The Judicialization of Politics in Israel

Author(s): Martin Edelman

Source: International Political Science Review / Revue internationale de science politique,
Vol. 15, No. 2, The Judicialization of Politics. La judicialisation de la politique (Apr., 1994),
pp. 177-186
Published by: Sage Publications, Ltd.
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International Political Science Review (1994), Vol. 15, No. 2, 177-186

The Judicialization of Politics in Israel

MARTIN EDELMAN

ABSTRACT. The judicialization of politics has probably proceeded further in

Israel than in any other democratic country. In the strong sense of the
definition propounded by Torbjorn Vallinder (1992: 1), the civil judiciary
in Israel, particularly the Supreme Court justices sitting as members of
the High Court of Justice, are exercising power at the expense of politi-
cians and administrators. The justices now claim the authority even to
review the internal workings of the theoretically sovereign Knesset (parlia-
ment). This situation represents a marked change from the norms of 46
years ago when the state came into existence. Then, power and authority
were concentrated in the elected agencies, the Knesset and, particularly,
the Government. Rampant partisanship, arbitrary and self-interested
policies, and, worst of all, an inability to deal with crucial problems beset-
ting Israeli society, corroded that authority and, ultimately, the power of
the elected leadership. The default of Israel's democratically elected
leadership has led to the judicialization of politics.

Rampant partisanship has been a feature of the Israeli state since before its incep-
tion in 1948. Most of today's political parties had their origins in the Zionist
movement which created Israel. They were voluntary associations formed to build
the homeland in Palestine, each with its own vision of what the future Jewish State
should be like. Each party sought to influence the course of events not only by direct
political action in Mandate Palestine and within the World Zionist Organization,
but also by establishing institutions that reflected its own ideology. Throughout the
pre-State period (1920-1948), the Jewish political parties tended to be more like
"totalistic" movement parties than the specialized electoral mechanisms found in
the United States (Duverger, 1954; Medding, 1990).
In the early years of the State the same pattern continued and was actually
reinforced by government policies. The mass immigrations, first from the
displaced persons camps in Europe and then from the Arab countries, were
handled largely by the Jewish Agency. Agency officials followed the established

0192-5121 94/02 177-10 ? 1994 International Political Science Association

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178 The Judicialization of Politics in Israel

pattern of allocating "resources" on a proportional basis to the various Zionist

parties. The new immigrants were apportioned among the political parties on the
basis of a party key, and each party was responsible for integrating its quota of
immigrants into society. As with the earlier, pre-State immigrants, the new
arrivals were supplied housing, education, employment, etc., by party-affiliated
institutions.
Gradually state institutions replaced party ones. In 1953 a state school system
replaced those run by the political blocs.' In 1959, state labor exchanges replaced
those operated by the political parties. A Ministry of Immigration and Absorption
was created, though the division of functions between it and the Jewish Agency
remains less than fully articulated. Moreover, the initial disposition of the new
immigrants had no legitimacy in law or in the fundamental ideology of the new
State; it had simply been the product of expediency. Hence, when the economy began
to expand in the mid-1950s, the new immigrants felt free to move outside the party
orbits to which they had been assigned, and they were given practical encourage-
ment to do so by the increased demand for manpower in the urban centers.
Thus, over time, the extra-governmental role of the Israeli political parties has
been reduced. It has not been eliminated. The parties still provide their members
with a variety of ancillary services-youth movements, athletic activities, health
services, etc. Furthermore, the creation of government agencies did not invariably
displace the parties. Except for the Israel Defense Forces and the civil judiciary,
Israeli government bureaucracies show an excessive tenderness toward partisan
considerations. Through appointments, patronage, contracts, and administrative
rulings, government ministries have been turned into party institutions under other
names. In Israel, the emergence of a state bureaucracy has not resulted in the
implementation of Max Weber's rationalistic, legal norms or in the withering away
of the political parties. By all accounts, partisan influence still matters a great deal
in Israel.
It should also be noted that until May 1977, Israeli politics was dominated by
Mapai and its successor, the Labor Party. For the first 29 years of statehood, and
indeed throughout most of the 30 years of the British Mandate that preceded
independence, the Jewish community in Palestine was led by socialists. While the
Mapai-Labor leadership group was more pragmatic than doctrinaire, and while they
were never able to enact their complete programme, they were ideologically
disposed to a state-run society. By design, the "House of Labor" permeated all
aspects of Israeli society (Perlmutter, 1970; Medding, 1972). The governments since
1977 have been dominated by Likud, which is more ideologically inclined toward a
market economy. To date, however, the temptations to utilize the "spoils of office"
for partisan advantage have outweighed Likud's ideological commitment to pri-
vatization. Israel remains a society dominated by government institutions directed
by highly partisan political parties.
Thus the key political institutions of Israel are not the formal governmental
agencies, but the political parties. This is particularly true of the parties that form
the cabinet coalition, and thereby control the ministries. Israel is a highly politi-
cized nation. From the early days of the British Mandate, political parties have been
omnipresent and powerful institutions within the Jewish community. This role has
diminished somewhat under the growing impact of state institutions, yet political
parties in Israel still "occupy a more prominent place and exercise a more perva-
sive influence than in any other state, with the exception of some one-party states"
(Akzin, 1955: 509).

