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formalism (legal)


Subject Legal and Political » Legal Philosophy

DOI: 10.1111/b.9781405106795.2004.x


Extract

P hilosophy of law A position in legal philosophy, which claims that law is a logically complete and coherent body of rules and that we can apply these rules universally to solve all particular cases, without need to refer to non-legal considerations, such as those arising from social and moral phenomena. This position flourished in the middle of the nineteenth century, but was bitterly attacked by legal realism or rule skepticism, which argued that legal rules are unimportant and that law is nothing more than the actual decisions of courts or legal officers. Hart agreed that law is a set of rules, but rejected the claim that rules can settle everything, for rules are often vague and indeterminate. In addition, because human knowledge is limited, we cannot formulate rules for all future cases. Formalism is also criticized by Dworkin in his rights thesis. He holds that there are hard cases that cannot be resolved by the simple application of rules. “The vice known to legal theory as formalism or conceptualism consists in an attitude to verbally formulated rules which both seeks to disguise and to minimise the need for such choice, once the general rule has been laid down.” Hart, The Concept of Law ... log in or subscribe to read full text

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