On Formalism and Anti-formalism in Theory of Law
Abstract
The author reviews the characteristics of formalist and anti-formalist perspectives that inform judicial decisions. He disapproves the acritical propensity to associate formalism and positivism. Iusmoralist thinkers such as Dworkin and Alexy, and the followers of neoconstitutionalism, are also the victims of the formalist influence as well as the metaphysic positivist jurists of the 19th century. Therefore it is necessary to acknowledge that Law is expressed through certain statements invested with official authority by legal sources. Judges’ decisions based on Law must be adopted in accordance with normative statements. Taking into account these circumstances positivist thinkers assume that judicial discretion is unavoidable.
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