Judicial power and national politics: courts and gender in the religious-secular conflict in Israel

Judicial Power and National Politics SUNY series in Israeli Studies Russell Stone, editor Judicial Power and Nation...

Author: Patricia J. Woods

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Judicial Power and National Politics

SUNY series in Israeli Studies Russell Stone, editor

Judicial Power and National Politics Courts and Gender in the Religious-Secular Conflict in Israel

PATRICIA J. WOODS

Published by State University of New York Press, Albany © 2008 State University of New York All rights reserved Printed in the United States of America No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher. For information, contact State University of New York Press, Albany, NY www.sunypress.edu Production by Judith Block and Eileen Meehan Marketing by Anne M. Valentine

Library of Congress Cataloging-in-Publication Data Woods, Patricia J., 1967– Judicial power and national politics : courts and gender in the religioussecular conflict in Israel / Patricia J. Woods. p. cm. — (SUNY series in Israeli studies) Includes bibliographical references and index. ISBN 978-0-7914-7399-3 (hardcover : alk. paper) 1. Political questions and judicial power—Israel. 2. Judicial review—Israel. 3. Israel. Bet ha-mishpat ha-gavoha le-tsedek. I. Title. KMK2244.W66 2008 347.5694'012—dc22 2007035589 10 9 8 7 6 5 4 3 2 1

For Kyra

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Contents

List of Illustrations

ix

Introduction

xi

Chapter 1

Chapter 2

Judicial Community, Judicial Power, and National Politics

1

The Israel High Court of Justice and Religious Authorities

29

Chapter 3

The Irony of State Incorporation

59

Chapter 4

Social Movement Lawyers, Judicial Community, and the Countermovement that Binds Them

95

Chapter 5

Chapter 6

Chapter 7

Changing Visions, Conflicting Missions: Signaling the Judicial Community

121

Social Movements and Changing Language of the Court: Implicit Alliances and Explicit Coalitions

141

Conclusions

175

Notes

195

Bibliography

213

Index

239

vii


Illustrations

Tables 2.1

Knesset Bills on Marriage and Divorce

50

2.2

Knesset Bills on Sabbath

51

2.3

Knesset Bills on Conversion

52

2.4

Knesset Bills on Civil Marriage

54

Figure 6.1

Women’s Movement Mobilization

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149


Introduction

This book is about judicial power. It is a study of the decisions that justices at the national court level make that thrust them into national politics, increasing their public standing, and increasing judicial power vis-à-vis other state institutions. Courts and justices are not the only important players in this process. This book highlights the role that social actors can play in the development of national court decisions that increase the power of the judiciary. When I began this project, I wanted to study the impact that social actors can have on state institutions. A rich scholarly tradition among new institutionalists (historical, sociological, and rational) had aptly demonstrated the extent to which state institutions can affect individuals: structuring the choices individuals felt they had both within the institution and without, determining the parameters of possible action, and acculturating individuals so that they actually believed their choices were limited to the framework set out by institutional structures. But did people ever think outside the box, outside these institutional frameworks, as Antonio Gramsci (1971) and Pierre Bourdieu (1993) would suggest is possible? And how did the institutions come to be formed? Armed with the insights of Durkheimians (Douglas 1978; Durkheim 1997; Turner 1995) that institutional structures such as law and religion come out of and reinforce community, and Max Weber’s (2001) emphasis on the role that culture and ideas can play in the development of supranational institutional structures like Western capitalism, I had a sense that social actors must have some influence on state institutions, even if only at the time of establishment. The notion suggested by theorists such as Joel Migdal (2001) that state institutions and social actors are both changed in any interaction between the two, and Peter Evans’s work (1995) on state officials as coming with their own social ties, affecting their decisions as policy makers, made a great deal of sense in the context of these earlier social theorists. I wanted to elaborate on part of the

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Introduction

equation less studied among new institutionalists. I wanted to understand—and operationalize—some of the ways in which social actors might have an impact on state institutions. What better place to begin than with law and courts? Courts provide a regular site of interaction among state officials and social actors, as individual citizens, social movements, interest groups, and politicians of all stripes bring cases to be heard and decided by the state officials who are judges. Social actors who have complaints about the exercise of the administrative power of the state often take their petitions before courts. Courts are the state institutions charged with the final responsibility, in case the other two major institutions overstep their bounds, to determine the appropriate legal balance between substantive rights and state power. Courts regularly mediate the relationship between social actors and state institutions. This book draws on one of the most contentious political conflicts within Israeli politics—the battle between religious and secular forces being fought out in the Israeli courts for over twenty years—to develop a theory of judicially driven change that leads to often dramatic increases in judicial power. Social actors, and in the Israeli case social movement actors, play a critical role in these judicial changes. I argue that the most important determining factor explaining when, why, and the manner in which national courts enter into the world of divisive politics is found in the intellectual or “judicial communities” with whom justices live, work, and think about the law on a daily basis. Over the course of decades, judicial communities think and debate about the law through informal as well as formal legal interactions, culminating in new legal norms that may, through court cases, become binding legal principles. Given the right conditions, courts may use these new legal norms as the basis for answering questions of major national contention. When courts hear and answer these cases in favor of substantive rights and against administrative powers of the state, courts increase the political salience of the judiciary and thereby enhance judicial power (Hendley 1996; Shamir 1990). In so doing, courts reinforce the conditions that allow them to become critical political actors. In the Israeli case, the Israel High Court of Justice (HC J) began to challenge religious authorities, many of which are also housed within the state, as early as 1969 in Shalit v. The Minister of the Interior et al. However, in that first attempt to undermine the institutional autonomy of state religious officials, in this case to make decisions on who would be considered Jewish for the purposes of the state registry, the High Court received a dramatic blow to its own institutional standing. The Knesset, Israel’s Parliament, functionally overturned the High Court’s decision by enshrining the

Introduction

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religious law regarding Jewish identity as the law of the land within three weeks of the court’s decision! While the High Court heard cases asking it to challenge religious authorities in the 1970s and 1980s, it avoided doing so until 1988. Then, suddenly, after nearly twenty years of avoidance, the High Court decided that religious bodies did not have the right to decide that women could not sit on religious councils (Shakdiel v. The Minister of Religion et al. 1988) or voting bodies to elect municipal rabbis (“Poraz” case [The Labor Party . . .] 1988). The High Court combined an argument for women’s equality presented by the women’s movement with “administrative legality,” the requirement that all administrative bodies adhere to the law. In so doing, it launched a wholesale challenge to the autonomy of state religious institutions and authorities. The court defined the religious councils as state administrative bodies, and as such, it declared in two unanimous decisions that religious councils could not discriminate against women. The challenge on gender lines presented an opening to many types of arguments against religious authorities, which have functioned both in practice and within religious law with differing rights and responsibilities along gender lines. Gender has been critical as a site of contestation between secular and religious principles. It has also been crucial as a legal principle in the legal battles. Indeed, for the first twelve years of legal conflict, the women’s equality-administrative legality combination was the only successful legal argument against religious authorities in the High Court. The High Court’s legal move began a decades long battle waged on many fronts: within the courtroom, within the press, and for the hearts of politicians and laypeople alike. It was followed by assaults on the legitimacy of the judiciary, calls to dismantle the judiciary, death threats against the president of the High Court, and massive demonstrations. Throughout it all, the judiciary enjoyed ever-increasing legitimacy in the eyes of the public, ever-increasing public standing. Moreover, its controversial decisions were enforced rather than overturned, suggesting a real increase in political power along with its rising public standing. In the coming chapters, I argue that informal and formal interactions within the judicial community—the most salient intellectual community of the justices regarding legal development—were the most important factors explaining why the High Court chose to take on religious authorities when it did and in the manner in which it did. I present evidence of formal and informal interactions within this judicial community through in-depth interviews, participant observation, social movement archives, court decisions and case files, and extrajudicial writings on justices. I further demonstrate,

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materially, the interaction effect from changing legal norms and ideas within the judicial community to petitions with specific sorts of legal arguments brought by coalitions of social movements to court decisions using new social movement language. In Israel, social movement lawyers were among the critical members of the judicial community, together with left-wing legal scholars and others. This particular type of membership within the judicial community provides important predictive signals as to the general trends that judiciaries will take on the major constitutional questions of the proper balance between state administrative power and substantive rights. In Israel, the court has leaned strongly toward challenging administrative power and upholding rights. I argue that it is this challenge of other institutions within the state that has increased the court’s public stature, political salience, and political power.

Outline of the Book: Judicial Community, Judicial Signals, and Changing Language This book addresses major questions in comparative law and society relating to comparative judicial politics and judicial power. At the same time, it is centered on a political contest happening in a particular national context, and a case of increasing judicial power that is illuminating in its own right. The following outline is intended to help readers with different concerns easily find those materials most salient to them. Scholars generally concerned with issues of increasing judicial power, judicial-social actor interactions, religious-secular conflict, and the often overlooked gendered aspects of major issues in national “high politics” will find this book interesting. The analysis centers on informal as well as formal interactions. This book has also been written in dialogue with some key Israeli scholarship on Israeli public law and judicial power. Dialogue with local scholarship sets this book apart from recent theories of judicial power drawing on the Israeli case (Ginsburg 2003; Hirschl 2004). The theory of increasing judicial power developed in this book, rooted as it is in the intellectual interactions over time among members of a judicial community, is new to analyses of Israel in particular, as well as to work on judicial power more broadly. Chapter 1 introduces the central theoretical lessons to be drawn from this case of increasing judicial power in Israel. Namely, it emphasizes the significance of the socioprofessional community of the justices, which I call the judicial community, as the central locus of legal norms generation for

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the highest court of the land and as a vital source of judicial power. Through both informal and formal legal interactions, members of this community participated in conversations and debates, which, over the course of ten to fifteen years, culminated in new legal norms that became the basis for high court decision making on many political issues of national import. The informal interactions within the judicial community thus had a direct influence on the formal context of HCJ case decisions. These interactions also affected HCJ decisions to take on political questions in the first place. Significantly, members of the judicial community in the Israeli case included social movement cause lawyers as well as legal scholars. Both justices and cause lawyers actively engaged in the formation (or transformation) of this community to include a broader array of members. The judiciary benefited from an increase in judicial power as a result of the norms developed within the judicial community. These norms included a broad notion of the rule of law, advocacy of individual rights against (administrative) state authority, as well as support for a very strong judiciary. Because the HCJ chose to accept cases on rights questions that were matters of national political debate—cases brought to it by lawyers informed by participation in the judicial community—the HCJ experienced an increase in political salience vis-à-vis other state institutions, or an increase in judicial power. Chapter 2 outlines the relationship between the secular High Court of Justice and religious authorities in Israel. The High Court as a whole was arguably ideologically in favor of challenging religious authorities as early as the late 1960s, even with a few justices who disapproved the move. The chapter explains the changing social and political conditions that provided the High Court with the opportunity to challenge the autonomy of state religious institutions. These centered on the development and mushrooming of social movements in the early 1970s, dramatic parliamentary inefficacy by 1977, and new rules of standing allowing almost unlimited access to the High Court on the part of petitioners beginning in 1988. And it frames in local and regional context the latent and then explosive tensions between the secular High Court and state religious authorities. Chapter 3 explains how religious institutions came to be housed in the state, and why religious officials who disapprove of a secular state choose, nonetheless, to be part of it. It begins with a critical moment in which Zionist leaders struck an agreement with religious leaders that would have unintended and detrimental consequences for the Zionist social and political program. The incorporation of religious authorities into the state was a high priority for the early Zionist state leaders. Conceding authority over personal status issues, including family law, seemed a small price to pay. Issues

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of family and gender, at the heart of family law, were such a low priority for them as to be arguably off their radar screen entirely. These Zionist leaders were concerned with issues of “high politics”: security, economy, and the like. This concession, in what became known as the status quo agreements, was a fatal error for the social and political program these secular, socialist Zionists had in mind. Control over personal status issues meant control over some of the moments in which the average citizen is most likely to interact with the state, through registration requirements and court battles: birth, marriage, divorce, death, and burial. Thus, religious authorities became important state agents in the lives in individual citizens, even those who disapproved of them. Incorporating religious institutions within the state led the state on a path toward increasing political salience of religious institutions. UltraOrthodox rabbis, many of whom had explicitly disapproved of the state in the early years, by the end of the 1990s made up a majority of rabbinical court judges and a sizable portion of the Rabbinate (the central rabbinical body). Because religion was incorporated into the state, rabbis who wanted to accomplish large religious social and political projects had to enter the state, sometimes despite themselves. Thus, the incorporation of religion into the state changed religious officials, making the state the necessary center of national policy on religion. And, in turn, by entering the state, Orthodox and especially ultra-Orthodox rabbis changed the state. This type of unintended mutual transformation is in keeping with Migdal’s work on state-society relations (1988, 1997, 2001). Religious officials have become central players in the tenacious conflict between religious and secular forces in Israel. I draw on interviews with religious officials in Israel to explain why they entered the state, why they think religious institutions must continue to be housed in the state, and why they have no intention of backing down in this explosive conflict. Chapters 4, 5, and 6 move to answering the central question of the Israeli case: why was the High Court able and willing to challenge religious authorities when it did and in the manner in which it did? Chapter 4 analyzes the social linkages, found in what I call the judicial community, connecting the justices with social movements and particular parts of society. The judicial community of the justices includes legal scholars, government lawyers, cause lawyers, clerks, and interns. This community is tied together in an intricate web of socioprofessional connections with most members acting as familiar acquaintances rather than close friends. The community is tight-knit in that members see one another on a regular basis, know one another by reputation, and may know intimate details about one another’s

Introduction

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lives, personal and professional. It is diffuse in that members may not know one another personally, but still see each other in a professional context as well as at conferences, mutual social movement activities, and the like. Many legal scholars are the colleagues and former colleagues of the justices, most of whom were academics before becoming justices. Cause lawyers also have connections with the academic community, either as former law students or as professors themselves. Moreover, cause lawyers with a strong reputation in these circles are more apt to receive a serious hearing in the High Court. In order to elaborate on the informal connections within the existence of this judicial community, I draw on both critics and supporters of the High Court. I argue that the close ties of the legal community in Israel were critical in the decision of the women’s movement, and then the civil rights movement, to engage in litigation on women’s equality in the 1980s. Movement attorneys were aware of a change in legal thinking on rights that caused the HCJ to be a hospitable forum for such petitions. The decision to litigate on women’s equality would have a grave impact on one of the most explosive internal conflicts of contemporary Israel, that between the High Court and Jewish religious authorities in the state. In order to operationalize the informal, diffuse links between members of the judicial community and their impact on the Israel High Court of Justice, I begin with judicial signals (chapter 5); the impact of judicial signals on social movement legal mobilization (chapter 6); and changing language of court decisions, which drew newly and explicitly on the language and reasoning of social movement briefs (chapter 6). Chapters 5 and 6, thus, outline a feedback loop that is a material expression of an informal interaction. In chapter 5, I discuss judicial signals, surveying extralegal writings of the justices and tracing ideological trends and changes. I map these changes in relation to social movement legal activities. I argue that justice rhetoric in extralegal writings and in case decisions did, indeed, give social movement lawyers signals that the HCJ would be a hospitable forum for cases based on questions of rights. These signals were clear to social movement lawyers, as the justices’ rhetoric has at times been quite strong. At the same time, however, the High Court has been slower in taking action on those stated ideologies. The High Court has shown unwillingness until very recently, for example, to challenge religious authorities based on the principle of freedom of religion. It was, however, willing to make strident challenges to religious authorities based on the less direct issue of women’s equality, which it could argue had nothing to do with religion per se, but was a matter of administrative or procedural importance. Thus, the High Court has been highly strategic in choosing specific legal arguments and in casting its decisions in the light

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of positive law. This study shows that the High Court has not been strategic in a static manner, however. Its normative position on critical legal arguments, such as women’s equality, has changed visibly over time. Justice ideologies have been influenced by participation in the judicial community and, as demonstrated in chapter 6, by cases brought to them by unpopular social movements.1 Finally, chapter 6 completes the circle of interaction and influence that began with informal interactions in the judicial community. It traces the case history and social movement legal mobilization to show how changes in justices’ rhetoric, language, and legal positions related to cases brought by movements. Case decisions in Shakdiel, “Poraz,” and Nevo v. The Jewish Agency et al.2 indicate a close if not a direct link between legal mobilization and changes in the High Court language and rhetoric, particularly on women’s equality. I find similar changes in High Court language emerging from landmark cases brought by the women’s movement, the religious pluralism movement, and the civil rights movement. Those movements that brought cases based on the women’s equality argument tended to be successful. Those bringing “constitutional” challenges related to freedom of religion were not. The conclusion addresses critical lessons the story of the religious law conflict in Israel proposes for our understanding of how courts engage in politics, effect political decision making, and pursue political agendas. The case of increasing judicial power in Israel suggests that the choices justices make in the context of their judicial community has a critical impact on judicial power at the national level. The conclusion applies a judicial communities analysis to several cases in Europe, South Asia, and North America.

Sources and Methods This study was conducted through several years of fieldwork to examine institutional-social and institutional-institutional interactions leading up to and during the religious law conflict, focusing on the years 1988–1995. I lived in Jerusalem and Tel Aviv for a total of one and a half years between 1997 and 2000, conducting research in legal libraries, social movement archives, and the HC J itself, as well as completing over forty in-depth, open-ended interviews with religious officials, legal scholars, social movement leaders and lawyers, government lawyers, and Knesset officials. I lived in Haifa for one and a half years during 1993/1994 and in Haifa and

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the West Bank in the summer of 1995, working on a prior research project and beginning work on the subject of this book. During those trips, I interviewed more than thirty women’s movement members and leaders, with some attention to questions of religion and state (again, with in-depth, open-ended interviews). Indeed, through these interviews, I found that a striking number of women joined the women’s movement through a negative experience with religious divorce law. It is that finding that initially piqued my interest in the religious-secular conflict in the Israel High Court of Justice. Because of this previous research, my access beginning in 1997 to social movement members, leaders, and lawyers was easy and immediate in the women’s movement. Members of the women’s movement provided me with introductions to the equally accessible religious pluralism and civil rights movements. Access to the various actors I interviewed—from leftwing social movement members to religious officials to secular officials— was complicated by many factors, including the extent to which I was seen as an insider or an outsider. Issues of who is an insider and who is an outsider, long a topic of fieldwork methods (Reinharz 1992), has particular salience in a conflict so fraught with boundary issues (see chapter 3; see also Mazie and Woods 2003) as the religious-secular conflict in Israel. Several factors affected the extent to which I was seen as an insider or an outsider. As a non-Jew, I was clearly an outsider to the religious-secular conflict, which is, above all, an internal conflict within the Jewish community in Israel. As a feminist, I was, in part, an insider to the concerns and issues that motivated many members of the women’s movement.3 On the other hand, as a feminist, I was an outsider to mainstream Israeli society, although I could be forgiven for such eccentricity, from some people’s perspective, as a foreigner.4 As a student of comparative religion and politics who clearly took the issues at hand with the gravitas due them, particularly apparent through knowledge of certain specialized religious issues, religious officials appeared to be more comfortable with discussing issues of Judaism and Israeli politics with me. As might be expected, being an outsider meant that I did not gain access to some people, but it gave me more access to others. Women’s organizations gave me free run of their facilities, as did the several religious pluralism organizations around the country. Perhaps more surprisingly, some Orthodox and ultra-Orthodox religious officials were more willing to see me and to assist me as an outsider than they would have been had I been a non-Orthodox Jew. One Shas Party official told me he

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would never meet with a Reform or Conservative Jew studying the religious law conflict because, he said, they are “heretics.” As an outsider seen as appreciating religion rather than a partisan on the “wrong” side of the conflict, this person was willing to speak with me. Many other religious officials and individuals echoed a similar willingness and the same characterization of Reform and Conservative Jews. Reform and Conservative Jews make up the majority of Jews in the United States. For many, the extent of this animosity is an issue of real pain. The Shas official’s comment, and the willingness of a handful of religious officials to help an outsider doing research on this conflict, offers a glimpse at just how tense are the internal dimensions of this conflict within the Israeli Jewish community. The case and theory that I develop in the coming chapters is based on a number of different types of evidence. First, I collected hundreds of HCJ case decisions. Through case decisions, secondary Israeli public law literature, and interviews with legal scholars, I selected the key contests over religion and state in Israeli case law. Second, I collected the published writings of key HCJ justices from 1970 to 1999 on matters of religion and the state, constitution, and judicial power, from both popular and academic sources, as well as the few biographies available. These writings include legal articles, public lectures, ideological pieces, and articles written for a popular audience. They allowed me to trace changes in justice thinking on issues of religion and women’s equality through content analysis. Through these documents, I could come as close as possible to the deliberations of individual justices in their decision-making processes (see especially chapter 5). Third, I was allowed to copy HCJ case files, including all documents related to several key cases.5 These files include the legal briefs of movement attorneys, justice notes (sometimes handwritten), letters from third parties, academic references and the full text of some articles used in justice analysis, relevant photos, and all relevant letters and documentation from the parties. These documents allowed me to trace the language of social movement briefs and determine if justices picked up that language (and thus were observably influenced by social movement arguments) (see chapter six). The documents also give some hints as to various parties that had input in the case in question. Fourth, I interviewed lawyers and activists, legal scholars, clerks in the HCJ and Ministry of Justice, one former HCJ justice, government lawyers, journalists, religious officials, and community members. All together, I interviewed nearly eighty people, with the greatest number of interviews located within the women’s movement, followed by other social movement lawyers

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and leaders. Each set of interviews allowed me to develop a different part of the argument found within this book. Interviews with social movement lawyers, legal scholars, government lawyers, and clerks permitted me to explore the judicial community in Israel, its relevance, and the extent to which it knew of major changes in HCJ policy and justice thinking before those changes became entrenched in legal cases. In other words, did women’s movement lawyers know the High Court would be open to arguments based on rights (and which kinds of rights)? The answer to this last question, as seen in my interviews, is decidedly yes (chapter 4). Fifth, I conducted a survey of women’s movement volunteers regarding reasons for their participation in the women’s movement and legal mobilization, and I collected survey data on public attitudes toward religion. These data explain the relationship of grassroots volunteers to women’s movement legal mobilization and changing public opinion on religion during the 1990s, respectively. Sixth, I collected a small body of statistical data available on the third sector (including social movements) from 1948 to 1996, which supports claims of an increase in organized social groups and movements in the 1970s and 1980s (Barzilai 1996, 1998; Migdal 1993). Seventh, I gathered an extensive collection of secondary literature in Hebrew on religion and law, constitutional law, and judicialization of politics in Israel. And, eighth, I compiled notes from participant observation of a few key events inside and outside the High Court. I am grateful for the advice, assistance, and critical challenges offered by many people who have helped me in ways large and small as I have navigated this project from its earliest stages. My thanks to the editors at SUNY Press, and especially Russell Stone, for their support. The research for this book was supported at the dissertation stages by funding from the Social Science Research Council (SSRC) International Dissertation Research Fellows Program; the National Science Foundation (dissertation grant #9906136, Migdal PI, Woods CoPI); the SSRC Near and Middle East Predissertation Fellowship Program; the Dorot Foundation; the University of Washington Department of Near and Middle East Languages and Literatures; and the Hall-Ammerer Family Graduate Fellowship Award Program. I am grateful to the SSRC for three dissertation workshops, which challenged participants to develop our research designs and at the same time offered practical support and suggestions for field research (Cairo 1995, Marrakesh 1998, and Amsterdam 2000). I would also like to thank the Department of Political Science at Hebrew University in Jerusalem and the Department of Anthropology and Sociology at Tel Aviv

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University, both of which gave me yearlong affiliations during the course of my fieldwork. I would especially like to thank Menachem Hofnung and Ronen Shamir who made those affiliations possible. A number of institutions gave me time and resources with which to transform the dissertation research into a book manuscript. I would like to thank the Center for Middle East Studies at Harvard University; the Department of Political Science at the University of Florida; the Center for Jewish Studies at the University of Florida; the College of Liberal Arts and Sciences at the University of Florida; the Group d’Analyses des Politiques Publiques at the Ecole Normale Supreieure de Cachan, France; and the Birkbeck College of Law at the University of London. Many thanks to Cemal Kafadar, Les Thiele, Michael Martinez, Ken Wald, Jacques Comailles, Claire de Galembert, and Peter Fitzpatrick, all of whom made my stays at (or leave from) these institutions possible. Joel Migdal, Michael McCann, Resat Kasaba, Nancy Hartsock, Christine Di Stefano, Dan Lev, and Hillel Kieval at the University of Washington, above all, gave countless hours in conversation and critique of this project in its dissertation stages and beyond. When I attended the three SSRC dissertation workshops just mentioned, I found that Joel Migdal was renowned among graduate students for his willingness to tackle the logic of any dissertation project and provide hour after hour of incisive criticism and gentle encouragement. Those of us who were his students were regarded with due envy; if I did not realize before how lucky I was to have such an adviser, I certainly did after that. Michael McCann guided me through work on comparative law and society when I turned, relatively late, to the subject that has since become my theoretical home. He has continued to offer some of the greatest critical challenges to my work, which have always made the work better for facing them. Stuart Scheingold and Austin Sarat’s support and detailed critical appraisals in the course of working on The Worlds Cause Lawyers Make were central as I developed my theoretical framework. Peter Fitzpatrick offered important advice at key moments, adding an appreciation for Kafka and others to my training. In addition to those already mentioned, Scott Barclay, Gad Barzilai, Lauren Basson, Eva Bellin, Andreia Clay, Larry Dodd, Martin Edelman, Yoav Dotan, Marc Galanter, Howard Gillman, Gretchen Helmke, Hanna Herzog, Steven Heydemann, Lisa Hilbink, Ran Hirschl, Menachem Hofnung, Samuel Huntington, Amie Kreppel, Jay Krishnan, Pnina Lahav, David Maiman, Michael Martinez, Bryon Moraski, Aryeh Naor, Ido Oren,

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Ilan Peleg, Frances Raday, Gershon Shafir, Ronen Shamir, Benjamin Smith, Russell Stone, Robert Vitalis, and Ken Wald all read drafts of chapters of this manuscript, some on several occasions. Ben Smith stands out in particular for his support and critical feedback through the course of marriage, divorce, and child rearing. I am grateful to all for their time and the challenges offered. Many thanks are due to all those in Israel who gave their time and interviewed with me, including state religious officials, Knesset members, and members of the women’s movement, the legal community, the religious pluralism movement, the civil rights movement, and a number of scholars from various fields. I would like to thank the Israel High Court of Justice for providing selected full case files. Several assistants in Israel and the United States helped with various aspects of the project, particularly a survey that I conducted of women’s movement volunteers in Israel, and transcriptions of interviews: in Israel, Shevy Barzilai, Shira Zagury, Adva, Tammy Merav, and Nina Mizrahi; in the United States, Meghan Pinch, Bethany Neumann, Jeremy Hyndman, Regev Ben Jacob, Fredline M’Cormack, and William ( Jake) Miller on the index. Jane Dominguez provided graphic assistance. A few women friends have made the process of working through this project from its earliest beginnings to final writing stages downright fun at the best moments and bearable in the hard moments. In Israel and the United States, Andreia Clay, Shevy Barzilai, Lauren Basson, Tammy Merav, and Michelle Campos have provided much needed moral support in many different forms, from substantive comments to hikes in Ein Gedi to lots of long distance chats. My thanks to all of you. My daughter, Kyra, now four years old, has given me added impetus to work on the issues of law, religion, and gender on which this book centers. It is to her that I dedicate this book.


1 Judicial Community, Judicial Power, and National Politics

This book tackles an increasingly controversial issue in the politics of many countries around the world. That is, when, why, and how do national courts begin, systematically, to engage heated political issues? Examples abound of both public support and outrage at the increasing role that courts have played in deeply charged political battles. Domestic and even international clashes over the political role of courts have become commonplace in a world more comfortable with idealizing courts as somehow apart from politics. These have included debates over the jurisdiction of the European Court of Justice to review fundamental decisions of national state governments, as in Irish unease about new constitutional citizenship provisions in the face of the EU Human Rights Charter, or French and British concerns about states’ rights to restrict Muslim veils in secondary schools. The entire world watched as a single national court intervened in the affairs of a wholly separate state: Spain and Chile in the case of Augusto Pinochet. Firestorms have emerged, too, in response to specific decisions of domestic courts, such as the U.S. Supreme Court’s answers to questions of abortion, persistent vegetative states, religious monuments in public spaces, and ethnic or gender representation in university admissions. Equally divisive in some states have been questions about the extrajudicial activities and social associations of justices. U.S. Supreme Court Justice Antonin Scalia received heightened scrutiny at the news of his expense-paid vacations with Vice President Dick Cheney at the very moment the latter was a party in a Supreme Court case. Israeli High Court of Justice President Aharon Barak has been accused by religious critics of tyrannically dominating the Israeli state with the help of like-minded social and legal elites with whom he surrounds himself inside and outside the

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courtroom. Some have gone so far as to call for a revolution against the secular judges (see, for example, Eilan 1997). These few examples should be sufficient to remind those accustomed to considering other sorts of factors in political analyses—markets and economy, electoral institutions, individual political behavior, culture—that courts and justices have, indeed, become significant actors in the daily politics of many states. I argue that the most important determining factor explaining when, why, and the manner in which national courts enter into the world of divisive politics is found in the intellectual or “judicial communities” with whom justices live, work, and think about the law on a daily basis. Judicial communities are organic communities living and working in close physical proximity to one another;1 they are to be distinguished from epistemic communities or international networks in this regard (Keck and Sikkink 1998; Slaughter 2004). Over the course of decades, judicial communities think and debate about the law through informal as well as formal legal interactions, culminating in new legal norms that may, through court cases, become binding legal principles. Given the right conditions—including, at a minimum, electoral democracy (Schumpeter 1976), basic judicial independence (Russell and O’Brien 2001), and some institutional constraints on courts2—courts may use these new legal norms as the basis for a jurisprudence that justifies hearing and allows for creative answers to cases involving major issues of national political contention. When courts hear and answer these cases in favor of substantive rights and against administrative powers of the state, courts increase the political salience of the judiciary and thereby enhance judicial power (Hendley 1996; Shamir 1990). In so doing, courts reinforce the conditions that allow them to become critical political actors. In the following pages, I outline my theory of judicial communities and their impact on judicial decision making and judicial power. Judicial communities are informal intellectual communities that affect the ability and willingness of national high courts to enter into decision making on matters of national political contention. Courts that choose to answer questions of national political import, and particularly to challenge administrative authority in favor of individual or civil rights, may express a new type of judicial independence. In contributing intellectual resources over time, legal briefs, and petitions that courts may then act on, judicial communities are critical to the questions of judicial power at the center of work on comparative law and society. Courts, religion, and gender intersect in important ways in the case study offered in this book. And, finally, I outline the link between judicial communities, legal norms, and informal processes as they emerge in this study.


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Courts, Communities, and Power What is a judicial community? Judicial communities may be made up of various judicial, social, and political actors. Judicial communities are first and foremost the intellectual community within which justices live and think and work on the law on a regular, if not daily, basis. Members share similar intellectual backgrounds, education, training, and professionalization. They are most likely to live in the same geographical region or city as justices, even in large countries. They are most likely to share a common educational history with justices, meaning similar training, and, in some cases, having been trained in the identical universities and other educational institutions. As a result, members who eventually make up the judicial community are likely to have known one another by reputation and/or as acquaintances for many years, even since childhood in some cases. And in many cases, they share a similar or the same professionalization process, meaning that they were socialized into their profession through similar or identical institutions and job experience. However, they do not necessarily share the same class origins. Members are able to overcome class barriers when they are able to access education. This is a community made up of similar education and professionalization processes, and thus class is more easily overcome, relatively speaking, than some other social barriers. Members are not “elites” in the sense of common class or political origins. Drawing on the framework of C. Wright Mills, nonjudicial members of the judicial community provide a support community for judicial members of the power elite, but they are not the power elite themselves. Members of the judicial community do, however, make up a relatively small group that may have a large impact on society. Importantly, not all people with the same education and professionalization will also be part of the judicial community. Many members will have attended the same law school, but not all people who attend that law school will be members. Thus, attendance at a given law school is not sufficient to claim an intellectual or influential social connection, as some have done in the Israeli case (Hirschl 2004). Membership requires, initially, common normative interests, and it requires a common debating arena. In Israel, that arena came through academic ties, social movement memberships, and the court itself. Members of the judicial community work together professionally; they are not only social acquaintances. Their interactions are marked by diffuse rather than close ties; the legal norms generated through their informal and formal debates are dominated by acquaintances rather than close friendships. Their interactions and debates

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with one another over time create a continually changing normative environment that largely determines the confines of how members think about legal issues of the day. That is, members come together initially through common normative interests, and they are changed over time through their interactions with one another. A judicial community includes high or supreme court justices; possibly, other judges; legal scholars; (left- or right-wing) social movement lawyers; social, political, or economic elites; government attorneys; clerks and interns; or others. These actors come together to think and debate about legal and political questions through formal professional legal work as well as, what is more important, informal interactions. It is through the intellectual exchange within this community over time that new legal norms develop and change. Both justices and lawyers come to know one another by reputation; they are aware of current trends of thinking in the community and on the court through their participation in the community; they may use the community as a forum for raising the legal and political issues of greatest interest to them; and they are influenced by the conversations and debates about the most pressing legal issues of the day through their participation in it. The influence of this intellectual community over judicial thinking is often diffuse rather than direct. It comes through long-term interaction and debate over legal and political issues of the day via legal cases themselves, participation in conferences, activities within civil society, and, sometimes, social events. The diffuse interaction described herein reflects the “weak ties” of Mark Granovetter’s work (1983) on social networks. He argues that individuals are more apt to learn and be influenced by new ideas from acquaintances than from the close friends and family with whom one shares already similar ideas and interests. New ideas may be learned from acquaintances through personal conversations or, more often in the context of judicial communities, through arguments made in a larger forum (such as a conference) by people who one may know only by face or by reputation. A justice or lawyer listening to arguments in such a context is not directly influenced by a friend telling him or her what judgment or legal argument to make. Rather, it is through listening and being party to conversations and debates over long periods of time that new ideas develop and influence the thinking of the individual. In judicial communities, such new ideas may become newly binding legal norms when lawyers petition courts on the basis of a new legal argument and the court accepts the argument. The model of judicial community that I develop centers on cases in which there is at least a modicum of judicial independence.3 While existing judicial communities may contribute to a new and expanded form of judicial


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independence, in order for a judicial community to come into being, there must be a modicum of judicial independence. For the purposes of this study, judicial independence means that the judiciary is not directly influenced in its decision making by a coercive dependence on economic, social, or other state elites for its continued institutional existence, authority, or for the (literal) lives of judges and justices. A lack of judicial independence may include either physical or lesser types of coercion. That is, at the most personal level, judges and justices who are part of an independent judiciary need not fear for their lives if they make certain decisions. Institutionally, courts need not fear for their continued existence, nor need judges fear for the continuation of their judicial seats, based on voting preferences of executive, legislative, military, or powerful social actors. The central point of my theory is that, in cases with a modicum of judicial independence—by contrast to cases of coercion—legal norms are generated within the context of an intellectual community. In cases of coercion, the process of norms generation is one in which, usually, state actors other than judges determine the norms that the judiciary will follow. By contrast, in the case of basically independent judiciaries, norms are generated within the context of an intellectual community. This norms generation occurs in an organic manner over time through a diffuse process of interaction based on conflict and debate. The account of norms generation in this study shares much in common with the Durkheimian account of law as emerging from community, in which principles and laws regulating the behavior of members develop over time in response to the need or desire of members to define and protect communal boundaries (Douglas 1970). By contrast to Émile Durkheim’s own account, the story of judicial communities is one based on conflict rather than consensus; law (as embodied in new legal norms) emerges through an interactive process of debate over pressing issues for which there is no single consensus. Broad legal norms emerge through these debates, are then applied to specific legal questions, and then become principle through judicial decisions. Perhaps most important, these norms continue to change over time through ongoing conversations. We can only imagine, for analytical purposes, a moment in time for which legal norms are fixed. In reality, they are constantly in motion—or under discussion and debate for potential change. This point is in keeping with Peter Fitzpatrick’s emphasis on positive law (2001) as claiming to be eternal and unchanging, while at the same time emerging and responding to something ostensibly exogenous to it (2003). Applying Fitzpatrick’s insights to the specific relationship between law and community, the judicial community account suggests that the law is

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not actually exogenous to community, as law claims to be, but emerges from community and continues to change through the same process of communal norms generation through which it came into being in the (imagined) first instance. This claim is in keeping with parts of the Durkheimian account, however, it stands in contrast to it in that the community in question is not the larger society; it is a much smaller group of legal specialists. Over time, their debates culminate in new legal norms, generated through informal conversations. And, importantly, the debates among this smaller group of specialists have profound implications for the wider society. The norms they develop become legal principles (albeit continually changing) that define the nature of state and society by determining the relationship between state power and substantive rights, the role of religion, and other questions that define the social boundaries of the nation and its internal, political character. Individuals may—and likely do—bring their own agendas to the table in these debates. And the individual members of the judicial community may have greater or lesser stature within the community. However, the norms that emerge over time are not the product of one person’s interests or ideological preferences. Rather, through debate, the questions raised within the community take on a normative life of their own, culminating in broad new legal norms. The broad contours of these legal norms, and their specific application to a given context, may or may not please those individuals involved in initiating the discussions that led to their adoption by the community. Or, the debates may change the views of the initiators so that they have markedly different positions at the end of a decade-long debate than they had at the beginning.4 For, just as the members of the community are changed through their interaction with one another (including changes in their individual ideological positions on a given issue) (Migdal 2001), and as law and political institutions take on a life of their own once established (Durkheim 1997, 43),5 legal norms take on a life of their own within the debates of the judicial community over time. Through the diffuse ties of the judicial community, members may actively seek to join the community, to solicit certain groups to join it, and to encourage the development of innovative legal thinking along certain lines. Thus, justices, social actors, and other members of the community (such as government lawyers, who are part of the state) may be active agents in the development of new membership in the community, as well as the development of new legal norms. Justices may use the judicial community as an intellectual resource for new and innovative legal reasoning on issues facing them in court, or on issues they wish to see in court. Lawyers may use the


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judicial community as a staging ground for the development of new legal norms as well, encouraging debate on certain issues, for example, of rights in order to test the prevailing normative trends in the community and on the court (see Barclay and Woods 2002). Justices and lawyers enter into a mutually beneficial relationship when lawyers bring new arguments to the court, developed in the context of debates in the judicial community, and the justices in turn use those new arguments to support legal reasoning in a direction already of interest to themselves. In this indirect manner, marked by informal interactions rather than formal legal processes, justices may draw on the judicial community as a resource. If justices are changed by exposure to argument and debate on legal issues of the day in the informal context of the judicial community, then who is part of the community over time will influence the direction of court decisions on political and other issues. Whether the judicial community includes social, economic, and political elites, on the one hand, or left-wing social movements in favor of rights revolutions, on the other hand, will have an important impact on the direction of legal norms prevailing in the highest court. No matter the political direction that court decisions take, if the highest court is being asked to answer and does answer contentious political questions dominating the national agenda, the court will experience increased political salience. The judicial community revolves around the highest court(s) in a state, although the processes through which justices make decisions in the context of this community will often be mirrored at lower court jurisdictions as well. What distinguishes this community from narrower legal communities around specific jurisdictions, or the wider legal community of the entire bar in a country, is that their debates and conversations consistently culminate in new legal norms that are then used by lawyers petitioning the highest court(s) and by justices themselves in answering those petitions. Thus, by contrast to these other legal communities, the informal conversations and arguments held within the judicial community have a strong impact on decision making at the highest judicial level.

Judicial Power and Judicial Independence It has become well-accepted in work on comparative judicial politics and power that there is a link between judicial intervention on questions of national political contention, on the one hand, and increasing judicial power, on the other hand (Hendley 1996; Russell and O’Brien 2001; Tate

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and Vallinder 1995). I suggest that when courts challenge other state institutions, and particularly when they challenge administrative power in favor of individual rights, they may experience the most dramatic gains in judicial power. When courts increase judicial power in this way, they may be demonstrating a substantively new type of judicial independence associated with high degrees of judicial power. Judicial independence has typically been associated with independence of the judiciary from administrative agencies, legislative influence, and wider corruption. Thus, judicial independence has sometimes been defined in terms of its opposites: “political direction of judicial decision making, bribery, corruption, and absence of economic security for their judges” (Russell 2001, 1). It has often been identified according to institutional factors contributing to independent decision making on the part of individual judges: rationalized appointment, compensation, and firing procedures; rationalized job security; separation of judicial offices from political branches, and so forth. These institutional factors reflect concern that the judicial branch benefit from the general principles of rationalized bureaucratization outlined by Max Weber (1978) and others (for example, Mann 1993, 445–446). Peter Russell (2001, 13) suggests that judicial independence should be measured not only in terms of the relative independence of judicial personnel, but also in terms of the independence of the judiciary from other state institutions that may change political and institutional arrangements affecting the judiciary; administration, or management within courts; and direct forms of influence peddling. The type of judicial independence identified in this study is of a different sort. It assumes the layers of judicial independence I have mentioned. But in this case, the judiciary moves significantly beyond this foundational judicial independence to a new and concerted willingness to challenge administrative authorities on a regular basis. In checking administrative power, the judiciary increases its political salience, often catapulting itself into public prominence, as expected by the work of Kathryn Hendley (1996) and others (Ginsburg 2003; Hirschl 2004). At the same time, while it chooses not to restrain itself out of fear of institutional reprimand (such as removal of judicial powers or legislation “overturning” a new precedent through law), in checking administrative authority the judiciary remains well within the balance of power framework (Rubin and Feeley 1998). Review of administrative power has long been a function of the judiciary in both civil and common law contexts (Merryman 1985; Provine 1996; Shapiro 1981). And yet, the expanded willingness in the past fifty years of national courts around the world to intervene in executive acts and decisions, parliamentary lawmaking processes,


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and broader exercises of administrative power (military, religious, and so on) has been well established (Guarnieri and Pederzoli 2002; Russell and O’Brien 2001; Tate and Vallinder 1995). I am suggesting that this new level of intervention, particularly the dramatically expanded willingness to weigh in on the appropriate balance between administrative power and individual liberties and rights, reflects a new type of judicial independence. Thus, judicial communities may only function in the context of basic judicial independence; however, if they function to supprt judicial interventions as just described, they may contribute to dramatic increases in judicial power, and a substantively new type of judicial independence associated with these high levels of judicial power. This checking of administrative power is closely related to societal demand that judiciaries, as the final “impartial” arbiter, determine the proper relationship between administrative (or executive branch) power and individual liberties. Some have suggested that judicial review of legislative powers is most important; indeed, there is widespread attention to legislative review in work on judicial power (Ginsburg 2003; Hirschl 2004). Others have suggested increased attention to the role of courts in reviewing administrative power (Shapiro 1968). Review of administrative power has been central to the development of constitutionalism, particularly in the civil law world (Blankenburg 1996; Merryman 1985; Provine 1996). Indeed, the checking of administrative power vis-à-vis individual liberties is a critical component of many constitutional questions. For, even in the case of judicial review of legislation, it is the question of the powers granted to the administrative authorities charged with executing legislation that is the common underlying constitutional issue. The legislature or parliament’s right to pass legislation is rarely in question. The centrality of administrative power in constitutional questions, particularly relating to rights and liberties, suggests that judicial review of administrative functions is at least as important, if not more significant, for analyses of judicial power than is judicial review of legislation. The salience of the administrative-substantive rights continuum may explain why constitutional development in so many civil law countries has centered on separate administrative courts designed to hear constitutional cases (Blankenburg 1996; Guarini 2001; Merryman 1985; Provine 1996). In Israel, which incorporates aspects of both civil and common law systems, constitutional questions have been addressed in purely administrative terms as well. The Israel High Court of Justice has drawn regularly on the long-standing principle of administrative legality, by which state institutions are limited by the law in their treatment of citizens. While common

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law systems exercise this principle as well, it has been used in civil law countries as the foundation of constitutional development in many cases. Israel’s use of the principle as a way to answer constitutional-type questions in the absence of a constitution well reflects the manner in which civil law countries have used administrative tribunals in the development of constitutions and the protection of constitutional principles. Most recent work in comparative judicial politics has focused on either the supply-side (Ginsburg 2003) or demand-side (Epp 1998) of judicial power. In the case of the supply-side, both Ginsburg (2003) and Hirschl (2004) suggest that the supply of new judicial tools and powers, such as judicial review, emerges primarily from (elected) political elites. Demand-side arguments have tended to center on increased societal demand in the form of a marked increase in the number of cases brought to the judiciary (Hendley 1996). In turn, this increased demand has been analyzed in the context of social movement legal mobilization, and domestic or international funding for litigation (Epp 1998). My study makes the new suggestion that the judiciary may be able to dominate both the supply-side and the demand-side of judicial power. A judiciary may be said to dominate both sides of judicial power when it is able both to cultivate social demand for cases and to itself provide judicial decisions and other forms of judicial power (such as judicial review and/or access to the court itself ). Thus, the “supply”-side of judicial power should be understood not only in terms of executive and legislative supply of judicial powers, as in most recent work (Ginsburg 2003; Hirschl 2004). It should also be understood to include aspects of judicial supply of judicial powers. Since increasing judicial power has often been associated with the expanded willingness of courts to engage especially administrative powers, I would argue that the supply-side of judicial power should also be understood to include judicial supply of critical legal decisions. That is, through precedent, courts may reinforce or augment (supply) aspects of their own power. The implications of a judiciary that dominates or strongly influences both the supply-side and the demand-side of judicial power is interesting for questions of state power. When the judiciary is able to dominate both sides of judicial power, it may be more willing to challenge administrative powers than under other conditions. This point reflects a recognition that increasing in judicial power is not only an expansion of the power of “the state” in general. Many critical legal scholars have pointed out that when courts appear to challenge state authorities, uphold rights, or otherwise make “landmark” decisions, what courts are really doing usually is upholding the power and legitimacy of the state (Shamir 1990). Courts may do


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this by upholding the legal system (Shapiro 1981), upholding the notion that the state is subject to the law (Thompson 1975), and upholding a “myth of rights” (Scheingold 1974), all making the law appear more salient and omnipresent in the public eye. I agree that courts may reinforce the legitimacy of the state through enforcing the law, and they may do so in the manners suggested by critical legal scholars. What I am suggesting is that something else is happening in this equation that is important: courts may increase judicial power to the greatest extent precisely by challenging parts of the state (particularly administrative authorities). Courts, then, like other competing state institutions, should not be seen as part of a singular state entity that exerts its power coherently (Migdal 2001). Rather, courts may experience great increases in judicial power precisely through contests with other state institutions. And increases in judicial power may have a substantively different impact on individuals than, for example, increases in administrative power. Increasing power in various parts of the state should not be viewed in monolithic terms. What causes courts to engage political questions that they used to avoid, or that they previously left to the devices of the elected (or majoritarian) branches? Are courts and justices primarily out to increase their power and aggrandize their institutional standing (Epstein and Knight 1998), perhaps necessitating that they support existing power holders in the executive (Shamir 1990; Shapiro 1981)? Are they in cahoots with political, social, or economic elites who see increasing judicial powers as serving their own interests (Hirschl 2004; Ginsburg 2003)? Are judges more apt to follow changes in national, regional, professional, or court-level legal cultures (Abel and Lewis 1989; Glendon 1991; Hattam 1993) and organizational interests (Blumberg 1967; Nardulli 1986)? Are they filling in gaps where effective electoral institutions used to make decisions (Guarnieri and Pederzoli 2002; Hirschl 2004)? Or are they responding to social pressures from below in the form of interest groups or social movements (Epp 1998; Krishnan 2002; McCann 1994)?

