Form, Formula and Constitutional Ethos: The Political Question/Justiciability Doctrine in Three Common Law Systems

Abstract

This Article considers the judicial penchant for formula-based decision making, evident in all fields of law. My analysis is based on a distinction between legal constructs, doctrines, or rules on the one hand, and formulas, tests and criteria designed as tools for the application of such constructs on the other hand. Further, I focus on the strategic and political aspects of formulas. The design and retention of a formula can be strategically motivated, as formulas have a distancing effect, enabling judges to make substantive decisions under a faqade of objectivity. The judicial replacement of an operating formula can operate a signaling device; by transforming a legal formula, the judge proclaims to all available audiences that the revolution is of such proportions that it requires a rethinking of previous modes of reasoning. The Article also identifies a possible link between the longevity of a formula in public law and the well-being of the constitutional ethos of the legal system in which the formula has evolved. These aspects are considered in the context of the formulas used to apply the political question I justiciability doctrine, a doctrine directly linked to perceptions of the role of the judiciary in the public decision-making sphere. The analysis of the life of justiciability formulas in the United States, Israel and the United Kingdom offers insights into the interface between law and politics, inherent to public law, and serves to emphasize the utility of the study of legal form as an aid to normative study.

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