
	Where results make sense

Topic: Legal formalism

In the News (Sat 11 Oct 08)

Halo 3

Swedish Academy

Ricky Ponting

Dalai Lama

Thabo Mbeki

Sarah Palin

Alistair Darling

Jerome Corsi

Yoichiro Nambu

Breast Cancer

	SSRN-The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated ...
		I shall argue that instrumentalist accounts of precedent are inherently unsatisfying and that the Supreme Court should abandon adherence to the doctrine that it is free to overrule its own prior decisions.
		These moves are embedded in a larger theoretical framework - a revival of formalist ideas in legal theory that I shall call “neoformalism” to distinguish my view from the so-called “formalism” caricatured by the legal realists (and from some other views that are called “formalist”).
		Solum, Lawrence B., "The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights".
	papers.ssrn.com /sol3/papers.cfm?abstract_id=933076 (439 words)

	Legal Pragmatism [Internet Encyclopedia of Philosophy]
		Legal pragmatism, on the other hand, emphasizes the need to include a more diverse set of data and claims that law is best thought of as a practice that is rooted in the specific context at hand, without secure foundations, instrumental, and always attached to a perspective.
		Given a legal controversy, the practitioner (judge, attorney or the like) looks at previous cases for similar situations and then tries to distill the reasons that have been accepted as legally relevant for his or her client's position.
		As he describes it legal reasoning is a "three-step process" where a "similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case (Levi 1949, p.
	www.iep.utm.edu /l/leglprag.htm (3148 words)

	[Legal formalism] \| [All the best Legal formalism resources at karaoke.velocityincome.com]
		Legal formalism is a positivist view in jurisprudence and the philosophy of law.
		While Benthamite positivism can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not (as positivists do) suggest that the substantive justice of a law is irrelevant, but rather, that in a democracy, that is a question for the legislature to address, not the Judge.
		Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers.
	karaoke.velocityincome.com /Legal_formalism (1863 words)

	Critical Lawyers' Handbook Vol 1 Chapter 1: Critical Legal Theory
		Legal discourse is isolated from the purview of political, social and ethical/moral discourses, and legal reasoning is severed from any external criterion which can be used to judge and evaluate social behaviour.
		Legal formalism presents law as a gapless, logical and internally coherent system, in which correct legal dec-isions can be deduced by formal reasoning.
		Legal science concentrates pre-eminently on the classification and division of concepts, on methods of induction and deduction, and on the analysis and synthesis of rules.
	www.nclg.org.uk /book1/1_7.htm (1930 words)

	Balkinization
		A notable contemporary legal theorist who cannot be dismissed as naïve or deluded recently declared his allegiance to legal formalism.
		Were it not for the long association of formalism with conservatism, the influence of Legal Realism (ramped up by CLS) (supplemented by social scientific studies of ideology in judging), and the conservative bent of original meaning theory, the benefits of a rapprochement with legal formalism would be obvious to liberals.
		Admittedly, I'd abandon formalism in truly exceptional cases, but i think that 99.9% of the time-- and even in the "hard" cases that are decided in the appellate courts and the supreme court -- i would tend to find an answer that is compelled by a "formal" reading of the law.
	balkin.blogspot.com /2006/12/fellow-liberals-be-legal-formalist.html (2878 words)

	Legal Formalism \| Eric Rasmusen's Weblog
		The quality of legal argument and analysis in American courts, in particular state supreme courts, is often quite poor on issues of private law that the readers of this blog are likely to think arcane or technical.
		The only reason the economists are not formalists is that they bring in their ideas pre-formed from another discipline rather than by induction from legal opinions.
		The problem with legal realism was that it had no theory, just the idea that judges made policy and should think about outcomes.
	www.rasmusen.org /x/2007/05/25/legal-formalism (756 words)