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 MARTIN EDELMAN 179

II

As might be expected in this environment, overt partisan considerations are

inescapable elements in the workings of the Knesset and the Government (cabinet).
Parliamentary parties act to further, in that arena, the ideological goals of the
Zionist groups that spawned them. Party discipline is exceptionally strong; a
member of the Knesset is expected faithfully to carry out the party's programme.
Despite the multi-party system, and despite the failure of any single election list
ever to obtain a parliamentary majority, decisions reached by the government are
rarely overturned by the Knesset; the centralized hierarchical nature of Israeli polit-
ical parties all but insures a parliamentary majority for any government proposal.
As a result, Israelis expect that public policies emanating from these institutions
will reflect the partisan concerns of the parties in the governing coalition.
Since Israeli democracy has always been based upon a wide-open, robust compe-
tition among a multitude of political parties, Israelis have been keenly aware that
their security from arbitrary governmental coercion is based upon a rather strict
adherence to the ideal of the rule of law. The clash of partisan and ideological
values has even prevented Israel from adopting a written constitution (Edelman,
1980; Edelman, 1992b). Without a written constitution, Israelis perceive that the
rule of law is the only way to limit some of the more egregious consequences of
their highly partisan politics. And like the rest of the Western world, Israelis see
the courts as the guardians of that value.
The rule of law means "that government in all its actions is bound by rules fixed
and announced beforehand-rules which make it possible to foresee with a fair
certainty how the authority will use its coercive powers in given circumstances and
to plan one's individual affairs on the basis of this knowledge" (Hayek, 1944: 72).
The idea that all governmental action must be authorized by law is the residue of
the long, historical struggle against tyrannical rule. And the horrors perpetrated by
so many regimes during the twentieth century have powerfully reinforced the
importance of the rule of law as a hedge against arbitrary, ad hoc governmental
action which can be potentially brutal to the point of being genocidal.
From this perspective, law is seen as something quite distinct from politics. In
politics, values and principles are perceived as instrumental tools for achieving
certain results. Law, on the other hand, is perceived as flowing from an impartial,
objective analysis of rules and principles. Law and politics are seen as distinct
methods of conflict resolution (Wechsler, 1959).
To protect the rule of law, the Israeli political elite, consciously, and with consid-
erable effort, decided to insulate the judiciary from the political environment. To
maintain the civil judiciary's independence from the partisan political arena, the
judges, particularly the Supreme Court justices, are selected on the basis of profes-
sional criteria rather than on economic, social, or political characteristics. And the
separation between the civil courts and partisan politics is systematically reinforced
by an array of operating practices and norms (Edelman, 1992a).
Because the civil courts, particularly the Supreme Court, are seen as "the tradi-
tional repository of independent, objective, and impartial decision" (Elman, 1971:
405), they have come to play an increasingly important role within Israeli society.
In the 32-year period from 1956 to 1987, the number of cases entered on the
Supreme Court docket increased a staggering 632 percent while the population
increased by 230 percent. In the exercise of its broad equity jurisdiction, the
Supreme Court, sitting as the High Court of Justice, received 1 466 petitions in

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180 The Judicialization of Politics in Israel

TABLE 1. Trust in Israeli Institutions (rank indicated in parentheses).

Total 1987 1989 1990

IDF 90.3(1) 91.5(1) 88.5(1)

90.1(1)
Courts 82.5(2) 79.3(2) 77.8(2)
79.9(2)
Universities 75.5(3) 68.8(4) 68.0(4)
70.7(3)
Police 62.0(4) 69.8(3) 72.5(3)
68.1(4)
Knesset 59.8(5) 52.3(6) 48.0(7)
53.4(6)
Government 59.5(6) 52.3(5) 46.8(9)
52.9(7)
Local Government 58.5(7) 50.8(7) 53.0(5)
54.1(5)
Histadrut 45.3(8) 34.5(11) 40.3(10)
40.0(10)
Rabbinate 43.5(9) 50.5(8) 50.5(6)
48.2(8)
Big Business 43.3(10) 38.5(9) 47.5(8)
43.1(8)
Press 40.3(11) 38.0(10) 38.8(11)
39.0(11)
Political Parties 34.8(12) 30.3(12) 32.0(12)
32.4(12)
Average 57.9 54.7 55.3
55.5

Source: Yuchtman-Ya'ar and Peres, 1991: 24.

