In lieu of an abstract, here is a brief excerpt of the content:

4 Adjudication in the Service of Corporatism, 1969–1987 89 In the first chapter I argued that the literature on corporatism in particular, and industrial relations in general, usually ignores the development of law, deeming the legal rule to be exogenous. Where there are exceptions, the study of legal developments is often focused on legislation. By contrast, adjudication is totally marginalized and receives hardly any attention. It may be hypothesized that this is a result of the assumption that judges are the civil servants of the legal system and that it is their role to implement the legal rule as developed by the legislature. In legal scholarship this view has hardly any support. Many fields of law have been developed predominantly by the courts, ranging from the common law in the area of contracts, property, and torts law, to constitutional law. However, the omission of judicial lawmaking is particularly surprising in the area of labor law, where labor courts and tribunals are involved. Labor courts exist in many countries and can be distinguished according to their level of integration in the general legal system (Rogowski 1994). At one end of the continuum are administrative tribunals such as the National Labor Relations Board (NLRB) in the United States or the Conseils de Prud’hommes in France. Other states have established full-fledged judicial tribunals with powers matching those of the civil judicial system. As will be demonstrated, the Israeli labor court system, comprising five regional labor courts and the National Labor Court, falls into the latter category. However, the important role of the judiciary in establishing the legal infrastructure of corporatism cannot be captured without alluding to the role of the industrial relations system in establishing, staffing, and directing these courts. Although judges in the Israeli labor courts, as in most labor courts (France being the exception—Porcher 1994), are appointed by the state and therefore regarded as being insulated from the industrial relations system itself, the structure of the labor court system also ensures an affinity between the interests of industrial relations in general (rather than the interests of a particular party in a given dispute) and the mode of deliberations and reasoning within the courts. This chapter will fall into two parts. In the first I will discuss the establishment of the labor courts, the objectives that were used to justify the separation of dispute resolution in the area of labor law from other legal spheres, and how the structure of the labor courts was intended to serve the needs and interests of the corporatist system. Second, I will discuss the contributions of the labor courts throughout the relevant period. I will argue that the labor court system has contributed much to the development of corporatist labor law in Israel. It has provided the necessary rules for recognition, centralization, concentration , limiting the use of industrial action and unilateral action, and the broad application of collective agreements. It has strengthened the autonomous sphere of the social partners while maintaining the necessary ingredients for recognition. It will further be demonstrated that these decisions can hardly be viewed as merely the mechanical implementation of legislation. The labor court system must therefore be viewed as a strategic partner in the corporatist system rather than its civil servant. Only by observing the labor courts’ rulings until the late 1980s can we understand the level of perfection achieved in the construction of corporatist labor law. The Foundation of the Labor Courts The first proposal to establish a labor court was made in 1958, after an advisory committee had been appointed; the court was to be based on the same tripartite structure as was embodied in other laws (Berenson 1958). As was pointed out in the previous chapter, this was the period in which the legislature passed the infrastructure for collective agreements and corporatist negotiations (the Collective Agreements Law, the Settlement of Labor Disputes Law, and the Employment Service Law). The Labor Court Law would have fitted into this legislative project. The main objections at the time, however, came from the Ministry of Justice and the Supreme Court, which feared that the separation of labor disputes from the general judicial system would undermine the position of the general judicial system and serve as a precedent for future separations of disputes in other areas of the law. This indicates the presence of a pressure that has been overlooked in the corporatist literature. When the literature discusses the autonomy of the state and the relationship between...

Share