2023-06-26 00:01:53
Legal formalism can be considered as a Science of Law, normativism, in which the dogmatic construction of the investigation has as its purpose neither the causal explanation nor the teleological justification of an institute, but the determination of its normative structure. The purpose of the institution or legal category or cause should disappear from legal research, to focus on the normative structure.
Legal science, from this perspective, is an eminently formal science. That is to say, it does not have as its object any fact of the physical world or its explanation, it only takes them into account for its normative qualification and its imbrication in the construction of the legal system. In this sense, the Law would be a set of normative qualifications of behaviors where the function of the scientific investigation of the Law is resolved in a redirection of the behaviors within the structure of the Law, as well as in a continuous constitution and reconstitution of that same structure. .
Legal formalism also refers to interpretation, to a theory of legal interpretation that attributes to the interpreter a rather declarative function of existing law, compared to those who give preference to the investigation of social purposes and interests. Within this framework is the so-called jurisprudence of concepts, by virtue of which the systematic and logical hermeneutics prevails over the historical and finalist interpretation. The Judge is nothing more than a mere declaimer of the norm, while, for the so-called jurisprudence of interests, of sociological base, the Judge, in addition, and, above all, has a creative power of Law. In this case, the Judge displays an interpretation in which elements such as equity, legal effectiveness, social reality, the political situation or economic circumstances are considered. Hence, both one and the other current; one being based on the form as the permanent and the other, on the material, as the only relevant thing, they can give rise to problematic situations.
Also from this perspective, of course, the thesis of complementarity and, in any case, of form as a means for justice, is probably the best solution, thus avoiding maximalism and disproportionate theories. The form, or is the means of expression of the values of the rule of law, or becomes, as history attests, its main enemy.
#Formalism #science #law #interpretation