FORMALIST MODEL

Optima Statuti Interpretatix Est Insum Statutum

(The best interpreter of the statute is the statute itself.)

Q: What is the view of Legal

Formalist on judicial adjudication?

A: Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers. Formalism seeks to maintain that separation as a "theory that law is a set of rules and principles independent of other political and social institutions".

A: Legal Realist is the view that creativity in the interpretation of legal texts is justified in order to assure that the law serves good public policy and social interests, although legal instrumentalists could also see the end of law as the promotion of justice or the protection of human rights. Legal formalists counter that giving judge authority to change the law to serve their own ideas regarding policy undermines the rule of law

Q: Compare Legal Realism and Legal Formalism.

The formalist ideal is for the court already to have at its disposal a complete set of clear, unequivocal and precise legal standards which provides the basis for a mechanical resolution of disputes between its members. It enjoys the twin virtues of clear guidance and determinacy in judgment. The law's formulation allows for a mechanical resolution of the dispute leading to only one possible result to which the courts are bound when deciding a case.

 Andres

v. Manufacturers Hanover & Trust Corporation (1989)

Principles of equity cannot be applied if there is a provision of law specifically applicable to a case.

People v Veneracion
Judge

Veneracion finding the defendants Henry Lagarto and Ernesto Cordero guilty beyond reasonable doubt of the crime of rape with homicide and sentenced both accused with the penalty of reclusion perpertua with all accessories provided by law. City prosecutor filed a motion.

Holding:
Obedience

to the rule of law forms the bedrock of our system of justice. If judge under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which the duties of office, then law becomes meaningless.

Principle
The

law may be harsh but it is the law.

Q: What is the Formalist Model of Adjudication?

A: A mechanical or effective decision procedure is one which involves a finite number of steps requiring no insight or ingenuity to comply with them, such that a computer or indeed anyone possessed merely with the ability to follow simple directions can execute them mechanically. At the completion of the procedure, a categorical yes or no answer to the question being asked should be available.

Q: Does formalist model satisfy conventionality (law)?

A: Yes. Formalist Model (also called Positivist models) insist that the formal or logical derivation of the subsumptive reason dispositive of the case originate from the standards found in the institutional sources of law. This satisfies conventionality.

 Under

a purely formal model of adjudication, it is intended that every case arising for adjudication be resolved by means of a mechanical derivation of the subsumptive norm dispositive of the case from standards found in the institutional sources of law. A system of legal norms therefore must be available from which the norm appropriately covering the case can be mechanically deduced or identified and then formally applied by logical deduction to derive the answer to the given case.

Q: What are the requirements for formal decision procedure?

A:

In its entirety, this formal decision procedure would require (i) that the institutional sources of law provide a gapless, consistent and closed system of norms or, if containing gaps or inconsistencies, an internal purely formal procedure to remedy this. Note: Stat.Con.

Apply the Law

Interpret the Law

Construct the Law

When the law speaks in clear and categorical language

When there is ambiguity in the language of statute, ascertain legislative intent by making intrinsic aids or those found in the law itself.

When the intent of the legislature cannot be ascertained by merely making use of intrinsic aids, the court should resort to extrinsic aids, or those found outside the language of law.

(ii) that from this gapless, consistent and closed system, the legal norm which subsumes the case can be mechanically deduced or identified so that it can then be mechanically applied. If both these complex conditions are satisfied, then a purely formal model of adjudication exists.

Q: Can be their non-mechanical features of formalist model?

A:

Non-mechanical features may intrude in two ways: in the derivation or identification of the appropriate legal norm, and in its application.

Social norms are groupheld beliefs about how members should behave in a given context

 The

first requirement provides the general conditions which prevent these from occurring. The legal system must be deductively arranged or methodically categorized so that any case arising for adjudication will eventually be paired with a unique corresponding norm. This allows for mechanical derivation or identification. Once this norm has been so identified, the case must be decided in accordance with it. No reason, no matter how weighty, is to defeat the application of the norm. This ensures mechanical application.

EVALUATIVENESS
This is the fourth characteristic of an ideal model of adjudication.

Its not the letter of the law that killeth, it is the spirit of the law that give it life.

Q: Why there is a need to use Formal Evaluative Model? A: Because a purely formal model is impossible to construct, any theory of judicial reasoning must be evaluative.

 The

requirement of completeness and univocality will never be satisfied. This is because the law inevitably will speak vaguely or ambiguously, or will fail to speak at all, so that there will always be factsituations not clearly covered by existing law. Linguistic philosophers have explained this phenomenon to be due essentially to a basic feature of any natural language, the fact that it is unavoidably open-textured, so that vagueness is permanent and ineliminable. It is also due to the natural human predicament of man's relative ignorance of fact and his relative indeterminacy of aim, a point due to Hart.

