Jurisprudence by Scott Veitch Emilios Christodoulidis Marco Goldoni & Emilios Christodoulidis & Marco Goldoni

Author:Scott Veitch,Emilios Christodoulidis,Marco Goldoni & Emilios Christodoulidis & Marco Goldoni
Language: eng
Format: epub
Publisher: Taylor & Francis Ltd

Formalism and the rule of law

There is both a descriptive and a normative side to the formalist theory and ideal. Formalism is a theory about how law does contain within its formal, systematic structure all answers to the questions that can be posed in law and legal argument, and at the same time claims that this containment is a good thing, in that it separates off questions of what law is from what one might see as questions of justice or of politics. That does not mean that the formalist would not wish law to be just. It simply means that whether it is just or not does not impact on its being law, and that keeping those two questions distinct is a good thing for the reasons that we saw Hart arguing the case earlier. The emphasis, with formalism, is on the dynamics, we might say, of that containment of all legal answers within the body of law. The more we succeed in this, the more the law will comprise a set of general – and logically consistent – rules capable of being ‘deductively’ applied to every relevant case of proven facts. The more this is so, the more certain, predictable and uniform will be the law.

Formalism is a realisation of the rule of law ideal in which

government in all its actions is bound by rules fixed and announced beforehand – rules that make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of that knowledge.

(Hayek 1944, p 54)

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