|
Chapter Eight: Judicial Reality
The preceding analysis could provide an explanation - which I postulate but do not prove here - for some of the constructs of professional activity adopted by both state law and Halakhah. I begin with state law.
First, the expansion of standing.[95] In the past, the Court was wary of opening its doors to all who might be interested in litigation. Petitioners had to prove a personal link to the issue in question. Selectivity was meant to ensure that only “relevant parties” would seek remedy through legal procedures, and that these would not be exploited for unworthy purposes. At present, standing is almost unrestricted, and the Court is willing to consider a conflict without ascribing too much importance to the identity and to the interest of the petitioner.[96] The increasing accessibility of legal services may reflect the general responsibility assumed by the courts in regulating values in Israeli society.[97] If the Court holds that its task is not only to solve a specific dispute but also to formulate a set of values for Israeli society in general, no great importance should be ascribed to the somewhat technical question of the petitioner’s identity. In a rough generalization, the question of standing determines only the identity of the specific peg on which to hang a trailblazing ruling, which will serve society as a whole.
Second, judicial activism, according to one of its definitions,[98] prevails when the Court, out of all the possibilities at its disposal for ruling on a dilemma, chooses the one furthest removed from the law as heretofore practiced. An activist Court is more willing than other courts to change existing law through interpretive means. Changing the law is a means enabling the Court to bridge the gap that sometimes emerges between the law and reality. A legal system is by nature conservative and committed to custom and precedent; by contrast, the reality of our lives is dynamic, and raises new questions requiring decisions. New ideological currents change conventional thinking patterns concerning old questions. These general remarks are particularly true concerning Israel, which in recent years has undergone several shakeups in values, which have been both the cause and the effect of its present plight as a society in crisis. Changing value preferences, reflecting the spirit of Israeli society and its time-related needs, are supposed to affect the judicial outcome for which an involved judge, sensitive and socially responsible, would wish. Not surprisingly, then, the Court assumes responsibility for reforming the law through its rulings.[99] Indeed, the more judges and their surroundings are aware of this commitment, the greater the judge’s legitimacy and daring when relying on interpretation to change the law through adjudication.[100]
Third, judicial activism in its other sense—the Court’s growing involvement in issues usually appertaining to other branches of government—is also related to the leading role assumed by the Court concerning values. Some hold that the response expected from a Court attentive to social values concerning social needs cannot wait until clumsy legislative procedures mature. Furthermore, the legislative branch, partly because of its representative character and its sectarian fragmentation, is sometimes tainted by obstructive interests, and even by the suspicion of misuse of power. The executive branch also wields wide-ranging powers in Israel (anachronistically anchored in the relationship between the British Empire and its colonies, and presently justified by a longstanding state of emergency), incompatible with the present preferences of democratic Israel. Hence, in order for the Court to fulfill its role in influencing society’s way of life and shaping it so that it reflects the public’s current choices, it must cast a wide net and enlarge the scope of “justiciability”[101] by including issues more germane to the legislative or executive branches. Not only ordinary citizens[102] but even members of the legislature tend to seek the Court’s assistance to implement their own value preferences,[103] in a move seemingly puzzling in theory[104] but easily explained in practice.[105] Thus, as the value infrastructure of judicial activity is externalized, the justification for strengthening the status of the courts vis-á-vis other branches of government becomes clearer.[106]
Fourth, similarly, we can understand the tendency of the Supreme Court to formulate its rulings, sometimes at great length, as part of a comprehensive and systematic doctrine even when this is not required by the case in point.[107] Quite simply: if the Court envisages its task as providing a broad social service while solving a private conflict, it must present in its ruling the entire panorama of values. Only a full perspective will enable us to determine a hierarchy of values and a solid order of priorities that will stand the test of criticism. Therefore, when the conflict between the parties arguing before the Court does not bring to light the full complexity of the underlying priniciple in the case in point, the Court takes the liberty of expanding the range and suggesting a broad solution, even if it thereby exceeds the boundaries of the specific legal dispute.
