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Title: The revival of legal formalism
Author: Chuang, S.-T.
Awarding Body: University of Cambridge
Current Institution: University of Cambridge
Date of Award: 1997
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Abstract:
After the general introduction offered in chapter one, chapters two and three discuss two theories of positivistic legal formalism: Frederick Schauer's presumptive positivism (formalism) and Patrick Atiyah's and Robert Summer's formal theory of legal reasoning. Chapters four and five examine the idealistic legal formalism of Ernest Weinrib's private law theory and Ronald Dworkin's interpretive jurisprudence. I show that positivistic legal formalism is closely associated with legal positivism whereas idealistic legal formalism is linked with natural law theory. In the final chapter, I argue that both positivistic and idealistic legal formalists support the autonomy thesis and the rule of law thesis. The autonomy thesis defends law's autonomy from political considerations. The rule of law thesis claims that rule by law, not by men, is general, public, and impersonal. Positivistic legal formalism insists that the autonomous domain of law derives from the existence of source-based rules, rules which treat the rule of law as a neutral process for protecting the autonomy of human freedom and values. Idealistic legal formalism maintains that the autonomy of law derives from the inner morality of law, according to which the rule of law is a substantive idea. It is the aim of this thesis to demonstrate that the autonomy and the rule of law theses that contemporary legal formalism upholds are contradictory premises. The autonomy of law thesis endorses the argument that law thesis endorses the argument that law has its own independent territory, strictly divorced from politics. On the other hand, the rule of law thesis entails a political view about the relationship between government and citizens. A positivistic, procedural concept of the rule of law depends on a Hobbesean theory of positivist social-contract. Likewise, an idealistic, substantive concept of the rule of law relies on a Lockean natural law version of a social contract. Law and adjudication, understood in this way, cannot be politically neutral.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID: uk.bl.ethos.597685  DOI: Not available
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