Formalism Compared To Legal Realism
Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism. Instrumentalism is usually the view that creativity in the interpretation of legal texts is justified in order to assure that the law serves good public policy and social interests, although legal instrumentalists could also see the end of law as the promotion of justice or the protection of human rights. Legal formalists counter that giving judges authority to change the law to serve their own ideas about good policy undermines the rule of law. This tension is especially interesting in Common Law traditions, i.e. those that, like the English, US, Indian or Israeli systems, depend on judicial precedent to determine the law. The "claim to fame" of Common Law systems is that the task of developing and updating law is best done incrementally by courts that keep in close touch with social, economic, and technological realities than by political organs that, every so often, will attend to legal reforms. Thus legal realism or "relationalism" has been favored in some common law jurisdictions, where the kind of legal codification associated with continental (and Japanese) law are virtually unknown.
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Famous quotes containing the words formalism, compared, legal and/or realism:
“It is sentimentalism to assume that the teaching of life can always be fitted to the child’s interests, just as it is empty formalism to force the child to parrot the formulas of adult society. Interests can be created and stimulated.”
—Jerome S. Bruner (20th century)
“But compared with the task of selecting a piece of French pastry held by an impatient waiter a move in chess is like reaching for a salary check in its demand on the contemplative faculties.”
—Robert Benchley (1889–1945)
“I am opposed to writing about the private lives of living authors and psychoanalyzing them while they are alive. Criticism is getting all mixed up with a combination of the Junior F.B.I.- men, discards from Freud and Jung and a sort of Columnist peep- hole and missing laundry list school.... Every young English professor sees gold in them dirty sheets now. Imagine what they can do with the soiled sheets of four legal beds by the same writer and you can see why their tongues are slavering.”
—Ernest Hemingway (1899–1961)
“Placing the extraordinary at the center of the ordinary, as realism does, is a great comfort to us stay-at-homes.”
—Mason Cooley (b. 1927)