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Legal Formalism Theory Analysis

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Published: 11th Jun 2019

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Jurisdiction / Tag(s): Jurisprudence

What does “formalism” actually mean? The phrase “formalism” does not really have its own status, it exists merely as a thought of scholars like Holmes, Pound and Frank.[1] Legal formalism was considered as black-letter tradition because it was thought that a person solely need to consult the appropriate textual sources from law books on a particular issue in order to know what is the law. This idea came from Christopher Columbus Langdell, Dean of the Havard Law school 1870-1885, who proposed that: “law can be seen as a science and that all the available materials of the science are contained in printed books.”[2] which represents that once the rules have been created by lawmakers, judges will implement those rules to a case and at the same time real life concerns and ethical issue were being omitted from this process. Once the exact label was identified in a case, it is then followed by the legal conclusion, therefore commentators described it as “mechanical jurisprudence”[3] as seen in United States v E.C Knight Co[4], where the US government had challenged towards the monopoly in the manufacture of sugar, but was rejected on the ground that it was not within the Congress’s power to govern domestic industry however obvious it might seem to be. Whether formalism presents an uncompromising version of law’s internal coherence, one must first determine the approaches taken by formalist and non-formalist.

Legal formalism originates from both natural law and legal positivist varieties. Both formalism and legal positivism explain laws scientifically. While positivism is known as the meaning of what the law is, formalism is a positivist’s explanation of how the legal system function. Formalism seems to have been significantly influenced by Jeremy Bentham (1748-1832), who always wanted to weaken the judges’ role to become one who simply apply the statutory law to factual situations without the influences of any non-legal factors.

The Austrian legal theorist Hans Kelsen develops his theory called as “reine rechtslehre”, a “Pure theory of law” based on conceptualism and the concept of law in the abstract.[5] This is where the idea of law being a hierarchical structure of norms come to light. The function of norm is to act as a ‘standard of human action’ and ‘as a course of interpretation’.[6] An explanation of using the norm is that, as long as we were using the ruler to measure the length of a given object, then the conclusion would always be the same as long as it is the same ruler. Apparently, Kelsen’s approach to law is the one formalist might take.

In contrast, HLA Hart contended that legal text in statutory codes in which they appear must be understood in the context of a whole legal sentence because there might be some factual situations which legal rules would fail to cover. Hart proposed his theory of “open texture”[7] where there will always be a situation for clear application of rules, namely “core of certainty”; and “penumbra of doubt”, where there is uncertainty in the application of rule. From these propositions, it appears that Hart was determined in the theory that judges must practice their discretion, on the circumstances where the legal rules contain “open texture”. Hart owns a stand which is in the middle between the ‘mechanical jurisprudence’ and what he considers the ‘nightmare’, which means the rule of law does not restrain at all.[8]

There is also some natural law component in legal formalism. Normally, the approach related with the label of “natural law” concentrated on “higher law”. Lon Luvois Fuller proposed an evaluation based on the “internal morality” of law which consists of a list of conditions which must be met if a rule was to be declared as “law”. The rules must be adequately general; openly promulgated; prospective; clear and concise; not contradictory in nature; comparatively stable; probable to obey; and congruence with their obvious meaning.[9] According to Fuller, the court should disregard the clear meaning of legal rules if it results to an outcome which frustrates the rule’s actual purpose. Legal reasoning should not be analyzed by the reasons which present on the face of law. They should be the reasons which make the law a legitimate law and that in applying them could reach a reasonable verdict.[10]

Ronald Dworkin says that law consists of rules and principles. He claims that rules either apply or they do not but a principle can be compatible to a case but not automatically conclusive. It is the principle which provide the justification when the established rules have failed to give. Hence judges when deciding can exceed settled rules albeit still adjudging according to the statute. In his later work, Law’s Empire[11], Dworkin realizes that ‘disagreement concerning the law’- theoretical disagreement as to what forms the objective of the law, is more crucial. In Riggs v Palmer[12], the terms in the statute were unambiguous but the law was vague. The judges disagreed about what the statute truly intended. According to Dworkin, the answer involves controversial and elemental moral disagreement targeted at discovering which of the contesting principle serving the morally most agreeable explanation of the law. Dworkin go on to hold that such disagreements are not determined by the operation of strong judicial discretion and that there are always right answers to be discovered within the legislation’s resources[13], therefore showing a formalist approach.

