formalism

Formalism
unravels law as a rational and coherent body of rules which gives birth to
right solutions when mechanically applied by judges and legal doyens to legal
problems. Formalists as such, perceive law to be an enclosed, self-contained
specialty that is loose from the shackles of politics.

This essay would examine this formalist
position doing so by explaining formalisms make-up, its relation to law and the
way in which formalists perceive cases should be decided. It would then explain
the difference between this position and a position that would be taken by a
feminist legal scholar in the process explaining feminism and various forms of
feminist legal theory and their connection to law. It would then give a
comprehensive conclusion on the position it finds more persuasive.

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            Formalism
depicts law as having an underlying, internal logical coherence, an abstract
validity and delineates the juridical as being distinct from the political;[1] a
flowering academic way of simply saying it allows law to be separated from
politics. It opines that the law always has a right answer for every dispute
waiting to be found and this answer could be found by the exercising of logical
faculties and as such ethical considerations, social factors, policy questions
do not need to be taken into account.

Formalism is
strongly associated with Christopher Langdell who could be regarded as its
pioneer. Langdell, a 19th century dean of Harvard Law School thought
of law as an objective science consisting of an internal object independent
from social factors. He adopted the case method which was the dominant way of
teaching law during his time. The case method is based on the idea that law is
like a science and legal scholars are like scientists trying to discover
something. It is about looking through the law books trying to analyse data and
making a conclusion based on that data. As such, to Langdell all that was
needed was a skilled judge to apply a scientific mode of interpretation to find
the right answer.  Also he did not support
the idea that practical experience was needed to understand the dynamics of law
instead to him all that was necessary was a law degree.

Legal formalism
refers to an intellectual view that presents the absolute autonomy of law
through a separation of law and politics, while advancing law’s immanent
intelligibility and coherence.[2]
It is a very optimistic idea of what law is and it posits law as its own
doctrinal disciplinary boundary. Formalism has been defended by Weinrib and he argues
that the only way that law and politics could be separated is to grasp law in
its own terms[3]
and ‘from the internal point of view.[4]
He also postulates that law is intelligible as an internally coherent
phenomenon distinct from politics.[5] The
coherence of law is the fact that the law is consistent as such always reliable
in solving disputes as long as it is interpreted correctly. He also backs the
idea that in judicial interpretation, judges should not take into account any
external factors such as policy questions because the law already has a right
answer.

Tauza
v Susquehanna[6] sparked a debate between formalists and realists on how a judge
should decide cases. This case involved a company based in Pennsylvania and a
claimant who wanted to sue the company in New York. The company argued that
they were not based in New York and if the claimant wanted to sue them he would
have to bring an action to the court in Pennsylvania.

A formalist believes that it is just
a case of applying rules like a formula. As such, abstract legal concepts and
questions would have to be understood and applied here such as what is a corporation;
does it have a physical existence; is it tied to a particular location; can it
exist or be tied to more than one location. A formalist is against looking at
the scenario from a practical perspective in terms of the impact the decision
would have if the company is allowed to be sued in either of the
locations. 

            Lochner
v New York[7]
is one that would be celebrated by formalists as majority in the House of Lords
adjudicated the case on general propositions of what bakers freedom
meant, also placing great emphasis on the idea of people as free autonomous
contracting agents. Formalism would relish the judgement in this case because
of the abstract rule based application of the law of the meaning of ‘freedom’
here without considering practically what freedom may mean to each
individual baker.

            Legal
Formalism has been seen to be problematic as such has been the target of public
outcry through various academic pieces by various legal theorists and scholars
especially by legal realists. The main basis for this discourse is the view
that law cannot simply just be understood by rules because rules are inherently
contradictory.  Oliver Wendell Holmes criticised
formalism on the basis that “the life of the law has not been logic; it has
been experience”.[8]
Karl Llewellyn described formalism as “blind, inept, factory-ridden,
wasteful, defective and empty’[9]
and Jerome Frank a noteworthy legal realist, described formalist thinking as ‘word
worship’ and ‘verbal mania’[10][11].
Despite these criticisms, a number of legal theories incorporate elements
of formalism in its core definitions.

            Legal
positivism is often mistaken to be formalism but this not precise as not all
positivists believe that law has an abstract, internal objective that always
leads to the right answer. Professor Hart is arguably not a formalist
because he suggested that law had a linguistic open texture,[12]
subject to interpretation and that in a hard case where there is no easy right
answer, the judges can use their discretion. 
This is not a formalist position because a formalist would be of the
view that judges should not have to use their discretion because the law would
provide the answer as it has a coherent, unambiguous logic to it. Hans Kelsen
on the other hand could be regarded as a formalist because his theory is all
about a “system and hierarchy of norms”[13]
that has independence from other social factors.