In sum, the externalized value dimension in the Court’s rulings is the bridge across which march the imperial forces of the law in Israeli society.[108]
What about Halakhah? Although the end result is similar, it is attained through opposite means: the concealment of the value dimension in halakhic rulings is what enables its expanded influence.
As noted, a halakhic ruling, like any judicial ruling,[109] relies on a value choice.[110] The current monistic perception of Halakhah, however, tries to conceal this.[111] This strategy emerges as a sine qua non element for contemporary halakhists: were a value language evident in their rulings, Halakhah would be forced to adopt a direct attitude toward “modern” values, which on one hand are generally accepted by Halakhah’s present consumers, and on the other, is one “your fathers dreaded not” (Deuteronomy 32:17).
Emphasizing the discourse of values underlying halakhic rulings would force halakhists to bring their own attitudes to liberal culture and its values to the surface. They would be forced to choose between a clear and explicit rejection of liberal values and the endorsement and legitimation of these values, internalizing them into the halakhic discourse.[112] Both these options, however, are bad for halakhists. If they reject liberal values, they might alienate their listeners who, as noted, experience cultural duality in their daily lives and have therefore internalized many dimensions of the liberal worldview. If they endorse them, their halakhic rulings would reflect this, and they would be functioning as judicial activists.[113] Contemporary halakhists find it hard, for reasons I will not discuss here, to become halakhic activists, although this is an acceptable option in halakhic history (through decrees, interpretation, or midrash, as well as through legislative means, such as ordinances).[114] Hence, halakhists prefer to expunge value references from halakhic language. When Halakhah is monistic, a “mandatory” outcome of the Torah given to Moses on Mt. Sinai, halakhists need not, and perhaps are even forbidden to, discuss the value basis of their ruling. This enables compartmentalization (for the modern Orthodox) and alienation (for the ultra-Orthodox)—Halakhah and reality do not meet.
Concealing the values in halakhic rulings extracts a heavy price: a “value-laden” Halakhah could have been more spiritual, more intellectual, and more relevant. It could have expanded the meaning of contemporary religious existence because it would have narrowed the gap between Halakhah and reality. Instead, some contemporary halakhists incline toward entrenchment within the walls: “the Torah forbids the new.”[115] Unfortunately, the new refuses to disappear and increasingly threatens the old.[116] An entrenched, immutable Halakhah must defend itself. It endorses an imperialistic policy - “Turn it and turn it, for everything is in it” - and proclaims exclusivity in the regulation of reality. Halakhah thereby enables the compartmentalized and alienated existence of the halakhic individual in a world of dynamic values.
The picture that emerges, then, is one of a struggle between two cultures that is manifest in both legal systems: halakhic law conceals the place of values out of weakness, and state law flaunts the place of values from a position of strength. The common denominator is that their - opposite - attitudes to values encourage them to endorse judicial imperialism. Furthermore, on one hand, some contemporary halakhic mediators fail to internalize the full complexity of democratic values into Jewish-religious discourse, and feel threatened by them. On the other, state law has difficulty internalizing a perception of Jewish tradition, including its philosophy and its norms, as potentially contributing to shaping Israeli identity. This reality of growing disharmony between two imperialistic legal systems places individuals experiencing normative duality and multiple commitments in an impossible situation: they are required by both systems to choose between the yoke of the Heavenly Kingdom and the yoke of the world of law.
Notes
95. For a general discussion, see Zeev Segal, Standing before the Supreme Court [Hebrew], second edition (Tel Aviv: Papyrus, 1993).
96. Indeed, the expansion of standing rights, at least so far, extends only to public law. The distinction is as follows: “The attitude of one individual to another differs, after all, from the attitude of the authorities toward the individual. Although a relationship between private individuals does entail a duty to behave in good faith, one is not the trustee of the other. Not so in public law. The public authority is the trustee acting for the individual. In areas of public law, every individual has a right to demand that the government act within the framework of the law.” See Aharon Barak, “The Idea of Judicial Activism: Judicial Philosophy and Judicial Activism” [Hebrew], Tel Aviv University Law Review 17 (1993): 475, 488.
97. “The judge’s approach to rules of standing conveys his view of the role of the court in a democratic society and of its standing vis-á-vis other branches of government.” Ibid.
