Israel will overcome judicial reform crisis - Gabriela Shalev

She spends as much time as she can with her children, six grandchildren and her little great-grandson, and is now talking at demonstrations against the government’s judicial overhaul.

(photo credit: ERIC SULTAN)

The handwriting on the simple postcard revealed nothing about the horrors of the present, and gave no clue as to what lay ahead. “Mazal tov!” wrote Gabi Shalev’s grandmother from Theresienstadt, where she and her rabbi husband had somehow got word of her birth in 1941.  The card arrived in Tel Aviv a year later, but the grandparents never got to meet their first grandchild; they both perished in Auschwitz.

Prof. Gabriela Shalev’s life encapsulates the very spirit of Israel – the joy, the pain, the miracles, and the price.  She remembers sitting on the staircase at the back of the house she lived in with her parents and paternal grandmother, aged all of four, as her mom listened interminably to Jewish Agency lists of Holocaust survivors on the radio, desperately hoping for good news.  

“I was always waiting for my other granny to walk through the door,” she recalls, almost 80 years later. “But she never did.”

Shalev grew up under the nascent Israeli sun and shone in whatever she did.  After finishing her army service as a lieutenant, she graduated Summa Cum Laude in Law from the Hebrew University of Jerusalem, and then obtained her LL.M and Doctor Jur. (all Summa Cum Laude).  

For her there was no work-housewife conflict – she sailed through her studies, started her glittering career, got married, had two babies and smiled her way through it all. 

 AS AMBASSADOR, Shalev addresses a UN Security Council meeting on January 6, 2009. (credit: Mike Segar/Reuters) AS AMBASSADOR, Shalev addresses a UN Security Council meeting on January 6, 2009. (credit: Mike Segar/Reuters)

In 1973, Shalev’s world was wonderful: her studies were brilliantly concluded, her toddlers thriving, her marriage to IDF Regimental Tank Commander Shaul Shalev magical. But 1973 was a brutal year in Israel. When her husband was killed near the Suez Canal in the Yom Kippur War, she found herself a widow at the age of 32. 

“People used to see me on the street and cross to the other side to avoid having to talk,” she recalls.  And really, what could anyone say?

Shalev decided not to stick around and wallow in self-pity; she packed up herself and her children, Narkiss and Eran, and spent two years as a Fulbright senior scholar and post-doctoral researcher at Harvard Law School. In a strange land, grieving, working in a foreign language, far from family and friends, it would not be unreasonable to predict at least a minor meltdown for a young, single mother.  But that is not her way.  

“I was OK,” she smiles – her warm, special, Shalev smile that melts your heart – “I was never alone. I had my kids with me.”

Gabriela Shalev's work in academia, law and diplomacy

Decades have passed since then, and accolades and accomplishments have piled up high. Shalev’s CV includes stints at the Supreme Court and the Jewish Agency. Admitted to the Israeli Bar in 1968, she became a full professor of Contract Law at the Hebrew University, and has served as a visiting professor in acclaimed international universities including the USA, Canada, and Scotland. Shalev’s expertise is Contract Law; she graduated in the same year as Israeli Contract Law was codified.  Before 1973 it was based on a mixture of English Common Law and Ottoman legalities; in a dramatic twist of fate that year marked the beginning of a life of interpreting and researching Contract Law just as another part of her life was ending.  A marriage contract, it appears, does not protect anyone from the ravages of war. 

The vagaries of fate notwithstanding, life, according to Shalev, is a series of endless contracts.  In a supermarket the buyer contracts to pay for the food he buys; the chain promises the products will be fresh and edible.  What happens if maggots leach out of a packet of flour once you get it home; who is responsible?  Is there compensation?

British Law includes the “Caveat Emptor” principle – the burden is on buyers to examine a purchase before shelling out cash for it.  Israeli modern contract law replaced this with a different, almost opposing principle: “Good Faith.”  

