LEGAL FORMALISM (WEINRIB)

- Formalism reflects the law’s most abiding aspiration: to be an imminently intelligible

normative practice
- Legal scholar definition of FORMALISM: postulating the mechanical application of
determinate rules that serves principally as a loosely employed term of abuse
(Simpson)
- Point of the paper: Crucial value of proper reference to formalism not as word but as
an idea
- Weinrib’s own conception — claims fidelity to law’s normative dimension, to juristic
thinking, and to a philosophical tradition stretching back to classical antiquity

The Project of Formalism

- Formalism is a theory of legal justification —> considers law to be A SOCIAL
ARRANGEMENT RESPONSIVE TO MORAL ARGUMENT (not merely a collection of
posited norms or an exercise of official power)
- Focus on the phenomena of our social lives ON LEGALLY SIGNIFICANT
INTERACTIONS BETWEEN PARTIES AND ON THE ROLE OF COURTS IN
RESOLVING THE CONSEQUENT CONTROVERSIES
- Formalism’s interest in in the internal structure of relationships that are
part of a totality (it’s various doctrines, concept, principles, and
processes)
- Formalist wants to understand how these parts relate to one another and
to the totality that they form
- Independent constituents/roles in isolation of one another or interlocking
into a single justification that coherently pervades the entire relationship?
- Project: Elucidate the forms of moral argument appropriate to adjudication among
interacting parties
- Basic unit of formalist analysis: LEGAL RELATIONSHIP
- Law connects one person to another through: CONCEPTS, PRINCIPLES, and
PROCESSES (that come to play when a legal claim is asserted)
- Formalism: CONTRAST between formal and substantive that lies at the core of
FORMALIST METHODOLOGY (discernment of necessary condition, internal
principles of organisation, presuppositions, substantive determination)
- 3 Features of Justification:
1. Nature (minimal conditions that any must observe if it is to be justificatory)
2. Structure (most abstract and comprehensive patterning of justificatory
coherence)
3. Ground (presuppositions about agency that ultimately account for the
normative character of any justification)

The Nature of Justification

- Normative authority over the material to which it applies
- Point of adducing justification: to allow that authority to govern whatever falls within its
scope
- Justifications expands and sets its own limits
- When goals are mutually independent, the moral force of one artificially limits the
moral force of the other
- Abolitionist position presupposes that:
- justification takes the form of goals
- (tort) law cannot coherently satisfy such goals
- it should be replaced
- Ignored possibility of abolitionist: justification applicable to (tort) law is as relational as
the (tort) law itself
- Abolitionists assume that justification refers to GOALS
- Formalists assumes only that justification JUSTIFIES
- formal considerations are prior to substantive ones and thus, initial
concern is not with merit but function — it fills its own conceptual space
- Formalists does not maintain/does not dispute:
1. desirability of achieving (compensation and deterrence) the goals
2. superiority of a certain law to other mechanism in handling injury

The Structures of Justification

- Justificatory considerations provide moral reasons for relating one person to another
through a set of legal concepts and consequences
- incoherence = presence of mutually independent justificatory consideration
- coherence = interlocking into a single integrated justification of all the justificatory
considerations pertaining to legal relationships
- relationship is coherent when: a single justification animates it
- moral force is congruent with the relationship’s boundaries
- denotes unity
- 2 Contrasting Forms of Justice (Aristotle) — different in the way they construe
equality:
1. Corrective justice (focuses on whether one party has done and other has
suffered a transactional injustice)
- having what lawfully belongs to them — rectificatory function
- corrects injustice as it re-establishes the initial equality by
depriving one party of the gain and restoring it to another party
- 2 Features — responds to the injustice AND correlatively
structured
- only 2 parties
2. Distributive justice (distribution of whatever is divisible among the
participants in a political community
- divides in accordance to a criterion that compares participant’s
merit relative to one another
- proportional equality
- any number of parties
- There can be no combination of the two
- Justice in both forms: relates one person to another according to a conception of
equality or fairness
- Injustice: arises in the absence of equality (when one person has too much or too little
relative to the other)
- Injustice: one party realizes a gain and the other a corresponding loss
- Remedy directed to only one of the parties does not conform to corrective justice —
JUSTICE is achieved by both parties
- Liability — interrelationship: each of the position is intelligible only in the light of the
other
- LIABILITY IS THE RESPONSE TO AN INJUSTICE THAT HAS THE SAME
CORRELATIVE SHAPE AS LIABILITY ITSELF
- relates in justificatory coherence / fairness between parties
- Correlative justice: links the doer and sufferer of an injustice in term of correlative
positions
- Distributive justice: assigns shares in a benefit or burden by comparing the parties to
the distribution based on a criterion — instead of linking them as doer and sufferer,
they all share the benefit or burden on a criterion

The Ground for Justification

- Conception of Normativeness
- rooted in the substantive desirability of goals
- Right: intrinsically relational idea that immediately signifies the existence of a duty
correlative to it
- Law regards right as: power to treat something as subject to one’s will as a
consequence of an antecedent connection that one;s will has established with the
thing in question
- Purposiveness without regard to particular purposes is the presupposition that
underlies liability — this is called PERSONALITY
- no obligation exists to exercise this capacity toward any particular end
- Personality encapsulates the normative standpoint of self-determining freedom from
which private law has to view the parties if it is to regard them as having its rights and
being subject to its duties
- any duty that reflects personality are negative correlates of rights
- inward attribute that achieves external existence
- Corrective and distributive justice presupposes personality
- Judicial institutions:
- where rights and duties are actualised and given determinate shape
- makes public the mode of reasoning that accords with what is
presupposed in them
- undoes the consequences of conducts inconsistent with them
- Law’s contemplation: increase in well-being through having a right and decrease
through infringement of a right are CONSEQUENCES rather than GROUNDS of the
right

The Immanent Intelligibility of Law

- How does Formalism Illuminate this Immanence?
2. Components for the formalist analysis are not elements of an external ideal but
merely the internal presuppositions of law as a justificatory enterprise (preconditions
of preconditions)
3. It tries to make sense of juristic thinking and discourse in their own terms (law as an
understandable language)
4. It highlights coherence which is an internal notion
- Coherence: presence of a unified structure that integrates its
component parts
- Justificatory coherence points not outward but to an transcendent ideal
inward to a harmonious interrelationship among the constituents
- POINT OF FORMALISM — to discern standard of evaluation that are internal to the
phenomenon of being evaluated
-

Conclusion
- Formalism retrieves the classical understanding of law as “an immanent moral
rationality”
- claims to be the THEORY IMPLICIT IN THE LAW AS IT
ELABORATES ITSELF FROM WITHIN
- Jurisprudence must regain a sense of this tradition of inquiry (Oakeshott)
- work back through the presuppositions of knowledge to a clearer and
fuller knowledge (Oakeshott)