The to male values. Therefore, postmodern feminists

The attempt of explaining law and the unravelling of its mechanical creation and the complex process of its justified application has been a heavily debated topic that has raised many different theories. Formalism is a theory of adjudication that attempts to explain the law, which claims that the law is rationally determinate and should be a completely self-determining system. From the quote, formalism argues that law is as straight forward as science and can be easily implemented by applying the laws provided in black and white books from legal libraries, therefore impacting adjudication. I will further discuss past the basic aspects of formalism and will concentrate on the laws coherent features that separate it from politics and juridical bias, ranging from governmental impact to shared public policy and pressure groups. Other theories that attempts to clarify law rise from feminist scholars who raise the issue that the law was created by men and as a result is shaped to male values. Therefore, postmodern feminists challenge the concept that laws should be followed by literature and advocate the power to read beyond old fashioned texts. To start with formalism, it is important to know that it is fundamentally an extension from legal positivism, as in they both argue that law should be separated from politics and public agenda.  Within Weinrib’s journal, he asserted the idea that the law is intrinsic and no politics or social opinions will affect it, he said “My defence of formalism is an exploration of the sense in which law can, after all, be differentiated from politics. This differentiation is tied here to a complex of broader issues: How is law intelligible? In what does the coherence of juridical relationships consist? Is a non-instrumental conception of law possible?”  To further explain this, when laws were first made, pre nineteenth century, the legal system was dominated by wealthy males (and could be argued that it still is). Therefore, this shaped up the legal system and books that are referred to in adjudication cases were made by a wealthy small percentage of the population who shaped the laws according back then to what people believed to be natural (God’s) laws. This is important as formalism heavily supports the idea that the answer to any legal problem can be found in textbooks or previous precedents, and not through aids from political agendas. Even though it can be argued that law does not take into consideration public agenda and politics within adjudication, it is very clear that political as well as social values were formed into early legislation as well as case law throughout the years; as a result many believe that certain laws are sexist or morally wrong. An example to illustrate how the law has changed is that all women were only allowed to vote in 1928. So it would absurd even for a formalist to argue that the law should stay separate, because the political agenda shaped the law in the nineteenth century, so it should impact the law today. Formalism suggests that Judges should never be faced with alternative interpretations of a case that can only be resolved through extra legal considerations, such as social and political values. So, formalists do not take these into consideration.  Beccaria, for example, said the idea that formalism is simply states that judicial decision-making “involves nothing more than mechanical deduction on the model of the syllogism”. To put it simply, formalism is a commitment to a method of legal justification that contrasts with open-ended disputes about the basic terms of social and political life.  Formalism treats the law like maths or science, i.e. a Judge should identify the legal principles, apply them to the facts of the case and construe a rule that will govern the outcome of the dispute.  Langdell and Holmes took the formalist approach determinedly acquiring the belief that there is a set form and structure in society. This is a model for human enquiry and is vital in human progress. Langdell established two things: law is a science; all available in books and says the right answers are supposed to be discovered. Langdell also has been influenced by ‘unsophisticated’ scientism which has led him to identify the true meaning of legal doctrines. Both Holmes and Langdell conclude that judges should to decide a case by applying the rules established by precedent, without appeal to any special claims of justice and without appeal to any higher order normative principle’ .  ‘Formalist approaches seek determinate legal outcomes through a process of deductive logic where the premises mobilized and conclusions reached are sourced internally, within the law’s “immanent moral rationality,” rather than derived from discourses external to law’. Formalists seek to find significant legal outcomes through inductive logic.  This is the idea that conclusions reached are only from the laws that have been morally rationalised rather than obtaining judgements from reasoning external to the laws that are sought by the political. Moreover, “formalism” is associated with the idea that judicial decision-making involves nothing more than mechanical deduction of reasoning. Therefore, if the law is clear and are followed as they should be, then the conclusion that is reached is necessarily true. However, feminists disagree with this point as Katherine McKinnon quotes attacking ‘objectivity’ and exposing its gender nature, “Male dominance is perhaps the most pervasive and tenacious system of power in history … it is metaphysically nearly perfect. Its point of view is the standard for point-of-viewlessness, its particularity the meaning if universality” .  Many feminist theorists have argued against values of formalist science, like its concepts and methods, and have attacked the false dichotomy established to distinguish between reason and emotion, rationality and irrationality, that law sees as given. The objectiveness as well as rationality and emotional distance that Judges are supposed to follow are not only unachievable, but also undesired.  