Contractual questions arise in all areas of life and business: what if a prospective buyer sees a house on a sunny day and the seller neglects to mention the roof leaks during every drizzle?  What about gaps between promises of the seller during pre-contractual negotiations and the wording in a written contract?  How does Israeli Law view sales like this?  There is no need for confusion: buyers can pore over one of Shalev’s 11 books on these very conundrums; the answer is sure to be in one of them.  

Apart from her research, writing and teaching, Shalev has held some top positions in Israel and abroad, including director of the Harry Sacher Institute for Legislative Research and Comparative Law at the Hebrew University Faculty of Law. She was a member of the Codification in Civil Law Committee for over 20 years, and a legal editor of the Hebrew Encyclopedia’s new edition in 1984. She has been an advisor on the status of women at the Hebrew University, and a member of the Committee for Legal Terminology at the Academy of the Hebrew Language in Israel. She is a senior faculty member at Ono Academic College (after serving as president of the college) and chairperson of the Israel Council for Higher Education’s Committee for Appointment of Professors in Law, Business Management and Social Science. 

In addition, she was acting chairman of the Israel Broadcasting Society, a member of the Jewish Agency Board of Governors, and a member of the Tribunal for Standard Form Contracts.  She participated in the Presidency of the Movement for Quality Government and on the Executive of the Israeli Democracy Institute as well as serving on numerous Boards of Directors of leading Israeli companies and businesses including Teva Pharmaceuticals Industry, Osem Investments, Delek Ltd., Ma’ariv, Bank Hapoalim, Israel Electric Company, Hadassah Medical Organization, and Fibi Holdings Ltd.. 

It must have come of something as a holiday feeling when in 2008 then-prime minister Ehud Olmert and Foreign Minister Tzippi Livni appointed Shalev Israeli ambassador to the United Nations – the first woman to hold this post.  A time-out in New York, she might have been expected to hope, would be a break from endless board meetings and academia.  

The UN, however, turned out to be anything but a break.  In her two turbulent years there, Netanyahu replaced Olmert, Obama replaced Bush, Operation Cast Lead roared into Gaza, followed by the damning Goldstone Report, and the Marmara ship attempted to sail into Israeli territorial waters.  

“It was a challenging time,” recalls Shalev, “but life can be challenging.” 

Shalev returned to the Holy Land in 2010 and was immediately recruited to more academic councils and public bodies; she was elected to the Board of Directors of Bank Leumi, served twice as the head of the Sapir Prize Committee, (the Israeli Equivalent of the Booker Prize), and today is the chair of the Public Council of the Yitzhak Rabin Center, chair of the Executive Committee of the Kibbutz Contemporary Dance Company, and chair of the Shulamit Aloni Prize for Arab and Jewish Works of Art.  In addition, she is a member of various search committees including for the position of Attorney General of Israel, and active in philanthropy.  

Shalev, who goes to sleep in the early hours of the morning each day, still finds time to exercise daily together with her beloved partner of almost forty years – Uzi Levy – famous as one of the iconic TV “Nikui Rosh” team.  

She spends as much time as she can with her children, six grandchildren and her little great-grandson, and is now talking at demonstrations against the government’s judicial overhaul and “to everyone who will listen to me.” 

“When we look at the pillars of the 1973 enactment of Israeli Law we need to examine how it is that contracts must be based on good faith.”

Gabriela Shalev

“When we look at the pillars of the 1973 enactment of Israeli Law we need to examine how it is that contracts must be based on good faith,” she explains.  Whereas Hobbs claimed in his Leviathan that people are wolves, former Supreme Court president Aharon Barak countered that people are not wolves, and not angels, just fallible humans somewhere in between.  

This complicates contracts as most people do not instinctively act in good faith when trying to get a good deal; the majority want to wangle the best conditions for themselves.  So it’s counter-intuitive to tell a prospective buyer about a leaky roof, and yet it’s a moral obligation.

And how about the contract, or treaty, that a government commits to, when voters empower them to lead a country?  What does Shalev think about the situation that is unfolding in her much-loved land?  

“It’s very difficult,” she says. “The situation is bad and will probably get worse before it gets better.”

Yet Shalev is confident that things will get better in the end.  

“It’ll take time,” she says, calmly, “but we will overcome.”■