Against the Formalist theory rests the criticisms from the “realists”, who profess to provide a realistic and honest account of what judges truly do. These theorists appeared to be recognized as American Legal Realists. The criticism on formalist legal reasoning could be broke down into two parts: Firstly, they disputed against the notion that common law theories were “neutral” or “objective”; and disagreed against the thought that general legal rules could conclude the outcomes in special cases.[14]

The first criticism relates to the remarkable American case, Palsgraf v Long Island Railroad[15] where the defendant was careless in his attempt to help a customer but caused him to drop a package which then exploded and wounded the plaintiff. The confusion was whether someone should be responsible for all harms “proximately caused” by defender’s negligence. The majority of court decided that plaintiff could not recover because defendant only liable for the customer he was attempting to help. The dissented judge, containing a realist criticism, critics that the court ‘because of convenience, of public policy, of a harsh sense of justice, the law unreasonably denies tracing a series of events beyond a definite stage. This is illogical and is practical politics’.[16] For the second criticism, Holmes’ saying was famously outlined by: “General propositions do not decide concrete cases”[17]. The meaning is that judgment can hardly be accurately identified as a mechanical, logical understanding from general hypothesis. In some problematic cases, there always remains a division between the general legal premises and the outcome of particular cases.

Despite the criticisms by realists, there are still plenty of formalists who holds that law is “rationally” definite, in the sense that the legal reasons applicable by a judge in support of his judgment either in all cases or in some sort of disputable cases can only lead to one result and they believe that adjudication is thus “autonomous” where judges can reach the appropriate verdict without taking in mind of non-legal normative considerations and political reasoning. They are addressed as “sophisticated formalists” because they observed that legal interpretation is not merely mechanical but it requires the interpretation of those valid sources of statute, the identification of sources that are suitable and unsuitable, and they submit a theoretical explanation of how these numerous parts of reasoning are carried out ‘rightly’.

Dworkin’s theory can be observed as a sophisticated formalism.[18] He clarifies that judges may only refer to those political principles that they genuinely think may create the most comprehensible justification of law. In a complex interpretive process, judges must incorporate constitutional provisions, legal requirements, judicial precedents, and other legal components into the best coherent justification of law. Once established, this justification, which is regularly altered to adapt new elements, is sufficient to resolve all cases that emerge. In principle, there is a pre-existing right answer for every case, and judges never own discretion power.[19] Subsequently, judicial decision making is restrained and the underlying principles of the rule of law are sustained.

Formalist admit that strict rule is inconsistent with the ultimate goal of flawless justice but it also has advantages which overcome it loss. The obedience to the simple meaning of legal rules serves purposes we correlate with the rule of law. It raises the possibility that those who are accountable to the law will know what behaviour the law tolerates or forbids. Moreover, if judges don’t apply laws according to their plain and definite meaning, but rather granting what the legislature have had in thought but failed to publicize, civilians will be unclear as to how the laws will be exercised in practice. Complying with strict rules therefore improves predictability and certainty in the law, delivering the ideal of government, namely ‘a rule of laws, not men’.

In addition, formalist indicates that sometimes the court may misjudge in its attempt to achieve justice on a case-by-case basis. In reality, judges adopting the purposive approach may arrive in the false result more frequently than formalistic judges and thus be less successful at obtaining justice than judges who directly adhere to the rules. Taking into consideration of the matter that judges likely to be selected from a highly confined section of the society. Their background, race and sex are likely to pollute their thinking and they may undermine progressive legislative schemes if they are given carte blanche (complete freedom to act as one wishes) to diverge from apparent rules.

What does it mean of distinguishing the ‘juridical’ from ‘political’? Adherents of the formalism believe that there is a distinction between judicial reasoning and the reasoning of political decision-maker. The courts are expected to separate themselves from political controversy, so that they are limited to the region left unwanted by the political agenda. Judicial reasoning includes implementing pre-existing law and to reason inside the legal system, not outside of it. In contrast, politicians generally make resolutions with political minded. They seek to build community based on their own ideas about what the society desire. The politician’s primary function is to create rules and not to apply them.

Dworkin believes there is always a particular legal means to deal with disputes and judges should never infer in a way that politicians undertake.[20] He considers that judges’ role is not to establish which decision would have been the finest to political consequences but in a genuinely principled method. Dworkin differentiated between judges making decisions which result in political consequences and making decisions with political consequences in their mind which are inconsistent with legal reasoning.

By separating juridical from political, formalism promotes democratic legitimacy.[21] Formalists claim that their approach is the correct way of interpretation because formalism assures that controversial political decisions are made by those with a superior democratic ancestry, and not by unelected judges. Justice Scalia, who is a formalist that prefers clear rules, attempts to establish rules of interpretation that will confine the administrative power and discretionary of the judges, forming the least accountable branch of government.[22] Justice Scalia critics that the adoption of common law mechanisms is anachronistic because it is no longer in touch with the activities of modern government[23] and hubristic as it hinders democratic values by allowing judges to take part in an irrational duty in policymaking.[24] The American judiciary is “the least accountable branch of government” because its members serve “good behaviour”[25], therefore protecting their rulings from electoral accountability.

