Formalist Model

7/29/2019 Formalist Model

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FORMALIST

MODEL


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Optima Statuti InterpretatixEst Insum Statutum

(The best interpreter of the

statute is the statute itself.)


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Q: What is the view of Legal

Formalist on judicial adjudication?A: Legal formalists argue that judges and other

public officials should be constrained in theirinterpretation of legal texts, suggesting that investing

the judiciary with the power to say what the lawshould be, rather than confining them to expositingwhat the law does say, violates the separation ofpowers.

Formalism seeks to maintain that separation asa "theory that law is a set of rules and principlesindependent of other political and social institutions".


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Q: Compare Legal Realism

and Legal Formalism.A: Legal Realist is the view that creativity inthe interpretation of legal texts is justified in order

to assure that the law serves good public policy

and social interests, although legalinstrumentalists could also see the end of law as

the promotion of justice or the protection of

human rights.

Legal formalists counter that giving judgeauthority to change the law to serve their own

ideas regarding policy undermines the rule of law
http://en.wikipedia.org/wiki/Instrumentalismhttp://en.wikipedia.org/wiki/Human_rightshttp://en.wikipedia.org/wiki/Human_rightshttp://en.wikipedia.org/wiki/Instrumentalism


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The formalist ideal is for the courtalready to have at its disposal a completeset of clear, unequivocal and preciselegal standards which provides the basisfor a mechanical resolution of disputes

between its members. It enjoys the twinvirtues of clear guidance anddeterminacy in judgment. The law'sformulation allows for a mechanical

resolution of the dispute leading to onlyone possible result to which the courts arebound when deciding a case.


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Andres v. Manufacturers Hanover & TrustCorporation (1989)

Principles of equity cannot beapplied if there is a provision oflaw specifically applicable to a

case.


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People v Veneracion

Judge Veneracion finding the defendantsHenry Lagarto and Ernesto Cordero guilty

beyond reasonable doubt of the crime ofrape with homicide and sentenced bothaccused with the penalty of reclusionperpertua with all accessories provided

by law. City prosecutor filed a motion.


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Holding:Obedience to the rule of law forms the

bedrock of our system of justice. If judgeunder the guise of religious or politicalbeliefs were allowed to roam unrestrictedbeyond boundaries within which theduties of office, then law becomesmeaningless.


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Principle

The law may be harsh

but it is the law.


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Q: What is the Formalist Model of

Adjudication?A: A mechanical or effective decision

procedure is one which involves a finite number

of steps requiring no insight or ingenuity to

comply with them, such that a computer orindeed anyone possessed merely with the ability

to follow simple directions can execute them

mechanically. At the completion of the

procedure, a categorical yes orno answer tothe question being asked should be available.


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Q: Does formalist model satisfy

conventionality (law)?A: Yes. Formalist Model (alsocalled Positivist models) insist that

the formal or logical derivationof the subsumptive reasondispositive of the case originatefrom the standards found in theinstitutional sources of law. This

satisfies conventionality.


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Under a purely formal model ofadjudication, it is intended that every

case arising for adjudication be resolvedby means of a mechanical derivation ofthe subsumptive norm dispositive of thecase from standards found in the

institutional sources of law. A system oflegal norms therefore must be availablefrom which the norm appropriatelycovering the case can be mechanically

deduced or identified and then formallyapplied by logical deduction to derivethe answer to the given case.


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Q: What are the requirements

for formal decision procedure?A: In its entirety, this formal decision procedure

would require

(i) that the institutional sources of law

provide a gapless, consistent and closed systemof norms or, if containing gaps orinconsistencies,an internal purely formal procedure to remedythis.

Note: Stat.Con.


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Apply the Law Interpret the Law Construct the Law

When the law speaksin clear andcategoricallanguage

When there isambiguity in thelanguage of statute,ascertain legislative

intent by makingintrinsic aids or thosefound in the lawitself.

When the intent ofthe legislaturecannot beascertained by

merely making useof intrinsic aids, thecourt should resort toextrinsic aids, orthose found outsidethe language of law.


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(ii) that from this gapless, consistent and

closed system, the legal norm whichsubsumes the case can be mechanicallydeduced or identified so that it can then bemechanically applied.

If both these complex conditions aresatisfied, then a purely formal model ofadjudication exists.


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Q: Can be their non-mechanicalfeatures of formalist model?

A: Non-mechanical featuresmay intrude in two ways: in

the derivation oridentification of theappropriate legal norm, and

in its application.


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Social norms are group-

held beliefs about how

members should behave ina given context


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The first requirement provides the general

conditions which prevent these from

occurring. The legal system must bedeductively arranged or methodically

categorized so that any case arising for

adjudication will eventually be paired with

a unique corresponding norm. This allowsfor mechanical derivation or identification.

