Ernest J. Weinrib’s Legal Formalism and the Philosophies of Aristotle, Kant and Hegel

Dr Burns, University of Nottingham

Abstract

This paper may be seen as a contribution to a symposium on the legal theory of Hegel which was first published in Cardozo Law Review in 1988-89: 10 Cardozo L. Rev. (1988-89). (Hegel and Legal Theory Symposium, I). It presents a critique of the doctrine of ‘legal formalism,’ as this is presented in the writings of Ernest J. Weinrib. Weinrib associates legal formalism with the legal philosophies of Aristotle, Kant and Hegel. So far as Aristotle is concerned, the paper argues that Weinrib is wrong to argue that Aristotle is a forerunner of the legal philosophy of Kant or of contemporary ‘neo-Kantian liberalism.’ In order to evaluate the claims made in this area, the paper examines the debate between Weinrib and Steven J. Heyman over the interpretation of Aristotle’s philosophy of law in general, and his views on corrective justice in particular. It is argued that neither Weinrib’s ‘neo-Kantian’ reading nor Heyman’s ‘communitarian’ reading adequately captures the complexity of Aristotle’s views on law, but that they might be combined so as to form a third view which does so.

So far as the philosophies of Kant and Hegel are concerned, it is argued that Weinrib is more interested in the similarities between the views of these two thinkers than he is in the differences. The paper argues that there are problems with this because the views of Kant and Hegel differ fundamentally with respect to some issues. The paper argues that although there are times when Weinrib associates legal formalism with the philosophy of Kant, and evidently thinks of it as being a ‘neo-Kantian’ project, nevertheless there are also times when he identifies legal formalism with the view of law expressed by Hegel in his Philosophy of Right. The paper argues that this leads to a mis-reading of the Hegel precisely because it does not attach sufficient importance to the differences which exist between his legal theory and that of Kant.