            Natural
law theorists could also be regarded as formalists but not all. A traditional,
theological natural law theorist like Thomas Aquinas could be regarded as a
formalist because he relished the idea that there were abstract principle
attached to law and  God provides the
legal answer to the legal question at hand as such it is the job of legal
scholars to interpret this. He referred to law as “an ordinance of reason
for the common good, made by him who has care of the community”.[14]
Lon Fuller on the other hand is not a formalist because although believes
there is an ‘internal morality to law’[15],
he reckoned that that there are certain requirements law has to fulfil in order
to be law one of such being that it has to be pro-active. Ronald Dworkins is
probably the most prominent example of a contemporary formalist thinker because
he is of the view that law provides a ‘seamless web’[16]of
principles that always gives the right answer.

            Formalism
thus presents law as being consistent, compatible, not contradictory and
distinct from politics. Feminist legal theory on the other hand presents a
different perspective of law. Feminist theory of law attempts to ascertain
various ways in which legal concepts evince gender differences. It identifies
the prevalent impact of patriarchy and masculinist norms on law, legal
structures and processes and establishes their effects on the material
conditions of women and girls.[17]

Feminists
criticize aspects of cases trying to find out in what way do legal concepts
reflect gender differences. For example, the defence to the old law of
provocation according to feminist critique reflects a particular male norm of
violence due to the requirement of a reaction having to be ‘sudden’ as
such it gives protection to male violence other than females who may take
longer to react.[18]

In Ahluwalia[19]a
wife used the provocation defence as a defence to the murder of her husband and
she lost because here reaction was not sudden. She appealed on grounds of
diminished responsibility and won. Feminists believe that she had to be regarded
as ‘abnormal’ to win which leads to stigmatisation. As such, they are of
the view that even when the law endorses women, there is usually a detriment to
the women.

There have been
various views on feminism and law by various feminists and it would be an
exercise in futility to fully understand the relationship between feminism and
formalism without fully looking at these various views and the barriers they
are trying to break. It is because of these views that feminists view on law
has been regarded as widely controversial and “indeed often contentious”.[20]
Due to there being various kinds of feminism, the relationship between feminist
legal theory and legal formalism is not a singular one. This is because
different feminist theories have different relationships to legal formalism.  

             Liberal feminism is arguably the dominant
theory and the theory that has achieved the most in terms of how feminist
theory has managed to influence the way law operates. The underlying idea
behind this is that the law can recognise that there are differences between
men and women but it should not treat them differently rather they should be
treated the same. It is predicated on the idea that the aim of law is to protect
the rights and autonomy of individuals, basic individual freedoms. It sees
society as a collection of rational individuals and the way justice is pursued
is to make sure everyone has the same rights and entitlements.  It has however been criticised and the
forefront of this criticism is the notion of whether people could actually be
treated equally; ignoring certain vulnerabilities that may be tied to a
particular genders.

Wendy Williams tackled this criticism
and proposed a solution. She examines the case of California v Guerra[21]
in the process. This case involved a federal law which stated that women with a
pregnancy related disability cannot be treated differently from other workers.[22]
There was also a state law which allowed pregnant women or anyone with a
pregnancy related disability be allowed a leave of absence.[23]
Traditional liberal feminists view here would be that the federal law be
followed and as such no leave of absence but this would be clearly unfair as
such she suggests the use of a symmetrical approach and recommended that the
law should grant not only pregnant women this protection but rather everyone
else that has a disability.[24] The
state law should be treated in a gender neutral way and is extended to cover
all sorts of disabilities rather than focusing on solely the pregnant.

Difference
feminism takes a polar opposite view to liberal feminism. Difference feminism
suggests that difference between men and women should be recognised and
embraced as these genders have different normative patterns of behaviour.
Difference feminists believe that the law should be realistic, recognise that
difference exists and even celebrate it as it may be naïve of the law to think
that difference does not exist.

Carol Gilligan made the argument
that different patterns of normal and legal reasoning[25]
could be observed within males and females specifically children because they
have not been socialized fully into the roles of a man and a woman. She opined
that gender has to be incorporated into the understanding of law.

Radical feminism
is a feminist theory that accepts that there are differences along gender lines
but sense that these differences are socially constructed. It is of the view
that these differences are a hierarchy, a power relationship and that gender
differences are a way in which power is exerted over women. For instance, to
radical feminists, the way women are sexualized in society is not as a result
of body differences rather society has constructed this and in the process
engrained a power relationship between men and women resulting to women being placed
lower than men in the social stratum. The radical feminist would not take the
liberal view of treating people like they are the same but it would also not
take the view that it is sufficient simply to treat different people
differently. A radical view is adopted in that they believe a deeper look at
the way power dynamics are reflected in law needs to be taken.