Once this norm has been so identified, the

case must be decided in accordance with

it. No reason, no matter how weighty, is to

defeat the application of the norm. This

ensures mechanical application.


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EVALUATIVENESS

This is the fourth characteristic of

an ideal model of adjudication.


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Its not the letter ofthe law that killeth, it

is the spirit of the law

that give it life.


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Q: Why there is a need to use

Formal Evaluative Model?A: Because a purely formal

model is impossible to

construct, any theory ofjudicial reasoning must be

evaluative.


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The requirement of completeness and

univocality will never be satisfied. This isbecause the law inevitably will speakvaguely or ambiguously, or will fail to speakat all, so that there will always be fact-situations not clearly covered by existing

law. Linguistic philosophers have explainedthis phenomenon to be due essentially to abasic feature of any natural language, thefact that it is unavoidably open-textured,so that vagueness is permanent and

ineliminable. It is also due to the naturalhuman predicament of man's relativeignorance of fact and his relativeindeterminacy of aim, a point due to Hart.


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Q: Why there is a need to formulate

non-evaluative terminology?A: The system of laws must be formulated in non-

evaluative terminology such that any case arising

would require only a straightforward interpretation

of its laws for it to be decided. The laws must beclear, the boundaries precise, inconsistencies

avoided, and the scope of the entire legal system

comprehensive. These requirements can never be

met. Such a system of laws is impossible to

construct. The proof rests on the open texture ofconcepts, which means that it is not possible to

delimit concepts precisely so as to leave no doubt

as to its correct application. Indeterminacy, forever

present, is an unavoidable feature of language.


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Open texture is more than simply

vagueness. Vagueness is uni-dimensional or exists only along acontinuum. To eliminate thevagueness then, one merely has to fixa precise boundary along thatcontinuum.


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One can set the age of eighteen (18), for

example, to distinguish a minor from anadult. Open texture is a deep and multi-

dimensional type of vagueness. The

possibility of vagueness does not exist only

along one dimension but arises along everypossible, and not just conceivable,

dimension. Hence to eliminate vagueness in

one dimension by introducing a precise termwould introduce vagueness in another by

the need for other terms.


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Q: What is the disadvantage of

too artificiality and rigidity?

A: Even if formalism can be approximated,it may be unwise to do so since the judge

also attempts to achieve substantive justice,and too much artificiality and rigidity willprevent its accomplishment.


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Q: What are the four kinds of

hard cases? 1. The cases in the gaps

No vehicles in the park,

Trespassers, licenses, invitees, wanderingchildren

Snail in a ginger bottle


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2. The legal norm is expressed in moral or

evaluative terms

Every person must, in the exercise of hisright and the performance of his duties,

act with justice, give everyone his due,and observe honesty and goodfaith.(Article 19 of the Civil Code)

The due process clause


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3. The case of conflict

The Gobitis case (Ebralinag case)

4. The case of unsatisfactory law

Herrington case

Gobitis case


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In all these cases, evaluative

adjudication is inevitable. This is dueboth to the open texture of language,which points to the inadequacy of anarticulated system of laws to provide

clear guidance to every case arisingfor decision and to the judicial role,which in applying the articulatedsystem of laws with justice, has

substantive, and not just formal, justicein contemplation.


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CONCEPT FORMALISM

Q: What is conceptual formalism?

A: Conceptual formalism treats law as ascience, systematizing its norms into somesort of deductive arrangement or conceptualorder.


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Q: Why there is a need for

Conceptual Formalism?A: The law itself is divided into categories.

Within these categories are the top-levelabstract legal concepts and fundamentalprinciples which can be said to informthese concepts.

At the bottom lie specific rules which aresupposed to be deduced from the top-level concepts and principles by means

of logical derivation. Intermediate between them is a whole

variety of legal norms.


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Q: What is the rationally

behind conceptual formalism?

A: The model approximates the purelyformal one. It strives towards gaplessness

and closure because any legal question isintended to be answered merely by theinternal logical development of its top-level concepts and principles so as to

produce the bottom-level rule, if it doesntalready exist, which subsumes the facts ofthe case.


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Cases in the gaps

The method used by conceptual formalism toresolve cases in the gaps is to develop theconcepts found in the law with logical rigidity. Inthe two British cases mentioned above, this

method of rigid conceptualism was used. Thereare two variants of this method. The first, applied in

Addie, is to have fixed rigid and exhaustivecategories; the second, contemplated in

Donoghue, is to have closed but not exhaustivecategories.


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Cases governed by evaluative norms

Interpret the evaluative concepts andprinciples logically by rigid conceptualism,in the process specifying them into anintricate set of detailed and precise rules

which should preclude the use ofsubstantive interpretation for theirapplication.


