Academic

Alberstein on Measuring Legal Formalism

By Lawrence Solum

Michal Alberstein (Bar-Ilan University - Faculty of Law) has posted Measures of Legal Formalism on SSRN. Here is the abstract:

The formality of modern law is a constitutive element in its operation, but the "revolt against formalism" and the charge of mechanical jurisprudence are also as old as the law. This article focuses on formalism in legal decision making in hard cases and assumes that contemporary decision making in law combines formalistic with non-formalistic expressions as part of its routine operation. The research aims at developing a sensitive multidimensional measure that will be used to evaluate legal texts by examining various vectors of formalism. It begins by exploring diverse jurisrpudential cultures of formalism which have developed mainly in American legal thought. The paper continues to propose and examine the following parameters: (1) the introduction and framing of the legal question; (2) the use of extra-legal arguments; (3) reliance on policy arguments and on legal principles; (4) reference to discretion and choice; (5) the relationship between what is presented as facts and what is presented as norms; (6) preservation of traditional boundaries in law; (7) the use of professional judicial rhetoric; (8) judicial stability and reference to the gap between law in the books and law in action. Each of these parameters can be used to evaluate the level of formalism in a concrete text. The interplay between diverse evaluations of the same case is a subject for inquiry and contemplation. These parameters can also be redefined as variables for a quantitative content analysis, and legal decisions can be coded accordingly. This will enable an analysis of differences between justices, legal issues, legal jurisdictions and timeframes, as well as the correlation between the various parameters of formalism. The tendency to formalism, according to the analysis here, is never pure, and is part of a complex legal culture that usually combines formalistic elements with non-formalistic ones.

Highly recommended.

Full post as published by Legal Theory Blog on March 23, 2009 (boomark / email).