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The Challenge of Formalism

Neil Duxbury

in Patterns of American Jurisprudence

This chapter describes the second period of American legal history, the period of legal formalism. It specifically provides a discussion of late nineteenth and early twentieth-century legal formalism ... More

This chapter describes the second period of American legal history, the period of legal formalism. It specifically provides a discussion of late nineteenth and early twentieth-century legal formalism in the United States. The thesis of this chapter is that the commonly accepted idea of a ‘revolt against formalism’ in late nineteenth-century American intellectual life is, certainly so far as jurisprudence is concerned, a myth. It explores what, in the context of late nineteenth and early twentieth-century American jurisprudence, legal formalism might be taken to mean. It also addresses how, before the advent of legal realism, American jurisprudence began, if only hesitantly, to question the premisses of formalist legal thinking. It is shown that the great forerunners of American legal realism, Holmes and Pound, were not committed anti-formalists.Less

THE DECLINE OF FORMALISM AND THE RISE OF VALUES

Menachem Mautner

in Law and the Culture of Israel

This chapter discusses two significant changes discernible in the jurisprudence of Israel's Supreme Court in the 1980s and 1990s. First, the canonical reasoning in the Court's opinions from the ... More

This chapter discusses two significant changes discernible in the jurisprudence of Israel's Supreme Court in the 1980s and 1990s. First, the canonical reasoning in the Court's opinions from the establishment of the State of Israel in 1948 until the 1980s was formalistic. Legal formalism enabled the Court to downplay the cultural gap that prevailed at the time between its liberal values and the collectivist values of the country's hegemonic culture. In the 1980s and 1990s, however, a new, value-laden jurisprudence, which exposes the normative meaning and distributive implications of the law, gained ascendancy in the Court's opinions. The second change was a shift in the Court's view of itself from a professional institution whose role is to settle disputes, to a view of itself as a political institution that participates in determining the values that prevail in the country and the distribution of its material resources.Less

Is There an “American” Jurisprudence? *

BRIAN LEITER

in Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy

This chapter shifts the focus from the philosophical response to Realism to that within academic law. It uses Neil Duxbury's interesting, if sometimes quite misleading, book Patterns of American ... More

This chapter shifts the focus from the philosophical response to Realism to that within academic law. It uses Neil Duxbury's interesting, if sometimes quite misleading, book Patterns of American Jurisprudence to explore the nature of what is often called legal formalism (which the Realists rejected), the Critical Legal Studies misunderstanding of Realism, the relationship between economic analysis of law and Realism, and the nature of jurisprudential inquiry itself.Less

Classical Orthodoxy and Legal Realist Responses Through the Lens of the Heuristics Debate

Mark Kelman

in The Heuristics Debate

While neither Langdell nor Holmes self-consciously addressed the nature of human cognition in defending, respectively, the Classical synthesis about law or a more pragmatic Realist approach, this ... More

While neither Langdell nor Holmes self-consciously addressed the nature of human cognition in defending, respectively, the Classical synthesis about law or a more pragmatic Realist approach, this chapter argues that it is instructive to see Langdell’s beliefs as homologous with F&F conceptions, to see some parallels between Holmes’ thought and H&B theory, and to see MM theory and “fact-type” Realism as related. Langdell’s arguments for base level rules resonates in the F&F idea that cognition is lexical; more subtly, the principles that he believes can be deduced by careful study of existing case law are not natural or intuitive but otherwise strongly resemble the basic cognitive tools in the F&F adaptive toolbox. Holmes believed that our problem-solving “intuitions” developed historically and collectively to a greater extent than they derived from individually adaptive cognitive algorithms. But like H&B theorists who describe the relationship between System One and System Two thinking, Holmes believed that such intuitions exist to meet functional ends, and that following them will generally do so, but that we have the capacity to override them.Less

Legal Formalism

Ernest J. Weinrib

in The Idea of Private Law

Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together ... More

Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together the three ideas of character, kind, and unity. Applied to private law, form refers to a mode of understanding that integrates the characteristic concepts, the distinctiveness, and the coherence the plaintiff-defendant relationship. Among these, coherence is paramount. Using loss-spreading as an illustration, this chapter elucidates the nature of coherence, its importance to private law as a justificatory enterprise, and its role in rendering private law intelligible. It concludes by examining the deficiencies from the formalist standpoint of some contemporary theories, both instrumental and non-instrumental (the economic analysis of law, Charles Fried's theory of contract as promise, and George Fletcher's theory of excuses).Less

democratic adjudication

Christopher J. Peters

in A Matter of Dispute: Morality, Democracy, and Law

This chapter uses the dispute-resolution account of legal authority to describe the basic relationship between adjudication and legislation in a democracy. While statutes and other general legal ... More

