Legal Formalism

Ernest J. Weinrib

in The Idea of Private Law

Published in print September 2012 | ISBN: 9780199665815
Published online January 2013 | e-ISBN: 9780191748622 | DOI:
Legal Formalism

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Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together the three ideas of character, kind, and unity. Applied to private law, form refers to a mode of understanding that integrates the characteristic concepts, the distinctiveness, and the coherence the plaintiff-defendant relationship. Among these, coherence is paramount. Using loss-spreading as an illustration, this chapter elucidates the nature of coherence, its importance to private law as a justificatory enterprise, and its role in rendering private law intelligible. It concludes by examining the deficiencies from the formalist standpoint of some contemporary theories, both instrumental and non-instrumental (the economic analysis of law, Charles Fried's theory of contract as promise, and George Fletcher's theory of excuses).

Keywords: legal formalism; form; coherence; justification; loss-spreading; instrumentalism; economic analysis of law; fried on contracts; Fletcher on excuses

Chapter.  13686 words. 

Subjects: Jurisprudence and Philosophy of Law

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