Catherine Mackinnon argues
that a great deal of legislation particularly anti-discriminatory legislation
seeks to give women to an environment that is culturally geared towards men.[26]
It is a way in which the work place is opened up to women but they are required
to accord with a male standard of behaviour therefore placing the male gender
as a benchmark of what is normal. She does not believe that these legislations
in any way are breaking down these power relationships and working to remedy
the way in which there is a privilege accorded to male cultural stereotypes and
not to females.

Intersectional
feminism perceive understanding gender inequality as a dynamic simply between
male and female is too simplistic and abstract and that other factors other
than gender affect the gender experience in different ways. These factors
include nationality, age, race etc. The key argument here is that in order to
understand the issue, the key intersecting factors would have to be understood
and that it is impossible to present a unified view of the female experience
without taking into account other various characteristics.

Kimberle Crenshaw elucidates that
the law has failed to represent an intersectional understanding of
discrimination[27].
This is because the law does not allow claims on the basis of intersectional characteristics
and as such employers have been able to protect themselves from discrimination
claims. For instance, a woman of colour cannot make a discrimination claim on
the basis of both her colour and gender.

Feminist’s
legal theory has left a footprint in the sands of time in law due to its
immensely widespread and sundry nature. Similarities between formalism and feminism
could be established in certain views of feminism. A contradiction could also
be envisaged in other types of feminism. To a large extent, feminist
jurisprudence is a critical theory not necessarily trying to answer the big
questions in jurisprudence such as what is law, what makes law different to
other rules; does law have to be moral? Instead it is a critical theory which
tries to break down some assumptions that the grand jurisprudential theories
may be making.

Formalism takes
the view that law is a logical, independent system and that the role of legal
scholars is a scientific one. Legal rules exist and the answers would be found
through the use of legal analytical skills. To a large extent, a liberal
feminist might embrace this idea because liberal feminism is of the notion that
to achieve gender equality, it is sufficient to focus on abstract entitlement
and rights. There is compatibility here as the legal formalist places a great
degree of faith in coherence and abstract validity of law and this sounds very
promising to a liberal feminist who believes the solution to the problem is a
legal right. Formalism also takes the view that law and politics that is
external factors could be separated. Liberal feminism propound that the law
should not reflect gender differences or sexual politics and everyone should be
treated the same and equally by the law. Thus, liberal feminists seem to mirror
ideas and concepts of legal formalists in their critique of law.

            Radical
feminism would be very critical of formalism and would not support the idea
that there is an underlying objectivity to the law. Radical feminists suggest
that the law is not coherent and is not benign regulator of rights and freedoms
of people rather it portrays itself as this in order to mask the fact that law
is not one of equality. A formalist would see law as independent discipline with
no built connection with other social, cultural factors. A radical feminist on
the other hand would disagree on the basis that law has a functional
relationship with the surrounding social factors and milieu it finds itself in.
They posit that law reflects the power dynamics that run through society’s vein,
it does not have a logical objective independence and that it is simply a
vehicle for all the cultural baggage present in society.

            Difference
feminism differ with formalists as they presume that gender should be
incorporated in the understanding of law as such believe law should and could
be separated from sexual politics. Intersectional feminism disagrees with
formalism and believes that the law has to be more realistic and in treating
every individual, it must take into account intersecting cultural factors. 

            Formalism
presents a more persuasive approach to law than feminist legal theory because of
various reasons. Formalism protects and upholds parliamentary sovereignty, separation
of powers and democracy. Parliamentary sovereignty is the backbone of the
United Kingdom constitution and formalism seeks to ensure that parliament is
the main and highest body of law making due its stress on the strict application
of the law by judges. Formalism also strengthens a democracy by putting law
making in the hands of those that have been elected rather than judges who do
not bear the mandate of the people. Formalism also ensures separation of powers
by ensuring that the judiciary interprets the law made by Parliament.

Formalism produces
a good normative society as well as stability and consistency in governance. It
places great emphasis on rules and when people are aware of the rules and penalties
for the infringement of the rules, it leads to less violation of the rules therefore
producing a good normative society.  Due
to its rigid nature, formalism leads to more consistent decision making as it
would be easy to predict outcome of cases.

Formalism thus presents
a long-term way of legal adjudication due to its underlying coherence especially
in relation to the rather myopic feminist legal theory.