It's Almost Time...

I appreciate that it has been some time since last I made a post and to be honest it's entirely my own fault.  I've been working my butt off trying to get my first chapter...or rather technically second chapter completed and I guess this is more an update than a proper post.  I do promise a proper full length post on my dear A.C.D at some point in the near future.  

 I decided against writing my first chapter for a myriad of reasons but really it's because I felt that it would be easiest to write at the end of this process since it sort of chronicles the entirety of the Victorian period rather than a distinct idea as the rest of the chapters.  So the second chapter it was! It is an examination of the expression legal procedural ideologies in 3 Victorian novels.  I was a little iffy on it at the start but it really gathered pace and I think is a long over looked reading of the Victorian novel. 

The Chapter's title is an adaptive process, since the thrust of the argument has developed as I wrote it the original title of 'A Trying Situation: The Writer and the Legislative Process' no longer applies and I am searching for a new one -although it is proving more elusive than originally anticipated. 

 

To say that I was nervous about feedback was something of an understatement, I've been climbing the walls for three days over it, waiting for someone to tell me it's terrible that I really need to reconsider my life choices and that KFC is still hiring.  In the end however, it was no where near as bad as anticipated, in fact, it was really rather affirming, with my supervisor, who is a George Eliot specialist telling me that he found my argument excellent and my topic 'brilliantly unique.' *cue excited blush*  From him, at least, it's high praise, a bit like Andrea Bochelli telling you that you can sing.   

My chapter in the end is 18,000 words in length, which seems over long as I intended to make each chapter between 10-12,000.  It seems overlong but I have assurances from my supervisor that there is nothing he would remove and that the length issue will sort itself out as I write other chapters, since there is room for cross over which will facilitate trimming the fat later. 

So my confirmation of registration Viva is in a few weeks, the 25th of be precise and while my feedback has calmed me somewhat I am still as nervous as heck about it.  I anticipate spending the next fortnight like a rabid dog, killing dead things and with rapidly diminishing sanity and patience.  In final news I got my studentship, 18k a year to help my research, including a fee waiver and a £1,000 budget for conferences and academic facilities I might need.  Very excited by that!

Formalism and Beyond

Well my viva is over and complete so now it is time to crack on with the ‘real’ work –and not be distracted by little random things like writing a paper on doctor who *shifty eyes* but in the mean time I’m beginning my work on Felix Holt The Radical, it was a late addition to the texts that I’ve decided to include in the thesis and as such I am scrambling to read the 676 page text and the other late addition, Lady Audley’s Secret, while trying to do the theoretical research for the paper, which is really BORING.  I should point out that anything I write here is not a sample of my work, it’s largely unedited and pretty slovenly in it’s style and grammar…don’t like it …don’t read.

Now we begin with legal formalism- with a vague sort of Victorian slant. 

Ninteenth century formalism was a system which was ‘procedurally formalist to the extent that it makes the success of a substantive legal claim depend on following procedural rules (Schauer 1988).  This drew is primary legal principles from what is now known as primitive formalism was the practice of deciding the outcome of disputes through the use of oracles or through trial by battle, which, for obvious reasons, became regarded as irrational. 

            

This primitive formalism, is set in opposition to the Roman legal system of ‘strict law’, which was transposed into the English legal system in the medieval period in the form of ‘formulary law’ in which redress was only available if the case fell within a certain ‘class’ of cases.  It’s application in case law is closer to what we now considered as formulism.  

          

  It was not until the nineteenth century that ‘real’ legal formalism can be said to exist, as the century was marked by a movement beyond formulary justice but in a way that preserved the benefits of the previous systems.  The rise of legal formalism was complete by 1850, whereby the legal relationships seen as deriving from natural law and custom was supplanted by legal relationships forged through economic and political alliances, and substantive fairness, which was prevalent in eighteenth century legal discourse.  

            The idea of a paternalistic and regulative legal system, which extolled the legal obligations and moral sense of community was replaced by a system that was reflective of the power of economics and individual influence.  

            At it’s most basic level legal formalism is the degree to which the system is willing to sacrifice substantive justice (equity) in favour of a system which requires strict adherence to specific elements, that need to be in place before a case can be brought (von Jhering 1869) but is, by virtue of its construction, less irrational than the earlier Roman and Medieval structures.  

             Textual formalism is literalist in nature, whereby the meaning of an issue is not varied according to context.  The interpretation of legal cases in a formalistic manner requires that no reference or consideration be given to the intention or purpose of the parties and only the strict precedential or theoretical concepts that impact upon the case can be considered and applied in the decision making process.  

There are specific moral, political and practical considerations that impact upon the level of legal formalism that is applied within specific jurisdictions and while there is a valid argument for the application of a strictly formalistic approach to criminal justice, there is an even argument for a less formalistic approach on each counter point, the modern legal end-point would seem to be an ideal balance between the two, between moral justice and the principled application of legal process

Felix Holt and Formalism to follow....at some stage!

Citations and bibliography not posted but available on request.