
Contents
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I. What is Formalism? I. What is Formalism?
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II. The Four Stages of the Debate on Formalism II. The Four Stages of the Debate on Formalism
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1. Anti-formalism as a Crisis of the Kantian Systematic Ideal (1803–40) 1. Anti-formalism as a Crisis of the Kantian Systematic Ideal (1803–40)
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2. ‘Formalism of Will’ (1865)—Anti-Formalism as a Crisis of Private Law 2. ‘Formalism of Will’ (1865)—Anti-Formalism as a Crisis of Private Law
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3. The ‘Jurisprudence of Concepts’—Anti-Formalism as a Rejection of Legal Doctrine and a Return to ‘Life’ 3. The ‘Jurisprudence of Concepts’—Anti-Formalism as a Rejection of Legal Doctrine and a Return to ‘Life’
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4. Natural Law—Anti-Formalism and Anti-Democratic Thought 4. Natural Law—Anti-Formalism and Anti-Democratic Thought
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III. Conclusion III. Conclusion
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Recommended Reading Recommended Reading
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40 Legal Formalism and its Critics
Get accessHans-Peter Haferkamp is Professor of Private Law and Legal History at the University of Cologne. His research focuses on the history of legal science in the nineteenth and twentieth centuries.
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Published:08 August 2018
Cite
Abstract
Formalism is something bad. No one has ever referred to himself or herself as a formalist. Formalism amounts to an accusation and is an expression of anti-formalism. Formalists are portrayed as defending one-sided, often farcical views. Up to this day, this impedes access to the world these formalists inhabited, who actually thought on a more nuanced level than their critics. On top of that, formalism has always been used as a vague, polemic catchphrase, to describe a large number of different problems in a variety of contexts. In order to understand formalism, one must unravel these strands of discourse again. Four problem areas are distinguished on a historical level: anti-formalism as (1) a criticism of logical classifications of the positive law; (2) a criticism of the individualism of private law; (3) a criticism of a jurisprudence and judiciary considered to be out of touch with the world, as well as; (4) a criticism of the model of the separation of powers and the disregard for natural law.
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