LEGAL FORMALISM

Jan Paul Claudio 1G

Lea Joyce Lansang 1I

James Ryan Villena 1G

28 February 2009

Atty. Dacanay

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LEGAL FORMALISM: A DESCRIPTIVE CATEGORY

By Lea Joyce Lansang

What is Formalism?

Upon learning that we would report on Legal Formalism, my undergraduate years

suddenly back tracked. I recalled the first time I heard the term “formalism.” It was not in

my Political Science class, but it was in an elective subject called Art Studies.

Associating legal formalism with the arts, I formed my conception of the concept.

Formalism is the going back to the basics, to basic forms of lines and circles, and basic

colors, the primary and secondary colors in particular. First thing I actually did was to

search the web and download images from the Formalist Era. Below are examples of

which, and I was indeed correct—very basic, very simplistic.

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However, how do the literatures define Formalism? Google the word Formalism and

Wikipedia would be first in line. Formalism, accordingly, emphasizes on the form rather

than the content or the meaning of terms in the arts, literature and philosophy. Formalism

adheres to the “rules of the game”, that there is no other external truth beyond the given

rules. The practitioners of formalism are called formalists. A formalist holds that there is

no transcendental meaning aside from the literal meaning created by the practitioner, e.

g., formalists see mathematics as no more than the symbols written down by the

mathematicians, and the symbols based from logic and a few elementary rules. The non-

formalists would argue otherwise. In mathematics, there are some things that are

intuitively true and are not necessarily dependent on the symbols.

To form more complex and descriptive concepts, “formalism” was also mixed with a

number of terms. A procedural formalist believes that the success of a substantive legal

claim depends on procedural rules. A transactional formalist recognizes that there are

specific formalities for transactions such as contracts and marriages. Exemplar gratia,

solemn or formal contracts require a fourth requisite—compliance with the formalities

required by law. A simple donation inter vivos of land requires a public instrument for its

perfection.1 An administrative formalist sees the exercise of state power as surrounded by

procedural and transactional formalities. Exemplar gratia, “private property shall not be

taken for public use without just compensation.”2 A rule formalist has general preference

of rules over standards. The textual interpretative formalist, on the other had, can either

be a literalist or an originalist. A literalist refuses to vary the meaning according to

context, and an originalist finds meaning only through the context at the time of the

enactment. A precedential interpretative formalist interprets according to the meaning of

norms derived from the holdings of prior cases.

1 Paras, Edgardo, Comment on Article 1318 of the Civil Code of the Philippines, Civil Code of the Philippines Annotated 16th Edition, page 596.2 Article III Section 9, 1987 Constitution.

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Now, let us conjoin “formalism” with “legal.”

What is Legal Formalism?

Like all other concepts, legal formalism has also been used pejoratively. One of the

famous pejorative uses would be: “Legal formalism is a mechanical jurisprudence. The

judge decides on cases without thinking about the purpose of the law.” The more

“knowledgeable” ones, on the other hand, would define legal formalism as “Judges

should apply the law, and not make it.” In here, we can already grasp its meaning. In

legal formalism, there are legal rules that constrain what legal actors may lawfully do.

There is a difference between applying the law and doing what you think is best.

In the words of Pascual, “The formalist concept of the adjudicative process hinges on the

application of legal rule or rules on the facts of the case.”

Applying the definition in my current freshman curriculum, legal formalism indeed

“lurks” in my subjects, particularly in Constitutional Law and Statutory Construction.

These, inter alia, are regarded as two areas where legal formalism is prominent. In

Constitutionalism, formalism is associated with “originalism,” the view that the

Constitution should be interpreted in accord with its original meaning. An application of

which is the case of Ramirez vs. Court of Appeals3 wherein the Supreme Court resulted to

the original meaning of “communication” in resolve of the issue on privacy of

communication. To wit:

The word communicate comes from the Latin word communicare meaning “to share or to impart.” The definitions are broad enough to include verbal or non-verbal, written or expressive communications of “meanings or thoughts” which are likely to include the emotionally-changed exchange.

Statutory construction, on one hand, associated formalism with the “plain meaning”

theory, the view that words and phrases have their ordinary meaning. Agpalo on

Statutory Construction defines “plain meaning” as:3 G. R. No. 93833, Sept 28, 1995.

