Vol. 4, No. 9 (September, 1994)

COURTS, POLITICS, AND CULTURE IN ISRAEL by Martin Edelman. Charlottesville: University of Virginia Press, 1994. 169 pp. $28.50.

Reviewed by Martin Shapiro, University of California, Berkeley

This book is both a very brief, general primer on the Israeli courts and a specialized study of the inter-relations between courts and political culture. As a primer it contains an excellent historical introduction to the unsuccessful Israeli attempts to enact a written constitution and a survey and very clear analysis of the constitutional status of the Basic Laws. It then turns to chapters on the various Israeli court systems.

The chapter on the regular courts is disappointing. Regrettably, following the traditions of public law political science, it is almost exclusively about the Supreme Court and contains no empirical description of the actual work of any of the courts. It confines itself almost entirely to the judicial selection process and to repeated assertions that the Supreme Court has established a strong civil rights and liberties tradition even in the absence of a written bill of rights, particularly when it sits as the "High Court" wielding extensive equity powers. But it offers no statistical evidence, systematic doctrinal analysis or even case examples to support this assertion, although it footnotes to some cases and secondary literature. For actual presentation of such evidence, the reader must turn to Sharfman (1993) which Edelman cites. Again, regrettably following the worst public law practice, Edelman explicitly excludes consideration of the administrative and labor courts. Even in its treatment of judicial personnel of the Supreme Court, the book is somewhat disappointing in not examining the stances and influence of various individual justices on the eternal question of activism versus self-restraint. There is a good deal of evidence available on this question, both in the Court decisions and the justices' off-the bench writings.

The chapters on the Muslim and Druze courts present far better empirical descriptions, in part because the very limited jurisdiction of these courts makes their work easier to describe, and in part because Edelman can rely on extended studies of both by Aharon Layish (1975) (1982).

The chapter on the rabbinical courts is essentially an essay on the conflicts over marriage and divorce between Orthodox and other Jews. It makes the interesting point that Israel is the only "Western" country in which orthodox rabbis have received only yeshiva and not university training and so are exclusively devoted to ancient words with little interest in their modern surroundings.

The chapter on the military courts also provides little empirical description of their work style. These courts are especially important in Israel because they conduct criminal trials of Palestinians in the occupied territories, while the regular courts try Israeli settlers in the territories and both Jewish and Arab Israeli citizens within the regular state boundaries. The chapters contain much talk of a "double standard" which sometimes means simply that Palestinians and settlers are tried by different courts and sometimes means that the regular courts are more lenient

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to Israeli Jews who commit terrorist acts against Arabs than they are to Arab Israeli citizens who commit terrorist acts against Jews. The evidence for the existence of the latter double standard is a few high profile cases, and the author quite fairly notes that there are other cases in which no such double standard is in evidence.

As a specialized study on courts and political culture, this book has some very interesting points to make stated with the caution appropriate to any vocation of the indeterminacies of political culture. Edelman finds that the regular courts, particularly the Supreme Court, have played an important role in establishing an Israeli commitment to a liberal political culture of universal, equal civil rights and liberties and that the success of the courts in this respect is in turn based on a strong Israeli political cultural norm of an independent, impartial, non-partisan judiciary. Edelman's central point is the paradox that this very liberal democratic political culture must coexist in Israel with a political culture of "ethnic democracy," that is a democratic culture which celebrates the dominance of one religious community over others in a political system of formally equal rights of democratic participation. In this connection, Edelman notes that the Muslim and Druze courts, precisely because they are successful at reinforcing the sense of common culture within their own communities, contribute to undercutting any sense of national community and that the rabbinical courts similarly strengthen the sense of community among the Orthodox but, in their current rigidities, severely aggravate the discords between the most extreme Orthodox sects and the rest of the Israeli Jews -- both religious and secular. Edelman also finds that the failure of the military courts to enforce in the face of the intifada the norms of universal, equal human rights to which Israeli political culture subscribes is detrimental to that culture, and asserts, on the basis of little evidence, that the cultural failures of the military courts are infecting the civilian courts. To the extent that the regular courts have subverted norms of universal, equal rights, it is far more likely that the cause is the pressures of the intifada experienced directly by all Israelis, including judges, rather than any "diffusion" from the military to the regular courts.

Edelman does not invoke the language of multiculturalism, but in clearly exposing the problematic character of the millet system, that is the system of separate courts for each religious community within the state, for the development of a national political culture, and the dangers such systems pose for those who seek to foster a cultural allegiance to concepts of universal, equal, human rights, Edelman's study possesses a significance far beyond its Israeli subject matter. For those who teach comparative courts, this book is a godsend as an introduction for students and in opening up many fruitful research questions. For those who teach comparative constitutional law, the first chapter of constitutional history is essential, but for the actual substance of the civil rights and liberties law they must turn to the Sharfman book noted earlier.

References:

Layish, Aharon: WOMEN AND ISLAMIC LAW IN A NONMUSLIM STATE

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(New York: John Wiley, 1975)

Layish, Aharon: MARRIAGE, DIVORCE AND SUCCESSION IN THE DRUZE FAMILY (Leiden: E.J. Bill, 1982)

Sharfman: LIVING WITHOUT A CONSTITUTION: CIVIL RIGHTS IN ISRAEL (Armonk, N.Y.: M.E. Sharp, 1993)