98. For this definition, see Aharon Barak, Judicial Discretion, trans. Yadin Kaufmann (New Haven: Yale University Press, 1989), 113.
99. “The activist judge clearly experiences the need to amend the law; he is convinced that he knows the correct way of amending the law; he is impatient and unwilling to wait until the law is amended, if at all, by others; and he is willing to assume responsibility for deliberately and explicitly amending the law through a judicial ruling. In brief, judicial activism, as far as it entails changes in the law, expresses an intent to reform the law through the judiciary.” Yitzhak Zamir, “Judicial Activism: The Decision to Decide” [Hebrew], Tel Aviv University Law Review 17 (1993): 649.
100. Since these value changes are taking place in a society in crisis, considerable sections of the public will indeed identify in the value decisions of the Supreme Court a concrete threat to their own values. Activism, in the sense of changing the law, alienates segments of the public not only from the specific ruling but also from the institution that creates it - the Supreme Court.
101. See, for instance, Ariel Bendor, “Justiciability in the High Court of Justice” [Hebrew], Mishpatim 17 (1987): 592.
102. See, for instance, Dan Maler, “The High Court of Justice: The Secular Israelis’ Option in the Fight against Religious Coercion” [Hebrew], Free Judaism 14 (1999).
103. “The civil judicial system is now viewed by a considerable portion of the Israeli population as an active participant in a political debate, an actor identified with the secular liberal segment of Israeli society.” See Menachem Hofnung, “The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel,” American Journal of Comparative Law 44 (1996): 585, 602. Yet, the Court’s tendency to assume a responsibility incumbent on other branches of government extracts a heavy price. Part of the public identifies this tendency as a deliberate effort by an elite, entrenched in the legal system, to impose its scale of values without testing them in the political marketplace of ideas. They view this as a power struggle between the Knesset, which is a representative system, and the Court, which is not. Critics do not accept the claim that judicial decisions are professional (so that the Court need not be representative), and that the judicial effort seeks to arrive at a result that will objectively reflect the values accepted in Israeli society. They describe Knesset members petitioning the Court as “bypassing the Knesset,” seeking assistance among ideological allies and bypassing the democratic procedure that should purportedly come to the fore in the Knesset’s political negotiations. Objections are voiced not only by political and cultural representatives of special minority groups in Israeli society (the ultra-Orthodox, modern Orthodox or Arab constituencies) or by interested parties, but also resonate increasingly in the media, in academia, and in various professional groups, including the legal community.
104. The politicians’ obvious interest is to prevent the seepage of decision-making powers from the political into the judiciary realm and to protect, as far as possible, the autonomy of the game and of the rules of the game in which they all participate. Quite obviously, although the two systems coexist, they also compete.
105. “Until the mid 1970s, politicians turned to the Court only in rare cases and only as a last resort.… [In the course of the 1980s] Israeli courts became quite a tempting option for opposition parties and individual politicians … trying to implement their own agendas through litigation, as well as for other players in the public arena, such as public interest groups.… The highly activist tendencies of the HCJ (the Supreme Court sitting as the High Court of Justice) with respect to governmental policy-making served as an invitation for many politicians (mainly from opposition parties) to challenge in Court all sorts of decisions made either by the cabinet or by other administrative agencies…. [P]etitioning the Court became quite an attractive arena for members of the opposition who wished to challenge government policies.” Menachem Hofnung and Yoav Dotan, Litigating Legislators: Political Parties in the Court (unpublished manuscript).
106. “The growing strength of the non-formalistic approach in judicial rulings means that the Court has become increasingly vocal concerning the values that should prevail in the various areas of life in Israel. The Court is therefore ‘activist’ in the sense that it places itself clearly and prominently in the position of being the one expected to decide on the ethical content of life in Israel (even if not directly at the expense of other branches of government). Broadening the scope of legal obligations means that behaviors that had previously been viewed as events on which the legal system has nothing to say, are today viewed as legally regulated. The Court is thus activist in the sense that it expands the scope of application of legal norms and the scope of the domain controlled by the legal system.” Mautner, The Decline of Formalism, 108.
