Overview of the New Literature
This section introduces the three books and indicates their contribution to our understanding of the processes and debates outlined in the previous section. The following sketches surely do not do justice to the books.
They will not encompass their richness, but merely point to their relevance to the chapter's overall theses. Following a review of the books, I will introduce themes running through them and the overall perception of the 1950s - essentially, Israel's founding decade - that emerges from bringing them together.A. The Books
Law, Passions and Politics was published in 2014 following Nathan Brun's earlier tome (of 2008) dedicated to the history of the judiciary in the territory known as ‘Palestine'.[464] The first book canvassed the Ottoman judiciary in the land and related the transition from Ottoman-run to British-run legal system at the end of the First World War. Brun's latest manuscript, which occupies us here, explores a chain of episodes, some (in)famous, others thus-far unknown, concerning courts and judges in the late Mandate and early statehood eras. For the most part, judges are the focal points of the book. It presents a gallery of Mandatory and Israeli judges. The different chapters describe various judges' personal background and ideological predilections before and after nomination, difficulties they encountered as
their appointment to judicial positions (as judges, justices or chiefs of courts) was at issue, and noteworthy cases they handled. It is clearly to Brun's credit that he showcases myriad legal players; not only Justices but also other judges, as well as attorneys and their clients, occupy central stage in the book's chapters.
Nir Kedar's aspiration in writing Ben-Gurion and the Constitution, which revolves around the founding father and the first Prime Minister of Israel, is quite straightforward.
Kedar writes against the pervasive conception that Ben-Gurion shunned - thus effectively nipping in the bud - the campaign to write a formal constitution for Israel for ephemeral, even small-time political considerations. There are two interlocking prongs to Kedar's effort to rationalise the Ben-Gurion position. First, Ben-Gurion's campaign against the vogue of constitution-making was based on solid, principled and justifiable arguments. Second, Ben-Gurion did indeed rebuke the drive toward a Big-C Constitution, but he was just as relentless in putting in place a lasting Small-C Israeli (Jewish) liberal-democratic constitution. Kedar sympathetically portrays Ben-Gurion as well as several questionable actions taken by him as the reverberations of a deep commitment to liberal democracy.Taken together, the two prongs assert that Ben-Gurion was driven by an overarching, coherent vision: Israel must be founded on established liberal-democratic principles (such as the rule of law and general free elections), yet these principles would not gain traction among the public by codifying them in a written constitution. Rather, they would have to be won, by each generation anew, through the dynamic, on-the-ground practice of state organs and the citizenry pursuing such principles. Kedar makes the case that Ben-Gurion got it right in the constitutional debate of early statehood. According to Kedar, it simply did not make sense to dedicate the required time and energy and face the political turmoil involved in drafting a constitution for the embattled state.[465]
In an impressive feat, Daniel Friedmann - a former Minister of Justice and an eminent legal scholar - has recently published two tomes covering the past five centuries(!) in the history of the territory stretching to the west of the Jordan River: first came The Purse and the Sword: The Trials of the Israeli Legal Revolution (2013),[466] which spans the period from the late 1970s to the near present, and then Before the Revolution, which is dedicated to the lengthy period from the fifteenth century to the mid-twentieth century.
The two relate momentous events that took place during Ottoman, Mandatory and Israeli rule over that piece of land, although Friedmann's two-volume enterprise devotes much more attention to post-Israeli independence events than to pre-independence affairs.As indicated in the title of the second book, which is more pertinent to the present discussion, there are two focal points to Friedmann's discussions: the legal sphere and the political sphere. Around the first focal point, Friedmann canvasses major developments in the law of the land during the relevant eras, whether they took the form of legislation, the constitution of novel legal institutions or epochdefining litigation and courts' rulings. The second focal point revolves in the main around policies and ideologies advanced by dominant (mostly Jewish) political organisations, the Knesset and, even more so, Israeli governments. Friedmann's scathing rebuke of the new, post-1970s Court cuts across the analyses in both books. His theses will resurface time and again in the ensuing discussion.