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If a statute is clear, plain and free fro ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is what is known as plain-meaning rule or verbal legis. It is expressed in the maxim, index animi servo, or speech is the index of intention.4

Legal Formalism is also conceptualism. Legal formalists adhere with the manner by

which mathematicians and scientists identify relevant axioms, and apply them to given

data. Legal formalism relies on inductive reasoning. This is apparent in the manner

students answer law exam questions. We utilize the “triangular method”—stating the

legal basis derived from the provisions or the jurisprudence, relating the latter to the facts

of the case, and stating the direct answer or conclusion.

Aside from it being called conceptualism, legal formalism is a also an important

contested category in different fields of law: in the (1) history of law, (2) the sociology of

law, (3) comparative law, (4) cultural study of law, (5) philosophy of law and the

interdisciplinary field currently (6) legal theory. It is used in different senses in these

different fields, and within each field, it is a contested concept rather than a well-

established term with a clear meaning.5 Because of which, it is certainly apt to trace the

roots of “legal formalism.”

Where did legal formalism come from?

Legal formalism can be traced from the evolution of the relationship of law and politics.

The Jacksonian Democrats identified law as a bastion of elitism that stood in the way of

government by the people. During this period, there was a shift from appointment to

election as a dominant method for choosing state judges. The people reflected the belief

that voters could adequately understand the legal issues and should be able to control the

bench. It indeed materialized. After 1847, every new state provided for election of at least

part of the judiciary, the supreme courts of Michigan and Pennsylvania became elective

bodies in 1850.

4 Bustamante vs. NLRC, 76 SCAD 652, 265 SCRA 61 (1996), citing Ruben E. Agpalo, Statutory Construction (1990 ed.). p. 94.5 Encyclopedia of Social and Behavioral Science.

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Prior to these years, particularly after 1837, there was a long period of economic

stagnation that led to widespread dissatisfaction with the strategies used to foster

development, including the candid formulation of economic policies by the courts. The

acknowledgment of sharpening class divisions during this economic downturn prompted

the beneficiaries of open-ended judicial powers to foresee that future courts might use the

same policy-making flexibility to approve redistributions of wealth in favor of the

disadvantaged. These pressures shaped new assertions of the old idea that legal decision

making process was neutral, objective activity unlike the political contest of interest and

subjective values.

Formalism, thus, became the most powerful response to these challenges, because it

maintained that judicial decisions should be based on abstract, general rules rather than

explicit policy considerations or an evaluation of fairness in individual cases. By

emphasizing what it was not, formalism identified two important areas of institutional

conflict for a judiciary struggling to consolidate the power it had successfully claimed in

the first half of the century. (1) Formalism underscored that courts were not legislatures.

Courts increasingly cast themselves in opposition to legislatures as defenders of timeless

values and exercised the authority to declare statutes unconstitutional. (2) Formalism

reinforced the distinctions between judge and jury. Fundamental inquiries such as the

question whether two parties had formed a legally binding contract, came to be regarded

as issues of law to be decided by a judge rather than issues of act to be decided by the

jury.6

With regard the modern use of “legal formalism,” the latter was characterized in the 19 th

century by its movement beyond both primitive formalism and formulary justice or strict

law. In (1) primitive formalism, the practice of deciding disputes was through oracles and

trial by battle, regarded as “irrational.” The Roman law, for example, for all its durable

justice and wisdom, allowed the brutal quartering of the body of the delinquent debtor by

6 American Eras (1997).

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his creditors.7 In the (2) formulary justice, a claimant could get redress through the legal

system only by putting his case into a closed class of actions.8

In totality, how does legal formalism define LAW?

Formalism proposes that law is science. Realism holds that law is just another name for

politics. Positivism suggests that law must be confined to the written, rules and

regulations enacted or recognized by the government. Naturalism maintains that the law

must reflect eternal principles of justice and morality that exists independent of

governmental recognition.

