application of rules with their core of certainty and the
penumbra of doubt. As it framed that all the judges should practise discretion as in all the
circumstances where the major rules are considered with open texture4. Dworkin also has the
view that there should not be any kind of rule or law which should be applied in any such areas.
Their is being seen that he analysed that all the judges should be made free without any
boundaries to see about the right and wrong and also to make them analyse the situation and the
context with their legal rules rather than just making them working according to the strict rules
3 Weinrib, Ernest J, Why Legal Formalism ([s.n.], 2015).
4 Leiter, Brian, "LEGAL FORMALISM AND LEGAL REALISM: WHAT IS THE ISSUE?" (2016)
16(2) Legal Theory.

being made. Hart has also given the example that for instance there is a park where no dogs are
allowed but in the cases when there is any kind of activity or crime services dogs meant to move
their or the sniffer dogs helps the police force as according to the legal formalism this is not
applied and on the other hand there is change. IRC v Hinchy [1960] AC 748 court held that,
tribunal has failed in order to give the proper report and there was a lack of legislative history
through which there can be given a proper encompass of the laws and the rights which needed to
be applied. So the judges should also get the flexibility for managing the approach related to the
flexibility in their decision making. In all the general cases there is being seen that Legal
formalism can be apply simply in order to manage the rules where as in some strict and definite
cases their use to managed that all the rules are being made according to the framework and the
judges should gain the discretionary power so as to exercise and impose the rules and the
abductions in the scenario. It simple restrain the judges from acting in a positive manner and to
manage the working easy and predictable5.
Thus all the rules which are been given in the law should be framed and made with
general identity and the prospective with the clear and stable prepositions. There has been seen
that the legal rules and the reasoning are being framed in order to make the judges to think and
give the judgements as with the change in the society and their working they should try to
manage and overlook all the areas and the major methods. The Legal formalism should not be
strictly considered as this make the judges bind with the core judgements and work and also
make the framework and lack of reasonable verdict R v. Harris (1836) 7C & P446 court held that
when the defendant bit the nose of the victim court provided that there was no stab, cut or wound
so the literal rule provides that the act of biting will not be under any meaning of cut of stabs the
conviction is quashed. As all the court decision are made according to the statutes which are
being given and they were not being allowed to give their own discretionary ideas. The formalist
should always gain the separation of powers and there should be given the doctrine as in regard
to manage the separation of powers. If the judges will be given the power in order to manage and
act discretion free they will help in giving the better judgements for the welfare of the society
and all the adjudication should be imposed with the applicability and the new set of rules and the
regulations as to manage and impose all the interpretation of the laws and to frame and provide
major power to all the legislators6.
5 Horwitz, Morton J., "The Rise Of Legal Formalism" (2017) 19(4) The American Journal of Legal History.
6 Alberstein, Michal, "Measures Of Legal Formalism" [2019] SSRN Electronic Journal.

CONCLUSION
It is concluded from the above essay that Legal formalism is the most imprecate
normative and the descriptive theory which aims to provide the general rules through which the
judges can adjudicate and make the judgements. The judges should always gain about
discretionary powers so as to manage the adjudication process. In order to manage the a push the
limits and also to work for the welfare of the society there has been seen the adapting areas
through which the errors and the issues can be changed. Hart and Dworkin provides that there is
been seen that judges should gain all the discretion power and all the Legal formalism should not
be made strictly on any of the person. Furthermore, it is also concluded that judicial power
should be given to the judges in order to manage the purpose and the general equality.
REFERENCES
Books and Journals
Alberstein, Michal, "Measures Of Legal Formalism" [2019] SSRN Electronic Journal
Gonzalez, Carlos E., "The Logic Of Legal Conflict: The Perplexing Combination Of Formalism
And Anti-Formalism In Adjudication Of Conflicting Legal Norms" [2016] SSRN
Electronic Journal
Horwitz, Morton J., "The Rise Of Legal Formalism" (2017) 19(4) The American Journal of
Legal History
Leiter, Brian, "LEGAL FORMALISM AND LEGAL REALISM: WHAT IS THE ISSUE?"
(2016) 16(2) Legal Theory
Troop, Paul, "Why Legal Formalism Is Not A Stupid Thing" (2018) 31(4) Ratio Juris
Weinrib, Ernest J, Why Legal Formalism ([s.n.], 2015)