1987, more than seven times as many as 32 years earlier (

Statistics, 1956: 328; 1988: 8). Israelis are asking the civil cou
High Court-to render judgment on an increasingly large numb
Moreover, the Israeli public plainly trusts the judgment of the c
Israeli surveys indicate that the civil courts are second only to
Forces-the quintessential guardians of the national interest-i
support. And as Table 1 indicates, that trust greatly exceeds the p
in the overtly partisan policy institutions-the Knesset, the G
especially, the political parties themselves.
It is also important to note that the deep support for the ci
throughout society. Trust in the civil courts does not vary fro
between the politically liberal and the politically conservative
1989: 10-11). This would indicate that support for the civil cou
upon the public's respect and concern for the rule of law.

III

It is also possible that the data reflect the Israeli public's almost total disdain fo
the immobilisme that has beset Israeli political institutions for at least the last

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 MARTIN EDELMAN 181

decade. Israeli surveys do not, like their American counterparts, probe why people
view the judiciary as they do. But as Table 1 indicates, the political parties are
consistently the least trusted Israeli institutions. And in recent years, the Knesset,
and particularly the government, have suffered a precipitous decline in public
esteem. The reason is clear to all: the partisan political agencies of the Israeli
government are unable to deal with important, clearly recognized problems.
Israeli governments are preoccupied with maintaining their parliamentary coali-
tions rather than with formulating and implementing public policies. The precari-
ous nature of government stability is undoubtedly linked to the multiplicity of
parties within the single-chamber Knesset. Since the establishment of the State, no
single party list has ever won a majority of the 120 seats; all governments have, of
necessity, been based upon parliamentary coalitions.
For most of Israel's short history, its multiparty system did not preclude strong
government. From 1948 to 1977, the Labor Party (or its predecessor, Mapai) was
the dominant party. Any and all public policy successes and failures could fairly be
attributed to its leadership. After the 1977 elections, a Labor-led government that
had begun to drift aimlessly was replaced by a Likud-led coalition. And in the first
two Likud-led governments (1977-1984) that party was clearly directing the ship of
state.

Since 1984, however, neither of the two large parties has had a dominating
ity in the Knesset. There has been a continual, fierce jockeying for power. A
a National Unity Government based upon both large parties imposed a t
cease-fire in the political wars. But the significant ideological difference
Labor and Likud-especially over the future control of the areas Israel h
istered since the 1967 Six Day War-precluded strong, sustained go
policy-making; the ministers were more concerned with possible future
with some of the smaller parties. At other times, Likud formed a govern
several smaller parties. But their policy demands, particularly those of the O
(ewish) religious parties, also resulted in policy stalemates. As a result,
ical system, dominated by the party structures, seems incapable of utilizing
mental agencies to deal with social problems.
Therefore public cynicism born of governmental immobilisme may also ac
the increased judicialization of politics in Israel. Within the existing stru
civil judiciary appears to provide the only rational, objective policy-m
contrast to the politicians, the judges appear willing to decide matters (r
to postpone) regardless of the political fallout, and to decide on th
standards and principles rather than on electoral considerations. The cou
fore, are continuously being asked to rule on an ever wider range of ma

IV

The partisanship and immobilisme besetting Israel's elected institutions explain the
judiciary's increasingly important role. In 1948 the Supreme Court functioned very
much like the House of Lords in the British system; its impact on governmental
policies was on the margins. Now the Israeli Supreme Court is exercising power
akin to that of its American counterpart; it is an important player in the public
policy process.
This change was facilitated by the dual nature of the Supreme Court's jurisdic-
tion. One part is quite unexceptional. Within Israel (including all of Jerusalem),3
the civil courts-the Magistrates' Courts, the District Courts, and the Supreme

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182 The Judicialization of Politics in Israel

