Formalists also rely on inductive thinking to settle disputes. While deductive reasoning involves the application of general principles that lead to a specific rule when applied to the facts of a case, inductive thinking begins with a specific set of rules and derives from it a broader legal principle that can be applied to comparable disputes in the future. Griswold v. Connecticut, 381 U.S. 479, 85 p. Ct. 1678, 14 L. Ed. 2d 510 (1965), provides an example.
In Griswold, the Supreme Court held that, although there is no express provision in the Federal Constitution guaranteeing the right to privacy, and although no precedent has established such a right, a person`s right to privacy can be derived from the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments and the cases in which they are interpreted. Legal formalism can be juxtaposed with legal instrumentalism, a view associated with American legal realism. [16] Instrumentalism believes that creativity in the interpretation of legal texts is justified to ensure that the law serves public order and social interests, although legal instrumentalists may also consider the end of law as the promotion of justice or the protection of human rights. It also calls for the exercise of judicial discretion. However, legal formalists counter that it undermines the rule of law to give judges the power to change the law to serve their own political ideas. This tension is particularly interesting in common law, which depends on a precedent. The “claim to glory” of common law systems is that the task of developing and updating the law is best accomplished progressively by courts that are in close contact with social, economic and technological realities, rather than by political bodies that deal with legal reforms from time to time. Thus, legal realism, or “relationalism,” has been favored in some common law legal systems, where the type of legal codification associated with civil law is virtually unknown.
[Citation needed] Positivism and naturalism have had a huge impact on how American citizens feel about the law. The institution of African-American slavery, recognized by the U.S. Constitution and legalized by laws passed in the South before the Civil War (1861-65), was attacked by abolitionists who relied on higher principles of religion and conscience to question the moral foundations of human slavery. After World War II, the Allied powers successfully persecuted German officials, industrialists, and military leaders at Nuremberg for genocide of European Jewry, even though the Nazi regime had enacted laws authorizing such extermination. The Allies relied in part on the principle of natural law, according to which human dignity is an inviolable right that no government can infringe by written law. Appellate judges, on the other hand, tend to focus on the more abstract principles of law. This is because, first, they have never met the litigants. Second, they are not under the same pressure as the judges of the Court of First Instance to act quickly to clarify a case. Third, the decisions they make are often cited by future cases as a precedent to guide them in the application of the law, so a thorough legal justification is needed to prevent injustice in future decisions. For these reasons, I believe I have seen more success in the courts of appeal, where the law favours my side over the facts. It is rare for the law to completely favor one party over the other. There is usually a legal argument that needs to be made on both sides of a particular problem.
However, the law will generally lean in one direction, and I have found that the legal force of a case is less important than the given facts of the case. In my experience with local judges, the facts often determine the outcome of cases rather than the law; That is, I have had many situations and cases where the law is stacked on my side to some extent, and my client has always received an unfavorable result. Conversely, I scratched my head at results where I was disadvantaged by the law, but where I won a victory for my client on the basis of favorable facts. I think it`s because most of the judges in the trial courts are legal realists. Legal formalism, also known as conceptualism, treats law as mathematics or science. Formalists believe that in the same way that a mathematician or scientist identifies relevant axioms, applies them to given data, and systematically arrives at a verifiable theorem, a judge identifies the relevant legal principles, applies them to the facts of a case, and logically derives a rule that governs the outcome of a dispute. Judges derive relevant legal principles from a variety of sources of legal power, including state and federal constitutions, laws, ordinances, and jurisprudence. Some realists were simply trying to show that the law is neither autonomous, nor apolitical, nor determined. For example, Jerome Frank, who coined the term legal realism and later became a judge of the U.S. Court of Appeals for the Second District, emphasized the psychological basis of court decision-making, arguing that a judge`s decision can be influenced by everyday things, such as what he or she ate for breakfast.
Frank believed it is misleading for the legal profession to perpetuate the myth that the law is clearly recognizable or accurately predictable when it is so plastic and changeable. Karl Llewellyn, another founder of the American movement for legal realism, also believed that the law is little more than glue in the hands of a judge who can shape the outcome of a case on the basis of personal prejudice. In contrast, “legal realism” is the concept that the law should be applied creatively and liberally as a set of malicious and flexible policies so that the law serves good public order and social interests. Legal realists see the legal world as a means of promoting justice and the protection of human rights. Legal realists often believe that judges should gradually develop and update the law because, as the branch that comes closest to economic, social and technological realities, they should and can adapt the law accordingly to meet these needs. They often believe that judges have broad discretion and should decide issues on an individual basis because legislators are known to be slow or innate in responding to such pressures for change. n. the whole subject of law, the study of law and legal questions.
Other realists, like Roscoe Pound, were more interested in using the findings of their movement to reform the law. Pound was one of the early advocates of sociological jurisprudence in the United States. According to Pfund, the goal of any law – whether constitutional, statutory or case-based – should be to improve the well-being of society. Jeremy Bentham, a legal philosopher in England, planted the seeds of sociological jurisprudence in the eighteenth century when he argued that law must seek to achieve the greatest good for the greatest number of people in society. Bentham`s theory, known as utilitarianism, continues to influence legal thinkers in the United States. Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. [1] In its descriptive sense, formalists assert that judges make their decisions by applying undisputed principles to the facts; Formalists believe that there is an underlying logic to the many legal principles that can underlie various cases. These principles, they argue, are simple and can be easily discovered by anyone with some level of legal expertise. The ultimate goal of this type of formalism would be to describe the underlying principles in a single, specific system that could be applied mechanically – hence the term “mechanical jurisprudence.” .
