Formal Reason And Substantive Justice: The Controversy Between Legal Formalism And Legal Realism

Whenever faced with the choice of law,some believe that it should be strictly applied,and some people think that they should be free to cut,there is no definitive answer.Legal formalism and legal realism in the history of American legal thought are the reaction of this situation.legal formalism tried to establish a system of perfect law through the analysis of accurate concepts,the system of strict logic,and the reasoning of perfect abstraction.Solve all legal issues.However,with the popularity of legal formalism,its attacks have followed.Justice Holmes opened the first place and accused Randall of being a "legal theologian",followed by Llewellyn and Frank,who followed the legal formalism and advocated the creativity and flexibility of the judiciary.Sexuality,more emphasis on individual justice,thus forming a strong legal realism trend of thought.Legal realists hold the attitude of rule scepticism,the method of fact-centrism,and the approach of social functionalism,which has set off a massive legal realism movement in the United States,whose influence continues to this day.The focus of legal realism and legal formalism is mainly on the issues of certainty of law,the discretion of judges,and the openness of law.This article is divided into four parts:The first part mainly expounds the decline of legal formalism and the rise of legal realism.In order to better understand the ideological debate between legal formalism and legal realism,we must first explore the background of the times in which they are located,know what the era problems they are facing,and what are the ways to solve them.Legal realism is precisely because the method of legal formalism can not solve social problems very well,so it began to slash it.Therefore,the reasons for the decline of legal formalism and the rise of legal realism are briefly introduced.Because of the conservative nature of liberalism and the expansion of the market economy,legal formalism has been unable to adapt to the requirements of the times.Legal realism is the result of the enlightenment of the liberal law movement,the foundation of pragmatic philosophy,the inheritance of common law,and the need for social crisis.The second part mainly expounds the comparison between legal formalism and legal realism.The core argument of legal formalism is that law is a closed system,consisting of abstract concepts and grand principles.The specific rules come from the derivation of abstract concepts and principles,and the case rulings completely become the calculation process in the closed system.Simply use deductive logic for formal legal reasoning to find a definitive answer to the case.Legal realists do not think that the legal system is abstract,ideal,nor fixed or eternal.They doubt the certainty of the law and turn to a "behavior"-centered approach,arguing that the behavior of judges or officials is the core issue that must be addressed.In addition,legal realism also emphasizes the social function of law.They pay more attention to the close relationship between law and social reality,and incorporate many other research methods beyond the law into legal research.The third part is the induction and summary of the focus of legal formalism and legal realism.Legal formalism and legal realism have put forward their main viewpoints in their respective historical periods.Although the differences between them are huge,they mainly focus on the following three aspects to focus and debate.Regarding the certainty of the law,legal formalists believe that the law consists of accurate concepts and precise norms,as long as they are deterministic after they are generated;and legal realists believe that the law is not certain,whether it is legal Language,or legal norms,are only relative.With regard to the discretion of judges,legal formalism believes that judges only need to obtain correct judgments according to the rules and principles of the law,and refuse to recognize the discretion of judges.Legal realism believes that judges face trials in cases.The judge can have a high degree of discretion based on his own understanding of the law.With regard to the openness of law,legal formalism believes that law has its own perfect logic and harmonious system,and does not need to have any connection with other social factors,such as morality,policy,etc.;and legal realism believes that law and society The relationship is inseparable.Legal and other social factors are mutually influential and interrelated.Therefore,whether the law is reasonable or not must refer to other factors.The fourth part is the reflection of the focus of the two legal ideas.Regarding the certainty of the law,the author believes that although the uncertainty of the law exists,the certainty is in a dominant position.The law reflects the fact that people use their own rational thinking to plan social life.People adjust their behavior under the guidance of the law,and the social order is constructed.Therefore,the certainty of the law has a great influence on the role of the law.Regarding the discretion of judges,the author believes that the most basic role of judges is the judiciary,not the legislator.Therefore,the judge's duty is first to obey the law,not to change the law.People follow the law and the judges are broken according to the law,so that people can form a trust in the law.Regarding the openness of the law,there is no doubt that the law cannot be a closed system,always interacting with and supporting each other.However,the author believes that the combination and mutual penetration of law and other social norms should be reflected in the legislative process,not in the judicial process.