Judicial Review of Politics: The Israeli Case

Published date01 December 2002
AuthorDaphne Barak–Erez
DOIhttp://doi.org/10.1111/1467-6478.00235
Date01 December 2002
JOURNAL OF LAW AND SOCIETY
VOLUME 29, NUMBER 4, DECEMBER 2002
ISSN: 0263-323X, pp. 611–31
Judicial Review of Politics: The Israeli Case
Daphne Barak-Erez*
In the tradition of studies questioning the impact of celebrated court
rulings, this article discusses the effectiveness of the judicial review of
politics conducted by the Israeli Supreme Court. The Israeli Supreme
Court is generally viewed as a highly influential, almost omnipotent
body. During the last two decades, the Court has intervened repeatedly
in the so-called political domain, thereby progressively eroding the
scope of realms considered non-justiciable. It has ventured to enter
domains of ‘pure’ political power to review the legality of political
agreements, political appointments (appointments of political allies to
public positions), and political allocations (government funding to
organizations affiliated with its political supporters). The prevalent
perception is that these developments had a significant impact on
Israeli political life. The present article challenges this view and
argues that, on closer scrutiny, the influence of the Court on many of
the issues reviewed here is negligible. First, many of the doctrines
developed by the Court in order to review political measures proved
ineffective. Usually, when the Supreme Court (acting as a High Court
of Justice) engages in judicial review, it lacks the evidence needed in
order to decide that administrative decisions on public appointments or
public funding should be abolished because they were based on
political or self-serving considerations. Second, the norms mandated
by the Court hardly influence politicians’ decisions in everyday life,
and are applied only in contested cases. The reasons for this situation
are not only legal but also socio-political. Large sections of current
Israeli society support interest-group politics and do not accept the
values that inspire the Court.
611
ßBlackwell Publishers Ltd 2002, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Faculty of Law, Tel-Aviv University, Tel Aviv, Israel
I would like to thank for their helpful comments Menachem Mautner, Shai Lavi, Yishai
Blank, and the participants of ‘The Judiciary in Social Context’ panel in the Law and
Society Annual Meeting, Central European University, Budapest, July 2001. I also thank
Batya Stein for her help with the translation and editing.
INTRODUCTION: THE IMPACT OF LAW ON POLITICS
An important aspect of the study of law and politics concentrates on the
impact of law on politics. The body of research that adopts the impact
perspective poses the question can courts effectively intervene in politics,
rather than do they have the legitimacy to do so.
1
The broader context of this
question is the literature dealing with the potential of court rulings to bring
about social change. Lawyers are trained to think that litigation yields
enforceable results. For the ideologues among them, this is the drive for
cause lawyering – lawyering for social change.
2
This belief in the power of
law, however, is challengable.
As early as 1974, Stuart Scheingold published an influential book
discussing the ‘Myth of Rights,’ that is, the ungrounded belief in the power of
law to bring about unilateral social change.
3
Similarly, Gerald Rosenberg’s
study, meaningfully entitled The Hollow Hope,
4
dealt a further blow to the
belief in the transformative power of litigation. These writings not only
identified the famous ‘gap’ between law and reality, a well-entrenched idea
already explored in Roscoe Pound’s writings
5
but, more concretely, indicated
the futility of trying to change reality through litigation. This view did not go
uncontested. Soon after the publication of Rosenberg’s book, Malcom Feeley
criticized him for addressing the gap between reality and the exaggerated
expectations of activists regarding the results of litigation, and not the one
between reality and the court decisions themselves, which were much less far
reaching.
6
In a recent book, dedicated to the reform of the United States
prison system, Feeley, together with Edward Rubin, contended that judicial
policy-making was very successful in this context,
7
and even offered
612
1 For early writings in this direction, see T.L. Becker and M.M. Feeley (eds.), The
Impact of Supreme Court Decisions (2nd edn., 1973).
2 See A. Sarat and S. Scheingold (eds.), Cause Lawyering, Political Commitments and
Professional Responsibilities (1998); A. Sarat and S. Scheingold (eds.), Cause
Lawyering and the State in a Global Era (2001).
3 S.A. Scheingold, The Politics of Rights – Lawyers, Public Policy and Political
Change (1974).
4 G.N. Rosenberg, The Hollow Hope – Can Courts Bring About Social Change?
(1991).
5
The literature addressing this theme can be traced back to Roscoe Pound’s ‘Law in Books
and Law in Action’ (1910) 44 Am. Law Rev. 12. Later, the term ‘gap problem’ was coined
by Richard Abel: see R.L. Abel, ‘Law Books and Books About Law’ (1973) 26 Stanford
Law Rev. 175, 187. See, also, D. Nelken, ‘The ‘‘Gap Problem’’ in the Sociology of Law:
A Theoretical Review’ (1981) 1 Windsor Yearbook of Access to Justice 35; D. Nelken,
‘Law in Action or Living Law? Back to the Beginning in Sociology of Law’ (1984) 4
Legal Studies 157; A. Sarat, ‘Legal Effectiveness and Social Studies of Law: On the
Unfortunate Persistence of Research Tradition’ (1985) 9 Legal Studies Forum 23.
6 M.M. Feeley, ‘Hollow Hopes, Flypaper, and Metaphors’ (1993) 17 Law and Society
Inquiry 745.
7 M.E. Feeley and E.L.Rubin, Judicial Policy Making and the Modern State – How the
Courts Reformed America’s Prisons (1999).
ßBlackwell Publishers Ltd 2002

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