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| | Legal formalism - Wikipedia, the free encyclopedia |
 | | Another critique of legal formalism has been offered by the critical legal studies movement, which has argued from a Marxist perspective that law is indeterminate and that formalism ignores the possibility that law is a tool of the established power struture. | | | Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism. | | | Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts by their plain meaning, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers. |
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http://en.wikipedia.org/wiki/Legal_formalism
(863 words)
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| | Legal Pragmatism [Internet Encyclopedia of Philosophy] |
| | As he describes it legal reasoning is a "three-step process" where a "similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case (Levi 1949, p. | | | Legal pragmatism, on the other hand, emphasizes the need to include a more diverse set of data and claims that law is best thought of as a practice that is rooted in the specific context at hand, without secure foundations, instrumental, and always attached to a perspective. | | | Given a legal controversy, the practitioner (judge, attorney or the like) looks at previous cases for similar situations and then tries to distill the reasons that have been accepted as legally relevant for his or her client's position. |
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http://www.iep.utm.edu/l/leglprag.htm
(3148 words)
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| | The Compassion Club - Library - Formalism and Narrative in Law and Medicine: The Debate over Medical Marijuana Use ... |
| | For law this means: specific criteria for legal enactment; procedural safeguards; and a specialist judiciary and legal profession to interpret the law. | | | He aims to make of the craft of law a "legal science," "objectivist and universalistic." "The law is an order," he writes, "and therefore all legal problems must be set and solved as order problems" (Kelsen 1934, in Goodrich 1983:248). | | | The key element of legal formalism is a judicial system committed to results whose objectivity is conclusively determined by a process uncontaminated by external forces. |
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http://www.thecompassionclub.org/library/formalism.html
(4746 words)
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| | Legal Theory Lexicon |
| | Normative legal theorists of all stripes--conservatives and liberals, welfarists and deontologists—tend to agree that the institution of law is fundamentally legitimate and that the legal regulation has a large role to play. | | | When the legal model is applied to the decisions of lower courts and to the behavior of litigants who settle disputes “in the shadow of the law,” legal rules and doctrines have much more explanatory power. | | | Indeed, the Supreme Court has a discretionary appellate jurisdiction (for the most part), and the Court rarely grants the writ of certiorari in cases in which the law is clear. |
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http://legaltheorylexicon.blogspot.com
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| | Jurisprudence - Wex |
| | Critical legal studies (http://www.law.cornell.edu/topics/critical_theory.html), feminist jurisprudence (http://www.law.cornell.edu/topics/feminist_jurisprudence.html), law and economics, utilitarianism, and legal pragmatism are but a few of them. | | | The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought. | | | In contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. |
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http://www.law.cornell.edu/topics/jurisprudence.html
(502 words)
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| | IVR - Encyclopaedia of Jurisprudence, Legal Theory and Philosophy of Law |
| | Nevertheless, some legal scholars claim that their constructed legal models are the only right ones because they would show ‘the essence’ of Law, or of legal concepts. | | | Nevertheless, some legal scholars claim that they can do it, granted that they are using, both, the right legal language and the right legal method. | | | Second, what the criteria of legality determine is what counts as law, understood as legal normative texts (valid because duly enacted), not their legal meaning contents that require interpretation. |
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http://www.ivr-enc.info/en/article.php?id=47
(3764 words)
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| | Thai Folktale and Legal Reasoning |
| | It is common for lawyers to restrict the concept of legal reasoning to the process of argumentation as a process of justification of legal judgements. | | | It is clear that moral reasoning is an integral part of any legal decisions, because any legal reasoning is based on the moral standards of what constitutes the duties of a proper evaluation of fact and proper application of legal rules. | | | (3) This unity of moral and legal reasoning comes from the nature of legal reasoning defined as the process of arriving at legal decisions through the evaluation of facts and adaptation of legal rules and principles to those facts. |
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http://www.thailawforum.com/articles/thaifolktale.html