Q: Why there is a need to formulate non-evaluative terminology?

A: The system of laws must be formulated in nonevaluative terminology such that any case arising would require only a straightforward interpretation of its laws for it to be decided. The laws must be clear, the boundaries precise, inconsistencies avoided, and the scope of the entire legal system comprehensive. These requirements can never be met. Such a system of laws is impossible to construct. The proof rests on the open texture of concepts, which means that it is not possible to delimit concepts precisely so as to leave no doubt as to its correct application. Indeterminacy, forever present, is an unavoidable feature of language.

Open

texture is more than simply vagueness. Vagueness is unidimensional or exists only along a continuum. To eliminate the vagueness then, one merely has to fix a precise boundary along that continuum.

One can set the age of eighteen (18), for example, to distinguish a minor from an adult. Open texture is a deep and multidimensional type of vagueness. The possibility of vagueness does not exist only along one dimension but arises along every possible, and not just conceivable, dimension. Hence to eliminate vagueness in one dimension by introducing a precise term would introduce vagueness in another by the need for other terms.

Q: What is the disadvantage of too artificiality and rigidity?

A: Even if formalism can be approximated, it may be unwise to do so since the judge also attempts to achieve substantive justice, and too much artificiality and rigidity will prevent its accomplishment.

 Because

of the open texture of language and of the desire to do substantive justice, there will always exist hard cases. A hard case is taken simply as a case which is not resolved mechanically or formally, in not too stringent a sense of mechanical or formal. In other words, the case cannot be decided by straight forwardly selecting and then applying the systemic norm which covers the case.

Q: What are the four kinds of hard cases?

1.

The cases in the gaps

No

vehicles in the park, Trespassers, licenses, invitees, wandering children Snail in a ginger bottle

 2.

The legal norm is expressed in moral or evaluative terms

Every

person must, in the exercise of his right and the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.(Article 19 of the Civil Code) The due process clause

 3.

The case of conflict

The Gobitis case (Ebralinag case)

4.

The case of unsatisfactory law Herrington case Gobitis case

 In

all these cases, evaluative adjudication is inevitable. This is due both to the open texture of language, which points to the inadequacy of an articulated system of laws to provide clear guidance to every case arising for decision and to the judicial role, which in applying the articulated system of laws with justice, has substantive, and not just formal, justice in contemplation.

CONCEPT FORMALISM
Q: What is conceptual formalism? A: Conceptual formalism treats law as a science, systematizing its norms into some sort of deductive arrangement or conceptual order.

Q: Why there is a need for Conceptual Formalism?

A:

The law itself is divided into categories. Within these categories are the top-level abstract legal concepts and fundamental principles which can be said to inform these concepts. At the bottom lie specific rules which are supposed to be deduced from the toplevel concepts and principles by means of logical derivation. Intermediate between them is a whole variety of legal norms.

Q: What is the rationally behind conceptual formalism?

A:

The model approximates the purely formal one. It strives towards gaplessness and closure because any legal question is intended to be answered merely by the internal logical development of its toplevel concepts and principles so as to produce the bottom-level rule, if it doesnt already exist, which subsumes the facts of the case.

 Cases The

in the gaps

method used by conceptual formalism to resolve cases in the gaps is to develop the concepts found in the law with logical rigidity. In the two British cases mentioned above, this method of rigid conceptualism was used. There are two variants of this method. The first, applied in Addie, is to have fixed rigid and exhaustive categories; the second, contemplated in Donoghue, is to have closed but not exhaustive categories.

 Cases

governed by evaluative norms Interpret the evaluative concepts and principles logically by rigid conceptualism, in the process specifying them into an intricate set of detailed and precise rules which should preclude the use of substantive interpretation for their application.

 Cases

of conflict The use of a formal method of having a strict hierarchy of norms. The Constitution is ranked higher than a statute and a statute higher than precedent. When a conflict between two norms belonging to the same institutional binding source occurs, the later norm is the one which governs.

 When

a conflict is due to the scope of competing substantive norms being uncertain, it is often solved not by comparing rank but by determining the scope of each norm with the aid of substantive reasoning. This occurred for example in the Gobitis case, which involved competing interpretations of the Constitution giving rise to a conflict between the values of national cohesion and unity as against religious liberty.

