
Contents
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A. LEGAL FORMALISM A. LEGAL FORMALISM
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(a) The principles of legal formalism (a) The principles of legal formalism
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(i) The organization of legal norms into a system ruled by an inner logic (i) The organization of legal norms into a system ruled by an inner logic
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(ii) Law as an autonomous system: Detaching law from its normative and distributive dimensions (ii) Law as an autonomous system: Detaching law from its normative and distributive dimensions
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(iii) Limited creativity in judicial decision-making processes (iii) Limited creativity in judicial decision-making processes
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(iv) Certainty and planning ability as central goals of the legal system (iv) Certainty and planning ability as central goals of the legal system
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B. LEGAL FORMALISM IN ISRAELI LAW B. LEGAL FORMALISM IN ISRAELI LAW
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(a) Outline of the argument (a) Outline of the argument
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(b) Anglicization and formalism (b) Anglicization and formalism
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(c) Judicial reasoning in the 1950s (c) Judicial reasoning in the 1950s
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(i) Focus on language (i) Focus on language
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(ii) Belief in a strict division of powers between the Knesset and the Court (ii) Belief in a strict division of powers between the Knesset and the Court
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(iii) Administrative law: Dealing with authority rather than contents (iii) Administrative law: Dealing with authority rather than contents
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(iv) Stressing the division into legal categories (iv) Stressing the division into legal categories
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(v) Emphasis on the value of legal stability (v) Emphasis on the value of legal stability
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(vi) Meticulous reading of precedents (vi) Meticulous reading of precedents
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(c) Non-formalistic elements in the Court’s jurisprudence (c) Non-formalistic elements in the Court’s jurisprudence
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C. THE 1950S JURISPRUDENCE OF THE SUPREME COURT IN A CULTURAL CONTEXT C. THE 1950S JURISPRUDENCE OF THE SUPREME COURT IN A CULTURAL CONTEXT
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(a) The collectivism of the 1950s (a) The collectivism of the 1950s
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(b) Legal formalism and downplaying the gap between the legal culture and the general culture (b) Legal formalism and downplaying the gap between the legal culture and the general culture
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(c) The 1950s: A comparison between law and literature (c) The 1950s: A comparison between law and literature
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D. THE 1980S AND THE 1990S: THE DECLINE OF FORMALISM AND THE RISE OF VALUES IN ISRAELI LAW D. THE 1980S AND THE 1990S: THE DECLINE OF FORMALISM AND THE RISE OF VALUES IN ISRAELI LAW
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(a) Emphasizing the Court’s role in determining the normative contents of the law (a) Emphasizing the Court’s role in determining the normative contents of the law
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(b) Balancing clashing values (b) Balancing clashing values
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(c) The rise of purposive interpretation (c) The rise of purposive interpretation
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(d) Lessening the importance of the distinction between categories (d) Lessening the importance of the distinction between categories
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(e) A ‘jurisprudence of values’ instead of a ‘conceptual jurisprudence’ (e) A ‘jurisprudence of values’ instead of a ‘conceptual jurisprudence’
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(f) Emphasizing choice in judicial decision-making (f) Emphasizing choice in judicial decision-making
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(g) Emphasizing creativity in judicial decision-making (g) Emphasizing creativity in judicial decision-making
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E. CHANGES IN THE PERCEPTION OF THE COURT’S ROLE IN THE 1980S AND 1990S E. CHANGES IN THE PERCEPTION OF THE COURT’S ROLE IN THE 1980S AND 1990S
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CHAPTER 4 THE DECLINE OF FORMALISM AND THE RISE OF VALUES
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Published:January 2011
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Abstract
This chapter discusses two significant changes discernible in the jurisprudence of Israel's Supreme Court in the 1980s and 1990s. First, the canonical reasoning in the Court's opinions from the establishment of the State of Israel in 1948 until the 1980s was formalistic. Legal formalism enabled the Court to downplay the cultural gap that prevailed at the time between its liberal values and the collectivist values of the country's hegemonic culture. In the 1980s and 1990s, however, a new, value-laden jurisprudence, which exposes the normative meaning and distributive implications of the law, gained ascendancy in the Court's opinions. The second change was a shift in the Court's view of itself from a professional institution whose role is to settle disputes, to a view of itself as a political institution that participates in determining the values that prevail in the country and the distribution of its material resources.
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