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| | A FLAWED DEFENCE |
| | In sum: formalism's understanding of law reflects that of classical legal positivism; formalism's understanding of adjudication is not positivist, because of the difference over discretion, but it does share with positivism a deeper-lying idea about adjudication, namely that adjudication is always legally constrained. | | | New legal positivism is, in essence, classical legal positivism as modified by h.l.a. | | | Aware of this, Sebok draws a distinction between 'classical legal positivism' and 'new legal positivism.' Classical legal positivism is the positivism of John Austin and Jeremy Bentham. |
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http://www.utpjournals.com/product/utlj/501/501_fagan.html
(15728 words)
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| | [No title] |
| | legal architecture—creating a legal system of legal thought free from politics produced a structure of classification that sought to depoliticize law. | | | If you believe in one, you believe what follows— clear, distinct, bright-line classifications of legal phenomena Judicial role was to identify the existing legal category to which a dispute belonged shift to balancing in 20th century—change from viewing law as differences in kind to differences in degree. | | | Brandeis, too, does not recognize that either way a case is decided, the court is establishing what legal relations result from the state of facts in question. |
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http://www.law.georgetown.edu/sba/documents/Property-Ernstp1.doc
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| | NEGLECTED POLICIES: CONSTITUTIONAL AND LEGAL COMMENTARY AS CIVIC EDUCATION |
| | With caution, however, Strauber maintains that legal formalisms and political and moral abstractions are not necessarily fatally flawed by virtue of their inconsistency or incongruity with social fact considerations. | | | This is the case he argues, even though skepticism may in fact confirm inconsistency and incongruity in the use of legal formalism (p.102-3). | | | Third, and lastly, Strauber maintains that agnostic skepticism’s descriptions and analyses also provide strong enough reasons to oppose the compulsion to read constitutional and legal opinions in terms of whether they are rightly decided or not, and to oppose fixed or totalistic conceptions of the role of courts in major controversies. |
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http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/Strauber03.html
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| | American Legal History 1865-1990 - Professor Bernard Hibbitts |
| | American Legal History, 1600-1865 is not a prerequisite for this course. | | | This course will survey American legal history from the Civil War to the present day, emphasizing the ongoing relationship between legal development and general social, economic, political and intellectual trends. | | | "In modern American legal history, the cause of civil rights for African Americans and the cause of civil rights for women have at some times supported and at other times contradicted one another." Evaluate and discuss. |
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http://www.law.pitt.edu/hibbitts/alh18.htm
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| | [No title] |
| | Judge Clayton's legal response to Milly's case specified the boundary between the domain of the heart and the domain of the cold legal mind. | | | When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the courts to follow it. | | | Beginning with the earliest American legal writings, those concerned with law have addressed such fundamental issues as the proper response for judges faced with cases in which the law conflicts with their moral vision of a "just" outcome. |
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http://www.law.ua.edu/staff/bio/abrophy/brophy_d2.html
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| | Exploring the Limits of Formalism: AI and Legal Pedagogy |
| | Perhaps the clearest example of an effort to finesse this problem is Tyree's justification for characterizing certain legal issues as he did: by consensus of four unidentified law students, perhaps from the same law school, perhaps taught by the same faculty, and perhaps mates at least in part because they share common assumptions and beliefs. | | | Treatise writers and proponents of codification proceeded from the prevailing view that legal science involved the derivation of inferences from a set of first principles, groundnorms, enunciated by the sovereign, whether (super)natural or political. | | | On the one hand, we call upon formalism when we demand certainty in law, when we aim to circumscribe the discretion of common law judges. |
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http://www.law.warwick.ac.uk/ltj/1-1f.html
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| | HLS : 1998-1999 ELRC Annual Report: Activities Report |
| | Colonial, anti-colonial and post-colonial appropriations of legal anti-formalism. | | | She plans to pursue a Ph.D. in legal history at the Max Planck Institute for Legal History in Frankfurt. | | | Skouteris challenged mainstream perception and discussed the role of such rules of interpretation in the structure of the legal argument before the WTO dispute settlement mechanism. |
