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The Constitution and Problems of Interpretation Formalism vs Realism - Essay Example
Pages 3 (753 words)
The Constitution and Problems of Interpretation Formalism vs Realism Name Institution In 1881, legal realism started following the publishing of the ‘Common Law’ by Oliver Wendell Holmes, Jr. attacking the orthodox viewpoint of law that stated that the life of the law has failed in being logical; rather, it has been the experience (Tamanaha, 2009)…
Although it has declined, it still continues to be influential in how the law is looked at (Tamanaha, 2009). Conversely, legal formalism is a rule and law-based perception of decision-making. According to this law, judges base their decisions on whatever the law says as opposed to what the law must be. This was the widespread view in the early on years and still is perceived by many as the appropriate way of deciding cases. While observing the constitutional law, legal formalists have the perception that it should be construed by its original implication (Tamanaha, 2009). Present day legal formalism is especially prominent within two parts, constitutional law together with statutory interpretation (Tamanaha, 2009). According to the constitutional law, formalism is integrated with “originalism,” the perception that the constitution has to be interpreted in concurrence with its “original meaning.” Conversely, within statutory interpretation, formalism is integrated with the “plain meaning” theory whereby the statutes have to be interpreted in order that the words and phrases contain their ordinary denotation (Tamanaha, 2009). Plain meaning methods also are integrated with the perception that the legislative history must not be used, particularly if it would end up in an interpretation, which varies from the statute’s text. ...
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