Judicial Power and National Politics, Second Edition: Courts and Gender in the Religious-Secular Conflict in Israel by Patricia J. Woods

Author:Patricia J. Woods [Woods, Patricia J.]
Language: eng
Format: epub
Tags: Law, Gender & the Law, Political Science, Comparative Politics
ISBN: 9781438462073
Google: 5TAtDgAAQBAJ
Goodreads: 30154570
Publisher: SUNY Press
Published: 2017-02-21T10:29:20+00:00

Changes and Signals in the 1970s and 1980s

While Agranat may be credited with initiating a serious rights discourse in the HCJ as well as the technique of combining rights rhetoric with positive law decisions, Haim Cohn (Justice early 1960s–1981) and Meir Shamgar (Justice 1977–1995) can be said to have changed the nature of that discussion. Rather than presenting an HCJ that included justices who were increasingly sympathetic to rights but felt themselves constrained in their application, in the 1970s, in the aftermath of the Shalit case, Shamgar and Cohn began writing articles to Israeli law journals unapologetically advocating such controversial ideas as creating a written constitution. As early as 1974, Cohn and Shamgar published “The Spirit of Israeli Law” and “On a Written Constitution,” respectively.9 These articles were published from the proceedings of the Second International Congress of Jewish Lawyers and Jurists, in Jerusalem 1973. Both articles reflect a view of law and courts that included acute attention to rights, both civil and human. These articles indicated to anyone in the judicial community who was listening or reading a court that was perhaps willing not only to entertain discourses on rights, but to enforce them more actively.

In his article, Cohn was explicit in saying that the spirit of Israel law was not apparently as clear as it would be if Israel had a written constitution that enshrined binding Grundnorms (foundational legal principles),10 or if it had a homogenous population with a homogenous institutional tradition. The one institutional tradition that the Israeli (Jewish) population did have in common was Jewish law as developed through biblical and Talmudic sources. Cohn distinguished between the spirit of Israel law and Knesset legislation, which “more often than not [would] be admitted by the lawgiver himself, to be hardly compatible with some of those constitutional or ethical concepts principles which normally pervade, and are expected to characterize, his legislation.”11 Legislation emerging from emergency situations was particularly prone to this anti-constitutional bent. In short, Cohn defined the spirit of Israel law as the following:

If I were to reduce the Spirit of Israel law to a short formula, I would say that it is composed of these three components: efficacy—laws being made for a given purpose, their tenor and contents ought to be as best calculated to serve and achieve that purpose; democracy—meaning the resurrection and preservation of all those freedoms and liberties of which the Jewish people had been systematically and recurrently deprived, and the observance and enforcement of which would characterize a civilized and enlightened modern commonwealth; and Jewishness—in the sense of reflecting, realizing and perpetuating our Jewish cultural heritage and Jewish moral and ethnical standards.12

Cohn thus tied the spirit of Israel law inexorably with principles of rights—liberties and freedoms—whether those rights might be constitutional, ethical, secular, or religious in origin. Furthermore, he defined democracy in terms of individual liberties and the rule of law, which he said together “may now be regarded as forming part of universally recognized principles of international law.”13 Jewish moral and

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