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The Constitution and Problems of Interpretation Formalism vs Realism - Essay Example

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The Constitution and Problems of Interpretation Formalism vs Realism

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. ...
Other realists contend that judges must sometimes invalidate statutes depraved policy or establish judge-made rules thereby serving the ends of upright policymaking. It is easy seeing how realists are capable of criticizing legal formalism. In an instance whereby a formalist judge adheres to the statute’s plain meaning, that might result in its application even in instances where it will be harmful and converse to the intents of its drafters (Tamanaha, 2009). Moreover, other realists contend that legal formalism was, in fact, fraud; apparently, judges do not adhere to the plain meaning, rather, the so-called formalist judges decided on the basis of their own policy inclinations and then dressed up the outcomes in the language of legal formalism. Although ideology performs the work, it is the responsibility of legal formalism to ensure that it looks pretty (Tamanaha, 2009). In spite of the realist critique, of late, legal formalism has been formulating a comeback. The main reason for the rejoinder is the realization that intense versions of realism make it extremely difficult to understand what the law is according to the decision of a judge regarding a certain case (Tamanaha, 2009). The point of hard law, i.e. determinates legal rules that draw comparatively “bright lines”, is that they give certainty, stability and logic to the law. Purposes present less guidance, and there is a possibility of various judges having different views concerning what the true objective of the rule might be (Tamanaha, 2009). These two points of views are at conflicting ends of the legal scale; in one perspective, with legal realism, there are ...Show more

Summary

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)…
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