The provided in black and white books from legal

The attempt of explaining law and the unravelling of its mechanical
creation and the complex process of its justified application has been a
heavily debated topic that has raised many different theories. Formalism is a
theory of adjudication that attempts to explain the law, which claims that the
law is rationally determinate and should be a completely self-determining
system. From the quote, formalism argues that law is as straight forward as
science and can be easily implemented by applying the laws provided in black
and white books from legal libraries, therefore impacting adjudication. I will
further discuss past the basic aspects of formalism and will concentrate on the
laws coherent features that separate it from politics and juridical bias,
ranging from governmental impact to shared public policy and pressure groups. Other
theories that attempts to clarify law rise from feminist scholars who raise the
issue that the law was created by men and as a result is shaped to male values.
Therefore, postmodern feminists challenge the concept that laws should be
followed by literature and advocate the power to read beyond old fashioned
texts.

To start with formalism, it is important to know that it is
fundamentally an extension from legal positivism, as in they both argue that
law should be separated from politics and public agenda.1 Within
Weinrib’s journal, he asserted the idea that the law is intrinsic and no
politics or social opinions will affect it, he said “My defence of formalism is
an exploration of the sense in which law can, after all, be differentiated from
politics. This differentiation is tied here to a complex of broader issues: How
is law intelligible? In what does the coherence of juridical relationships
consist? Is a non-instrumental conception of law possible?” 2

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To further explain this, when laws were first made, pre nineteenth
century, the legal system was dominated by wealthy males (and could be argued
that it still is). Therefore, this shaped up the legal system and books that
are referred to in adjudication cases were made by a wealthy small percentage
of the population who shaped the laws according back then to what people
believed to be natural (God’s) laws. This is important as formalism heavily
supports the idea that the answer to any legal problem can be found in
textbooks or previous precedents, and not through aids from political agendas. Even
though it can be argued that law does not take into consideration public agenda
and politics within adjudication, it is very clear that political as well as
social values were formed into early legislation as well as case law throughout
the years; as a result many believe that certain laws are sexist or morally
wrong. An example to illustrate how the law has changed is that all women were
only allowed to vote in 1928. So it would absurd even for a formalist to argue
that the law should stay separate, because the political agenda shaped the law
in the nineteenth century, so it should impact the law today.

Formalism suggests that Judges should never be faced with
alternative interpretations of a case that can only be resolved through extra
legal considerations, such as social and political values. So, formalists do
not take these into consideration.3 Beccaria,
for example, said the idea that formalism is simply states that judicial
decision-making “involves nothing more than mechanical deduction on the model
of the syllogism”. To put it simply, formalism is a commitment to a method of
legal justification that contrasts with open-ended disputes about the basic
terms of social and political life.  Formalism
treats the law like maths or science, i.e. a Judge should identify the legal
principles, apply them to the facts of the case and construe a rule that will
govern the outcome of the dispute.4
Langdell and Holmes took the formalist approach determinedly acquiring the
belief that there is a set form and structure in society. This is a model for
human enquiry and is vital in human progress. Langdell established two things:
law is a science; all available in books and says the right answers are
supposed to be discovered.

Langdell also has been influenced by ‘unsophisticated’ scientism
which has led him to identify the true meaning of legal doctrines. Both Holmes
and Langdell conclude that judges should to decide a case by applying the rules
established by precedent, without appeal to any special claims of justice and
without appeal to any higher order normative principle’5.  ‘Formalist approaches seek determinate legal
outcomes through a process of deductive logic where the premises mobilized and
conclusions reached are sourced internally, within the law’s “immanent moral
rationality,” rather than derived from discourses external to law’. Formalists
seek to find significant legal outcomes through inductive logic.  This is the idea that conclusions reached are
only from the laws that have been morally rationalised rather than obtaining
judgements from reasoning external to the laws that are sought by the
political. Moreover, “formalism” is associated with the idea that judicial
decision-making involves nothing more than mechanical deduction of reasoning.
Therefore, if the law is clear and are followed as they should be, then the
conclusion that is reached is necessarily true.

