Political Participation through the Judicial System: Exit, Voice and Quasi-Exit in Israeli Society

Introduction

THIS PAPER EXPLORES THE CONNECTION between forms of political participation and the political role of the Supreme Court in Israel's democratic system. ¹ Specifically, our argument is that Israel's political culture can be typified by a quasi-exit behavior, which means that people who are dissatisfied with various policies, and are unable to conduct, or have no faith in the efficiency of democratic forms of protest such as petitions, demonstrations and strikes, or are unable to exit from the society, create an alternative supply of a certain public good. This threatens the monopoly of the politicians and leads them to make changes in their policies in order to accommodate public demands.

Our argument is twofold. First: in an attempt to create alternative supplies of policy decisions, many groups in Israel appeal to the Supreme Court as part of a quasi-exit strategy, and, although all sectors of Israeli society are potentially capable of adopting this strategy, those who do so must be suitably knowledgeable and well-informed—in order to overcome the problem of collective action—and posses a measure of self interest that will make the appeal worthwhile. Second: the matter of response—by using an activist approach, expressed in its willingness to accept petitions without over-questioning the justiciability and standing of these petitions, the High Court of Justice (HCJ) adopts a quasi-exit strategy of encouraging appeals, and advances its organizational and political interests. ²

Thus the HCJ positions itself as a major political actor whose attitudes have to be considered when forming public policy, and further encourages social players to adopt quasi-exit behavior that takes the form of appeals to the HCJ, which in turn triggers the quasi-exit behavior of the HCJ, and so on. In this way, social players and the HCJ threaten politicians and are most likely to lead them to make institutional reforms. Our conclusion, therefore, that since any quasi-exit strategy, including via the Supreme Court, is semi-legal, it weakens democratic values and respect for the law within Israeli society.

The role of cultural factors and values in explaining judicial activism in Israel has been studied by various researchers, yet these studies mostly regard the public as part of the institutional structure rather than emphasize the strategic calculations of various social groups in turning to the Court. ³ In this paper, we discuss the socio-cultural explanations and the ways in which social players act as agents of political and institutional change.

What Causes People to Turn to the Court and How the Court Respond—Current Literature

The social and political role of the Supreme Court (henceforth: the Court) has been studied from several perspectives. Critical legal studies suggest that ruling bodies, groups and individuals gain legitimacy through judicial institutions such as the Court, which is therefore understood as part of the ruling elite and serves its interests. ⁴ Others view it as an interest group that attempts to advance its own sectorial goals. ⁵ From a sociological perspective, it is often viewed as contributing to a certain social equilibrium. Parsons argues that since many of the Court's rulings involve controversial issues, politicians and interest groups may try to restrain it. ⁶ Indeed, Turk argues that the Court does not solve conflicts but, rather, creates and even intensifies existing ones. ⁷

From an individualistic (or rational choice) perspective, Court judges may very well possess interests that are independent of those of certain social groups or elite, and, as part of a bureaucratic organization, they are most likely to be interested in preserving their organization's power and authorities. However, the separation-of-power principle that gives the Court a monopoly in interpreting laws, prevents it from being a regular bureaucratic organization. Rather, its unique role vis-a-vis politicians and citizens alike, often allows the Court to be...