In legal formalism, law is more or less a “closed” normative system. Meaning, judges

should apply the law in a sort of mathematical fashion without regard to “real-life”

normative or policy issues. Judges should not concern themselves with whether the law is

good or bad, just or biased, sound or nonsensical. All those issues are for the legislature

to decide. A good example of which is the Philippine law on special time allowance for

loyalty, which is regarded by most people as an absurdity. To wit:

A deduction of one fifth of the period of his sentence shall be granted to any prisoner who, having evaded the service of his sentence under the circumstances mentioned in Article 158 of this Code, gives himself up to the authorities within 48 hours following the issuance of a proclamation announcing the passing away of the calamity or catastrophe referred to in said article (Emphasis mine).9

Legal formalism, thus, seeks the separation of powers. Legal formalists argue that judges

and other public officials should be constrained in their interpretation of legal texts.

According to Justice Laurel, the doctrine of separation of powers is intended to secure

action, to forestall over-action, to prevent despotism and to obtain efficiency. 10In the writ

of habeas corpus case in Lansang vs. Garcia,11 the Supreme Court states, to wit:

7 Cruz, Isagani, Constitutional Law, page 275.8 Encyclopedia of Social and Behavioral Science.9 Article 98 of the Revised Penal Code.10 Pangasinan Transportation C. vs. PSC, 40 O. G., 8th Supp. 57.11 No. L-33964 Dec 11, 1971.

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Under the principle of separation of powers and the system of checks and balances, the judicial authority to review decisions of administrative bodies or agencies is much more limited, as regards findings of fact made in said decisions. Under the English law, the reviewing court determines only whether there is some evidentiary basis for the contested administrative finding; no quantitative examination of the supporting evidence is undertaken. The administrative finding can be interfered with only if there is no evidence whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some American courts. It has, likewise, been adhered to in a number of Philippine cases. xxx”

Anti-Formalism and Formalism in Relation to Positivist

By James Ryan B. Villena (1-G)

As earlier stated, formalism is characterized by the rigid application of legal rules on the

facts of the case. In this concept, legal discourse is isolated from the purview of political,

social and ethical/moral discourses, and legal reasoning is severed from any external

criterion which can be used to judge and evaluate social behavior. Courts do not pass the

question of wisdom, justice, or expediency of legislation.12 Thus moral standards ethical

behavior, and crucially, questions of justice are eliminated from legal reasoning.13

Formalism, as a judicial philosophy, adheres to the use of judicial restraint and deference

to give legislature, which is the branch representing the will of the people, more rein and

to maintain separation between law and politics. It presents law as a gapless, logical and

internally coherent system, in which correct legal decisions can be deduced by formal

reasoning.14 This tenet of legal formalism is upheld by the rule of statutory construction

prohibiting the courts, by construction, to revise even the most arbitrary and unfair action

of the legislature, or rewrite the law to conform to what they think should be the law.15 It

is the duty of the legislature to make the law; of the executive to execute the law; and of

the judiciary to construe the law.16

12 Angara v. Electoral Commission, 63 Phil.139 (1936)13 Critical Lawyer’s Handbook Volume 1, Critical Legal Theory, The Power of Law, by Sammy Adelman & Ken Foste14 Critical Lawyer’s Handbook, supra15 Vera v. Avelino, 77 Phil. 192 (1946)16 US v. Ang Tang Ho, 43 Phil. 1 (1922)

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Anti-formalism, on the other hand, claims adherence to values of democracy by saying

that the judiciary has the obligation to enforce limits on government by restraining other

branches to protect individual rights and liberties prescribed in the Constitution. In other

words, when the strict application of the law results in injustice, the court has the duty to

uphold the rights protected by the Constitution. It goes with the saying that sometimes

you need to reform the law faster than the legislature or Constitutional amendment

process.

The anti-formalists argue that the courts can’t avoid making controversial moral value-

judgment in the course of legal reasoning. They are skeptical about the existence of one

correct legal method. Although they have nothing against following the precedent, they

are pressing on an adjudicative process which allows room for advances in modern

science, medicine and progressive thought. They are contending that meaning is not static

in view that law is dynamic and evolves over time. The legal realists, who are among the

anti-formalist, opposed formalism by maintaining that it is impossible and maybe

undesirable to eliminate role of subjective value judgments from legal reasoning.

Different interpretations are inevitable.

Justice Holmes warned that in the adjudicative process “what the courts will do in fact is

not achieved only by the interaction of the rules of the facts.”17 Supporting this argument,

Justice Benjamin N. Cardozo said that “no system of living law can be evolved only buy

the interaction of rules on the facts xxx.”18 The formalists, on the other hand, maintained

that judiciary should find rather than make the law, thus, adjudication is objective,

apolitical, and value-neutral process. There is a proper logical method that is not

subjective to determine the objective truth.