Court-have basic jurisdiction in criminal and civil matters. The Israeli Supreme
Court, as the final authoritative interpreter of the law of the state, has full appel-
late jurisdiction on the procedure and substance of criminal, civil, and administra-
tive cases decided by the District Courts. It also hears appeals from such other
tribunals as the labor courts, workers' compensation boards, and rent tribunals
(Basic Law: The Judiciary, 1984; Courts Law, 1984).
Another part of the Israeli Supreme Court's jurisdiction is quite distinctive. It
exercises an equity jurisdiction both as a court of first instance and of appeal. In
this capacity, sitting as the High Court ofJustice, it deals with matters in which it
may be necessary to grant relief in "the interests of justice." Palestinians in the
occupied areas were granted access to the Israeli High Court by a decision of the
government not to oppose such applications.4 Thus the High Court ofJustice deals
with claims by Palestinians that the Israeli occupying authorities-the Civil
Administration-have exeeded or misapplied their powers in the same way that it
hears petitions by Israeli citizens against their government.
The High Court is also authorized to review the actions of the military courts
and the various religious courts.5 But it will interfere with the judgment of a
military court only if that court plainly exceeds its authority or if a clear injustice
has been done to the petitioner. Only questions of whether a case is properly within
the jurisdiction of a religious court will be entertained. Similarly, only matters
affecting the jurisdiction and procedure of the military courts can be challenged in
the High Court of Justice.
This jurisdictional arrangement has permitted the civil courts, particularly the
Supreme Court functioning as the High Court of Justice, to change their focus to
match the changing environment in which they function. In the early years of the
State, the Supreme Court was necessarily concerned with establishing its authority
by generating respect for its decisions. The justices were aware that in the turbu-
lent domestic and international situation of their new state, appeals to practical
necessity could be used to evade or ignore court orders. Therefore, the early
Supreme Court opinions were characterized by a highly formalistic legal style,
narrow interpretation of statutes and precedents, adherence to stare decisis, and
deference to the decisions of the Knesset, the government, and the Israel Defense
Forces. Throughout, the civil courts emphasized the importance of the rule of law
and their own adherence to those rules (Zeev v. Gubernick, 1945; Bezerano v. Minister
of Police, 1949; Al-Couri v. Chief of Staff, 1950).
Gradually the civil courts, particularly the Supreme Court, expanded their
conception of the rule of law. In a number of important cases, the Supreme Court
asserted the right to interpret legislation in light of the principles of natural justice.
Rights to a hearing and cross examination were required in statutory proceedings
that did not provide such safeguards. Administrative discretion to deny licenses, to
determine election lists, to register companies, and to censor newspapers was
substantially curtailed (Albert, 1969; Goldstein, 1982). By 1974, it was clear that
the Israeli courts' concern for the rule of law was being extended to protect human
rights (Shapira, 1974).
Israeli citizens, and even the Palestinians in the occupied areas, responded by
turning to the courts, particularly the High Court, with the increasing frequency
noted above. The judges came to understand this new situation as the result of an
increasing concern for the rule of law-the very ideal they had helped to establish.
They recognized that the civil courts were perceived as the guardians of that value.
In the absence of a written constitution, the judges now believe that the civil courts

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 MARTIN EDELMAN 183

must be active policy-makers: in the Israeli system, the courts provide recourse from
arbitrary governmental decisions driven by partisan considerations; there is no
other mechanism for protecting the individual rights and political liberties essen-
tial for maintaining Israeli democracy. "When the Court does not become involved,"
declared the justices, "the principle of the rule of law becomes flawed. A
Government that knows in advance that it is not subject to judicial review, is a
Government likely not to give dominion to the law, and likely to bring about its
breach" (Segal v. Minister of Interior, 1980). Justice Aharon Barak (1989) maintains,
for example, that unlike their American counterparts, Israeli judges need not be
constrained by concerns about exercising an undemocratic authority since in the
absence of a written constitution their decisions can always be overridden by a
legislative majority.
Israeli judges have responded to the ever increasing appeals for judicial inter-
vention by handing down decisions on an ever wider range of issues. The High Court
has held that it has jurisdiction to examine the internal decisions of the Knesset
itself, including a decision on whether a proposed bill can be tabled (Sarid v. Speaker
of the Knesset, 1982; Kahana v. Speaker of the Knesset, 1985; Kahane v. Speaker of the Knesset,
1986) and whether to remove the immunity of a Knesset member (Mi'ari v. Speaker
of the Knesset, 1987). Similarly, a government's highest policy objectives, like the
Likud-led coalition's settlement policy on the West Bank, have been successfully
challenged in the High Court (Dweikat v. Government of Israel, 1980; Samara v.
Commander ofJudea and Samaria, 1980; Kfar Vradim & Others v. Minister of Finance,
Elivahu v. Minister of Defense & Others, 1989). As David Kretzmer (1990) says, "the
net of judicial review extends over all arms of government, and over almost all types
of activities." Only an explicit legislative act of the Knesset that does not conflict
with an entrenched provision of a Basic Law is immune from judicial control
(Edelman, 1992b).

