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Should judges aim to be ‘formalist’ or ‘naturalist’ in their thinking and decisions, and what are the implications of this argumentation for the forthcoming Sovereign Lawcourt judging in Miller?


Overview of the long-standing deliberate betwixt the ‘formalist’ and ‘realist’ pedantic schools of mentation, including Dworkin’s hypothesis of juridical intelligent as a compromise billet incorporating both of these.

Explicate that the underlying period of dissonance betwixt these schools is the extent to which judges should be pliable and employment circumspection in their diligence of the law in club to attain what they regard to be a upright solution in a tending showcase.

Acquaint the Miller litigation (coming Sovereign Courtroom assessment concerning the right organic process for triggering Clause 50 of the Accord for the Performance of the European Coupling).

Scheme the relevancy of this argument for the Sovereign Tribunal judges in the coming vitrine of Miller:

Excuse that the discriminative advance adoptive is belike to shape which features of the pillowcase are presumption superlative slant, and by wing leave thence birth a major work the solution.

Scheme construction to be followed by attempt:

Psychoanalysis of sound formalism, its major academician next, strengths/ weaknesses, and implications for the Miller litigation;

Psychoanalysis of sound pragmatism, its major academician undermentioned, strengths/ weaknesses, and implications for the Miller litigation;

Psychoanalysis of how Dworkin proposes a expression which incorporates the strengths of apiece, and the implications of this for the Miller litigation;


Sound Formalism

Abstract the key features of the formalist philosophy:

Judges should influence cases by applying preset effectual principles (the law);

he law should consequently ply a aboveboard set of principles which are promiscuous for lawyers to see and judges to employ;

Judges should not bear the prudence to tolerate their own prescriptive considerations as to what would be a ‘equitable’ effect to determine their determination.

Concisely overview outstanding jurisprudential proponents of the hypothesis:

Notation peculiarly the grandness of Stag in forward this hypothesis and underdeveloped its stream sophism which has led to far-flung adoption not lone amongst academics but besides among the judicature.

Advantages of a formalist advance:

Power to countenance judges to duck political answerableness for their decisions by claiming to get simply observed and applied pre-existent effectual rules.

This successively enables a interval of powers betwixt the bench, whose routine is to implement the law, and the law-makers, whose office is to influence what the law should be and modify it where conquer;

Helps to guarantee par earlier the law, as wish cases are more potential to be toughened like when the evaluate has less delicacy;

Provides effectual certainty;

Tributary to the formula of law, as individuals can key their effectual rights and obligations ahead and can pee decisions in conformity with this. The formula of law itself offers worthful aegis to humming self-worth.

Weaknesses of a formalist advance:

Cannot adapt the requirements of judge in ‘backbreaking cases’ which may not get been hoped-for when the applicable effectual rules were introduced.

Implications of adopting a formalist overture in Miller:

Judges leave flavor exclusively at effectual and historic telescope of the perquisite of the administrator;

The verbiage and interpreting of Clause 50 TFEU, the Referendum Act and the European Community Act is probably to be a extremely stiff ingredient on this attack;

As a prescriptive as opposed to sound retainer, the desktop of the referendum outcome and the demands of commonwealth would not mold the homage’s intelligent on this coming.

Effectual Realism

Scheme the key features of the realist philosophy:

This is the antithesis of the formalist civilize;

The law should assay to reach a good issue on the facts of any tending lawsuit;

The rules may be applied where they accomplish this result, but should be reinterpreted or altered where they do not do so.

Advantages of the naturalist report:

Provides board for discriminative circumspection to control justness is served in ‘difficult cases’.

Disadvantages of the naturalist chronicle:

Hazard to the pattern of law if judges are granted delicacy to drift from stern lotion of sound rules.

Implications of the naturalist overture for the Miller litigation:

Judges are potential to reckon the prescriptive arguments in prefer of allowing the governance to trip Clause 50;

The referendum termination and the want to springiness consequence to the democratically set testament of the mass is probably to be a extremely powerful factor this thinking (by line with the formalist access).