Enabling Factors: Creating a Fertile Landscape for Judicial Intervention I argue that several factors are important in allowing courts to enter the quagmire of controversial political cases. The first factor is social mobilization, meaning an increasing set of demands on the state from an increasing range of groups in civil society. An enabling factor related to social mobilization is

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institutional inefficiency, particularly in the parliament or legislature. Parliamentary inefficiency often emerges directly from social mobilization; it also becomes important to courts as a result of social mobilization. That is, an increasingly active and diverse civil society may lead to an increasingly polarized society, which in turn elects a fractured parliament or a polarized legislature. Both have difficulty making decisions, particularly on controversial questions. This has led to both politicians and individual citizens turning to the courts for answers to their questions or in pursuit of their agendas (Barzilai 1998; Dotan and Hofnung 2005; Guarnieri and Pederzoli 2002; Kretzmer 2002). However, institutional inefficiency is not likely to be important to courts in the absence of social mobilization. If social actors are not accustomed to making demands on the government, a decrease in the parliamentary efficacy will not lead those social actors to seek redress elsewhere. If, on the other hand, social actors become accustomed to achieving some level of success through engaging with the state, and particularly the parliament or political parties, parliamentary breakdown will, indeed, lead those social actors to seek other venues in pursuing their agendas. In democracies with judicial independence, that other venue will often be courts. Another factor that can play a role in allowing courts to move into the center of politics is new judicial powers or legal tools (such as judicial review). The role of this factor is complicated, as new judicial powers may come before, during, and/or as a result of the judiciary’s move into national contentious politics. In the absence of judicial review, it would be difficult for courts to challenge other state institutions in a way that enhances judicial power. However, it is also the case that new judicial tools may increase throughout the process of change from a nonadversarial court (vis-à-vis other state institutions) to one willing to behave in an adversarial manner toward administrative power. New legal tools may be the result of parliamentary compensation for inefficacy or uncertainty. And they may be the result of judicial precedents that create new legal powers themselves. For example, it has been demonstrated that elected politicians facing either an inefficient parliament or uncertainty regarding future coalitions will often grant significant new powers to the judiciary in an effort to stabilize or fix existing rules of the game, which they expect courts to enforce. These new powers include, especially, judicial review (Ginsburg 2003; Hirschl 2004) and new rules of standing that expand access to the courts (Lawrence 1990). Judiciaries may create some of these powers for themselves, without the assistance of new legislation, as in judicial review in the United States (based on Marbury v. Madison 5 U.S. 137 [1803]) and Israel (based on Bergman v. The Minister of Treasury 1969).


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The aforementioned factors create a fertile landscape within which courts may choose to engage heated political questions, at times turning the court into an important political actor in its own right. However, none of these factors alone, or even all three combined, is enough to drive courts into the political fray. In the absence of direct corruption—court decisions for sale—social mobilization cannot in itself drive courts to certain decisions. Institutional inefficacy opens an opportunity, but it does not alone make courts act. Even in the case of expanded judicial powers, courts may choose not to use judicial review or expanded social access to courts to challenge administrative powers. It is not a given that, once established, judicial review will either be used extensively (as it was not for a long period in the U.S. case), or will be used in the service of one “particular ambit of virtue” (Fitzpatrick 2005). Neither is it a given that judicial review, once in use, will always culminate in decisions against the state. This point has been highlighted extensively in the case of Israeli treatment of Palestinian noncitizens (Kretz-mer 2002; Shamir 1990; Sharfman 1993; see also Dotan 1999, who argues that the HC J has supported Palestinian rights through the nonpublic course of legal settlements). What courts choose to do with judicial review, whether it is established through judicial decision or primary legislation, is a question left hanging by a focus on the supply of judicial review to the courts (Ginsburg 2004). Expanded judicial powers cannot themselves explain a judiciary’s choice to use those powers, nor to use them in a specific manner. The combination of factors provides fertile ground for a judiciary that does decide to take on political battles and thereby increase its political power. But how can we know when a judiciary will make that fateful decision? I argue that the intellectual communities with whom judges live and work and think about the law on a daily basis provide the most important determining factor to explain when, why, and in what manner courts choose to intercede in political battles. These communities, which I call “judicial communities,” provide both intellectual resources and the normative environment within which judges think and act on—that is, interpret—the law. In addition to justices, judicial communities can be made up of almost any segment of society or the political sphere. However, to summarize the definitional traits, members are most likely to share several characteristics with justices: (1) They are most likely to live in the same geographical region or city as justices. (2) They are most likely to share a common educational history with justices, meaning similar training, and in some cases, having been trained in the identical universities and other educational institutions. As a

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result, (3) members who eventually make up the judicial community are likely to have known one another by reputation and/or as acquaintances for many years, even since childhood in some cases. And in many cases, they share (4) a similar or the same professionalization process, meaning that they were socialized into their profession through similar or identical institutions and job experiences. Importantly, members of the judicial community do not necessarily share the same class status, although in some country cases they may. As discussed in regard to several other country cases in chapter 7, what they do share is a similar intellectual background, history of education together, professionalization process, and certain common normative interests that bring them together initially. Their interactions and debates with one another over time create a continually changing normative environment that largely determines the confines of how members think about legal issues of the day. That is to say, members come together initially through common normative interests, and they are changed over time through their interactions with one another. It is important to note that a far larger set of people also share these aspects of intellectual background, training, and professionalization who are not members of the judicial community. So mere attendance at the same university law school, for example, does not suggest the intellectual ties that become so salient within the judicial community. All members will share these traits in common, but all people who share these traits in common are not members. Thus, in order to determine who is part of the judicial community, one must look for signs of regular engagement in intellectual debates over legal issues of the day both inside and outside the courtroom, as well as specific interactions (formal and informal) that signal an ongoing mutual influence within the community. It is not enough that a justice or lawyer engages in dinner-table conversation on a question of rights. Members of the judicial community are those people who make up the salient intellectual community of the justices of the highest court informing their thinking on legal issues and, in many ways, setting the very parameters of debate for those issues. Both informal and formal legal deliberations within judicial communities constitute an ongoing debate regarding which legal norms should be binding. Despite the ongoing, ever-challenging nature of the debate, over time a general consensus emerges in one of two directions: support of administrative authorities or support of substantive rights. The answers that courts give to this question will have a profound impact on judicial power. Depending on which general trend comes to be the norm in the judicial community, courts will lean toward a use of legal tools that either allow


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courts greater freedoms to challenge administrative authorities (in favor of rights) or that disallow that intervention into the activities of other state institutions (effectively supporting administrative authorities). The particular tools that courts choose to use and the manner in which they use them will be determined in largest part by the legal norms being developed in the intellectual/normative context of the judicial community. If courts choose to take advantage of the opportunity to answer questions of political significance, and particularly if a court chooses to challenge administrative power, the political salience and visibility of the court will increase dramatically. This increased salience has a feedback effect, leading to greater-still demand on courts for decisions on political issues.

Judicial Politics and Judicial Power The book builds on existing work on the role of the judicialization of politics on increasing judicial power worldwide, as well as a smaller body of work on communities around courts. It adds an entirely new emphasis to this literature in its focus on the role of intellectual communities and legal norms generation in the intervention of courts into political questions, and in detailing the informal interactions within these communities that may contribute to increasing judicial power over time. Many important works have emphasized the increasing role of courts in political decision making—or judicialization of politics—since the end of World War II (Russell and O’Brien 2001; Tate and Vallinder 1995). These works have noted that the increasing intervention of courts in political questions has increased the political salience, or political power, of judiciaries in many contexts. Kathryn Hendley (1996) has argued, in the Soviet case, that when social or political actors bring politically charged questions before the court, it has the effect of increasing the salience and power of the court vis-à-vis other state institutions. This phenomenon is precisely what is seen in the Israeli case. Social movement cause lawyers, in addition to members of Parliament, political parties, individuals, and others, increasingly brought political questions before the High Court of Justice after the parliament became highly fractured and relatively ineffective with the 1977 elections. Societal demand for court decisions on political questions has been extremely strong in the Israeli case (on social demand in other contexts, see Epp 1998; Sarat and Scheingold 2005). Moreover, the Israel High Court has been recognized by supporters and critics alike as increasing the power of the judiciary over the last three decades or so.6

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Some works have emphasized the role of political elites in the change to court intervention on political questions (Ginsburg 2003; Hirschl 2004). Tom Ginsburg has argued that the demand-side theories of judicial activism, previously mentioned, do not account for the role of politicians in the onset of judicial review. Judicial review is a legal tool that enables courts to review the decisions of government institutions, allowing courts to make decisions in some highly politicized cases. While Ginsburg is correct that in many contexts judicial review was established by parliaments and legislatures— most likely through the strategic interests of the political elites, as he suggests—it is not true of Israel. Like the United States, judicial review was established in Israel through a court decision (Bergman 1969) and was increasingly drawn on by the High Court thereafter to justify its jurisdiction. Moreover, the judicial communities theory accounts for both the demand-side and the supply-side of increased judicial activism by emphasizing the roles of social actors as well as High Court justices, in interaction, in the increasing role of courts in Israeli politics. Others have used the Israeli case to argue that constitutional change, and the increasing judicial power that usually comes with it, is the result of an alliance of neoliberal political, judicial, and economic elites seeking to preserve their existing interests (“hegemonic preservation”) (Hirschl 2004, cited above). Due to the timing of the onset of neoliberal economic arguments and policies in Israel, which began at the earliest in the late 1980s but began in earnest in the 1990s (Peled and Shafir 2002), it is unlikely that the High Court’s move toward a rights-oriented jurisprudence in the early 1970s was influenced by such thinking to any great extent. Indeed, despite some limited areas of privatization, political economists emphasize the rather extensive role of the state in the Israeli economy (Levi-Faur and Jordana 2005), and some continue to call Israel a welfare state (Shalev 1992, reaffirmed in papers as recent as 2003). Perhaps more importantly, in presenting the neoliberal thesis of constitutional change and judicial power, scholars like Ran Hirschl have cited two new Basic Laws in 1992 as marking the onset of a constitutional jurisprudence and of judicial review in particular. These new Basic Laws established a wide range of fundamental rights in legislation in the absence of a constitution. However, again, the timing does not support the “1992” hypothesis, as the court began using judicial review according to most Israeli scholars (including most critical scholars) in 1969 with Bergman. Far from depending on the parliament, judicial review powers were established and expanded through court precedent. If the timing does not support the neoliberal thesis, then what explains the increasing rights jurisprudence of the court through the 1970s and 1980s


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(for one example, see Kretzmer 2002), and the court’s fateful decision to take on state religious authorities? This study provides compelling evidence through political ethnographic study of just who it is that Israeli justices discuss legal issues with on a daily basis. The evidence points conclusively to legal scholars, left-wing social movement cause lawyers, and government lawyers as the most salient legal-intellectual community of the justices, their “judicial community.” Based on jurisprudence, extrajudicial writings, and academic conference and social movement proceedings, the ideological leaning of this community in Israel seems to have been dominated by a deep commitment to a liberal political rights regime, an expansive notion of the rule of law, and a strong judiciary to protect both. By developing norms that allowed the High Court to answer political questions, such as the powers of religious authorities, the judicial community contributed to increasing the court’s political salience. It is through increasing its political salience, as Hendley’s work would predict, that the Israel High Court was able markedly to increase judicial power. Just who makes up the salient legal-intellectual community of justices— the judicial community—matters a great deal, then, to the decisions of the court in specific cases as well as the larger questions of when and in what manner to engage heated issues of national contention. Judicial communities are fundamentally informal intellectual communities engaged in the generation of new legal norms. It is the role of the generation of new legal norms and practices that is a critical defining factor of judicial communities. Both elites and nonelites within a judicial community engage in conversation and debate over time that literally create and re-create not only the rules of the game for daily work within the judicial world, but the legal norms that become the foundations of jurisprudence at the national level. The Israeli case thus teaches us that courts can themselves drive processes of increasing judicial power by choosing to engage issues of national political import, and particularly by choosing to challenge administrative powers and uphold substantive rights. However, courts can do this most effectively when they are able to draw on the intellectual resources, both informal and formal, of a wider community. Given, at a minimum, electoral democracy and judicial independence, it is judicial communities that will have the greatest impact on the legal norms that become entrenched in jurisprudence and on the larger decisions of whether to enter into controversial national political issues. That is, judicial communities will largely determine whether courts take on the lightning-rod issues of the day, and the legal means available to do so. These choices will determine the relative power of the judiciary in the political system.

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Courts, Religion, and Gender This book draws on the specific issue area of religious-secular conflict as a case study of judicial decisions to take on major political issues and thereby increase judicial power. In the area of religious-secular conflict, the Israeli case is also far from alone. This case study sheds important substantive light on the link between religious-secular conflict and tensions over gender equality. Indeed, in Israel, as in many countries in the Middle East, battles between religious authorities and secular authorities have often pivoted on gender issues. For example, in Israel, Egypt, Morocco, Tunisia, and Pakistan, women’s groups have been key challengers of religious authorities with varying degrees of success (Badran 1991; Jalal 1991; Woods 2005; Ziai 1997). In all of these countries, women’s groups have had at least some impact on religious personal status law within the state. On the other hand, in Turkey, Iran, and Iraq, early- and mid-twentieth-century secular leaders used liberalization of women’s rights as a means of undermining religious institutions ( Joseph 1991; Kandiyoti 1991; Najmabadi 1998; Sullivan 1998). Both religious authorities and secular movements and leaders have often focused on issues of gender norms and gendered practices in their battles with one another. Why would gender, an area that is ostensibly not important to the “high” politics of states and national policy, be so important in conflicts between religious and secular leaders and movements in so many places? On the side of religious constituencies, a great deal of work has suggested an important link between religious extremism, on the one hand, and strict concerns with gender norms on the other hand. Martin Marty and Scott Appleby (1994) list heightened concern for traditional gender divisions in either religious practice or social boundaries as one of the important traits in defining “fundamentalism.” Others have suggested that concern over strict gender norms is one of the universal traits of extremist religion (see, for example, Hawley 1994). Many of the religious authorities around the Middle East, including Israel, would not fall under the category of “fundamentalist” for other reasons—for example, lack of appeal to violence, and somewhat looser group boundaries. And yet, one of the critical areas in which they are least willing to allow the encroachment of modern, liberal legal principles is in highly gendered marriage and divorce laws. In both Judaism and Islam, marriage and divorce laws regulate gendered practices within society and within the marital couple, and most importantly, they regulate religiously sanctified reproduction and the religious identity of offspring. Because these highly gendered regulations ultimately decide who is in the community and who is not, whether the community is physi-


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cally reproduced in accordance with what they see as God’s will, gender practices have come to hold a heightened significance for many religious constituencies both within the context of marriage and more generally in the context of religious practice. For some religious leaders and constituents, the concern for proper gender roles as a proxy for acting within the framework of God’s will extends to social relations far more broadly. (Thus, in the case of Israel, Yair Sheleg [2000] has argued that concern for gender norms is one of two critical variables distinguishing among ultraOrthodox and several other types of Orthodox Jews in Israel). Secular leaders, as well, have demonstrated a high level of concern for gender norms. Their concerns have often been related to nationalist movements in which women’s roles are seen as critical to the development of the new nation. Women’s roles, whether new or a rehashing of traditional roles, and gender norms have been critical in nationalist movements around the globe. Women have been treated as symbols of the nation; as socializers of the nation’s new generation; as physical reproducers of the nation; as needing to educate themselves to provide support for their new, modern nationalist husbands; and more rarely, as needing to contribute their own human capital to the nation. In the case of Israel, for example, first Prime Minister David Ben-Gurion asserted that it was a woman’s nationalist duty to have at least four children (Hazleton 1977, 63), and he provided a national award for “heroine mothers” who had ten or more children (Portugese 1998). In Egypt and Iran, women were variously treated as symbols, reproducers, socializers, and, for example, in Ali Shariati’s writings, as human capital (Badran 1991; Fahmi 1998; Najmabadi 1991, 1998; Sullivan 1998). New education reforms were enacted to allow women to be doctors and teachers in order to contribute their human capital and to demonstrate to the world the extent to which the new nation had become “modern” (see, for example, Abu-Lughod 1998). Thus, for secular nationalist leaders in the Middle East and elsewhere, notions of how to be a modern state were melded with traditional gender roles and gender norms to produce a strong concern with gender in national policy. (For other examples, see Jayawardena 1986; Stetson and Mazur1995; Stevens 1999.) These concerns among secular leaders have led to severe underlying tensions in states attempting to function under general law (often with some aspects of liberal law) as well as to accommodate religious personal status law. Such states include most of the Middle Eastern states, many states with a large Muslim population in Asia and Africa, and some cases in North and South America in which communal or customary law is granted autonomy for specific communities. Given the proxy role that gender

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norms play for both secular and religious leaders—in one case symbolizing the modern nation, in the other case representing divine will—it makes sense that conflicts between secular and religious leaders and social forces would be at their most intractable over gender issues. Indeed, it is the most intractable issues that find their way to courts, often after all other venues have been fruitless. Both the empirical observation that gender issues have been at the center of religious-secular conflict in Israel, and the analysis of the relationship between gender and religious-secular conflict are important contributions of the book.

Judicial Community and Legal Norms While the theory of judicial communities is novel, much work has been conducted on certain aspects of legal communities, particularly in the case of the United States. These have centered on either the legal profession (norms of the profession as a whole, the bar in various contexts, and so forth) or on specific court communities. Much of the excellent work on the legal profession has focused on communities as formal institutions or organizations; that is, an extensive literature exists on the nature of the bar: membership, demographics, types of legal work conducted by members, and the like (Abel and Lewis 1989; Nelson 1988). Some have shown that specific groups of lawyers may make up a community, as seen in work on the bar of the U.S. Supreme Court (McGuire 1993). However, until recently, that work, too, has tended to focus on the characteristics of a community of lawyers—“shared geography, common ties or bond, and collegial interaction” (McGuire 1991)— rather than the diffuse, norms-generating processes of interaction seen in the judicial community model. More recently, Mather, McEwen, and Maiman (2001) have shown the extent to which communities of legal practice make up the predominant referent for matters of daily practice and legal ethics. These communities both inform and are informed by the values of their members, and, thus, form a smaller legal community (of lawyers) that is very much a corollary to the judicial community of my study. However, they, too, have generally focused on communities of lawyers rather than the wider, norms-generating ties between lawyers and judges at the heart of the judicial community model. Work in criminology, on the other hand, has long been concerned with the role of broader court communities, which include both lawyers and judges, in the meting out of criminal justice (Fleming et al. 1992; Nardulli 1986). Much of this work has centered on courts as organizations with


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their own interests, and/or as organizations made up of members whose primary interests lie in supporting their membership in the organization. Broadly speaking, this literature has identified the actors, or “insiders,” within court communities as judges, prosecutors, and other regular workers in the courthouse. The members of the “defense bar,” on the other hand, have been considered “outsiders” to the court community, as the defense bar has been seen as structured very differently than the court community in this literature (for more on this point, see Nardulli 1986, 380). Insiders are generally treated as having static interests, usually derived from either economic or organizational imperatives. The exogenous forces that are so important in my study (or even the defense bar, seen as exogenous in the court communities framework) are not considered terribly significant against the backdrop of powerful organizational interests and individual economic incentives. Also noteworthy, court communities are addressed primarily as formal settings in which members live by the rules and/or conventions of the courtroom elite or the court-as-organization (Mileski 1971, 473; see also Nardulli 1978). While my model benefits from work on court communities, several distinctions between the two are worth noting. Two important structural differences include my emphasis on (1) the community around the highest court, rather than lower court communities, as an informal community that includes (2) not only judges and prosecutors, but also “defense” or civil rights attorneys, legal scholars, and others. Like the court communities literature, my model treats the judicial community as an informal community of individuals who develop common norms regarding personal behavior and professional procedures. My theory takes this point a step further, however, in its emphasis on the judicial community as the central locus of legal norms generation for the highest court of the land. Work on court communities often treat the interests of their members as relatively constant (Nardulli 1975), whereas my model emphasizes a constant process of change in the legal norms developed by the judicial community over time. Work on court communities is more apt to address litigants, especially, but even defense lawyers and “insiders” as subjects of organizational interests rather than autonomous agents in their own right.7 In addition, it should be noted that work within the court communities literature focus on criminal courts rather than the civil liberties and rights questions at issue in the theory of judicial communities developed in this study. As physical communities, both court communities and the judicial community should be contrasted to epistemic communities, as members live, breathe, think, argue, and work together in the same physical spaces

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on a regular basis and over long periods of time (often over decades). In this way, they exist as communities in marked contrast to the sort of epistemic and/or virtual communities, which may be ephemeral, developed through new technologies such as the Internet (Keck and Sikkink 1998). Recent work on the legal profession has highlighted the significance of specific, often geographically identifiable communities of practice, meaning “groups of lawyers with whom practitioners interact and to whom they compare themselves and look for common expectations and standards” (Mather, McEwen, and Maiman 2001, 6). The judicial community in Israel, the case through which the judicial community model emerges, is similarly grounded in physical geography and contact: most members of the judicial community are located in Jerusalem, most attended the same law school, and those who do not live in Jerusalem are apt to be located at the two other major law schools in the (very small) country. Regarding the “insiders,” or regular members of court communities, Peter Nardulli (1986) identifies three major trends within work on court communities: (1) those who see insiders as manipulators, who use the system to benefit themselves or their clients; (2) those who treat insiders as “cop-out artists,” who allow their clients to suffer as a result of their insider ties to the system; and (3) insiders as the creators and protectors of the court’s norms/routine/consensus. Each of these treatments of court communities presents an important aspect, or possibility, of how communities around courts may work; the first and the third are most salient to judicial communities. The first two approaches to court communities that Nardulli identifies, insiders as manipulators and insiders as cop-out artists, focus almost exclusively on the financial incentives of lawyers to become insiders. Through their membership, insiders gain materially in the collection of fees (either exorbitant fees, or an enormous number of lesser fees gained through routine plea bargaining). The notion of insiders as manipulators identifies real cases in which political patronage and the judiciary mix freely (383), creating an environment of judicial corruption. This type of situation could be the case in judicial communities as well, depending on the membership of the community and the nature of interactions among members. If, for example, justices, judges, and elites of the executive made up an organic community in which members of the executive were dominant and used their position to request certain court decisions, then we should see judicial decisions reflecting a normative affinity between the court and the executive. If, on the other hand, the executive demonstrated a coercive influence over the court (and


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therefore would not fall under my definition of “judicial community”), we would expect to see just the sort of nonindependent judicial decision making seen in places like Pakistan (Newberg 1995) and 1980s Chicago (Nardulli 1986, 383–384).8 It may be complicated in cases of executive domination in particular to determine whether that domination is coercive, and whether the interaction constitutes a “judicial community,” in the sense of being an organic, intellectual community that is the socioprofessional context in which justices think about legal issues on a daily basis. However, a judicial community dominated numerically and ideologically by state elites (on the right or the left) is possible. The key is that in the case of the judicial community, court decisions are the outcome of a process of thinking and arguing about legal issues over time, by contrast to direct influence peddling. A judicial community, thus, does not forswear the possibility of limited corruption. However, a case of extensive judicial corruption would forswear the possibility that judicial decisions are made, first and foremost, as informed by interactions within an intellectual community over time. The third approach to court communities in the court communities literature centers on consensus around norms, which it approaches in terms of a hegemonic consensus. That is, “insiders” to the court community create the norms of the courthouse, both in terms of everyday practices and legal norms acceptable to argue before the court. The norms created by the insiders are typically accepted and practiced by both insiders (including Marc Galanter’s “repeat player” lawyers [1974]) and outsiders to the court (including “one-shotters”). The insiders actively engage in protecting these norms so that the consensus is one of forced acquiescence rather than engaged consensus building. My study, by contrast, focuses on the ongoing creative development of consensus around broad legal norms, which emerge organically through conflict and debate within the judicial community. These legal norms are often Grundnorms,9 those major legal principles underlying a host of different types of legal decisions, although they may involve lower-level, more context-specific legal norms as well. An important difference between this work on court communities and my model of judicial communities is that mine is not a consensus-driven model (where members either agree with or abide by a hegemonic consensus), but is a conflict-driven model. Moreover, it emphasizes change rather than stasis. The defense of a certain consensus over norms implies stasis in either normative preferences, actual practices, or both. The judicial community model, by contrast, suggests that consensus over legal norms within the community will continually change over time through conflict and debate.

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Norms and Informal Processes It is worth defining and distinguishing between norms and informal processes for the purpose of this study. Norms have been discussed at great length, and in quite different manners, in work on law and courts and in work on informal institutions. In the latter, norms have themselves been treated as one type of informal institution, that is, practices that become binding on a society or community over time without the benefit of being written into laws, codes, or formal requirements (see, for example, Helmke and Levitsky 2004). Work on courts has tended to call this type of informal institution a “legal convention” (McCann 1994), that is, conventions (or socioprofessionally binding accepted practices) regarding how and when to use courts and how to use law in courts. Work on law and courts has treated norms both as conventions governing professional practices (Mather, McEwen, and Maiman 2001) and as foundational ideas leading to legal principle (Slaughter, Stone Sweet, and Weiler, 1998). For the purposes of this work, norms will be treated as ideas. Legal norms are foundational legal ideas; they are translated through judicial interpretation into various types of principles through case law. Conventions regarding everyday practices in legal work will be referred to as either conventions or practices. In the judicial context, norms may become binding principles through court decisions. For the purposes of this study, however, norms qua ideas themselves predate the establishment of the binding legal principle. In the development of new norms, legal scholars, lawyers—and particularly cause lawyers—judges, and justices alike often seek to create new legal norms that will become binding principles. Their relative success in doing so will be highly contingent on their ability to tie the new norm in a convincing way to an existing foundational norm—or Grundnorm—agreed on as such by a preponderance of the legal profession, if not the society as a whole. A Grundnorm is a broad principle underpinning entire categories of political and/or legal questions—for example, the state is bound by the law, individuals cannot infringe on the rights of others, and so on. In order to legitimate new legal norms, lawyers (or justices, in their legal reasoning on cases) must tie them to Grundnorms. Some of the Grundnorms themselves may be relatively new or old. The key is to develop a convincing legal argument (Epstein and Kobylka 1992) tying new norms to (often new) binding Grundnorms, while arguing that these Grundnorms are, in fact, long-standing, widely accepted principles. This process well reflects the demand that (positive) law makes that it be presented as both eternally constant and (somewhat) responsive to change (Fitzpatrick 2001). That is,


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lawyers must argue convincingly that a new norm is actually rooted in an old principle and that together they form a new Grundnorm that must be applied to all related situations. The development of arguments linking new norms to old principles and attempting to create new Grundnorms that will look as though they have always existed is an arduous intellectual task that requires the combined efforts of many minds over time. It is precisely for this reason that intellectual communities are so important in the context of developing new legal principles that courts may make binding through case decisions. It bears mentioning again that this process holds no matter the ideological direction of the legal norms in question. For the purposes of this study, informal processes should not be confused with norms, for I address norms as ideas, particularly in the context of legal principles, not as either institutions or conventions. Informal legal processes, in my study, are opposed to formal legal processes. Informal legal processes are those processes of interaction and norms generation outside the formal legal arena through which, I argue, formal legal decisions on politically charged questions emerge. Thus, informal processes have an important impact on the formal legal arena, meaning that the latter cannot be treated without attention to the former. Informal legal processes include conversations, conflicts, and debates outside of the formal context of the courtroom, settlement, or other legal procedure. Formal legal processes, on the other hand, include any interaction governed by formal legal procedures, including courtroom discussions, settlements, etc. Some work on law and courts has addressed informal aspects of legal issues, particularly in the context of dispute resolution and mediation (Merry 1982), or in relation to the extralegal sociological factors that may affect the outcome of an individual’s criminal case (Hagan 1974). Work on dispute resolution has tended to treat informal legal processes as “mechanisms for resolving disputes,” which are “rooted in such local institutions as lineage, clan, religious associations, or family” and are contrasted to resolution of disputes through the “formal” channel of courts (Merry 1982, 18). That is, informal legal processes are located, according to these studies, outside the ambit of the courtroom. Other works have pointed out that formal legal processes—meaning processes related to courts—may not be the most important, as they do not always lead to the results expected of them (see, for example, Rosenberg 1991, 3). My study finds informal processes within the context of the courtroom and its members. By informal processes, I am referring to informal processes within the context of the court and, particularly as influencing formal court decisions. Moreover, I am suggesting that high court decisions on major issues of principle, especially on constitutional-type

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questions, emerge precisely through a combination of informal and formal legal processes. The formal legal decisions are rooted in informal interactions and norms generation within the judicial community. This study suggests a model for understanding how, when, and in what manner courts will take up certain types of political questions, including the use of judicial review to answer such questions (a political issue in itself). Through participation in the development of (new) legal norms within the judicial community, both lawyers and justices begin to appeal to a similar world of normative legal ideas. The norms uniting the members of the community are those at the broadest level—norms regarding the appropriate role of the judiciary in the political system, the rule of law, the most general direction that the legal system should take on citizen rights versus state authority, and the like. Within these broad areas, members may hold significantly different ideological positions, for example, on specific issues such as women’s rights or gay and lesbian rights. Thus, in petitions, lawyers may push justices on specific issues further than the justices had anticipated moving. They might even change the preferences (or ideological position) of justices on those issues, as was the case, I will argue, with women’s rights in Israel (see chapter 6). Both justices and lawyers, in this sense, are independent agents in this intellectual community, contributing to it and, at once, influencing one another. It is important to recognize that the relationship between lawyers and justices is not an equal one. Nor, however, are either appropriated by the other. The critical point for my model regarding judicial power is that the justices sitting on courts make the critical decisions on when, how, and in what manner (including the choice of legal tools) the court will hear, respond to, and take on political issues in the context of a judicial community. All tools (such as judicial review) that may contribute to judicial power do so only when justices choose to use them to enter the political fray. The ideological direction of the judicial decisions may also contribute to judicial power. An ideology favoring a strong judiciary and an expansion of substantive rights was particularly important to increasing judicial power in the Israeli case, as will be seen in the coming chapters. Ironically, the most controversial judicial decisions may increase the political salience of the judiciary to the greatest extent; it is controversial decisions that throw the brightest spotlight of national attention on the judiciary. In contrast to the implications of some of the critiques of judicial power already mentioned, decisions generating the most controversy may be those rendered against the state.10


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In the next chapter, I begin to present the case of religious-secular conflict within the Israeli judiciary. The chapter outlines the long and uneasy relationship between the secular High Court and state religious institutions. The latent conflict between secular general law and religious laws and practices that varied dramatically by gender and by religion finally burst into open conflagration in 1988. The chapter sets out the political and social conditions that allowed the High Court to challenge the institutional autonomy of state religious authorities after marked failures in the past.


2 The Israel High Court of Justice and Religious Authorities

The law is a reflection of the accepted norms in any given society. It is the expression of the balance between different forces that attempt to influence and shape society. —Haifa University Faculty of Law Homepage

In 1988, a heated conflict erupted between state religious authorities in Israel and the Israel High Court of Justice. This clash, which I call the religious law conflict, has become nothing less than a culture war in the Israeli state and the wider society. It became so heated after the 1988 and subsequent HCJ decisions challenging state religious authorities that, by the mid-1990s, the president of the High Court began to receive death threats. In 1999, at least two hundred thousand ultra-Orthodox men descended on the High Court building, calling the High Court president a traitor to his people and decrying the “tyranny” of his unelected rule over the country. Meanwhile, some fifty thousand secular demonstrators confronted them in counterprotest. From a failed HCJ attempt in 1969 to challenge religious authorities, justices on the court knew the stakes—for both institutional and social stability—in mounting an attack on the autonomy of state religious institutions. And, yet, it did just that in two cases in 1988, cases that marked only the beginning of the battle. Why was the secular High Court in Israel able and willing to mount a sustained assault on the institutional autonomy of state religious authorities in 1988? Why was it able to make the very move that had failed so miserably nearly twenty years earlier? Political conditions demonstrated no change in public opinion favoring such a clash (Edelman 1994), no new

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laws supporting the court’s actions, and no new wave of international pressures to confront religious authorities. What, then, changed? Through the course of over three years of political-ethnographic research in Israel, I found the answer in a bottom-up interaction between largely unpopular left-wing social movements and the High Court justices. I argue that three macrohistorical changes created the conditions necessary to allow the High Court to enter this conflict. The emergence of new social movements in the 1970s, a weakening of the Knesset after the 1977 elections, and changes in the rules of standing in the High Court in the 1980s all provided the court with the opportunity to enter the conflict in a new position of strength. An interaction effect between the High Court and social movement lawyers within a newly expanding judicial community was sufficient to drive the High Court to make decisions it knew from experience would bring out what the first prime minister of Israel called “the dreaded Kulturkampf ” (Avi-Hai 1974, 97).1 The book details my major discovery: a fascinating informal intellectual community of which justices, legal scholars, social movement lawyers, and others have been a part. Judicial communities develop through an ongoing process of informal and formal interactions within the socioprofessional community of High or Supreme Court justices. This community was responsible for creating conditions sufficient to allow the High Court to change the political landscape in Israel. The judicial community developed new legal norms over fifteen years or so, which became the basis for the High Court challenge of religious authorities, beginning in 1988 and continuing to the present. This dispute propelled to the forefront of the national agenda not only the place of religion in the state but, from the other side of the political spectrum, the very legitimacy of the judiciary within the political system. In the late 1970s and early 1980s, as some left-wing social movement lawyers were beginning to join the judicial community, women’s movement lawyers believed that the HCJ was a hospitable forum for a variety of legal challenges in favor of women’s equality. Initially, cases on women’s equality involved labor issues; outcomes in these cases were modestly positive, but women’s equality was not accepted by the HCJ as part of the general principle of equality that it had championed since the 1950s. Movement lawyers’ beliefs that the court was, nonetheless, a hospitable venue for their concerns were informed by socioprofessional linkages through their participation in the judicial community, and the use of signals by the HCJ to the effect that it was interested in hearing cases on issues of rights and natural justice.2 Movement lawyers mobilized to bring innovative legal reasoning to justify the undermining of religious institutional autonomy. They did so by


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combining a preexisting foundational legal principle (Grundnorm) with a new conception of equality. They argued that state institutions were obliged to adhere to administrative legality, the equal treatment of all citizens in the absence of specific legislation otherwise. They further averred that this requirement for equal treatment included the equal treatment of women. The HCJ called this new principle “women’s equality.” The HCJ accepted this principle—for the first time in its history—and applied it to religious institutions that did not treat citizens equally along gender lines. Religious personal status law, the area of formal jurisdiction granted to state religious authorities, granted rights and responsibilities differently along gender lines. Thus, the new principle of women’s equality combined with administrative legality provided a fundamentally new challenge, undermining the autonomy of religious authorities to make decisions in many areas in which they had, heretofore, maintained clear jurisdiction. The battle was on between the secular HCJ, on the one hand, and religious authorities and religious constituencies, on the other hand. It became increasingly bitter throughout the 1990s and continues to the present. The High Court challenge of religious authorities did not come until the judicial community had expanded beyond political elites, who dominated the community in the 1950s, to include legal scholars and social movement lawyers, among others. Key justices sent signals as early as the early 1970s that they welcomed litigation on a broad set of rights issues. Social movement lawyers who became part of the judicial community in the 1970s and 1980s joined in debates over these issues at conferences, through mutual social movement activities, in professional work, as well as through social engagements. Justices drew on the legal reasoning that social movement lawyers developed to support a variety of rights claims. These lawyers, in turn, constructed their arguments in close consideration of trends in thinking not only visible on the bench but from knowledge of the status of debates within the informal judicial community. In addition, lawyers knew the reputations of individual justices. Perhaps more importantly, justices knew the reputations of lawyers arguing before them; interviews suggest that lawyer reputations had a significant impact on the character of initial judicial attention to a case. Over the course of fifteen years or so, changing ideas within the judicial community culminated in legal arguments presented, and accepted, by the High Court. Later in the conflict, by the mid- and late-1990s, justices’ concerns with their international reputations and national legitimacy became important in sustaining the HCJ’s challenge. This attention to international legal networks (Slaughter 2004) does not appear to have been critical in the onset

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of the HCJ challenge of religious authorities, however. For the moment of change in the late 1980s, I argue that the internal social and political changes I have described provide the most compelling explanation. Social movements challenging the status quo on religion eventually used this greater access to the HCJ to increase demands on the HCJ for decisions on political issues, in turn increasing the HCJ’s ability and willingness to make such decisions. The key movements in the conflict have been the religious pluralism movement, the civil rights movement, and the women’s movement. I address all three but focus on the women’s movement, as it was the initiator of the argument that became the most successful in challenges of religious authorities in Israel. The civil rights movement used this argument subsequently and was successful in its pleas. The women’s movement, together with the civil rights movement and, to a lesser extent in the early years, the religious pluralism movement, entered into an implicit alliance with the HC J, based on intersecting interests in a strong judiciary that would support issues of rights and, in this case, women’s rights. Thus, I look to the changing relationship between small social movements that lacked popular support, on the one hand, and state institutions (particularly the judiciary), on the other hand, to explain the emergence of the HCJ as a key actor in Israel’s culture war, challenging rabbinical authority over important parts of Israelis’ daily lives. It is a relationship that has transformed both the HC J and the social movements involved and has affected the balance of power between the HCJ and other state institutions.

Religion in the State—Israeli Exceptionalism? Israel is often offered as an exceptional case both politically and socially (Barnett 1996; Dror 1996). In the case of the religious law conflict, however, Israel is far from alone. Empirical evidence from the Middle East and around the world suggests that competing legal systems exist within many states, reflecting at least two competing sources of authority: divine and secular. Cases in the Middle East and in countries with large or majority Muslim populations outside the Middle East are better known, such as Afghanistan (Naby 1986), Egypt (Ziadeh 1968), Iran (Najmabadi 1991), Pakistan (Esposito 1982, 1996), Saudi Arabia (Vogel 2000), Malaysia (Harding 1996), Indonesia (Lev 1972), and India (Galanter 1989; Parashar 1992). Formerly secular states such as Iraq, and newly developing authorities as in Palestine, are now grappling with what place religious institutions and laws will hold in the state. Less well known is the influence and insti-


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tutional role of religious law in European countries (for examples in eastern Europe, see Kurczewski and Maclean 1994). One scholar of constitutional law has argued that countries around Africa, Asia, and Europe include some official role for religious authorities in their constitutions (Rhoodie 1984, citing countries including Zaire, Nigeria, Kenya, Ghana, Ethiopia, Zambia, India, Malaysia, Thailand, Northern Ireland, Italy, Cyprus, Denmark, Iceland, and Monaco). Religious freedom and personal religious expression that strains the sensibilities of the Christian majority in Europe have become areas of political and legal tension in France, Britain, the Netherlands, and Germany, just to name a few (Asad 2003; Davie 2003; Robert 2003; Soper and Fetzer 2002). The notion, suggested by many scholars of law and society, that the laws and courts of modern states are formulated through the lens of liberal, general law (Santos 1995; Silbey 1997) is belied by the existence and resilience of religious laws, institutions, and practices within modern states. In Israel, as in many Middle Eastern countries whose legal systems emerged out of the Ottoman Empire, religious courts have exclusive authority over personal status or family law (for Jews, marriage and divorce; for Muslims, marriage, divorce, inheritance, custody, and religious identity).3 The institutionalization of religious authority within the state can be traced in part to the Ottoman solution to religious and legal pluralism in the nineteenth century: instead of the universal, general law model of western Europe, a model of communal religious control of personal status or family law evolved. In most of these states, as in Israel, liberal general law and religious communal law have existed side by side, creating many tensions. Rabbinical authority gained state-sanctioned status in Mandatory Palestine under the Palestine Council of 1921. The new Israeli state adopted this official status, granting rabbinical authorities a position within the state under what has become known as the “status quo” agreements. Rabbinical authority is institutionalized in the Israeli state through the Ministry of Religion, the national system of rabbinical courts, religious parties, and a broad religious bureaucracy. Religious personal status law is based on principles of communal religious law, which distinguishes between rights and responsibilities by community and by gender; likewise, rabbinical authority has been organized in the last century on a male-dominated basis. As with many of its Muslim neighbors, whose states were also new in the twentieth century, the Israeli state has been undergoing a conflict among state institutions that has parallels in a deep rift between religious and secular groups within the society. One of the tensions comes from the unequal status of women in religious communal law. Gender has been a

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central area of contest in the religious law conflict, and mobilized women have been key players. The gender distinctions in rabbinical law and rabbinical offices have led rabbinical authorities on a collision course with any state institution that might choose to champion the equal application of general law in all areas. That gender has been a critical variable in the religious law conflict is a new and important empirical claim made by my study. Most studies that have touched on aspects of the conflict between religious and secular in Israel have done so from the perspective of party politics in the Knesset (Barzilai 1998), judicialization of politics (Hofnung 1996b; Kretzmer 1990), or constitutional issues relating to the HC J’s right to make such challenges (Gavison 1998). However, there has been little systematic work on the gendered aspect of this conflict (notable exceptions include Radai 1995a,b; Shamir, Shitrai, and Elias 1996). Gender is a factor largely unmined in studies of Israeli politics (important exceptions include Herzog 1999; Mayer 1994; Sharoni 1995; Yishai 1997). Some studies on women, gender, and politics outside Israel have sought to “prove” the proposition, often taken for granted in feminist theory, that women and gender are important variables in the decisions of state, international bodies, and economic institutions (Enloe 1988, 1990; Goetz 1991; Joseph 1991). In analyzing gender and women as central variables in Israel’s religious law conflict, I demonstrate empirically where gender influences state policy, judicial decisions, and the religious law conflict. Gender is significant for rabbinical authorities, who fought to keep women out of local religious councils (Shakdiel 1988) and to keep women from praying as a group at Jerusalem’s Western Wall (Hoffman et al. v. The Guardian of the Western Wall 1994), among other cases. It is also important to the beginning of HC J intervention in rabbinical authority. When the women’s movement brought the argument to the HCJ that women’s equality should be seen as part of equality more generally (Nevo 1990; Shakdiel 1988), the HCJ began to apply the women’s equality argument as a tool to challenge rabbinical authority in a variety of issues. While minor changes had been made in rabbinical jurisdiction before 1988, mainly through the legislature, until the late 1980s no state institution successfully challenged rabbinical jurisdiction over rabbinical offices, women’s status in religious matters, or personal status law.4 Indeed, rabbinical authorities, Orthodox and ultra-Orthodox communities accepted many of the previous changes with only minor complaint, as long as the changes did not affect their immediate communities and neighborhoods. With the


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central area of their jurisdiction within the state—religious personal status/family law—religious authorities, Orthodox and ultra-Orthodox communities produced a mass countermovement, responding to the HCJ attack of the late 1980s. Based on interviews with religious officials, I argue that the fervent defense of religious personal status/family law is rooted in a deeply held conviction that the entire Israeli Jewish people must reflect divine will, as seen in current interpretations of religious law (halakhah), whether or not individuals are personally religious. For religious officials, this social vision means that the requirements for religious marriage and divorce for all Israeli Jews must be coterminous with the requirements for full membership in the Israeli nation. Religious marriage and divorce law defines religiously sanctioned reproduction. As such, it draws the boundaries of who is in and who is out of “the community” (for religious officials, read that, the entire Israeli Jewish community). For religious officials, then, defense of religious personal status/family law is a matter nothing short of protecting the Israeli nation and the cosmic integrity of the Jewish People. Indeed, the two, for religious officials, are one in the same.