However, feminists disagree with this point as Katherine McKinnon
quotes attacking ‘objectivity’ and exposing its gender nature, “Male dominance
is perhaps the most pervasive and tenacious system of power in history … it is
metaphysically nearly perfect. Its point of view is the standard for
point-of-viewlessness, its particularity the meaning if universality”6.  Many feminist theorists have argued against
values of formalist science, like its concepts and methods, and have attacked
the false dichotomy established to distinguish between reason and emotion,
rationality and irrationality, that law sees as given. The objectiveness as
well as rationality and emotional distance that Judges are supposed to follow
are not only unachievable, but also undesired.7
For example, Lynne N. Henderson has called for empathy in judicial reasoning,
arguing that legality gives judges a way to escape responsibility, and Carrie
Menkel-Meadow has called for an inclusion of ‘ethic of care’ in the judicial
processes.8  Feminist scholars stress the fact that law
and its methods are not neutral,  but
political, as is feminism and its methodology, which feminist do not try to
hid, plus which they are so often attacked for. These criticisms ask for the
acknowledgment of materiality of any perspective to be open to multiple
perspectives. They call for sensitivity to the context in legal processes and
inclusion of excluded voices.

The second part of the quote in question refers to internal
coherence. It suggests that formalism is a mechanical method may not be as
coherent as it sounds. An example to prove its robotic nature can be seen in
the following quote, ‘The judicial process…is essentially similar to the
process by which we acquire our knowledge of geometry… In the great majority
of cases the solution is certain and exact as an answer to a problem in
mathematics’.9
The main task of adjudication could be done by a robot, there is always an
answer and can be done within neutral standpoint. Unger said that the
distinctive rationality of law is intrinsic to the legal material on which it
operates. He went on to say that the content of law should be elaborated from
within legal documents and that law has immense juridical content. This quote
is essentially showing that formalist Judges thought process is that any legal
problem has exact path or set of paths which would lead to the answer, like in
maths. Sir Edward Coke; believed only lawyers, judges and others trained in law
could fully comprehend and apply, the rest of society is not educated to the
right level in order to impact or even be involved in the process of creating
or changing laws, as it is considered the highest level of reasoning. Sir
Edward Coke also held that the Common Law was “the peculiar science of
judges.” he said, it represented the “artificial perfection of
reason” obtained through “long study, observation, and experience”.
 On the other hand, a feminist scholar
would disagree with this as females make a small percentage of representatives
in the legal system and a recent report showed that only 30% of Judges in the
England and Wales is females and 2 out of 12 Law Lords,10 “the
legal profession is dominated by male views and preferences”.11 Therefore,
it would be argued that having a majority of male legislative bodies will
naturally shape the law with less regard to females or minorities.

A formalist would argue that the laws they were creating were to a
certain extent unavoidable; an example to explain this is the law on murder and
whether the precedent on it would have always been ‘The unlawful killing of a
reasonable person in being under the King’s peace with malice aforethought
express or implied’. A formalist would claim that the approaches mathematical
approach to cases, no matter who decides the case as long as they apply the
relevant principles, then this definition would still have been the answer,
henceforth why formalists boast coherence. Still, this argument does not sound
persuasive and an example of adjudication to prove this is the existence of
appeal cases and percentage off them that fail. Therefore, if formalism is true
and Judges do apply the law in the same mechanical manner it has been described
then there should be no appeal cases; as logically no Judge would decide any
case wrong, the same way in which 1+1=2. 
Another point regarding coherence of formalism is if is as logical and
procedural as explained then there will be no need for Judges and lawyers,
especially with the modernisation of technology the facts of the case could be
entered into a machine in order to reach a logical solution. But, it is
important to have Judges as it has been obvious that the need for rational
thought through values and morals in decision making which weakens a strong
foundation of formalism.