	Legal Theory Blog
		To date, the theory of legal pluralism which, fundamentally, stresses the importance of recognising that non-state legal systems, such as customary or religious systems, may co-exist together with the state system, has been used primarily by scholars to produce descriptive and non-comparative work.
		Most normative legal theorists explicitly or implicitly assert that their positions are true (or at least correct) and that inconsistent positions are false (or incorrect).
		Legal Evolution Functionalist explanations are also implicit in any claim that the law evolves (where "evolves" is meant in a technical sense and is not a mere synonym for "changes").
	lsolum.typepad.com /legaltheory (11673 words)

	Formalism Summary
		Formalism is the mathematical school of thought which holds that mathematics consists of symbols, rules for combining those symbols, some minimal number of assumptions or axioms, and certain agreed upon rules of inference.
		Formalism is school of thought in law and jurisprudence which emphasises the fairness of process over substantive outcomes.
		Russian formalism was a twentieth century school, based in Eastern Europe, with roots in linguistic studies and also theorising on fairy tales, in which content is taken as secondary since the tale 'is' the form, the princess 'is' the fairy-tale princess.
	www.bookrags.com /Formalism (1344 words)

	Definition of Legal formalism
		Legal formalism is a view in jurisprudence and the philosophy of law.
		Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts by their plain meaning and/or the intentions of their authors.
		Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism.
	www.wordiq.com /definition/Legal_formalism (273 words)

	Philosophy of law Information
		Legal positivism is the view that the law is defined by the social rules or practices that identify certain norms as laws.
		Legal realism is the view that the law should be understood as it is practiced in the courts, law offices, and police stations, rather than as it is set forth in statutes or learned treatises.
		Legal interpretivism is the view that law is not a set of data or of facts, but what lawyers aim to construct or obtain in their morality laden practice.
	www.bookrags.com /wiki/Philosophy_of_law (1280 words)

	Legal Question Joint Venture Silicon Valley (Site not responding. Last check: 2007-10-28)
		Legal formalism - Legal formalism is a Positivist view in jurisprudence and the philosophy of law.
		While Benthamite positivism can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not (as positivists do) suggest that the substantive justice of a law is irrelevant, but rather, that in a democracy, that is a question for the legislature to address, not the Judge.
		legal question and detonated either saw persecution under the most recent versions are located in many more aggressive in which attacks resembling standard infantry assaults were divided into guerilla tactics As the capital of psychosis.
	www.fairmontsj.com /legalquestion.html (478 words)

	Thai Folktale and Legal Reasoning
		It is common for lawyers to restrict the concept of legal reasoning to the process of argumentation as a process of justification of legal judgements.
		It is clear that moral reasoning is an integral part of any legal decisions, because any legal reasoning is based on the moral standards of what constitutes the duties of a proper evaluation of fact and proper application of legal rules.
		Legal formalism is a process of arriving at a decision only on the basis of consideration of formal characteristics without serious attention to substance of the problem at hand.
	www.thailawforum.com /articles/thaifolktale.html (1168 words)

	Drug Policy Alliance: Formalism and Narrative in Law and Medicine: The Debate over Medical Marijuana Use
		The key element of legal formalism is a judicial system committed to results whose objectivity is conclusively determined by a process uncontaminated by external forces.
		[F]ormalization, understood both in the sense of logic or mathematics as well as in the juridical sense, is what enables you to go from a logic which is immersed in the particular case to a logic independent of the individual case.
		In legal and medical formalism alike, the role of the expert is to corral and protect an unwitting public from phenomena which would, if left in the state of nature, run wild.
	www.drugpolicy.org /library/manderson2.cfm (4806 words)

	The American Muslim (TAM) (Site not responding. Last check: 2007-10-28)
		It is obvious that herein lie the seeds of an empirical and legal form of positivism which, by positing distinction between the inner and the outer man, paved the way for the transformation of the legal and ethical ideal of the fiqh into a formal law and a body of juridic stipulations.
		For the fuqaha, accustomed as they were to the plurality of legal schools and of their relative autonomy, the idea of a close association between one particular madhhab and the ruling power presented itself as an issue of ‘rights’.
		Not surprisingly, the most important consequence of this transformation form ijtihad to taqlid is the shift in the basis of legal authority from that of the individual jurist to that of the school of law or madhhab as a whole.
	theamericanmuslim.org /tam.php/features/articles/legal_rationality_vs_arbitrary_judgement_re_examining_the_tradition_of_isla/009786 (3859 words)