As a matter of political legitimacy, a democratic government can be accomplished by holding that judges should yield to clear rules of law, even though in doing so will lead to undesirably outcome. Patrick Atiyah, Professor at the University of Oxford, explains that ‘formality is an essential component of a system of administering power in society.’[26] He says that it is not the responsibility of judges to conduct everything, other members in the political process have a significant role to act.

It is not always easy to distinguish juridical from the political by formalism. In the late 19thcentury, American law was based upon laissez faire capitalism and utmost individualism. However, due to issues such as unemployment, health and safety concerns occurred as the consequences of allowing people to address their self-interest, thus political actions were carried out to bring in legislation to solve these troubles. Nevertheless, the members of the Supreme Court who tend to preserve the status quo keep disallowing such legislation because of the dissatisfaction of political stand that they supported, at the same time pretending that they were solely implementing the law logically as a formalist do. The American Realists were largely supportive of these social welfare schemes and were detracting the American judges who were stopping them by manipulating highly technical reasoning which asserted to avoid the policy questions linked. Therefore, judges must always be distinguished from political to ensure juridical independence.

Marxism is the philosophy of Karl Marx, a German-born economic theorist. Marx describes the form of the law not to the ‘development of the human mind’, but to ‘material conditions of life’.[27] The material conditions of life are those aspects which are required to maintain the most basic form of life. Marx uses a distinctive phrase
for his analysis of economy; he refers to the means of production, which is ways people earn their living, the ways of producing social wealth. Marx also makes a reference to the mode of production affecting the ‘general nature of society’, saying that economic organization is significant. For instance, if wealth is bound up with land, then those with land are powerful. The key to understand society, and hence to understand law, is to look to economy structure and the organization of power in a community.[28].

Marx’s perspectives on law is what they called the base-superstructure metaphor. Marx categorized between the infrastructure and the superstructure which emerge upon the bedrocks of the economic base.[29] In its crudest form, the structure and subject matter of law is regulated in a mechanistic pattern by the mode of production and its relations of production. Law is never an influence and it acts in accordance with the growth of economic.

In the early 20th century, Marxists started to focus on the notions of class. Class is a significant in Marxian concept. Classes derive from the relations that people get in to generate the means for their survival. According to Marx, a person’s class is decided by their connection with the means of production. In capitalist civilization, the proletariat are those people who do not own the means of production, but who work for those people who do, the bourgeoisie, namely the capitalist class. All superstructure factors of society were submitted as a tool of the ruling class in their bid to preserve political power and the relations of production. The origin of this concept is from the discussion in the Communist Manifesto[30] which states that “the administrator of the modern State is but a board for regulating the common subjects of the entire bourgeoisie”. This means that in current communities the government constitutes a device of the ruling class in its suppression of the exploited class.[31] For this reason, law is no more an echo of economic relations, but part of the government’s force to retain public order and to defend the economic rights of the ruling class.[32]

There is a difference between the approach that was upheld by legal formalism and Marxism. In Marxism position, law is to be regarded as an object of an expressly political theory; deprived of its autonomy, law is to present as an instrument of class privilege. In other words, law is no more the protector of freedom, impartial and beyond explicit political influence. Law is part of a social organization that is absolutely curtailed by its economic system. As such, law is undoubtedly an instrument of the existing ruling class. It both construes and safeguards these ruler’s interests of their capitals and labour-power, and its intercedes class relation with some proper rules and penalties which, basically, affirm and centralize existing class power. Hence the Marxism’s rule of law is barely another disguise for the rule of a class.[33]

In contrast, legal formalism assure that the law is imposed objectively and consistently regardless of who is in power and this could protect citizens against illegitimate acts of government. In the late 19th century Citizens were demanding to bring an end to the fact that controls were being operated by a minority over an exploited majority. Adjudication had constantly been in the hands of powerful and wealthy capitalists. The laws developed in the judicial system tended to indicate their benefits. Eventually, judges and advocates begun to adopt a formalistic approach on adjudication. Since the laws have been massively prejudiced against those challenging the status quo, the judges could offer their help simply using the logical application of the law, rather than depending on personal or class. Furthermore, when it was required to be creative in obtaining what the judges considered were the legitimate verdict, the judges could perform their policy option in the form of formal reasoning, since this was already the ordinary technique of how they reasoned.

Taking everything into account, formalism is a more persuasive approach to adopt due to the fact that Marxist jurisprudence’s forms of law are not neutral and universal and that it reflects the needs of ruling class to achieve certain ends. Non-formalist will produce injustices and greatly increase the expenditure of courts, litigants, and those looking for legal advice. As such, formalism should be defended because of its performance and activities of interpretation in courts which shows that it presents an uncompromising version of law’s internal coherence and of the consequent possibility of distinguishing the juridical from the political.



