בעקבות ירידת הפורמליזם ועליית הערכים: ריאליזם דוקטרינרי והיפר-ריאליזם במשפט הישראלי

The discourse on legal realism in Israel developed significantly following Menachem Mautner’s 1993 monograph, The Decline of Formalism and the Rise of Values in Israeli Law. Mautner argued that in the 1980s, the Israeli Supreme Court shifted from formalistic to value-based reasoning and embraced judicial activism. His realist narrative became influential in legal academia, public discourse, and judicial practice. This article identifies two key legal realist phenomena that emerged in Israel in the wake of Mautner’s work. The first is doctrinal realism: The development of legal doctrines that incorporate judicial discretion and institutional context into the definition of the legal rule itself. In public law, this includes doctrines such as relative voidance, constitutional ripeness, administrative reasonableness, and the use of judicial legitimacy as grounds for judicial review. In private law, it includes judicial discretion in applying the writing requirement for real-estate transactions, the decline of specific performance, and the Court’s control over the effective date of doctrinal change. The second phenomenon is legal hyper-realism, which is the view that judicial decisions are driven primarily by judges’ identities and personal opinions and the institutional interests of the Judiciary, rather than by substantive legal rules. This perspective is exemplified by the 2023 judicial reform plan and the debate surrounding it. The article concludes by highlighting normative concerns invoked by these developments, including the erosion of law’s formal character and the blurring of boundaries between legal norms and judicial outcomes.