Measuring Legal Formalism: Reading Hard Cases with Soft Frames

Michal Alberstein

doi:10.1108/S1059-4337(2012)0000057008

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Studies in Law, Politics, and Society

ISSN: 1059-4337
Series editor(s): Professor Austin Sarat

Subject Area: Sociology and Public Policy

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Measuring Legal Formalism: Reading Hard Cases with Soft Frames

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Title:	Measuring Legal Formalism: Reading Hard Cases with Soft Frames
Author(s):	Michal Alberstein
Volume:	57 Editor(s): Austin Sarat ISBN: 978-1-78052-622-5 eISBN: 978-1-78052-623-2
Citation:	Michal Alberstein (2012), Measuring Legal Formalism: Reading Hard Cases with Soft Frames, in Austin Sarat (ed.) Studies in Law, Politics, and Society (Studies in Law, Politics, and Society, Volume 57), Emerald Group Publishing Limited, pp.161-199
DOI:	10.1108/S1059-4337(2012)0000057008 (Permanent URL)
Publisher:	Emerald Group Publishing Limited
Article type:	Chapter Item
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 chapter focuses on formalism in legal decision-making in hard cases and assumes that contemporary decision-making in law combines formalistic with nonformalistic expressions as part of its routine operation. The research develops a sensitive multidimensional measure that will be used to evaluate legal texts by examining various vectors of formalism. It begins by exploring diverse jurisprudential cultures of formalism, which have developed mainly in American legal thought. Based on the historical analysis of cultures of formalism, the chapter continues to frame eight claims of formalism that have all been contested in legal writing. It proposes to examine the following parameters, based on these claims: (1) the introduction and framing of the legal question; (2) the use of extralegal 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) the gap between law in the books and law in action; and (9) judicial stability and institutional deference. 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 time frames, 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 nonformalistic ones.