  • Kelsen, H, The Pure Theory of Law (M. Knight trans., University of California Press, California, 1967)
  • Barron, A, Collins, H and Jackson, E, Jurisprudence & Legal Theory: Commentary and Materials
  • Fuller, Lon L, The Morality of Law (revised edition)
  • Hart, H.L.A, The Concept of Law
  • Meyerson, D, Understanding Jurisprudence
  • Dworkin, R, Law’s Empire (1986)
  • Bix, B.H, Jurisprudence: Theory and Context
  • Gray, C.B, The Philosophy of Law: An Encyclopedia
  • Pineschi, L, General Priciples of Law-The Role of the Judiciary
  • Raines, J, Marx on Religion
  • Rigby, S.H, Marxism and History: A Critical Introduction
  • Marx, K, A Contribution to the Critique of Political Economy (1859)
  • Marx, K and Engels, F, The Communist Manifesto (A Modern Edition)
  • Elster, J, Making Sense of Marx
  • Thompson, E.P, Whigs and Hunters: The Origin of the Black Act


  • Neil Duxbury, ‘The Birth of Legal Realism and the Myth of Justice Holmes, 20 Anglo-Am Law Rev’ (1991)
  • Roscoe Pound, “Mechanical Jurisprudence”, 8 Columbia Law Review 605 (1908).
  • “Hard Cases” in Dworkin’s Taking Rights Seriously (Cambridge, Harvard University Press, 1977)
  • Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation, supra note 6
  • Marx, K, review of Girardin’s Le Social inneet I’lmpot. 4 The German Ideology

Table of Statutes

  • United States Constitution, Article III (1)

Table of Cases

  • United States v E.C. Knight Co, 156 U.S. 1 (1895)
  • Riggs v Palmer 22 N.E. 188 (1889)
  • Palsgraf v Long Island Railroad 248 N.Y 339, 162 N.E. 99 (1928)
  • Lochner v Yew York, 198 U.S. 45 (1905)

[1] Neil Duxbury, ‘The Birth of Legal Realism and the Myth of Justice Holmes, 20 Anglo-Am Law Rev’ (1991) 81,87.

[2] From a speech made by Prof. Langdell at the meeting of the Havard Law School Association, November 5 1886.

[3] Roscoe Pound, “Mechanical Jurisprudence”, 8 Columbia Law Review 605 (1908).

[4] United States v E.C. Knight Co, 156 U.S. 1 (1895).

[5] H. Kelsen, The Pure Theory of Law (M. Knight trans., University of California Press, California, 1967), p.1.

[6] A Barron, H Collins and E Jackson, Jurisprudence & Legal Theory: Commentary and Materials p.195

[7] H.L.A Hart, The Concept of Law, pp. 129-131.

[8] D Meyerson, Understanding Jurisprudence, p.64

[9] Lon L. Fuller, The Morality of Law (revised edition) pp. 33-38.

[10] D Meyerson, Understanding Jurisprudence, p.71

[11] R. Dworkin, Law’s Empire (1986)

[12] Riggs v Palmer 22 N.E. 188 (1889)

[13] D Meyerson, Understanding Jurisprudence, p.78

[14] B.H. Bix, Jurisprudence: Theory and Context, p.199

[15] Palsgraf v Long Island Railroad 248 N.Y 339, 162 N.E. 99 (1928).

[16] ibid at 352, 162 N.E. at 103

[17] Lochner v Yew York, 198 U.S. 45 at 76 (1905)

[18] “Hard Cases” in Dworkin’s Taking Rights Seriously (Cambridge, Harvard University Press, 1977)

[19] C B Gray, The Philosophy of Law: An Encyclopedia, p.183

[20] D Meyerson, Understanding Jurisprudence, p.63

[21] L Pineschi, General Priciples of Law-The Role of the Judiciary, p.24

[22] Cass R. Sunstein, “Behavioral Analysis of Law” (Coase-Sandor Institute for Law & Economics Working Paper No. 46, 1997), p.530

[23] Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION, supra note 6, at 9.

[24] ibid at 47.

[25] United States Constitution, Article III (1)

[26] D Meyerson, Understanding Jurisprudence, p.74

[27] J Raines, Marx on Religion, p.109

[28] K. Marx, A Contribution to the Critique of Political Economy (1859), preface.

[29] S.H. Rigby, Marxism and History: A Critical Introduction, p.178

[30] K. Marx and F. Engels, The Communist Manifesto (A Modern Edition), p.486

[31] Marx, review of Girardin’s Le Social inneet I’lmpot. 4 The German 1deology, p .180.

[32] J Elster, Making Sense of Marx, p.409

[33] E.P. Thompson, Whigs and Hunters: The Origin of the Black Act, p.259

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