	NEGLECTED POLICIES: CONSTITUTIONAL AND LEGAL COMMENTARY AS CIVIC EDUCATION
		With caution, however, Strauber maintains that legal formalisms and political and moral abstractions are not necessarily fatally flawed by virtue of their inconsistency or incongruity with social fact considerations.
		Law’s formalisms he maintains, are the natural places to begin because they are at the heart of intellectual jurisprudence that constitute an intrinsic limit on efforts to democratize the intellectual authority of law (pp.36-51).
		On one hand, legal philosophy is an enemy of agnostic skepticism because it is so deeply rooted in the teaching lessons about rightly decided questions and about the centrality of moral abstractions to legal and political commentary.
	www.bsos.umd.edu /gvpt/lpbr/subpages/reviews/Strauber03.html (4181 words)

	FindLaw's Writ - Dorf: Is There A Distinction Between Law And Politics? Yes, And The
		Formalism still has its champions, the most prominent of whom is Justice Antonin Scalia, who is fond of quoting dictionaries in his quest for the "plain meaning" of statutes and constitutional provisions.
		According to those in the legal process movement, the fact that the law leaves gaps provides a reason to be careful in the allocation of power among the legislative, executive, and judicial branches.
		Critical legal studies reached its peak of influence during the 1980s, when several high-profile tenure battles at leading law schools — in which the value of the work of professor who were identified as "crits" was hotly debated — were taken as microcosmic enactments of the larger war over the nature of law.
	writ.news.findlaw.com /dorf/20001227.html (2319 words)

	Law
		This landmark publication will be essential reading for anyone working in legal theory and of interest to legal scholars generally, philosophers and legal theorists looking for a way in to understand current jurisprudential thinking Readership: All scholars and students interested in the philosophy of law and its relationship to political theory and philosophy generally.
		It is the task of legal theory to identify the fundamental organizing structure of law be it principles or concepts.
		Hohfeld believed that legal discourse could be clarified through analysis of what he termed "fundamental legal conceptions." His work is analytic in spirit without being conceptualist in the manner of Langdell.
	wordtrade.com /philosophy/lawR.htm (2781 words)

	Philosophy of Law [Internet Encyclopedia of Philosophy]
		A legal practice can be understood from the "internal" point of view of the person who accepts that practice as providing legitimate guides to conduct, as well as from the "external" point of view of the observer who wishes to understand the practice but does not accept it as being authoritative or legitimate.
		Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society's collective moral judgments even when those behaviors do not result in physical or psychological harm to others.
		Legal paternalism is the view that it is permissible for the state to legislate against what Mill calls self-regarding actions when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves.
	www.utm.edu /research/iep/l/law-phil.htm (6898 words)

	Legality and Legitimacy.
		Fixed, calculable rules and procedures open up the “legal process to all conceivable aspirations, goals, and movements, even the most radical and revolutionary, enabling them to achieve their aim without violence or disruption through a legal process that establishes order while at the same time it functions in a completely ‘value-neutral’ way” (p.10).
		Legal procedures cannot adequately secure a political system’s legitimacy because a regime of robust legal proceduralism is vulnerable to a perfectly legal means for undermining the very rule of law that proceduralism seeks.
		In particular, legal indeterminacy dilutes, displaces, or sublimates the “integrity of the political” (“the political” constituting the prelegal substantive norm Schmitt continually invokes).
	www.bsos.umd.edu /gvpt/lpbr/subpages/reviews/schmitt804.htm (1368 words)

