Israel Studies 3.2 (1998) 159-192
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The Secret German Sources of the Israeli Supreme Court
Fania Oz-Salzberger and Eli Salzberger
THERE ARE SEVERAL GOOD REASONS for the recent mounting interest in the history of Israel's legal and judicial system. Israel is going through an era of enhanced legalization, which is apparent in stronger emphases on constitutional norms and discourse, in the increasing strength of legal institutions, and in a greater public sense of the powers of litigation. Gone is the traditional contempt for resorting to the court that characterized the ruling Labor movement during Israel's formative years. The law and the courts have become one of the country's most significant political establishments. The legal professions have acquired unprecedented prestige. Lawyers and judges have become media celebrities as never before. Above all, the Supreme Court of Israel is emerging as the dominant branch of government. It is moving center-stage in the collective decision-making process in Israel, affording an unusual degree of intervention in the conduct of the other branches of government, and thus attracting ever greater attention, as well as criticism, from the Israeli media and public.
The question why all this has happened is yet to be answered. On top of the inherent weakness of judicial branches of most governments, 1 in Israel the lack of a written constitution could be expected to make the Supreme Court even more fragile and dependent than equivalent institutions elsewhere. Yet a close look at the reaction of the legislative and executive branches of government in Israel to the growing power of the Supreme Court would lead to opposite conclusions. Not only have the other branches refrained from putting up a fight against the rising judicial empire; they have actually delegated more powers over the years to the courts and enhanced their structural independence. 2
The present paper is not designed to offer a straightforward solution to this enigma. Instead, it offers a glimpse into the collective biography and intellectual legacy of a distinct group of German-born or German-educated jurists who came to Palestine during the 1930s following the rise of Nazism, [End Page 159] reached key positions within the Israeli legal system, and became the founding fathers of the Supreme Court of Israel. We believe that their story may shed new light on the current status of the Court as an institution and on Israeli jurisprudence as a whole. A fascinating example for this path of research has already been set by Pnina Lahav in her study of the English and American influence on Israel's Supreme Court, and especially of the legacy of Justice Simon Agranat and his influence on Israeli law. 3 Here we propose to focus on a different, and surprisingly neglected, source of cultural impact on Israeli legal culture. About half of Israel's first-generation Supreme Court judges came from Germany, where they were raised or educated. The effect of their German origins on the Court, and on the broad contours of Israeli jurisprudence, merits careful consideration.
A study of the German Jews and their special contribution to Israel's legal and political culture may contribute to the understanding of other aspects of the history and sociology of this young immigrant society. It may also enrich our discussion of questions about legal culture, how it is developed and transplanted, how ideas cross conceptual and linguistic borders, and what processes of selection and shifts of meaning are at work. It may illuminate changes in the social and political status of judges and courts. The [End Page 160] findings of our field research may be conducive to broader discussions along these lines.
We begin with the basic statistics and biographical sketches of the first-generation "German" judges of Israel's Supreme Court. We then turn to examine their collective background as young men in the Weimar Republic and discuss the political and legal setting that affected their formative years. This is followed by a detailed analysis of the impact of the German-born or German-educated judges...