107. This procedure involves high costs. See Ruth Gavison, “The Public Involvement of the High Court of Justice: A Critical Perspective” [Hebrew], in Gavison et al., Judicial Activism, 76-79.
108. Through this formulation, I am not trying to contend with the complex judicial rhetoric used to explain the law’s professional constructs. My main focus is precisely on an outsider’s analysis of the judicial reality.
109. One could claim that the decisions of a secular judicial system, interpreting a human law, are not comparable to the decisions of a religious judicial system, interpreting norms that originate (according to some views) in a divine revelation documented in sacred texts. This difference, however, is irrelevant to the present discussion, since all normative decisions, even one originating in revelation, necessarily rest on a value foundation.
110. Moshe Halbertal submits that the history of Halakhah should be explained as a series of interpretive moves. He examines the place of values in the rabbinic interpretation of tanaitic halakhic inferences and focuses, as a test case, on various passages dealing with the legal status of family members vis-á-vis the father. His work points to the extensive role of value considerations in guiding the choice between various possibilities of interpreting the text. At times, the value consideration guides the homilist to reject interpretive choices supported even by the text itself. Values thereby function as the instrument of interpretive revolutions, which radically change the judicial outcome. See Moshe Halbertal, Interpretive Revolutions in the Making: Values as Interpretative Considerations in Midrashei Halakhah [Hebrew] (Jerusalem: Magnes Press, 1997).
111. In this context, we should understand the decline in the value of Agaddah study in our time. We have not followed the advice of R. Abraham Yitzhak Kook: “One partition must still be removed, so that we might move freely between one domain and the other, namely, between the wisdom of Aggadah and the wisdom of Halakhah.” See Abraham Yitzhak Kook, Epistles [Hebrew] (Jerusalem: Mosad Harav Kook, 1962-1965), nos. 103, 123. It could be that precisely because of the abundance of value considerations explicitly manifest in aggadic discourse, Aggadah became less attractive to contemporary scholars, to yeshivah students and to halakhic authorities. On the relationship between Aggadah and Halakhah see, for instance, Yair Lorberbaum, Imago Dei: Rabbinic Literature, Maimonides, and Nahmanides [Hebrew], Ph.D. diss. (Jerusalem: Hebrew University, 1997); Zipora Kagan, Halakhah and Aggadah as a Code of Literature [Hebrew] (Jerusalem: Bialik Institute, 1988); Shulamit Almog, “Law and Literature, Halakhah and Aggadah” [Hebrew], Bar-Ilan Law Studies 13 (1996): 432-435.
112. In the halakhic homilies that Halbertal discusses, the sages reveal great awareness of their own value choices. The schematic language structure of some of the homilies indicates that the sages were aware of alternative interpretations, and even raised them as options, but rejected them if they contradicted the values they wished to promote. See Halbertal, Interpretive Revolutions, 171-183.
113. Halbertal proves that in the issues he discusses, the rabbis’ value preferences change the contents of their halakhic rulings: “The various halakhot evolving in the course of interpretation reflect moral attitudes that had played a crucial role in the interpretation process. The moral realm, then, rather than beside or beyond Halakhah as an extra-legal consideration, is part of it through the act of interpretation and in its course. The crucial function of the moral domain in the shaping of Halakhah is evident in its decisive role in the choice between various hermeneutical options or in the creation of novel readings.… The perception of Halakhah as a cluster of specific commandments from which to draw conclusions through the application of a formal hermeneutical system is thus groundless.” Ibid., 172.
114. See Menachem Elon, Jewish Law: History, Sources, Principles, trans. Bernard Auerbach and Melvin J. Sykes (Philadelphia and Jerusalem: Jewish Publication Society, 1994), Part 2.
115. R. Moshe Sofer, known as Hatam Sofer, was the first to use a defined halakhic injunction (forbidding the “new”) to formulate a general ruling objecting to innovation per se. See, for instance, Responsa Hatam Sofer, Part 1 (Orah Hayyim), no. 181.
116. For a definition of the threat that the “new” poses to Jewish tradition, see Ravitzky, Freedom Inscribed, 166-167.
|