The Study of Formal Aspects of Law
A legal system is a set of rules that express rights, duties, and remedies. This system primarily expresses the rules that govern citizens and their behaviour. It discloses these rules in advance and is accessible to citizens of a codified jurisdiction. However, a law can also leave voids which can be filled by equity, general principles, and the spirit of law.
Principles of the Rule of Law
The rule of law is the process by which the law is applied to a situation. It is a way to ensure that laws are applied unbiasedly and fairly. It is also important that these laws are enforceable. Historically, the rule of law has been rooted in the ideas of judicial independence and the separation of powers. These principles are linked to the principle of separation of powers, which is justified by the unhealthy concentration of power in societies and by the distinct significance of the different stages involved in making and applying laws.
However, many critics of formal rule of law have noted that too much emphasis on the legal process may produce vices. For example, exaggerated legalism can lead to the neglect of political aspects of legal conflicts. Furthermore, an over-reliance on the rule of law can prevent independent social assessments of proposed policies. Moreover, the official mandate of blindness can legitimize actions performed “according to the law” even if they are in opposition to public opinion.
The study of formal aspects of law is a relatively new area of study within legal theory, and it focuses on the characteristics and features of law in a society. It has attracted particular interest from scholars in legal philosophy, legal theory, and legal informatics. Regardless of the field, it aims to make the application of the law more practical and efficient. For example, it can help to clarify the practical effects of proposed legislation, or it can help to clarify the legal spirit of a particular society.
In a 1988 law review article titled “Formalism,” Frederick Schauer, a professor at the University of Virginia School of Law, calls on scholars to rethink their contemporary aversion to formalism. He claims that formalism should be conceptually rethought because it can be an effective tool for limiting power.
In any legal system, there are two parts – the substantive and the procedural. The former relates to the ‘what’ of law, such as which rights and responsibilities are conferred or changed. The latter refers to the methods used by which the legislation is applied and enforced.