Legal Considerations And Legal Law Essay

2243 WordsOct 6, 20169 Pages
1 Introduction Legal formalism has been largely criticised by the likes of legal realists and critical legal studies scholars, amid others who believed that the reactions of the judge to the facts and to the life around them needed to be attended to, for its belief in the capacity of legal rules to determine the results of legal arguments without having recourse to the judge’s political beliefs or sense of fairness. This criticism can be found to be viable or not by analysing what legal formalism as an approach to legal practice and judicial decisions is, whether the criticisms, created by legal realists and critical legal studies students, of legal formalism are justified and whether judicial decisions and legal education are still influenced by legal formalism today in South Africa. 2 Legal formalism Legal formalism is a legal theory which believes that the law is to be determined rationally. It is a theory that is important when looking as various aspects of South African law. This approach is both literalist and formalist at the same time. A legal formalist belief in the determinacy of legal rules sees judges deciding cases on the basis of distinctively legal rules, uninfluenced by political or policy considerations. Legal formalism is a theory with which lawyers and judges see the law as autonomous, comprehensive, logically ordered, and determinate and believe that judges should engage in pure mechanical conclusion from this body of law to produce a single correct
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