The nature and theoretical limits of adjudicative formalism in contemporary Anglo-Saxon legal theory

Ficsor, Krisztina (2014) The nature and theoretical limits of adjudicative formalism in contemporary Anglo-Saxon legal theory. Acta Juridica Hungarica, 55 (1). pp. 38-56. ISSN 1216-2574

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Abstract

In this essay, the author attempts to reveal the character and theoretical limits of judicial formalism. Formalism is a normative theory of adjudication which means that it provides determined answers to the question of how judges should decide legal cases. Judicial formalism is related to the view that legal reasoning is a special area of practical reasoning because legal reasoning should rely on reasons and arguments that stem from a limited domain of practical reasons: lawyers should justify legal decisions by relying on the reasons that originate in socalled source-based law. However, one of the tasks of legal theory is to solve the problem of judicial formalism which arises during legal practice. It can often occur that the decision, which follows clearly from the sourcebased law, is unjust or unfair if we take all relevant factors and the wider context of the case into consideration. The theoretical issue is whether judges are allowed to depart from the source-based law and if they are, in what type of cases can they do this. This essay tries to throw light on the theoretical conceptions within which the problem of formalism can be handled, for example, the theory of the nature of law or virtue jurisprudence.

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