Religion and the Courts in Israel The civil courts in Israel are separated into three different levels: magistrate (trial) courts, district appeals courts, and the Supreme Court. The Supreme Court functions as both the highest court of appeal for trial cases and the High Court of Justice. The Supreme Court hears regular appeals based on falsified or new evidence, or if a third party has been convicted of the crime in question. As the High Court, it decides whether lower courts have acted within their jurisdiction, within the parameters of “natural justice,” or in other “exceptional cases” where it sees fit to intervene in the interest of justice (Moaz 1991, 477; Shetreet 1994). Next to the civil courts there exist three other complete court systems in Israel: religious, military, and labor courts. Each of these also includes trial and appellate levels. Cases can, under certain conditions, be appealed from these separate tribunals to the civil district courts, the Supreme Court, or the High Court. In the case of Rabbinical Court decisions, cases can be appealed only on the grounds of inappropriate jurisdiction or lack of a reasonable opportunity to appeal within the religious court system. Thus, cases appealed from the rabbinical courts go directly to the High Court of Justice. All the High Court cases mentioned in this book are High Court of Justice cases.

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In Israel, religious courts have exclusive authority over personal status or family law. In an agreement dating from the year before the establishment of the state of Israel, the future government promised rabbinical authorities a position within the state under what has become known as the “status quo” agreements. David Ben-Gurion (first prime minister of Israel), Rabbi Maimon Fishman (the Religious Zionist Movement), and Izhak Greenberg (center right), wrote a letter to the Secretariat of Agudat Israel before the establishment of the state in which it was agreed that the Orthodox communities would participate in the new state. In return the state would guarantee freedom of conscience, and orthodox control over (1) Kashrut (kosher dietary laws); (2) religious marriage and personal status issues in general; (3) Sabbath observance; and (4) possibility for Jewish religious education. The parameters of authority in each of these areas have been a source of continuing contention since the status quo agreement. The religious authority that is embedded in the executive branch, the national system of rabbinical courts, religious parties, and the broad religious bureaucracy crosses the lines between state and society in Israel. The Ministry of Religion and rabbinical courts, now under the Ministry of Justice, are clearly part of the state; the parties constitute a borderland between state and society; and the Rabbinate and much of the religious bureaucracy is largely independent of the state, although it gets most of its funding from the state. Minor changes had been made in rabbinical jurisdiction between 1945 and the early 1970s (around the time of Shalit), through at least six Knesset laws and four major High Court cases.5 Until the late 1980s, however, no other state institution successfully challenged rabbinical jurisdiction over rabbinical offices, women’s status in religious matters, or personal status law. Before the 1970s, the High Court demonstrated its uneasiness with the authority of the religious establishment in four major cases: Kutik v. Wolfson (1951) in which it determined that paternity would be decided in civil, not religious courts;6 Peretz v. The Local Council of Kfar Shmaryahu (1962), in which it was decided that the Reform Movement is allowed to use public religious facilities;7 Halkhai v. The Minister of the Interior (1963), granting the right to civil marriage to those barred for religious reasons from religious marriage;8 and Shalit v. The Minister of the Interior (1969).9 The Shalit case was the most fundamental challenge to the religious establishment, with strong language about the appropriate (or inappropriate) place of religion in the state. Benjamin Shalit asked the Israeli High Court to force the Ministry of the Interior to register his children as Jewish. Shalit’s wife, the children’s mother, was not Jewish. But, Shalit contended,


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the religious law for deciding Jewishness, by which a child is Jewish if his/her mother is Jewish, had no place in the laws of an ostensibly secular, civil state. The case caused an uproar in Israel, both in political circles and in society at large. Termed the “Who is a Jew” case, Shalit highlighted many of the inconsistencies that had previously lay under the surface of the new Israeli state. How could Israel be a modern, secular, civil state and be the Jewish state? If Israel was “the Jewish state,” then who gets to define who is a Jew? If the Orthodox and ultra-Orthodox have a complete, official monopoly Judaism in Israel, then what about immigrants or natives who are from the Reform or Conservative movements? These questions foreshadowed equally difficult problems that would arise in later decades: what about Jews from Ethiopia who had historically not been in contact with Rabbinical Judaism, and thus could not possibly follow Orthodox rabbinic practice? What about immigrants from the former Soviet Union, many of whom were not halakhicly Jewish, and many others of whom were not practicing at all (by ideological choice or by state enforcement)? The Shalit case reflected a deep internal conflict in Israel that would remain suppressed for over a decade, but which would reemerge in the late 1980s in full force in the High Court. In the landmark case, the High Court decided in favor of Shalit. In explicit, ideological language that appealed to principles of natural law, the High Court asserted that the religious law defining Jewishness had no place in the laws of the civil state. The High Court decision was dramatic enough. The drama was heightened still further when the Knesset overturned the High Court decision with legislation within three weeks (Edelman 1994; Englard 1975; Hofnung 1996b; Zemach 1976). The High Court took this symbolic slap on the wrist and refrained from challenging the rabbinical authorities or the rabbinical courts for the next nineteen years. The conflict was suppressed, but the lines became more clearly drawn as Israeli social movements became increasingly politicized and polarized, particularly around the issues of religion and security (Barzilai 1996, 1998; Edelman 1994; Hofnung 1996b; Migdal 1993).

Constitutionalism in Israel Constitutionalism may involve a written constitutional text combined with judicial interpretation (Nussbaum 2002), as in the U.S. model, or it may involve an unwritten constitutional tradition protected primarily by judicial or parliamentary branches (Bendor and Segal 2002). As discussed in chapter 1,

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typically, in either written or unwritten form, a constitutional tradition establishes legal Grundnorms.10 These foundational principles then supersede any legal question that may arise, including the extent to which legislation, policy, or unofficial state practices abide by these Grundnorms. Constitutionalism has often been accompanied, or quickly followed, by judicial review powers on the part of courts, as courts are often given the task of determining the extent to which legislation, policy, administrative actions, or other state practices abide by these constitutional principles. Indeed, many scholars associate constitutionalism with some form of judicial review, including either full review of legislation and administrative decisions, or review limited to administrative acts, policies, and practices (Bendor and Segal 2002; Ginsburg 2003; Hirschl 2004). Others treat judicial review, at the least, as an extremely important part of constitutionalism (Kommers 1991; Nussbaum 2002; Sunstein 1991). The protection of basic rights agreed on by either parliamentary or judicial sources as emerging from Grundnorms appears to be an important requirement for constitutionalism. Constitutionalism involves “entrenching institutional arrangements and substantive rights” (Sunstein 1991, 637) in both written and unwritten constitutional contexts (Shamgar 1974). One of Israel’s foundational constitutional moments was the establishment of judicial review by the judiciary in the 1969 Bergman case. In the aftermath of that case, the HCJ increasingly used judicial review through the 1970s and 1980s when examining administrative decisions, policies, and practices. Through judicial review, the HC J developed an ongoing rights jurisprudence. In its increasing rights jurisprudence, the HC J has maintained legal principles from various sources as superseding administrative actions, policies, unofficial practices, and, after 1992, review of Knesset legislation. It read military legislation as subject to judicial review as early as 1972 (Khelou v. Government of Israel ). Judicial review has been used by the court as a tool to claim jurisdiction to answer many types of rights questions beginning in 1969 (Gavison 1998; Hofnung 1996b, 1999; Kretzmer 2002). That the 1969 Bergman case was a critical turning point in Israeli jurisprudence (Klein 1971, 1996; Kretzmer 2002), and that the court increasingly engaged in rights jurisprudence from the early 1970s has been well documented elsewhere (Edelman 1994; Gavison 1985; Hofnung 1996b, 1999; Kretzmer 1992, 2002; Zamir 1996). Two new Basic Laws established in 1992 have also been important since that date (Hirschl 2004), as the HCJ asserted in a 1995 case that those Basic Laws constitute foundational principles that supersede regular legislation (Bank Hamizrahi v. Migdal Cooperative Village 1995). By way of brief illustration of HCJ constitutional developments prior to the 1992 laws, I will mention a few exam-


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ples of the court’s use of judicial review in one of the controversial areas in which it is thought to have been least active: security. These cases illustrate an ongoing process of court-driven constitutional development in Israel long before the Knesset involvement through the passage of the laws. In the first two decades of judicial review in Israel, its usage centered exclusively on review of administrative (including military) decisions and acts. While it did not review primary Knesset legislation, the court’s use of judicial review amounted to substantial review of governmental acts and institutions. Judicial review was frequently employed simply to establish or to reaffirm HCJ jurisdiction to review certain issues. The court also exercised judicial review to require the military or executive to cease certain activities that the court declared to be against Israeli statute or even broad, nonstatutory principles found in international legal norms. For example, as early as 1972, the HCJ argued that military laws do not have the same status as primary legislation. Rather, military laws must be bound by international law (Khelou v. Government of Israel 1972). In this case, the HCJ not only implemented judicial review to review military (executive branch) decisions, it established a constitutional-type appeal to extrastatutory sources for legal interpretation in nothing less than international law (a point not existing in statutory sources). In other cases, while the HCJ upheld settler rights or military policy, it asserted its right to review military decisions and put the military on notice that its decisions would have to be systematic and legally reasonable. These included cases relating to Arab property rights versus the government’s security interest in building settlements (Amira v. Minister of Defense 1979). In other cases the HC J put more pressure on military leaders, as in a 1979 case in which the HC J stated that the Military Commander in the Occupied Territories could make decisions regarding Arab residency for Palestinians who had studied or lived abroad for some period. However, the HCJ emphasized that the military commander in the Occupied Territories (referred to in the case as Judea and Samaria) must make those decisions according to proper consideration. What is more, petitioners had the right to an HCJ hearing to review the commander’s decision; in this case, the court overturned the commander’s refusal to allow the man to return (Samara v. Commander of the Judea and Samaria Region 1979). In 1983, the court decided that Military Commander in the Occupied Territories could establish a value-added tax. But since he was part of the governmental administration, he was subject to judicial review under administrative law and could not, thus, act with impunity (Abu Itta et al. v. Commander of the Judea and Samaria Region et al. 1983).11 Some have criticized the HCJ for not halting the military administration, occupation, or settlements altogether. Indeed, the HC J has

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been widely read as relatively nonactivist on security by comparison to other issue areas (Shamir 1990; see also Dotan 1999). However, even these security cases underscore a fairly extensive assertion of judicial power and use of judicial review decades before the 1990s. The HCJ’s review of executive, military, and other administrative decisions in this early period was substantial and constituted the movement toward a constitutional-type focus on (1) individual rights versus administrative authorities, and (2) extrastatutory sources as legitimate foundations for legal interpretation.

Alternative Explanations for the Israeli Case As discussed in the last chapter, the correlation between judicial intervention into issues of national political contention, on the one hand, and increases in judicial power, on the other hand, has been widely noted. A number of alternative explanations have been suggested to explain the judicial outcomes that have led to dramatic increases in judicial power in Israel and elsewhere. These include personality, attitudinal explanations, strategy, institutional factors, hegemonic elites, and culture. This study asks, in the case of Israel, why the HC J entered the religious law conflict when it did and in the manner that it did. In Israel, the most popular answer is personality. The president of the High Court from 1995 to 2006, Justice Aharon Barak, is accused of tyrannical rule, of attempting to enforce a tyranny of judges, and of foisting Western secular values on a non-Western public. This answer corresponds to some extent with the attitudinal answer in public law: in order to find out why justices decide the way they do, first identify the personal proclivities or ideological positions of the justices (Pritchett 1948; Segal 1985; Segal and Cover 1989). That is, all things being equal, judges will decide according to their preexisting normative commitments. However, Barak did not join the HC J until 1979, after the initial change from legal positivism to activism in many areas. And he did not become president of the HCJ until 1995, long after the HCJ entered the religious law conflict per se. Thus, the timing does not support the personality hypotheses. This point will be elaborated on in both chapters 4 and 5. The attitudinal answer to justice decision making is more complex than only the “personality” argument, of course. If judges decide first and foremost according to their ideological preferences, then we can assume that dramatic shifts in personnel will result in dramatic shifts in the direction of the court on the issues most reflective of the ideological change in personnel (Segal and Spaeth 2002). This sort of change is, indeed, visible in the


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Israeli case as a major shift in High Court justices began in the late 1960s and continued through the late-1970s. As will be discussed in more detail in chapter 5, an ideological shift from judicial personnel committed to the model of a self-restrained court to judicial personnel committed to liberal political rights can be seen in this period. As the attitudinal model would predict, attention to justice turnover, case law, and extrajudicial writings over this period do, indeed, reflect this link between changing personnel and an attitudinal shift on the court (Lahav 1997; Kretzmer 2002; Zamir 1996). An increasingly strong rights jurisprudence emerged throughout the 1970s in the HCJ. And yet, the court explicitly avoided challenging state religious authorities from 1969 to 1988. Thus, while the attitudinal explanation offers insight into some of the changes in the HCJ during this period, it does not explain why the HCJ took on one of the two most controversial issues in Israeli politics (region) when it did (timing) and in the manner that it did (which legal norms).12 One might suggest that the attitudinal approach to justice decision making is nonetheless compatible with the judicial community theory. For, I have argued that the judicial community develops legal norms over time and, in a sense, those norms are then applied by the court. If this is so, justices still come to the court with preformed ideas and apply them to cases, a contention entirely compatible with attitudinal arguments. Attitudinal explanations remain powerful and important if we are to take ideas seriously, although institutional, strategic, and other factors, which I will discuss later, may also be essential depending on context. Justice decision making is, if nothing else, complex, as a host of literature on the subject would attest (Caldeira 1987, 1993; Epstein and Knight 1998; Epstein and Kobylka 1992; Segal and Spaeth 2002;). The process that I identify herein moves beyond usual attitudinal explanations. The judicial community, through debate and deliberation, does develop a normative environment, which tends to create the broad intellectual parameters or boundaries of discussion around a legal issue. Within those parameters, around broad support of rights vis-à-vis administrative power, members of the judicial community may hold varying positions on a specific rights issue. Taking the issue of women’s rights, as it is salient to this case study, while the judicial community may be in the process of developing strong normative legal foundations for a rights jurisprudence, various members, including justices, may or may not be normatively comfortable with women’s rights. Thus, in a case on women’s rights, justices may come to the court with a negative inclination on the question. Moreover, lawyers may use the normative legal foundations for a rights jurisprudence created within

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the judicial community to convince the justices that women’s rights must be accepted if the foundation of rights jurisprudence that has been thus far developed is to maintain its integrity. If the justices accept this contention and come to accept women’s rights, then their normative position on that specific legal question has been changed through the course of a court case. Thus, while they came with preformed ideas about women’s rights, they did not apply those ideas to the case but were changed through convincing legal argument (Epstein and Kobylka 1992). Moreover, it is through the intellectual interaction within the judicial community that lawyers discovered a judiciary willing to hear such cases; the foundational legal principles that might be used successfully; and a manner to present this new potential legal principle of women’s rights that justices would, at the least, accept and, at the most, find intrinsic to its wider legal commitments. Note that a wider set of commitments at a very broad level does, indeed, apply here, in keeping with the attitudinal model. Those commitments might include ideological, institutional, strategic, rational, and other factors. What the judicial community theory offers that is new is one account of judicial change over time, to which other explanations, particularly attitudinal some strategic models, are less attentive. Recent rational choice explanations have sought to explain justice decision making through strategic decision making on the part of justices in relation to their institutional setting, relationship with other state institutions, and relationship with the wider society (Epstein and Knight 1998). This approach provides needed attention to a variety of institutional and social factors in studying justice decision making, as well as strategic factors involved in that decision making. However, its rather static model of preferences has difficulty accounting for change, and particularly for change in preferences, which I argue occurred in the HCJ justices’ new attention to and championing of “women’s equality” after the first women’s movement cases in the late 1980s. A strategic form of rationality was, nonetheless, significant in the onset of the HCJ challenge to religious authorities. Strategy played an important role, although not in the direct sense that one might expect. In entering into an unintentional relationship of implicit alliances with the women’s movement, the civil rights movement, and to a lesser extent the religious pluralism movement, the HCJ did not cultivate strategic alliances with a broad social constituency. These movements did not have widespread popular support. Indeed, while the civil rights movement was well known, none of the three movements was well liked across the society as a whole. Thus, the HCJ’s behavior was not strategic in the common sense of building a constituency of social support. However,


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in using the women’s equality argument in particular as its main tool with which to challenge religious authorities, the HCJ acted quite strategically. The women’s equality argument dovetailed perfectly with the civil law principle of administrative legality that the HCJ had long used in reviewing the actions of any governmental body. It had long used administrative legality unequivocally to assert the principle equality; this will be discussed further in chapter 5. When the women’s equality argument came to the HCJ, it picked up the argument and used it with administrative legality as a means to make decisions that fundamentally challenged the parameters of religious authority. However, the HC J did so in explicitly legal positivist language. The particular combination of these two arguments allowed the HC J to clothe its decision in the legitimacy of legal positivism, avoiding any constitutional claim in the absence of a constitution. Attempts to make constitutional claims have been extraordinarily controversial in Israel, whether on the part of the judiciary or other actors (Hofnung 1996b). Using the language of “constitution” was not an appealing or fruitful route in the development of what scholars have nonetheless called a “constitutional” rights jurisprudence (Hirschl 2004; Kretzmer 2002). This particular legal argument was a very useful tool and was used strategically by the HCJ against religious authorities within the state. Strategy was significant in other ways as well. I have suggested that justices acted in a strategic manner in choosing, framing, and executing legal norms within case decisions. Judicial communities are also implicated in this strategic behavior in that they provide the primary intellectual resources in the development of new legal norms, sometimes on both the demand-side (through litigation) and the supply-side (supply of judicial decisions and new judicial powers) (for discussion of supply and demand of judicial power, see Ginsburg 2003). However, the choice of justices to participate in an intellectual community is not strategic in the sense of choosing a social constituency that can guarantee important social support for the institution (for more on the multiple strategic considerations of justices, see Epstein and Knight 1998). Participation in a judicial community is, in some ways, a natural outgrowth of the intellectual project that is judicial reasoning. It is also the product of institutional constraints that emphasize the absolute necessity for convincing legal argument and reasoning on the part of lawyers, and convincing legal argument, reasoning, and interpretation on the part of justices (Epstein and Kobylka 1992). The sorts of strategic decision making seen in some authoritarian or semiauthoritarian cases—in which justices maintain support of the executive until they expect a change in regime, at which point they act according to their own attitudes (Helmke 2005)—

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is not salient for judicial communities. Nor is the type of duress under which high courts, in some periods, are forced to bolster an existing regime salient for understanding judicial communities (Newberg 1995; Osiel 1995). Under conditions of executive repression or control of the judiciary, it is unlikely that judicial communities will play a strong role in driving courts into a prominent place in national politics. This is true for the simple reason that the intellectual resources that judicial communities provide in developing new legal norms are not relevant where justices are not free to decide cases through their own intellectual efforts. Institutional arguments for increasing activism on the Israeli HCJ on various rights issues have generally focused on three main points: polarization and ensuing inefficiency of the Knesset following the 1977 elections (Barzilai 1998); an increase in petitions brought by politicians to the HCJ after the 1977 elections (Dotan and Hofnung 2005); and the passing of two new Basic Laws through the Knesset in 1992: Human Dignity and Freedom, and Freedom of Occupation (Hirschl 2001). These factors are, indeed, important to a broad view of changing salience of the HCJ in Israeli politics. However, while the first two of these factors are significant to the change of HC J policy toward state religious institutions as enabling conditions, they do not explain why the HC J entered into the religious law conflict when it did and in the manner that it did. The third factor, the new Basic Laws, postdate the onset of the religious law conflict, and thus do not carry explanatory value for the question at hand: why 1988, and why the women’s equality/administrative legality arguments? Other possible institutional arguments might highlight questions of institutional autonomy found in the judicial appointment process, judicial tenure, promotion within the judiciary, and the like. The Israeli judiciary maintains a high degree of judicial independence on all of these counts. The appointment process is dominated by the judiciary.13 Judicial tenure is lifetime tenure with mandatory retirement at age seventy. Promotion within the HCJ occurs purely by virtue of years on the bench. While there are considerably more constraints on judicial power than, for example, in the case of Italy, there is nonetheless little room for other institutions or social forces to influence the judiciary through these particular institutional channels. The institutional factors that contribute to basic judicial independence are taken as a given in this study, as judicial independence is necessary before judicial communities are likely to become politically important.14 Thus, a preset tenure, protected wages, a systematic appointment process, institutional independence from pressure from executive or legislature in the


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process of judicial decision making, and structural independence from interest groups are assumed. Likewise, the relative efficacy of other branches of government has a great impact on the importance of the judicial community. The question of whether the appointment process is dominated by the judiciary, the executive, the legislature, or some combination thereof may play a role in the type of judicial community that develops (i.e., normative orientation). However, as long as the appointment process is systematic, it fulfills one of the important requirements for judicial independence. Other institutional arguments raised to explain why courts might make the politicized, constitutional type decisions that they do have centered primarily on some pressure from the legislative branch. These pressures include, variously, new legal tools granted by the legislature, such as judicial review (Ginsburg 2003; Hirschl 2004). They include parliamentarians bringing cases to the highest court in order to skirt stalemate in parliament (Dotan and Hofnung 2005). Neither of these types of pressure have been salient in the case of religious-secular conflict in the HCJ. The Knesset was, nonetheless, critical in setting the conditions that allowed the HCJ to challenge religious authorities in the state. I argue later that the polarization of the Knesset after the 1977 elections did, indeed, increase the tendency of social actors to bring cases to the HCJ. Indeed, interviews with members of the judicial community (see chapter 4) suggest in no uncertain terms that the Knesset is often viewed as achieving “nothing at all” on certain important political issues, and therefore both social actors and politicians have newly turned to the courts since 1977. The ability of any individual to bring certain types of rights cases against government institutions directly to the HC J after a change in the rules of standing in 1988 further increased the flow of cases to the HC J. These factors were conditions necessary to allow the HCJ to step into direct institutional combat with state religious authorities: new actors brought new cases, allowed by new rules of standing, and fostered by frustration with an ineffective Knesset. Yet none of these factors explain why the HCJ chose to attack religious institutions when it did. Indeed, previous cases, most dramatically Shalit (1969), suggest a long-standing desire on the part of many justices to change the status quo on the role of religious institutions in the state. Later, I outline the institutional and social conditions necessary to place the HCJ in a position of great enough strength to take on state religious institutions. The explanation for why it did so when it did lies in new legal norms developed within a judicial community of which justices, legal scholars, and social movement–cause lawyers were all a part.

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While cultural arguments for the onset of judicial engagement in politicized rights questions have been important in the U.S. case (Glendon 1991; McCann 1994), they have not been as prevalent in the Israeli case. One argument with a cultural aspect that has been especially important in recent years in explaining Israeli HCJ activism has been that of hegemonic cultural, political, and/or economic elites as driving judicial empowerment (Ginsburg 2003; Hirschl 2004). These works have emphasized the role of political elites in the change to court intervention on political questions (Ginsburg 2003; Hirschl 2004). Ginsburg has argued that the demand-side theories of judicial activism, mentioned earlier, do not account for the role of politicians in the onset of judicial review. Judicial review is a legal tool that enables courts to review the decisions of government institutions, allowing courts to make decisions in some highly politicized cases. Ginsburg makes the astute observation that in many if not most contexts judicial review was established by parliaments and legislatures. And in the case of parliamentary-based judicial empowerment, the most likely cause does appear to be the strategic interests of the political elites, as he suggests. However, neither of these is true of Israel.

Opportunities for the Court: Necessary Changes in Society and State Institutions Three major changes in society and in state institutions provided the conditions necessary to enable the HCJ to enter into the religious law conflict. These changes provided the HCJ with new opportunities, provided social actors with new opportunities to use the court, or both: (1) the emergence and eventual legal mobilization of new social movements; (2) the weakening of the Knesset; and (3) new, very broad rules of standing. New Social Movements and Legal Mobilization Throughout the 1970s and 1980s, Israel experienced an explosion of social movements that began to make demands on the state. Some studies have traced this explosion to the aftereffects of the 1973 war on Israeli society (Gidron 1992; Israel Central Bureau of Statistics No. 1016, 1996). Others have argued that the trend began earlier, in the aftermath of the 1967 war, when right-wing religious groups began to call for the annexation of the newly occupied territories of the West Bank, Gaza, and the Golan Heights (Barzilai 1996). In response, left-wing groups emerged in enormous num-


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bers demanding new legislation and executive policies on the territories, civil rights, human rights, women’s rights, and more. However, whatever one’s position on the precise onset of this “silent revolution” (Israel Central Bureau of Statistics No. 1916, 1996, 18), it is clear that by the 1980s, a fundamental change had occurred in Israeli society and politics: a dramatic increase in the nonprofit sector, including social movements; an increase in social organization demands on the state for both financing and support of respective agendas; and an increase in this sector’s political salience. For the most part, in the 1970s, the new social movements directed their attentions to lobbying in the Knesset and the executive. The total number of civil cases brought to the court was still relatively low in 1970: 22,726, or 75.2 per 1,000 citizens (Shetreet 1994, 104–105). Petitions to the courts were brought mostly on an individual basis.15 The second wave of the women’s movement, which emerged in 1970, was no exception to this trend. It, too, focused most of its energies on lobbying and local grassroots work, as opposed to legal mobilization, until the mid-1980s. The women’s movement in Israel began its second wave in Haifa in the early 1970s with an ideological commitment to improving women’s status in Israel, politically, legally, economically, and socially.16 Five or so small groups made up the movement at that point; together and as individual groups they sought to influence the state through lobbying and changing society through local grassroots work. The movement immediately gained access to state decision-making bodies. Marsha Freedman, one of the founders of the earliest second wave women’s organization, joined Shulamit Aloni’s party, Citizens Rights Movement; from January 1974 to February 1977, she sat as a member of the Knesset (Freedman 1990). Unfortunately for the women’s movement, Freeman was considered a radical outsider by most others in the Knesset, and even by some of those in her own party (Freedman 1990). However, her position in the national legislature is a testament to the women’s movement’s attention to the Knesset and lobbying as a tactic. There were no women’s movement High Court cases during this period; however, by the late 1970s, individual feminist lawyers began to bring cases that would eventually pave the way for concerted women’s movement litigation efforts.17 Locally, the organizations of the movement focused on issues of domestic violence, working in the Knesset for legislative reform, and lobbying the Haifa police department to enforce the laws that did exist. By 1977, the Haifa group opened the first battered women’s shelter in Israel, with municipal funding from the city. By 1983, women’s shelters had been established in Herzliya, Jerusalem, and Ashdod (Israel Women’s Network [IWN]

48


archives). The focus on the legislature is typical of other social movements during this period as well. However, by 1986, the IWN opened its Legal Center, headed by lawyer and legal scholar Frances Raday. From that point forward, the IWN, an umbrella organization for many women’s organizations in Israel, engaged in a policy linking litigation with legislative lobbying.18 Regarding issue areas in which there was little public consensus, and thus little chance for success in the legislative body, the IWN preferred litigation. This was true in many areas, and particularly so in the divisive area of women’s rights under religious authorities. As will be discussed in chapter 6, two other movements were particularly important in the religious law conflict: the civil rights movement and the religious pluralism movement. Nonetheless, the women’s movement was the first to bring forth the critical argument that the HC J would accept against state religious authority in the coming decades. Gender has been critical in religious-secular legal battles in Israel, and yet the women’s movement is rarely discussed in treatments of religious-secular tensions. Because of these points, the women’s movement receives more attention in this study than do other social movements. Weakening of the Knesset In the early 1970s, the Israeli state was still characterized by a strong Knesset and Executive. However, Knesset strength in particular was ebbing in the face of the rise in increasingly polarized social groups and movements (Barzilai 1996; Migdal 1994). By the 1977 elections, for the first time in the history of the state there was no majority party in the Knesset. Barzilai (1998) argues that the 1977 elections saw an immediate polarization of political parties, which continued into the 1980s (and until today), and which enhanced the power of religious parties. Religious parties have held the key to Knesset coalition since 1977, forcing the larger parties to accommodate them on religious issues and, thus, acting as veto players (Hofnung 1999; Tsebelis 2002). The Knesset, as an elected legislative body, must be sensitive to political trends within society. With the pressures of a plural and expanding (and polarized) civil society together with the tenuousness of coalition politics, the Knesset began to demonstrate an inability to address, much less to solve, a few of the “sacred cow” issues of the day. There are two issues that have been consistently polarizing within Israeli Jewish society: security (the external threat) and the religious law debates (the internal divide). As evidence of the decreasing effectiveness of the Knesset, one may look at the progress of Knesset bills relating to some of the key issues in the reli-


49

gious law debates. Knesset inefficacy is widely regarded as beginning with the 1977 elections. Allowing for a few years of experimentation with this new environment on the part of parliamentarians, I will distinguish between the pre-1980 and post-1980 periods, although the data for the pre-1977 and post-1977 periods demonstrates the same effect, as seen in table 2.1. Some of the effects of this Knesset inefficacy on the HCJ caseload—particularly the propensity for parliamentarians themselves to turn to the court—appear to lag into the 1980s as well, suggesting that this distinction between the 1970s and 1980s is appropriate (Dotan and Hofnung 2005). Out of forty bills brought to the Knesset in the 1980s and 1990s on the issue of marriage and divorce, only twelve made it even as far as a preliminary reading in the full Knesset (the first step for a bill). Of eight bills prior to the 1980s (1953, 1966, 1971, and 1979) all made it through the preliminary reading in the full Knesset as well as to committee reading, two made it back to the Knesset for vote, and one made it into law. Thus, more bills were presented on religious status quo issues after 1980, perhaps indicating that religious-secular tensions were increasing with the dramatic gains of religious parties in the aftermath of 1977. These gains were seen both in terms of number of religious parties represented and religious parties becoming key veto players in the fractured, coalition system (Barzilai 1998). However, notably, the ability of the Knesset even to discuss issues of religion and state decreased dramatically. In the earlier period, 100 percent of bills introduced in the Knesset went through at least the first step in the hearing process. By the 1980s, only 30 percent made it as far as the first step, a decrease of 70 percent. None made it further than the first step in the latter period. Other issues within the religious-secular conflict present a similar picture of a divided Knesset unable to address some of the most contentious social-political questions for the state and society. Out of six bills brought on the issue of Sabbath in the 1980s and 1990s, only three made it as far as the preliminary reading (see table 2.2). Of twenty bills brought to the Knesset on the issue of conversion in the 1980s and 1990s, only eight made it to a committee reading (see table 2.3). There were not specific bills on Sabbath or conversion prior to 1977. This lack of bills does not indicate an ineffective Knesset, as the Knesset was otherwise very active during this period, and was relatively strong (dominated only by the executive) (Hofnung 1999). Rather, the lack of bills prior to 1977 most likely indicates (1) an adherence to the status quo agreements between Ben-Gurion and the Orthodox Jewish communities prior to the establishment of the state on these questions; (2) the lack of a social constituency to challenge the status quo

5 43

Period

1948–1976

1977–1999

15 (34%)

5 (100%) 2 (4%)

3 (60%)

Bills Debated in Knesset Committee (“First Reading”)

Source: Data from Knesset archives, database on Knesset bills (Hebrew).

Bills Brought to Knesset

Bills Reaching Preliminary Hearing of Full Knesset

Table 2.1. Knesset Bills on Marriage and Divorce

0 (0%)

2 (40%)

Bills Returning to Knesset from Committee

0 (0%)

1 (20%)

Bills Passed into Law

0 6

Period

1948–1976

1977–1999

3 (50%)

0

Bills Reaching Preliminary Hearing

1 (16%)

0

Bills Reaching Knesset Committee



Table 2.2. Knesset Bills on Sabbath

1 (16%)

0


1 (16%)

0


0 20

Period

1948–1976

1977–1999

8 (40%)

0


1 (5%)

0




Table 2.3. Knesset Bills on Conversion

0 (0%)

0


0 (0%)

0



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(Edelman 1994); and (3) the possibility of nonpublished agreements on these issues away from public view. While there were committee discussions of Sabbath prior to 1977, conversion appears to have been a nonissue in the Knesset prior to the 1980s. In short, however, table 2.1 indicates that, while Knesset members did attempt to legislate on the contentious issue of marriage and divorce law in both periods, the ability of the Knesset even to debate the issues decreased. Turning to the moment of the 1977 elections themselves, prior to 1977, 100 percent of bills brought on this issue made it to preliminary reading, and 60 percent made it to Knesset committee. From 1977–1999, only 34 percent of bills even made it as far as preliminary reading; only 4 percent reached committee. Furthermore, table 2.3 shows only a 40 percent rate of bills reaching preliminary reading, and only 5 percent reaching Knesset committee. In the latter period, on the issue of marriage and divorce, and conversion in particular, it is clear that Knesset members made extensive attempts to introduce new legislation (forty-three and twenty bills, respectively). For my analysis, it is less important whether the bills became law; the rate and extent of progress through the various stages of the legislative process is more significant in indicating inefficacy on these issues. As we see in tables 2.1 to 2.4, in the latter period, the bills were debated at a very low rate. Whether or not the decrease in debate reflects behind-the-scenes agreements not to act, it does demonstrate an inability (or at least an unwillingness) to address important issues of the day. If we examine the specific issue of bills on civil marriage (table 2.4), which, in the Israeli case, means a nonreligious marriage option, a 1966 bill brought to Knesset by Communist Party member Shmuel Minknis did receive a preliminary reading. It was recommended for the Knesset agenda, and ultimately was not passed. In 1971, Uri Avineri from “This World” Party, entered a civil marriage bill that also received a preliminary reading and was debated further by the Knesset. However, the next civil marriage bill of 1988, brought by Tsvi Yair, did not even reach preliminary reading. Shulamit Aloni’s bill, raised in 1988, came to preliminary reading in 1991, but made it no further. Pini Badash’s 1995 bill did not make preliminary reading, nor did Naomi Chazzan’s bill in 1999. So, two out of two civil marriage bills prior to the 1980s were debated and received Knesset attention beyond a preliminary reading. Out of four bills after 1980, only one made it even as far as a preliminary reading. This contrast provides us with some indication of a decreasing ability or willingness to debate “sacred cow” issues involved in the religious law debates on the Knesset floor.

2 4

Period

1948–1976

1977–1999

1 (25%)

2 (100%)


0 (0%)

2 (100%)




Table 2.4. Knesset Bills on Civil Marriage

0 (0%)

2 (100%)


0 (0%)

0 (0%)



55

Menachem Hofnung (1999) traces this unwillingness to decide controversial issues to coalition politics and to the executive-dominated legislature in a parliamentary system. The Knesset’s unwillingness to enter the fray in controversial issues left a decision-making vacuum, which the High Court ultimately filled. After the 1982 elections, when the national vote was almost evenly split, the government often found it much more convenient not to decide in controversial matters, thereby keeping peace within the coalition. . . . In a parliamentary system, where the legislature is dominated by the executive (leaders of Knesset factions serve as ministers in the government), this meant that the Knesset was not going to make too many independent decisions either. This left the High Court of Justice as the only open channel for deciding matters that were pushed aside, or deliberately left undecided by the executive and the legislature. (Hofnung 1999)

Several scholars have argued that this weakening of the Knesset is precisely what has made possible the “integration” of the High Court into political life in Israel (see, for example, Barzilai 1998).

Rules of Standing The High Court began to broaden the rules of standing for bringing a petition to the court in the early 1980s in a series of cases that culminated in the 1988 Ressler v. Minister of Defense decision, in which the court determined that any individual or organization may petition the court if she, he, or it has a claim against the government, or relating to the Basic Laws of the country.19 Significantly, petitioners need not prove personal damages to bring a case, allowing for very broad access to the court. The new rules of standing allowed the court to accept more petitions from individuals and groups, making itself a more pivotal player in important political issues. And, indeed, the number of cases heard in the High Court by 1989, only one year after Ressler, had increased to 455,960 or 134.4 civil actions per 1,000 persons (Shetreet 1994: 104–105). By the early 1990s, the current president of the High Court, Justice Aharon Barak, began to argue even further that the court may accept petitions on almost any issue. In other words, almost any issue is justicable (Barak 1992a). He has assured the public and the legal community that the court will not use this right except in cases where a significant legal principle, or egregious state error, is in question. The new rules of standing, together

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with some justice writings (discussed in chapter 5), can be seen, not unreasonably, as a beacon call to groups and individuals that the court was a willing arena for solving disputes. Jayanth Krishnan (2002) has noted that the new rules of standing, unusually inexpensive costs involved in litigating in the HCJ, and an increase in interest group funds has provided “favorable conditions” for litigation in the High Court (see also Dotan 1999). While he notes that most interest groups in Israel do not pursue this strategy, groups involved in the religious law debates did choose to pursue their unpopular causes in the court,20 which was seen as independent of the political whims to which the Knesset, by definition, had to be sensitive.

The Religious Law Conflict and Judicial Power In this study, I analyze the relationship between institutional and social factors leading up to the HCJ challenge of the autonomy of state rabbinical authorities in Israel beginning in 1988. On an institutional level, an ongoing change in the relative power of the judiciary vis-à-vis the parliament and the executive allowed the HCJ to pursue the challenge it had tried unsuccessfully in 1969 (Shalit). The HC J challenge of religious authorities further catapulted it into the national political arena, increasing its visibility and political salience, and increasing its political power dramatically. Power, here, can be measured both in terms of public political salience (Hendley 1996) and institutional standing. The former has already been discussed. The latter, in the case of judiciaries, means the ability of the court to make decisions that other state institutions either enforce, uphold, or, at a minimum, do not undermine. With an increase in the relative power of the judiciary, one would expect to see politically controversial HCJ decisions being allowed to stand by the parliament and other branches of government. If all institutions within the state support and do their part to enforce political HC J decisions—particularly those that change the balance of power among state institutions—then the HCJ can be said to be “most powerful” on a continuum relative to other state institutions, and progressively less so as fewer state institutions support HCJ decisions. I found that the relative power of the HCJ increased dramatically vis-à-vis other state institutions. However, it did not reach a most powerful position because some state institutions continued to challenge HC J decisions. Namely, in a few cases, the Ministry of the Interior, responsible for enforcing HCJ decisions, refused to do so. In addition to the Shalit case (1969), another case, the High Rabbinical Court refused to


57

implement a HCJ decision demanding that it apply civil laws on equal division of property to divorce cases it heard (Bavli v. The Supreme Rabbinical Court 1994, reasserted in Aknin v. The District Rabbinical Court of Haifa et al. 1996). The HCJ did not, thus, reach the level of autonomy seen in the Italian case (see chapter 7). However, the parliament and executive allowed these controversial decisions to stand, which had not been the case in Shalit (1969). Furthermore, the executive moved to uphold and implement many of these decisions, albeit moving more slowly to make changes required of it in other related cases, particularly related to women’s religious rituals and conversion. Moving from state institutions to social groups, the women’s movement supported the HC J by increasing demand, thus helping increase its power relative to other institutions of state. However, it went beyond mere support. The women’s movement provided the HCJ with a new ideological argument, which changed the HCJ’s thinking on the issue of equality. The HC J adopted the women’s equality argument for the first time (Shakdiel 1988 and Nevo 1990), drawing a new link between women’s equality and the equality of ethnic groups. The increase in social demands for HCJ decisions removed constraints on the HC J’s ability to challenge rabbinical authorities, by increasing the political salience of the court and providing new legal tools. It also helped change the HCJ’s ideological stance on the key issue of women’s equality. Moreover, the new legal tool of women’s equality combined with administrative legality gave the HCJ an instrument that could be used to trump rabbinical authority across many areas of established rabbinical authority (on the significance of legal arguments, see Epstein and Kobylka 1992). We see the following progression: →

Increased Judicial Power →

Emergence of → Judicial Signals → Increased Demand Social Groups

New Legal Tools

These interrelated factors demonstrate, respectively, the ability and the willingness of the HCJ to enter into an implicit relationship of mutual support that would aid in some of its preexisting goals: a strong (secular) judiciary, enforcement of rights, and a challenge of religious authority. The next chapter takes a step back to explain the origins of religioussecular tensions in Israel, and particularly the conflict between the secular judiciary and religious institutions within the state. Because much of these intrastate tensions center on religious laws and courts, I call it the religious law conflict. The chapter begins by explaining the paradoxical

58


route by which religious authorities came to be institutionalized within a modern, secular, socialist state. The overwhelming answer to this question hinges on gender. Religious officials have sought to create and reproduce their social, religious vision for the entire Israeli Jewish society through the institutionalization of highly gendered marriage and divorce laws, and through the regulation of certain gendered religious practices in the public sphere.

3 The Irony of State Incorporation

I want the state to hold the religion in the palm of its hand. —David Ben-Gurion The reality in Israel is that we are men of the law. If the same husband receives an invitation [for a divorce hearing] from me and he does not come, he is already tied: by the scuff of his neck, he’s going to jail. The second time, I do not need any favors from him. The police bring him to me. —Interview with Rabbi Klein, Rabbinical Court of Beer Sheva They look upon the Oriental communities as if they were cattle. They are beaten and humiliated because the [Zionist] Establishment can’t stand religious people. —Rabbi Betsalel Cohen of the Mizrahi Movement I am afraid we will soon have a civil war. When the conflict with the Palestinians and surrounding neighbors is no longer so heated, we will have a civil war between the religious and secular within Israel. I am not optimistic. —Interview with anonymous former clerk of Justice Aharon Barak

In 1988, the Israel High Court of Justice entered into a virulent and protracted conflict with Jewish religious authorities in Israel; indeed, the conflict continues to this day. That the HCJ, founded on secular principles of Parts of chapter 3 are adapted from Boundaries and Belonging: States and Societies in the Struggle to Shape Identities and Local Practices, edited by Joel S. Migdal, © 2004 Cambridge University Press, all rights reserved. Reprinted with permission.

