In legal reasoning, two major schools of thoughts emerge: formalism and realism.
The former can be analogous to a machine, which runs with or without judges. A question is posed and an answer given. Formalism is based on legal principle, rather than the decision of judges or the courts. Ariel Bendor describes formalism as, “The thinking that underlies judicial formalism is inductive and deductive – legal principles that rationally produce, or at least should produce, a solution to the legal question being presented for judgment.”
The latter, suggests that law cannot be simply based on a system of formal rules which are unbending. Realism adds that law is made by humans and thus must have a human element. Realists give judges the power to interpret what the law should be, given the circumstances presented, and matched against stare decisis et non quieta movere and codified law.
One can argue that the realist approach gives rise to judicial activism, in the 1900s law was being heavily scrutinised in France, Germany and the United States. Many social activists began thinking that law should be something more than actions being constrained and the law saying whether or not those actions were right or wrong. Activists believed that law should include social aspects in legal reasoning. This became the group known as the American Legal Realists.
The realists attacked formalism as not being ‘fact’ specific, meaning if the rules say, “No getting off the bus, while the bus is in moving.” Does that mean there should be a strict interpretation of the rule to mean there are no precluding aspects? If the bus were moving into the sea and you jump off the bus to save your life, then are you guilty of breaking the rule? The formalist would interpret the law by way of a formal means test, whereby rules are followed, regardless of what the consequences will be, as formalism does not allow for compassionate justice and is insensitive to changing social conditions. The realist approach would opt for a substantive means test, looking at each specific case to see how the rules should be interpreted.
It appears a third way approach would be most sensible. The law has to be ambiguous enough to catch the known, unknowns. For example, if a sign in the park reads, “No vehicles in the park,” then does this mean bicycles are not allowed? Yes, as a bicycle is a vehicle. Now what about a skateboard, is that a vehicle? The more cases you have which test a law, the more certainty is brought to that rule and the area of uncertainty shrinks. A formalist fears uncertainty of judicial decisions, whereas a realist fears the law being insensitive to the particularity of situations. Law is for people and not the other way around.
The former can be analogous to a machine, which runs with or without judges. A question is posed and an answer given. Formalism is based on legal principle, rather than the decision of judges or the courts. Ariel Bendor describes formalism as, “The thinking that underlies judicial formalism is inductive and deductive – legal principles that rationally produce, or at least should produce, a solution to the legal question being presented for judgment.”
The latter, suggests that law cannot be simply based on a system of formal rules which are unbending. Realism adds that law is made by humans and thus must have a human element. Realists give judges the power to interpret what the law should be, given the circumstances presented, and matched against stare decisis et non quieta movere and codified law.
One can argue that the realist approach gives rise to judicial activism, in the 1900s law was being heavily scrutinised in France, Germany and the United States. Many social activists began thinking that law should be something more than actions being constrained and the law saying whether or not those actions were right or wrong. Activists believed that law should include social aspects in legal reasoning. This became the group known as the American Legal Realists.
The realists attacked formalism as not being ‘fact’ specific, meaning if the rules say, “No getting off the bus, while the bus is in moving.” Does that mean there should be a strict interpretation of the rule to mean there are no precluding aspects? If the bus were moving into the sea and you jump off the bus to save your life, then are you guilty of breaking the rule? The formalist would interpret the law by way of a formal means test, whereby rules are followed, regardless of what the consequences will be, as formalism does not allow for compassionate justice and is insensitive to changing social conditions. The realist approach would opt for a substantive means test, looking at each specific case to see how the rules should be interpreted.
It appears a third way approach would be most sensible. The law has to be ambiguous enough to catch the known, unknowns. For example, if a sign in the park reads, “No vehicles in the park,” then does this mean bicycles are not allowed? Yes, as a bicycle is a vehicle. Now what about a skateboard, is that a vehicle? The more cases you have which test a law, the more certainty is brought to that rule and the area of uncertainty shrinks. A formalist fears uncertainty of judicial decisions, whereas a realist fears the law being insensitive to the particularity of situations. Law is for people and not the other way around.
