Article

Legal Formalism and its Critics

Hans-Peter Haferkamp

in The Oxford Handbook of European Legal History

Published in print July 2018 | ISBN: 9780198785521
Published online August 2018 | e-ISBN: 9780191827426 | DOI: https://dx.doi.org/10.1093/oxfordhb/9780198785521.013.41

Series: Oxford Handbooks

Legal Formalism and its Critics

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Formalism is something bad. No one has ever referred to himself or herself as a formalist. Formalism amounts to an accusation and is an expression of anti-formalism. Formalists are portrayed as defending one-sided, often farcical views. Up to this day, this impedes access to the world these formalists inhabited, who actually thought on a more nuanced level than their critics. On top of that, formalism has always been used as a vague, polemic catchphrase, to describe a large number of different problems in a variety of contexts. In order to understand formalism, one must unravel these strands of discourse again. Four problem areas are distinguished on a historical level: anti-formalism as (1) a criticism of logical classifications of the positive law; (2) a criticism of the individualism of private law; (3) a criticism of a jurisprudence and judiciary considered to be out of touch with the world, as well as; (4) a criticism of the model of the separation of powers and the disregard for natural law.

Keywords: formalism; logic; jurisprudence of concepts; positivism; individualism; natural law

Article.  8155 words. 

Subjects: History of Law

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