Critical Assessment
Before concluding, I wish to make a few general observations on this literature's historiography and the exchange between law and politics.
The new literature as a whole challenges a progressive narrative of Israeli law that, as noted, was advanced by the Court and others as part of an effort to legitimise the Constitutional Revolution.
This narrative charted the trajectory of Israeli constitutionalism as moving from the rights-denying Mandate to the rights-upholding Court cases of the early statehood era, culminating with the rights constitutionalisation of the 1990s. Contrarily, the novel literature signals an emerging revisionist historiography of Israel's founding moment. It is revisionist as it questions the concept that the 1950s was a lost constitutional moment. After all, it is now maintained, the 1950s laid the foundations for a working democracy, sustained by a state apparatus respectful of the rule of law and supported by a competent and effective judiciary. Viewed through the prism of this scholarship, it appears that the 1950s encapsulated a realised constitutional moment, even though - or perhaps because - they had not produced a formal constitutional document.But isn't the latter perception overly nostalgic and exaggeratedly tainted by present concerns? After all, the books reconsider the country's founding moment of the 1950s in the wake of the 1990s Constitutional Revolution. It may come as no surprise, then, that this literature has a clear presentist orientation.[496] As we have seen, its analyses attest to a discomfort with the role assigned to the courts - by the Court - in the post-revolutionary constitutional configuration and/ or with the heated - and to the authors, unnecessary and unconstructive - debate within Israeli polity which was unleashed by the Revolution.[497] Consequently, whether it openly acknowledged this or not, it may be characterised as postRevolution afterthoughts - maybe even second thoughts - on the post- and pre-Revolution times in Israel.
While a certain amount of presentism is unavoidable in the writing of history,[498] it may still be questioned whether the books' assessment of the 1950s is not overly skewed by their unfavourable assessment of the Constitutional Revolution. Specifically, it seems that part of their portrayal of Israeli law of the 1950s is excessively charitable. Notably, this scholarship appears to downplay patent instances of human rights violations in the nascent Israel, especially with respect to the Arab minority, which was placed under martial law well into the 1960s.[499] Moreover, with respect to Friedmann's manuscript in particular, I wonder whether its nostalgic tenor allows for a truly balanced appraisal of the 1950s in general, and the 1950s Court's jurisprudence and disposition in particular, especially considering the all-powerful executive branch of the time.[500]
At the same time, this literature should be commended for advancing our grasp of Israeli law. It broadens our perception of it in more than one way. First, as I have noted especially apropos Brun's manuscript, it persuasively makes the case that a longer-than-usual list of players - justices and Ministers of Justice but also lower-court judges, law clerks, politicians, court administrators, Ministry of Justice officials, parties to litigation[501] and so on - should be incorporated into a portrayal of the (1950s) Israeli law in action. This emphasis surely adds important layers to the existing literature. In addition, this literature, with the vital companion of Harris, makes great strides in deploying an exciting selection of historical methodologies.[502]
Another contribution of this literature lies in its engagement with politics.[503] To begin with, a running theme throughout the books is the conception that law has come to occupy exceedingly more volume in Israeli polity throughout the decades, and the contrast between the 1950s and the 1980s and 1990s is said to be striking.[504] More generally, this group of books openly entertains the conception that ideological rifts, personal convictions and plain politics shape the law to a considerable extent. Their analyses demonstrate how such ‘non- legal' forces bore on law-making in the young State of Israel and even on courts' decisions.
This in itself is not new in the existing Israeli legal history.[505] Rather, the novelty lies in the degree to which this literature makes politics and political figures an integral part of Israeli legal history, thus further bridging the gap between the legal and political histories of Israel.It seems fair to say that thus far, the Israeli legal history gave the impression that it was first and foremost a series of jurists who gave shape, before and after independence, to Israeli law. Traditionally, the first Israeli Justices and high-ranking legal officials in the Ministry of Justice were quite exclusively designated as the founding fathers of Israel's legal system, and their decisions and policies direct that historiography. The new literature supplements the extant legal history by bringing to the fore several legal and political protagonists, whose role as lawmakers - as personas that had a role in the design of Israel law - was hardly noted in that historiography. First among them is Ben-Gurion, whose influence on Israeli law is slowly becoming more fully acknowledged in the literature. The advent of a Ben-Gurion revival in the legal-history literature is important for it thickens, and more fully integrates between, the Ben-Gurion and the general sweep of political-social-cultural Israeli historiographies, on the one hand, and the legal history of early statehood, on the other.
Furthermore, the literature under review not only incorporates politics into law but also law into politics. For it could certainly also be read as revealing how intertwined law-making, broadly defined, was with politics-making, just as broadly defined. Thus, notably, Kedar's is a narrative about Ben-Gurion, the founding father of Israel, who must also be credited as a founding brother of the Israeli legal system. Namely, in assessing Ben-Gurion's overall achievements, failures and vision, his actions and views with respect to legal issues must be made part of the analysis and must be evaluated together with closely related reforms he sought to advance.
Kedar's study does exactly that, as he examines Ben-Gurion's standing on the constitution dilemma and the re-establishment of the Israeli judiciary alongside other reforms he advanced.However, there are problematic sides to the literature's bridging the politics-law divide. At times, it seems that its treatment of politics is somewhat idealistic, as if only lofty principles - as opposed to tit-for-tat or even ‘petty' personal motives - drive it. For example, Kedar leaves little room to such motives in accounting for Ben-Gurion’s actions. On the other hand, Brun seems to go to the other extreme, giving the impression that politics and public policy is solely about personal and ideological issues, and has also certainly been so during Mandatory times and the 1950s. Yet, this latter perception does not account for the structural dimensions in politics (and law): procedures, practices and constitutional conventions (which had been so dear to Dicey). As new institutionalism taught us, such structures may constrain and enable, channel and obstruct political - and legal - actions. Indeed, new institutionalism appears to offer a middle ground between Kedar's vision of politics on the one hand and Brun's on the other. I therefore believe that the 1950s legal historiography may substantially benefit from consulting new institutionalist historiography.[506]
VII.