Formalisms of Law: The Fluctuating Paths of Legal Rhetoric

51 Pages Posted: 24 Feb 2017  

Michal Alberstein

Bar-Ilan University - Faculty of Law

Limor Gabay-Egozi

Bar-Ilan University - Faculty of Social Sciences

Bryna Bogoch

Bar-Ilan University - Interdisciplinary Department of Social Studies

Date Written: December 2016

Abstract

This paper deconstructs the debate on Legal Formalism by detailing the claims and counter-claims about formalism in the law, and empirically examines formalistic and anti-formalistic tendencies in legal decisions of the Israeli Supreme Court over time A binary code of 31 questions that tapped the parameters of formalism debated in legal literature provided the basis for a content analysis of 2,086 Supreme Court opinions. Despite claims that there had been a movement away from formalism in Israeli law, and the critique against formalism in general legal writing, we found that on most measures, the rhetoric of legal decisions remained formalistic. However, we also found that the various measures of formalism followed diverse patterns and did not change in the same direction over time. The most significant decline in formalism appeared in the use of the language of policy and principles, as well as in reference to judicial discretion and choice. We suggest that these changes can be interpreted as the emergence of a new phase of formalism which we term “Stage II Formalism,” that reconstructs formalism to incorporate policy and discretion into the formal legal realm.

Keywords: Formalism, jurisprudence, empirical legal studies, legal rhetoric

Suggested Citation

Alberstein, Michal and Gabay-Egozi, Limor and Bogoch, Bryna, Formalisms of Law: The Fluctuating Paths of Legal Rhetoric (December 2016). Available at SSRN: https://ssrn.com/abstract=2921892 or http://dx.doi.org/10.2139/ssrn.2921892

Michal Alberstein (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan 52900, 52900
Israel

Limor Gabay-Egozi

Bar-Ilan University - Faculty of Social Sciences ( email )

Ramat-Gan, 52900
Israel

Bryna Bogoch

Bar-Ilan University - Interdisciplinary Department of Social Studies ( email )

School of Communication, Bar Ilan University
Ramat Gan, 52900
Israel

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