Why Legal Formalism is Not a Stupid Thing

This article is written by Paul Troop, jointly supervised by UCL Brain Sciences and UCL Laws, and co-convenor of the UCL Laws' Legal Philosophy Forum.

19 November 2018

Publication details

Troop, Paul (2018) 'Why Legal Formalism is Not a Stupid Thing', Ratio Juris, 31(4), 428-443, available: http://dx.doi.org/10.1111/raju.12225

Abstract

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.