The Old and New Courts: Three Generations of Scholarship

As we have just seen, according to Friedmann, the old Court - Landau's Court - was a better court than the new Court, pure and simple, and the former also proceeded on a sounder constitutional theory.

Over the years, several characterisations of the Court's jurisprudence during the formative 1950s were put forward. As insightfully suggested by Harris, the various characterisations could be organised along three axes: ideological (poten­tially relevant options include the socialist, collectivist-nationalist and individualist categorisations); institutional (namely, how deferential was the Court to the other branches of government? Was it conservative or activist in this respect?); and its style of decision-making (in Menachem Mautner's influential description, was it ‘formalistic' or ‘value-laden'?).^[477] The resultant matrix is complex. Consequently - and this is one of Harris' fine emphases - the general tenor of that jurisprudence escapes bright-line characterisations. There are simply sufficient major cases, in which the three axes point to contrary orientations, to ruffle the now-familiar collectivist, conservative and formalistic portrayal of the 1950s.

The new literature reminds us that beneath the various attempts to neatly depict the 1950s Court lies a seemingly simple question - namely, to what extent was the Court in fact the bastion of human rights in Israel of the 1950s? For years, justices - on and off the bench - prided themselves in championing the cause of human rights.

As a general matter, as far as the Court's history was concerned, for decades the literature treated it with much favour. The important 1980 book of (future Justice) Elyakim Rubinstein on the history of the Court^[479] was a significant high point of that generous approach, which subsequently almost petered out. Pnina Lahav, Yoram Shachar, Menachem Mautner and others played a decisive role in ushering in a new generation of scholarship, stirring the Court's historiography to more balanced and critical grounds.^[480] Thus, for example, Lahav opines that the 1950s Court's record ‘was far from uniform'. She writes that: ‘In a number of cases, [it] allowed the suppression of the rights... because of national security considerations applied by the executive branch.'^[481] Several scholars followed suit, thus supplementing the extant hagiography with novel and rich historiography.^[482] Especially following Mautner, it became commonplace to generally regard the 1950s Court as formalistic and its days as the days of judicial restraint.^[483]

It is therefore only to be expected that, in revisiting the 1950s jurisprudence, the new literature critically explores the breadth of public law issues the Court handled throughout its history. ‘Standing' and ‘j usticiability' are two particularly relevant legal categories here, and it is commonly accepted that the more expansive the Court's interpretations thereof is, the wider the range of public law disputes engaged with by the Court is.

The transformation of standing and justiciability doctrine in Israeli law during the 1980s met with some opposition among justices and scholars,^[485] yet this oppo­sition did not derail it. Consequently, an increasing number of cases, which had been traditionally barred from the Court due to their ‘political’ nature, were now regularly dealt with by the Court. While Friedmann’s rhetoric is particularly sharp in this case, he is certainly not alone in observing that during the past genera­tion, most, if not all, political controversies - controversies concerning political parties, intra-coalition rifts, appointments of high-ranking governmental officials etc - found their way to, and subsequently were reviewed by, the Court.^[486]

Friedmann maintains in this context that, contrary to the new Court, the found­ing Court kept to its own. It was much more careful not to overstep its ‘proper’ authority, circumspectly shunning away from political, grand public-policy issues. When it was forced into a political affair, the former Court only reluctantly entered the fray - in stark contrast to the Court of the later generation, which revelled in dealing with such issues.^[487]

This line of attack censures the latter Court for patronising over the old- fashioned, ‘simple’ adjudication - adjudication done between the cracks of legislation - and for thinking it is capable of resolving complicated public policy issues. It is actually argued that the Court invests in policy-making at the expense of good old adjudication, since policy-making detracts from the Court’s limited resources.^[488] These accusations amount to faulting the new Court with damaging the old Court’s Herculean undertaking of putting in place and entrenching human rights in the young and vulnerable State of Israel.

Furthermore, according to its detractors, the new Court’s appetite for what they regard as essentially political controversies is damaging to the Court’s insti­tutional legitimacy among Israelis. An equation is drawn between the degree to which the Court has minded its own business and its ‘approval rating’, so to speak.^[489] Under this approach, the old Court, although immersed in rights-averse environment, was widely respected because it kept to itself. In a mirror image, the new Court faces frontal opposition from large segments of the Israeli population because it routinely meddles in daily politics. Thus viewed, as Landau had fore­seen, in the final analysis, the new Court’s activist stance has made it less effective in performing its duties - the duties it has taken upon itself to tend to under the banner of activism (above all, political disputes), but also and more damagingly, its traditional judicial duties.

In light of all of the above, it may come as no surprise that one current in the new literature goes so far as to claim that the old Court was more effective than the new Court in actually promoting human rights in Israel.^[490] Although no empirical findings are provided in support of such claims, they are certainly not insignificant. They evidence how sceptical the new literature is of the new Court’s overall performance. This scepticism is particularly poignant when it comes to the Court's foremost project of advancing a constitutional revolution in the cause of safeguarding human rights in Israel.

To conclude, the recent wave of denouncing the new Court carries with it a revived adulation of the older Court, in the vein of the literature of the Elyakim Rubenstein generation. Thus, the Court of the 1950s become today a benchmark against which the new Court may be attacked for various reasons: for its activism, alleged arrogance, style of reasoning, missing the mark on human rights protec­tion, and even justices' persona and professional mien. However observers attack the new, and from whatever angle, they universally give the impression that the old Court was a superb - nay, a superior - court of law.

V.