Formalism is committed to consistency and objectivity. This is emphasized by the latin

maxim stare decis et non quite movere which means follow past precedents and do not

disturb what has been settled. The rule rests on the desirability of having stability in the

law.19 The legal realists, refusing the idea of a singular right answer and recognizing the

role of meta-legal stimuli, challenged the consistency of formalism by asserting that

judges decide cases more on personal and political beliefs, background, and assumptions

17 American Banana Company v. United Fruit Company, 217 US 356, 58, L. Ed 82618 Cardozo, B., The Nature of Judicial Process, 19 Yale University Press, New Haven19 Kopel Inc. v. Yatco, 77 Phil 496 (1944)

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than logical, objective application of language of law. Justice Holmes, in supporting this

contention, said that the life of the law has not been logic, it has been experience. The felt

necessities of the times, the prevalent moral and political theories, intentions of public

policy avowed or unconscious, even the prejudices which judges share with their fellow

men, have had a good deal to do than the syllogism in determining the rules by which

men should be governed.20

To summarize, here are the points presented by the formalists and the anti-formalists:

Formalism

Use judicial restraint and deference to give the legislature more rein and to

maintain a strict separation between law and politics

Judiciary should find rather than make law there is a proper logical method

(that is not objective) to determine the truth

Adjudication should be objective, apolitical and value-neutral process

Commitment to consistency and objectivity

Anti-Formalism

Claims adherence to values of democracy by saying that the judiciary has the

obligation to enforce limits on government by restraining other branches to

protect individual rights and liberties prescribed in the Constitution

Can’t avoid making controversial moral value judgment in course of legal

reasoning

Skeptical about existence of one correct legal method

Law is dynamic and evolves over time

Following precedent but allowing room for advance in

science/medicine/progressive thought

Its impossible and maybe undesirable to eliminate role of subjective value

judgments from legal reasoning

Legal formalism in relation to legal positivism

20 Holmes, O, The Common Law, 1. Little Brown and Company, Boston

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Virtually the same view, except that formalism takes the judge’s standpoint, whereas

positivism takes the legislator’s standpoint

However, this has significant consequences in terms of justification of the law

o Formalists stress the internal coherence of the law, whereas positivists

stress its ultimate source (Hobbes’ sovereign or Hart’s rule of

recognition).

o A good example of formalism in action is how the US Supreme Court

dealt with the vote count in Florida during the 2000 presidential election.

The Court was more concerned about the precedent the decision would set

that in future cases of the same kind rather than whether it justice to the

actual litigant (i.e. Al Gore). Basically the Court did not want to make it

easier to have votes recounted whenever anyone has a grievance about the

outcome.

Legal formalists try to codify the judge’s conscience in terms of Aristotle’s

distinction between commutative and distributive justice (Weinrib)

o Commutative justice = the convicted defendant is solely responsible for

redressing the damage done to the plaintiff

o Distributive justice = all of society is potentially implicated in redressing

any damages

The difference between commutative and distributive justice depends on the terms in

which people are thought to have consented to the legal system.

o Commutative = Everyone equally consented and have benefited

sufficiently equally

o Distributive = Not everyone has consented to the same extent and have not

benefited to the same extent

This would justify penalizing a poor person less than a rich one for

committing the same crime, even if this upsets the victims.

Legal formalism and positivism claim to go back to the most basic function of the

law, which is to provide an accountable mechanism for dispute resolution

o However, these movements are open to the criticism of being geared

toward expert specialization (professional lawyers) rather than an ordinary

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citizen's sense of natural justice (which tends to get dismissed as

prejudice).