This chapter uses the dispute-resolution account of legal authority to describe the basic relationship between adjudication and legislation in a democracy. While statutes and other general legal rules can help avoid and resolve disputes, their inevitable indeterminacy means that, despite the aspirations of legal formalists, procedures of adjudication must be developed to apply them in particular circumstances. These adjudicative procedures themselves must be reasonably competent and impartial in order to possess authority. The participation that characterizes the “adversary system” of adjudication, and the interest representation that characterizes the common law, both contribute to the competence and impartiality of adjudication and thus to its authoritativeness. Adjudication derives additional authority when it seeks to interpret democratic statutes by implementing their linguistic intentions and their justifications.Less

Shapes of International Law

in Hegel's Laws: The Legitimacy of a Modern Legal Order

This chapter identifies three shapes of international legal consciousness: international law as abstract right; international law as civil society; and an organic world history. It begins by ... More

This chapter identifies three shapes of international legal consciousness: international law as abstract right; international law as civil society; and an organic world history. It begins by privileging Kant's legal formalism and Hegel's critique of the formalism. In the first shape of international legal consciousness—international abstract right—the state is not aware of its separation from shared international norms. In the second shape—the international civil society—such a monadic state recognizes that it is dependent upon other states to fulfill its arbitrary will. The treaty, like a contract, fulfills the state's arbitrary will. But still further external obstacles constrain state action in international civil society. This takes us to the third shape of international legal consciousness—world history. Shared peremptory norms void state action, even when that action is institutionalized in a treaty. Such peremptory norms are identified. Hegel leaves us with the possibility that a state-centric international legal order may well dissolve, just as did the family, when the emergent peremptory universal norms displace international abstract right and civil society.Less

Introduction

Alan Brudner

in The Unity of the Common Law

The book’s thesis is situated with respect to functionalist theories that reduce transactional law to public law and to legal formalism, which reduces transactional law to private law. The argument ... More

The book’s thesis is situated with respect to functionalist theories that reduce transactional law to public law and to legal formalism, which reduces transactional law to private law. The argument is made that the economic interpretation of transactional law violates basic canons of interpretation and that formalism’s conceptual argument for private law’s unqualified autonomy rests on a false connection between the idea of a transaction and corrective justice. Only a normative argument can vindicate private’s law’s autonomy, and the outline of such an argument is sketched. The book criticizes the legal formalist’s dichotomy between private and public law as well as its elevation of form above substance. Transactional law, it is argued, is ordered to the end-status of the human individual, and that end requires that private law be complemented by public law where private law would become the instrument of another’s interest. Thus transactional law is a unity of private and public law wherein private law’s autonomy is qualified but not destroyed.Less

Legal Formalism

in Hegel's Laws: The Legitimacy of a Modern Legal Order

This chapter outlines Hegel's critique of legal formalism, which generates his later excursus into ethicality and the shapes of ethical ethê. It begins by returning to Hegel's phenomenological ... More

This chapter outlines Hegel's critique of legal formalism, which generates his later excursus into ethicality and the shapes of ethical ethê. It begins by returning to Hegel's phenomenological description of how an individual thinks. It then turns to his description of the moral content of such thinking. Hegel privileges in this regard intentions and the personal knowledge of circumstances in one's acts. Hegel finds both elements of intentionality problematic because the arbitrariness of the will displaces ethicality in both traditions.Less

Conclusion

in Hegel's Laws: The Legitimacy of a Modern Legal Order

This concluding chapter raises the following questions that draw from Hegel's philosophy of the legitimacy of a modern legal order: Does Hegel's legal philosophy escape from legal formalism? Is the ... More

This concluding chapter raises the following questions that draw from Hegel's philosophy of the legitimacy of a modern legal order: Does Hegel's legal philosophy escape from legal formalism? Is the legal order legitimate independent of the arbitrary will? It then questions whether Hegel's legal philosophy is so presuppositionless as he claims for it. Finally, it discusses the paradox of Hegel's legal philosophy.Less

Wild-West Cowboys versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech

Eric Heinze

in Extreme Speech and Democracy

All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been ... More

All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.Less

The Laws of Civil Society

in Hegel's Laws: The Legitimacy of a Modern Legal Order

This chapter presents Hegel's discussion of the ethos of civil society. Hegel claims that civil society is not any ethos. It is an ethical ethos. In order to understand why civil society exhibits ... More

This chapter presents Hegel's discussion of the ethos of civil society. Hegel claims that civil society is not any ethos. It is an ethical ethos. In order to understand why civil society exhibits ethicality, we need to gain a grasp of the identity of law in civil society. What is the character of civil society? Second, how does civil society manifest ethicality? Third, how are intermediate organizations and the external state exhibited in civil society? Fourth, how is it legitimate? And finally, how does legal reasoning become mere formalism that is reified from the subjective freedom? This chapter addresses each of these issues in turn. Once the philosopher appreciates, however, how the civil society replicates the legal formalism described in Chapter 5, the philosopher will journey into the final domestic shape of domestic legal consciousness: the organic legal order.Less