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Cases of conflict

The use of a formal method of having a

strict hierarchy of norms. The Constitution

is ranked higher than a statute and a

statute higher than precedent. When aconflict between two norms belonging to

the same institutional binding source

occurs, the later norm is the one which

governs.


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When a conflict is due to the scope of

competing substantive norms beinguncertain, it is often solved not by

comparing rank but by determining the

scope of each norm with the aid of

substantive reasoning. This occurred forexample in the Gobitis case, which

involved competing interpretations of

the Constitution giving rise to a conflict

between the values of national cohesionand unity as against religious liberty.


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Rigid formalism applied.

Cases of unsatisfactory law

Under the purely formal model, sincethe norm is precisely that unique

norm belonging to the institutionalbinding sources which, in its plain orliteral interpretation, directly covers

the case, it has to be applied. Noreasons, no matter how weighty areto deter the judge from doing so.


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Q: What are the two remedies

open to conceptualformalism?

(1) He may apply the appropriate norm with extreme

reluctance, while giving his reasons why the law

ought to be changed and why he is constrained fromchanging it. This may induce the legislature to amend

the law accordingly, or he may make use of a device

known as a fiction. This is a device formal in approach

but substantive in result. A case may be classified

under a different category, where a legal norm less

harsh is to be applied. In such a way did judges

classify wandering children as invitees or as licenses.


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Q: What are the disadvantagesof this model?

Too artificial and too rigid

Other models are available.


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PURELY SUBSTANTIVE MODEL


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Q: What is the rationale of this

model?A: Moral reasons not only prevalent in butindispensable to adjudication, it might be preferable

to conduct judicial reasoning purely in terms of moral

and evaluative considerations. The rationale behind

such a procedure is plain to see. For thedisadvantages of being guided and strictly bound by

rules and other legal norms could then be avoided.

Rules are selective, constrain the decision-maker to

focus only on those aspects deemed relevant, and

therefore prevent him from considering all the equitiesof the case, those factors and issues which may lead

to a more informed, a sounder or wiser decision.


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Under a purely substantive model, a

decision is to be made as if the legalrule already covering the case did notexist. In other words, no weight is to beattached to that legal rule by virtue of

the fact that it subsumes the facts ofthe case. Instead, the moral andevaluative substantive reasons behindthe rule are to be considered alongwith other relevant substantive

reasons, and a decision is to be madeon their balance.


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Q: What is the relevance of this

model?

(1)It satisfies rationality, subsumptivity,evaluativeness but not conventionality.

(2 ) Adheres to justice plain and simple,not justice in accordance with law.


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Q:What are the reasons for a

system of public rules. (1)Avoidance of error (Coordination

problems);

(2) Minimization of bias

(3) Efficiency (not fairness) (4)Justified reliance

(5)Certainty and predictability

(6) Respect for autonomy

(7)Reduction of litigation (8)Adherence to Plurality

(9) Respect for judiciary, separation of powers


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Q: What is the disadvantage of

this model?A: Because the purely substantive

model rejects the strong reasons for

adhering to rules, it must berejected.

A substantive approach, whichnonetheless pays due respect toformality, is studied next.


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THE WEIGHTED PRIMA FACIE

REASON MODEL

Q: What is weighted prima facie reasonmodel?

A: This is an approach adopted byEconomic Jurisprudence of Posner.


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Interesting sidelight: homo economicus.

Latin for "economic human". A term used ineconomic theories to describe humans as

rational and self-interested beings capable ofmakingjudgments towards subjectively defined

ends (such as accumulation of wealth andresources). This is used as a basic for the majorityof economic models, where they assume that allhuman beings will act like homo economicus.

The validity of this assumption has beenquestioned in some economic circles, withalternative assumptions proposed.
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His approach, however, is in terms ofconsequences, that the decision productive of

the best consequences is the correct reason.

This approach takes a particular binding legal ruleas a weighted prima facie reason to decide the

case in accordance with it. The rule enjoys aweighted primacy or importance which has to beoverridden if it is not to apply to the case. This hasmuch in common with the purely substantivemodel of adjudication, except that the

substantive reasons for complying with the legalrules are now taken into account in the balanceof reasons.


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The burden of proof rests on those whoadvocate a result contrary to the particularlegal rule to demonstrate that the substantivereasons for that result override the substantive

reasons for a result in accordance with it.


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The substantive reasons which argue for

a result in accordance with the rule areweighty indeed, and as such difficult tooverride. They include, apart from thosesubstantive reasons for complying withrules which ought never to beunderestimated, the value, reason, orpurpose behind the particular legal ruleand those reasons, which althoughindependent of the rule, justify the result

nonetheless. To tip the scales then infavor of a decision contrary to the rulewould occur only infrequently.


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Documents

Formalist Model