This descriptive conception of “legal formalism” can be extended to a normative theory according to which judges should decide cases by applying undisputed principles to the facts; “Well-founded legal decisions can be justified as valid deductive syllogisms.” [3] On the other hand, if the hypothesis fails significantly, this may indicate that more weight should perhaps be given to the legalistic view that neutral, objectively applied rules determine outcomes. [1] See, for example, George Williams et al, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 7th edition, 2018) 170 (describes the “triumph of legalism” in High Court jurisprudence since the Engineers case). Legal formalism is both a descriptive theory and a normative theory about how judges should decide cases. [1] In their descriptive sense, formalists claim that judges make their decisions by applying undisputed principles to the facts; Formalists believe that there is a logic underlying the many legal principles that can underlie different cases. These principles, they argue, are simple and can be easily discovered by anyone with some degree of legal expertise. The ultimate purpose of this type of formalism would be to describe the underlying principles in a single, specific system that could be applied mechanically – hence the term “mechanical jurisprudence”. The antithesis of formalism is legal realism, which is considered “perhaps the most widespread and accepted theory about how judges arrive at legal decisions.” [2] Essentially, becoming a Supreme Court justice means being popular and respected within a particular system, with the unsurprising result that one usually supports that system against outside constitutional attacks. Based on the legalistic analogy, referees, if they are mere referees, are referees who are selected solely at the discretion of a single team in the league, and so perhaps we should not be surprised that their decisions on the field tend to favor that team. As a normative theory, legal formalists argue that judges and other officials should be limited in their interpretation of legal texts, suggesting that it is contrary to the separation of powers to give the judiciary the power to say what the law should be, rather than limiting it to explaining what the law says. This argument finds its most eloquent expression in the Massachusetts Constitution of 1780, which provides that the judiciary “shall never exercise legislative and executive power, nor any of them; until the end [that the government of Massachusetts] can be a government of laws and not of people.

[14] Formalism seeks to maintain this separation as a “theory that law is a set of rules and principles independent of other political and social institutions.” [15] In A Matter of Interpretation, Scalia defended textualism—and thus formalism—by saying: Frederick Schauer, a professor at the University of Virginia School of Law, published an article titled “Formalism” in the Yale Law Journal in 1988. He calls on scholars to reconsider “contemporary aversion to formalism” and declares that his goal is to “save formalism from conceptual banishment.” [19] He argues that formalism should be conceptually rethought, not only to determine whether it is a right or wrong thing, but also to determine how language can and should be used to limit the power of decision-makers in the decision-making process. However, there is another theory of jurisprudence that offers a diametrically opposed explanation of how judges make decisions: legal realism. When legalism postulates that judges apply rules to arrive at a result, legal realism says that the opposite actually happens, since judges first get the result they like, and then rhetorically justify those results by referring to rules. For appellate courts (such as the High Court), legal realism holds that there is simply an almost inexhaustible array of rules, conventions, precedents, distinctions, discretions and ambiguous (“reasonable” or “proportionate”) standards that plausibly justify almost any result as “what the law requires.” A realistic explanation of the right to empirical observation that the Commonwealth wins four out of five constitutional law cases would likely relate to the most common characteristics of Supreme Court members. There is no national selection test to become a Supreme Court justice. Appointment is at the sole discretion of the Commonwealth Executive. The argument would be that Supreme Court justices are institutionalists established because of their background and selection.

They have found enormous personal and professional success working within the establishment, believe they have achieved their current position through merit, and are acculturated to a conservative institution known for preserving tradition and the status quo. Supreme Court justices probably would not have been chosen for this position if they had been openly skeptical of the ever-increasing reach of the Commonwealth`s legislative and executive power, if they had been repeatedly indicted against the Commonwealth as lower court judges, or if they had been perceived by the executive branch as an “outsider” (potentially hostile) to the system – regardless of their “merit” as a lawyer. Jurist or judge. Historically, and still today, most of the appointees to the High Court are white, upper-middle class, attended a prestigious (usually private) high school in a capital city, attended a university in the group of eight, and then pursued successful careers in private law practice for a well-connected law firm. [3] Of course, not all members of the High Court represented each of these typical characteristics, but enough that members tended to share a general worldview and set of personal values that are inevitably reflected in the choices they make. When legal realism as an explanatory theory better explains and predicts the Supreme Court`s decision-making process in constitutional matters, it has major implications for how we teach the Constitution in law schools, how we advise clients on the likelihood of success or failure in the claims under consideration, and how we understand the importance (or lack thereof) of the sophisticated doctrinal framework of constitutional law. theorize. Perhaps, at the very least, we should learn that understanding the formal rules of the game can be of little use in predicting who will eventually win it. It has become standard wisdom for the High Court of Australia to make its decisions in an extremely technical and (for lack of a better word) “legalistic” manner.

[1] This applies not only to areas of law where such a method of decision-making seems self-evident, such as taxation, but also to areas where it may seem surprising – such as constitutional law. “Strict and complete legalism” (in the famous words of Justice Dixon)[2] means that decisions must be made exclusively through the neutral and objective application of legal principles. Everything else – political considerations, personal opinions, wider implications, empathy for those involved, etc. – must be excluded. In a legalistic model of judicial decision-making, judges are like referees at a rugby match – they objectively determine whether an attempt has been made or not. Constitutional interpretation strictly in accordance with the content of the established Black Letter Act, which aims to draw legal conclusions through the formal analysis of these principles and not according to the respective principles. Formalism has been termed “autonomous discipline”[10] in reference to the formalistic belief that judges need only facts and law, with all normative issues such as morality or politics irrelevant. [11] When judges simply apply the rules mechanically and uncontroversially, it protects them from criticism. For this reason, formalism has been called the “official theory of judgment.” [12] Some scholars deny that there ever existed a legal formalism. [13] Our traditional interpretation of judicial decision-making is that judges apply the law to a set of facts and come to a conclusion. This is called legal formalism.

But what if it`s upside down? What if the process of judicial reasoning consisted of deciding the outcome and justifying it rhetorically with certain interpretations of legal norms and facts? This article applies the descriptive theory of legal realism in a given context (Australian constitutional law) as well as a qualitative empirical study to decide whether legal formalism or legal realism best explains Supreme Court decision-making. Legal formalism can be opposed to legal instrumentalism, a vision linked to American legal realism. [16] Instrumentalism is the idea that creativity in the interpretation of legal texts is justified to ensure that the law serves good public order and social interests, although legal instrumentalists may also see the end of law as a promotion of justice or the protection of human rights. It also calls for the exercise of judicial discretion. Legal formalists, however, counter that giving judges the power to change the law to serve their own political ideas undermines the rule of law. This tension is particularly interesting at common law, which depends on current jurisprudence. The “claim to glory” of common law systems is that the task of developing and updating the law is best accomplished gradually by courts that are in close contact with social, economic and technological realities, rather than by political bodies that deal with legal reforms from time to time.