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general law, should come into conflict with religious authorities was not surprising. While relatively weak vis-à-vis other state institutions in the first ten years of the country’s existence, the institutional organization of the courts put the HCJ in the position of ultimate authority over religious courts in questions of jurisdiction and (certain) conflicts between religious and secular law.1 There had been tensions between secular and religious courts, and the HCJ and religious authorities, throughout the history of the country. However, the HCJ avoided direct conflict with religious authorities, with a few notable exceptions, before the beginning of the religious law conflict in 1988, as mentioned in chapter 1. Why were religious authorities included in a modern state that called itself a secular socialist state? By all three criteria—modern, secular, socialist— we might expect the establishment of a strong separation between religion and state. And yet in Israel religious authorities were incorporated into the state as state officials, and religious laws came to be the law of the land for matters of personal status. The matters that came under the rubric of “personal status” varied by one’s assigned religious community (for Jews, marriage, divorce, birth, and burial; for other communities, more areas were included, such as conversion). And, within the fourteen official religious communities with their separate legal jurisdictions relating to personal status issues, rights and responsibilities varied drastically by gender. Religious identity was assigned formally by the state, not by personal affiliation, and was defined in practice, if not in law, by religious officials. The contradictions inherent in combining such a religious legal framework within an ostensibly secular socialist state are innumerable. So why would secular socialists include religious authorities in the state? And, equally importantly, why would religious leaders choose to heed the call and join the state when many, particularly from ultra-Orthodox communities, vehemently disapprove of the establishment of a secular state in the absence of the Messiah. The first part of this chapter seeks to answer the first question: why would secular socialists invite religious institutions and authorities into the state? The solution to this irony lies in the critical strategic decision of the first prime minister of Israel to delay what he referred to as “the dreaded Kulturkampf” between religious and secular (Avi-Hai 1974, 97). This strange decision culminated in the equally ironic increasing of the political power of religious authorities at the same time that it made the state the critical site of religious decision making for religious communities, even those that disapproved of the state. With the new centrality of the state in both the national (post-Mandate) and the global (postimperial and postcolonial) contexts,


61

religious officials realized that to pursue one’s policy goals, and particularly to create and regulate institutions, one must use and/or enter the state. The incorporation of religious authorities and institutions into the state in 1948 made the state the central arena for matters pertaining to religion; it became impossible to make national and even some local religious policy outside of the state. In turn, this centrality of the state in religion reinforced the increasing salience of religious officials as political players in the Israeli state and society. The second part of this chapter finds the answer to the second question: why would religious officials choose to join the secular state? It draws on interviews with religious officials in Israel to argue that religious officials have made this surprising choice in order to pursue their vision to create in Israeli Jewish society God’s proper Jewish People. Religious officials have sought to institutionalize their vision for the society through control of the institutions of marriage and divorce. These personal status laws determine who can marry whom, who can have children with whom, and which of these children are Jewish. Thus, they determine the boundaries of “the” community, which, for religious officials, must include all Israeli Jews (on group boundaries, see Douglas 1978). For religious officials, because these laws of marriage and divorce determine Jewishness, they must be the same for all Israeli Jews. Religious officials seek to make the requirements for full membership in “the” Jewish community, as they understand it, the same as those for full membership in the nation (on membership and national identity in Israel, see Kook 1995). These laws, the social vision of the central state religious authorities, and, as we shall see, many of the debates surrounding the legitimacy of religious authority in the state are highly gendered. Why Incorporate Religious Authorities? The Ironic Salience of “Low Politics” David Ben-Gurion delayed the clash between the religious and the secular within the Jewish community of Israel—what many of my interviewees in the 1990s referred to as a potential civil war—by making a concession to religious communities in exchange for their support of the new state. Indeed, despite Ben-Gurion’s commitment to socialism, his singular interest in an extremely strong, centralized state took precedence over all other ideological considerations for him, including both class and labor. He sought a centralized state that would incorporate all social groups and sectors into the benevolent fold of the state. Included in his desire for a strong state was a drive to homogenize all (ethnically differentiated)

62


“Jews” into what he, at the time, called “Hebrews” (or would now be called “Israelis”). These unified Hebrews or Israelis would, he thought, become predominantly secular with similar manners of expressing Jewish identity and practices that would be denuded of their religious quality. By incorporating religious authorities into the state, Ben-Gurion hoped, although he seems not actually to have believed, that religious communities would be thus homogenized as well. He made a critical calculation—what turned out, in fact, to be a miscalculation—that incorporating religious authorities into the state would bring religion under the control of the state (Segev 1986, 261). It would also, meanwhile, ensure that religious communities would not emerge as an opposition to the newly established state, damaging its international and domestic legitimacy. In exchange for their support of the state, Ben-Gurion gave religious communities authority over personal status law, religious education, kosher (dietary) observance for the entire state, as well as regulation of Sabbath observance (for example, by state offices and businesses). The latter three areas have been matters of controversy and have undergone changes every decade since the establishment of the state, with continually decreasing religious authority over the country’s population in their observance. It is control over personal status law that, I argue, placed religious authorities in a particularly important position of increasing political salience in the everyday lives of Israeli citizens. For Ben-Gurion, granting authority over the “low politics” of family and personal status issues seemed an easy accommodation (Halliday 1994). It delayed the Kulturkampf between religious and secular Jews, it extended the reach of the state, and it served to increase the legitimacy of the state as a Jewish state (albeit, he hoped, stripped of any particularly religious quality). In an ironic turn, however, authority over family and personal status transformed religious officials into some of the state officials with whom the average citizen was most apt to come into contact on a regular basis. Control over personal status issues put religious authorities at the center of the life-cycle rituals of the average citizen, such as marriage and divorce. Indeed, together with issues such as military conscription, taxation, and registering for public school and for a driver’s license, it is through the life-cycle rituals governed by personal status (marriage, divorce, birth, death, burial) that the average citizen comes most frequently into direct contact with the state. As religious officials became increasingly important political figures in the everyday lives of citizens—now not only Orthodox and ultra-Orthodox Jews, but also the moderately and extremely secular—they became more impor-


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tant, politically, within the state. They gained this power by virtue of their regular interaction with—and power over—citizens. Ben-Gurion considered it essential that the orthodox Yishuv be incorporated within the state.2 He emphasized the symbolic significance of Judaism for Zionism and the Israeli state, attempting to incorporate a relatively new, widespread, amorphous semisecular Jewish identity into the state. Of critical concern was avoiding a “war over religion” that would tear the fledgling state apart before it had a chance to establish itself (Avi-Hai 1974, 97; Horowitz and Lissak 1989, 141; Segev 1986, 221–222). In BenGurion’s words, such a war “might drastically impede the ‘merging of exiles,’ [a goal] which occupies a crucial place in the state” (Avi-Hai 1974, 94; emphasis added). In addition, he felt that the existing orthodox Yishuv must be part of the state for both domestic and international legitimacy, in order to maintain the Jewish character of the state and in order to avoid allowing the Orthodox to become an opposition force outside the state (Pearlman 1965, 218–219). His desire to keep all potential sources of power within the confines of the state is in keeping with Ben-Gurion’s étatist ideology. For Ben-Gurion, the paramount concerns were the unity of the people and the integrity of the state, all under a common or universalist religious-cultural banner (Rubinstein 1984). That is, he sought a unity in which all social and political institutions would be kept, as participants, under the close supervision of a centralized state. This was BenGurion’s vision of mamlakhtiut, or extreme etatism. As a result of these considerations, in 1947, Ben-Gurion signed a letter with two Jewish Agency officials that has become known as the “status quo agreement.” The letter was written to Rabbi Izhak Levine of the ultraOrthodox Agudat Israel, committing the future state of Israel to: (1) the establishment of the Sabbath (Saturday) as the legal day of rest for the Jews and for state institutions, (2) the observance of the Jewish dietary laws (kashrut) in all state institutions, (3) the continuation of rabbinical control over matters of personal status for Jews, and (4) the establishment of a religious school network, subject to minimal secular requirements set by the State. (Edelman 1994, 51)

The agreement granted authority over “religious” matters to orthodox officials and, in turn, gave full discretion to the secular government to decide matters of security and state. This division of labor and this particular defining of what constitutes matters of security and state would have a grave

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impact on ideological battles over the nature of the state in years to come. Not surprisingly, then, it would also affect contests between state institutions, particularly when secular and religious visions and principles came to loggerheads. In seeking to bring all social institutions under the fold of the state, Ben-Gurion sought to, as he said of the religion, put them in the palm of the state’s hand (Segev 1986, 261). To the contrary, his concession had the unintended consequence of increasing the political salience of religious authorities and institutions in the years to come. And, significantly, it led to the increasing participation within the state of religious authorities from groups that had been ambivalent or even against the establishment of the state. Symbolic Value Ben-Gurion presented the Jewish religion as a critical source of symbols to be translated into secular historical-national symbols for the state and nation. He was responsible for the development of a veritable cottage industry of biblical scholars in the early years of the state. He saw himself as a Moses figure (Keren 1983, 107), bringing the People of Israel back together in their Land. In a series of interviews with Moshe Pearlman in 1964, Ben-Gurion expressed a sort of secular spirituality connected with the Jewish People. He defined his spirituality as closely connected with the Jewish religion and the Jewish People: “The twin idea of the Messianic vision informs the whole of Jewish history and the Jewish faith. It is the core of the religious, moral and national consciousness of the Jewish people” (Pearlman 1965, 226). For Ben-Gurion, the Jewish religion and people were always connected to “national and territorial themes” (Pearlman 1965, 227). In his view, it was the contribution of Zionism to offer a new, territorial mode of Jewish expression as an alternative to traditional (by which he meant then contemporary Orthodox) Judaism. Indeed, Ben-Gurion specifically focused his attention on biblical Judaism rather than Diaspora Judaism. This focus betrays his attitude toward Orthodox Judaism of his time, which he saw as stultified and antithetical to the Zionist social and political program. The Labor movement version of Zionism “endeavored to translate the Jewish terms of uniqueness into a contemporary universal language” (Rubinstein 1984, 45). While there were many camps among the Zionists,3 it is safe to generalize a tension between Zionist and orthodox interests in the prestate and early-state period. Ben-Gurion and others emphasized a model of a “Hebrew” or “Canaanite” new Jew who would be everything that, in their view, the Diaspora Jew was not: aggressive,


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strong, self-ruling. This idea of the new Jew prompted some Zionist thinkers, such as Ahad Ha-Am, to decry “a growing enmity toward all Jews by both the Russian intelligentsia and the new revolutionaries” (Rubinstein 1984, 39). Indeed, in the early years of the state, stories abound of such violence against new religious immigrants as forced cutting of beards and side locks, unkept promises designed to get religious children into secular youth movements, tricks, or even enforced removal of children to put them into secular schools. In arguing against groups he called “religious zealots,” such as the Neturei Karta, Ben-Gurion held Zionism up as the new religious and cultural alternative, with a “revolutionary approach to Jewish salvation” (Pearlman 1965, 221). Salvation now lay in a state for the Jews rather than traditional forms of religiosity. Ben-Gurion’s approach to Orthodox Jews, even those who broke state law in the service of their religion, illustrates some of the tensions in his own thinking about the relationship between Judaism the religion and Judaism the state, the Orthodox community and the new secular community. Why then do we not deal with them as we should any other lawbreaker? For one thing, it is always more difficult when acts are prompted by a deep religious belief. They are not common law-breakers. For another, they represent a world most of us came from, a world we knew as infants, the world of our grandfathers—they have the same beliefs, the same outlook, the same dress, the same beards; they look like our grandfathers. How can you slap your grandfather into jail, even if he throws stones at you? Moreover, they claim that they are upholding the same tenets for which our forebears were prepared to give their lives. (Pearlman 1965, 221)

At the same time, Ben-Gurion personally favored a relationship between religion and state closer to the model of the United States: Unfortunately we could not keep religion completely out of politics, for religious parties existed, as a hangover from the pre-State Zionist Congresses. I am sorry about this, for I feel, and I used to tell this to my religious party colleagues, that they should do what they can to spread their religious beliefs through the accepted channels in most (though not all) democratic States—through the synagogue, parochial schools, religious youth movements, newspapers and magazines, lectures and so on. (Pearlman 1965, 220)

If Ben-Gurion preferred to keep religion and state separate, why did he choose to follow a policy intended to incorporate religious institutions and

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officials into the new state? We might follow a purely strategic approach to this question: Ben-Gurion sought incorporation of religious authorities in order to avoid an expected Kulturkampf between religious and secular communities and institutions; or he sought it to maintain national and international legitimacy. Both of these explanations provide part of the answer; Ben-Gurion was, above all, a brilliant strategist and politician. Indeed, his approach to the symbolic value of Judaism as a religion appears to hold a strong ideological as well as a strategic aspect. Arguing for the symbolic value of Judaism would provide a basis for solidarity toward the state within both secular and religious camps, based on the same symbolic values. However, another factor that has been raised less often in the context of the agreements with religious officials appears to have been the most significant: Ben-Gurion’s deep commitment to etatism. He wanted an exceedingly strong state, centralized and with its arms reaching into all segments of society, all aspects of public life, and many aspects of private life. His twin goals of unity and universalism under the broad banner of this state were not always warmly received. His desire reflects not only strategic considerations but a keen normative ideological position: the state should be strong; everything should fall within its broad embrace. Kulturkampf The fear of a war over religion appears to have been a serious concern for Ben-Gurion. While many in his party did not approve of incorporation of religious authorities into the state, he believed a war of religion would emerge in the absence of such integration. He sought, almost desperately, to postpone the “dreaded Kulturkampf” between religious and secular camps within the society and the state (Avi-Hai 1974, 97). In speaking at the time of the need for the incorporation of religious groups and parties into the state, Ben-Gurion remarked: “What we had tried to prevent so far was a culture war—Kulturkampf, in German—I’m now afraid that it will break out and that would be a disaster to the state” (Segev 1986, 222). BenGurion had extremists on both sides to contend with in this religious conflict, secular and religious. On the extreme antireligion side of the spectrum, Member of Knesset (MK) Eri Jabotinsky (son of Vladimir Jabotinsky) argued before the Knesset: “I believe that Judaism has a great and important part to play. . . . I think its task is to Judaize the world. I do not think that its task is to Judaize the institutions of the State of Israel, but to bring the ideals of Judaism and Jewish morality to the entire world” (Segev 1986, 244). Jabotinsky argued for a


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complete separation of religion and state, in which only the symbolic significance of Judaism would have a social or cultural impact on the society and perhaps the world, but not on the institutions of the state. Also on the extreme side of the small, antireligious minority was Uriel Halperin, also known as Yohanan Ratosh, the leader of the Canaanite movement (“Hebrew Youth”). While he did not have the ear of the Knesset as Jabotinsky did, his group “held the most explicitly antireligious position ever known in Israel” (Segev 1986, 244). He argued for a common Hebrew identity, separating Jewish community and identity from specifically religious origins (Rubinstein 1984, 31). The “Hebrew nation” included all the people of the Fertile Crescent. Ironically, the emphasis on the Hebrew nation led his group to fight against Zionism (and the ideas upon which the state was founded) more than it did against Judaism. Through its anti-Zionist position, Ratosh and his group found themselves in the uncomfortable position of common cause with the Neturei Karta and other religious groups that either fought against or were uneasy with the establishment of a Jewish state (albeit, in the case of religious groups, due to the absence of the Messiah). In the first Knesset, only 16 out of 120 members belonged to religious parties. However, a mitigating factor in their favor was that the majority of secular members had received a religious education in their childhood. Indeed, most of the nonreligious were reportedly neither fanatics nor were they motivated to bar religious authorities from the Jewish state. Dan Horowitz and Moshe Lissak (1989, 139) discuss two historical responses to the question of modern Jewish identity raised by such modern phenomena as European nationalism: (1) combining adherence to Judaism as a religion with national identification to a nation-state; and (2) the formulation of a Jewish identity, perhaps even nationalist, that was separate from the religion. Most pioneers, including Ben-Gurion, chose the latter. Many Jews, in the aftermath of the bargain of French citizenship and other forms of European nationalism, sought a new kind of religious identity that would be more private in nature, more compatible with secular nationalism.4 This new identity was, in many cases, closer to Ben-Gurion’s emphasis on the symbolic and national significance of Judaism for the new state.5 While most Israelis did not seek a theocracy, there also was not a clear consensus on how to incorporate this relatively new, somewhat ambiguous Jewishness into the state. Within the religious camp, broadly defined, there lay significant hostility among some segments to the enterprise of a secular state, but there were also many heated conflicts between religious groups. Agudat Israel, Neturei Karta, and the Mizrahi movement were the central groups claiming

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to represent Orthodox and ultra-Orthodox interests. Agudat Israel was founded in 1912 in Katowitz, Poland, as a response to what it viewed as the onslaught of secularism. It was organized as an international Orthodox federation that included some anti-Zionists and some pro-Zionists. Many Orthodox and ultra-Orthodox communities around Europe, such as Agudat Israel, recognized the principle that customs among Jews varied region by region and country by country. For example, dietary rules for Passover had long been known to be different for Ashkenazi (European) and Sefardi (Spanish-descended) Jews. That is not to say that there were not conflicts. While differences between regional neighbors had sometimes caused conflict in Europe, the general principle of tolerance was fairly easy to maintain across such wide spaces. When these different traditions within Judaism came together in one country, Palestine and then Israel, that same pluralism caused deep tensions. Thus, when anti-Zionist Agudat Israel began to cooperate with the Zionist leadership in the 1930s, Neturei Karta, which had previously been part of the Agudat Israel party, split to form its own antiZionist, antistate movement. There was a good deal of party politicking in this conflict, whose origins lay in far older disputes: between Rabbi A. I. Kook and Rabbi Y. H. Sonenfield, both of Jerusalem; between the chief rabbinate and the ultra-Orthodox congregation; between Jerusalem, on the one hand, and Warsaw and Frankfurt, on the other; between the Hassidic movement and its opponents, the Mitnagdim; between the joyful Hassidic rabbis surrounded by their “court,” and the austere heads of Talmudic yeshivot (colleges); and numerous other intense conflicts whose source lay in the non-Zionist Orthodox movement, in both Israel and Europe, for generations (Segev 1986, 240). Likewise, the Mizrahi movement and then political party was made up of religious Jews, especially from Europe. It was a religious, pro-Zionism movement and was deeply involved in the education system during the prestate and early-state periods, attempting to gain control over the education of religious immigrants, many of whom were from Middle Eastern countries. There were extensive conflicts over education, among these religious groups as well as between the religious and secular camps.6 Thus, in the 1930s, when Polish Itzhak Levin (leader-to-be of the Agudat Israel party), visited Palestine with special attention to Jewish schools, he saw the Mizrahi Movement, an Orthodox religious movement, as complicit in secular Zionism: They even presume to call themselves a religious party, while collaborating with antireligious elements. Instead of declaring open war on the antireligious who are destroying Judaism, they act in loving concert with them.


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They direct their arrows at the ultra-orthodox, who are fighting for their lives, with the argument that one must compromise with reality and that the first task is to build up the country. (cited in Segev 1986, 242)

These religious movements and parties also clashed over guarding of the Sabbath, particularly the tactics to be used to close cinemas, theaters, and other entertainment, as well as roads. In these battles, these groups engaged in a certain one-upsmanship that, some have argued, led to increasingly extreme positions. Agudat Israel attacked the Mizrahi with the same fervor as the Neturei Karta attacked them. And just as it was drawn to more extreme positions by Neturei Karta, so Poalei Agudat Israel were drawn to more extreme positions by Agudat Israel, and were followed by the Mizrahi who, in turn, drew Hapoel Hamizrahi after them. Every religious politician had a more extreme religious politician peering over his shoulder, seeking to dictate his positions. This situation affected the relations between the religious and the secular communities—the former adopted the positions of the more extreme flanks, whereas the latter were content to follow the moderate, or even indifferent, elements among them. (Segev 1986, 242)

Any final decision on these religious issues, not to mention the place of religion in a state viewed by extreme secularists as necessarily devoid of religion, would indeed have required a culture war. This war between religious and secular, and necessarily also between competing groups within the religious camp, was the conflict Ben-Gurion hoped to avoid by pulling all these social forces into the arms of a unified and universalist state, unified by a common religio-cultural heritage under a secular Jewish state. International and National Legitimacy Before the establishment of the state, British Mandate officials tended to view orthodox officials as the legitimate representatives of the Jewish community in Palestine. Indeed, the British formally took over the rabbinical courts that had been established under the Ottoman Empire and established them as the legitimate interlocutors of personal status issues under the Mandate. It is the British who established the Chief Rabbinate (or Rabbinut). In the prestate struggle, “the British policies to channel authority and resources to Orthodox-dominated institutions coupled with the labor Zionists’ efforts to portray the institutions they headed as

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broadly representative induced Ben-Gurion and his associates to accommodate the compromise with Orthodox leaders” (Migdal 1988, 19). This institutional legacy, Ben-Gurion’s claims of inclusiveness and the centrality of the British in establishing the legitimacy of a Jewish state in the United Nations, provided Ben-Gurion with an important impetus to work with Orthodox and ultra-Orthodox leaders. Domestically, the support of religious communities for the state was also important. Its importance was tied to Ben-Gurion’s desire for unity— unity under the umbrella of a strong state, but also unity in the face of the British, the United Nations, and the surrounding Arab states, which were not supportive of the Zionist enterprise. Ben-Gurion has usually been presented as guided, at least in large part, by such strategic considerations in entering into this relationship with religious officials. According to Menachem Porush, former MK for Agudat Israel, “Ben-Gurion gave us more than anyone else, because he understood that if the state did not make concessions to us we would have to leave the country, and this he did not want” (Segev 1986, 261). Indeed, it was very important to Ben-Gurion that the community be united and that groups such as Agudat Israel not leave the new state. Were they to depart, it could be expected they would do so with much fanfare that would damage the legitimacy of the state both domestically and internationally. Ben-Gurion did not consider separation of religion and state a viable option because of fear of the consequences, namely, lack of legitimacy for the state, withdrawal of religious communities, and/or Kulturkampf. However, Ben-Gurion was not unrealistic about the possibility for an ultimate compromise between religious and secular principles or communities, either then or in years to come. According to one scholar, Ben-Gurion was nearly unique in understanding religious parties to be inherently seeking some form of theocratic state: “This was a highly realistic assessment, suggesting the awareness that there would be no compromise between the religious and the secular. Not everybody understood this” (Segev 1986, 261). Ben-Gurion’s decision to avoid the conflict at all costs was certainly the correct one with the establishment of the state as his central concern. What is significant for my analysis is that the state, rather than any other ideological concern like secularism or class, was indeed his primary objective. Mamlakhtiut, the Drive for a Strong State It was the state that concerned Ben-Gurion, more than the place of the religion, more than its content, more than its symbols. His strategic con-


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cerns with national and international legitimacy, political necessity of religious participation, avoiding a Kulturkampf, and symbolic value of Judaism as a unifying force for the state, all served the ultimate purpose of strengthening the state. He called his extreme etatism maklakhtiut. He coined the term from the Hebrew word for “kingdom,” suggestive of a broad and powerful, all-inclusive authority, all the more so due to the messianic reference explicit in his use of the term (Cohen 1992; Keren 1983; Rubinstein 1984; Segev 1986). Ben-Gurion’s ideological foci changed over the years from Marxist notions of class and labor to the supplanting of this ostensibly primary ideology for a labor Zionist by the strong state. This transformation occurred through placing nation above class in a new emphasis on nationalism: the unified Jewish nation should supersede class concerns. If that was so, according to Mitchell Cohen (1992), it was a natural move to an etatist ideology, for only a strong state could address the concerns of the whole nation. Neither his personal doubts, nor his life-long penchant for centralism, were the sole sources of mamlakhtiut. It was an obvious product of the process we saw emerging in embryo in the 1930s, when Ben-Gurion and Mapai opted for hegemonic segmented pluralism rather than a synthesis of national and class concepts. Presuming that nation and state stood above class naturally engendered a statist politics, although . . . that statist politics in turn diminished the pillars, especially Labour’s, that it also originally assumed. While class rhetoric was not abandoned, its operational principles were replaced by statist ones. (Cohen 1992, 203)

Indeed, Ben-Gurion justified his focus on am mamlakhti (an etatist nation) over am oved (a nation of laborers) because of this hegemonic segmented pluralism, by which the state overrides all other concerns, including differences between classes (Cohen 1992, 217). As with religion, Ben-Gurion sought to delay battles over class issues until the state was well established. It was socialism that he discarded while retaining etatism and centralism, both of which, it should be noted, were features of Russian political culture and that of Western Social Democracy. More specifically, what replaced socialism was mamlakhtiut mixed with foggy national messianism which he claimed espoused universalistic values. (Cohen 1992, 206)

Ben-Gurion’s mamlakhtiut was the central driving ideology behind all his other policies, including those relating to religion and state. His desire to

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incorporate religious authorities into the state was not only strategic, not only about party politics, or maintaining a coalition. In fact, he preferred a broad coalition even when he did not need it to establish a coalition and even when he had the votes to establish a liberal coalition (Cohen 1992, 210). His partiality for incorporation was motivated by the desire for unity under his universalist values: Ben-Gurion wanted all social institutions under state control. “I want the state to hold the religion in the palm of its hand,” he said (Segev 1986, 261; emphasis added). Not everyone applauded this attempt at a broad universalism that could be used to bring potentially opposition social forces under the umbrella of the state. Ben-Gurion made this candid statement to Yeshayahu Leibowitz, a religious scholar who was part of the Mizrahi Movement. Leibowitz reportedly saw Ben-Gurion as desiring to control religion by bringing it under the banner of the state, which Leibowitz argued was “a prostitution of religion for the sake of power, political, factional and personal interests” (Segev 1986, 261). Ben-Gurion sought to delay internal ideological conflicts. Of religion, he said, “there is no need at this time to resolve problems of opinion and belief, over which we shall remain divided for a long time” (Segev 1986, 261–262). This approach is in keeping with the Jewish tradition of flexibility in matters of belief as well as his etatist ideology. Avoiding the conflict was critical, he felt, for the greater goal of a strong state, just as he argued that class justice should be held “in abeyance” until after the development of a strong state (Cohen 1992, 204). Indeed, any other ideological question was supplanted by his main ideology, mamlakhtiut. In avoiding the formulation of a written constitution, which would have set the ultimate relationship between religion and state, the Kulturkampf was avoided—but only temporarily. By incorporating religious authorities and institutions into the state, he did not succeed in placing religion in the palm of the state’s hand. Rather, his decision led to the unintended consequence that religious authorities and institutions would become increasingly salient in the everyday lives of Israelis and in all manner of political debates in years to come. Ben-Gurion presented his approach to religion and state as a matter of religious-cultural considerations and the institutional constraints of coalition politics. He expressed a desire to maintain unity with religious communities that overrode his personal, highly abstract form of spirituality (Pearlman 1965, 217–218) in which religion and the state should remain separate. Indeed, when he agreed that the Declaration of Independence could include a reference to “faith in the Rock of Israel,” which clearly referred to God, he


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justified it as a practical matter of avoiding internal conflict at the birth of the state. Coalition politics was an equally practical matter. I have spoken of the religious parties in the coalition. They are Zionist, completely identified with the national interests of the State, thoroughly responsible. But on religious issues, they are in agreement with some of the demands of Neturei Karta. They too would like to see traffic halted on the Sabbath, though they are opposed to its being forced on the public by violence. However, they would find it hard to remain as partners in a government that took strong action against a group that fought, even illegally, for Sabbath observance. (cited in Pearlman 1965, 122)

When it came to religious personal status law (particularly marriage and divorce), however, another factor was equally important for Ben-Gurion: “I did not consider questions of personal status to be a first priority” (Pearlman 1965, 218). Thus, it seemed a good strategy to concede authority over personal status and other issues to religious authorities in return for the incorporation Ben-Gurion desired in the mamlakhti state.

Unintended Consequences of Etatism Ben-Gurion’s etatist approach to building the state meant the primacy of concerns with defense and foreign affairs over such issues of “low politics” as family, gender, education, and the minor inconveniences of Sabbath and kosher observance (Halliday 1991). Each decade after the establishment of the state saw slow concessions on the part of religious parties over enforced Sabbath and kosher observance.7 However, when it came to issues of personal status (marriage, divorce, burial), the religious establishment fought tirelessly to avoid infringements into their jurisdiction.8 It is through jurisdiction over personal status issues that the religious establishment transformed itself into a major player in the lives of citizens and within the state. Its increased power in the state was helpful to its expansionist goals in education as well.9 In the next section, my interviews with religious state officials will show that continued religious jurisdiction over personal status has been seen as the most important reason, in some ways the very raison d’être, of religious authorities in the state. Why was Ben-Gurion willing to concede authority over matters of personal status to the religious establishment? His own words point to a lack of understanding that matters of personal status (and the gendered

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issues that are inexorably tied to personal status) might, in fact, be issues of high politics. Not too long after leaving office, Ben-Gurion tended to explain the compromise as a question of priorities. Personal status or kosher food was secondary to more urgent matters. He felt that, in the national interest, it was wise to retain the support of the religious parties for measures of vital concern to the state and to pay the comparatively small price of religious status quo. (Avi-Hai 974, 96)

We know that the national interest, for Ben-Gurion, meant a strong state. The central issues governed in personal status law are family and gender: who can marry whom, who divorces whom, who will have what private roles, who will have what social roles, whose children are Jewish, whose children are not. Religious authorities also sought control over matters of internal gender relations not regulated by personal status law, particularly in religious situations or institutions. For example, men and women have been barred, until recently, from praying together at the Western Wall of the Temple Mount.10 These issues fell far outside the purview of defense and foreign affairs, the matters of a universalizing state that consumed Ben-Gurion. In short, family and gender were not even on his radar screen. It seemed an easy concession to give authority over personal status or family law to religious authorities in exchange for their endorsement of and participation in the new state. These matters, which Mary Douglas (1978) calls issues of group boundaries, define who is in the community and who is out. They also define the rules by which individuals within the community may interact (coinciding with Douglas’s “grid”). Matters of group boundaries have often been discussed in Israel in terms of citizenship versus membership, particularly in relation to the interethnic issues involved in Jewish and Arab membership in the nation and state (Kemp 2004; Kook 1995; Peled and Shafir 1996; Peled 1992). This study emphasizes the significance of group boundaries in the internal religioussecular conflict within the Jewish community in Israel.

Why Join the Secular State? The boundaries of identity, so to speak, are constructed much as are territorial boundaries. —Rebecca Kook


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A large proportion of the religious establishment in Israel is currently made up ultra-Orthodox, or Haredi, Jews. Haredim (plural of Haredi) traditionally have not approved of the secular state, neither its democratic principles nor its appeal to secular legal principles. And yet, in recent years, many Haredi rabbis have entered the state. Why? What drives religious groups that disapprove of modern state structures to enter into the state? In this section, I argue that Haredi and Haredi-leumi officials have entered the state in order to promote and institutionalize their visions for the society. In a world of nation-states, the state is the only game in town. It is the central institution through which policies can be implemented,11 laws can be written and changed, and social visions can be enacted. Thus, religious officials feel compelled to join the state and use its authority to support their agendas. The social vision of religious authorities involves a specific notion of the Jewish People, and requires the regulation of institutions that create, reproduce, and maintain the boundaries of the community, including marriage and divorce, and gendered regulation of religious participation.12 The religious law conflict that emerged in the late 1980s became so heated in the 1990s that the president of the HC J received death threats and the HC J itself has been compared to biblical enemies of the Jews (Eilan 1997). At the institutional level, the conflict is based on different notions of legal authority. The HC J is founded on the principle of secular, general law, equally applied to all citizens. Religious laws and religious authorities appeal to divine authority, distinguishing rights and responsibilities by religious community and by gender. A significant portion of the religious establishment in Israel is made up of Haredi (ultra-Orthodox) Jews, a group that traditionally did not support the establishment of a secular state, and which does not favor democratic forms of government. Rather, most Haredim (plural of Haredi) support a Torah state, or a theocracy.13 The institutional conflict between the secular HC J and religious authorities emerges from a deep rift between certain religious and secular segments of the Israeli population. As of 1996, 50 percent of Israeli Jews cited their primary identity as “Jewish”, 40 percent cited “Jewish” as their secondary identity; 47 percent listed “Israeli” as their first choice, 44 percent listed “Israeli” as their second choice. According to Asher Arian, approximately 40 percent of the Israeli public is “determinedly secular,” 25 percent are either Orthodox or ultra-Orthodox, and the remaining 35 percent fall between those poles (1998, 10). A survey conducted in 1993 found that 79 percent of the Israeli Jewish population was religiously observant to some extent, 14 percent were “strictly observant” (most likely corresponding to

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Orthodox and ultra-Orthodox); 24 percent were “observant to a great extent;” and 41 percent were “somewhat observant.” The last two categories most likely correspond to people who would label themselves “traditional.” It also found that 67 percent of the population either approved of the current place of religion in public life (51 percent), or wanted more religion in public life (16 percent). Meanwhile, 42 percent of the population answered that there should be a separation between religion and state (“definitely yes” 25 percent, “yes” 17 percent); 39 percent said there should not be a separation (“definitely no” 16 percent, “no” 23 percent).14 What these surveys suggest is that a high percentage of the Israeli Jewish population identifies strongly with Judaism, even if one’s level of practice is moderate or low, and even if one could be called secular in terms of use of modern technology and social and political institutions. My interviewees who were pro-HCJ, as well as those who were pro-religious establishment, suggested that the conflict over religion in the state is being fought out on the margins; only the extreme secularists or the extreme religious were fighting about the issue. (Each suggested that the other side represented a marginal group.) What appears from these surveys, however, is more disturbing for Israeli stability. While those who are mobilized on the issue are certainly small in number, the population at large is itself split on the proper role of religion in the state. More recent surveys support the notion that the Israeli population is split on the relative significance of religion for them. Arian found that in the 1996 elections, among Benjamin Netaniyahu (rightist Likud Party) voters, 68 percent identified first as Jewish, whereas among Shimon Peres (leftist Labor Party) voters, 66 percent identified first as Israelis (1998, 9). In a real sense, the religious law conflict is the dreaded Kulturkampf that Ben-Gurion sought to avoid with the status quo agreements (Avi-Hai 1974, 97). It is a conflict that is fundamentally about defining the nature of the Jewish community, the nature of the Jewish state, and the boundaries of the Jewish community, and who will decide the social and institutional parameters of those boundaries. It is a clash that emerges from conflicting social visions. Those social visions, in turn, lead to conflicting visions of the sorts of institutions necessary to create, reproduce, and maintain that particular society, and the type of state that will create and protect those institutions. For religious authorities in Israel, the conflict over these boundaries has been fought most vociferously over those institutions that best protect the boundaries of the community: marriage and divorce law, conversion, and regulation of gender roles within religious practice and religious insti-


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tutions. Marriage, divorce, and conversion literally define who is in and who is out. A kosher marriage and a kosher divorce determine whether the offspring of any union are “real” Jews. Conversion regulations determine the rules for formal entrance into the community on the part of outsiders. The regulation of gender roles within the community also sets the community apart; the rhetoric of religious officials and community members clearly defines Jewish women who cross these boundaries as outside the People of Israel. The People of Israel is a biblical term used now to refer to the whole of the Jewish community over time and space. Rhetorically, marking someone as outside the People of Israel has physical, spiritual, and cosmic implications. Gender roles, as with marriage and divorce law, are used as a marker to distinguish “real” Jews from “non-real” Jews. Marriage and divorce law are the major institutions defended by the religious establishment to determine who, internally within the community, of those ostensibly born Jewish, are real Jews and who are not. These laws, as with gender regulations within the community, carry significant gendered aspects. Thus, two of the three most significant boundary-marking institutions being defended by the religious establishment in the religious law conflict are gendered categories. A convergence between the ultra-Orthodox (Haredi) and one segment of the religious Zionist community (the religious-nationalist or Haredileumi), together with an increase in Haredi participation in the state, means that we must look at the religious law conflict in a new light. First, the Haredim are significant, if not the most significant, players in the religious law conflict on the side of the religious establishment. Previously, it had been assumed that religious Zionists of various ideological persuasions had played that role, because the state religious bureaucracy was dominated by religious Zionists at least into the 1980s. Second, because the Haredi communities typically disapproved of the establishment of the state of Israel—as a usurpation of God’s role to usher in a messianic Jewish state— the question why they would choose to enter a secular, democratic state based on principles of general law is examined. Who Are “The Religious” in Israel? Whether analyzing attitudes of “the orthodox” toward the peace process or the role of the Orthodox in the religious law conflict, the Jewish religious communities in Israel have often been treated as made up of only one or two groups. References to the Orthodox in these contexts generally include

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religious Zionists and Haredim within the account, but typically do not specify either. Significant changes in the Jewish religious community of Israel over the past three decades indicate a need for a new understanding of the relationship between religious groups. Part of the problem is a dearth of evidence about differences between these communities, as well as which community is involved in which political conflicts. Part of the problem is a certain lack of specificity used even within the religious communities of Israel. Of my interviewees who could fall anywhere from the most strict, Haredi, to relatively open to changes in gender roles and participation in modern institutions, modern Orthodox, all referred to themselves as Orthodox.15 Historically, the religious communities of prestate Israel were broken into three groups: the Mizrahi movement;16 the ultra-Orthodox (Haredi) community, represented by groups such as Agudat Israel; and the Ottoman Orthodox Jewish community.17 By the end of the 1950s, the number of Jews of Middle Eastern origin (mizrahi Jews, not related to the mostly Ashkenazi prestate Mizrahi Movement) was greater than those of European (Ashkenazi) origin. The Shas Party, established to protect the interests of the mizrahi community, by the 1980s became a very powerful player in Israeli politics. In addition to its ethnic affiliations, it is a party whose leaders are Haredim. Thus, by the 1980s, the term “Mizrahi Haredim” began to be used by scholars and by the Israeli population. Traditionally, the Haredim were understood to be Ashkenazi in origin, antistate, anti-Zionist, in favor of strict interpretations of Jewish halakhah, and against incorporation of Jews into modern technology or modern institutions (social or political). Haredi communities largely did not approve of the establishment of a Zionist state that presented itself as the refuge of the Jewish people, for the reestablishment of a Jewish state was the province of God alone. Haredi communities have continued to maintain their own rabbinical courts. They have maintained their own educational systems, albeit partially funded by the state. They have lived in semicloistered communities; women in particular have been encouraged not to engage in business or social relations outside of Haredi neighborhoods (El-Or 1994). The extreme cultural and institutional isolation has been noted by many. In fact, it has been understood as one of the defining characteristics of the Haredi community in Israel. However, there is a trend toward more participation in modern commerce and certain forms of technology. Haredi women, men, and families regularly visit the most secular of modern commerce forms: large malls that now mark the outskirts of many Israeli cities.18 A new Haredi Center for High-Tech Training was established in the late 1990s, and, as of September 2000, had placed twelve


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hundred former yeshiva students in high-tech firms in Israel (Hermoni 2000). Haredi women, too, have entered the workforce (in Haredi neighborhoods) and have begun to use computer technology, sometimes as a way to telecommute, allowing them to work from home.19 Much has been written about the radicalization of some religious groups in Israel after the 1967 war. Gad Barzilai (1996), Ehud Sprinzak (1991), Aviezer Ravitzky (1986), and others have noted the rise of religious radical groups such as Meir Kahane and his followers, who mobilized on the issue of land settlement in the newly Occupied Territories of the West Bank and Gaza. Significantly, a large part of the religious communities who were radicalized included religious Zionists, who had previously been fairly moderate on security and other political issues. After the 1967 and 1973 wars, politically moderate religious Zionists became a minority.20 The remainder set on a course that led them closer and closer to Haredi positions on modernity, gender roles, and religious institutions. Indeed, some scholars have noted a “convergence” between this group of religious Zionists and Haredim (see, for example, Liebman and Cohen 1997b, 57). By the early 1980s, the term “Haredi-leumi” (literally, Haredi nationalist), and its acronym in Hebrew, Hardal, was coined by a religious-Zionist youth group leader who disapproved of this development (58). Hardal has the double meaning in Hebrew of “mustard”; the term was intended to be disparaging, but has reportedly been embraced by religious Zionists of this religiouspolitical position. While a segment of the religious Zionists who had always been willing to participate in the state moved closer to Haredi religious and political positions, another change began to occur in Haredi communities (particularly in Ashkenazi Haredi communities, which had been more isolated from the larger Jewish community than had been the Mizrahi Haredim). As early as the early 1970s, Haredi rabbis began to join the Rabbinate and rabbinical courts in notable numbers (Friedman 1972). This trend continued; some have noted that by the end of the 1990s the majority of the Rabbinate and rabbinical court judges were Haredim.21 Haredi rabbis regularly run for the two Chief Rabbi positions in the country. In fact, the two current Chief Rabbis in Israel are Haredim and “consider themselves subordinate to the Haredi rabbis.”22 The trend of Haredi participation in state religious institutions is noteworthy for many reasons, including its implications for the state. Haredi communities have continued to use their own rabbinical courts rather than the state’s rabbinical courts.23 They have continued to use their own rabbinical authorities to determine kashrut observance and food standards, to manage local conflicts, to run religious facilities, and to administer

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religious schools. And yet, Haredi rabbis took it upon themselves to enter into the paid service of a state whose very establishment was, theologically, disapproved as an act of humans pretending to stand in God’s stead. The desire to define, maintain, and control the institutions that reproduce social boundaries between Jew and non-Jew, between “real” Jew and “non-real” Jew has driven Haredi as well as Haredi-leumi participation in the state. Centralized Authority in Marriage and Divorce In interviews in the late 1990s, religious officials in Israel presented strikingly similar accounts of what is at stake in keeping religious institutions within the state in Israel. The first reason given by most of my interviewees for why religion must be part of the state was the need for centralized authority in religious marriage and divorce law. As the language used in interviews indicates, the central concern with marriage and divorce law is to ensure that the boundaries of the community remain intact. This concern with group boundaries is expressed through the idea of one unified nation, and through the desire to identify “real” Jews from “non-real” Jews. The concern with a unified community is not unique to the religious establishment. Early Zionist leaders of the state, such as Ben-Gurion, also expressed concern with unity (Avi-Hai 1974). In fact, Ben-Gurion’s primary concern was to unify the Jewish community under the auspices of a strong state that would ultimately be a secular and secularizing state. Zionists leaders at the establishment of the state and religious officials in the 1990s envisioned dramatically different communities. The institutional forms that would be required to produce that particular unified community also varied dramatically. Indeed, it is the social vision—and resultant institutional demands—of the religious communities whom religious officials represent that is at the heart of the religious law conflict. As Eliyahu BenDahan, Director General of the Rabbinical Courts in Israel, said to me: The State of Israel is a country to which Jews from all around the world have gathered. Every individual has absorbed the culture of the place [of origin]. When the State of Israel was established, the intention was to establish a new state that would unify everyone [the Jewish people], and would turn them into a single body, into one people.24

In this formulation, as in Ben-Gurion’s, the unification of the Jewish people goes beyond the goal of providing a place for all Jews to become “normal” in the international sphere through the creation of a nation-state,


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as envisioned by the “father of Zionism,” Theodore Herzl (1989). As with Ben-Gurion, and indeed almost all European ethnonationalist formulations of his time,25 this religious unification, too, requires a high level of homogenization. Homogenization has been a critical part of nation-state building projects from the earliest conceptions of nationalism. Both Benedict Anderson (1991) and Ernest Gellner (1983) cite literacy and education as a central route to homogenization into a singular nation. Language and literacy were important to the Israeli nation-state building project, as organized and managed by early Zionist leaders. But for the religious establishment in Israel, the community is built, unified, and its continuity assured primarily through the institution of family. As Eli Suissa, former Minister of Religion and Minister of Interior, put it, “the Jewish People lives through its family.”26 In terms of (religious) institutions, this emphasis on family means: through marriage and divorce laws. Identity as a Jew, according to Jewish religious law, is determined through the mother; restrictions on her marriage and kosher conception are extensive. These are restrictions that Douglas (1970) would call restrictions in service of the boundaries of the group (rather than those of grid, which set the hierarchy of relations between individuals within the community). If a woman has a child with one man while she is, technically or in practice, married to another man, there are severe sanctions against that child. The child is considered a mamzer, literally a bastard, who cannot marry within the Jewish community (except other mamzerim, plural of mamzer) or participate in certain rituals. The sanction continues for ten generations. Almost every religious official I spoke with emphasized that, without religious marriage and divorce laws, Israel would be split into different “nations” (Amim), one the product of kosher marriages and one with children who could not marry Jews legitimate in the eyes of halakhah. Marriage and divorce determine who is a Jew, who is inside and who is outside the social community. Marriage and divorce laws determine who can marry whom, who can have children with whom, and whose children will be considered part of the community. Women who are unable to gain a divorce (these women are called agunot, or “chained”) may not establish relations with a man, or establish a family. Notably, in law and in practice, men who remain undivorced may start a new family in Israel without restrictions on their children.27 Several women I have interviewed were threatened with a negative decision in their divorce case if they established another relationship while waiting for a get. A negative decision meant that they would never have a chance at a get, in turn prolonging their tied condition indefinitely. In some

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cases in Israel, a get involves years of waiting, sometimes beyond child-rearing age. Given the social and even state promotion of childbearing as women’s national duty, waiting beyond childbearing age can create severe emotional turmoil for women (Yuval-Davis 1989; see also Yishai 1997). The structural situation of women in Jewish divorce law in Israel challenges principles of equality across gender lines, making it a prime arena for conflict between secular courts and religious officials.28 Rabbi Ben-Dahan: If we were to behave in Israel such that personal status law was not defined by halakhah, we would create two peoples (Amim). For, it is clear that the orthodox could not marry secular Jews that did not marry according to halakhah, and certainly not with their children. Because we would not know who they are. Maybe the marriage was okay; maybe there is a problem [according to halakhah]. Therefore, within a few years we would have two peoples here. We want to create here one people. (emphasis added)

Plia Albek, former Assistant State Attorney, suggested the same reason that religious personal law is critical to the Jewish state: If we did not have religious marriage laws, the Israeli society would be split into at least two groups, Jews, and people who are not really Jews halakhically. . . . I would never be able to allow my daughter to marry an Israeli. Who knows who his mother was? We can do research, but how far back could you go? Maybe the problem is with the great-grandmother and there is no longer a record. If we did not have religious personal law here, we would never be able to be certain that one Jew could marry another. I would have to send my daughter to Switzerland to marry within the Orthodox community there. . . . What is the point of having a Jewish state if I have to send my daughter to Switzerland to find an orthodox Jew?29

Menachem Porush, the leader of Agudat Israel for thirty years, also cited Jewish marriage and divorce laws as critical to the Jewishness of the state. Across the board, there seems to be a concern with the unity of the people, and with unifying the people through religious law. Such unification certainly implies a homogenizing of diverse religious and legal strains within Judaism. However, it would be inaccurate to view this homogenization project as motivated by power or other instrumental interests. These are people who are concerned with the continued existence of the Jewish People. There is a specific definition of “the Jewish People” that they fundamentally believe to derive from divine authority. In


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other words, the vision of the society is the driving force behind their agendas and their entry into the state to promote those agendas. Instrumental goals—such as entering the state, seeking state funding, etc.—exist in the service of those ideological visions. And, indeed, the religious establishment has largely succeeded in using the state to homogenize the Jewish People, at least legally. Orthodox—or more accurately, religious Zionist and Haredi—Judaism is the official Judaism of the state. Entering the state serves several instrumental purposes, all of which serve the larger ideological goal of creating, reproducing, and maintaining the social boundaries of the community. One such purpose is to put the law of the land behind religious officials, to give legal bite to their decisions in an age of secular nation-states in which religious proclamations have little remaining authority. Rabbi R. Klein asserted the significance of the connection between Judaism and the state in helping women in divorce cases.30 Klein is a rabbi in the Rabbinical Court in Beer Sheva who, once or twice a year, flies around the world to hunt down men who have refused to give their wives a divorce paper (a get). By all accounts, his searches take him to the far corners of the earth. His concern with the plight of women in divorce law in Israel is evident in his chosen work. If these [religious marriage and divorce laws] were not legal under the state law, it would be a catastrophe. I will tell you why. In the whole world, in Europe, in America, in Australia, the laws of Israel, the laws of Jewish marriage and divorce, are not part of the [civil] law . . . . Israel is the only place that says, “You, Rabbi Klein, can make a get, but you cannot take money from people for it, because you live by our salary.” I get a salary from the state. Rabbi Ben-Dahan also. All of us. Because what we do is legal. It says, in my opinion—and I am speaking from experience—a woman in the United States wants to divorce. Why? Because her husband beats her, does not give her money, goes with other women. What can she do? She can go to the state and register to receive a civil divorce paper. . . . But that is not enough for a woman [to be free] to marry someone else. She needs a kosher get. According to the Jewish, Orthodox halakhah, she needs a kosher get. And a non-Orthodox woman needs a kosher get just as much, because if she does not receive one, her children will be mamzerim, and her children will give her a host of troubles all her life, because they will ask her, always, “why did you make us mamzerim?” So, she can go to a rabbi and the rabbi in America will write what she tells him and will send an invitation to the husband [to discuss the divorce]. The husband does not come. He doesn’t care. The rabbi cannot do a thing.