B. Connecting the Dots
Taking a bird's-eye view over the historiography encapsulated in the three manuscripts, an overarching theme emerges: a reassessment of the Israeli-Diceyan constitutional model. Specifically, in revisiting the 1950s, the books buttress both sides of the Diceyan model as applied in the Israeli context: they applaud both the absence of a formal constitution and the old' Court's protection of human rights in the young state. Intertwined in these two counter-arguments is the proposition that constitution-making is hardly a cost-free endeavour. It is far from clear that the benefits that might have resulted from the adoption of a constitution in fledgling Israel would have outweighed the costs incurred in the process by Israeli society and the courts of that time.[467]
Further, it appears that, according to the account provided in this literature, Israeli constitutional law of the 1950s was in quite good shape.
An impressive line of judges and justices, the political elite of the day, and a dedicated state apparatus made sure that nascent Israel would have a decent, well-functioning legal system; moreover, they made sure that human rights would be protected in Israel. Miraculously, all this was done in the face of enormous security, economic and social challenges that beset the young state.As part of this reassessment of the pre- and post-Constitutional Revolution eras, the books revisit the 1950s judiciary and especially the Supreme Court - their composition, jurisprudence and interplay with the other branches of government. In so doing, they implicitly and even explicitly draw comparisons with the latter-day Court. All in all, the authors describe the courts of the 1950s as highly competent, entirely respected, reasonably efficient, dutifully modest and appropriately deferential to the other branches of government. In fact, several sections in their analyses suggest that the courts of the 1950s better served their callings - the protection of human rights included - than do contemporary courts.[468]
Friedmann in particular suggests that the old Court fared better than the new Court because the former did its best to distance itself from ideologically charged issues and plain politics, and even more so from any engagement with the divisive business of legislation.[469] Friedmann harkens back to the Landau-Dicey approach and embraces Landau in more than one way. First, on a personal level, according to Friedmann, ‘in many respects Landau was an ideal judge’.[470] Friedmann commends in particular the fact that Landau’s judgmanship was ‘totally objective, as it was founded on legal principles and detached from personal and political views’.[471] Also laudable, to Friedmann, was Landau’s unwavering - allegedly, as opposed to the new Court’s faltering - commitment to the preservation of the State of Israel and a robust Zionist vision thereof.[472] Likewise, Landau’s deference to the government’s security considerations, and his general conservatism and penchant for judicial restraint are explicitly and favourably contrasted by Friedmann with the activism of the new Court.[473] Finally, not only does Landau’s judicial ideology fare better in Friedmann’s account, but so too does his style of judging, especially Landau’s (and his brethren’s) clear tendency of writing short opinions.[474] Clearly, Friedmann wholeheartedly sides with Landau in the debate surrounding the Constitutional Revolution.
Echoing familiar arguments put against the practice of judicial review of legislation, Friedmann too holds that it is democratically undefendable, as it subverts the will of the people and is injurious to the courts, which are thereby drawn into the political arena.[475]Now, taking a panoramic view over the three books, I wish to argue that, taken together, they construct the following argument regarding 1950s Israeli constitutionalism:
(a) since - as demonstrated mainly by Friedmann and Brun - even without a formal constitution, human rights were generally preserved in Israel during early statehood thanks to the robust, yet balanced, efforts of the courts; and
(b) since - as forcefully argued by Friedmann - courts should not be implicated in political processes typifying legislation;[476] and
(c) since - as illustrated by Kedar - the writing of a constitution would have been a costly, maybe even a dangerous, enterprise;
therefore, the founding generation set in place the right constitutional framework for that time and age - and maybe even for our age.
No doubt, especially in light of the discussion in the previous section, this argument is plainly critical of the Constitutional Revolution and thus of the revolutionary Court that made it a reality.
IV.