|
Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's (legal positivism ) can be seen as appertaining to the ''legislature'', legal formalism appertains to the ''Judge''; that is, formalism does not (as positivism does) suggest that the substantive justice of a law is irrelevant, but rather, that in a democracy, that is a question for the legislature to address, not the Judge. ==Definition== The most obvious characteristic of legal formalism is the purported separation of legal reasoning (or "application" of norms to facts) from normative or policy considerations. The "formalist fiction" is that the process that produced the legal norms has exhausted normative and policy considerations; accordingly, law can be seen as a more or less "closed" normative system. Thus formalistic logic would tend to work well with the Aristotelian logic of definition by closed sets of necessary and sufficient conditions, yet is deficient when applied to areas where definition by "family resemblance" (Wittgenstein) is more suitable. For example, in private law, such tight systems as the law of negotiable instruments (for the U.S. example see Uniform Commercial Code, Article 3) are frequently described as "formalistic" because decisions rest on a relatively closed-set of logically-organized rules; while contract law tends to be more "relational" than formalistic as it deals with much wider sets of relations and cases. Legal formalism thus needs not be a manifestation of positivistic commitments, but can be justified in some areas on functionalist grounds.〔Jonathan Yovel, "Relational Formalism and the Construction of Financial Instruments", ''American Business Law Journal'', pp. 371-407 (2011).〕 Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, 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. This argument finds its most eloquent expression in the Massachusetts Constitution of 1780, which provides that the judiciary "shall never exercise the legislative and executive powers, or either of them; to the end (Massachusetts' government ) may be a government of laws, and not of men".〔() Mass. Const. (1780).〕 Formalism seeks to maintain that separation as a "theory that law is a set of rules and principles independent of other political and social institutions".〔Black's Law Dictionary 913 (7th ed. 1999)〕 Lawrence Solum describes it as a "commitment to a set of ideas that more or less includes":〔(Legal Theory Lexicon )〕 * The law consists of rules. * Legal rules can be meaningful. * Legal rules can be applied to particular facts. * Some actions accord with meaningful legal rules; other actions do not. * The standard for what constitutes following a rule ''vel non'' can be publicly knowable and the focus of intersubjective agreement. Formalism is closely related to positivism, which concerns "law at the point where it emerges from the institutional processes that brought it into being", meaning that how the law was made and the "directions of human effort () went into its creation are irrelevant".〔Fuller, ''Anatomy of the Law'' 177–8 (1968). Cf. Justice Scalia's rejection of intentionalism, quoted in Originalism: "If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words".〕 If positivism is understood as an explanation of what law ''is'', formalism can be said to be a positivist explanation of how law and legal systems operate. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「legal formalism」の詳細全文を読む スポンサード リンク
|