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Judicial Power and National Politics The reality in Israel is that we are men of the law. If the same husband receives an invitation from me and he does not come, he is already tied: by the scuff of his neck, he’s going to jail. The second time, I do not need any favors from him. The police bring him to me.

Klein made the argument that the state authority vested in rabbinical courts gives him a power to support women, and anyone with legitimate claims, that rabbis in other countries do not have. While it has been noted that the situation of women in religious law in Israel is highly problematic from a civil rights perspective, Klein presents an interesting twist on the way that many secular critics in Israel see the situation: the religious establishment pushing religion into the state, thus taking power away from the state, and all the while hurting groups like women. Klein sees the connection between Judaism and the state as growing out of the needs of the people and as giving the needed institutional backing to create the justice that the great rabbis envisioned. Without the state, the social world that rabbis like Klein want to protect and build would be at peril. He involves himself in the state because in the contemporary world, the only way to assert power—in Israel or in any nation-state—is through the state. The only way to assert legitimate authority and to enforce the decisions of rabbinical court judges is through the state. And yet, historically speaking, rabbis have not usually been part of state authority; many Haredi communities objected to the establishment of the Israeli state altogether. Thus, in a real sense, allying with the state is a calculated choice. It reflects strategic thinking. But it is not strategic thinking whose end is individual self-maximization. Rather, the instrumental ends serve the social vision. And, to complicate matters further, as mentioned before, the very incorporation of religious institutions into the state makes it imperative that religious constituencies that want to have an influence in religious matters likewise incorporate themselves in the state. Religious authorities’ need for the state in the modern world is obvious in Klein’s example of the woman from the United States who cannot use any sort of state authority to push her husband to give her a divorce (our conversation did not include the new New York laws). Without the state behind rabbis, rabbis have no power to enforce the laws that they see as defining and reproducing the values and norms that make Israel a Jewish society.31 They cannot protect and reproduce the boundaries of the community without state support. And this is the first goal: protect and reproduce (literally, through marriage and divorce laws) the boundaries of the community. Involvement in the state is a strategic necessity in a world of


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nation-states, in a world where local rabbis no longer have teeth of their own without police or other state offices behind them. To this day, rabbinical courts only have the status of mediators in nonreligious matters even within Haredi communities, whose members turn to rabbinical courts almost exclusively.32 But in those tight-knit communities, communal authority and sanctions remain strong enough that rabbinical authority is ensured. Were there no state backing in marriage and divorce law for the wider population, the nightmare of Ben-Dahan, Albek, Suissa, Porush, and Klein would come to pass: Israel would be a state of Jews who are Jewish according to orthodox halakhah, and Jews who these officials would not call Jews at all. Albek would have to send her daughter to Switzerland to find an orthodox Jew to marry. In Suissa’s words: From our perspective, as religious people, we see great significance in the notion that the religion should be connected with the state. From our perspective, there is a unity [between religion and state]. What is the difference between Judaism and the rest of the world?—this is what we believe as religious people—that the Jewish state must be connected to Jewish symbols, to Jewish elements. To the Torah, to the halakhah, to the tradition. On Yom Kippur, we fast. The state must be closed. . . . We do not want to have a separation between religion and state. We want there to be a connection and an integration between the two. As such, we have a place in the Knesset as religious people, we want to have influence in the Knesset and the government. It is a Jewish state. We want it to remain Jewish, that the state will have signs visible to the outside as a different state. That is why we do what we do.

Suissa’s words reflect a view of the state, again, as emerging from the needs of the people: Because the state is connected to religion, the mayor of a city cannot say, “I only deal with electricity in the streets, with sewage. . . . There are people. The people are Jewish. There are others, but in the main, they are Jewish. And if the majority are Jewish, there must be an indication [of that], so the mayor of the city also takes care of Jewish issues. A mayor is thus turned into a little Minister of the Interior. As such, he must also give religious services. If I am Minister of the Interior and also Minister of Religion, and a mayor is also a little minister of interior and a minister of religion, then it all works out fine. But if he has a problem with religion as such: local councils—how are local councils administered—again, the connection. (emphasis added)

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Suissa appealed to both the central power of the state and majority rule on several occasions in an interview with me. In talking about Reform and Conservative Jews’ battle to enter public institutions he argued: They are maybe two thousand people in the state. They want to force themselves upon us. Overseas, they are many, but we do not tell them what to do. Here, this is a Jewish state. There is an official Rabbinate. The Rabbinate has authority over Kashrut. Because it is a Jewish state. They cannot come and force themselves upon us in our house. Do not try to make us live like you.

This comment is interesting for its appeal to majority rule, a concept that is at odds with the understanding of the ultimate source of authority as divine. But it is also interesting that there is an appeal to the central authority of the state to make the case for the legitimacy of “Orthodox” Judaism in Israel.33 At the same time, Suissa was quite aware of the importance of state religious institutions in maintaining just that legitimacy. He was strongly against allowing Reform and Conservative Jews into local religious councils, which make decisions on matters of religious administration. He who believes in the Torah and in religion must guard it. Therefore, we think that there is no place for them [Reform and Conservatives] in religious councils. The religious council has to give services related to religion, one of which is the need to guard it and to make sure that, for example, people do not open stores on Sabbath. How can a member of a religious council who desecrates the Sabbath, who does not believe in Sabbath at all, go and vote in favor of closing stores on Sabbath? It does not stand up to reason. Therefore, we say that he is not appropriate for this forum: “You are against this forum.”

Internal Restrictions on Gender Roles and Religious Practice: Marking In-Group as Out-Group Gender is a critical and central issue in these officials’ concerns with maintaining authority within the state as well as continuity within the community. In 1997, Ben-Dahan presented a neutral to positive position on the incorporation of the first woman, Leah Shakdiel, into a local religious council in 1988. [Shakdiel] entered the local council in the end. But that was a completely different issue [than Reform and Conservatives]. She is orthodox. In her


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case, religious men said it would not be pleasant for them to sit with a woman and argue with her over issues. If a woman was there, it would not be modest. Here, Leah Shakdiel accepts the halakhah.

Shakdiel, on the other hand, remembered that at the time (1988), she was not at all welcomed in the religious council, even after the HCJ ruled that she must be allowed to be a member: They would schedule meetings at hours that were completely impossible for child rearing because the obvious assumption was that they were not involved in child rearing. They have this slave at home who does it, and so they can do whatever they want. They would keep information away from me because they had this perception of women as being pure, and “you don’t need to know all of the details.” Meanwhile, I’d say to them “if you don’t give me the details it means you are disempowering me, you are leaving me out of the game.” And they had a hard time knowing what to do with that because they were very much aware of the fact that the games that they were playing were dirty games, and they didn’t know how to include me in that. Even when they wanted to enlist my support in one of the dirty games they were playing against other men, they didn’t know how to do it because it’s not done with the women.34

She noted that it was the religious Zionist (Haredi-leumi) National Religious Party (NRP) that initially barred her participation, not Shas, as has since been written in local newspapers. “I am suddenly quoted as someone who was barred from serving in the religious council by Shas. Nobody remembers that it was the NRP who barred me.” In other areas relating to women within the religious fold, religious officials have not been as quick to acquiesce to change. Regarding the Women of the Wall (WOW), a group of modern orthodox, Conservative, and some Reform women who have been fighting for the right to pray at the Western Wall of the Temple Mount since 1989, Ben-Dahan first denied that they were Orthodox women: Who said that they are orthodox? . . . There are rules for the orthodox. If a person is orthodox, he has rules and he has the halakhah. Let anyone come and say they have one orthodox rabbi who allows them to pray, women and men together.

But, of course, the WOW seek to pray as only women. Ben-Dahan went on to make an interesting distinction between what is allowed in one’s

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(“private”?) community synagogue and what is allowed at the site most holy to all of Judaism. The Women of the Wall want to pray with tfillin. They want to make a minyan of themselves, with a Torah Scroll and everything. At the Kotel [the Western Wall], this is not acceptable. If it is done at their own synagogues, no one would say a thing to them.

In fact, the majority of WOW do not seek to pray as a minyan, something allowed only for men. But the WOW do seek to pray as a group, out loud (something considered immodest by some Haredim), with a Torah Scroll, and with certain other rituals allowed only to men. When the Women of the Wall held their Rosh Khodesh (new month) prayer session at the Western Wall on June 4, 2000—their first after the May 22, 2000, High Court asserted their unequivocal right to pray there—a handful of Haredi men and women responded with angry protest, letting all know that none of this was acceptable. The Women of the Wall were called “Egypt,” “Amalek,” “Christians,” “missionaries,” destroyers of the People of Israel—in short, the worst enemies, everything most outside the boundaries of the Jewish People. One Haredi woman in particular continuously physically pushed herself at the Women of the Wall as they prayed. When a police woman tried to intervene, the Haredi woman yelled at her: You are guarding the Christians! You are not guarding Jews. You’re not guarding the People of Israel! It’s forbidden for them to be here! You’re taking their side. You’re taking their side! Don’t be on their side. You are not ok. It’s forbidden for you to be on their side. This is not a place for shows! This is a holy place. This is a place for the People of Israel. Not for Christians. It wasn’t even like this is Egypt! Phooey—dirt on you all!35

One excerpt from my notes from that event illustrate the chasm seen by many Haredi and Haredi-leumi Jews between themselves and Jews who they see as outside the boundaries of the community. A young ultra-orthodox woman approaches the women’s section. She stands behind the WOW for a few minutes, seeming to determine from bystanders what, exactly, is going on. Suddenly, she walks past the WOW. She says with a quiet voice that is full of gentle, heart-felt devotion:


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“Women, the Messiah is coming! The Messiah is coming! You should be ashamed” and one other sentence that was a curse or a warning of the evil that would befall them, but I didn’t hear the exact words. Five or ten minutes later, presumably after her prayers at the Wall, she walks out past the WOW. She says, with an equally gentle, devoted, and pained voice: “God doesn’t hear you. My lady! God doesn’t hear you.”

Gender regulations within religious practice mark the boundaries of the community by marking those who are outside it. By calling the WOW Christians, Amalek, Egypt, and other historical enemies of the Jewish People, they are marked as outside the Jewish People altogether. The pained admonition that God literally does not hear the prayers of the WOW is the most extreme form of placing them outside the boundaries of the People of Israel. Leah Shakdiel was considered a member of the “religious community,” as a modern orthodox religious Zionist woman. The WOW typically are considered outside of the religious fold because most Israelis believe they are Reform women, not Orthodox of any kind. The Reform and Conservative movements in Israel, however, are considered completely outside of Judaism to the point of being heretics. Ben-Dahan presented the changes brought by Shakdiel’s integration into a previously all-male world of religious councils as positive by comparison to the major threat to one coherent state religious authority presented by a Reform woman (who he considered not a real Jew) entering a religious council. Here, Leah Shakdiel accepts the halakhah. But here [in the case of Joyce Brenner, a Reform woman elected to religious council in Netanya], it is not only an issue of modesty. She [Brenner] says, “I do not accept your halakhah.” Let’s say the religious council decides that there should be more kashrut supervisors, or more observance of Sabbath. She can say, “I am against giving money to kashrut.” It’s like a Trojan horse.

Indeed, like those in the religious establishment today, it is the intention of Reform and Conservative activists to become part of religious institutions in order to represent their different views of the Jewish People, their different views of halakhah, and to make changes in religious institutions accordingly. It is equally the intention of current religious authorities to keep that from happening, to protect religious institutions from nonorthodox change. So, again we see an awareness on the part of religious officials of the importance of religious institutions, and state authority

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behind those institutions, in maintaining the kind of community they seek to protect and reproduce. I return to the word “reproduce” because it is an apt referent to the processes through which religious officials seek to maintain the boundaries of the community in perpetuity. This maintenance is accomplished through religious marriage and divorce laws that ensure that the literal reproduction of the community is done in a kosher manner that creates a community of “Jews,” who are Jews by orthodox halakhah. The word “reproduce” highlights well the central role of gender and gender roles and norms in this program to protect the nation, the nation-state, or the boundaries of the community (Caldwell 1991; Hawley 1994; Jayawardena 1986; Joseph 1991; Moghadam 1994; Najmabadi 1991; Stevens 1999; Yuval-Davis 1989).36 After an initial battle, the orthodox and ultra-orthodox officials were willing to concede to Shakdiel entering her religious council. The reason: she was a Jew who followed Orthodox halakhah, and thus should not be expected to challenge the basic goal of maintaining the community through halakhah. Reform and Conservative Jews were another story altogether. In interviews with Ben-Dahan and Suissa, one of the first issues raised in conversations about Reform and Conservative Jews—whether the topic was religious councils or praying at the Western Wall—was gender: gender norms, and what in their eyes were gender perversions. The following is Ben-Dahan’s first reaction to my question about his response to the Reform and Conservatives in general: Whoever wants to pray, you are welcomed. But they [Reform and Conservatives] do not want to pray. They want to make a provocation. For example, at the Kotel, there is a mekhitza [a separator] between women and men, and they want to enter with men and women together. They want to pray together. It was explained to them that this is a holy place, we do not accept [this behavior]. But they want to do it davka [just in order to do it, as if to be petulant]. No one will bother them anytime they come alone. They want to pray together and the halakhah is against that.

When I asked a similarly general question to Suissa, he immediately responded: They wanted to put a Reform woman in the religious council in Netanya, and I said no [as Minister of the Interior]. It is a problem of religious conscience. Because of that, I think that the court [High Court of Justice] should not have decided in this case. Without reference to all the politics


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around the case. I announced that I would not sign. So, the Prime Minister took my jurisdiction, the right and authority from me, and he signed. Now, we are making a bill that would not allow Reform Jews to enter religious councils [to be elected]. Why? Because our position is that the religious council must take care of religion. What is religion? To keep Sabbath, to eat kosher. The Reform do not do this. The Reform marry men with men. Women with women. Goy [non-Jews] with Jews. Together. According to the religion, this is forbidden.

Marriage, gender roles, and community boundaries all appear as critical in Suissa’s analysis. While he mentioned Sabbath and Kashrut first, his examples have to do with gender and community: they marry men with men, women with women; they marry goys with non-Jews. Like Ben-Dahan, Suissa argues that the point of the Reform is to act as a sort of Trojan horse against the existing state power of the current religious establishment: And it is why they come to the religious councils. Would I go to a church—perish the thought—and make myself a member of a church? I would not, because I do not believe in it. If I am against it, then why should I go there? The Reform do not believe in the religion. They do things against the religion. They desecrate the Sabbath. They eat on Yom Kippur [the Day of Reckoning, a fast day]. So they cannot be members of a religious council. To be on the inside and work against it? It’s absurd.

Conclusions David Ben-Gurion put a high premium on incorporating religious authorities into the state. He did so for strategic reasons, to avoid a powerful dissident group outside the state, and to increase the new state’s legitimacy nationally and internationally as the Jewish State. I have argued, however, that his strategic considerations served his larger ideological goal of creating the right kind of state: a mamlakhti kingdom-state, a highly centralized socialist state with messianic overtones. He sought to have religious authorities and all other social groups in the palm of the state’s hand. No part of society should be out of the state’s line of sight. In short, he sought a highly autonomous state. However, in seeking what was really the appropriation of religious authorities, Ben-Gurion led the state to the unintended, and ironic, consequences of the increased political salience of religious authorities. For the average citizen, the most common interaction

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with the state outside of the military is through identity registry, marriage (ceremony and registry), divorce (at least part of legal proceedings and registry), and other personal status issues. All of these come under the jurisdiction of religious authorities, making religious authorities key state actors in the everyday lives of citizens.37 Moreover, religious authorities, as members of the state, have used state authority in the performance of their offices and in the pursuit of their social vision. Interviews with religious officials in Israel show that they give high priority to participating in the state, despite the fact that they disapprove of the principles of general law upon which it is founded. They disapprove of any law that would supersede divine authority. It is from divine authority that they see religious marriage and divorce law, as well as gendered regulation of religious practice, as emerging. At the center of concern is the creation, reproduction, and maintenance of group boundaries—those boundaries that illustrate who is part of the Jewish People and who is not. I have argued that the entrance of religious officials into the state is, indeed, strategic. And yet, using the state is a strategy that serves the primary goal of transforming the society into the vision they have of the Jewish People. Strategy, in this case, serves ideology. Religious officials have absolutely sought power. There is no question about that. But it has not power for power’s sake, as suggested by some skeptical critics. It is state power in order to create and enforce the institutions necessary to create and reproduce their vision of society, God’s Jewish People. Marriage and divorce law protect the boundaries of the community through the regulation of reproduction and defining of offspring, halakhically, as Jews or not. I emphasize the “or not” side of the equation, for defining in-group always results in someone defined as out-group. In the case of Israel, a proportion of the Israeli community who consider themselves very much to be Jews stands to be defined as outside of the Jewish People if religious authorities are successful in some of the battles mentioned herein. The proportion is even higher since the immigration of nearly a million former Soviet Jews in the 1990s, many of whom are considered non-Jews by religious authorities. The regulation of gender boundaries is of critical importance in marriage and divorce law as well. A woman who cannot get a kosher divorce from her husband can never have more children legally, halakhically. If she does, her children will be considered mamzerim for ten generations. In a state with no civil marriage, that is a great restriction to put on a child. It means, quite literally, that her children will not be able to marry within the


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Jewish community in Israel. A man who cannot acquire a divorce, on the other hand, may have children with another woman, provided that she herself is halakhically free. The gendered aspects of these regulations are notable because of this difference. The laws seek to regulate with whom women can reproduce. They regulate men as well, but with far fewer restrictions or repercussions. The crossing of gender regulations in this case is inherently tied to the regulation and reproduction of the boundaries of the community. Regulation of religious practice—worship as well as participation in religious institutions—is another tool used within the community to determine who is a “real” Jew and who is not. Gender roles are extremely important as such a marker. Viewed by religious officials as within the community, Leah Shakdiel was eventually accepted as a representative on her local religious council. Once she was allowed to be a representative, however, she faced a great battle to get information and be allowed to be a real participant on the religious council. The WOW, on the other hand, have not been accepted at all, despite HC J rulings in their favor. Their crossing of gender boundaries, by performing rituals traditionally limited to men, has won them such epitaphs as “Amalek,” “Egypt,” and “missionaries.” All of these terms define the WOW as outside the community; as a Haredi woman at the WOW Rosh Khodesh session in June 2000 exclaimed: “These are not the People of Israel!” The regulation and reproduction of just who is counted as the People of Israel is, for the religious establishment, dependent on the participation of religious officials in a state that will enforce their institutions and their vision. However, while religious authorities ultimately became more salient, politically, through their incorporation into the state, they and the state were left in the paradoxical position that the secular High Court of Justice was the court of last resort in reviewing religious court jurisdiction and religious court rulings conflicting with (some) secular state law. As social movements in the country increasingly engaged in legal mobilization, the Knesset became paralyzed by fractious politics, and new rules of standing allowed almost any petitioner to approach the HC J, the HC J became a central arena for the contest between religious and secular legal principles. The HC J began to challenge religious officials more broadly as well, in areas in which the religious bureaucracy had exerted authority, albeit authority of convention rather than that enshrined in law. Ben-Gurion sought to postpone the dreaded Kulturkampf between religious and secular Jews in Israel. He was able to postpone it, but not

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indefinitely. The incorporation of religious authorities into the fledgling state of Israel had important and unintended consequences for the balance of power between state institutions, as well as for conflicts that would emerge between secular and religious elements within Israeli society. The conflict over the past twenty years between the Israel High Court of Justice and the Jewish religious establishment in Israel has been the most explosive expression of this conflict and likely will be the most important in determining its ultimate outcome. At issue are the principles upon which the state should organize and rule itself: general law equally applied to all citizens regardless of sex, religion, race, or national origin, as stated in the Declaration of Independence; or Jewish religious law, distinguishing rights and responsibilities by community and by gender. Ben-Gurion’s dreaded Kulturkampf emerged in full force in the late 1980s through the arena of the HC J. The emergence, mobilization, and eventual legal mobilization of social movements, decrease in Knesset efficacy, and opening of the rules of standing provided the conditions necessary to allow the HCJ to enter into this conflict. However, the HCJ had shown signs before of being ideologically inclined to spar with religious authorities and jurisdiction. Therefore, the timing and manner of its emergence into conflict with religious authorities is the key to understanding why the HCJ entered into this virulent conflict, knowing full well the Kulturkampf into which it strode. In the next chapters, I present the mechanisms leading the HCJ to enter into the religious law conflict: socioprofessional ties within an intellectual community of legal norms generation, which I call the “judicial community” (chapter 4); judicial signaling (chapter 5); social movement legal mobilization (chapter 6); and changing language in HC J decisions (chapter 6).

4 Social Movement Lawyers, Judicial Community, and the Countermovement that Binds Them

The law is a reflection of the accepted norms in any given society. It is the expression of the balance between different forces that attempt to influence and shape society. —Haifa University Faculty of Law Homepage Professor Illi Salzburger [and his wife, Fania Oz-Salzberger] of Haifa University recently completed a study of the justices, which showed a remarkable uniformity of life experiences. Nine of the justices were born within three years of each other, and all but one in the same decade. Every one of them graduated from Hebrew University. —Jonathan Rosenblum What I would say is that the change in the judicial approach emerged from two main causes: (1) the community of lawyers and (2) the community of justices. —Anonymous High Court of Justice Clerk

In this chapter, I begin to explain both the timing and the manner of the HC J entry into the religious law conflict. I analyze four aspects of the interactions between HC J justices and social movement cause lawyers that were key to the development of this conflict:1 (1) social linkages between the Parts of chapter 4 are adapted from The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice, edited by Austin Sarat and Stuart Scheingold, © 2005 by the Board of Trustees of the Leland Stanford Jr. University, all rights reserved. By permission of the author.

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HCJ justices and a small legal community in Israel, which I call the judicial community (this chapter); (2) signals given by the HCJ to anyone who would listen (or read) them in justice extrajudicial writings that appeared mainly in academic journals, but also in trade magazines and more popular newspapers (chapter 5); (3) social movement legal mobilization, informed by changing legal norms apparent through participation in the judicial community (chapter 6); and (4) changing language on the court, visible in HCJ decisions as well as the social movement briefs that preceded those decisions (chapter 6). All of these processes came to a head in the mid-1980s and continued to develop into a stronger and more coherent interaction between the HCJ and still more social movements via cause lawyers within the judicial community (this study focuses on the early period and the women’s movement). In the remainder of this chapter, I define the judicial community and illustrate the key aspects of the informal interactions within it: knowledge and reputation, and I begin to present the exchange of ideas and norms generation. The remaining chapters will return, each in turn, to the exchange of ideas and norms generation within the judicial community. In the second part of this chapter, I turn to critics of the judicial community, who have emphasized the extent to which it makes up a normative community counter to their own interests. The most vociferous critics of the HCJ and the judicial community have been ultra-Orthodox and Orthodox communities, which have accused the HCJ of being “our new Bolsheviks,”2 “the real enemy of the religious public” (Eilan 1997), “classist,”3 “disconnected from the People” (Eilan and Elon 1996), and goyim (plural of goys, or non-Jews) (Eilan 1996). All of these epithets indicate that the justices are seen as foreign, separate, insulated, and, above all, against the interests of those who do not approve of secularism in government or in society.

Cause Lawyers and Judicial Community By 1999, Israel’s population was 6,200,000, according to the Israel Central Bureau of Statistics. The legal profession in the same year remained quite small—there were approximately twenty thousand lawyers registered with the Israel Bar Association. The legal profession in Israel was made up of two generally separated groups, in terms of legal practice: commercial and criminal lawyers, on one hand, and an elite group associated with constitutional law debates that made up what I call the judicial community. Commercial and criminal lawyers have tended to be highly involved in the Israel Bar Association, which represents all lawyers in Israel. The relationship between the Israel Bar and the judicial community has changed over time. It represented norms

Social Movement Lawyers, Judicial Community

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closer to those of the HCJ of the 1950s and 1960s—strict interpretation of written law/legal positivism, as I will discuss. By the 1980s and 1990s, the HCJ as an institution (rather than as individual justices) began to reflect more activist norms. Critics seemed to coalesce around the Israel Bar, which by the 1990s continued to advocate something closer to legal positivism. The contrasting emphases among legal principles led to notable tension between the Bar Association and the HCJ during the 1990s. Some have questioned the continued relevance of the Bar as a counter-community to the norms of the judicial community. While its power may have declined by comparison to the judicial community in recent years, legal critics of the HCJ continue to turn to the Bar in hopes that it will provide a suitable counterweight to the court. In the early years of the state, the 1950s and into the 1960s, the judicial community was a group almost exclusively made up of political and social elites. By the 1970s and 1980s, it grew more diverse, including the HC J justices, legal scholars, government lawyers, cause lawyers for major social movement organizations, and clerks and interns for various government bodies, including the HC J and the Ministry of Justice. By major social movements, I refer to long-standing organizations that have become known to the HCJ through the consistent use of litigation. The involvement of social movement lawyers, or cause lawyers, in the judicial community worked at two levels during the 1970s and 1980s. A select group were part of the inner circle of the HC J justices. They met not only at wider social events of the broader judicial community but also had dinner together, went to the same parties, and even knew one another’s children. Most people who were part of this inner circle were legal scholars rather than cause lawyers; those cause lawyers who inhabited this socialprofessional space were most likely to be legal scholars as well, or perhaps senior lawyers for the most successful (but not broadly popular) rights organizations, such as the Association for Civil Rights in Israel (ACRI). By the early and mid-1990s, many of these veteran cause lawyers did have more close social ties with justices and other influential members of the community. However, lawyers who successfully brought cases against religious authorities in the late 1980s had contacts with the justices that were more distant in the 1980s.4 The cause lawyers decidedly did not always convince the justices that their position was correct, even with closer friendships in the 1990s. Nonetheless, they participated in larger conversations not only in private but through debates at conferences, in law reviews, and through court cases that shaped the changing norms of this community. This type of interaction is indicative of the significance of the “weak” ties of which Granovetter writes in his seminal paper on social networks (1983). He argues that information and ideas are more rapidly exchanged

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through the weak ties one has through acquaintances than they are through close ties (close friends and family). Close ties usually reflect a more homogeneous body of both people and ideas. Individuals with few weak ties are, thus, less apt to be introduced to new ideas than are people with a larger number of weak ties. It is through these weak ties that individuals gain knowledge of new ways of thinking about an issue, which they then impart to people among their close friends and family. Important changes in thinking may therefore be more highly influenced by our more distant acquaintances than they are by our close friends, with whom we likely already share many ideas, likes, and dislikes. Such weak ties characterized the interaction among cause lawyers and justices within the judicial community. All of the cause lawyers engaged in the religious law conflict were repeat players (Galanter 1974) before the HC J—for the Israel Women’s Network (IWN), the Israel Movement for Progressive Judaism, the International Coalition of Agunah Rights, and ACRI. Members of the judicial community—including cause lawyers and justices—knew one another by reputation, knew about general trends in legal thinking in the community and on the court, were bound by an expansive notion of the rule of law, and, in most cases, acted in a manner seeking to expand or strengthen the rule of law in Israel. The judicial community marks a type of informal community engaged in contests and debates that culminated in important political changes at the national level. This type of community has been identified in informal ties between business elites and state officials (Evans 1995). In the context of developing states, it has often been treated as corruption or clientelism that impedes the proper functioning of institutions (Helmke and Levitsky 2003; O’Donnell 1994). However, the interaction among members of the judicial community in Israel is neither an interaction among power elites (C. Wright Mills [1956] includes business, military, and the highest state officials as power elites) nor one of corruption or clientelism. It is, rather, an intellectual community engaged in the development of new (legal) norms. Through the HC J, those legal norms created important political changes in the national landscape of Israel. Cause lawyers’ success in advocating for their social movements and their causes was highly dependent, in the case of the religious law conflict, on participation in and access to this judicial community. Access meant, in particular, knowledge of changing thinking in the community and on the court and thus knowledge of legal arguments that might be (newly) acceptable to the court. This knowledge, together with a positive reputation in the eyes of justices, allowed lawyers to push the envelope and test the willingness of jus-


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tices to support certain rights issues. Lack of access to this diffuse, informal community seems to have been a hindrance for lawyers working for Bedouins, Palestinians, and others (Bisharat 1998; Shamir and Chinski 1998; Sharfman 1993). However, the significance of this community is not only a function of access; rather, non-elite participants in this community have helped shape the (changing) norms of the community through their participation in it. Membership in the judicial community is mutually transformative (Migdal 2001). Rather than cause lawyers either being directed by their commitment to the system (Blumberg 1967), or directing judicial decisionmaking in some way, the judicial community is shaped and constituted by its (admittedly unequal) members. It is through debates during conferences, court battles, social movement activities, and in classrooms that the norms of this community were constituted (and changed over time).

Normative Change The norms of the judicial community were not always dominated by a notion of an extremely strong judiciary whose reason for being was the protection of rights. And, indeed, the Israeli judiciary was not always as independent (particularly from the executive branch) as it has been in recent decades. The HCJ was founded in August 1948. It was only five years later, in 1953, that the Knesset passed the Judge’s Law granting the HC J independence and status as an official branch of the state. In the early 1950s, and even in the years after the passing of the Judge’s Law, it was unclear what kind of role the judiciary would play in the state of Israel. The government structure was dominated by a combination of legislative supremacy that emphasized the will of the majority (Barzilai 1998; Cohn 1974; Edelman 1994; Gavison 1998; Zemach 1976) and an etatist ideology that bestowed, often through Knesset legislation, power to a relatively centralized executive (Lahav 1997, 92). The notion of legislative supremacy was in keeping with many civil law countries in Europe, such as France, which had a tradition of distrust of a strong judiciary or “gouvernmement des juges” (Merryman 1985, 28). The relatively centralized executive has been traced by some to “the Eastern European background of czarism, Bolshevism, and authoritarianism that shaped the consciousness of Israel’s ruling elite and contributed to the rise of etatism (mamlakhtiut) in the early 1950s” (Lahav 1997, 100). Drawing immigrants from around the world, Israel was a melting pot of legal and political traditions as well as people. In addition, it maintained a mixed institutional legacy from the British Mandate (common law), Ottoman law (civil law), as well as halakhic ( Jewish

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religious) law (arguably a civil law tradition). Uncertain of its role, longevity, or the permanence even of judicial seats, the early HC J followed a strict line of legal positivism. While the Judge’s Law was passed in 1953, granting a certain amount of autonomy to the judiciary, it was only in 1984 that a Basic Law was passed regarding the judiciary. That law firmly established into law what had come to exist in practice, including judicial independence, and justice tenure until compulsory retirement (age seventy) or disciplinary action. However, in the 1950s, the role of the HC J had yet to be established. Before 1953, the justices were extremely cautious in their decision-making due to this concern with the stability of the court and uncertainty of its role in the government. After 1953, they were still somewhat cautious. Moreover, it appears that most of the judges believed strongly in a restrained court that would function strictly within the confines of written law, the very definition of legal positivism. It is noteworthy that the judicial community during this period of lesser judicial independence reflected mainly political elites. The overwhelming tendency of the HC J in the 1950s—indeed, the overwhelming commitment of the justices on the court—was to a reserved court following legal positivism in its readings of law. This tradition of positivism, and in particular its extreme version, formalism—appears to have informed the manner in which justices who supported a more activist court advocated their positions. This prevailing paradigm was always challenged and tested by some, such as the late President of the Supreme Court, Simon Agranat, who wrote formative decisions during that period enshrining important rights and defining equality for the purposes of legal interpretation for decades to come (Lahav 1997). “Occasionally, of course, the Court did protect individuals, but only by confining its reasoning to the narrow boundaries of black-letter law.” By contrast, “the potential for future activism, which Agranat realized a few years after he had joined the Court, remained unknown to the majority of Israel’s judiciary” (Lahav 1997, 92). During that period, the judicial community included a much smaller circle than it did in the 1980s and 1990s, embracing primarily the justices and their closest associates from law school, together with the leaders of the Israel Bar. These few, in turn, were closely associated with many of the state’s political elites; indeed, as noted, the state as a whole was highly centralized with the greatest degree of power resting in the executive branch. Decisions such as the 1969 Shalit “who is a Jew” case, suggested that new norms had begun to provide an important challenge to formal, positivist approaches to law within the judicial community.


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In the early 1970s, Haim Cohn ( justice from the early 1960s to 1981) and Meir Shamgar (justice from 1977 to 1995) began to publish articles in legal journals advocating foundational constitutional principles (in the absence of a constitution) and the development of a written constitution, respectively (Cohn 1974; Shamgar 1974). Both articles reflected a view of law and courts that included acute attention to both human and civil rights. These articles signaled, to anyone who was listening or reading, that some justices were willing not only to entertain discourses on rights, but also to enforce them more actively. It is unlikely that these writings alone, on the part of one lone justice and another future justice, could have changed the dominant norms of the other justices or the existing judicial community as a whole. However, these writings, and others that followed from a few justices throughout the 1970s and 1980s, provided signals to any lawyer who was listening that a contest was brewing over what would be the prevailing norms of the HCJ. Lawyers, such as Frances Raday, who became a key cause lawyer in the religious law conflict in the 1980s, heard the call and began pressuring the HC J on issues of women’s rights through cases involving labor and then religious issues. She did not bring her cases because the justices influenced her position on rights issues (through participation in the judicial community), or because an already fundamental shift had occurred on the court that required a new approach on her part. Rather, like other lawyers in Israel, she was inspired by the successes of the civil rights movements in the United States and elsewhere. As a lawyer in the 1970s, she believed that the courts were the appropriate and even the ideal forum through which to assert and protect the rights of the few against the many. Justices’ writings, together with increasingly positive, from her perspective, rights decisions signaled to her and to others that a few justices on the HCJ might be open to cases on some rights issues.5 As a result of these signals, cause lawyers like Raday began to push the HC J, often faster than it would or could move, on issues such as sexual harassment and women’s rights in the spheres of labor and religious institutions. Young organizations like the ACRI pushed the court on a wide range of issues. By 1986, Raday had opened the Legal Department of the Israel Women’s Network, which, Raday explained to me, developed [a] policy linking litigation and legislation, using the cases to promote legislation, and . . . using the legislation to promote cases. It was actually a good strategy. . . . We did have to work hard on it, but things went through fairly easily on all the economic issues. On labor and on the family, and on

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Judicial Power and National Politics amending the rape laws, on a whole series of issues [both cases and legislation were successful]. The reforms went through quite easily. We got very good decisions on the Supreme Court on equality for women.

In keeping with these changes, the professional and political norms of the judicial community and the community surrounding the Israel Bar have become increasingly disparate since the 1970s and 1980s. The Israel Bar continues to advocate an approach to law based on formal, positive law and a constrained notion of the role of courts in shaping law. The judicial community, by contrast, has increasingly become dominated by a notion of “natural justice” that requires a strong judiciary prepared to defend civil and human rights.6 Through HC J precedent, two rules of what Itzhak Zamir and several justices have called “natural justice” have been included as part of administrative legality—the principle defining and limiting the legal parameters of any state administrative body’s action: The administrative authority is bound to observe two rules of natural justice that have been developed by case law: the rule against bias and the rule concerning the right to a hearing. Originally, these rules applied only to judicial (or quasi-judicial) acts. The High Court has, however, extended their application, and they now also apply to purely administrative acts. (Zamir 1996, 28)

This expansion has meant an increasing application of principles of rights to the actions of state institutions through a de facto judicial review established through the Bergman decision in 1969.7 The two communities increasingly clashed over these opposing principles throughout the 1990s, with some movement between them as a result. There has always, of course, been an overlap between the two communities; the Israel Bar Association does, after all, represent all attorneys in the country, and the HCJ maintains close contact with the Bar. Nonetheless, there was increasing tension between them in the 1990s.8 The judicial community was more successful at bringing to action its normative positions mainly through judicial decisions. The Israeli legal profession maintained a high degree of institutional independence from the state in the last decades of the twentieth century. While Israel is a well-functioning proportional representation system, one in which citizens have extraordinarily easy access to representatives by U.S. standards, many recognize strains on the Israeli democracy—strains that some critics consider major flaws. These strains are evident particularly in legal rights and responsibilities that are defined differently by ethnic and


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religious affiliation (Peled 1992; Shifman 1990; Smooha 1978); in certain legal areas, by gender (Raday 1995a; Shifman 1990); and in which rights have been suspended for some citizens during extended states of emergency (Kaufman 1997). An entire literature on citizenship versus (full national) membership has grown around the ethnic cleavages in Israel (Kook 1995; see also Peled 1992; Peled and Shafir 1996). And compelling criticisms of both state and HC J treatment of noncitizen Palestinians abound (Shamir 1990; Sharfman 1993; see also Dotan 1999). However, for the purposes of understanding the influence of the political system on the legal profession, while my interviews suggest that HC J justices are deeply sensitive to the needs of the executive branch (as well as the public and, in some cases, their international reputations), institutionally, the Israeli judiciary was highly independent and dominated by the legal profession in the 1990s. Justices continue to be chosen by a professional committee composed of the Minister of Justice, who formally chairs the committee; one other member of the Cabinet; the President of the High Court, who in practice has dominated the committee; two other High Court justices; two Knesset members; and two representatives of the Israel Bar Association. Thus, both in practice and in law, the judicial appointment process has been strongly directed by the legal profession, with a high degree of influence granted, in practice, to the President of the High Court.

An Informal Community United by Common Norms “Membership” in the informal judicial community has expanded since the etatist years of the 1950s and 1960s. Most of the lawyers and scholars involved in the judicial community knew each other through interaction in the HC J, through their university education (many went to the same law school in Jerusalem), through academic work including legal conferences, and through the development of strong social ties in these contexts. Professional and social relations, for example, between ACRI lawyers and government attorneys have been closely connected and symbiotic: These patterns of cooperation on the professional level are combined with social affiliations between these two groups of lawyers. The members of both groups live in the same relatively small community of lawyers in the same city (Jerusalem). Most of them graduated from the same law school

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Judicial Power and National Politics and have often known each other since they were law students. The two groups of lawyers meet on an almost daily basis for professional purposes (either in or out of court), and they also meet quite often at social events. (Dotan 1998, 200)

Through informal networks within the tight-knit judicial community, cause lawyers conduct their work and have contributed to the strengthening of the judiciary through a common support of the rule of law and by bringing cases to the HCJ. Social movement lawyers took advantage of signals from the HCJ that it was willing to hear arguments on rights, turning to the HCJ to make a decision in their cases and, in a feedback loop, contributing to the increased political salience of the HC J by allowing it to make political decisions. This interaction evokes the dependence of courts on social movements and support structure argued by Charles Epp (1998); the increased salience given to courts when groups and individuals bring politicized cases to them (Hendley 1996); and perhaps most strongly reflects the opportunities that courts and social movements provide one another highlighted in Michael McCann’s work (1994). Just as I do not argue that cause lawyers were directed by the justices, I expressly do not argue that justices make decisions in coordination with this community. To the contrary, many of the justices are renown for their personal, intellectual independence. Rather, cause lawyers who brought key cases to the HC J, for example, on women’s rights under religious authorities, were aware of a broad change in thinking in the HCJ in favor of rights through their membership in this tight-knit community. The judicial community has acted as a diffuse and indirect normative environment; members are aware of broad changes in that environment. In the words of legal critic and renowned Israeli legal scholar, Ruth Gavison, while the HC J is somewhat “inbred” with people from the Ministry of Justice and academia, “Justices do not talk [with these colleagues] about cases before they are decided. There is a more general and diffuse continuity between legal organizations and the court” (emphasis added).9 Yoav Dotan (1998) also suggests a closer relationship between cause lawyers and state judicial institutions. This relationship challenges, he argues, several premises about cause lawyers, particularly that cause lawyers work in inherent opposition to the state. First, Israeli cause lawyers and government lawyers not infrequently cross lines (cause lawyers becoming government lawyers and the reverse) to argue similar causes from the other side. Second, and closely related to the first, Israeli cause lawyers and


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government lawyers are part of a small, tight-knit community of what he calls elite lawyers motivated by a common commitment to a particular notion of the rule of law. There is important mobility between the ostensibly opposing groups, cause lawyers and government lawyers (Dotan 1998, 194). Dotan cites three cases, two in which ACRI lawyers moved from their positions in this prestigious civil rights organization to even more prestigious positions in the Ministry of Justice, where they argued the opposing side of similar issues in court. Another lawyer who had argued several cases against Palestinians charged with crimes against the Israeli military became a litigator for ACRI and then a more radical human rights organization. Dotan argues that crossover government lawyers may see themselves as ideologically engaged in their work, and thus we should not unilaterally define them as something other than cause lawyers. Dotan cites one lawyer as saying in an interview: The truth is, and I really believe this, that I see a close similarity between my views and feelings—as a civil rights advocate—of what the role of lawyers should be, and the views and feelings of my counterparts at the Office of the Attorney General. This is particularly true in the criminal law field. The public prosecutor strives to further the public interest and to safeguard the rights of the accused and the rules of due process. (197)

The ideological cause that binds these lawyers across the lines of cause lawyer and state is a deep commitment to the rule of law. (This is a term understood quite differently in the “opposing” legal community, that of the Bar.) Dotan argues that these lawyers are part of a tight-knit community in which they are deeply involved in their causes, but what is most important is a common “ambitious (if not wholly extravagant) concept as to the role of law in society” in which the law is entirely autonomous (201). The respect for the rule of law is the basis for protecting the rights involved in all other more particular legal issues. It is just this common ideological basis that leads to heated debate in Israel over the appropriate role of the judiciary. In the words of one lawyer who Dotan interviewed: The lawyer in the public service is committed, above all, to the rule of law, and to similar values, and not necessarily to what the client wants at a given moment. [We are committed] to long-term values and to public norms. (198)

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One government lawyer defined the rule of law to me as the protection of everyone against everyone under the law. My understanding of the rule of law is that law is the custom of everyone. . . . I think it is the third definition [all the public must abide by the law, which should protect citizens from one another], except not in the sense of citizens against citizens, but everyone against everyone. I am also prepared to accept the definition of the rule of law as usually meaning the protection of citizens from the authorities.10

This commitment to the rule of law leads many cause lawyers in Israel, even those who disapprove of crossing the line between cause and state, to seek close working relationships with lawyers on the other side. Even more, it leads attorneys arguing rights cases to aspire always to a good working relationship and reputation in the eyes of the High Court of Justice itself (Dotan 1998). This is true of both cause and government lawyers. A positive relationship with the HC J is more important than a given client (meaning, usually, a government agency), more important than a given issue: What is more important is to assure that the administrative action meets the legal standards of the HCJ. In the words of one lawyer I interviewed: “It is a million times more important for me to retain the Court’s trust in me than to win a certain case.” (Dotan 1998, 198)

The rule of law, and one’s reputation vis-à-vis the rule of law, is critical in this equation. [As a lawyer in the department] you are not only a government lawyer but also an officer of the court, a gatekeeper of the rule of law, and you also have to watch your professional reputation. (Dotan 1998, 198)

Cause lawyers and government lawyers, who typically argue against each other in court, have strong working relations as well as social connections in Israel. It is not the case that all lawyers involved in this elite community actually approve of “line-crossovers,” who move from cause to government lawyering. Some criticize the idea that the legal system be made up of lawyers who are dedicated to the system rather than to their clients, even when that system is the judiciary and the rule of law (Dotan 1998, 200–201).


