Israel Studies 3.2 (1998) 1-5
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Guest Editor's Introduction
AT FIFTY, ISRAELI LAW IS bursting with judicial and scholarly activity and creativity. Up until the 1970s, scholars were content, even proud, to present to the world learned treatises on the state of the positive law. Known as "Kommentars" (a German term), these treatises—typically dry and technical—offered meticulous analyses of the available case law in Israel, as well as summaries of the relevant comparative law. The judiciary was treated reverentially ("with all due respect we differ from the reasons submitted by the honorable judge . . .") and social and political contexts were generally ignored. Judicial opinions, with relatively few exceptions, were short and succinct, full of deferential language or precedents at home and abroad and deficient of normative or policy arguments.
Not any more. A hundred page opinion spinning philosophical arguments or political theory is no longer a rarity. Deference to the other branches of government is generally not considered as synonymous with virtue, and judges find that the cautious respect to which they have been accustomed is being replaced by direct and often sharp criticism. Israeli scholars, mainly (but not only) educated in the United States, display a different approach to scholarship. They are concerned with context, with law's impact on society, with the intricate means by which law affects culture and is in turn affected by it, and by the possibility that law, at least sometimes, is politics.
At this point, the reader should be cautioned against a linear reading of Israeli legal history. While Israeli law has been under the spell of formalism and positivism for a good part of the state's lifetime, it would still be a mistake to portray it as wholly formalistic. Themes from sociological jurisprudence and legal realism have always been present in Mandatory and Israeli law. As I have tried to show in my own work, Chief Justice Simon Agranat, born and educated in the United States, absorbed—and during the 1950s and 1960s, championed—the more contextualized approach to law. 1 This approach is primarily known for its sensitivity to the relationship between legal developments and social and historical factors. Indeed, in his [End Page 1] essay in the present issue, Chief Justice Aharon Barak quotes from Chief Justice Agranat's most celebrated opinion, Kol Ha'Am vs. Minister of the Interior: "For it is a well known axiom that the law of a people must be studied in the light of its national way of life." Barak thereby concedes the intellectual debt that present Israeli legal scholars and judges owe their predecessors of the 1950s and 1960s.
This special section samples the richness of contemporary Israeli legal scholarship. It presents a collective profile of some of the most pressing issues facing Israel today, while introducing the non-Hebrew reader to promising young scholars in the legal academy.
I chose Barak's essay on the "Role of the Supreme Court in a Democracy" to lead this section, because Barak's work is the most formidable example of the transformation of Israeli law and because he is by far the most influential man in Israeli law today. One cannot understand contemporary Israeli law or evaluate the changes it is experiencing without taking note of Barak's influence or of his legal and constitutional thought. When Barak joined the Supreme Court in 1978, he was the fixed star of Israeli law, well known for a brilliant career as a law professor and as attorney general and for a string of publications in private law, which were mainly formalistic and doctrinal. After he joined the Court, Barak shifted his attention to Israeli constitutional law and his methodology to sociological jurisprudence. Certainly he was not alone, and other justices on the Court, most notably Chief Justice Meir Shamgar, joined him in this effort; but, one can safely attribute much of the transformation to Barak's influence.
The most salient features of Barak's judicial contribution to Israeli law are the expansion of Israel's judicial bill of rights and the bold assumption of judicial review of legislative...