There are two senses in which positivism and formalism are concerned with

‘arbitrariness’ in the law:

o Bad arbitrariness = law does not involve the consent of the governed (e.g.

common law, natural law, church law – according to Jeremy Bentham)

o Good arbitrariness = positive law binds only because it has the consent of

the governed – not because of any transcendental significance (e.g.

contract law)

Formalism Today

By Jan Paul Claudio

Proponents can be identified as one who argues in support of something; an advocate; a

person who makes a proposal or proposition; a person who espouses or supports a cause;

or in view of law one who propounds something21. Justice Antonin Scalia of the US

Supreme Court is noted for his formalist views about a variety of topics, particularly his

view that the US Constitution should be interpreted in accord with its original meaning

and his view that statutes should be read in accord with their plain meaning. He added

that “Legal Formalism is a theory that law is a set of rules and principles independent of

other political and social institutions.” To understand it better he presented an example in

his A Matter of Interpretation, he said: “A murderer has been caught with blood on his

hands, bending over the body of his victim, a neighbor with a video camera has filmed

the crime and the murderer has confessed in writing and on videotape. We nonetheless

insist that before the state can punish this miscreant, it must conduct a full-dress criminal

trial that results in a verdict of guilty. According to, Christopher Columbus Langdell

father of US legal formalism, joined the faculty of Harvard Law School. He compared

21 Webster's New World College Dictionary, definition of proponent retrieved from

http://www.yourdictionary.com/proponent

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the study of law to the study of science, and suggested that law school classrooms were

the laboratories of jurisprudence. It is like Judicial reasoning parallels the reasoning used

in geometric proofs, and urged professors of law to classify and arrange legal principles

much as taxonomist organizes plant and animal life. Professor Ronal Dworkin has been

the foremost advocate of the formalist approach with some subtle variations. Although

stops short of explicitly comparing law to science and math, he maintains that law is best

explained as a rational and cohesive system of principles that judges must apply with

integrity. The principle of integrity requires that judges provide equal treatment to all

litigants presenting legal claims that cannot honestly be distinguished. Application of the

principle of integrity will produce a “right answer” in all cases, even cases presenting

knotty and polemical political questions. Sir Edward Coke believed that the common law

was “the peculiar science of judges.” That the common law represented the “artificial

perfection of reason” obtained through “long study, observation, and experience.” That

is why only lawyers, judges, and others trained in the law could fully comprehend and

apply this highest method of reasoning. Even the king and queen of England, was not

sufficiently learned to do so. Further more, John Chipman Gray said “Law is the whole

system of rules applied by the courts” and that a law or statute is only a source of law.

Dissent means to differ in opinion or feeling; In view of law a justice's refusal to concur

with the opinion of a majority, as on a higher court also called dissenting opinion22. One

of its examples is Political dissent which refers to any expression designed to convey

dissatisfaction with or opposition to the policies of a governing body. Such expression

may take forms from vocal disagreement to civil disobedience to the use of violence.

Historically, repressive governments have sought to punish political dissent. The

protection of freedoms that facilitate peaceful dissent has become a hallmark of free and

open societies. According to, Justice Oliver Holmes that law consists of “the prophesies

of what the courts will do in fact and nothing more pretentious.” PASCUAL commented

saying that “Holmes condemned the ‘black-and-white’ approach. He stated that ‘a body

of law is more rational and more civilized when every rule it contains is referred

22 Encyclopædia Britannica Eleventh Edition , definition of dissenters retrieved from http://en.wikipedia.org/wiki/Dissenter

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articulately and definitely to an end which it serves, and when the grounds for desiring

that end are stated or are ready to be stated in word.” John Austin and Thomas Hobbes

were strict positivists who believed that the only authority courts should recognize are the

commands of the sovereign because only the sovereign is entrusted with the power to

back up a command with military and police force.

False dichotomy also called a false dilemma, either or, black or white, the missing

middle. You are presented with two choices, when in fact there are more than two

choices.  If one choice is discredited, then the reader is forced to accept the other choice.

But this is not an adequate argument, the choice favored must be supported by evidence.

Let us cite some examples to make it clear: a)"If today is not Tuesday, it must be

Wednesday." And b) "Evolution science is in disarray, so Creation science must be

right." The dichotomy can also be in the form of a question, which not only restricts

choices but also forces a decision.  For example, a salesman will ask "Do you want the

red car or the blue one23." In False Dichotomy of Pragmatism and Ideology, In view of

the legal world, the antithesis of pragmatism is legal formalism, which is broadly

understood to be the mechanical application of law to a situation, in contrast to the policy

driven judicial legislation of a pragmatic judge. In the political arena, pragmatism is in

contrast with ideology, and the innate boundaries that political ideals set on enacting the

best solution. In accordance with these parameters, pragmatism and idealism/legal

formalism are consistently in conflict with each other, and are thought to be mutually

exclusive. The dichotomy has been exploited recently as a weapon in both the political

and judicial forums.