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Knowledge and Exchange of Ideas in the Judicial Community The informal connections within the judicial community are important to understanding the functioning of the court. Justices and lawyers know one another. They attend academic conferences together. They speak on panels together. They read the same law journals. As one scholar told me: “. . . We all go to the same parties. We meet and see each other all the time. We know each other’s children. Two justices were recently at my book signing [pointing to a picture]. We see each other at court cases. We have to be careful what we write and say about each other in public.”11 Because of these informal connections, cause lawyers were aware that the HC J was more open to arguments based on rights by the mid- and late-1970s. In fact, according to one clerk on the HC J I interviewed, the justices influenced the agenda of cause lawyers and movements precisely by demonstrating their willingness to hear certain types of arguments: Q: Does the agenda of the justices influence the lawyers who bring cases to make certain kinds of arguments? A: Certainly. The goal of every lawyer is to win the case in favor of his client. It is well known to them, for example, that Justice Barak has written a book in which he says that x argument, if it were made, would be accepted by the court. Obviously, they are going to make that argument if it will help their client.12

The same clerk commented later: From the moment that the HCJ shows it has a tendency to accept arguments of a certain type, the lawyers will present arguments of that type and they will paint their cases in the colors of human rights. The one flows from the other.

Interviews with movement lawyers bear out this interpretation. Lawyer, professor, and feminist Frances Raday explained, “It was clear that we had a court that was open to these arguments on rights. And it was: we got very favorable decisions on issues of rape and violence against women and pay” (emphasis added).13 Raday began bringing cases on women’s rights as a private attorney in the late 1970s, with the view that the HCJ was newly (if not consistently) receptive to rights claims. By taking such cases to the HC J, cause lawyers like Raday began to push the HC J to the logical

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conclusion of some of the rights principles it professed to support, as seen in extralegal writings (chapter 5), and in case decisions. The HC J had never supported women’s rights per se, and, indeed, it encouraged Raday to settle on the early cases. As Raday reported in an interview with me: In 1978, I brought a sexual harassment case. It was settled out of court and we got extra punitive damages. And the institution we sued closed down. I thought that was a fairly reasonable result in those years. And then in 1982, I brought a case against Hadassah [Hospital], for retiring women early, professors of medicine. And that got settled out of court after two years, really with the help of Liz Holtzman and Betty Friedl, because we were having a terrible time in the court. I could see that we were on our way to losing, and I didn’t want to lose for them. So we put it onto a public, political level and we won. And then I went back to court against the Jewish Agency with, you know, Nevo, again on the early term retirement issue. And that we won eventually in the Supreme Court in 1990. In the meantime, I was in the middle of handling these cases I set up the women’s network [Israel Women’s Network] legal center.14

The early cases were settled. But with Nevo, as will be discussed in chapter 6, Raday convinced the HCJ that it could not but accept women’s equality. In taking these cases to the HCJ, Raday and others forced the court to take its own rights positions seriously, even regarding issues on which many of the justices were not yet comfortable, such as women’s rights. As discussed in some detail in chapter 6, Raday and others were able to convince the HC J to accept the women’s rights argument combined with the existing Grundnorm of principle of administrative legality (all state institutions must abide by the letter of the law, treating all citizens equally in the absence of specifically legislated dispensation to do otherwise). In that way, cause lawyers took principles that were common currency in the judicial community and pushed the HC J to apply them to new (and uncomfortable) issues, highlighting the extent to which both lawyers and justices have been influenced by the judicial community. Social movement lawyers, such as Raday, were very much aware of the High Court’s willingness to entertain questions of rights and the opportunity that it afforded them. As a result, Raday opened the Legal Department at the Israel Women’s Network in 1986, two years after the establishment of the organization. Under Raday’s influence, rather than pursuing lobbying and grassroots work only, it developed a policy linking legislative lobbying with litigation and began its first High Court cases (see McCann and


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Silverstein 1998 on non-litigation strategies pursued by cause lawyers). The court was seen as independent of political trends, a principle-driven institution that should, in its support of rights, be compelled to support the movement’s efforts. Raday explained: We went on with the policy of using legislation to promote cases. So, it was actually a good strategy. But on the religious issue, we also tried. But before I left the legal center, we drafted a law called “A Law for the Rights of People Who Are Being Denied a Divorce”. . . . We didn’t get that one through. In other words, everything else we got through almost like butter. We did have to work on it, but things went through fairly easily on all the economic issues, and the family, and on amending the rape laws, you know, on a whole series of things the reforms went through quite easily. We got very good decisions on the Supreme Court on equality for women. And when it comes to religion in the state, full stop.15

The IWN became an umbrella organization for women’s organizations around the country (by 1997, over 160 organizations). Its turn to litigation resulted from a combination of cause lawyers’ awareness of a new opportunity in the HC J together with a lack of lobbying success in the Knesset on certain issues, particularly those relating to religion and the state. Many, including members of the judicial community, have noted the significance of the withdrawal of the Knesset from decision making on “sacred cow” issues, such as religion and the state, in the onset of social movement legal mobilization. In the words of one HCJ clerk: If the Knesset categorically does not function and does not legislate in certain areas, due to any number of political or electoral considerations, a man will come along who is injured by this behavior and he will petition the HCJ. Then the HCJ has to decide whether it will enter this vacuum that was created or not. . . . The fact that politicians bring cases to the HCJ does not mean that there is a social consensus [about the appropriate role of the judiciary]. Everyone in this game has his own interests. Sometimes it is in the interests of politicians to avoid the bureaucracy of the Knesset and to move directly to the top of the heap—to the HCJ. . . . The fact that the HCJ plays some sort of political role results in part from politicians using the court. . . .

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Judicial Power and National Politics The Knesset is also an important part [of the judicial world] in as much as it does nothing whatsoever and thus people do not turnto it.16

The decreasing efficacy of the Knesset since the 1977 elections has been the subject of much study in Israel. Gad Barzilai (1998) makes the argument that increasing HCJ intervention in religious issues is directly related to a decreasing ability of the Knesset even to address these issues after the 1977 election, which resulted in a split leadership, a highly fractured parliament, and increasing power of small parties that could then act as veto players. My own survey of Knesset discussions of new laws relating to religious authorities (particularly marriage, divorce, and conversion) supports his findings, showing an increase in the number of bills submitted on certain issues after 1977, but a decrease in the distance each bill made it through debate process (see tables 2.1–2.4 in chapter 2).17

Reputation In addition to the development of a normative community, exchange of ideas within the judicial community, and knowledge by virtue of participation in the community, reputation is an important factor in the interaction between cause lawyers and justices on the HCJ. Just as cause lawyers know about broad changes in thinking on the court, justices know the reputations of cause lawyers—professional, intellectual, and personal. Reputation has a significant impact on the justices’ first impressions of a case. Said one law clerk in an interview: A: Some groups he [Barak] has a lot of respect for and some groups he has no respect for. So it depends on which groups and individuals bring the case. . . . Frances Raday is one [social movement lawyer] he would have respect for because she’s a professor at the Hebrew University. She’s known to be intelligent, and she brings in very few cases. So, I certainly think it is relevant who brings the case. Q: More so than the issue itself? A: No, both. I think it depends. I mean, I think if there’s a movement—for example, the Association for Civil Rights in Israel. It’s a very highly regarded body. It’s also highly regarded by him [Barak]. So, if the Association for Civil Rights in Israel brings in a petition, it’s taken more seriously than if some loony, a left-wing loony, brings in a petition. Q: Like the X [I name a group that is considered by many leftist groups in Israel to be a left-wing fringe group]?


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A: Yes, exactly. If X would go and hang themselves from the trees in the cause of something, so he’s [Barak’s] not going to take it very seriously. Or if it’s a foreign movement or observer, he couldn’t care less. But if it’s a serious matter . . . I mean . . . no, I take back what I said about a foreigner. For example, if there were a serious lobby from the States on religious issues under the umbrella of Yale or Harvard University, some place that matters to him, he would take it a lot more seriously than if there were some lobby from, you know, some group he’s never heard of that call themselves— I don’t know—Action Freedom, or something. It really does matter. Q: Do you think that is true of other justices as well? A: I think it’s true of every justice in every country in the world, to a certain extent.18

Another clerk at the HC J confirmed at least part of this analysis. It is significant who brings the case. The justices take some petitions more seriously than others based on the litigators and the movements involved. This is a critical factor to be highlighted about the community of the justices: the justices know the lawyers. The way cases are received has a lot to do with the lawyers who bring the cases. If the lawyers are perceived as serious, the case will be taken more seriously. If no one knows who these people are bringing the case, it won’t be treated seriously. . . . Someone like Frances Raday is known well by the justices as a very serious lawyer, as an excellent lawyer and scholar. Everyone knows her. And when someone like Raday comes in with a case for equality of women to be representatives on local religious councils, the Court will listen to her arguments. It makes a big difference.19

However, the significance of reputation is not that of direct contact, lobbying, or social pressure between members of this community and the justices. As Uri Regev, a rabbi and key cause lawyer for the Israel Religious Action Center of the Reform Movement in Israel, put it: “Well, you don’t lobby with judges. Not in Israel, in any case.”20 Indeed, as previously mentioned, no one in the judicial community who I interviewed, even legal critics, suggested that the justices are open to direct influence because of their social and professional ties in this judicial community. Said one HCJ clerk: Justice Barak is typical of the most independent of the justices, known for doing much of the writing of his decisions rather than having clerks write them.21

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All insisted that the justices did not discuss the issues of standing cases with friends in this community. Rather, a source in the Ministry of Justice, who spoke on condition of anonymity, said that the ideological proclivities of the justices on broad issues are disseminated very quickly in the small, coherent judicial community in Israel. If you have justices who are willing to turn from a more formal legal reading of law, as seen in the 1950s and much of the 1960s in Israel, that fact quickly becomes “public” knowledge within the judicial community. However, the justices are not the end of the story. Cause lawyers have pushed the court on issues of religion often faster than it wanted to move. Cases on Reform and Conservative conversion have been heard for twenty years and have only recently been successful in the HCJ.

A Tight-Knit Community: Critics of the Court Critics of the HCJ cite what they call its insularity as a closed set of lawyers and legal scholars as a grounds for criticism that is a fundamentally undemocratic institution. Legal scholars and parts of the popular press in Israel have provided harsh criticism of the High Court precisely for what they see as too much activism on behalf of rights, even against the will of the general society (Gavison 1998; Shavit 1999). Many critics in the popular press, and especially the Orthodox and ultra-Orthodox press, have traced this activism to the incumbency of President of the HC J, Aharon Barak. The criticism of Barak seems to be related to a larger concern that the judicial community in Israel, directed by Barak, is too insular and made up of “elites” who make decisions behind doors closed to the public, who themselves appoint judges and justices and who, in general, have far too much control over the judiciary in Israel. The judiciary is seen as a closed box and even a “judicial ideological collectivity” (Gavison in Shavit 1999). Critics of the HC J, within the larger legal community, the press, and the religious communities range from those making extreme accusations of insular, corrupt decision making to those seeking to aggrandize court power through principles such as judicial reasonableness and activist interpretation (Halperin-Kaddari 1997; Shamir 1990), to simple bad judgment in hearing certain kinds of political cases (Hofnung 1996b, 1999) or in keeping decisions out of the public eye (Gavison in Shavit 1999). The most renowned legal scholar in Israel who has become a vocal and public critic of the HC J and the judiciary is Ruth Gavison, one of Israel’s


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foremost legal scholars. She has criticized the HC J on a number of levels, particularly its insularity. She argues that the judiciary is too independent, too separate from any public recourse, too insulated from criticism. The result is a situation in which one court, which effectively appoints itself, creates the constitution by means of its interpretation of the basic laws. And this occurs without any of the control mechanisms that exist in the United States. So from this point of view our situation is quite distinctive. The combination of judicial criticism of Knesset legislation, in a state where there is as yet no crystallized constitution, by a court whose justices are not elected but are appointed for life by the judicial system itself, creates a very problematic situation, in my opinion. (in Shavit 1999)

This independence is accompanied, according to Gavison, by a paternalism that closes the public off from the decision-making process where judicial and constitutional issues arise. This lack of recourse is significant in a situation in which there is no standing constitution to override public or state whim. Rather, the public should be involved, she argues, in the development of constitutional principles. To her, it is a simple matter of democracy. I will go further: sometimes people tell me I am naive. That it is impossible to advance certain processes without a degree of paternalism. That the nation by itself will not be able to arrive, from within itself, at an enlightened, liberal state-constitutional format. And therefore, these people argue, a hush-hush policy is both legitimate and necessary. Up to a point I am willing to accept that argument. But I think that we have now reached a situation in which this enlightened paternalism is dangerous, because it is being used to play down moves that need to be raised for open public discussion. (in Shavit 1999)

Here Gavison is criticizing selective prosecution among the police and judiciary, particularly of crimes in the political arena, as well as the Or Commission, which was set up to reform the structure of the judicial system. It was, indeed, conducted very much away from the public eye. What is important for our purposes are the claims of insularity and paternalism with which some members of the judiciary view their role and the role of law vis-à-vis the state and the society. This “touch of arrogance” seems to lead some of the HCJ’s critics to higher levels of frustration with decisions of which they disapprove. Gavison also criticizes High Court President Barak directly:

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Judicial Power and National Politics This is the first time we have had a Supreme Court president who is one of the central writers in both the professional literature and the journalistic literature. He does his work by writing judgments, by closely managing the system of judges, by very closely managing the entire public judicial system, and by maintaining ramified connections with other authorities and with professional elites in Israel and internationally. (in Shavit 1999)

Gavison claims, in keeping with many of the critics, “One thing, which is agreed upon and essential, is to bolster human rights and proper administration” (in Shavit 1999). However, the definition of human rights and proper administration, as well as their implementation, is at the heart of the conflict. Almost all of the critics claim to be supporters of rights. What each means by rights varies dramatically. What is more, it seems to vary along secular/nonsecular and Western/non-pro-Western lines. In Gavison’s words: “The second thing, which is played down and controversial, is the attempt to impose Western-secular-Jewish values on a society that has ceased to be a secular-Western society” (in Shavit 1999). Indeed, Haredi (ultra-Orthodox) criticism of the HC J, from both Ashkenazi and Mizrahi circles, became stronger in the early 1990s, in the aftermath of the 1987 Shas v. Office of Population Registry case—in which the Shas Party lost its battle to make Reform and Conservative converts who had converted outside of Israel barred from the Right of Return—and the 1998 Shakdiel and “Poraz” cases, which will be discussed in chapter 6. It also corresponds to a marked increase in the social and political power of Shas as a party.22 However, the real uproar between Haredi and secular communities over the HCJ can be said to have begun, somewhat arbitrarily, with the publication of an article in Yated Neeman, a Jerusalem based ultra-Orthodox (Ashkenazi) newspaper, in August 1996. In it, Yated Neeman attacked the HCJ and specifically its president: A simple glance at events of the past weeks speaks to a dangerous enemy who has raised himself against the religious public. . . . This dangerous enemy is called Aharon Barak. He is more powerful than the entire government administration; with force he overshadows the police, the legislature, as well as the executive. With one decision he can remove a Minister from his post, a political party from its ability to run in elections. The era of democracy is over; the era of government by the people is over. (Velder 1996)

The article continues: “A man, estranged and patronizing, disconnected but supposedly raised up by the people, conducts a one-man revolution,


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which he calls ‘judicial activism. . . .’” As will be discussed further later, legal scholars who criticize the HC J agree that the judicial activism of which Yated speaks was not the brainchild of, nor is it limited to, Barak. However, what is important in the Yated piece is the treatment of Barak, who represents for Yated the whole of judicial activism in Israel, as estranged, completely disconnected, and patronizing to “the people,” which in this context means “the Jewish People.” In other words, Barak is disconnected from the Jewish community—which Yated presents as that community he is supposed to serve—and is placed outside the boundaries of the community.23 Inasmuch as the judicial community believes in Barak’s cause, it, too, is outside “the Jewish People.” The use of Barak as the purveyor of judicial activism may have reflected the real understanding of the author or may have been an attempt to avoid a wholesale attack on the judiciary writ large. In either case, the alienation from the principles behind “Barak’s” judicial activism clearly sets the community of “the People” apart from Barak and his followers. Other religious critics of the HC J, including religious Zionist journalist and commentator, Yair Sheleg, have argued that it is shortsighted to hold Barak alone responsible for the antireligious bent of the HCJ. Sheleg is the author of an important book (2000) delineating the boundaries among, and characteristics of, the various religious Jewish groups in Israel. He argued to me that the ideological support of liberal rights as against religious principles has been visible to anyone who would look at the last thirty years of HCJ decisions. I argue that the High Court is no more secular or liberal than it was in the past. Its ideology today is the same ideology. In past cases, it was possible to see this [same ideology]; when there were debates, the decisions almost always came out in the favor of the seculars. For example, in the case of using televisions on Sabbath; the High Court decided in 1968 that it was permitted to use television on Sabbath. In the 1968 case [sic] . . . of Shalit, he brought up the question, “who is a Jew?” . . . The High Court declared, “do it” [register Shalit’s son as Jewish, against the religious legal definition of Jewishness].24

According to Sheleg, the ideological proclivity of the High Court in favor of rights issues is visible at least going back to the Shalit case. Moreover, it was clear to any group wanting to make arguments on the basis of rights that it had a sympathetic court after the publication of the Shalit decision in 1969.25 After the famous Yated piece in August 1996, Haredi critiques did not limit themselves to Barak alone. These critiques come from almost all

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sectors of the Haredi community. In Yated Neeman, again, in October 1996, P. Horev argued that the HC J and the judicial community at large set themselves up as against the “ignoramuses” who criticized them. Justice Aharon Barak called the Legal Committee of the Knesset to meeting this week and said, in passing, that the attacks on the High Court of Justice “are based on a lack of understanding of the judicial process and the ways through which it is implemented.” A simple lack of understanding. If only we were a little more of sound mind, we would have no criticism. It is only because we are so without understanding that we feel that someone is running wild. In reality, it is not Barak who puts forth this explanation. It is an argument that is heard over and over in different variations. Legal thinkers regularly say that attacks on the High Court come from ignoramuses. In the absence of more a convincing interpretation, the “ignoramus” thesis is by far the most classist of all arguments.

Horev explicitly draws attention to a community of legal thinkers, of whom Barak is a part, who are responsible for this “most classist of all arguments.” These legal thinkers he explicitly presents as the enemies of “us” religious Jews who criticize the court. In his piece, we see both an explicit identification of (an oppressive) judicial community (coterminous with my judicial community), and a highlighting of the conflict between communities. The communal nature of this conflict, between communities within the larger Jewish community in Israel and, more broadly, within the larger Jewish world, becomes more clear. Others have attacked the HCJ at large as well, rather than only Barak. Rabbi David Yossef is the son of Ovadia Yossef, the spiritual leader of Shas. In April 1997, David Yossef equated the High Court of Justice at large with Haman, a biblical enemy of the Ancient Israelites in the Esther story: “‘HC J’ in the Gematria equals ‘Haman,’” he said. Gematria (sometimes called, in modern Hebrew, geometria, which comes from the Greek) is a numerology system associated with Jewish mysticism that dates back as far as the Talmudic period (seventh to eleventh centuries).26 Yossef argued that the Hebrew acronym for HC J had the same numerological value as “Haman,” 5-50-40, thus verifying the HC J as “the real enemy of the religious public” (see Eilan 1997). By appealing to religious sources to equate the HCJ with one of the archenemies of the Ancient Israelites in the Bible, Yossef marks the HCJ as a demon. The HCJ is equated with an evil figure and, even more significant for my analysis, the HC J is identified with a


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figure presented in the Bible as outside the Israelite community and explicitly out to persecute it. The biblical and mystical references heighten the critique to a battle of good versus evil in the cosmic grand scheme of things. Then returning to present Israel, David Yossef continued: “The HC J is controlling the state of Israel in a manner that is against the law” (see Eilan 1997), and called on the religious public to overthrow the illegitimate rule of the HCJ. Johnathan Rosenblum, a journalist and Haredi activist, also presents the HCJ as the enemy of the religious public, but he more explicitly places the HCJ and secularists in the Israeli society, on the one hand, and the religious communities, on the other hand, as two major communities with entirely opposing worldviews and interests. It is the religious/chareidi [Haredi] community that finds itself most threatened by our new Bolsheviks in yuppie disguise. For the elites that dominate the media and judicial system correctly recognize the values of the religious community as the greatest challenge to their own, and religious Jews as the group least capable of being assimilated into the uniform society for which they yearn. (1999, 6).

Rosenblum refers to Gavison’s interview with Ari Shavit in describing the judicial system as a “closed, insular society of like-minded people. . . .” (1999, 9). The appointment power vested in the Court President has led to a situation in which the justices of the Supreme Court bear an uncanny resemblance to one another both ideologically and sociologically. Israel’s Supreme Court is effectively a Court of one: the Court President and fourteen clones. . . . That uniformity is continuous over time. With no input from the elected branches of government, there is no possibility of the shifts in judicial approach that regularly occur on the United States Supreme Court. . . . Like most cults, never exposed to opposing ideas, the Court is marked by a singular lack of humility. (1999, 10)

For Rosenblum, the closed, insular, communal nature of the HC Jand-community is one of the most egregious challenges to democracy. His line of reasoning is quite similar to that of Gavison; both seem to view democracy in terms of public participation and representation, which leads

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them to argue for public participation in at least some judicial processes as well. Judicial independence as a foundational aspect of democracy appears to be less of a concern for both. However, in a May 2000 interview with me, Rosenblum made clear that his opinions on democracy must be foregrounded with the acknowledgment that he does not favor democracy as the ideal form of state. Well, I define democracy—if you ask me what I’d like to see here, first of all, it has to be very clear that democracy is not, for Orthodox Jews, an ideal state of government. I mean, we’re not, nowhere do you find the term “democracy.” It’s not a Torah term. But I don’t view Israel as a Torah state either. I think democracy is the best system for allowing people of divergent beliefs to live together, so I have a small bias in favor of representative democracy where the basic law-making authority resides in the elected branches of the government, where a constitutional framework is more directed toward setting the rules of the game rather than the ends of life.27

However, if a body such as the HCJ sets the “ends in life” as well, it is outside the bounds of real democracy: When you enunciate enough goals, you can end up with a one party state. And it will be called, you know, the Soviet Socialist Republics. It will be called in the name of democracy or republican government, but [it will be done] by defining democracy in terms of goals and delegitimizing those who don’t share those ultimate ends.

As I have mentioned, some commentators—usually critics—argue that the judicial activism of the HC J is new. Many who make that argument trace it to the incumbency of Aharon Barak. Barak joined the HC J in 1979; he rose steadily in the HC J ranks to become both Deputy and then President of the HC J both in 1995. It is well established in public law scholarship in Israel that the HC J moved from legal reasoning based on formal or positivist reading of law, emphasizing the HC J as a limited institution that should narrowly interpret existing statutes in the 1950s and 1960s (Lahav 1997) to one that became more activist on rights issues in the 1970s and 1980s. Its support of rights has been based more on broad readings of “natural” rights rather than only existing statutes (Dotan 1999; Edelman 1994; Hofnung 1996b, 1999; Kretzmer 1990), although it has also been criticized for not being more consistently activist on rights issues in the case of Palestinian residents of the Occupied Territories (Dotan 1999; Shamir 1990).


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Natural rights in this context refers to the appeal to principles of human and civil rights that courts around the world have increasingly made since the end of World War II, the establishment of the United Nations and, in particular, the U.N. Human Rights Charter. High courts, supreme courts, and/or constitutional courts around the world have appealed to these general international principles in supporting many human and civil rights claims rather than only existing national statutes. The Israel HC J is precisely in keeping with this trend. Indeed, the signals that it was moving in this direction were apparent in extra-judicial writings of several justices in the 1970s and 1980s (as discussed in chapter 5). Thus, the HCJ is both criticized and lauded for appealing to principles that Israel may have supported in signing the Charter but that do not exist in Israeli statutes.28 Legal formalists would prefer that statutes be the only source of legal reasoning or, at the very least, that principles outside of statutes be used extremely sparingly. Human rights advocates, activists, and advocates of a strong, independent judiciary tend to support broad legal interpretations that appeal to principles of natural justice. In reality, in every case addressed in this project, the Israeli HCJ has not made its decisions based on principles of natural justice. Rather, it is very careful to make decisions based on formal (positivist) interpretations, appealing to the principle of administrative legality (see chapter 2). However, the texts around the decisions often include highly rhetorical language in support of natural justice, particularly various aspects of civil and human rights. It is this rhetoric that bothers critics. It is the formalist garb of the decisions that protects the HCJ.29 Because Barak joined the HC J in 1979, he postdated the beginning of the trend in the Israeli HC J toward natural justice interpretations.30 Furthermore, he became president of the HCJ only in 1995, thus postdating by a significant margin the onset of the HC J challenge of rabbinical authorities. Thus, the argument that Barak is the causal agent in the activism of the HC J, reflected by its broad, rhetorical appeals to natural justice, does not stand up to the test of timing. The notion that Barak is the key to the conflict between the HCJ and religious authorities does not work for the same reason. However, what is important and has been demonstrated in this section is that critics of the court—whether attacking the HC J at large or Barak in particular—frequently highlight the communal nature of the HC J and its supporters in the judicial community as a “closed” set, a “cult,” “estranged and patronizing,” against the Jewish People and even an “ideological collectivity.” It is an argument made not only in academic models, but in common parlance in the popular presses in Israel. Critics use the HCJ community as a basis for critique, highlighting the intercommunal nature of the

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religious law conflict, between a secular community (and sometimes more specifically a legal community) that is ultimately an enemy to the Jewish People, and a religious community that constitutes the Jewish People. In the next chapter, I outline signals that HC J justices sent out indicating an openness to certain issues of rights. A number of key justices began to write in academic journals as well as in the popular press. Those writings sent out messages to the Israeli society about the types of cases to which the HC J might be amenable. The potential for change from a selfconstrained legal positivist position to a court more activist on issues of civil and human rights was visible to anyone who wanted to read court cases, academic writings, or interviews and articles in the popular press. These signals were many and not difficult to discern for a lawyer in the judicial community. I address several key justices and their writings in the next chapter.

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 HC J 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.

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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 HC J 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 HC J 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 nation) remained highly controversial long after Kol Ha’am. Likewise, the 1969 Bergman case established the right of judicial review for the HCJ. The HCJ continued to use judicial review of administrative acts until after the passage of two new Basic

Changing Visions, Conflicting Missions

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Laws in 1992; the court quickly interpreted these new laws as constituting principles that superseded regular legislation. The question of whether the Basic Laws, which initially outlined the structure of the government, should have higher status, as fundamental principle, than “regular” laws continues to be hotly contested. We will see that a number of important justices advocated the expansive side of the rule of law in all of these cases.

Early Signs of Rights Consciousness on the HCJ The HCJ was founded in August 1948. Five years later, in 1953, the Knesset passed the Judge’s Law establishing the HCJ as an official and independent branch of the state. In the early 1950s, and even in the years after the passing of the Judge’s Law, it was unclear what kind of role the judiciary would play in the state of Israel. Uncertain of its role, longevity, or the permanence even of judicial seats, the early HCJ followed a strict line of legal positivism. Throughout the 1950s and into the 1960s, it appears that most of the judges believed strongly in a restrained court that would function strictly within the confines of written law, or legal positivism. In the case of Israel, the confines of written law meant mainly statutory law, as there was no constitution from which to draw. The HC J did draw fairly extensively from English common law, together with frequent use of German civil law. The predominance of English common law in these early years has been traced to the institutional legacy left after Mandatory Palestine (Englard 1975). Appeals to the German civil law tradition have been seen by some as rooted in the training and legal philosophies of the early justices, many of whom came from or were trained in Germany (Salzberger and Oz-Salzberger, 1998).4 In both cases, those traditions were understood as advocating strict positivist or “formal” legal decisions. Even at this time, however, some justices moved somewhat against the grain of the majority trend. Simon Agranat, who later became one of the most famous Israeli HCJ presidents, favored enshrining rights jurisprudence in Israeli law. Agranat, in those early years, typically adhered to formalism. He seemed to combine a respect for legal positivism with a growing concern for rights. In combining these concerns, he developed a technical legal interpretive move that would become the hallmark of later activist justices in Israel. “Agranat adhered to a formalistic model of rights and to the basic judicial position, rooted in English jurisprudence, that such matters should be analyzed through the lens of administrative, not constitutional,

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law” (Lahav 1997, 95). That is, Agranat was the first Israeli justice to link the Grundnorm of administrative legality with the principle of equality. This move created a precedent that gave a legal avenue for rights claims based on a traditional civil law Grundnorm rather than on a new notion of constitutionalism in a country with no written constitution. While Lahav suggests that Agranat found this legal method through English jurisprudence, it may be that the rest of the court at the time, mostly trained in Germany, was willing to accept the argument due to the longrooted nature of this principle in the civil law tradition. It is noteworthy, and beyond the scope of this work, that both the continental European civil law tradition, and according to some, English jurisprudence as well, have drawn on this Grundnorm of administrative legality as a lynchpin to their constitutional traditions. Combining, as it does, continental civil law, common law, and Ottoman legal traditions, Israel highlights historical loci of overlap between these traditions. On the other hand, institutionally, both in terms of legislation and in terms of jurisprudence, Israel has itself actively drawn from all three. Together with this formalism, in the midst of it, Agranat initiated the first serious discussion on the meaning of rights within the Israeli legal system. In Zeev v. Gubernik, a case that first came to the HCJ in 1948, Agranat wrote the unanimous decision, asserting that rights could be broken into three categories: (1) Legal rights entailing obligations (meaning that interference with said right by a state entity could require state intervention and sanctions); (2) legal liberties or privileges (coming from the common law principle that in the absence of a specific law prohibiting a liberty, that liberty was allowed, but did not necessarily require state sanctioning in the case of violators); and (3) legal powers (meaning, literally, “all powers given, for the purposes of executing their official functions, to the legislative, judicial and executive branches of the government”) (Lahav 1997, 97–98). His decision and definition created a forum for a new discourse on rights in Israel. That forum was both intellectual and epistemic, on the one hand, and physically located in the courthouse on the other hand. The potential of this situation—the binding of an intellectual and political debate with the physical body of the courthouse—would be realized in later years as the HCJ became increasingly activist. It would also bind the Israeli legal experience with that of judiciaries around the world (Shapiro and Stone 1994; Vallinder 1994). “Clearly, Agranat felt that the time had come to introduce rights discourse in Israel’s legal language in a more comprehensive way” (Lahav


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1997, 99). Over time, Agranat began to display a stronger rhetorical flair regarding rights, together with those “legalistic” interpretive moves from positive law. Agranat thus set the stage for the pattern mentioned in chapter 2 that would later dominate the HC J’s challenge of religious authorities in Israel: strong rhetoric on rights, but decisions founded in positive law. According to Lahav, this method was self-conscious and considered: The time had come to restore the balance that had tilted so heavily toward the collective and away from the individual. But the discourse on rights could not be political, or the judicial might be blamed for interfering with legislative prerogatives. It had to be done in a strictly “legal” way. The “correct” way of talking about rights would create the impression that individual rights emerged from the “pure science of law.” (99; emphasis added)

The pattern of decisions based on positive law, together with a rhetoric of rights, would become the trademark of the HC J’s “activist” decisions. Indeed, it would cause some scholars to criticize the HC J for being too activist, threatening its aura of formality and autonomy from politics (Hofnung 1996b; Kretzmer 1990), while others would criticize it for not being truly activist in refusing to challenge positive law and the establishment it usually protects (Shamir 1990). Still others have highlighted another kind of indirect process—the HCJ’s informal decision-making patterns, particularly related to settlements, that have supported Palestinian rights more than is apparent from court decisions alone (Dotan 1999). With Agranat, we see the beginning of a pattern of judicial support for rights on an ideological level, but also justices who are constrained for all the reasons mentioned previously to limit the mechanics of their decisions to positive law. The notion of a “pure science of law” has its antecedents more in the civil law tradition than in the common law tradition, in which law is known to be un-fixed and rather flexible, based on changing traditions and precedents over time. The science of the law is in keeping with the civil law emphasis on scholarship, legal scholars pouring over codes and principles to determine what the law really means. Those scholarly texts often become authoritative texts in civil law courts (Merryman 1985, 61–67). That is very much the case with the Israeli HC J, which cites legal scholars from Israel and around the world extensively in its decisions. This is a trait that is quite rare in common law courts, which tend to focus on precedent rather than legal exegesis (Merryman 1985; Shapiro 1981). Agranat was born in Germany and was familiar with the Jewish law tradition of legal exegesis. His

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formal legal education took place in the United States. His own legal thinking reflected a combination of civil law and common law principles and characteristics. Citing U.S. and English common law frequently, he nonetheless turned very naturally to the civil law method of legal exegesis and scholarship as an authoritative source for law. Common law in the Israeli legal system has been discussed more frequently, thus, I will note those occasions in which civil law principles are visible in the extra-judicial writings of the justices mentioned in the next section.

Changes and Signals in the 1970s and 1980s While Agranat may be credited with initiating a serious rights discourse in the HCJ as well as the technique of combining rights rhetoric with positive law decisions, Haim Cohn (justice early 1960s to 1981) and Meir Shamgar ( justice 1977 to 1995) can be said to have changed the nature of that discussion. Rather than presenting an HC J that included justices who were increasingly sympathetic to rights but felt themselves constrained in their application, in the 1970s, in the aftermath of the Shalit case, Shamgar and Cohn began writing articles to Israeli law journals unapologetically advocating such controversial ideas as creating a written constitution. In 1974, Cohn and Shamgar published articles on “The Spirit of Israeli Law” and “On a Written Constitution,” respectively. These articles were published from the proceedings of a 1973 conference, the Second International Congress of Jewish Lawyers and Jurists, in Jerusalem. Both articles reflect a view of law and courts that included acute attention to rights, both civil and human. These articles indicated, to anyone in the judicial community who was listening or reading, a court that was perhaps willing not only to entertain discourses on rights, but to enforce them more actively. In his article, Cohn was explicit in saying that the spirit of Israel law was not as apparently clear as it would be had Israel a written constitution that enshrined binding Grundnorms (or foundational legal principles),5 or had it a homogenous population with a homogenous institutional tradition. The one institutional tradition that the Israeli (Jewish) population did have in common was Jewish law as developed through biblical and Talmudic sources. Cohn distinguished between the spirit of Israel law and Knesset legislation, which “more often than not [would] be admitted by the lawgiver himself, to be hardly compatible with some of those constitutional or ethical concepts principles which normally pervade, and are expected to characterize, his legislation” (457; emphasis added). Legislation emerging from


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emergency situations was particularly prone to this anticonstitutional bent. In short, Cohn defined the spirit of Israel law as the following: If I were to reduce the Spirit of Israel law to a short formula, I would say that it is composed of these three components: efficacy—laws being made for a given purpose, their tenor and contents ought to be as best calculated to serve and achieve that purpose; democracy—meaning the resurrection and preservation of all those freedoms and liberties of which the Jewish people had been systematically and recurrently deprived, and the observance and enforcement of which would characterize a civilized and enlightened modern commonwealth; and Jewishness—in the sense of reflecting, realizing and perpetuating our Jewish cultural heritage and Jewish moral and ethical standards. (458).

Cohn thus tied the spirit of Israel law inexorably with principles of rights—liberties and freedoms—whether those rights might be constitutional, ethical, secular, or religious in origin. Furthermore, he defined democracy in terms of individual liberties and the rule of law, which he said together “may now be regarded as forming part of universally recognized principles of international law” (459–460). Jewish moral and ethical standards referred, moreover, not to marriage and divorce law but rather to “the insistence on and deliberate consciousness of a purely subjective and individualistic value judgment . . . as the basis of all norm-setting.” However, “the only norm it [Jewish law] puts on the pedestal of law is the purely altruistic one: do not do to others” (461). Thus, the role of law was to protect and enforce the liberties and freedoms emerging from this insistence on a sort of individual philosophical and intellectual freedom to choose the norms of one’s life, provided that they did not infringe on the rule “do not do to others.” This view of the spirit of Israel law is thus inexorably tied to a fairly expansive notion of rights. Moreover, Cohn implicitly identified the judiciary as the central actor in the protection of rights as well as the spirit of Israel law: The Spirit of Israel law is reflected not only and not so much in legislative pronouncements of the constitutional nature, as rather in the naturalness, the Selbstverständlichkeit, with which the freedoms and liberties of the citizen are judicially recognized and enforced. (460; emphasis added)

While it has been noted elsewhere that Cohn did not advocate a highly political role for the HC J (Edelman 1994, 16, 18, and footnotes 32 and 40),

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the message from this article was clear to lawyers reading the Israel Law Review: some on the court now viewed the judiciary as the inherently proper forum for expressing and defending the very spirit of Israel law, which was itself, fundamentally, a spirit of rights. In a slight contrast to Cohn’s discussion of the spirit of the law, Shamgar’s piece (1974), written while he was Attorney General before he become a justice on the HC J, advocated the establishment of a material, written constitution in Israel, to be protected by the High Court of Justice, and which would establish rights in a systematic manner. He explained the tenuous nature of the development of Basic Laws as a sort of piecemeal constitution, particularly as there was not consensus at the time as to whether those laws held more force than any other law. Indeed, the status quo was that the Basic Laws did not constitute fundamental principles with power over other laws. This non-special status of the Basic Laws reflected a concern with legislative supremacy, a principle that had been challenged to some extent with the Bergman case, in which the HC J found that a change in a Basic Law clause that specified the need for a majority of the full plenum was invalid in the absence of that special majority. In Shamgar’s view, the Bergman case indicated a change in the status quo on legislative supremacy, and if anything, added to the need for an explicit explication of the role of the judiciary, the legislature, and so forth, in a written constitution (473–474). By contrast to those who argued that Basic Laws did not have special status, Shamgar asserted a view that the Basic Laws were, in fact, constitutional principles developed through a “gradual organic growth”: The constitutional rules of Israel are included in Basic Laws—so named and of a fundamental character—in ordinary laws including constitutional provisions, in abstract legal norms and in customs and practices. In other words the Israel constitution is best described as partly written and partly unwritten although there are as yet almost no legal norms of special preferential status from the legislative point of view. (469)

In response to critics of a fixed, written constitution, Shamgar advocated, at the least, an explicit turning of the Basic Laws into formal constitutional principles with force over all other laws. At the best, he advocated the basic principles enumerated by S. A. de Smith in the context of an unwritten constitution, guaranteeing a government accountable to something outside itself, free elections and wide franchise, freedom of association and access to the


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government, and basic civil liberties enforced by an independent judiciary. However, Shamgar argued, these principles should be enshrined in writing: The American historian Carl L. Becker wrote that the idea of a written constitution is little more than the adaptation of private contract to the organization of public relations. I am not certain whether this transplantation of the rules of private law to the sphere of public law is exact, but in any case no dispute would arise among lawyers that in most cases a written contract is more suitable to define and safeguard private rights than an oral contract. (475)

Shamgar would not become a justice on the HCJ until 1977. However, his views on the matter were public knowledge, particularly within the closeknit judicial community. When he became a justice, lawyers in the judicial community were already aware of his position on the constitution question. In 1977, the year Shamgar became a justice, Cohn published an article in a Jewish intellectual quarterly on faithful or loyal interpretation. He opened with a highly stylized attack on a legal scholar, Guido Tedeski, who had refuted the notion that interpretation faithful to the law was possible. Cohn challenged this argument in very strong terms, opening the door to a wholly new model of judicial “loyalty” to legislation and legislator. Not only was faithful interpretation possible, but it included faith to legislation as well as foundational principles of democracy. In short, critiques of interpretation such as Tedeski’s were too simple, ignoring broader issues of law outside the written statute. It is fairly simple and clear that the interpreter must be faithful to the legislator—and he [the legislator] is first and foremost in the demands of faithful interpretation. But that is not the only requirement upon the interpreter. . . . The interpreter [a judge] is responsible to be faithful to the law that is not legislated, and also to the principles and concepts at the foundations of democratic rule, as well as to integrity and justice and liberty. As is the way of the world, when loyalty is broken into conflicting needs, these loyalties collide with one another. It is the job [of the judge] to establish a ranking of priorities among them. (42)

Cohn furthermore raised the specter of legislation that is not just, or a legislature that passes unjust laws (he gave the term leges injustae as clarification). What should a judge do in that case? Rather than loyalty to legislation and to the legislator (by which is implied intent) being primary in

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and of itself, the very loyalty to legislation and legislative intent comes through the deeper principle of the rule of law. “One must say that the faith to the word of the legislation comes precisely from the principles of the rule of law” (43). Cohn’s thesis of unjust legislation put in question the ultimate authority of the Knesset. In a system glorifying legislative supremacy as the hallmark of democracy, Cohn’s analysis was quite revolutionary. He made the pill less bitter by going to lengths to assure the reader that he was not casting aspersions upon individual legislators. Indeed, both he and the reader likely knew many members of Knesset. He used the concept of the just legislator (juris et de jure praesumptio, again giving the Latin term) to clarify that his argument challenged unjust laws, not legislators. “But what is the verdict when the legislator is a democratic legislator who stands firm with justice, and yet his laws are unjust laws that are likely to nourish the strong?” (44). Thus, rather than loyalty to the legislator, the judge must be loyal to the spirit of the legislator, who is presumed to be just. “The loyalty called for to a ‘just legislator’ comes from the creation of a common blessed vision that the legislator and the judge share: that justice cannot be done unless it is done through cooperation between them” (48). Cohn thus put the Knesset on notice that at least some justices on the HC J would be watching Knesset legislation to ensure its justice under broader principles of law. The presumed just spirit of the legislator provided a neat tool to do so while, at least philosophically, upholding the doctrine of legislative supremacy. In the early 1980s, the legal scholarship coming out of the HCJ, through justice writings in Israeli law journals, public talks, and the like, began to take an even more explicitly activist tone, in terms of specific actions that justices on the HC J might be willing to take. Several articles written by Aharon Barak (justice from 1979 to the present) are exemplary and were extremely influential in the legal community at large. One clerk told me that “the time when I was in law school, which was in the late 1980s . . . here it was Barak, Barak, Barak, Barak. According to halikhat (the method or theory of) Barak this, and according to halikhat Barak that.”16 In two articles, 1982 and 1984, Barak set forth a defense and then a theory of judicial interpretation. He opened the 1982 article with the line: “All agree that the judge is an interpreter of the law.” What people did not agree on was the content and meaning of the law, nor rules and norms that guide interpretation (248). Barak emphasized language and intent as the two key principles behind legal interpretation. However, in both language and intent, he argued, law had multiple meanings. Law was the reflection of


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language that often could not be completely clear, nor applicable to all situations. Regarding intent, Frequently, the judge-interpreter finds that the intent of the legislation was to find some compromise between different interests without in so doing allowing the compromise itself to become law. When this is the case, the law will use language like “good faith” and “reasonable.” In this case, it is the judge’s job to establish the relevant compromise. It is incumbent upon him to leave behind the relevant interests and to establish a ranking of priorities. (254)

The judge must clarify and rank priorities through interpretation. The lack of clarity, in fact, was the primary reason that judges had to engage in interpretation. He argued, “The clarity of the norm does not require interpretation, rather, interpretation requires the clarity of the norm.” The number of unclear judicial principles made it impossible to avoid interpretation. This lack of clarity usually came as a result of some combination of three factors: words are inherently imprecise, many details are left out of any given piece of legislation, and legislators may use a phrase without a specific intent (stam, for the heck of it, without any inherent intent) (251). Barak advocated objectivity on the part of the judge, but not an objectivity that was completely devoid of personal or ideological content. Law, he argued, could not be treated as a physical, material substance, like blood cells or X-rays. Nor was the judge capable of being completely objective; “interpretation is not a science,” he argued, it had more to do with the humanities than the sciences (250). Nonetheless, it was incumbent on the judge to achieve the highest possible level of objectivity, even through it was well known that complete objectivity was impossible (255). The judge had to interpret the law in cases of unclear language or intent. He used the word, from the tradition of Jewish religious law, pshat, to define interpretation per se. Pshat means, literally, investigating the simple meaning of a text. Barak explained that judicial innovation would be an inherent part of interpretation in some cases, but that innovation was acceptable in as much as it emerged from an absolute loyalty to the law. Of course the power of the judge comes from the power of the law. He must be loyal to the law. He must give meaning to fill in the law. But in this loyalty is also innovation/creation. . . . Judicial innovation does not contradict the separation of powers, rather it moves as one with it. (255)

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He advocated the development of a systematic theory of interpretation, which he began to present in his 1984 article. Judicial innovation or judicial lawmaking has become a controversial subject in many places around the world. Israel is no exception. Barak defended interpretation in a context in which legal positivism had dominated for many years, even in decisions that reflected some rhetoric on rights. However, the last line of this article did not endear Barak to the critics of interpretation nor to those critical of judicial power more generally. He wrote, “If the law is the material, and the legislative intent is the spirit, then the judge breathes the life into the law” (255). In the context of a society in which most public school pupils learn at the very least a modicum of biblical history, this comment was taken by some as alluding to God’s breathing life into Adam, giving fodder to Barak’s critics as they emerged.7 In 1984, Barak sought to create an operational theory of Israel law in an article entitled “Interpretation and Judging: Foundations for a Theory of Israeli Interpretation.” Citing his 1982 article and standing by his thesis there, he discussed interpretation as a set of rules or norms that guide a judge in interpreting. Barak outlined five reasons that approaches to interpretation changed over the twentieth century: (1) the development of hermeneutics brought about a new appreciation for interpretation; (2) legal philosophy, which, according to Barak, centers on interpretation (Barak cites Ronald Dworkin for whom law is nothing but interpretation); (3) the legitimacy of the court, which assures that the judge has the right, within the bounds of the norms of interpretation, to create law outside the specifics of a given case; (4) constitutionalism, especially U.S. constitutionalism, has created norms increasingly important to people around the world; and (5) since World War II, many newly independent states have gone through their own constitutional processes (470–471). He then outlined four basic principles of interpretation: language, values, objectivity, and locality (476). He ultimately advocated a model of legal intent that is closely tied with all of the basic principles of interpretation. In fact, he goes so far as to state, in a footnote, “It is incumbent upon the judge to choose that linguistic option that will realize the legal intent. It does not matter which principle of interpretation is taken for this cause. . . . With the legal intent, the judge will be informed first and foremost by the words of the law. He will not bring into being an aim that is not an Archemedian point in the language of the law” (484, footnote 113). Changing topics and moving back one year, in 1983 Barak wrote a detailed explanation of judicial lawmaking, defending innovation and creation in the course of judging. He defined the “judicial function” as deciding


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in a conflict by contrast to the legislative function, which was to write laws. Lawmaking, he argued, in as much as it occurred in the court, was functional. Judging, on the other hand, was institutional. It was an inherent part of the judiciary as an institution. Judicial lawmaking was the creation of judicial norms and requirements by the judicial branch (26), but only when that innovation created a binding precedent (37). Barak’s argument regarding judicial lawmaking was closely tied to his argument on judicial interpretation. There are many situations in which a conflict has come to the court and through legal lacunae or a lack of clear norms the judge is forced to decide the case according to existing judicial principles and processes (33). He went so far as to make a controversial justification of judicial lawmaking based on the Basic Law: The Courts, which sets out judicial function in the state. One of the key guides for a judge in entering into a situation that will require judicial lawmaking is judicial policy. Judges must respect and follow judicial policy in their national context; that would keep them from straying outside proper judicial function (46). The judge must be aware of the institutional constraints on him. Judicial lawmaking was not a right of the judge but rather was something that occurred in the exercise of his normal function of judging. “The judge must consider in his deliberations not only the agreement of the society on the larger issue at hand of judicial lawmaking, but also the agreement of the public on the specific concrete solution” (65). What may be most important in the context of the religious law conflict is the link Barak created between legislative silence and the necessity to engage in judicial lawmaking even in the absence of social consensus. On the one hand, consensus was not always achievable; on such issues, even the justices found themselves with deep disagreements. Legislative silence in particular on a pressing issue that made its way to the courts might necessitate judicial intervention, even against the better wishes of the judiciary. “Frequently, judicial lawmaking of a number of specific types brings to attention the need for the wholesale reform of a certain issue area, and thus the very need for legislative intervention” (66). This message was very clear to the Knesset, as well as to social movements (and their lawyers) who might be making little headway with their issues in the legislative branch: act or we will. Barak insisted that judges maintain a concern with public opinion, but with deeper public will, not public fancy. In short, he made the preeminently reasonable conclusion: In our view [in his view], the judge must be both active and passive, active and an exerciser of restraint at the same time. He must be active in those cases in which the proper considerations of existing judicial policy point

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Judicial Power and National Politics to the particular suitability of the judicial branch for judicial lawmaking that will change the existing law. He should be passive in those cases in which the proper considerations of judicial policy point to a lack of suitability for the judicial branch to engage in judicial lawmaking that will change existing law. Thus, for example, when the regular legislator is not active in legislation and we are concerned with an issue upon which there is a national consensus, when addressing the issue is done through the establishment of norms of behavior based upon general principles that do not require the establishment of new institutions, activism and judicial activity are desirable. To the contrary, if we are concerned with an issue that is in sharp dispute based upon ideology [ideological differences], which requires the establishment of institutions, and the issue is on the agenda of the legislator, passivism and judicial restraint are desirable” (76; emphasis added).

