Rosedemae B.

Bolongaita
JDN 105 - Philosophy of Law

1. What are the main tenets of legal formalism?

a. Law is rationally determinate, the class of legitimate legal reasons available for
a judge to offer in support of his decision justifies one and only outcome either in
all cases or in significant and contested range of cases. For example cases that
reaches the stage of appellate review.

b. Adjudication is autonomous from other kinds of reasoning that is the judge can
reach the required decision without recourse to non-legal normative
considerations of morality or political philosophy.
A theory that legal rules stand separate from other social and political
institutions. According to this theory, once law makers produce rules, judges
apply them to the facts of a case without regard to social interest and public
policy. It seeks to enforce what the law actually says, rather than what it could or
should say. It is a theory that the law is a set of rules and principles independent
of other political and social institutions.

2. Describe an example of how judges or lawyers apply formalism in their

legal reasoning.

Formalism is central to the rule of law as it purports to limit judicial creativity

via the process of legal reasoning. Without it, judges would decide as they wish,
without direction or limitation. Formalism, in this way, preserves the difference
between politics and law. This idea came from Christopher Columbus Langdell,
Dean of the Harvard Law School 1870 — 1885, who proposed that “law can be
seen as a science and all the available materials of the science are contained in
printed books.” Which represents that once the rules have been created by law
makers, judges will implement?
In its descriptive sense, formalists maintain that judges reach their decisions by
applying uncontroversial principles to the facts. Formalists believe that there is
an underlying logic to the many legal principles that may underlie different
cases.

3. What are the man tenets of Legal Realism?

a. Prediction Theory of Law

Holmes’s famous 1897 theory that law is a prediction of what courts will do in
fact slowly changed the way law schools taught Jaw until by the mid-1920s legal
realism took over the curriculum. The legal realists argued that judges decide
cases on all kinds of objective and subjective reasons including precedents.

b. Theory on Law’s Normativity

The normative theory of law came into existence early in the 20" century. Its
purpose is to purify the traditional science of law by removing from it the many
foreign elements which have found their way into it, and thus to establish a pure
method of legal cognition.

c. Prediction and decision theory of law

By a prediction theory of law pertains to a theory under which a statement about

the law, such as “The Security and exchange act is a valid law,” is a prediction of
the behavior and attitudes of people in a community.

4. Describe an example of how judges or lawyers apply realism inn their

legal / judicial reasoning?

For example, Jerome Frank, who coined the term legal realism and later became
a judge on the U.S. Court of Appeals for the second circuit, emphasized the
psychological foundation of judicial decision arguing that a judge’s decision may
be influenced by mundane things like what he or she ate for breakfast.

5. How are the two theories incompatible with each other?

Formalist contrary to realists, take the judge at face value, assuming that the
facts and principles as recorded in a judge’s reasons reflect the facts that the
judge considered to be relevant, and the principles that the judge arrived at to
reach judgment.

While on the idea of legal realism, it suggests that all law derives from prevailing
social interests and public policy. According to this theory, judges consider not
only abstract rules, but also social interests and public policy when deciding a
case.

6. Which theory resonates with your personal view? Explain

I am im favor of legal Formalism on the ground that legal realism has clear and
identifiable defects 1.) Lack of consistent application of the scientific approach in
criticism of traditional law, 2.) Over emphasis upon fact finding and consequent
submersion of principles and rules, 3.) Absence of skepticism regarding the
hypothetical theories of the social sciences.

While on the other hand legal formalism presupposes the theory that legal rules
stand separate from other social and political institutions. According to this
theory, once law makers produce rules, judges apply them to the facts of a case
without regard to social interest and public policy. It seeks to enforce what the
law actually says, rather than what it could or should say. It is a theory that the
law is a set of rules and principles independent of other political and social
institutions.