Legality, legitimacy and the politics of informalism

The formalism-informalism debate is never far from the concerns of legal scholars. Formalism, in particular, has come in for severe criticism from waves of recent legal scholarship. Critical scholars have joined the long line of opponents. It is not always clear what is meant by formalism when it is used. There are generally two broad strands to critical argument. The first stresses the impact which formalism (usually termed ‘legalism’ for these purposes) has on societal relations. Here formalism is used pejoratively as the cause of major problems in modem society. The problems identified are familiar ones: Selfishness; atomism; and individualism. The second strand is sceptical of the argument that there could ever be an escape from ‘the political’. The argument here is that there is no ‘other worldly’ and detached position for formalism to place a foothold in. Formalism is thus cast as an attempt to mask the political nature of the legal enterprise. This is often directed against liberalism, with the argument that it is a political theory which tries to disguise its own politics and which attempts to de-politicize social life. Formalists are thus involved, it is claimed, in an exercise in denial. These critical arguments have provoked a mixed response, examined in more detail below.