The legislative branch was put on notice, as were those who might bring cases to court. In the absence of legislative action on an issue of high public concern, the judiciary, if given the opportunity, just might step into the void. In 1983, with renowned law professor Yigal Yadin, Haim Cohn established Hemdat, an umbrella organization of groups fighting for freedom of conscience and religious pluralism in Israel. Cohn, who was a justice throughout the 1960s, left the HC J in 1981. He became president of the Association for Civil Rights in Israel (ACRI). He continued to write and give talks that would be influential with his peers on the HCJ. He signaled, perhaps even more strongly since he was freer to speak as a retired justice, ideas existing in the court. Indeed, his colleagues and like-minded peers, Meir Shamgar and Aharon Barak, would each become president of the HCJ in turn: Shamgar in 1983 and Barak in 1995. In June 1985, ACRI held a conference on the question of freedom of conscience in Israel, with the goal of developing a systematic program for how ACRI should respond to the issue. Cohn, in typical form, began in the direction nearly opposite from that which he would eventually take. He conceded to Ruth Gavison’s point that in countries espousing the laurels of separation of religion and state, such as the United States, that separation was in fact a fiction. (The United States was, in fact, a Christian state, despite its protestations to the contrary.) In other countries, such as Great Britain, which had no separation, basic human rights were not infringed. The situation differed in the United States, by comparison to Israel, also because religious institutions actively fought to maintain a clear separation between religion and state. Cohn added,


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Although I see myself as free from any religion, I would be sad to see the separation of religion from the state—because I see [in that case] as in doubt the legitimate needs of the religion, including keeping of mitzvot of the Torah or the mitzvot of Islam. . . . I am prepared to fight not for rights alone but for—in principle—the rights of other citizens in whom I have no personal or direct interest. As such, it seems to me that [ACRI] should not adopt a position, and certainly no positive position, on the separation of religion from the state, except in as much as she must fight for civil rights within the existing system of no separation. (1986, 23)

Cohn’s opinion on what could and should be challenged in religious authority was foreshadowed in his comment about civil rights within the existing system of no separation. This time, he challenged Gavison’s concern with the Jewishness of the Jewish State: The Jewishness of the state is not expressed and is not reflected in preferring [or privileging] the Jewish religion over other religions, and certainly not from the keeping of Shabbat or the non-marketing of pigs: her Jewishness is expressed, from one side, in the Law of Return, by the birth of every Jew by virtue of the fact that he is here, and on the other side, by the structure of freedom, justice, integrity, and peace that comes from the heritage of Israel and the vision of the Prophets, as written in the Declaration of Independence and in the Basic Laws of the legal system [of the mishpat]. (25; emphasis added)

Cohn thus turned the concern with Jewishness to a focus on freedom and justice as emerging from the very Jewish tradition. That it was enshrined in the Declaration of Independence—an extralegal document that traditionally was seen as having no legal force—and the Basic Laws—which were also still without any official extra force over other laws—gave a significant signal that members of the HCJ viewed fundamental rights as just that, fundamental. On the issue of marriage and divorce, which Cohn addressed directly, he argued, on the one hand, that a secular person has no more right to choose a secular judge than a religious person has a right to choose a religious judge in any given issue. They must go to the judge who has jurisdictional power in that area. However, he explicitly stated that it was up to the Knesset to “fix” the laws of marriage and divorce, which needed fixing. Due to political opposition and the position of religious parties as makers or breakers of coalitions, the Knesset did not appear ready to do so. As far as litigation, Cohn said, “In

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my opinion, [ACRI] would do well not to waste her resources on a war that has no chance” (25). Cohn emphasized that activities in the area of freedom of conscience should not be ignored, but that such activities were complicated by deep divisions between members of ACRI. The year after he became president of the HCJ, Meir Shamgar wrote a rousing defense of civil rights as related to embedded constitutional principles in the Israeli legal system, despite the years of avoiding entrenching these constitutional principles in a written constitution. In Kol Ha’am (1953), Agranat had used the Declaration of Independence as an expression of the “spirit of the people,” and thus binding on the state. For Shamgar, this set a binding principle that made a return to the debates over writing a constitution moot: “It will be enough that there exists judicial-constitutional force to parts of the Declaration of Independence, which gave expression to fundamental principles that reflect the existing judicial spirit in Israel” (1986, 8). It should be noted that this marked a change from his 1974 article, in which he argued strongly in favor of a written constitution as doing a better job of protecting rights than an unwritten one. Shamgar had come to view Kol Ha’am and the Declaration of Independence as documentation enough in support of the spirit of justice and rights that would otherwise be entrenched in a constitution. Shamgar went as far as stating that every democratic system must ensure the strengthening of basic freedoms and that, “Democracy means not only the rule of the spirit [of the law—rights, justice, etc.] but also the binding of the power of that spirit to establish the proper protection of the rights of the minority” (1986, 12). This signal, written the year that Leah Shakdiel brought her case to the HC J,8 was a powerful one, indeed. Social movements fighting on issues that involved basic freedoms or minority rights should have a good change in the HC J. If Shakdiel’s sitting on a religious council could be construed as a matter of rights, or better yet the infringement of some sort of minority right, her petition might have a chance in the HCJ. By 1987, as the Shakdiel case was being heard in the HCJ, Barak published an article that went even further than his previous work on interpretation and judicial lawmaking in signaling an openness to rights issues. In this article (1987a), published in a semi-academic historical quarterly, Barak compared the U.S. constitutional system with the Israeli legal system. “There is an enormous distance,” he wrote, “between America and Israel. It is more than an ocean but [a different] history, culture, language, national experience, population—all of these factors distinguish between us.” He continued,


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Looking closer to the area of law points to a great difference between the two legal systems. The U.S. system is federal. In Israel it is unitary. The U.S. has a presidential system, Israel a parliamentary one. The U.S. has a fixed, written constitution and judicial review of the constitutionality of the law. Israel does not have a fixed written constitution, and with the exception of a few areas, it does not have judicial review on the constitutionality of the law. (14)

He further insisted that one must take from the U.S. constitutional tradition with much caution. However, having established his sensitivity to the differences apparent between the United States and Israel, Barak proceeded to outline a situation in which, on fundamental questions of rights and liberties, Israel shares values with the United States and thus can benefit from its legal experience. Both countries are democracies that fundamentally value equality and justice. “The basic principles of freedom, equality, and justice envelop the [Israeli] national language and give it meaning according to the needs of the changing society” (14). Thus, Israel would do well to learn from U.S. constitutionalism, albeit in a system that asserts such rights through different mechanisms. Barak addressed the issue of separation of powers, often used to criticize activist courts, including the Israel HC J. He equated separation of powers with checks and balances, emphasizing that “In Israel, a strict separation such as that [in the United States] does not exist. Our Knesset—as well as the legislator—is not subordinate to the ‘rules of the game.’ Rather, the Knesset makes those rules.” However, where a rule has not been explicitly changed, the appropriate legal legacy takes precedence (16). In the mixed legal institutional heritage of the state of Israel—which originally drew its legal system explicitly from British common law, Ottoman law, and Jewish halakhic law, but quickly expanded that to include citation of case law from around Europe, the United States, Canada, sometimes South Africa and Australia—that gives some space for judiciary to act in the absence of Knesset legislation. This article, published in a slightly more popular forum than a law journal, sent the signal even further afield that the HCJ was open to hearing cases in which rights, justice, or freedom were issues. Menachem Elon ( justice from 1979 to 1994) projected a voice that, on the one hand, was quite different from those of the rights-oriented justices already discussed. On the other hand, he was also rights-oriented, although it came as something of a surprise to many when that fact became apparent in the Shakdiel case, with Elon writing the strong unanimous decision

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in favor of women’s rights. As one of the prolific writers on the HCJ, Elon made a name for himself explaining the depth and breadth of the Jewish legal tradition and its place in the state of Israel. In articles throughout the 1970s and 1980s, Elon explained jurisdiction and power in Jewish communities (1976), the relationship between the community and the individual (1978), the Foundations of Law Act (1987b), lacunae in law (1987b), the basis of the Israeli legal system in Jewish law (1987a), to name a few. He became the authoritative source on Jewish law as applicable to the modern state of Israel. In two articles, written in 1976 and 1978, he placed Israel in the historical context of Jewish communities around the world that maintained authority over themselves. The basis of authority has changed from the time of the Diaspora or the time of Kings to public rule of itself through elections. However, then as now, the Torah provided the foundation of the system of law, and certain halakhic principles were binding on the public (on anyone who had heard them) (1976, 7 and 10). He argued that, throughout Jewish history, a paradigmatic principle remained constant in both public and private law: an individual cannot be forced, rather, all rule depends upon consent (1978, 213). The question of different levels or areas of consent across gender lines was not addressed, however, the overriding principle of consent, he argued, was in many ways the key to the heritage of Jewish authority. Martin Shapiro has noted the centrality of this same concept in Roman law. The public consents to be ruled but cannot ignore the rights of the individual. The individual, on the other hand, has needs that must be respected but is also subject to the rules and laws of the whole. In a sense, the community acts as a court: “the good people of the community” are to address the needs of the whole as well as the needs of the individual, but the community is “not to hear those who have the status of lawbreakers (or at least certain kinds).” Thus, the individual does not have complete autonomy from society, but neither does society have complete autonomy from the individual (1981, 220–221). In 1988, Elon brought together his arguments about Jewish law, and Jewish law as it relates to modern Israel, in his magnum opus, a fourvolume work entitled Jewish Law: History, Sources, Principles. The English translation was published in 1994. In volume 4, he addresses Jewish law in the state of Israel reminding the reader, time and again, that love for human beings and for equality is part of the Jewish tradition and thus the Jewish foundations of the state. He cited some of the most lauded rabbinical scholars to make the point, such as Rabbi Akiva and Ben Azzai (see, for example, p., 1851). He traced Jewish sources supporting equality, minority


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rights, and a universal natural law under the Jewish sages (pp. 1851–1855). He discussed equality in halakhah, in inheritance, and in communal enactments. However, the only area in which he discussed equality between women and men is in relation to inheritance, both historical and in Israel (pp. 1683–1688 on succession law). His positions on Israeli case law are discussed further in chapter 6. However, for the purposes of the signals he transmitted prior to the onset of the religious law conflict, the most important point is his emphasis on equality and justice as emerging from the Jewish heritage. At the time, some secular scholars seem to have read him as an apologist for the Jewish heritage. But in his case, the emphasis on equality and justice was quite real, as would be seen in Shakdiel and other cases to come. While it has been reported that he was not, for example, entirely sympathetic to the case of the Women of the Wall, he did decide that they had the right in principle, under Jewish law, to pray at the Western Wall of the Temple Mount.9 From his writings, and certainly after Shakdiel, it became apparent that Elon was, indeed, a champion of equality—within certain limits. But those limits did not keep him from deciding in favor of women’s equality in two of the most controversial landmark cases against religious authorities.

Conclusion The works discussed in this chapter demonstrate a new mission for the HCJ and the judiciary in general, one that contrasts to the mission seen by the majority of justices in the 1950s. This new mission included the creation of a strong judiciary based on an expansive notion of the rule of law that could make decisions like Shalit and have them put into practice. Barak, in a vein similar to that of Cohn after his retirement, even went so far as to define legislative intent in terms of a larger set of principles, which he called basic principles of justice: “Morality, equality, freedom of expression, personal protection, and the rule of law” (1984, 486; emphasis added). Others have noted that, by the 1990s, an extravagant notion of the rule of law was advocated by many within the judicial community; in fact, that sense of mission of the judiciary created cohesion within the judicial community even across highly charged political lines (see, for example, Dotan 1998). In the 1970s and 1980s, these justices gave increasingly clear signals that they sought to transform the court into one that would decide constitutional-type issues in the absence of a constitution. However, until cases were brought before the court, the promise of these signals would remain only latent.

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Social movement cause lawyers, themselves members of the judicial community, read and heard these signals in legal journals, in case law, and at conferences. In the next chapter, we will see that at least some cause lawyers, together with the social movements they represented, took advantage of this new opportunity and took action. They brought cases to the HCJ initiating an unintended relationship of mutual intersecting interests that would become a set of implicit alliances. Social movements gave the HC J the opportunity to decide cases, cases that often culminated in the outcome desired by the social movement. This process was critical to the onset of the religious law conflict, determining both its timing and manner. A key argument was presented to the HCJ in the women’s equality argument. In the late 1980s, for the first time women’s equality was included as a part of the concept of equality long championed by the HCJ and by the justices whose works were discussed in this chapter. That argument became a pivotal tool used by the HC J in subsequent cases to challenge religious authorities across a range of matters in which unequal treatment of men and women were at issue.

6 Social Movements and Changing Language of the Court Implicit Alliances and Explicit Coalitions

There arose a situation in which lawyers knew that in [HCJ] deliberations it was worth their while to argue according to the rhetoric of human rights and Basic Laws. And then the HCJ answered them with that rhetoric and created an entire discourse on human rights. —CB, Anonymous High Court Clerk

In the 1980s, three social movements began to bring cases to the Israel High Court of Justice challenging religious authorities in areas that religious authorities had controlled either through the status quo agreements (discussed in chapter 3), legal statute (as in the law defining Jewishness after Shalit), or through accepted practice. Cases challenging religious authorities had been brought to the HC J before, including cases brought by the Movement for Progressive Judaism (MPJ) in 1962.1 However, the mid- and late-1980s saw a change in the number of cases, type of argument made, and in a coalition— both formal and informal—between the three social movements. The women’s movement (represented by the Israel Women’s Network [IWN] and Naamat), the civil rights movement (represented in the main by the Association for Civil Rights in Israel [ACRI]), and the religious pluralism movement (represented by the Movement for Progressive Judaism [MPJ] and the Masorti Movement in Israel) worked together, bringing some cases together, consulting informally and privately, and strategizing on specific legal questions as well as overall approach to what would become the religious law conflict.

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Significantly, one particular argument was successful in the early years of the religious law conflict, and throughout the 1990s. That argument, which was used by women’s movement and ACRI attorneys, led to high rates of success regardless of which movement used it. The key to success: the women’s equality argument. Gender is of critical importance in the religious law debates. As argued in chapter 3, the regulation of gender roles (what women and men can appropriately do) has been inextricably tied to Haredi and Hardi-leumi concerns with the boundaries of the community. Those group boundaries are protected and reproduced, both physically and sociologically, through religious marriage and divorce law. Religious marriage and divorce laws define who may marry whom, who may reproduce with whom, and, through those regulations, determine who is a Jew and who is not. While other issues, such as conversion, have also been important in the religious law debates, it was the principle of women’s equality that was successful in the early years of the conflict and, indeed, throughout the 1990s. Conversion and the broad “constitutional” principles of freedom of and freedom from religion were far less successful, with only two HC J decisions against religious authorities, and only for conversions conducted abroad.2 By spring 2000, the HCJ made decisions in favor of the religious pluralism movement on conversion. However, for the period of this study, 1985–1995, it was the women’s equality argument that was the most successful. Indeed, I argue that it was that legal argument that paved the way for the HCJ to begin and then sustain its challenge of religious authorities in the religious law conflict. In the pages that follow, I outline the change in the type and number of cases brought to the HCJ challenging religious authorities, as well as the coalition of social movements that brought these challenges, focusing most attention on the women’s movement. I argue that the HC J adopted the language raised by the women’s movement and then the Association for Civil Rights in Israel regarding women’s equality. In fact, that change in language is an important indicator of an implicit alliance that developed between the HC J and these social movements on issues of religious authority. As discussed in chapter 1, this alliance was not strategic in the classic sense, as the women’s movement was decidedly not a popular movement that would garner the HC J increased societal support. The success of the women’s equality argument was directly related to its seamless combination with the doctrine of administrative legality in Israel, which is the common denominator in HC J challenges of religious authorities. This particular combination was developed through debate within and knowledge of prevailing norms within the judicial community.

Social Movements and Changing Language of the Court

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The Cases before 1985 Before the 1980s, cases involving religious authority had been heard and decided in the HC J. In 1951, Kutik established that paternity would be decided in civil court, at least in Jewish cases.3 In 1962, the MPJ argued before the HCJ that the Reform Movement should be able to use public religious facilities.4 The “movement” was successful in that case. However, while the Reform Movement had been in Israel since the 1930s, it did not develop into a wider social movement or a major political player until the late 1980s and early 1990s.5 Furthermore, this case did not provide a fundamental challenge to the right of religious authorities to decide more critical matters, such as marriage and divorce.6 Halkai v. Minister of the Interior (1963) established the right to civil marriage only for those people barred from religious marriage by religious law, such as specific classes of Jews unable to marry other Jews in a religious service.7 Anyone who wanted to elect to marry by civil means could not (and still cannot) do so. And, as discussed in previous chapters, in Shalit (1969) the HC J stated unabashedly that the religious law for deciding Jewish identity had no place in the civil laws of the land.8 This last case was the first to present a fundamental challenge to religious authority on a matter so critical to religious authorities that they could not negotiate, they could not compromise. Any compromise on defining “who is a Jew” would constitute a total loss. It was an issue in which the battle lines between religious and nonreligious constituted a zero-sum game. For, as discussed in chapter 3, the religious law conflict, and religious officials’ reason for participation in the state, revolves around concern for the production, maintenance, and reproduction of the kind of community they see as God’s Jewish People—the production, maintenance, and reproduction of the boundaries of the community. “Who is a Jew” is, by definition, defining who is inside and who is outside the community. Other important cases were brought to the HCJ in the period before the 1980s. The 1963 “Brother Daniel” (born Oswald Rufeisen) case (Rufeisen v. The Minister of the Interior) is perhaps the most famous.9 In that case, Brother Daniel was a monk who had converted from Judaism to Christianity during the Holocaust, after a series of heroic acts, including saving almost three hundred Jews from the ghetto of Mir, Poland (Twersky 1998). In the late 1950s, he migrated to Israel. He sought to become an Israeli citizen under the protection of the Law of Return (through which he would gain significant financial and social benefits from the state as well as an expedited citizenship process). He was denied by the Ministry of the Interior and, in 1962, Rufeisen petitioned the HCJ. In his petition, he stated

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that his fate was with the Jewish People. Indeed, in a move that appears strange in the face of accepted halakhic norms, the rabbinate supported his petition, stating that his fate was indeed with the Jewish People regardless of any conversion conducted during the Holocaust. Halakhically, a person is a Jew who was born to a Jewish woman, converted legally to Judaism, and has not converted to another religion.10 Interestingly, in Rufeisen (Elon 1994, 2428), the HCJ accepted the Rabbinate’s definition of Jewishness but denied the petition on the basis of a “commonsense” definition of Jewishness, whereby one cannot be both Jewish and Christian. Rufeisen is a difficult case to define as a challenge to rabbinical authorities. Although the Rabbinate had supported Rufeisen’s petition, the more accepted halakhic norm did not define converts from Judaism as Jews. This point was raised by Justice Menachem Elon in the Beresford v. Minister of the Interior (1989) case, a decision regarding the right of “messianic Jews” to immigrate to Israel under the law of return. The HCJ noted its mistake in Rufeisen, confirming that the halakhic norm was actually that mentioned above.11 The HCJ changed its understanding of the halakhic definition of Jewishness in Beresford. Menachem Elon argued that the halakhic test revealed that one cannot be a Jew if one has converted to another religion; Justice Aharon Barak argued using a secular test and reached the same conclusion as Elon. The third justice, Avraham Halima, concurred. Thus, while it was not clear whether the religious or the secular test was to be held as the precedent test in future cases, it was clear that converts from Judaism would not be considered Jewish for the Law of Return. Although Rufeisen is frequently cited as an important case on religion, because the Rufeisen decision supported the rabbinical establishment view and Beresford supported the most accepted halakhic definition of Jewishness, I do not include them as HCJ “challenges” to rabbinical authorities. Another case that is sometimes seen not only as an important case relating to religion, but also as a challenge to religious authorities, is the case of Shoshana Miller. Miller converted through a Reform conversion process in the Jewish Reform Movement in the United States. She moved to Israel in October 1985, at which point she applied for citizenship under the Law of Return. The Ministry of the Interior was skeptical of her conversion and proposed registering her either as “Christian” or as “Jewish” adding the word “Convert,” in parentheses afterward. Miller did not accept the Ministry of the Interior’s proposal and turned to the MPJ, which argued her petition before the HCJ. The HCJ ultimately decided that the ministry did not have any legal right under the statutes, which were quite explicit on who could be


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registered and how, to add anything, including the word “Convert.” Justice Elon concurred with then president of the HCJ Meir Shamgar’s decision; however, Elon’s reasoning was based on religious grounds: “When a nonJew joins the Jewish people, he becomes a member of the Jewish people in all respects—entitled to all rights and subject to all obligations of such membership. . . . One may not remind a convert of his status and of his prior conduct, and one may not treat him disrespectfully” (the last line, Elon cites from several Talmudic sources).12 This case included aspects of challenge to religious authorities, in that conversions from abroad are implicitly accepted for the purposes of the Law of Return. However, that question would not be addressed directly until later cases. Thus, the challenge to rabbinical authorities was not direct. Nor did this decision have a bearing on whether such converts could marry in Israel (they could not). Rather, the challenge in this case is of “commonsense” definitions of Jewishness, which at the time, particularly among the more secular, included some skepticism of the process of conversion in general. Elon made clear in his opinion that such skepticism goes against Jewish law. Thus, the halakhic principle, whereby one may not treat a convert disrespectfully, was supported. While this case was a milestone for the Movement for Progressive Judaism, I place it before the onset of the religious law conflict. It may have been a harbinger of things to come, but the real challenge of the HCJ would wait until Shakdiel and the “Poraz” case in 1988, and Shas in 1989. Then, the court’s challenge would be direct, confrontational, and, ultimately, explosive.

Implicit and Explicit Coalitions: The Legal Community in Social Movements The women’s movement, the civil rights movement, and the religious pluralism movement all brought important cases to the HC J in the mid- to late-1980s. In at least some those cases, the social movement attorneys were in contact with one another, either formally or informally. In one case (Nevo, discussed below), the women’s movement and ACRI brought the case together. In others, the attorneys consulted with on another behind the scenes. In all cases, an argument relating to equality under state administration was made. In six of the seven cases that I address after the onset of the conflict, the argument was made that women’s equality was an inherent part of the notion of equality that the HCJ had long championed. It was not important which movement made the argument. When the women’s equality

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argument was used with regard to administrative equality, the argument was successful.13 When any argument was made, including the women’s equality argument, in conjunction with an appeal for freedom and/or freedom from religion (as a constitutional principle), the argument was unsuccessful. That the movements were able to make an argument that could be supported in terms of the principle of administrative legality is critical. All of the social movement organizations mentioned in this study receive a significant portion of their regular funding through the New Israel Fund (NIF). The NIF lists as its reason for being the promotion of the principles of freedom, justice, peace, and equality enshrined in the Israel Declaration of Independence. The opening page of its website states: “Since 1979, the New Israel Fund has been at the forefront of efforts to strengthen democracy and social justice in Israel.”14 As an introduction to its activities, the NIF explains: When the State of Israel was founded in 1948, it committed itself to the values of freedom, justice, equality, and peace as envisaged by the prophets of Israel. In struggling to maintain those values throughout decades of military conflict and massive immigration, Israel has faced unique and complex challenges. From the outset, it has had to balance the needs of diverse religious, ethnic, and political groups—Jewish and Arab, Ashkenazi and Mizrahi, religious and secular—and is still evolving its own norms for addressing potentially divisive issues. Against this backdrop, the New Israel Fund works to strengthen Israeli democracy and promote social justice. Established in 1979, the Fund is a non-partisan philanthropic partnership of North Americans, Israelis, and Europeans. It supports a network of non-government organizations in Israel that safeguard civil and human rights, promote Jewish-Arab equality and coexistence, advance the status of women, foster tolerance and pluralism, bridge social and economic gaps, pursue environmental justice, and encourage government accountability. The Fund provides grants and technical assistance to Israeli public-interest groups, and also conducts public education in North America, Israel, and Great Britain about the challenges to Israeli democracy.15

In 1998, the NIF supported thirty-five women’s organizations, including the IWN and Naamat. It supported twenty-one rights organizations (including ACRI) and twenty-nine religious pluralism organizations (including the Israel Religious Action Center [IRAC], Hemdat [discussed below], and the Masorti Conservative Movement in Israel). All NIF funding recipients are encouraged, indeed, to be a “network” in order to stretch scarce resources, human and monetary.


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The second wave of the Israeli women’s movement as well as several civil rights organizations were established in the early 1970s. The women’s movement first began before the establishment of the state (Bernstein 1987, 1991). It was part of the first wave of twentieth-century women’s movements in the world (Yishai 1997). Throughout the 1950s and 1960s, the Israeli women’s movement was dominated by “establishment associations,” meaning organizations coming out of the state apparatus (including national parties). The best-known associations included Naamat (part of the national union, the Histadrut) and the Women’s International Zionist Organization (WIZO). Both of these organizations were asked to favor the national cause over that of gender equality. Until the 1980s, both did so consistently. Although there was a short-lived women’s party in 1949 that did, in fact, push gender equality, the party was extremely small and short-lived. Na’amat and WIZO, in contrast, emphasized women’s traditional roles in the family rather than asserting revolutionary demands for legal, political, or social equality along gender lines (Yishai 1997, 67–69). When the state was established, there were eleven women Members of the Knesset (MK) and a Women’s Party that pushed unabashedly for gender equality. The Women’s Party lasted only from 1949 to 1951. The number of women MKs remained the same until 1959, when it dropped to nine. Israel did not see eleven women MKs again until 1992. One can say that after 1951, any real drive or influence of the early women’s movement in Israel had lost its steam. The second wave began in 1970, when several professors at Haifa University began their first meetings to discuss women’s status in Israel. Their small group soon mushroomed into numerous groups around the country, connected in an informal network working both independently and in concert. By the late 1980s, the IWN became an umbrella organization connecting women’s organizations around the country. By 1997, that meant more than 33 women’s organizations around the country, as well as 127 additional (mostly grassroots) organizations in peripheral contact.16 In the early 1970s, the movement began with an ideological commitment to improving women’s status in Israel, politically, legally, economically, and socially. The movement directed its attention to state and local political activities immediately. Although there was some discussion of starting a new women’s party, and indeed there have been attempts to do so over the years, to date these have not been successful or long-lived parties. In these early years, the young, very small women’s movement focused on issues of domestic violence, working in the Knesset for legislative reform, and lobbying the Haifa police department to enforce the laws that did exist. By

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1977, the Haifa group opened the first battered women’s shelter in Israel, with municipal funding from the city. By 1983, women’s shelters had been established in Herzliya, Jerusalem, and Ashdod (IWN archives). According to women in different organizations across the women’s movement, these efforts for change reflected a commitment to the establishment of a certain kind of society, one based on individual rights, equality under all laws, autonomy in the social sphere (meaning primarily choosing social roles), and respect for different ways of life. However, according to Frances Raday, the lawyer who initiated some of the earliest HC J cases relating to gender equality, by the early 1980s it was clear that the movement had “come up against a wall” in one area in particular: women’s status in any area under the jurisdiction of religious law and courts in Israel.18 The IWN Legal Center, established and directed by Frances Raday, developed a policy linking legislative lobbying with litigation and began, with Raday, its first HC J cases. By the mid-1980s, under the leadership mainly of lawyers, a new focus on the courts developed. Many of these lawyers, including Raday, had received their training in England or the United States during the civil rights revolutions in those countries. The courts were seen as independent of political trends, principle-directed institutions that should, in their support of natural rights, be compelled to support the movement’s efforts. While the IWN and Na’amat, an older state-sponsored women’s organization, have been directly responsible for most women’s movement litigation, this fact has reflected a division of labor rather than work that is not “movement” related. In a random survey of two hundred women’s movement volunteers around the country conducted from May through July 2000, 98 percent reported being aware of the status of women under Israel’s marriage and divorce laws, as well as high relevance of movement work violence against women for them personally. Of those born in the Soviet Union, who are particularly affected by these laws in Israel, 100 percent reported being aware. The highest percentages reporting not being aware of women’s status in these laws were those born in the United States (8 percent) and those born in Africa (10 percent). When asked, “Have you participated in activities connected with women’s status in personal status law?” 48 percent of all respondents answered yes.17 While the survey indicated that volunteers were not necessarily aware of which organization brought cases to the HCJ, volunteers were highly aware of and active on the issue. In fact, in a startling finding, a surprisingly high number of those who were willing to answer reported that they joined a women’s organization as the result of a personal experience that involved either (broken down by country of birth) divorce (Israel 6 percent; physical violence (Israel 2 percent);


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sexual violence (Israel 10 percent; western Europe 14 percent); eastern Europe 7 percent; United States 8 percent; USSR 33 percent; Africa 20 percent; or sexual harassment (Israel 2 percent; western Europe 5 percent; United States 8 percent). No respondents from South America answered this question. It is noteworthy that the only group reporting joining a women’s organization as the result of a divorce experience were women born in Israel. It is also startling how high the reports of physical violence, sexual violence, and sexual harassment were given the sensitivity of these issues and the fact that respondents were reporting to a stranger on the telephone. The number responding to the question was high (80 percent of the total sample). Figure 6.1 shows that, of all the personal experiences available to the respondents, those answering focused primarily on sexual violence and sexual harassment (for the full results of this survey, see Woods 2004). The Association for Civil Rights in Israel was established in 1972. Its focus was then and continues to be education, legislative lobbying, and litigation. By the 1990s, the civil rights movement in Israel included more than twenty-one discreet organizations, many of which have been connected through the NIF. The IWN, ACRI, and IRAC in particular have been in contact sometimes through cases brought together (as in the cases of Nevo, brought by the IWN and ACRI, or Poraz, brought by Naamat and ACRI), and other times privately consulting. Contact between these organizations has occurred at many levels, including through membership in related organizations. Hemdat, for example, is a coalition of groups advocating religious pluralism. It was established in 1983 by none other than Justice Haim Cohn, together with law professor Yigal Yadin, as mentioned in chapter 5. Included among its organizational members are ACRI, the MPJ, and the Masorti Movement. On the other hand, the leading attorney for ACRI and the MPJ has for many years been Rabbi Uri Regev. Rabbi Regev is on the board of ACRI. Frances Raday, the lead attorney in the Nevo and the Hoffman (Women of the Wall) cases, founded the IWN Legal Center in 1986, has been a member of ACRI, and the chair of the law department at Hebrew University in Jerusalem. Several of her colleagues in that department and in other departments are also members of ACRI, including the former President of ACRI, Professor Eyal Benvenisti, professor of law. And Hebrew University law professor Ruth Gavison, whose critiques of the HCJ were addressed in chapter 4, was President of ACRI for many years. Other fellow law faculty are affiliated to varying extents with the IWN. The IWN’s lead attorney for religious law cases in 1997, Esther Sivan, is a member of ACRI, IWN, and the International Coalition for Agunah Rights (ICAR), housed in part in the IWN offices.19

Figure 6.1. Women’s Movement Mobilization Question: Did you join the women’s movement as a result of a personal experience? If so, please specify the kind of experience. (Options: Divorce, Physical Violence, Sexual Violence, Sexual Harassment, Education or University Courses, “Coming Out” [as a lesbian]).


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The formal and informal coalitions between these like-minded organizations developed through organic contacts between individuals who, themselves part of the intellectual community of the justices (see chapter 4), frequently have ties going back to law school or earlier. Most of these attorneys went to the law school at the Hebrew University of Jerusalem. They go to the same conferences. They belong to the same organizations. At the very least, there is a large amount of crossover between individual memberships in the organizations. In the case of Nevo, the coalition was formal. The Nevo case was brought by IWN attorney Frances Raday and ACRI attorney Avigdor Feldman. This case was critical in continuing to present the women’s equality argument, which Raday had presented to labor courts in previous harassment cases, and in Shakdiel to the highest court in the land. Nevo, although not decided until after Shakdiel, was first heard in the HCJ in 1985 (before Shakdiel). It was in Nevo that the women’s equality argument was first presented to the HCJ in full form. In “Poraz,” discussed in the next section, Naamat and ACRI worked together formally. Also at the formal level, the IWN, MPJ, ICAR, and ACRI, all worked together throughout the early 1990s to develop a new Family Court, which was established in 1995 to allow the financial parts of a divorce case to be heard in secular court.20 They also all worked on what has become known as the Sanctions Law (also 1995), through which a rabbinical court may apply economic and other sanctions against a husband who refuses to grant a divorce paper (the get) to his wife when the rabbinical court finds that she has cause.21 According to IWN representatives, the IWN and ACRI consult with each other on lobbying efforts: “In many areas, we work in coalition with other organizations. There is, for example, the law of freedom of information, the law of the right to membership in organizations [freedom of association], housing. On large issues, like Knesset elections, municipal elections, we make an effort to organize it so that all the organizations take a piece. That is organized by the political coordinator.”22 “All the organizations” refers to all related rights organizations, depending on the issue. Any NIF-funded organization can get a complete list of NIF-funded organizations. Indeed, as I mentioned, these organizations are encouraged to work together. The IWN and ACRI work together, formally and informally, to a great extent. The MPJ is in close contact with ACRI through its lead attorney, Rabbi Uri Regev. The MPJ is also in contact with the IWN and other women’s advocacy organizations, including Naamat. These organizations are in contact to the extent that there is a division of labor on issues and activities between organizations. The MPJ, for example,

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actively avoids those issues in which it is believed that the MPJ might hurt women’s causes. For instance, in the area of representing women in rabbinical court proceedings, Regev noted: Naamat deals with representation. The reason why we don’t deal with it is that we feel that us taking on representation of women in the rabbinical courts, which is where it takes place, may not serve them [the women] well.23

The establishment of a division of labor indicates a high level of interaction between these organizations beyond the formal interactions available through court records.

The Arguments Two types of arguments were made to the HCJ in the late 1980s that were ultimately successful in challenging religious authorities. The first was the women’s equality argument. That argument was presented first in labor cases, then in the case of religion. In both labor and religion cases, the argument was made in terms of administrative law. The second type of argument made appealed directly to administrative law and the constraints put on the Ministry of the Interior by existing statutes relating to the Law of Return. Former HCJ Justice Itzhak Zamir (1996) has defined “administrative legality” as follows: The main principle governing the exercise of administrative power is that of administrative legality. This principle, well anchored in the case law, prescribes that an administrative authority possesses only such power as has been vested in it by law. Law in this connection means enacted law, as distinct from judge-made law. . . . Furthermore, according to this principle of administrative legality, the power exercised must fall within the limits prescribed for that power by legislation, primary or subordinate; otherwise, the exercise of power is unlawful and may be invalidated. (19)

In Israel, administrative legality is related to procedure as well as natural law. Administrative legality, as developed through the Israeli judiciary’s interpretation of English common law, originally related to statute alone, as Zamir mentions. However, in Israel, it has expanded to include precedent as well, which may appeal to wider principles found outside of statue (i.e., natural law). According to Zamir,


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Israel does not have a comprehensive law of administrative procedure. Administrative authorities are nonetheless bound to follow various procedural rules. Procedural rules may be specific, that is, laid down by the law enabling a specific authority to exercise a specific power. . . . Procedural rules may also be general, that is, applicable to administrative authorities in general. Such rules are partly laid down by enacted law, notably the Interpretation Law of 1981 and the Administrative Procedure Amendment (Decisions and Statement of Reasons) Law of 1958 and 1969, and partly by case law. (27) The administrative authority is bound to observe two rules of natural justice that have been developed by case law: the rule against bias and the rule concerning the right to a hearing. Originally, these rules applied only to judicial (or quasi-judicial) acts. The High Court has, however, extended their application, and they now also apply to purely administrative acts.28

Bias and inequality under the law had long been held illegal in the HCJ when social movements began to bring cases challenging religious authorities (and winning) in the 1980s. Those cases that showed that administrative bodies had acted outside the bounds of the law (as in Miller, above, and Shas, below) passed the HC J’s test easily. The major change that occurred in legal thinking on the court came with Nevo and Shakdiel, in which the HCJ took, for the first time, women’s equality to be part of the wider principle of equality long held sacred by the HCJ. Indeed, Shakdiel was the first case in which the HC J itself directly challenged religious authority over areas previously held, as a matter of practice (as opposed to law), to be under the jurisdiction of religious authorities. The women’s equality argument proved to be fertile ground for both social movements seeking to curtail religious authority and the HC J in seeking the same. In the hands of the HCJ, the women’s equality argument was a highly effective legal tool, allowing the HCJ to challenge rabbinical authorities based on administrative grounds without entering into the more complicated and volatile area of freedom of religion, per se. In the next section, I focus on the sequence of the women’s equality argument, first argued in Nevo, then in Shakdiel, “Poraz,” Bavli, Hoffman (the Women of the Wall case), and Leah Lev v. The Municipal Rabbinical Court of Tel Aviv-Yoffo. After addressing these cases, I briefly summarize the Shas case, which was decided a year after Shakdiel and “Poraz.” It was an important success for the Israel Movement for Progressive Judaism that involved an administrative law argument that proved a devastating blow to the religious establishment in Israel. As an administrative argument, however, it was not successful in changing the status quo on the constitutional principle of freedom of (and from) religion.

