Understanding Legal Formalism: Definition, Concepts, and Impact
Understanding Legal Formalism
1. Legal Formalism Defined
Legal formalism is an ambiguous term referring to the idea of certainty and determinacy in law. In effect, it limits the interpreter’s task, reducing their discretion and dictating the right choice for every problem. This certainty is a technique for the jurist’s task. It also refers to the autonomy or purity of law, making it independent of any other substantive or sociological consideration. Legal issues can be resolved with legal standards.
The management of technical or scientific tasks in law is neutral or impartial. Legal formalism is identified with what Max Weber said, speaking of formal rationality. The law consists of general and abstract rules that serve to resolve legal problems outside of any other consideration.
The law provides exclusive or compelling reasons for action, for example, for taxation, and thus acts without considering others. If there were no crime of theft, we might think that a certain person should not be punished for family reasons, justice, or equity. But to be a criminal standard, one should bear in mind this rule, and no other consideration. As there is a default rule, we know where we stand.
Formalist Conception of Law
1. The legal framework is formally valid only if effective:
- It is repealed
- By a responsible body
- With ValidezAprobada (approved validity)
- Through an established process
- And does not contradict a higher standard.
2. Series of ideas on notions that imply a positivist conception of law.
- The State creates law only (currently, due to cultural pluralism and pluralism of law, such as FIFA and trade practice rules).
- Effective Link-coercion to enforce the rules.
- Emphasis on the will of the legislature.
- Statutory role of the law as a primary source of law.
- Belief in the rationality of law, in the sense that it is clearly expressed in the Codes.
- The law consists mainly of general abstract rules.
3. Formalism is also characterized as a conception of legal science, focusing on the structural and formal dimension of law, legal concepts to study and systematize, to the detriment of the functional and social dimension of law. It affirms the purity of legal science and is not concerned if science is right or wrong.
4. The method of treating law is primarily conceptual, systematizing the law for operating in a logical fashion.
5. The award of the law is a purely technical task, simply applying the rules in a logical manner.
6. The method of interpretation of the rule is literal and serves the will of the legislature. So the analogy is sought to implement a regular occurrence.
7. Emphasis on certainty and predictability of law. There is an answer for each case, and the lawyer should look for it.
8. The supreme legal value is the value of legal certainty to ensure the normal development of social relationships.
It surged in the Renaissance with modern state formation. Only the State has standing, consolidating the modern state as a model.
- The ascent to power of the bourgeois class is interested in the State giving legal certainty to develop their activities.
- Development of a model of administrative organization for bureaucratic organization.
Currently, there are a number of trends in contemporary law against legal formalism, among others, by the number of functions now carried out by the law, as not only repressive sanctions, but also promoting positive behavior law (insertion of handicapped, educational tasks, etc.). Also, there is a tendency to regulate very particularized legal situations (consumption). Laws are more numerous.
Orders appear with more rules, so that rules do not prohibit, but rather point to achieving goals, stating the state of affairs to be achieved, marking direction and not conduct.
There is an increasing number of indeterminate factors that make up the law, and there are more gaps that exist due to many factors, e.g., the number of standards and many authorities that believe that they are scattered (Autonomous) in competency.
There is an increase in legal appearance standards that appeal to substantive rules.
All this makes the system less bureaucratic. The absolute abandonment of formalism has serious risks.
What lies behind formalism is the Rule of Law, for the purpose of legal guarantee.