Formalism and the Use of Legal Scholarship

The chapter assesses—and rejects—an association commonly made by comparative lawyers between “formalism” or “positivism,” on the one hand, and lack of judicial reference to legal scholarship, on the other. It is argued that formalism and positivism, understood as judicial attitudes denying the exercise of discretion or denying the judicial ability to shape the content of the law by means of the exercise of personal judgment, are not incompatible with the regular use of standard legal scholarship by judges. To use scholarship of the standard variety is to defer to experts. In some legal cultures it is to defer to scientists. Indeed, in hard cases, where mandatory sources of law issue unclear or incoherent prescriptions, scholarship may serve as a formalist judge’s last resort. Scholarship may be used to mitigate the impression that a judge is exercising discretion or relying on personal judgment. It follows that formalist judges have little reason to avoid scholarship; indeed they can use it (and indeed have used it) in their favor.