Political ideology also played a role in the formalist revival. Some (but not all) formalists are particularly troubled by the results of the Warren and Burger courts in important constitutional cases such as Roe v. Wade. Some of these critics may view legal formalism as a legal philosophy that can rationalize the dismantling of these controversial precedents. Modern American legal thought began in 1870. That year, Holmes, the father of the American legal realist movement, wrote his first major essay for the American Law Review, and Christopher Columbus Langdell, the father of American legal formalism, joined Harvard Law School. To that end, I will first address the implications of the recognition of different types of legislative acts in relation to the question of whether the right is modal or functional. Secondly, I wonder why the analysis of the legal form should focus on legislative acts and why these actions vary. After explaining how Fuller`s list can be understood in terms of conditions for the success of commands in the theory of the act of speech, I list the conditions for the success of judicial legislative acts by comparing judicial legislation and legislation. In Section 2A, I discuss the nature of the formal requirement with respect to the terms of the legislation. In Section 2B, I present a new explanatory framework focusing on legislative acts by showing that the currently widely accepted set of rule of law requirements is best understood as a list of conditions for the success of Parliament`s legislative acts and the characteristics of the law postulated by their success. Section 3A examines the extension of the current set of requirements in the light of legal acts.
In section 3B, I propose a model, which I call “legal formalism”, which integrates judicial legislative acts into the legal modality. Section 2C lists specific additions to the list of elements required by legal formalism by examining the conditions for the success of legislative acts of the courts. Jeremy Bentham and Lon Fuller have also significantly influenced legal formalism by presenting their views on theories of jurisprudence. Bentham has always been committed to ensuring that judges meet the expectations of citizens. He wanted to reduce the role of judges in the application of prima facie and statutory legislation, while resolving a case without regard to other legal factors. He believed that this could be achieved through proposals to amend the legislative code.  The ability of auditors to do what they are told requires command to be forward-looking and consistent. When in command, the speaker must assume this capacity of the listeners. Suppose an authority orders people not to sunbathe last Sunday. In this case, it cannot be said that the commander presupposed the ability of the listeners, because, of course, people cannot change their previous behavior. Therefore, this command fails. Foresight is a substantive propositional condition of an order.23 Albert Venn Diey`s understanding of the rule of law illustrates the modality of law postulated by court actions.
Dicey mentions three requirements: the absence of arbitrary power; Equality; and judicial decisions in certain cases leading to judicial justice. Kelsen argues that judicial decisions create individual standards.67 Dicey mentions judicial decisions that enable enforcement. According to Dicey, the Constitution of the United Kingdom is characterized by the “inseparable link between the means of enforcing a right and the right to enforce”.68 The Constitution of the United Kingdom “focuses intensely on the provision of remedies to enforce certain rights or .. to avoid obvious injustice”.69 For Dicey, remedying this is not a simple use of force. It is the act of a normative decision, which Dicey calls enforcement. This act – or, more accurately, the accumulation of these acts – is the very source of the common law. In Section 2A, I suggested that there are different ways to make the general rules understandable. In Section 2B, I discussed a way to achieve this through an explicit type of legislative act – ordinances – and listed the prerequisites for its success. In this section, I look at a different way of making laws. I propose that legal formalism explain the modality of law postulated by the successful implementation of legislative acts of the courts. In subsection A, I consider the extension of the list of formal requirements, taking into account the necessary conditions and characteristics postulated by well-ordered enforcement practices. To this end, subsection B defines the nature of the legislative acts of the courts.
In order to clarify the points that should be included in the list of formal requirements, I will deal in subsection C with the conditions for the success of acts of the courts. I argue that the legislative acts of the courts are indirect commissions – a kind of promise that is implicitly fulfilled. The different nature of the legislative acts of the courts from those of Parliament requires different conditions for their successful implementation, namely: the conferral of jurisdiction on the ordinary courts; maintaining full jurisdiction; and the power of their precedents. Legal formalism is both a descriptive theory and a normative theory about how judges should decide cases.  In their descriptive sense, formalists claim that judges make their decisions by applying undisputed principles to the facts; Formalists believe that there is a logic underlying the many legal principles that can underlie different cases. These principles, they argue, are simple and can be easily discovered by anyone with some degree of legal expertise. The ultimate purpose of this type of formalism would be to describe the underlying principles in a single, specific system that could be applied mechanically – hence the term “mechanical jurisprudence”. The antithesis of formalism is legal realism, which is considered “perhaps the most widespread and accepted theory about how judges arrive at legal decisions.”  I submit that indirect commissions made by the courts are essentially indirect declarations, in the sense that they can only be made indirectly through the attribution of rights in individual cases. In this sense, I agree with Timothy Endicott`s argument that court legislation is essentially “incidental”.81 Imagine, for example, that the courts make a promise about what they will decide in the future, but that promise is irrelevant or contradicts the attribution they are making in the case before them.
Auditors will not then consider the promise of the courts to be as important as if it were made by attribution. Or it could be better explained that the real reason for our expectation of stare decisis is the capacity and sincerity of the courts, which are demonstrated in their allocation in each case. The refusal to attribute a certain deontic status to a person in a particular case is self-destructive with respect to the indirect obligation to attribute the same type of deontic status in similar future cases. As I will explain in subsection C below, commissive acts require that the speaker be capable of performing the act to which he or she has undertaken. In other words, indirect acts committed by the courts must each be performed by means of ascriptive acts. Legal formalism, also known as conceptualism, treats law as a mathematics or science. Formalists believe that, in the same way that a mathematician or scientist identifies relevant axioms, applies them to given data, and consistently arrives at a provable theorem, a judge identifies the relevant legal principles, applies them to the facts of a case, and logically derives a rule governing the outcome of a dispute. Judges derive relevant legal principles from a variety of sources of legal authority, including state and federal constitutions, statutes, regulations, and jurisprudence. The American case of Palsgraf v.
Long Island Railroad  was marked as the first criticism related to formalism. The defendant helped the consumer lift a fragile package that could explode. Due to the defendant`s negligence, the package fell and exploded, causing injury to the plaintiff. The explosion caused injury to the plaintiff, the confusion was whether the defendant should be held liable for all damages and damages caused by the explosion and the defendant`s negligence. Four law schools have attempted to answer these questions: formalism suggests that law is a science; Realism says that law is just another name for politics; Positivism suggests that the law should be limited to written rules and regulations issued or recognized by the government; And naturalism claims that law must reflect the eternal principles of justice and morality that exist independently of state recognition.