Legal feet of clay

Something of the atmosphere of “The God That Failed,” essays by Arthur Koestler and others written in 1949, which signposted growing intellectual disillusionment with communism, makes an unexpected appearance in this legal treatise. A sympathetic observer of the Israeli Supreme Court’s judicial revolution has found that, after all, his legal deities had feet of clay.

Menachem Mautner, professor of comparative civil law and jurisprudence at Tel Aviv University’s Faculty of Law, weighs the efforts of Chief Justice Aharon Barak and others in the 1980s and 1990s to vastly extend the scope of the court’s powers and finds them, to his regret, wanting.

This expansion of judicial review met with surprisingly little opposition. Almost anyone with a grievance found the doors of the court wide open. Administrative decisions were open to challenge as never before.

Most ambitiously, the courts declared themselves the guardians of the Israeli Constitution (something that the Knesset had never gotten around to enacting, for good reason) and claimed the right to strike down laws that offended it.

But these efforts were flawed. Mautner argues that they had their roots in the reactions of liberal, secular Zionists to their defeat in the 1977 elections that brought the Likud party to power. They sought to use an activist Supreme Court, manned by people of like ideological sympathies, as a bulwark to protect their values and position against the inroads of the new right-wing, increasingly religious, majority.

The inevitable reaction soon followed. The Left saw the courts as their friends, the Right as their enemies. Neither truly saw them as impartial wielders of legal authority above the political fray; respect for them as an institution declined accordingly. As the Supreme Court (or its alter ego, the High Court of Justice) increased its interference in governmental decisions, covertly extending its constitutional reach under the cover of administrative law, some civil servants delayed implementing judgments of which they did not approve.

The Supreme Court incurred further public odium by blocking the appointment to its ranks of competent outsiders not thought to share its worldview, such as Professors Nili Cohen and Ruth Gavison, and by failing to purge dilatory and incompetent judges. Even jurists became convinced that the time was ripe to prise open the doors of this closed shop.

Mautner has not given up hope. He sees liberalism as “the political theory and regime most appropriate for multicultural states such as Israel” and cogently argues for ways of enlisting the national religious community, the traditionally observant and Arab Israelis into the liberal project. He doubts, though, whether an activist ideological court can, in and of itself, dragoon the public into accepting this future by casting a pall of illegality over the alternatives.

This sectoral and cultural explanation for the Court’s jurisprudence (more subtle, wide-ranging and informed than appears in this necessarily brief summary) is true insofar as it goes, and it is backed up with passion as well as learning. However, Mautner does not take into account the recent rise in judicial activism in other countries, where judges similarly encroached on what was thought to be the sole province of elected legislatures.

To take one example, English law, once the near unquestioned guiding star of the Israeli judiciary, has tangled with Parliament as activist judges have sought grounds for intervening in governmental matters.

One lawyer, Jonathan Sumption, QC, subsequently elevated to the English Supreme Court, recounted one such act of judicial boldness before adding, ”I cannot be the only person who feels uncomfortable about the implicit suggestion that it is the function of the judiciary to correct the outcome of general elections.”

The 19th century political thinker Alexis De Tocqueville, writing about the United States almost two centuries ago, formulated a reason for this. ”Men who have made a study of the law derive from it certain habits of order, a taste for due form, and an instinctive respect for the logical connection of ideas, which naturally makes them very hostile to the revolutionary spirit and to the unreflective passions of the multitude... The lawyers secretly oppose their aristocratic instincts to the democratic instincts of the people.”

This explanation for the tensions between the judiciary and the legislature is difficult to top as a characterization of the Supreme Court’s role as the last stand of the “Liberal Former Hegemons,” as Mautner terms them.

The main change from de Tocqueville’s day, though, is the role reversal in which the judiciary’s “aristocratic instincts” have been pressed into the service of liberalism rather than reaction.

In the absence of a written constitution, the smooth working of government depends on an understanding between the executive, legislature and the judiciary as to the proper roles of each, and as to the need to exercise restraint for the common good. Many of the changes wrought by the Barak court were needed, and have protected the citizen against a capricious or unfair executive.

But the unilateral manner in which these changes were implemented, and the resulting impression that some of the judges indeed sought to correct the outcome of Knesset elections, have not served well the principles they wanted with reason to protect. Mautner’s recounting of this cautionary tale is warmly recommended.