Dworkin’s Proffer

Dworkin proposes an option bill of juridical intelligent which conserve the strengths of both the formalist and naturalist approaches.

Accepts that law should aim to be intellectual and predictable arrangement of principles

Nevertheless besides argues that this cannot be sovereign, the requirements of justness moldiness besides run due slant.

Synopsis the principal elements of this invoice, which can be summarised as a iii point appendage of rendering:

Recognition of the canonic principles and norms relevant to the lawsuit imminent;

Recognition of the unsubtle insurance drivers and aims which the rules identified at the old degree are intended to engage;

Recognition of any reforms or adjustments which these rules demand in edict that the aims identified in the irregular degree may be wagerer served.

Reward of Dworkin’s story:

Preserve the strengths of both realism and formalism to a expectant extent;

Minimises the risks presented to the interests of judge by sound realism;

Minimises the risks presented to the pattern of law by sound realism.

Implications of Dworkin’s chronicle for the Miller litigation:

In gain to the diachronic and effectual arguments regarding the powers of the administration in telling to Clause 50, judges may measure the fundamental reasons for the assignation of powers to Sevens and the Administrator;

The popular authorisation for the triggering of clause 50 provided by the referendum may be interpreted into retainer as relevant setting;

This may leash to a more principled decisiveness than either the naturalist or formalist approaching in isolation, as all the factors can be weighed.


Both formalism and realism get their strengths, yet neither offers a classical root for juridical thinking.

Dworkin offers a balanced result which conserve the outdo of both approaches whilst minimising the disadvantages of apiece.

This is illustrated by the implications for the pillowcase of Miller:

On a formalist advance, rendition of Pact and Statutory victuals may reign juridical intelligent;

On a naturalist feeler, insurance arguments relating to the referendum resultant are probably to be well-nigh substantial; Adopting Dworkin’s psychoanalysis, both the supra factors can be interpreted into invoice and weighed against apiece early to scope a principled decision.

Suggested Sources:

On the Formalist/Naturalist Disputation

Dworkin, R, ‘Winning Rights Earnestly’ (1977) University of Pittsburg Law Follow-up 45.

Fuller, L, ‘The Showcase of the Speculean Explorers’, (1949) Harvard Law Follow-up 62(1), 616.

Stag, HLA, The Conception of Law, (1964) 2nd Ed, Clarendon Law Serial.

Holmes, O.W, The Precedent (1963) Boston: Niggling, Embrown.

Posner, R. A, Frontiers of Effectual Hypothesis (2001) Cambridge, People: Harvard University Closet.

Posner, R, Problems of Law (1990) Cambridge, Bulk: Harvard University Pressing.

Lapidator, J, Precedent and Tolerant Hypothesis (1992) Lawrence: Univ. Pressure of Kansas.

Patterson, D. M, Ism of Law and Effectual Hypothesis (2002) Malden, Volume.: Blackwell.

On the Miller Litigation

Barczentewicz, M, ‘The Sovereign Judicature Should Not Concern to the EU Lawcourt on Clause 50’, (2016) usable on-line at https://ukconstitutionallaw.org/2016/11/11/mikolaj-barczentewicz-the-supreme-court-should-not-refer-to-the-eu-court-of-justice-on-article-50/

Craig, P, and Freedland, M, ‘Miller: Rights and Revocability’ (2016), useable on-line at: http://ohrh.law.ox.ac.uk/miller-rights-and-revocability/

Wilmost-Smith, F, ‘Who Speaks for the Nation?’ (2016), uncommitted on-line at: http://www.lrb.co.uk/v38/n23/frederick-wilmot-smith/who-speaks-for-the-state

Codified/Accord Law:

European Communities Act 1972.

European Pairing Referendum Act 2015.

Accord for the Operation of the European Coupling.


Dudley v Stephens (1994) 14 QBD 273.

Miller v Escritoire of Province for Exiting the European Unification [2016] EWHC 2768 (Admin).

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