Criticisms Of Legal Formalism

1 Introduction

Legal formalism is not a recent theory of thinking. Although may be applicable in a limited number of cases, it is highly problematic when the context surrounding a case may be of utmost importance to a just outcome. This can be highlighted in a country like South Africa that possesses an unjust past where the context of cases is crucial to reaching a just outcome of the case itself, and ultimately a more just South Africa. A number of criticisms will be discussed in this paper and whether they are justified will be established.

2 What is legal formalism?

As early at 1850, legal formalism can be found in the bifurcation of American legal thought. Posner describes legal formalism has been associated with many meanings namely

Because legal formalism can be compared to a concrete approach which may often over look the context of cases resulting in an unjust outcome, there are various critques on this approach.

In an article written in the Stanford Law Review by William Simon, it was noted that one of the criticisms of legal formalism is that it should aspire more of a “psychological vision”, which moves the focus away from the professional discourse of lawyers and judges towards a practical interactions between legal advisors and clients. This vision aims to establish a more hands-on approach to confront the concrete realities of lawyering.

A critquie on legal formalism by instrumentalists are of the opinion that because formalists do not recognise the gaps in the law, they are deluded in ths sense that they believe that they can only focus on the law itself. However legal concepts are not so narrow to cover every situtation and its context. Instrumentalists disagree with formalism as the law does may often be vague and inadequate thus unable to make conclusive arguments. Because of this, legal discretion needs to be exercised and further law needs to be established in more difficult cases. Despite this criticism, Lyon in the Cornell Law Review is of the view that we should not reject legal formalism in its entirety as it does allow for legal certainty, but rather recognise the theories

This can be highlighted by Karl Klare whom coined the term “transformative constitutionalism”. This can be decribed as “constitutional enactment, interpretation and enforcement committed … to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction.” In light of this definition, tranformative constitutionalism will only be able to take place if legal formalism’s limitations are acknowledged. This is because the limitations of legal formalism would hinder the process of correcting the previously wronged past of South Africa the result of a newly just country. This can be seen by looking at the definition of legal formalism itself and understanding that if we only focus on the legal rules themselves and not the context of which the legal rules should be applied, it would then be easy to lose sight of the desired just outcome. However, this does not invalidate the fact that there is still a tension between the freedom of judges ability to adjudicate and the legal rules themselves. It must be taken into account that as much as legal formalism has criticisms adjudication cannot be completely open-ended and there cannot unlimited freedom to allow the judge to fulfill their own personal agenda. Justice Kentridge comments on this and states that although moral and intellectual