| Socio-legal literature traditionally juxtaposes the doctrinal "law in the books" model to the sociological perception of "law in action". Building on Foucault's governmentality framework and on Luhmann's systems theory, this project moves beyond the dichotomy to conceptualize law as an entity with its own thought patterns and knowledge-production mechanisms, and asks how this entity perceives and addresses social problems. The case study is the Israeli military justice system and the way it thinks about desertion and conscientious objection. While both phenomena constitute disobedience to the military service duty and resistance to the ethos of compulsory and egalitarian military service, they differ in the offenders' demographics and motivations: desertion is characterized and motivated by socio-economic difficulties, and conscientious objection is politically-motivated and related to the Israeli activist-intellectual elite. The study examines the system's approach to the two problems through a multi-method research design including an analysis of policy documentation, a multivariate regression sentencing model of cases, courtroom observations, content analysis of verdicts, in-depth interviews with legal officers and a media analysis of newspaper articles. The findings confirm the importance of the formal legal paradigm for creating and organizing knowledge about social problems. Although courtroom dynamics differ for the two problems, both types of offenders are perceived, classified and eventually convicted and punished based on formalistic legal categories. Conscientious objectors, who are respected and listened to throughout the legal process, present alternative, political and philosophical frameworks for perceiving their agenda, which award them advantages in the extra-legal arena of public opinion, albeit not within the legal realm. In contrast, deserters remain voiceless and are framed and treated as offenders in both legal and extra-legal settings. The findings illuminate the importance of legal formality within criminal justice systems; law maintains varying degrees of "cognitive openness" toward alternative, socio-political frameworks of social problems, based on power and social structures; however, the assimilation of such frameworks occurs in accordance to law's inner vocabulary and logic, making the legal system "normatively closed" to alternative perceptions of problems and resulting in a prevalence of the formal legal model. |
