JUDGMENT IN JERUSALEM: CHIEF JUSTICE SIMON AGRANAT AND THE ZIONIST CENTURY by Pnina Lahav.  Berkeley: The University of California Press. , 1997. 331 pp. $29.95 Cloth. ISBN: 0-520-20595-2

Reviewed by Martin Edelman, Department of Political Science, University at Albany.
 

Pnina Lahav has written a fascinating biography of Israeli Chief Justice Simon Agranat. But it is much more. The Jewish State was established just 50 years ago amid both internal and external conflict. The nature of the polity is still a contentious matter, as current headlines confirm. Over the course of its short, turbulent history, the Israeli Supreme Court has come to play a vital role in helping to define the nature of the Israeli polity. Because Agranat was the leading figure on the Israeli High Court during that period, Lahav’s book is the single best work in English explaining how it came to be such a central player. It is a splendid and important book.

Lahav’s biography can focus our attention on institutional factors because it does not dwell on the personal. She simply supplies sufficient information for the reader to comprehend how Agranat acted as he did. Simon Agranat was born in 1906 to a committed Zionist family living in Louisville, Kentucky. His formative years were spent in Chicago where Agranat attended the University of Chicago and its Law School. Shortly after passing the bar, he made ALIYAH [emigrated to] Mandate Palestine in 1930. He settled in Haifa with his parents and brother, entered private practice, married, and began to raise a family. But Agranat did not like private practice; in 1940, he jumped at the opportunity to become the second Jewish magistrate in Haifa. His long, scholarly opinions attracted considerable attention. After independence, he served briefly as chief judge on the Haifa District Court before being appointed to the Israeli Supreme Court in 1949. He became Chief Justice (by seniority) in 1965, and retired in 1976 at the mandatory age of 70. Simon Agranat died in 1992.

Agranat’s American origins gave him a different orientation than the Zionists from Eastern Europe who led that movement for national liberation. Though committed to democracy, the socialist-labor Zionists who established Israel had a collectivist-communitarian vision of both state and society. Agranat embued his Zionism with a strong individualistic, rights-oriented conception of democracy. Political leaders like David Ben Gurion saw little need for a written constitution to restrain the actions of an electorally accountable Knesset (parliament) and Government (cabinet), and had little patience with an independent judiciary limiting their power and protecting individual rights. Agranat never lost an American democrat’s belief in constitutionalism (limited government) and a judicially protected rule of law.

Unlike most new nations, Israel did not adopt a written constitution. This made the struggle for judicial independence in the early years of the State all the more difficult. In 1952, Agranat strengthened the growing acceptance of judicial independence by introducing a "rights discourse" into Israel’s legal language. In recognition of the Israeli political and legal environment, his PODAMSKY opinion utilized an approach based upon Hohfeld and Salmond. Because Agranat’s formalistic analysis "rested on principles of logic, seemingly insulated from politics and ideology," it gave the appearance of "being immune to the charge of judicial politicking." (99)

Two months after the 1953 Judiciary Act secured judicial independence, Agranat delivered the KOL HA’AM opinion which radically transformed the status of political and civil liberties in Israel. Now he felt free to utilize the sociological jurisprudence of the American Progressive movement and its balancing of interest methodology.
 

But not all. And Lahav is careful to point out that this, too, is part of the Agranat legacy. He balanced the competing interests within a Zionist narrative, which held that a Jewish State was absolutely necessary for the resolution of "the Jewish Problem." Challenges to Israel’s security would outweigh civil liberty claims. Parties (largely Arab) challenging the Jewish nature of the State could be deemed illegitimate and denied a place on the ballot. And the "who is a Jew" issue was simply agonizing because his narrative, like Jewish history itself, supplied no ready answer. Agranat hoped the non-judicial leadership would find a satisfactory compromise. [But when forced to decide, he believed that the Jewish religious tradition could not be separated from Jewish identity, at least by judicial decision in the absence of a clear legislative mandate.]

Agranat’s legacy resolved none of the issues bedeviling Israel in the Nineties. Rather, his legacy provides the platform from which the current Supreme Court addresses them. Chief Justice Aharon Barak and his colleagues sit on an independent court that prides itself as being the guardian of the Israeli (still partly unwritten) constitution and the protector of individual rights. Unlike Agranat, they tend to approach issues from a more individualistic perspective. When issues of national security are not directly at stake, they are much less inclined to recognize societal interests as outweighing individual rights. But that, too, as Lahav notes, is part of Agranat’s legacy: He had introduced the importance of individual rights into the Israeli legal-political dialogue with his 1952 PODAMSKY opinion and it never entirely disappeared from his jurisprudence.

Professor Lahav’s richly textured biography amplifies these points in clear, lucid prose. It does more. Simon Agranat led a long, productive life that left many other lasting imprints on Israeli society, and she carefully explains them all. The great Chief Justice has met his match. Pnina Lahav has written the judicial biography that we all want to write one day.