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121 5 Changing Visions, Conflicting Missions Signaling the Judicial Community In chapter 4, I argued that the judicial community in Israel—the community of the justices that includes legal scholars, government lawyers, cause lawyers, and clerks and interns—functions as a community of legal norms generation. Lawyers in this community have a fairly good sense of the types of questions and legal arguments to which the High Court of Justice is apt to be open. On the other hand, while I do not argue that the justices are directly influenced by this community in their legal reasoning, they are influenced to the extent that they live and work and write and think in close contact with this as their most salient intellectual community. Throughout the 1990s, the connections of the justices with international legal scholars have also increased, making that a relevant community for the justices today. However, in the 1980s, when the cases discussed in the next chapter were incubating in the minds of cause lawyers, there had already been distinct signals from the court that it might be open to arguments based on issues of rights. These signals began in the 1970s in extra-judicial writings that only increased in the 1980s. In this chapter, I focus on extra-judicial writings, particularly in Israeli law journals, through which justices signaled the judicial community that the HCJ might change its approach to issues of rights if given the opportunity (Epp 1998). The most prolific writers on the topic at the time were justices Haim Cohn, Meir Shamgar, Aharon Barak, and Menachem Elon.1 I treat their writings together in chronological order, which presents a changing picture over time in keeping with what was visible at the time to anyone who was reading their articles or listening to their speeches at conferences. While we will see that they reflected somewhat differing approaches, particularly in the case of Elon, a coherent emphasis on justice and equality reappears as a common thread throughout all of their writings, be the topic the role of the court, constitutionalism, rights, or the Jewish heritage. There was not one sense of mission on the HCJ—in fact, the new trend toward activism vis-à-vis rights was in marked contrast to the tradition dominant in the 1950s. But through the writings discussed in this chapter, we see an attempt to develop a new mission for the court, centering on an expansive notion of the rule of law and on both civil (citizen) and human (noncitizen as well) rights. There remained, and in fact remains today, debate over what the appropriate mission of the court should be. Mission, in this context, means: “An identifiable purpose or a shared normative goal that, at a particular historical moment in a particular context, becomes routinized within an identifiable corporate form as the result of the efforts of certain groups of people” (Gillman 1999, 79). In the 1970s, the positivists began to be outnumbered by the more activist-inclined justices. Interestingly, this change began at least nineteen years before the HCJ decided to enter the religious law conflict in the late 1980s. Thus, it does not explain why the HCJ entered that conflict when it did. But changes in personnel were an important factor in the debate that emerged in the court, in legal journals, and eventually in the press and over dinner tables around the country,2 over the appropriate basis of legal interpretation and the appropriate role of the HCJ in society and politics. It is noteworthy, in the context of ongoing debate over the mission of the court, that in some cases, such as that of Aharon Barak, his writings before he became a justice were much more technical in nature than after he was inducted as a justice in 1979.3 In other cases, such as Cohn, his writings as a retired justice became, if possible, even more outspoken and explicit about his vision of the proper role of the HCJ and the rule of law. The proper role of the HCJ, the proper sources of law, and the extent of rights in Israel were established in precedent, debated, and often continue to be debated through the present. For example, in the 1953 Kol Ha’am v. Minister of Interior case, the HCJ decided strongly in favor of freedom of expression, including establishing the Declaration of Independence as a legitimate source of law. However, its use as a source of constitutionaltype principles (equality by race, religion, sex, and...

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