Formalisms of Law: The Fluctuating Paths of Legal Rhetoric

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.