Formalism and pragmatism

Readers of Richard A Posner's "The Principles of Jurisprudence" (1990, Harvard University Press) will be well acquainted with his criticism of legal formalism. Essentially, formalism regards the law as containing answers to all the problems it will encounter, whereas pragmatism recognises that judges have to look outside the law for just solutions to legal problems.
One might ask, is Shaheed formalist or pragmatic? It is criticised by those who would wish the issue of admissibility of evidence obtained through a breach of the accused's rights to be determined by application of rules. An appropriate rule, they argue, would be that evidence obtained in breach of the accused's rights is inadmissible. Plainly, such arguments suppose the law to be formalist. If, therefore, Shaheed itself is formalist, there appears to be a contradiction in its critics' arguments. They cannot criticise it for not being what it is.
The ultimate question pursuant to Shaheed is whether exclusion of the evidence would be a proportionate response to the breach of rights through which it was obtained. This amounts to weighing the seriousness of the alleged offending against the seriousness of the wrong suffered by the accused. We therefore have to decide whether these matters are best assessed in formalist, or in pragmatic, terms.
The seriousness of the alleged offending is precedent-determined in the light of the legislation creating the offence and the penalty. Precedents for sentencing incorporate the relevant policy considerations. In the absence of precedent as a guide to the seriousness of the offence, courts would be guided by the maximum penalty and the legislation relating to sentencing. In other words, the answer to assessing the seriousness of the offence lies within the bounds of the law: it is a formalist issue.
The seriousness of the wrong done to the accused is also precedent-determined. This is because a large body of case law has developed around the consequences of wrongful conduct of the authorities in the obtaining of evidence, both before and after the enactment of the New Zealand Bill of Rights Act 1990. The importance of the infringed right is determined in formalist terms.
It may be, that in the absence of any precedent or principles in the common law, the courts will have to take a more pragmatic approach to the assessment of this balance, but once that is done in a new case, the requirements of stare decisis dictate that formalism will become the appropriate approach to similar subsequent cases. Precedent requires that the application of Shaheed rapidly becomes formalised.
Critics of Shaheed who, rightly - although Posner would disagree - reject pragmatism, and who insist on formalism, should agree with Shaheed. What they really object to is judicial discretion. They fear arbitrariness. However, discretion in the context of formalism is not lawlessness. The Supreme Court of the United States has recently, in Hamdi v Rumsfeld (see last blog), taken a formalist stand, upholding fundamental legal values in the face of the exigencies of present times.