Terror and Soviet Legality: Police vs Judiciary, 1933–1940

Gábor T. Rittersporn

in The Anatomy of Terror: Political Violence under Stalin

Soviet criminal policy of the mid-1930s shows that the Great Terror of 1937–8 was not a minutely planned operation. It was part of a penal strategy that oscillated between attempts to institute legal ... More

Soviet criminal policy of the mid-1930s shows that the Great Terror of 1937–8 was not a minutely planned operation. It was part of a penal strategy that oscillated between attempts to institute legal formalism and the recourse to mass repression. On the eve of the Terror, proponents of judicial formalism consolidated their positions. Still, they had no difficulty in switching over to the hard line. Soviet-type legalism was not incompatible with arbitrary policies and erratic use of force. After the Terror, legal formalism seemed to get the upper hand. But conflicts between the political police and the judiciary were won by the NKVD even though the purge was hardly a success. The practice of mass purges was nevertheless abandoned. A new understanding of threats to the system's stability gave new importance to the judiciary.Less

Invisible Corporate Man

Lisa Siraganian

in Modernism and the Meaning of Corporate Persons

The Reconstruction era Fourteenth Amendment (1868) has long been the primary U.S. statutory source for corporate personhood. But for nearly fifty years the story of the rise of corporate personhood ... More

The Reconstruction era Fourteenth Amendment (1868) has long been the primary U.S. statutory source for corporate personhood. But for nearly fifty years the story of the rise of corporate personhood rights entwined with the fraught story of legal personhood for African Americans was effectively ignored. This chapter fills a gap in legal and cultural scholarship to begin to address this blind spot, first by analyzing the period’s jurisprudence of the “corporation sole” (a corporation of one person) in contrast to that of African American persons. Drawing together case analysis, discussions of legal formalism, and interpretations of two major novels—George Schuyler’s satirical Black No More (1931) and Ralph Ellison’s acclaimed Invisible Man (1952)—this chapter depicts the legal and literary effects of a half-century’s misconstruing of the Fourteenth Amendment, in which “any person” was defined not to mean any married woman, child, and/or African American person, but, rather, any corporate or white male person. To imagine a less racist world, Schuyler hypothesizes African American rights and freedoms secured by the abstract corporate form and a new scientific technology protected by the laws of intellectual property. Later, Ellison provides a powerful and very different critique of state-sanctioned personhood as irretrievably debased because it is abstract. Both authors expose and challenge through satire and fantasy the obscene, unmentionable inequality between reduced rights for African Americans and human rights for corporate persons.Less

Legal Essentialism

Aryeh Amihay

in Theory and Practice in Essene Law

This chapter surveys the debate over nominalism and realism in the Judean Desert Scrolls and rabbinic law, focusing on the significance of terminology. It supports Daniel Schwartz’s view of “realism” ... More

This chapter surveys the debate over nominalism and realism in the Judean Desert Scrolls and rabbinic law, focusing on the significance of terminology. It supports Daniel Schwartz’s view of “realism” in Essene law, but argues for the use of the term “legal essentialism” instead. It describes the meaning of “legal realism” in legal theory and jurisdiction, explaining the pitfalls of erroneous terms. It then proceeds to describe how the opposite view is best described as “legal formalism,” with various examples from rabbinic law. Upon conclusion, it distinguishes “essentialism” as a legal term and “determinism” as a theological term, but posits the combined term “essentialism-determinism” as the foundational worldview of the Essenes.Less

Ijtihād and the Function of Legal Theory

Nathan Spannaus

in Preserving Islamic Tradition: Abu Nasr Qursawi and the Beginnings of Modern Reformism

Ijtihad is a major aspect of Qursawi’s reformism. He understands it as the exercise of Islamic legal interpretation, forming a necessary link between scripture and the daily life of the community. ... More

Ijtihad is a major aspect of Qursawi’s reformism. He understands it as the exercise of Islamic legal interpretation, forming a necessary link between scripture and the daily life of the community. But he argues that the structures of taqlid, especially rigid ranks for fuqaha within the madhhab, have severed that link. He states that ijtihad must be carried out, and he takes the radical position that it is an obligation upon all Muslims. Everyone should learn methods of interpretation to verify scholars’ pronouncements and determine correct action. In this, he relies on conventional Hanafi jurisprudence, if broadened in its scope. Although at odds with his contemporaries, who insisted upon taqlid (in some cases to an extreme degree) this chapter argues that this radical stance is warranted by the changes to the ulama under Russian rule, and obliging legal interpretation upon everyone promotes adherence to sharia in an environment where it had been undermined.Less