Home Is Where The Heart Dwells

(Quote fromDuncan Kennedy’s defination of legal formalism)

The modern usages of the word (formalism) derive from the work of leading legal theorists of the late nineteenth and early twentieth centuries who were much concerned with two historical phenomena that play little role in the late twentieth-century discussion. One of these was `primitive formalism,’ meaning the practice of deciding disputes through devices such as oracles and trial by battle, regarded as `irrational.’ The other was the ancient Roman and medieval English system of `formulary justice’ or `strict law,’ in which a claimant could get redress through the legal system only by fitting his case into a closed class of `actions.’
No overarching principles were available, at least according to the theory, to deal with cases that fell outside the class, but within generally held ideas of moral responsibility. Modern law, in the nineteenthcentury view, was characterized by its movement beyond both primitive formalism and formulary justice, but had to find a way to preserve some of the virtues of these earlier systems. (Maine 1917, von Jhering 1869, Holmes 1881, Pollock and Maitland 1898, Weber 1954).