As it stands today Judges have discretionary powers. ‘An appeal
court will only interfere with the exercise of the judge’s discretion under
section 33, as in other cases of judicial discretion, where the judge has made
an error of principle, such as taking into account irrelevant matters or
failing to take into account relevant matters, or has made a decision which is
wrong, that is to say the judge has exceeded the generous ambit within which a
reasonable disagreement is possible’.12
Bentham argued that Judges do not make law, they find it, and Judges are just
appliers and the ultimate goal for law is to have no judicial discretion. The
idea of ‘Judge Hercules’ put forward by Ronald Dworkin states a perfect Judge
who will always find the right answer. Acting on the premise that the law is a
seamless web, Hercules is required to construct the theory that best fits and
justifies the law as a whole (law as integrity) in order to decide any
particular case. Hercules, Dworkin argues, would always come to the one right
answer. Formalism adjudication is the discovery of, rather than making of law.
However, it has been argued by critics that this principle is full of gaps in
the legal aspect and insufficient to solve legal cases. It has also been said
that this idea is set out to help Judges so they do not take criticism; the law
therefore needs to be separate for Judges to do their job.

A feminist approach would disagree with this and Mary Jane Mossman
has criticized particular legal methods (process of defining boundaries and
restricting legal from political issues and selecting precedents) for their
propensity to maintain the status quo and exclude new perspectives. Martha
Minow has criticized the ‘unstated assumptions’ that the US Supreme court’s
Judges use in deciding cases involving ‘difference.’ She identified the
assumptions as ‘difference is intrinsic, not relational; proceeding from an
unstated norm; the observer can see without the perspective; irrelevance of
other perspectives, the status quo is natural, un-coerced and good.’13  She has recommended that Judges should
identify improvement points, learn how to adopt contrasting points and to
decide which points to embrace in a certain situation, instead of abandoning
responsibility by maintaining the status quo. Postmodern legal feminists would
argue that the ‘objectivity and neutrality’ concepts as well as Dworkins
‘Hercules Judge’ are difficult to accomplish, if not impossible. They also
claim that no objective truth can be found, even from a viewpoint that claims
objectivity as it was socially formed. Another question that is raised is how formalism
can suggest that it knows the truth to all legal issues and there is a method
to establish the truth.

As Lord Wilberforce observed: “English Judges entertain the belief
that they can tell if a man – or even a woman – is speaking the truth. This is
a Palladium: and it has comforting consequences: ‘The Judge saw the witness in
the box – observed his demeanour’. ‘He was disbelieved by the Judge – or the
jury’. ‘We (the appeal court) cannot interfere’. However, there is no
scientific basis for this and this is the main issue that formalists have with
realist approaches.14
There is no logic behind Judges applying the law in the discretionary opinion. Liberal
feminism general view is to promote ‘sameness’, men and women should be given
the same rights and be treated no differently based on gender. Many of the
differences between men and women are socially determined behaviours and
characteristics; their underlying capability and autonomy is the same.15 Issue
with this is, regardless of idealistic formalist idea; there will always be
social/political influences present to Judges due to his life, no matter how
separate from formalism. For example, the law is made by rich white men;
therefore it will in turn reflect their ideals, i.e. women were not allowed
until 1928 to vote. But if the idea that the law is not influenced/is separate how
formalism describes it, this would never have had to be legislation anyways. Arguments
for liberal feminism corrected laws but rendered them coherent, therefore both
supporting and contradicting formalism. In the Weintrib Article, Unger said law
features a mode of rationality that differs from politics, it can rationalise
legal decisions but politics in the end is just an opinion. Unger suggested a
legal doctorine which will only pass through a “relatively restrained and
political method of analysis”. Judgements should be dictated solely by content
of an existing law or decisions and shouldn’t be determined by values or
beliefs of a Judge.

