Pluralism and Deformalisation as Mechanisms in the Achievement of More Equitable and Just Outcomes – the Move from „Classical Formalism“ to Deformalisation.

Abstract

By tracing the development and evolvement of certain legal theories over the centuries, as well as consequences emanating from such developments, this paper highlights how and why a shift from the model of „classical formalism“ towards more deformalised models has arisen. The paper also illustrates how deformalisation and „a corresponding loss of certainty“ could be harnessed in order to provide for greater „realism“ and externalities, whilst still attaining a respectable level of consistency. Developments and efforts aimed at exploring the applicability of classical formalism and deformalised models should be regarded as „an endeavour to establish a consistency of terms, as well as a probing into how far principles, notions, and rules for decision making can be generalised, and rectification when generalisations have gone too far.“ Unity, as well as „a common law of mankind“ are goals which are still capable of being achieved even where fragmentation, diversification and pluralisation of the law occur. Such processes of specialisation, where correspondingly countered by the appropriate level of generality as well as the ability to apply rules – such that they are consistently applied in similar situations, are capable of achieving more equitable, just and unifying goals as opposed to a model which merely strives for the achievement of legal certainty. Looking beyond the borders of legal theory may indeed provide the much needed redress in situations where generalisations exceed the required limits