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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