Two Forms of Formalism
Published in Form and Substance in the Law of Obligations 165 (James Goudkamp & Andrew Robertson eds., 2019).
29 Pages Posted: 13 Nov 2019
Date Written: November 4, 2019
In this paper I argue that what is called ‘formalism’ is actually two very different views: I call one ‘conceptualism’ and the other ‘doctrinalism’. The former is deductive and ‘philosophical’ whereas the latter is inductive and ‘pragmatic’. While the two views have sometimes been aligned in opposition to certain views they were both in opposition to, they are actually fundamentally at odds with each other. I demonstrate this by identifying eight parameters on which the two are opposed. After presenting the two views, I turn to evaluating the two views. I first argue that conceptualism is indefensible, and that though it enjoys a degree of academic popularity, it has no real existence in legal practice. My conclusion with respect to doctrinalism is different. I argue that it is a viable approach to legal analysis and an attractive one in certain political environments. As part of my evaluation, I compare doctrinalism with legal realism (of Karl Llewellyn’s stripe), and argue that, contrary to popular belief, the two are close to each other, differing mostly in the extent to which the legal system should be open to the influence of popular values. The choice between such views, I conclude, depends more on a given community’s political culture than is a matter to be decided by jurisprudential or linguistic analysis.
Keywords: formalism, private law theory, legal realism
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