Formalism Legal Ethics

Paul Craig explains that Dicey considers the rule of law to be formal. According to him, the arbitrariness mentioned by Dicey results either from a mere absence or from serious shortcomings in the legal rules, namely the absence of a legal basis and the vagueness or lack of clarity of the legal rules in question.33 Craig also explains that Dicey`s second meaning, equality, requires “formal access to the courts”.34 With respect to Dicey`s third meaning, he acknowledges that it “does not accord easily with the previous two”.35 He argues that Dicey, with his emphasis on the common law, simply says that “if you wanted to protect such rights, then the common law technique was better than that used on the continent”.36 This interpretation avoids recognizing the fact that the protection of rights is a necessary capacity of the law – it is merely a contingent characteristic. Dicey acknowledges that the law passed by the judges “really has the force of law and is enacted by the courts” and calls the “English courts” “the English legislature”.59 However, Dicey and Austin differ in their assessments of these laws. For Austin, a strong proponent of codification, the law made by judges is nothing but a tragedy because it is an ex post law.60 But Dicey is not so cynical; He believed that professors could represent the general rules of the common law and “reduce the mass of legal norms to an orderly set of principles.”61 Unlike a country where codification is vigorous, which communicates rules by explicitly offering to do so, Dicey argues that a country where the law is predominantly the product of the courts has a different way of identifying the law. However, the prevention of these disasters, expressed in Raz`s words, depends on the degree of discretion that officials should have.47 The mere congruence between the actions of officials and the rules successfully created by the legislative institution cannot eliminate corruption or avoid incompetence. That is, the core of legal formalism implies a commitment to a set of ideas that more or less: Ethical formalism is a type of ethical theory that defines moral judgments according to their logical form (e.g., as “laws” or “universal regulations”) rather than their content (e.g., judgments about actions that best promote human well-being). The term also often has critical connotations. Kant, for example, has been criticized for defining morality as a formal characteristic of a “universal law” and for then attempting to derive various concrete moral duties from this formal characteristic. Albert Venn Disey`s understanding of the rule of law illustrates the modality of law postulated by the actions of the courts. Dicey mentions three requirements: the absence of arbitrary power; Equality; and judicial decisions in special cases leading to judicial law. The central idea of formalism is that the law (constitutions, statutes, regulations, business rules and precedents) provides rules and that these rules provide a public standard for what is (or is not) legal. It is easy to see how realists or instrumentalists would criticize legal formalism. If a formalist judge follows the clear meaning of a law, it could lead to its application, even in cases where it would be prejudicial and contrary to the intentions of its authors.

It is a “harmless” or “mechanical” jurisdiction. Moreover, some realists have argued that legal formalism is in fact a kind of fraud. The judges don`t really follow the plain meaning – so the argument. On the contrary, the so-called formalist judges actually decide on the basis of their own political preferences and then dress the results in the language of legal formalism. Some realists may have believed that ideology takes precedence over the work of legal decision-making; Legal formalism dresses it up to appear “legitimate”. Political ideology also played a role in the formalist revival. Some (but not all) formalists are particularly troubled by the results of the Warren and Burger courts in important constitutional cases, such as Roe v. Wade. Some of these critics may view legal formalism as a legal philosophy that can rationalize the dismantling of these controversial precedents.

What is the form of the rule of law or the form of law? In this section, in examining the modalities of the law, I argue that formal requirements are the conditions for the success of legislative acts. In examining the current debates on whether law is a modal or functional type, I first explain why the recognition of a new type of legislative act and the proposal of a new list of formal requirements do not contradict the formalism supported by John Gardner, who sees the form of law as a modality of law. Starting from the theory of speech acts, I then show that Fuller`s list is best understood as a set of requirements for the modality of the law postulated by successful legislative acts of Parliament. Formalism has been termed “autonomous discipline”,[10] following the formalistic belief that judges only require facts and law, with all normative issues such as morality or politics irrelevant. [11] When judges simply apply the rules mechanically and uncontroversially, it protects them from criticism.