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Formalism_paper (Group 12)

Formalism_paper (Group 12)

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Published by Leiya Lansang
Group 12:

Jan Paul Claudio
Lea Lansang
James Ryan Villena
Group 12:

Jan Paul Claudio
Lea Lansang
James Ryan Villena

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Categories:Types, Research, Law
Published by: Leiya Lansang on Mar 07, 2009
Copyright:Attribution Non-commercial

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05/10/2014

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LEGAL FORMALISM
Jan Paul Claudio 1GLea Joyce Lansang 1IJames Ryan Villena 1G28 February 2009Atty. Dacanay1
 
LEGAL FORMALISM: A DESCRIPTIVE CATEGORY
By Lea Joyce Lansang
What is Formalism?
Upon learning that we would report on Legal Formalism, my undergraduate yearssuddenly back tracked. I recalled the first time I heard the term “formalism.” It was not inmy Political Science class, but it was in an elective subject called Art Studies. Associatinglegal formalism with the arts, I formed my conception of the concept. Formalism is thegoing back to the basics, to basic forms of lines and circles, and basic colors, the primaryand secondary colors in particular. First thing I actually did was to search the web anddownload images from the Formalist Era. Below are examples of which, and I wasindeed correct—very basic, very simplistic.2
 
However, how do the literatures define Formalism? Google the word Formalism andWikipedia would be first in line. Formalism, accordingly, emphasizes on the form rather than the content or the meaning of terms in the arts, literature and philosophy. Formalismadheres to the “rules of the game”, that there is no other external truth beyond the givenrules. The practitioners of formalism are called formalists. A formalist holds that there isno transcendental meaning aside from the literal meaning created by the practitioner,
e. g.,
formalists see mathematics as no more than the symbols written down by themathematicians, and the symbols based from logic and a few elementary rules. The non-formalists would argue otherwise. In mathematics, there are some things that areintuitively true and are not necessarily dependent on the symbols.To form more complex and descriptive concepts, “formalism” was also mixed with anumber of terms. A procedural formalist believes that the success of a substantive legalclaim depends on procedural rules. A transactional formalist recognizes that there arespecific formalities for transactions such as contracts and marriages.
 Exemplar gratia,
solemn or formal contracts require a fourth requisite—compliance with the formalitiesrequired by law. A simple donation
inter vivos
of land requires a public instrument for its perfection.
1
 An administrative formalist sees the exercise of state power as surrounded by procedural and transactional formalities.
 Exemplar gratia,
“private property shall not betaken for public use without just compensation.”
2
A rule formalist has general preferenceof rules over standards. The textual interpretative formalist, on the other had, can either  be a literalist or an originalist. A literalist refuses to vary the meaning according tocontext, and an originalist finds meaning only through the context at the time of theenactment. A precedential interpretative formalist interprets according to the meaning of norms derived from the holdings of prior cases.
1
Paras, Edgardo, Comment on Article 1318 of the Civil Code of the Philippines,
Civil Code of the Philippines Annotated 16 
th
Edition
, page 596.
2
Article III Section 9,
1987 Constitution.
3

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