The Importance of Not Being Ernest

Abstract

Formalists have long tried to develop a legal theory, based on the internal rationality of law, which would free it from the influences of instrumentality and ideology. Focussing on the philosophical proposals of Ernest Weinrib, the author argues that this goal is both illusory and undesirable. Weinrib's theory assumes rather than proves the existence of this rationality, which is simply defined as an interrelationship between form and content. In order to maintain the coherence of this fragile relationship, Weinrib is either forced to articulate his theory on such a level of abstration so as to be irrelevant or to reintroduce the values he has tried to exclude. As a result, his theory is ultimately reliant on an ideology which, disguised in the formal equality of corrective justice, defends a notion of abstract rationality at the expense of political and social responsibility. Moreover, that hidden ideology is of a markedly conservative tilt.