A Timid Defence of Legal Formalism
29 Pages Posted: 25 Feb 2021
Date Written: February 24, 2021
This paper defends (a moderate form of) formalism as opposed to empiricism and theory. It defends the value of doctrinal scholarship, understood as arguments structured by the language and logic of the law. The paper further argues that, as a legal scholar, if you want your work to be societally relevant you must engage with doctrinal work. If you do not engage with the formal legal discussion you do not meet the law and doctrinal work by judges, other practitioners, and/or doctrinal legal scholars, on their own terms. If, as a legal scholar, you do not make this link to doctrine you do not easily have power of persuasion. What remains is the possibility of ‘trickle-down scholarship’, meaning that your more theoretical or empirical work is picked up by doctrinal scholars and ‘translated’ into useful knowledge for practitioners, civil society organisations, or judges, who work with the performative effects of law, i.e., immediate effects in social life that law produces because of its significance. In other words, with the particular expertise of legal reasoning, we cannot have impact if we do not contribute (also) the bricks of doctrinal scholarship that legal practice needs to translate our findings into law.
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