Rigid

formalism applied. Cases of unsatisfactory law Under the purely formal model, since the norm is precisely that unique norm belonging to the institutional binding sources which, in its plain or literal interpretation, directly covers the case, it has to be applied. No reasons, no matter how weighty are to deter the judge from doing so.

Q: What are the two remedies open to conceptual formalism?

(1) He may apply the appropriate norm with extreme reluctance, while giving his reasons why the law ought to be changed and why he is constrained from changing it. This may induce the legislature to amend the law accordingly, or he may make use of a device known as a fiction. This is a device formal in approach but substantive in result. A case may be classified under a different category, where a legal norm less harsh is to be applied. In such a way did judges classify wandering children as invitees or as licenses.

Q: What are the disadvantages of this model?

Too

artificial and too rigid models are available.

Other

PURELY SUBSTANTIVE MODEL

A: Moral reasons not only prevalent in but indispensable to adjudication, it might be preferable to conduct judicial reasoning purely in terms of moral and evaluative considerations. The rationale behind such a procedure is plain to see. For the disadvantages of being guided and strictly bound by rules and other legal norms could then be avoided. Rules are selective, constrain the decision-maker to focus only on those aspects deemed relevant, and therefore prevent him from considering all the equities of the case, those factors and issues which may lead to a more informed, a sounder or wiser decision.

Q: What is the rationale of this model?

 Under

a purely substantive model, a decision is to be made as if the legal rule already covering the case did not exist. In other words, no weight is to be attached to that legal rule by virtue of the fact that it subsumes the facts of the case. Instead, the moral and evaluative substantive reasons behind the rule are to be considered along with other relevant substantive reasons, and a decision is to be made on their balance.

Q: What is the relevance of this model?

(1) It satisfies rationality, subsumptivity, evaluativeness but not conventionality. (2 ) Adheres to justice plain and simple, not justice in accordance with law.

Q: What are the reasons for a system of public rules.

(1)Avoidance of error (Coordination problems); (2) Minimization of bias (3) Efficiency (not fairness) (4)Justified reliance (5)Certainty and predictability (6) Respect for autonomy (7)Reduction of litigation (8)Adherence to Plurality (9) Respect for judiciary, separation of powers

Q: What is the disadvantage of this model?

A:

Because the purely substantive model rejects the strong reasons for adhering to rules, it must be rejected. A substantive approach, which nonetheless pays due respect to formality, is studied next.

THE WEIGHTED PRIMA FACIE REASON MODEL

Q:

What is weighted prima facie reason model?

A: This is an approach adopted by Economic Jurisprudence of Posner.

 Interesting Latin

sidelight: homo economicus.

for "economic human". A term used in economic theories to describe humans as rational and self-interested beings capable of making judgments towards subjectively defined ends (such as accumulation of wealth and resources). This is used as a basic for the majority of economic models, where they assume that all human beings will act like homo economicus. The validity of this assumption has been questioned in some economic circles, with alternative assumptions proposed.

 His

approach, however, is in terms of consequences, that the decision productive of the best consequences is the correct reason. approach takes a particular binding legal rule as a weighted prima facie reason to decide the case in accordance with it. The rule enjoys a weighted primacy or importance which has to be overridden if it is not to apply to the case. This has much in common with the purely substantive model of adjudication, except that the substantive reasons for complying with the legal rules are now taken into account in the balance of reasons.

This

 The

burden of proof rests on those who advocate a result contrary to the particular legal rule to demonstrate that the substantive reasons for that result override the substantive reasons for a result in accordance with it.

 The

substantive reasons which argue for a result in accordance with the rule are weighty indeed, and as such difficult to override. They include, apart from those substantive reasons for complying with rules which ought never to be underestimated, the value, reason, or purpose behind the particular legal rule and those reasons, which although independent of the rule, justify the result nonetheless. To tip the scales then in favor of a decision contrary to the rule would occur only infrequently.

Q: What are the advantages of this model?

This

approach concedes the indispensability and importance of the formal element in adjudication. Although not formal as a mode of reasoning, it secures a formal result. Nonetheless, it is unsatisfactory due to the requirement of authoritativeness.

In a nutshell
FORMALIST EVALUATIVENESS CONCEPT FORMALISM PURELY SUBSTANTIVE WEIGHTED PRIMA FACIE REASON

Adjudication must be based on what is the law

Any case arising would require only a straightforward interpretation of its laws for it to be decided.

Treats law as a science, systematizing its norms into some sort of deductive arrangement or conceptual order.

conduct judicial reasoning purely in terms of moral and evaluative considerations

Based on consequenc es, that the decision productive of the best consequenc es is the correct reason