For example, Lynne N. Henderson has called for empathy in judicial reasoning, arguing that legality gives judges a way to escape responsibility, and Carrie Menkel-Meadow has called for an inclusion of ‘ethic of care’ in the judicial processes.   Feminist scholars stress the fact that law and its methods are not neutral,  but political, as is feminism and its methodology, which feminist do not try to hid, plus which they are so often attacked for. These criticisms ask for the acknowledgment of materiality of any perspective to be open to multiple perspectives. They call for sensitivity to the context in legal processes and inclusion of excluded voices.The second part of the quote in question refers to internal coherence. It suggests that formalism is a mechanical method may not be as coherent as it sounds. An example to prove its robotic nature can be seen in the following quote, ‘The judicial process…is essentially similar to the process by which we acquire our knowledge of geometry… In the great majority of cases the solution is certain and exact as an answer to a problem in mathematics’.  The main task of adjudication could be done by a robot, there is always an answer and can be done within neutral standpoint. Unger said that the distinctive rationality of law is intrinsic to the legal material on which it operates. He went on to say that the content of law should be elaborated from within legal documents and that law has immense juridical content. This quote is essentially showing that formalist Judges thought process is that any legal problem has exact path or set of paths which would lead to the answer, like in maths. Sir Edward Coke; believed only lawyers, judges and others trained in law could fully comprehend and apply, the rest of society is not educated to the right level in order to impact or even be involved in the process of creating or changing laws, as it is considered the highest level of reasoning. Sir Edward Coke also held that the Common Law was “the peculiar science of judges.” he said, it represented the “artificial perfection of reason” obtained through “long study, observation, and experience”.  On the other hand, a feminist scholar would disagree with this as females make a small percentage of representatives in the legal system and a recent report showed that only 30% of Judges in the England and Wales is females and 2 out of 12 Law Lords,  “the legal profession is dominated by male views and preferences”.  Therefore, it would be argued that having a majority of male legislative bodies will naturally shape the law with less regard to females or minorities. A formalist would argue that the laws they were creating were to a certain extent unavoidable; an example to explain this is the law on murder and whether the precedent on it would have always been ‘The unlawful killing of a reasonable person in being under the King’s peace with malice aforethought express or implied’. A formalist would claim that the approaches mathematical approach to cases, no matter who decides the case as long as they apply the relevant principles, then this definition would still have been the answer, henceforth why formalists boast coherence. Still, this argument does not sound persuasive and an example of adjudication to prove this is the existence of appeal cases and percentage off them that fail. Therefore, if formalism is true and Judges do apply the law in the same mechanical manner it has been described then there should be no appeal cases; as logically no Judge would decide any case wrong, the same way in which 1+1=2.  Another point regarding coherence of formalism is if is as logical and procedural as explained then there will be no need for Judges and lawyers, especially with the modernisation of technology the facts of the case could be entered into a machine in order to reach a logical solution. But, it is important to have Judges as it has been obvious that the need for rational thought through values and morals in decision making which weakens a strong foundation of formalism. As it stands today Judges have discretionary powers. ‘An appeal court will only interfere with the exercise of the judge’s discretion under section 33, as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible’.  Bentham argued that Judges do not make law, they find it, and Judges are just appliers and the ultimate goal for law is to have no judicial discretion. The idea of ‘Judge Hercules’ put forward by Ronald Dworkin states a perfect Judge who will always find the right answer. Acting on the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole (law as integrity) in order to decide any particular case. Hercules, Dworkin argues, would always come to the one right answer. Formalism adjudication is the discovery of, rather than making of law. However, it has been argued by critics that this principle is full of gaps in the legal aspect and insufficient to solve legal cases. It has also been said that this idea is set out to help Judges so they do not take criticism; the law therefore needs to be separate for Judges to do their job. A feminist approach would disagree with this and Mary Jane Mossman has criticized particular legal methods (process of defining boundaries and restricting legal from political issues and selecting precedents) for their propensity to maintain the status quo and exclude new perspectives. Martha Minow has criticized the ‘unstated assumptions’ that the US Supreme court’s Judges use in deciding cases involving ‘difference.’ She identified the assumptions as ‘difference is intrinsic, not relational; proceeding from an unstated norm; the observer can see without the perspective; irrelevance of other perspectives, the status quo is natural, un-coerced and good.’   She has recommended that Judges should identify improvement points, learn how to adopt contrasting points and to decide which points to embrace in a certain situation, instead of abandoning responsibility by maintaining the status quo. Postmodern legal feminists would argue that the ‘objectivity and neutrality’ concepts as well as Dworkins ‘Hercules Judge’ are difficult to accomplish, if not impossible. They also claim that no objective truth can be found, even from a viewpoint that claims objectivity as it 


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