Legal formalism and legal realism

Legal Formalism & Legal Realism

There has been a strong debate between the supporters of legal formalism and legal realism for years. The fact that the issue continues to remain an important topic for the public agenda suggests that, as the world changes, nothing becomes more simple, but rather the opposite.

One can not discuss ethics without bringing into discussion Aquinas' conception regarding natural law. According to him, the fundamental principle that should be at the core of all human actions is represented by the natural law. Since the law is natural, that is, deriving from nature, this implies that all the humans understand it and must obey it, pursuing good and avoiding evil.

Furthermore, it is suggested that it is known a priori if a fact is good or evil. In addition, there is a set of rules which guide the behaviour of people in the right direction. Therefore, there is a passage from the moral law to the civil one, that is, the eternal laws are translated into laws which can be applied to specific situations. It is important to underline that in Aquinas' conception, the moral law and the rational nature of humans are considered identical. If people are rational because this is their nature, then acting accordingly to their nature is that what one can define moral.

Another important relation of equality is the one between law and morality. Blackstone, just like Aquinas, believed that this universal law comes from God and therefore it has a divine character. The validity of the human laws derives from their respecting the divine law.

It is very interesting to interpret these concepts when analyzing the different approaches to the application of the law represented by legal formalism and legal realism. According to legal formalism, just like in Aquinas' opinion, it is known a priori whether an action is good or evil. The laws are made in order to be applied as they are, because they have been conceived and formulated in the most appropriate manner. As a consequence, the role of the judges is to merely apply the laws and not to interpret them. Interpreting them should mean imposing a personal view upon a situation which is best described by an already existing law.

If the laws derive from the human nature then the judges should not have any reason in order to modify them (they can not be outside their own nature). Nevertheless, taking into consideration the fact that their duty is to do their best in order to serve the Law, an initiative to interpret the laws might suggest that there is something worth changing or modifying in order to better apply the moral principle.

In addition, one might bring into discussion the relation between Law and Morality. If the works of Aquinas and Blackstone the two concepts could replace one another, it appears that in the contemporary world this synonymy is no longer possible. The truth is that the cases tend to be so different, despite describing similar deeds, that one can do nothing but analyze the circumstances and any other element that might help understand how one can best apply the law while making justice at the same time.

This is where legal realism comes into place. According to this conception, the role of the judges is not to blindly apply the laws, but interpret them in the most appropriate manner in order to respect the Law and protect the human rights and liberties. The fact that it often occurs for the judges to be constrained to interpret the laws might suggest that, while the laws might derive from an universal natural law, this law is not eternal as well. As customs and moral standards change, perhaps so should the judicial rules which govern our everyday lives.

The Case of the Speluncean Explorers is a book which describes various perspectives of interpreting the law as well as what is right (moral). While Fuller invents a judicial case which involves both the moral values and the laws in the most challenging way, Peter Suber tries to make an analysis that will respond to all the key aspects of the scenario.

It is worth underlining that Fuller created enough elements in order to have sufficient arguments for both acquittal and conviction, depending on the perspective.

The rule of the judges was difficult because they were actually compelled to define what "good" was. Good is an universal value which everybody understands. However, sometimes only some can benefit from certain advantages while others can not. When life is the advantage at stake, things become even more difficult, as life is the very value of men and the most priced possession. Can one impose his force upon the other in order to survive? The answer should normally be "no" because we are not living in a jungle were the stronger eliminate those which are weaker. However, taking the circumstances into consideration one might ask himself another question: is it better to have ten people dyeing or is it better to have a person killed in order to save the other ten?

It may be stated that, in a certain way, this question is a translation of the very debate between legal realism and legal formalism. On the one hand, there is the universal good which everybody knows and understands. Judging from the perspective of an absolute value, it is obvious that what the judges were supposed to do was to apply the law and punish the survivors. On the other hand, one could ask himself if it is really just to judge everything according to values which are absolute and tend to be abstract in a world where everything is so harshly "real" and different.

The question is extremely difficult. It could be asserted that absolute values are too much of a deal and doing everything according to them is neither realistic, nor possible. This may be true to a certain limited extent. If there is no general rule to guide the behaviour principles of all the people, then everyone will create personal values which best suit their interest. This would result into chaos and eventually negative consequences for everybody.