	A FLAWED DEFENCE (Site not responding. Last check: 2007-10-28)
		Aware of this, Sebok draws a distinction between 'classical legal positivism' and 'new legal positivism.' Classical legal positivism is the positivism of John Austin and Jeremy Bentham.
		In sum: formalism's understanding of law reflects that of classical legal positivism; formalism's understanding of adjudication is not positivist, because of the difference over discretion, but it does share with positivism a deeper-lying idea about adjudication, namely that adjudication is always legally constrained.
		That is, the realists failed to see that formalism was committed to classical positivism's three ideas about the nature of law, namely the separability thesis, the command theory, and the sources thesis.
	www.utpjournals.com /product/utlj/501/501_fagan.html (15728 words)

	Free Speech, Language, and the Rule of Law
		Formalism seems to be the place our culture celebrates the ideal of the rule of law; policy argument seems to be the place where most of the detailed legal work of ordering society goes on.
		In both the popular and legal imaginations, the image of the property-holding yeoman farmer was gradually supplanted by the soap box speaker as the central archetype and emblem of legally protected exercise of rights and freedoms in a democratic society.
		Formal style, in contrast, is for people whose social networks are less dense, who regularly deal with strangers and thus communicate in contexts in which ellipsis and colloquialisms are more likely to generate confusion than solidarity.
	www.uvm.edu /~tstreete/freespch.htm (7632 words)

	04/18/02 - Immigration Law Enforcement: A Legal Review
		Before President Clinton's signature dried on the 1996 AEDPA "anti-terrorism" bill and the IIRIRA immigration reforms, the legal vandals inside and outside government were already planning their campaign to "fix '96" and roll-back the immigration enforcement work of the 104th Congress.
		But all of the legal dismemberment of the 1996 Act wouldn't have happened without the open door of the Immigration Court system and its bureaucrats at the EOIR, the BIA and the Immigration Courts.
		The legal assault against the 1996 "anti- terrorism" immigration legislation has rendered Congress' original work largely unrecognizable, as criminal aliens and their lawyers have scored victory after victory.
	www.vdare.com /mann/legal_review.htm (2177 words)

	Naseeb Vibes - The Largest Muslim E-Zine (Site not responding. Last check: 2007-10-28)
		The form in which these legal commands were revealed takes into account the fact that the Islamic model instituted by the Prophet reflected in some respects a drastic departure from previous Arab customs while in other areas the Islamic response built upon existing customary practices.
		The critique offered by Jackson is that of new legal realism—that is, muftis, like common law judges, are purporting to discover the best rule whereas in actuality it is their own ideological presuppositions that are determining which result they reach.
		Legal formalism is not a value-neutral, mechanical means of deducing the “truth.” Instead, formalism serves to constrain, validate, and provide rhetorical force to the decisionmaker’s presuppositions.
	www.naseeb.com /naseebvibes/prose-detail.php?aid=3132 (2193 words)

	Untitled Document
		This internal - doctrinal perspective has some similarity to the "legal formalism" and "conceptualism" that Progressives and Legal Realists had been denouncing since the turn of the century.
		Legal Realists emphasized that the way to determine in practice whether a legal right exists is by studying what remedies the law actually allows.
		Lawrence Friedman, one of the founders of the Law and Society movement, maintains that belief in the socially constructed character of legal institutions is one of the central premises of the movement
	cyber.law.harvard.edu /bridge/LawSociety/essay1.txt.htm (2499 words)

	PATTERNS OF AMERICAN JURISPRUDENCE
		The major elements of American jurisprudence tackled by Duxbury are formalism, legal realism, law and policy science, process jurisprudence, law and economics, and critical legal studies.
		first there was formalism, epitomized by the Langdellian revolution; then came the realist revolt against formalism; after which came the renaissance of formalism, exemplified by both process jurisprudence and law and economics, which was superseded by the return to realism in the form of critical legal studies" (2).
		To chart, as some commentators have done, a straight and uncluttered path from Holmes to the legal realists is to produce an oversimplified intellectual history; for there are arguments to be found in his work which stand antithetical to the basic philosophy of legal realism, arguments which realists tended to overlook or ignore.
	www.unt.edu /lpbr/subpages/reviews/duxbury.htm (1425 words)

Try your search on: Qwika (all wikis)