Paul Troop, doctoral student, jointly supervised by UCL Brain Sciences and UCL Laws, and co-convenor of the UCL Laws’ Legal Philosophy Forum has published ‘Why Legal Formalism is Not a Stupid Thing’.
The article, first presented at the UCL Laws Work in Progress Forum, was published in Ratio Juris and is available to download.
The paper argues that the theory of law called legal formalism has been misunderstood. Rather than being laughable, it can be seen as a plausible scientific theory about law that illuminates other theories of law that reacted to it, such as American legal realism and law and economics.
The paper explains how two different meanings of formalism have been confused. Most people nowadays think of formalism as ‘rule formalism’ - the belief that judges mechanically apply written legal rules to the facts of a case to decide the outcome. However, the paper suggests that the original formalists were ‘doctrinal formalists’, believing that judges decided cases based on a common intuition or doctrine, and that the rules set out in common law cases were an imperfect reflection of that intuition. The assumptions of doctrinal formalism share many similarities with present-day doctrinal law, giving the theory a continued relevance today.
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