THE DECLINE OF FORMALISM AND THE RISE OF VALUES

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.