In Israel, a fascinating pattern has emerged from the sharp dichotomy between the
operating norms of the political and legal realms. It is a phenomenon with signifi-
cant consequence. Israeli politics is marked by intense ideological partisanship, a
partisanship that is more extreme than in any other Western-oriented democracy.
Policies emerging from the institutions rooted in the electoral system are therefore
perceived as essentially partisan. The Israeli legal world is seen as operating on the
basis of formal criteria. Decisions emerging from the civil courts are perceived as
being rooted in the type of rule of law first enunciated by Max Weber (1925, 1954).
Precisely because the judges, particularly the justices of the Supreme Court, are
seen as the guardians of the fundamental values embedded in the rule of law, and
precisely because they are not seen as using their positions to advance special
causes, these figures possess considerable authority.
Israel, like other Western societies, has inherited the ideal that the public realm
ought to be based on the common good, that public policy ought to be made in the
spirit of disinterestedness. In the actual political system of Israel, only the civil
courts approximate that ideal. Therefore, in the highly politicized democracy that
is Israel, authority-and considerable political power-has flowed toward its
premier non-partisan institution, the civil judiciary.
The judicialization of politics in Israel has been further accelerated by the
functional immobilisme of its elected agencies. At least since the 1982 Lebanon War,

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184 The Judicialization of Politics in Israel

the government has been unable to formulate and implement systematic policies
to address the most obvious problems confronting the nation: economic stagnation;
absorption of the massive influx of Jewish immigrants from the countries of the
former Soviet bloc and from Ethiopia; and stable peace and/or security arrange-
ments with the Palestinians and the rest of the Arab world. The coalition politics
emerging from the multiparty Knesset has produced government policies that, at
best, can only be characterized as temporizing, ad hominem efforts to muddle
through. In that context, court decisions have a strikingly different character: they
appear to be decisive policies based on fixed standards. The default of Israel's
democratically elected leadership has produced a vacuum; and the people have
turned to the courts to resolve an ever increasing range of problems.
The civil judiciary in Israel are exercising power at the expense of politicians and
administrators. At this time of writing, the judicialization of politics is an inexorable
feature of Israeli society.

Notes

1. The 1953 Act did not impose a single uniform system of education. There are four type
of educational systems in Israel today: a state secular (Jewish) system; a state religio
(Orthodox Jewish), system; a state Arab system; a set of independent, largely ultra
Orthodox Jewish, religious schools which are heavily subsidized by the government.
2. This frustration with the existing system accounts for the upsurge of institutional refor
Currently Israel elects its Knesset via a proportional (closed list) system. In the closin
days of the 12th Knesset (March, 1992), the percentage of votes needed to guarantee
least one seat in the Knesset was increased from 1 percent to 1.5 percent. More impo
tantly, in 1996 the Israelis will directly elect their prime minister instead of having th
premier emerge from bargaining among the parliamentary parties.
3. Israel annexed East Jerusalem after the 1967 Six Day War and codified that annexati
in Basic Law: Jerusalem (1980).
4. That action, allowing residents of an occupied area to have access to the civil courts
the occupying power, is unprecedented in international law and was not authorized b
Israeli statutes. With the passage of time, it has become accepted practice in Israel.
5. There are 14 state-recognized religious communities in Israel, each with its own cou
system: the Rabbinical Courts (Jewish); the Shari'a Courts (Muslim); the Druze Religio
Courts; the Bahai Courts; and the courts of 10 Christian communities-Eastern (Gree
Orthodox); Latin (Catholic); Gregorian Armenian; Armenian (Catholic); Syrian
(Catholic); Greek Catholic (Melkite); Maronite; Syrian Orthodox; Chaldean (Uniate); an
Evangelical Episcopal. The religious courts have exclusive jurisdiction over members o
their communities on matters relating to marriage and divorce; many of these courts als
resolve other private law matters within their communities.

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Zeev v. Gubernick (1948) 1 P.D. 85.

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186 The Judicialization of Politics in Israel

Biographical Note

MARTIN EDELMAN is Professor of Political Science at Rockefeller College of

Affairs and Policy, The University at Albany. He is the author of Democratic
and the Constitution (1984); Courts, Politics, and Culture in Israel (1994) and
studies on Israeli courts which have appeared in a variety of scholarly j
ADDRESS: Department of Political Science, The University at Albany, 135
Avenue, Albany, NY 12222, U.S.A.

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