At Legal Theory Blog, Larry Solum's Legal Theory Lexicon considers Formalism and Intrumentalism. On formalism and originalism he says:
[T]he core of legal formalism entails a commitment to a set of ideas that more or less includes the following:
1. The law consists (at least in part) of rules that are derived from the linguistic meaning (or communicative content) of authoritative legal texts.
2. Legal rules can be applied to particular facts.
3. Some actions accord with meaningful legal rules; other actions do not.
4. The standard for what constitutes following a rule (or not) can be publicly knowable and the focus of intersubjective agreement.
Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute. Of course, plain-meaning theories of statutory interpretation could (and should) adopt the originalist thesis that "meaning" (or "plain meaning") is fixed at the time the text is drafted and promulgated.
Posted at 6:31 AM