Legal formalism is the view that judges should apply rules according to their plain meaning PDF

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Introduction: Legal formalism is a normative and descriptive theory of how judges should decide cases. It is the hypothesis that considers legal realism as an antithesis. The intent and purpose are to have the legal rule stand apart from any social and political influences.1 With this theory in place, it can mitigate any interference from any outside sources, inclusive of public policy and social interests. The method of this process is judicial formalism, which inherently, follows to the ‘plain letter of the law.’ While this appears on a prima facie basis to be a just system, there are two significant issues that cause question. The two immediate issues that are considered to be potential problems with formalism are the rule of law and natural moral regulation. Both these terms appear to try and dominate the order of procedural history.2 The rule of the law is a doctrinal formalism that has become closely associated with the control of law. The belief is that when judges hand down their sentences, they have clear and concise reasons for their decisions, as they are articulating the existing doctrine.3 It is this notion that asks the question of whether or not this formal approach is the correct one. On the other hand the morality of the law is inherent that it is asked what the true objectivity is. Whether it is accepted and understood by the masses, it is far better to have these issues deciphered before they are presented. One position becomes a moral realism, and the other becomes moral anti-realism. Positiveness of the rule of law:

1

Stanford Encyclopaedia of Philosophy, The Rule of Law First published Wed Jun 22, 2016.

2 Hart, Positivism and the Separation of Law and Morals (1958) 71 Har L Rev 593, 60 n 25. 3Ibid.

With the rule of law defined as an authority and influence of law in society,4 all subjects including, governments, are considered equal and that no one is above the law. It is deemed as a positive rule and ensures that all monarchies, law enforcement and judges are all held accountable under the same law and legislation.5 From a positives view, Hart6 declares that there are both easy cases and hard cases. An easy case is where the particular case will fall under the current legislation and, the hard cases are when there appears to be vagueness in rules, inciting a gap in the law. Dworkin7 however, disagrees with this theory stating that there are in fact, right answers to the legal questions with some key features. Promotion of the freedom of the judiciary: ensuring that each individual avoids interference from any biased or socially driven authorities. It also promotes the qualitative of life: With any citizen having the right to have their lives enhanced. Not operating to the letter of the law, thus creating social order, and enhancement of any individual.8 Preservation of the constitution: The rule of law helps to preserve the constitution of the land. The act of the land and the rule of law, bind together the certainty of the law. Ensuring that the constitution is always guarded and responsive. Finally, it prevents arbitration and dictatorship. When the rule of law is adequately enacted, society is aware of their rights and has no issue in supporting their rights. Governing bodies always regarded in check, to create a check and balance of all government appointees and all likelihood of dictatorships. The negativity of the rule of law: 4 H L A Hart, the Concept of Law. 5 Ibid. 6Hart, Positivism and the Separation of Law and Morals (1958) 71 Har L Rev 593, 60 n 25. 7 R Dworkin, ‘The Model of Rules’ (1067) 35 University of Chicago Law Review 14. 8 AUSTRALIAN LEGAL PRINCIPLES IN PRACTICE - TAKING REASONING AND RESEARCH SERIOUSLY* by Bryan Horrigan.

There are no limitations within the rule of law. The suggestion that anyone who tells you that there are, do not know what the law is. One may argue that there are limits on the constitution or that the law is being interpreted too broadly. An unconstitutional law is always governed by the ‘rule of law’ inciting that this is, in fact, the higher law. A modern view in Jurisprudence is that the effect that the law has within the courts and whether or not they are subject to the interpretation of the courts, are they too broad?9 When you challenge the law, you are, testing the validity of the constitution, as opposed to the limits or civil obedience. In the case of Thoreau,10 he was a believer in civil disobedience. As well as taking responsibility for your disregard of the law, he strongly felt that if you decide to rebel, then you also choose to take responsibility. Hart has a separation theory; he argues that even though there are official statements regarding the law, there is no legal obligation to obey the law. Austin’s approach to this is the difference between coercion and obedience.11 My view of the “rule of law” The ‘rule of law,’ is quite a coveted issue, although having seen the formalist views of this, I think that we, as a society, should not have to have all the power in the hands of one judge. There does need to be law and order in society; however, I feel as though the legal obligation to just one person is not the common sense of this world. The law is routinely dismissed as absurd; it’s like we believe in fairy tales, having the constant rejection of declaratory theories, creating more problems. A positives theory of law can create and exude its own law and issues, however, it does support the view that judges make the law. 9 F Schauer, ‘Formalism’ (1988) 97 Yale Law Journal 509.

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The Case against Thoreau, Vincent Buranelli, Ethics, Vol. 67, No. 4 (Jul., 1957), pp. 257-268.

11 Hart, Positivism and the Separation of Law and Morals (1958) 71 Har L Rev 593, 60 n 25.

Positiveness of natural moral law: The astute advantages of natural law are the appealing idea of knowing right from wrong. It’s something we consider something unjust, we are keenly aware that is ‘not fair’. The natural law and religion coexist in acknowledging that humans are not perfect and often do wrong things. Austin12 declares that punishment can be socially constructed and not necessarily just. Both Austin and Hart believe that law and morality are separate entities.13 Natural law also basis itself on deductive and rational reasons, ensuring that it is an objective theory and not open to interpretation. This is considered a strength as all come to the same conclusions cohesively. Having a common morality in place binds the social morality of the law. Natural is absolutist and does not change with an opinion, ensuring that all parties have the law applied equally as in Riggs v Palmer.14 Negatives of Moral Laws: Hart believes that hard questions require discretion and an amount There are several disadvantages of natural law, there are plenty of dishonest people and, the law requires a very straight line of empowerment. Having society dictate the outcomes of any crime can be both detrimental and disastrous. There is the impression that some natural laws are outrageous. For example, human teeth have canines that are used for eating meat and bones, as well as incisors used for eating plant-

12 Hart, Positivism and the Separation of Law and Morals (1958) 71 Har L Rev 593, 60 n 25. 13 H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593. 14 Riggs v Palmer, 115 NY 506 (1889).

based foods. Natural law states that we should be able to eat both foods with the same teeth inciting an unnatural law. This law also makes us look at the natural decisions in our lives. Having children and is it natural to want children, or is it unnatural to not want children. Human reproduction, is not, in fact, our sole purpose in life. St Thomas Aquinas15 and Mother Theresa16 have both failed to have children, does that mean that these two are bad people? My view of Moral Laws:

I strongy agreeance with Hart and Austin17on the social positivism. I believe that a resilient moral coercion should be respected and considered when a judge is allowing for the ruling. Not all soft or hard cases are exactly the same and what is appropriate for one is not always the same for the other. The debate between the two scholars is distinctive in the opinion of law. It should not be directly up to the judges to enforce such a rigid and unnatural line of legislation. Despite Dworkin, disputing the moral satisfying justification of the ‘plain law’, I fear that as a society we must consider all the elements in each case to be fair.

15 The Catholic Lawyer Volume 2, January 1956, Number 1 Article 4 The Philosophy of Natural Law of St. Thomas Aquinas Miriam T. Rooney.

16 Ibid. 17 ‘John Austin’, Stanford Encyclopaedia of Philosophy....