Formalism, Legality, and the Rule of Law
Document Type
Book Chapter
Publication Date
2024
Abstract
Chapter 9
This chapter examines the relationship between formalist interpretive methodology and ideals of legality and the rule of law. In other work, I have argued that the structural formality of law and deliberatively formalistic legal reasoning are closely associated with legality and the rule of law. Here, I make the case that association is both conceptual and normative. The very ideas of legality and of the rule of law are such as to imply the formality of law and the necessity of deliberatively formalistic engagement with the guidance it supplies. In turn, a limited set of values that belong per se to legality and the rule of law attach by implication to legal form and legal formalism. Should a case need to be made for the law’s reliance on form, for its expectation of deliberative formalism, and/or for sophisticated scholarly formalism, one can build it through appeal to the values advanced by the achievement of legality in comportment with rule of law baselines.
Recommended Citation
Miller, Paul, "Formalism, Legality, and the Rule of Law" (2024). Book Chapters. 64.
https://scholarship.law.nd.edu/book_chapters/64
Publication Information
in Methodology in Private Law Theory 205 (Thilo Kuntz and Paul B. Miller eds., 2024).
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