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http://www.law.harvard.edu/programs/elrc/reports/1998-1999/activities.php
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| | Legal Theory Blog |
| | From a legal and policy perspective, it matters, for example, whether a namespace is centralized or decentralized, whether the namespace is controlled by a public or private entity, and the degree to which the internal structure is adaptive. | | | Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. | | | The Symposium's goal is to highlight the manner in which legal systems both fulfill their roles in responding to equal protection violations as well as fail to fulfill these roles. |
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http://lsolum.blogspot.com/2003_07_01_lsolum_archive.html
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| | Essays on Legal Theory |
| | Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 Research in Law and Soc. | | | Two Globalizations of Law and Legal Thought: 1850-1968, 36 Suffolk Univ. L. | | | Chapter four was reprinted as: The Paradox of American Critical Legalism, 3 European Law J. Chapter eight was reprinted as: Strategizing Strategic Behavior in Legal Interpretation, 1996 Utah L. Rev. 785 |
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http://www.duncankennedy.net/topics/legal_theory.html
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| | Volume 66 - Summer |
| | Double Blind Lawmaking and Other Comments on Formalism in the Tax Law | | | The First Thing We Do, Let’s Pay All the Lawyers | | | "With Me, It’s All er Nuthin’": Formalism in Law and Morality |
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http://lawreview.uchicago.edu/issues/archive/v66/summer
(126 words)
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| | SSRN-John Chipman Gray and the Moral Basis of Classical Legal Thought by Stephen Siegel |
| | This article argues that Gilded Age and Progressive Era advocates of legal formalism did not concern themselves only with the law's form. | | | Finally, with the recent upsurge of interest in formal approaches to law in American jurisprudence, it is increasingly important to understand the formalism of early twentieth-century law. | | | Rather it asserts that the classical era lawyers who conceived law as a nondiscretionary science were concerned with the law's moral worth. |
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=382953
(498 words)
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| | [No title] |
| | Combing historical, comparative, and juridico-philosophical perspectives, we should like to take up various readings of formalism in the law and in legal theory, exploring the sorts of questions raised above. | | | Claims about formalism in the law are familiar, but at the same time often puzzling. | | | For there is no consensus on what formalism means. |
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http://www.h-net.msu.edu/~law/ASLH/conferences/2000conference/schonberger.htm
(138 words)
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| | Formalism - Wikipedia, the free encyclopedia |
| | A school of thought in law and jurisprudence which emphasises the fairness of process over substantive outcomes. | | | This is a disambiguation page — a list of articles associated with the same title. | | | These rules and notations may or may not have a corresponding mathematical semantics. |
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http://en.wikipedia.org/wiki/Formalism
(214 words)
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| | Legal entity - definition of Legal entity by the Free Online Dictionary, Thesaurus and Encyclopedia. |
| | Legal entity is not available in the general English dictionary and thesaurus. | | | This information should not be considered complete, up to date, and is not intended to be used in place of a visit, consultation, or advice of a legal, medical, or any other professional. | | | Legal entity - definition of Legal entity by the Free Online Dictionary, Thesaurus and Encyclopedia. |
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http://www.thefreedictionary.com/Legal+entity
(105 words)
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| | SSRN-Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism by Annelise Riles |
| | This article explores the productive uses of amateurism in comparative law through a close reading of the life and work of John Henry Wigmore, the founder of the American tradition of comparative law who first came to the subject as a young missionary for the Langdellian style of American legal education in turn-of-the-century Japan. | | | It seeks to counter the received view of the discipline as a pure product of American and European critiques of legal classicism by demonstrating how Wigmore's turn to the performative dimensions of legal formalism, at a moment when formalism found itself under Realist attack, provided a sustaining vision of the discipline. | | | The power and creativity of formalist performance, as well as its limitations and even dangers, as deployed by Wigmore, raise questions relevant beyond comparative law about the aesthetic dimensions of American formalism. |
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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=249148
(285 words)
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