Legal formalism

Legal formalism is a legal philosophy that advocates a strict adherence to the literal interpretation of the law. It is often contrasted with legal realism, which argues for a more flexible, case-by-case approach to legal interpretation.

Overview

Legal formalism is based on the belief that the law is a set of rules that can be objectively interpreted and applied, without the need for judicial discretion or interpretation. This approach is often associated with the belief in the rule of law, and the idea that the law should be predictable and consistent.

Legal formalists argue that judges should apply the law as it is written, without considering factors such as the potential consequences of their decisions, or the intentions of the lawmakers. They believe that this approach ensures fairness and impartiality, as it prevents judges from making decisions based on their personal beliefs or biases.

Criticisms

Critics of legal formalism argue that it is unrealistic and overly simplistic. They argue that the law is often ambiguous, and that judges inevitably have to interpret it in order to apply it. They also argue that legal formalism can lead to unjust outcomes, as it does not allow for flexibility in cases where the literal application of the law would result in an unfair or absurd result.

Legal formalism in different jurisdictions

Legal formalism has been influential in many legal systems around the world. For example, in the United States, legal formalism was the dominant approach to legal interpretation in the 19th century. However, it has been largely replaced by legal realism in the 20th century.

In contrast, legal formalism remains influential in many civil law jurisdictions, such as Germany and France, where judges are expected to apply the law as it is written, without considering factors such as the potential consequences of their decisions.

See also

• Legal positivism
• Originalism
• Textualism
• Strict constructionism

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