Revolt Against Formalism and the Evolution of Legal Thought
Revolt Against Formalism
3. The Revolt
Faced with changing social circumstances during the late nineteenth and early twentieth centuries, a revolt against the formalist approach to law emerged. The Industrial Revolution not only empowered the bourgeoisie but also brought the working class to prominence, resulting in a fractured society with new problems and conflicts. The existing Civil Code, for example, addressed contracts but not employment contracts.
This period saw a resurgence of voluntarism and the idea that law is the will of human beings. The complexities of these new social problems could not be fully addressed by existing codes.
Criticisms of Formalism:
- Challenges to the omnipotence of the legislator.
- Critique of the passive role of legal interpretation.
Developments in Legal Thought
1. Germany
A.1) Ihering’s Second Stage
Ihering criticized the idea of law as purely logical, arguing that law derives from the power to make it effective. He viewed law as a means to satisfy social ends, emphasizing the importance of understanding the purpose behind legal norms. The interpreter, according to Ihering, must consider this underlying purpose, which is objective rather than simply reflecting the will of the legislature.
A.2) Jurisprudence of Interests (Heck)
In the late nineteenth and early twentieth centuries, Heck argued that the role of judges is to balance different interests. This involved considering the interests of the working class and broader social interests, not just applying general rules. This pragmatic approach emphasized the judge’s active role in contributing to the practical realization of law.
Subsumption: Including a special case within a general rule.
Weighting: Balancing different interests addressed in a legal norm to find a solution for a specific case (e.g., freedom of expression vs. honor).
B) Free Law School (Kantorowicz)
This school posited a “free law” arising spontaneously and prevailing over state law in cases of conflict. Judges were seen as upholding this free law against the injustices of state law, which was considered inadequate and sometimes contrary to social interests. The Free Law School emphasized the judge’s role in applying a more equitable form of justice, guided by legal science.
2. Anglo-Saxon World (Holmes)
Holmes argued that law is ultimately the decision of judges, given the complexities of legal interpretation. He viewed law as a predictive science, where lawyers must anticipate judicial decisions. Holmes’s pragmatic view focused on the practical consequences of legal rules.
3. France (Geny)
Geny, a key figure in the revolt against the School of Exegesis, argued that state law is incomplete and contains gaps and indeterminacies. He believed judges should resort to free scientific research and consider social realities to find the fairest solutions, going beyond the strict confines of state law.
4. Sociological Jurisprudence
This movement emphasized the connection between law and social reality. Key figures include:
- R. Pound: He focused on the social function of law, viewing it as an instrument for achieving social control and specific social purposes.
- Ehrlich: He argued that law originates not from judges or legislators but from society itself, emphasizing the importance of social acceptance for the effectiveness of law.
5. Normativism (Kelsen and Hart)
This dominant twentieth-century view, particularly Kelsen’s, conceives law as a system of rules. Kelsen argued for the subjection of political power to legal rules. While criticized, his theory offered a valuable framework for understanding the operation and function of law.