Examples Of Legal Formalism
1 Introduction
Legal formulism falls under the broad umbrella of legal positivism and according to Alfred Cockrell it consists mainly of formal reasons. He states that these formal reasons have a ‘screen-like’ function in the sense that they render it useless for the decision maker to actually go beneath the rule and to make use of some sort of moral or political reasoning in order to justify why a decision was taken. No enquiry is undertaken into substantive or societal reasoning when cases are decided and legal rules are implemented. Due to this, there has been much criticism aimed towards legal formalism. This essay will investigate whether these criticisms are justified with reference to the viewpoints of legal realists and critical
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The most obvious criticism of this is that the idea of legal formalism seems to ignore the fact that judges are without any sort of prejudice or preconceived notions of what justice entails. In conjunction to this, it assumes that if judges were to have such ideas and visions that they would not apply it to their decision making process and would thus remain completely unbiased by any policy considerations. One could defend perhaps defend this flaw with reference to section 165(2) of the Constitution of the Republic of South Africa, 1996 (hereon referred to as “the Constitution”). This section entails that the courts are independent entities which apply the law impartially and without favour or …show more content…
However, in order for judges to discover this intention, they would be guided by their own interpretation of what words mean in order to find the meaning of the legal text. This means that ‘mental make-up’ of a judge would have an influence from the very outset irrespective of how a decision is taken in a case later on.
3 2 Critical legal studies scholars’ criticism
Critical legal studies scholars seek to transform society in its entirety. This is achieved by remaining outside the law and rather participating in ‘legal insurgency’ in order to illustrate the political bias which exists the legal system. They argue that formalism cannot be as flexible as many imagine it to be and that techniques of legal reasoning which were used cannot justify more than one outcome. The reject the idea that each problem has a clear cut rule which is applicable and thus there has to be some underlying reason or political agenda which forms the basis of a decision under legal formalism.
3 3 Realist
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