Premium
UNGER'S CRITIQUE OF FORMALISM IN LEGAL REASONING: HERO, HERCULES, AND HUMDRUM
Author(s) -
Harris J. W.
Publication year - 1989
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/j.1468-2230.1989.tb02595.x
Subject(s) - rationality , objectivism , doctrine , formalism (music) , ideology , legal formalism , epistemology , law , legislature , legislation , politics , political science , philosophy , sociology , law and economics , black letter law , comparative law , literature , private law , art , musical
“Doctrine can exist—the formalist says or assumes—because of a contrast between the more determinate rationality of legal analysis and the less determinate rationality of ideological contests. This thesis can be restated as the belief that law making and law application differ fundamentally, as long as legislation is seen to be guided only by the looser rationality of ideological conflict… The modern lawyer may wish to keep his formalism while avoiding objectivist assumptions. He may feel happy to switch from talk about interest group politics in a legislative setting to invocations of impersonal purpose, policy, and principle in an adjudicative or professional one. He is plainly mistaken; formalism presupposes at least a qualified objectivism.”