A recent case that can illustrate the application of formalism and
how discretion allows Judges to make decisions that are immoral and illogical
is the one in 2017 of Cyntoia Brown who was sentenced to life imprisonment for
the murder of 43 year old Johnny Mitchell Allen who had solicited Cyntoia from
a pimp. A formalist approach was taken in this case. The law states the
punishment for murder in the state of Tennessee is life imprisonment.16
This case sparked a public outrage as this does not reflect a system seeking
justice. Whereas in this case a realist perspective would have been a much more
appropriate approach, there are many who feel that allowing the judiciary to
acquire so much power would be careless. This is the view proposed by many
theorists as well as feminists.

Regarding discretion Hart believes that the meaning of legal terms
have a ‘core of certainty’ and also a ‘penumbra of doubt’ which can cause
problems when Judges are using their discretionary powers in ‘hard cases’.  Dworkin argues that ‘when a Judge decides a
case he or she should rely upon principles that best justify the entire body of
legal materials’ so giving weight to these principles and then applying them to
a certain cases, it removes ‘prenumbra of doubt’ and produces one correct
single answer.17
An example of outweighing principle rules was seen in Henningsen v Bloomfield
Motors.18
The defendant had previously signed a contract, and it was the courts duty to
find the manufacturer liable for the injuries attained due to faulty
manufacturing.  However, this detail that
the defendant had signed the waiver had not been seen in precedential law
therefore the court was obliged to use legal principles to support the Judge’s
discretionary decision.

To conclude, formalism sounds like an idealistic theory to carry
out the law. Yet, there are many gaps and contradictions within it such as the
content provided by black and white books may not have the answer the Judge
seeks. Feminism is a more persuasive argument because it allows the law to
interpret current issues in society and adapt, whereas formalism believes that
the same set of old rules should still be applied just for the fact that they
are rules and it does not matter if it is just. Feminism only requires equal
treatment for both sexes, apart from radical feminists who believe in power
over males, and it addresses issues such as judge discretion with proposed
solutions, as a result it’s more appealing.

1 https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.co.uk/&httpsredir=1&article=5995&context=journal_articles

2 http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1217&context=facpubs

3 https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1178&context=public_law_and_legal_theory

4
Griswold v Connecticut 381 U.S. 479 (1965)                              

5 Patrick
J. Kelley, ‘Holmes, Langdell And Formalism’ (2002) 15 Ratio Juris.

6 Katherine
A. MacKinnon, Method and Politics, in: Toward a Feminist Theory of the State,
Cambridge: Harvard University Press (1989), at 114.

7 Lynne
N. Henderson, ‘Legality and Empathy,’ in P. Smith (ed) Feminist Jurisprudence,
New York: Oxford University Press (1993), 244-282

8 Carrie
Menkel-Meadow, ‘Portia in a Different Voice: Speculations on Women’s Lawyering
Process, in: Hilaire Barnett (ed) On Feminist Jurisprudence, London: Cavendish
Publishing Limited (1997), pp. 194-196.

9 Jerome
Frank, ‘Law and the Modern Mind'(2009), Transaction Publishers

10 https://www.theguardian.com/law/2016/oct/06/proportion-of-women-judges-in-uk-among-lowest-in-europe

11 Law
Society, Obstacles and Barriers to the career development of woman solicitors,
2010

12 https://www.newlawjournal.co.uk/files/article_files/013_nlj_7775_specialist_anderson.pdf

13
Martti Koskenniemi , ‘From Apology to Utopia: The Structure of International
Legal Argument’ (2005), Cambridge University Press

14  ‘The Discretion Of Judges’ 1997, The denning
law Journal.

15 Mary
Woolstonecraft, A Vindication of the Rights of Woman (1792), T Fisher Unwin

16 ‘Cyntoia
Brown: Celebrities Call For Release Of Sex-Trafficking Victim’ (the Guardian,
2017)
accessed 13 January 2018.

17
Lecture Slides

18 Henningsen
v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (N.J. 1960)