One reason for the comeback of Legal Formalism is the realization that extreme

versions of instrumentalism make it very difficult to know what the law is, in advance of

23 Beckerman, Wilfred, Through Green-Colored Glasses:   Environmentalism Reconsidered ., Cato Institute, 1996. False Dichotomy, retrieved from http://info-pollution.com/false.htm

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a judge’s decision in a particular case. The point of Hard Law which binds everyone

within its jurisdiction is that they provide certainty, stability, and predictability to the law.

Purposes provide less guidance, and different judges are likely to have different opinions

about what the true purposes of the rule may be.

In jurisprudence, a question of law also known as a point of law is a question which must

be answered by applying relevant legal principles, by an interpretation of the law. Such a

question is distinct from a question of fact, which must be answered by reference to facts

and evidences, and inferences arising from those facts. Answers to questions of law are

generally expressed in terms of broad legal principles, and are capable of being applied to

many situations, rather than being dependent on particular circumstances or factual

situations. An answer to a question of law as applied to the particular facts of a case is

often referred to as a "conclusion of law".

To illustrate the difference:

Question of fact: Did Mr. and Mrs. Jones leave their 10 year-old child home alone

with their baby for 4 days?

Question of law: Does leaving a baby with a 10-year old child for 4 days fit the

legal definition of child neglect?

While questions of fact are resolved by a trier of fact, which in many instances may be a

jury, questions of law are always resolved by a judge, or an equivalent. Whereas findings

of fact will rarely be overturned by an appellate court, conclusions of law will be more

readily reconsidered24.

FORMALISM AS A CATEGORY IN THE SOCIOLOGY OF LAW

24 Treatise on Trial by Jury: Including Question of Law and Fact By John Proffatt Published 1986 Wm. S. Hein Publishing Jury 608 pages, Conlusion of Law, retrieved from http://en.wikipedia.org/wiki/Conclusion_of_law

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There are 2 types of sociologies: (1) sociologies that include law as one of the elements in

an integrated representation of society; and (2) sociologies that take law as their object,

bringing the bear on it the variety of instruments of sociological investigation (Treves

1995). The first type of sociology, neither the legitimacy of the legal order, nor its

content, nor the effects of legal institutions, can be inferred from the external imperatives

the theorist imagines animate them. In this vein of the first type of sociology, critical

legal scholars attacked the Marxist sociology of law as no more than the will theory, the

“logic of commodity” in place of natural rights (Kennedy 1997), and then turned the

same critique on American functionalist legal sociology (Gordon 1984), and finally

against Habermasian attempt to distinguish between discourses of justification and

application (Michelman 1996). With the second type of sociology, the defining work is

Max Weber’s Economy and Society. Weber offers a descriptive typology of forms of

legal rationality. The highest type of logically formal rational systems is a collection of

norms that are internally consistent and that officials apply to particular fact situations

according the textual and conceptual formalism premised on gaplessness, as described

about. In Weber’s phrase, interpretation is the “logical analysis of meaning.”

-Weber’s ideal type today offers a problematic rather than offering a powerful

description:

(1) It is a matter for investigation how an order claiming any of Weber’s types of legal

rationality operates through officials at the level of practive (Sarat 1985), how state

interacts with other normative orders, and what effects are plausibly linked to a type

(Trubek 1972);

(2) It is a question for further study whether it is ever plausible, given the critique of

gaplessness and the ever-present possibility of the abuse of deduction, that a legal order

operates in practice in a way usefully described as logically formal rationality; and

(3) As the above discussion shows, the bureaucratic mode of legitimation no longer relies

on the claim of logically formal rationality, but rather on a complex mixture of claims of

local meaning-based closure, claims of policy rationality (substantively rational, in

Weber’s terminology), and claims of democratic procedural legitimacy25.

25 2001 Elsevier Science Ltd. All rights reserved.

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International Encyclopedia of the Social & Behavioral Sciences, FORMALISM AS A CATEGORY IN THE SOCIOLOGY OF LAW, pp. 8636

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