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Sequence of Women’s Equality Argument The earliest cases involved women and labor and began not in the HCJ but in the labor courts. The first case of women arguing for equal opportunity in employment across gender lines was the 1973 case of Edna Hazin et al. v. El Al Israel Airlines Inc.24 The case was initially heard in the Regional Labor Court, then appealed to the National Labor Court. The petitioners argued that El-Al should not be able to maintain its policy of keeping women from the highest rank of the cabin crew, the “chief steward.” This exclusionary promotion policy was part of a collective agreement between El-Al and its employees. Despite the existence of an explicit agreement between employer and employees, both the Regional Labor Court and the National Labor Court found that the agreement was discriminatory “and that the court had the power to declare such discrimination void as contrary to public policy” (Yishai 1997, 161; emphasis added). The labor courts thus positioned themselves as the protectors of principles made clear in public policy, despite the prior existence of a labor agreement. As will become even more apparent in the case of Naomi Nevo, however, there had been no clear public policy on the issue of gender equality in the workplace other than protection of women from work when it interfered with their family and reproductive duties (Raday 1995a; see also Yuval-Davis 1989). That the labor courts situated themselves as following the dictates of public policy when there was no clear public policy would suggest that the courts (1) read public policy according to judicial principles that did not necessarily grow out of those policies themselves, and (2) the courts sought to establish their power to assert these principles. In the end, however, although the plaintiffs were ultimately successful in the Regional Labor Court and the National Labor Court, the case did not prove to be an effective precedent (Yishai 1997, 160–161). The groundbreaking case would not be decided for another fifteen years, over the issue of equal retirement age. In the interim, lawyer and scholar Frances Raday argued the first sexual harassment case in the court in 1978. The case was settled out of court, with punitive damages for the woman, and the defending institution ultimately closed. There was no legal precedent in the case because it was settled out of court.25 However, the case and settlement foreshadowed more cases to come on women’s rights. The legal battle over equal retirement age began in 1983, when two medical professors sought an injunction against Hadassah.26 Hadassah and its workers had a collective agreement whereby men retired at age sixtyfive and women at age sixty. The women’s attorney, Frances Raday, de-


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cided to follow a strategy of bringing the case to the public for judgment. “We were having a terrible time in the courts, and I could see that we were on our way to losing. I didn’t want to lose for them. So, we put it onto a public, political level. And we won.”27 After two years, the case was settled. Since there was an out-of-court settlement, again, no legal precedent was set in the case. Then in 1985, Dr. Naomi Nevo, a sociologist working for the Jewish Agency, was required to retire at the age of sixty. This retirement age was in keeping with the 1953 and 1966 Worker’s Agreements between the Jewish Agency and its employees that, like the Hadassah agreement, required men to retire at age sixty-five and women at age sixty. Nevo took her case first to the labor courts, with Frances Raday as counsel again in this case. The labor courts refused her complaint based specifically on legislative silence on the issue. The National Labor Court stated in its decision to dismiss her complaint: “Where the legislature wished to prevent discrimination (or create absolute equality) it did so specifically; as regards a subject not regulated by an express provision of a statute, the presumption is that the legislature reach the conclusion that the time is not yet ripe for it” (cited by Raday 1991, 182; and Yishai 1997, 163). According to Yishai, as a direct result of the National Labor Court’s decision, which pointed directly to legislative silence as the reason for its dismissal of Nevo’s case, the 1987 Equal Retirement Age for Men and Women Workers Law was enacted. Frances Raday and Avigdor Feldman argued the Nevo case before the HCJ, which returned its decision in 1990. The case went to the HCJ under the sponsorship of the IWN and ACRI. While the Nevo case was decided in 1990, two years after Shakdiel and “Poraz,” the argument in the case as initiated prior to Shakdiel and “Popaz.” Thus, in terms of legal innovation, Nevo is the first case in which the women’s equality argument combined with administrative legality is offered by the petitioning attorneys. As such, I discuss it, chronologically, before Shakdiel and “Poraz.” Nonetheless, Shakdiel and “Poraz” are the first times the argument is used in regard to religious authorities. And, indeed, because they were published first, they may have bolstered the case for petitioning attorneys in Nevo. Because the Equal Retirement Age Law had been enacted after Nevo’s case was initiated, the HCJ held that it could not apply the law to Nevo’s case. The HCJ decision was penned by Justice Gabriel Bach. Bach distinguished first between legal and illegal discrimination, appealing to the definition set by the late President of the HC J Shimon Agranat. Bach cites Agranat:

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Judicial Power and National Politics There is a difference always . . . between unacceptable discrimination (hereafter, discrimination) and acceptable differentiation. The principle of equality is nothing less than the opposite of discrimination. It is that to which every democratic country aspires, out of respect for justice and rights. In order to enact it, it must be defined . . . as equal relations between human beings when there are no significant distinctions between them that are relevant to the matter in question. If, in the matter under discussion, they are not treated equally, then we have before us discrimination. To the contrary, if the differences or distinctions between different people are indeed relevant to the matter in question, then this should be understood as acceptable differentiation. If it is necessary to treat them differently, in relation to this same matter, then it is acceptable only inasmuch as it is justified by the differences themselves. (Nevo, 754)

Bach cites three other HCJ and Supreme Court of Appeals cases that include similar discussions of equality and discrimination. The respondents, the Jewish Agency, made the case that the labor agreement actually grants women a privilege in allowing them to retire early. Early retirement addressed inequality in reproduction and child rearing, in which most of the work fell on women, by allowing women to turn their full attention to home and family. Women who retired at age sixty were still allowed to take their pension. Early retirement helped the country with the problem of unemployment by opening up new jobs to unemployed workers. Furthermore, the respondents contended, many women preferred the existing system, as could be witnessed by the fact that so many women applied for retirement immediately on reaching the age at which they could do so. This being the case, there was no popular drive or need to change the existing agreement. Bach remained unconvinced by these arguments. In a concise decision, Bach argued that retirement has negative impacts on the retiree at the personal as well as the societal level. Since people in the contemporary world so often gain much of their sense of self-worth and social status from their work, retirement comes with inherent problems for the individual (adam). Compulsory early retirement age also has negative economic implications. If a woman has not worked enough years to earn a pension, she loses five years toward that accumulation of time. A woman loses five years of salary with early retirement. And importantly, it is precisely in one’s later years that one reaches the highest points in salary. Forced early retirement deprives a woman of the higher salary coming with seniority and the higher pension coming with more years of work and higher salary, adding up to a significant


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economic loss on the woman’s part. When the issue of promotions is added to the list, early retirement looks discriminatory. Bach gives the hypothetical of two workers both age fifty-eight, one a man and one a woman, each with identical qualifications and talents. If women are required to retire at age sixty, clearly she will be denied the promotion. Bach’s reasoning was not limited to economic terms, however. He reasoned in terms of women’s traditional labor as well. Many women enter the workforce late in life, he wrote, because they have put their full energy, in the middle of their lives, into their children and child rearing. Thus, they may not have been able to develop their careers to the level of their male counterparts. To enforce an early retirement on women was thus even more of a detriment to their careers than it would be to men. And in fact, for a woman it is precisely at age sixty, when all of her children are adults, that she may finally be able to give her full attention to her own career: [W]hen a woman reaches age 60, a time when in most instances the children have already left their parents and have developed independent lives of their own, it is precisely at this moment that the woman, if she is interested, may turn her interests more toward her work. To force her, by virtue of being a woman, to retire from work at this point in her life, and to abandon any semblance of hope on this plain, this is certainly discrimination. By the criteria of our modern times, such discrimination appears unjust and unreasonable, and there is no way to reconcile it. (Nevo, 756; emphasis added)

It is important to note the language being used by the HCJ. The HCJ uses the language “by virtue of being a woman” (biglal hiota isha). That language was used by the petitioners in Shakdiel, a case that began after Nevo, but was decided before it, and thus was already established precedent. Shakdiel will be discussed below. In the case of Nevo, the HCJ used the phrase “by virtue of being a woman” at least two times (756–757, 760–761). Gender equality, and an underlying recognition of the different kinds of labor that women are traditionally asked to do, are clearly significant factors in Bach’s reasoning process. This attention to gender reflects a change in HC J approaches to equality, which in conceptualizations in previous cases had not included formulations of gender equality. According to Bach’s thinking, since women are asked (by whom does not matter) to take on the childrearing duties for the next generation, it is unfair to penalize them at the workplace for the important work that they have been doing at home. It is important to note that this reasoning does, indeed, reflect the reality of most women’s lives in Israel, where there has been not only societal, but also

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legislative, pressure for women to take on reproduction and child rearing as women’s main vocation, at least during childbearing and child-rearing years (see, for example, Hazleton 1977; Yishai 1997: 158–159; Yuval-Davis 1989). Furthermore, Bach continues, while the 1987 Equal Retirement Age Law could not be applied directly to the Nevo case, it did constitute evidence that, in the state’s view, forced early retirement for women was indeed discriminatory. The Court upheld Nevo’s petition in a unanimous decision in October 1990. The Nevo case reflects a clear connection on the part of the justices between legal equality and gender equality. Beginning with the principle of acceptable differentiation and unacceptable discrimination, Bach turns to the specific issue of equality along gender lines. His decision explicitly addresses existing gender norms, in which women do the lion’s share of labor in reproduction and child rearing. Women’s right to career opportunities and development was not to be denied based on the fact of being a woman. It is precisely in the context of women’s labor in the family that such discriminatory practices as forced early retirement are so reprehensible. Furthermore, and significantly for my argument, Bach drew a direct parallel between ethnic and gender discrimination. He wrote that had the Worker’s Agreement of the Jewish Agency called for early retirement of a certain ethnic group, it would have been recognized immediately as discrimination. Outside the court, the Nevo case had a tremendous impact in the Knesset. During the course of the Nevo case, when the HCJ and labor courts sent the clear message that legislative silence inhibited the court’s ability to decide such cases, the Knesset passed the 1987 Equal Retirement Age for Men and Women Law. And in 1988, it passed the Equal Employment Opportunity Law. Indeed, by some accounts, the HCJ waited in deciding the Nevo case until the Knesset had time to develop a legislative response to the lacunae. However, it argued that it could not apply the new legislation, per se, to the Nevo case, the arguments for which began before the passage of the legislation and may, to the contrary, have had an impact on the K nesset’s attention to the issue. For the first time, legal policy on women and labor changed from the idea of protection to the idea of rights. In addition to the equal retirement age enacted the year before, maternity rights were granted in the new law to either parent (one or the other, but not both). Discrimination in employment was prohibited specifically along gender lines in hiring, conditions of employment, promotion, training, and based on sexual favors or lack thereof (Yishai 1997, 165). The HCJ, applying the principle of rights and equality to gender equality, was instrumental in effecting this change in approach. Indeed, news reports at the time


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of the Nevo decision emphasized the connection that the Court had made between discrimination, equality, and women’s rights.28 Bringing the court’s attention to the connection between the general law principles of equality, and women as a group to which those principles apply, had been one of the main goals of Nevo’s co-petitioners, the Israel Women’s Network and the Association for Civil Rights in Israel. “After 1951 we had this general statute that was not very effective,” Raday told me in 1997, referring to the 1951 Women’s Equal Rights Law (WERL).29 While discrimination along ethnic lines had been recognized in the courts as illegal long before the Nevo case, WERL had not provided an effective link between the principle of equality in general law to the issue of equality along gender lines. The law was ineffective in large part because it did not have constitutional power to invalidate statute law, and it specifically did not apply to personal status law or other matters of religious status quo. As Raday has argued: In 1951 . . . with the legislation of the Women’s Equal Rights Law, it became clear that, at least in regard to equality between the sexes, religious values were to be accorded clear priority. . . . Since marriage and divorce laws were to remain under the jurisdiction of the religious courts, this exclusion of equality for women in the framework law laid the ground rules for the subsequent subordination of the principle of equality to religious values in the Israeli legal system. (1995b, 211)

The Nevo case, and the legislation that ensued from it, had an important impact on the courts and on society. In the courts, the case acted as an important precedent. Before 1988, a total of five women in the history of the country had turned to the courts in disputes over women’s employment rights (Izenberg 1990). From 1988 to 1990 alone (after the 1987 Equal Retirement Age Law and the 1988 Equal Employment Opportunity Law were passed), twelve petitions were made to the labor courts on issues of employment and gender equality (Izenberg 1990). Indeed, Raday stated in an interview at the time, “In supplying [Nevo] with a remedy which will greatly improve her economic welfare and give her economic equality, the court has provided the necessary encouragement to [women] to apply to the court for remedies for economic discrimination” (cited in Izenberg 1990). It was predicted at the time of the Nevo ruling that it would affect the El Al case, also argued by Frances Raday, that was currently being heard in the National Labor Court. Indeed, the Nevo case was used as a precedent in the El Al

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case, in which women demanded to be allowed to become station managers in foreign offices. The case was settled out of court as a result of clear legislation and legal precedents favoring the petitioners.30

Women’s Equality and the Religious Establishment The Nevo case, argued concurrently with Shakdiel, crystallized through litigation the legal principle WERL had failed to instill. This sort of change is precisely what the Israel Women’s Network had in mind when it, through Raday, founded its legal department in 1986: “We proceeded with the policy of linking litigation and legislation, using cases to promote legislation and using legislation to promote litigation. It was, I think, a good strategy.” In thinking back on that strategy several years later, Raday noted that, “legislation went through fairly easily on all the economic issues, and on violence in the family, and on amending the rape laws. On a whole series of issues the reforms went through quite easily,”31 once brought to the attention of the Knesset. The one exception was religious law. In this area, again, the women’s movement turned to the High Court for relief. The movement was deeply concerned with another area of the law that, arguably, affected more women across the country and throughout their lives: marriage and divorce law, which for Jews came under the exclusive jurisdiction of the rabbinical courts. When the IWN was established in 1984, it immediately began to hold meetings and conferences with rabbinical authorities in order to find a solution to the problem of women in Jewish divorce in Israel. The movement’s focus on enacting legal change through the courts continued from the mid–1980s until the present. Na’amat, together with the Association for Civil Rights in Israel, cosponsored several important legal cases for women in the late 1980s and 1990s, including the “Poraz” case on the issue of women in local councils. The better-known case on this question, that of Leah Shakdiel, was decided only four days before the “Poraz” case. Together, these cases marked a dramatic change in HCJ policy on religious authority. The case of the Women of the Wall (Hoffman, also argued by Raday), which began in 1988, would mark the continuation of the HCJ’s pointed challenge to rabbinical authority, but also a move from a strident defense of the principle of equality. Shakdiel was elected to the Yeruham Religious Council in 1986 (see Shakdiel, 277). Religious councils administer public works that have to do with religion in a town or municipal region. The local council is to be distinguished from municipal councils, which are the equivalent to city gov-


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ernments in the United States. The religious council is responsible for the maintenance of ritual baths, any public religious place in the city, public religious events, and the like. It is not responsible for interpretation of matters of religious or halakhic import. It simply administers public works and those matters already decided by religious authorities. In 1985, Shas asked the HC J to review the makeup of all of the Religious Councils in Israel. It was decided in November 1985 that all Religious Councils would have to register with the Ministry of Religion to have their membership approved and their mandates renewed. Having sent in the Yeruham list in February 1986, Shakdiel, as a member of the Yeroham Religious Council, sent a letter to the Ministry of Religion in March 1986 inquiring after the status of their review in the ministry. A ministry official responded; the HCJ decision written by Menachem Elon includes the following quote from that letter: If I understand your letter correctly, it appears that you are also a member of the Local Council. Regarding this situation, I can already inform you that this is not within the realm of possibility. The religious council has no members ( female) but rather only members (male) and I understand that there is not a desire to create this kind of precedent.32

A committee of representatives of the Prime Minister, the Ministry of Religion, and the Ministry of the Interior reviewed the case and put an injunction on Shakdiel’s participation in the Yeroham Local Council. Shakdiel appealed this order to the HCJ. Several groups credit themselves for legal support in the Shakdiel case, although only Shakdiel is listed as plaintiff. The Israel Women’s Network, Na’amat, and the Association for Civil Rights in Israel all gave some type of legal support in the case. A committee of ministers was convened to decide whether Shakdiel could be a member of the Yeruham Religious Council. It decided that Shakdiel could not serve because she was a woman. In the HCJ case, the respondents argued that in the history of the state it had always been understood that local religious bodies have a close relationship with the Rabbinate.33 It was also custom that women could not participate in such bodies. The work of the religious council had a “halakhic-religious” air, and as such, women neither had the skills to do the job nor were they appropriate for the job (Shakdiel, 231). The HCJ case file, which encompasses all documents in the case, includes several letters from religious council members opposing Shakdiel’s acceptance to the council, as well as a letter of support from the local municipal council, which is the body that nominated her in the election.

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The Shakdiel case was argued by attorney Yehoshua Shofman (now an assistant attorney general). Shofman was not a member of the women’s movement but rather was an attorney for ACRI. He used the argument first raised by Raday in the Nevo case: the women’s equality argument. In their petition for an order nisi on March 11, 1987, Shofman based the petition on several legal claims, the first of which was: “It is the right of a woman to hold an office in a religious council; in particular, it is the right of a woman not to have her holding of an office in a religious council frustrated by virtue of her being a woman” (bashal hiota isha). Shofman also argued that it is the right of the residents of Yeruham to have their religious council, which makes decisions relating to their rights, put in working order as quickly as possible. And the petition included a lengthy discussion of the parameters of jurisdiction of the Committee of Ministers, which, Shofman argued, could not take powers not granted to them by law just because of an ad hoc agreement between political parties. In a fifty-seven-page decision penned by Justice Elon, the HCJ argued that religious councils do not require members to be experts on religious law or interpretation. Rather, religious councils administer public works such as the ritual bath, religious schools, public religious events, the maintenance of public religious buildings and the like (Shakdiel, 236). As members of the religious community who are subject to the decisions of the religious council, and as women who are particularly affected by issues such as the administration of ritual baths, there was no legal justification to keep women off local councils by virtue of being women. While women may not have participated in these bodies by custom, in the state of Israel, they could not be denied participation in what amounted to local governmental bodies. The HCJ thus made a fine but emphatic distinction between religious and civil work. While the religious council was charged with overseeing the administrative functions of religious places and events, no male member had ever been required to be an expert Torah scholar. There could be no justification for requiring so of Shakdiel because she was a woman. In fact, Elon wrote, Shakdiel emphasized that were the religious councils charged with making halakhic decisions, she never would have brought a case to court. Again, the language of the court is important. In Shakdiel, the HC J used the words “by virtue of being a woman” no fewer than ten times. Once it referred to the inability to choose who can sit on the council by virtue of being a man (274–275). It used the word hiot (to be) in various conjugations with isha (woman) and the words bashal, mshum, akh bashal,


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prat, and ci to indicate a line of causality: it was unacceptable to disallow a representative to sit on the council due to the fact that she was a woman. I have translated the word hiot, referring to being-ness, as “by virtue of being a woman.”34 These are not, of course, the only mentions of “woman” or “man” in the case decision. However, what is important about this phrase is it reflects the identical words used by Shofman in the petition: a woman cannot be denied the right to serve on a religious council akh bashal hiota isha (only by virtue of being a woman). Thus, it offers a strong indicator of an interaction effect between the justices and the social movement lawyers as well as the influence of the argument on the justices. The Shakdiel decision, as in Nevo, cited former Justice Agranat’s distinction between legal differentiation and illegal discrimination. In citing Agranat’s famous distinction, the HC J also cited none other than Frances Raday’s academic work on women’s equality in Israeli law (Shakdiel, 241). The HC J’s rhetoric on women’s equality was unyielding, condemning the Committee of Ministers and the Ministry of Religion in the strongest terms for providing an overwhelmingly unconvincing case. Elon wrote that the HC J and the Law of Jewish Religious Services itself specified only two requirements for a member of a religious council, one personal and one social. “Personally, he must be a religious man or at least not anti-religious; socially, he must be part of a body or a group who constitute some religious interest” (Shakdiel, 236). Shakdiel, Elon wrote, fit both of these qualifications perfectly. The unanimous decision in favor of Shakdiel ended with the following two sentences: “One cannot forget that rabbinical authorities also function under the auspices of the law, and the principle of equality that is incumbent on everyone is also binding on them. Equality can emerge only as the principle of equality is put into practice” (Shakdiel, 276; emphasis added). This statement reflected an unequivocal position in favor of equality, and made clear that equality included gender equality. The gender equality argument could be expected, henceforth, to appear as an HCJ challenge of rabbinical authorities in any area in which rabbinical authorities overstepped this inclusive notion of equality. Indeed, the HC J reasoning in the Shakdiel case was mirrored in the decision, four days later, in the case of a woman who had been elected to the Tel Aviv Local Council. From the local council, she had been elected to the committee responsible to elect a new municipal chief rabbi. The religious function of this committee was more explicit. However, the Court came out strongly in favor of the principle of absolute equal opportunity of women to participate in such decision-making bodies.

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Haviva Avi-Gia was elected to the Tel Aviv-Yaffa Local Council in 1987. The Tel Aviv-Yaffa rabbi had died in 1986, and a body made up of the local council, local religious council, and several members of the Knesset was to elect a new rabbi for the city. The leader of the local council decided unilaterally that Avi-Gia could not be part of the elective body because she was a woman. Na’amat, the Association for Civil Rights in Israel, and several other parties brought a case, known as “Poraz,” to the HC J against the Local Council of Tel Aviv, the City of Tel Aviv, the elective council of Tel Aviv, the Minister of Religion, and a couple of other parties. The plaintiffs argued that Avi-Gia could not be denied a position on the elective body by virtue of being a woman. Such a denial would go against the Declaration of Independence, the Women’s Equal Rights Law of 1951, and the Basic Laws. In the “Poraz” case, as in the Shakdiel case, the Court argued that by being on the local council, Avi-Gia was not being asked to make decisions on religion, she was not being asked for halakhic readings. The HCJ made an uncompromising statement on gender equality in public administration. Justice Barak wrote the decision to annul the municipal council’s withdrawal of Avi-Gia from the voting assembly. Justice Ariel supported that decision in the strongest of terms. He argued stridently: I agree [with Barak’s decision], for it is necessary to investigate the Law of Rabbinical Services and Administration in terms of its meaning and purpose. I also agree because the civil jurisdiction of the Municipal Council in the election of representatives to the voting assembly must take into consideration the principle of equality between the sexes. The equal status of women, under the framework of the principle of equality between the sexes, is not merely formal. It must extend in an actual and significant manner to every aspect of our lives. The participation of women, in the context of women’s equality, in a body elected to maintain religious services is a part of this [equal] status, and it is also protected by the law. (“Poraz,” 342)

The HCJ canceled the Tel Aviv Municipal Council decision to withdraw Avi-Gia from the voting assembly. However, the HCJ returned the issue to the Tel Aviv Municipal Council to reconsider the participation of women in local councils. In the context of the HC J’s strong language defending women’s participation in such bodies, the HCJ’s directive was clear. And, indeed, the Tel Aviv Municipal Council did allow Avi-Gia to participate in the voting assembly; Rabbi Yisrael Lau was elected Tel Aviv chief rabbi without incident (Ackerman 1990). Women have participated in local councils since the Shakdiel and “Poraz” cases. Both Shakdiel and “Poraz,” however, also highlight the line that the HC J straddles between brash


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activism and the need to incorporate political institutions, as much as possible, as participants to its challenge. The principle of equality was confirmed in 1994 in Bavli, Lev, and Hoffman, although Hoffman reflected a less strident appeal to the principle than the first two. Bavli involved a woman seeking equal division of property in a divorce case. Because she and her husband were married in 1972, prior to the adoption of an equal division of property law in Israel, the Municipal Rabbinical Court of Tel Aviv-Yaffo decided that she did not have the right to any division of property but only to maintenance (alimony), as allowed in halakhic law. In a private petition, not related to any social movement, Bavli’s attorneys cited Shakdiel together with the Women’s Equal Rights Law 1951, which was given new teeth by the Shakdiel and Nevo precedents.35 The HC J ultimately combined women’s equality with both the concept of equality and principles of equity in contract law, expanding still further the application and reach of the principle of women’s equality. Equal division of property, as a judicial principle, arises from a combination of the principle of equality, which is usually like mother’s milk in the constitutional view of this court, the Women’s Equal Rights Law of 1951, principles of contract law . . . and the laws of the formulation of equity, which require the granting of just and appropriate possession to both in a couple of property accumulated through their joint efforts, each as appropriate to his/her efforts. (Bavli, 254–255)

In another case, the court made an even more direct and scathing critique of the rabbinical courts. In Lev, Leah Lev appealed an order nisi barring her from exiting the country because she was required to practice “shalom bayit” (literally, “peaceful house”) as part of her divorce proceedings. Under this halakhic principle, a spouse in a divorce case may request that the other spouse return to the matrimonial home in order to try to salvage the marriage. Women’s organizations have protested this practice as oppressive and dangerous to women, particularly in cases of domestic abuse. Indeed, many women in women’s shelters in Israel have fled shalom bayit orders. In this case, Lev wanted to leave the country. The husband based his request for an order nisi barring her from leaving the country on the following: “the woman is managing, through leaving the country, an affair with a foreign man, a resident of the United States, and she intends in the near future to leave (emigrate from) Israel and work to become a resident of the United States with the children, together with this man” (1). The Rabbinical Court of Tel Aviv-Yaffo barred her from leaving the country. The HCJ argued that, “In its jurisdiction, it is incumbent upon the Rabbinical Court to respect human rights” (8; emphasis

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added) and freedom to leave the country was a basic human right. The court applied the Basic Law: Human Dignity and Freedom to the situation. In weighing the conflicting principles of shalom bayit and the human right of freedom of movement, the HCJ averred that the Rabbinical Court did not have the right to forbid exit from the country just to keep a person from injuring shalom bayit. The basic human right overrode a lesser legal principle. A court could not make an order nisi refusing exit of the country based on relations between spouses (2). The HCJ treated the Rabbinical Court of Tel Aviv-Yaffo as part of the larger judicial system. That larger judicial system is required to operate with respect to the “constitutional human rights” that are part of “the constitutional law.” In Lev, the HC J gave arguably its strongest statement regarding the place of rabbinical courts within the Israeli legal system, which, as should be clear, has been a major source of contention in the religious law debate. After a long procedural discussion regarding the freedom and constraints with which a court may choose procedure, the HCJ, with Barak writing the majority opinion, stated unequivocally: The rabbinical court functions under the auspices of the law with which the Israeli courts limit it. These constraints bind it. It cannot deviate from them or overstep their bounds. (12)

Furthermore, the HC J argued that while the Rabbinical Court has some freedom regarding procedure, it is constrained by the Basic Laws as well as fundamental principles of the wider judicial system, including reasonableness and the weighing of conflicting interests and principles (11). The weighing of conflicting principles was part of required procedures with which the Rabbinical Court was constrained; it was not free to avoid the consideration of these conflicting principles, nor was it free to place a nonconstitutional principle (shalom bayit) above a constitutional principle (freedom of movement). The HCJ referred to natural law and natural justice, as well as the Jewish principle of tikkun olam (the [spiritual] healing of the world, a concept, when combined with natural justice, that appears to give added strength and urgency to the HCJ’s concept of the latter). The HCJ’s treatment of women’s equality has not been unequivocal. There appeared to be a back swing against any cases challenging rabbinical authorities after the 1996 election of (right-wing) Likud member Benjamin Netaniyahu.36 However, by the end of the 1990s, the HCJ seemed to turn around again. Perhaps not coincidentally, the return of the HCJ challenge from its brief pause corresponded to a Labor Party (left) administration


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(under Ehud Barak). The change is visible, for example, through the Hoffman case, known better as the Women of the Wall (WOW) case. WOW began praying together at the Western Wall in the late 1980s. Their worship provoked explosive and at times violent responses from some Haredim at the wall. This reaction stemmed from Haredi opposition to several WOW practices that are traditionally limited to Jewish men, including audible collective prayer (Haredi women by custom pray individually and silently), and the use of ritual objects such as the Torah scroll (which women are not supposed to touch), tefillin and tallitot.37 In 1989, seeking protection from physical and verbal harassment during their prayer sessions, the WOW brought a case to the Israeli High Court of Justice. Justice Menachem Elon, himself a Torah scholar, conducted an extensive review of halakhic law and found no provision forbidding women from praying in a group or with the rituals and ritual objects in question. In 1994, with Justice Elon writing for the majority, the High Court decided that the women of the wall have the right in principle to pray at the Western Wall. However, the HCJ placed responsibility on the executive to find an administrative solution that would safeguard the WOW’s rights while respecting the “sensitivities” of those praying at the wall, and the “traditions” of the place. The traditions of the place were assumed to be the customs of those who populate and manage the Western Wall—mainly Haredi Jews. (It should be noted that there was no separation between women’s and men’s sections of the wall until 1929; see Smith 2006). When a government committee failed to come up with a solution after one year elapsed, the WOW brought the case to the High Court again in 1995. Again, years of deliberation ensued. Finally, on May 22, 2000, Justice Eliahu Mazza wrote, in his opinion for the court, that the women have the absolute right to pray, wear tallitot, and read from the Torah at the wall. He gave the government six months to work out a practical solution. Mazza argued that the 1994 decision held that the sensitivities of the Haredim had to be balanced with the rights of the women. However, he wrote, in the wake of the 1994 decision, the government tried not to balance but to avoid hurting the sensitivities of those praying at the wall altogether. Therefore, Mazza contended, the government had erred in failing to address the precedence of the WOW’s rights over sensitivities. The Ministry of Justice immediately challenged Justice Mazza’s reading of the 1994 decision.38 The HCJ reversed its decision in 2003 and required that the government provide an alternate site for WOW prayer. The government provided the Robinson’s Arch area of the Wall, outside of the current Old City gates.

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Shas and Conversion A complete discussion of the issue of conversion would require entire texts in itself and is only peripherally addressed in this study. However, in the initial years of the conflict, an important conversion case confirmed and solidified the HCJ’s stance regarding religious authorities in Israel.The MP J, its IRAC, and the Masorti Movement (Conservative movement) in Israel have taken the lead in litigation before the HCJ, much of which has been focused on the issue of conversion. Since orthodoxy (or more accurately, as discussed in chapter 3, a new hybrid form of ultra-orthodoxy) has the monopoly on official Judaism in Israel, Reform and Conservative conversions, ordinations, marriages, divorces, and so forth, have had no legal standing in the country. Between the founding of the IRAC in 1986 and the year 2000, the religious pluralism movement brought at least twenty cases to the High Court. Few, however, were successful, in part because they were a more direct threat and raise the volatile constitutional issue of freedom of religion, on which there is not consensus in Israel. After Miller, brought by the MPJ, conversions conducted outside the country had legal standing for the purposes of the Law of Return. However, in Miller, while the court implicitly allowed Reform conversion for the purposes of the Law of Return, the legal question at hand was whether the Ministry of the Interior could add “convert” after the word “Jew” on her identity registry and identity card. Thus, the question decided by the HCJ was narrowly confined to the Ministry of the Interior’s right to add or subtract words, as determined by statute. In Shas, the HCJ took on directly the question of nonorthodox conversion. Citing Miller extensively, the HCJ decided that the population did not have the right, under the Population Registry Law of 1965, to inquire into the validity of a conversion (723). Rather, immigrants had only to show that they were members of “some Jewish community abroad,” and in that context, there was no distinction between Jewish communities, Orthodox, Conservative, or Reform (723). Nor could there be such a distinction in conversion performed abroad, as that person was now a member of “some Jewish community abroad.” Ironically, this case was brought by Shas, a religious, mizrahi political party seeking greater religious authority. As with cases brought by social movements on the other side of the aisle, however, Shas gave the HCJ an opportunity to decide in this case (Epp 1998). It lost. This conversion case healed some tensions between Israel and the Diaspora community, at the same time creating an uproar among some Orthodox


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and ultra-Orthodox communities. However, subsequent conversion cases relating to conversion inside Israel, most of which appealed at least in part to freedom of religion within Israel, were not successful in the aftermath of Shas, nor, indeed, throughout the 1990s. At current writing, Reform and Conservative conversions conducted within Israel are not sanctioned by the state, however, the battle over this issue continues. In a series of cases in the 1990s and in the current decade, the HCJ has upheld the principle that when an immigrant comes to Israel with a conversion conducted abroad, that person must be registered in the Population Registry as Jewish. However, Reform or Conservative conversion of people who are already citizens of Israel has not been allowed, the court deferring to existing state religious authorities on the matter. The issue of Reform and Conservative conversion for the purposes of the Law of Return was finally addressed directly as the central legal question in the court in a 2005 case (Sapir 2006). The HCJ decided in favor of nonorthodox conversion for the purposes of the Law of Return. For an excellent discussion of conversion cases from the 1990s to 2005, see Gideon Sapir (2006; see also Tabory 1998 on Reform Judaism in Israel). Meanwhile, the rabbinical courts have been moved from the Ministry of Religion to the Ministry of Justice in an attempt, on the part of secular political parties, particularly Shinui, to curb religious authorities within the state. However, it is not clear whether this move has had a significant effect in curbing religious authority within the state, which remains housed in several parts of the executive branch.

Conclusions In the cases that we have seen, both women and gender were important variables in a conflict of lasting import between the HCJ and rabbinical authorities. Specific social movement lawyers, in many cases maintaining contact with one another, were major players in these political-legal debates. Social movements were particularly important in the onset of the conflict. IWN attorney Frances Raday, joined by an ACRI attorney in Nevo, argued for women’s equality under the law to the HC J. Lawyers from ACRI used that as their first line of argument in Shakdiel. Later, Raday argued Hoffman (WOW) before the HCJ, using the women’s equality argument. Bavli and Lev, both argued by private attorneys, took up the argument advocated by these social movement lawyers and witnessed the

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entrenchment of the principle of women’s equality in HC J precedent (albeit with some inconsistent rulings here and there, particularly under the Netaniyahu administration). The early labor cases set the groundwork for cases to come that began to set the HCJ in conflict with the religious establishment. Through the Nevo case, Frances Raday and the women’s organizations that supported her were able to make the link before the HCJ between the principle of equality—long held dear by the Court—and that of women’s equality. Although the Nevo decision came after those of Shakdiel and “Poraz,” the overlap in the reading of the cases, between 1986 and 1988, almost certainly had as much impact on the justices as did the Knesset’s strong legislative statement on women’s equality in labor law (equal retirement age 1987; equal opportunity 1988). When Leah Shakdiel and Avi-Gia (“Poraz”) brought their cases to the HCJ, forcing a decision on how to apply gender equality to rabbinical authorities, the HCJ emerged on the side of gender equality in no uncertain terms. The HCJ reasoning directly challenged rabbinical authority by name, stating clearly that it is incumbent on rabbinical authorities, as with other state officials, to enact the principle of gender equality in its official work. More importantly, the HCJ used some of the very language raised by social movement attorneys, picking up the idea that being a woman was not grounds for having fewer rights in labor contracts (Nevo), in an administrative body (Shakdiel and “Poraz”), under the law (Bavli and Lev), or at holy places (Hoffman). The HC J’s championing of women’s equality was in marked contrast to the status quo on religious versus secular authorities, in which jurisdiction over religious bodies had been understood to rest solely under the purview of rabbinical authorities, either the Rabbinate or the Ministry of Religion (see Shakdiel, 233). It is clear that gender is a crucial and contested issue in the conflict whose beginnings we saw in the HCJ decisions in Nevo, Shakdiel, and “Poraz.” Together with Shakdiel and “Poraz,” Justice Bach’s decision in Nevo explicitly connected ethnic discrimination with discrimination against women created a precedent for a fundamental challenge of the authority of any state institution that would undermine the rights of women. The HCJ had evolved a progressively stronger position on rights throughout the 1970s and 1980s. By making the link between the judicial principle of equality championed by the Court, and the principle of women’s equality championed by the women’s movement, women were able to make a connection between their interests and the ideological commitments of the Court. While the HCJ had been an advocate of the principle of equality


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for many years, gender equality made its appearance as a full-fledged legal principle, with the corollary power of precedent, only after the initial cases argued by legal leaders in the women’s movement. From the labor disputes to Shakdiel and “Poraz,” the HCJ’s decisions reflect a parallel focus on equality for women (gender equality) and even the common citation of Agranat in order to formulate the connection between equality and gender equality. These cases offer a clear case in which a social movement affected the thinking—the preferences—of officials in a state institution, rather than only constraining the justices to act within the law (Epstein and Kobylka 1992), or constraining justice decision making due to strategic factors (Epstein and Knight 1998). The women’s movement offered a new argument that women’s equality should be understood as part of “equality” writ large. The argument was not only accepted but was taken up by the HCJ with force and used in a number of landmark cases in which it made direct and fundamental challenges to rabbinical authorities. The religious law conflict, while always heated and controversial, has not seen the HCJ challenge religious authorities on every issue, nor even with complete consistency on women’s equality. Where decisions could be made for women’s equality under the principle of administrative legality, the HCJ used that reasoning to challenge religious authorities. Where the administrative argument was not as clean or clear, the HCJ was more cautious, as in Hoffman, where the HC J made the plain statement of equal rights to access the Western Wall but left the government to work out a solution. On issues not related to women’s equality, such as conversion, the HCJ was also willing to challenge religious authority when the case could be made in terms of administrative legality. That principle includes the ideas of equal application of law and procedure, administrative bodies being confined by the limits of statue, and under HC J precedent, certain rules of natural justice (Zamir 1996, 28). There has also been a certain amount of ebb and flow to the religious law conflict, with a close correlation between left-wing administrations and high levels of HC J challenge, right-wing administrations and lower levels of challenge. The mobilization of Haredi and neo-Haredi groups is likely also related to this ebb and flow, with extremely high levels of criticism in the Orthodox and ultra-Orthodox presses beginning after the Shakdiel case and increasing to the point of death threats against President of the HC J Justice Barak by the mid-1990s. In the mid-1990s, under the Netaniyahu administration, the HC J made mixed decisions on women’s equality. Under the Ehud Barak administration, in contrast, the HCJ made

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a frontal attack on a traditional area of rabbinical autonomy in deciding that yeshiva students could not be exempted from military duty.39 In part as a response to this decision, a mass demonstration was organized in which an estimated two hundred thousand ultra-Orthodox demonstrators and fifty thousand pro-Court demonstrators converged on the High Court building on February 14, 1999 (Caspi 1999; Graetz 1999). In May 2000, the HC J decided that both women in a lesbian partnership are equal parents of their son. The HCJ appears to continue in its challenge of rabbinical authorities. I have argued that the HC J’s initial move from a position of uneasy coexistence to outright challenge of rabbinical authorities came as a result, first and foremost, of social movements like the women’s movement and specific organizations such as the IWN and ACRI. Social movement lawyers, first as individuals and then as members of organizations, decided to mobilize around litigation. These social movement lawyers were part of a legal community through which they maintained contact with one another and through which many had known each other from university. Together, they made up a network of social movement attorneys working in concert, both formally and informally, to decide movement litigation strategy and develop a division of labor between groups. It is significant that these attorneys were part of the judicial community to which the HCJ justices belong and are tied. Lawyers such as Frances Raday brought a series of equality cases to lower courts beginning in the early 1980s and then to the HC J in 1985. The success in early cases, either in court or in settlement, led activists to pursue further litigation, and to establish legal centers like that of the IWN in 1986 (see McCann 1994 on legal mobilization). The women’s equality argument finally made its mark in the HCJ by the late 1980s with Shakdiel, decided first, and Nevo, in which the argument was first made. Through these cases, and particularly through the argument that women could not be discriminated against by virtue of being a woman, social movements were able to influence the HCJ’s existing doctrine of equality (together with justices’ understandings of equality). They provided the HC J with a legal tool, entering into an implicit alliance with the court through which social movements brought cases that the HC J then had the opportunity to decide. The HCJ could (and did) then use that legal tool (women’s equality) to undermine religious authority over a number of areas. Through legal mobilization and the development of these informal, implicit alliances, these social movements influenced not only justice thinking and policy, but


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they had an important impact on a critical political contest between elements of the state. That contest has led to a change in no less than the balance of power between state institutions. The HCJ has gained considerable power vis-à-vis both rabbinical authorities and the Knesset since the days of the Knesset “overturn” of Shalit.


7 Conclusions Religion and Gender in National Courts: Suggestions for Further Research

The incorporation of the religious authorities into the fledgling Israeli state was a high priority for early, secular Zionist state leaders, especially David Ben-Gurion as seen in chapter 3 (Avi-Hai 1974; Keren 1983; Pearlman 1965; Rubinstein 1984; Segev 1986). Conceding authority over personal status issues, including family law, seemed a small price to pay for the support of Orthodox communities. Issues of family and gender, at the heart of family law, were such a low priority for these early state leaders, it was arguably off their radar screen entirely. Ben-Gurion and his associates were concerned with issues of “high politics”—security, economy, and the like. This concession was a fatal error for the social and political program these secular, socialist Zionists had in mind. Control over personal status issues means control over some of the key moments in which the average citizen is most likely to interact with the state: birth, marriage, divorce, death, burial. Thus, religious authorities became important state agents in the lives of individual citizens, even those who disapproved of them. Moreover, incorporating religious institutions within the state led the state on a path, ironically, of increasing the political salience of religious institutions. It also led the state on a path of increasing tensions and, ultimately, to an explicit and explosive conflict between the secular HCJ—guided by principles of general, liberal law—and state religious authorities. This study has asked why the Israel High Court of Justice entered into a virulent conflict with religious authorities in Israel in the late 1980s, particularly when it knew from experience the likely kulturkampf that would

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ensue. Three conditions made possible the HCJ’s change in policy: (1) the emergence of social movements that, by the 1980s, turned to legal mobilization; (2) a decrease in Knesset efficacy after the 1977 elections; and (3) the judicially initiated change in the rules of standing in 1986, allowing almost anyone with a claim against the government to bring a case to the HC J, personal injury aside. When the HC J had challenged religious authorities in the 1969 Shalit case, it had lacked the power to see its decision enacted. In fact, it had taken a serious blow when the Knesset overturned its decision with a new law within three weeks of the HCJ’s decision. The three conditions created the opportunities necessary for the HCJ (the last created by the HC J itself) to challenge religious authorities with some chance of success. But what explains the particular timing and manner of the HCJ’s challenge? If the HCJ demonstrated a will and desire to challenge religious authorities as early as Shalit, why did the religious law conflict emerge in the late 1980s? Why did it emerge in the manner that it did? The HC J challenged rabbinical jurisdiction over a number of areas that had, traditionally, if not by written statute, been under the authority of rabbinical courts or other rabbinical administrative bodies. Gender emerges as the most common and critical challenge against religious authorities in the early years of the conflict, the HC J using the “women’s equality” argument as a roundabout way to undermine rabbinical authority more broadly. Since rabbinical authority was distributed on a strictly male-only basis, the women’s equality argument became an effective tool against religious authorities that allowed the court to avoid appealing to the thankless debate in Israel over freedom of religion versus freedom from religion (Raday 1996). There existed no consensus in Israel supporting a change in the status quo of religion and the state so that both freedom of and freedom from religion would exist. A desire to have a “Jewish” state, and a general sense that the best way to ensure that character would be Orthodox control over marriage and divorce, has remained in the majority of the Israeli population. This sense is summed up nicely in the now apocryphal phase in Israel, “the synagogue I don’t go to is an Orthodox synagogue.” This ambivalence has been seen in Israel since its earliest inception, as discussed in chapter 3, when David Ben-Gurion made a deal with the ultra-Orthodox organization, Agudat Israel, that the state would incorporate religious institutions in exchange for Orthodox support of the new state. In fact, some have emphasized this as the ever-present tension between secular, socialist Zionism and the desire to create a “Jewish” state. Ben-Gurion himself responded to the questions, does Jewish mean religion, history, heritage, ethnicity, and

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so forth? For himself, he concluded that the Jewishness of the state should be characterized by Jewish history, including biblical history. Given a lack of public support for a change in the status quo on religion and the state, no new legislation, nor a wave of international pressure supporting such a change, why did the court engage in this broad challenge of religious authority when it did? I argue that the timing and manner of the HCJ’s entry into this conflict was caused by informal interactions between the HC J, on the one hand, and social movements engaged in legal mobilization against the status quo on religion, on the other hand. In fact, I argue that the HCJ justices and social movement lawyers formed part of an informal intellectual community that was, above all, a site of legal norms generation for the HCJ. I call this community the judicial community. The judicial community is an informal intellectual community that has included, in Israel, justices, legal scholars, social movement lawyers, and government lawyers, as well as some clerks and interns. While the judicial community in the early years of the state was comprised mainly of state elites, by the mid-1980s it had expanded to include a broad range of legal scholars and, importantly, key social movement cause lawyers. Over the course of decades, members of the judicial community engaged in conversations and debates over the pressing legal issues of the day. These debates were conducted in the formal context of court proceedings and, importantly, the informal contexts of academic, governmental, and other conferences; mutual social movement activities; and, less frequently, in various types of social events. The interactions within the judicial community were reflective of the “weak ties”—among acquaintances—by which Mark Granovetter (1983) argues that we are most likely to be influenced by new ideas. Indeed, most members of the judicial community knew one another by face and reputation; close personal ties were less important in the process of interaction that is the subject of this study. The debates within the judicial community provided the primary site of legal norms generation for the HCJ; the norms developed within this judicial community became the currency of both social movement briefs and legal reasoning within HC J decisions. And, critically for my study, these debates culminated in new norms that supported a direct HC J attack on the autonomy of rabbinical institutions within the state. Social movement lawyers brought cases to the HCJ contesting rabbinical authority on the grounds of women’s equality; the HCJ took up the women’s equality argument and used it in subsequent cases to undermine rabbinical authority on various grounds, leading to a conflict so heated that newspapers and dinner tables around Israel were filled with it for over a decade.

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Indeed, this conflict continues to be arguably the most heated internal conflict within the Jewish community in Israel, even in the context of the heightened security issues with the second Intifada. The HCJ and these social movements found themselves in an implicit alliance in which each provided the other with the opportunity to pursue its goals. The women’s movement was particularly critical, as it was the first to bring the women’s equality argument, and it maintained an inherent connection to tensions between women’s rights and religious authority, the area that the HCJ found so fruitful for attack.

Judicial Communities and Judicial Power In an era in which high courts have become evermore politically active, from Europe to Latin America to Asia, the story of the religious law conflict in Israel has important implications for our understanding of courts’ engagement in political questions and their advancing of specific legal-political agendas. Specifically, the story of the religious law conflict in Israel sheds new light on the relationship between community, judicial decision making, and judicial power. Following Kathryn Hendley’s argument that increased demand on courts increases the political salience of courts (1996), I began with the proposition that courts gain political power through engaging in political decision making—answering questions of major national political import. The argument of the book is that court decisions, from formal decisions in cases to decisions on whether to hear (political) cases, come out of justices’ participation in particular sorts of intellectual communities. Court decisions are the product of changing ideas within these informal communities. The nature and direction of court decisions will be largely influenced by the socioprofessional community of the judges or justices, that is, the people with whom they think and argue about the law on a daily basis. In Israel, justices actively cultivated this community, seeking out lawyers who might join it. Likewise, lawyers for (unpopular) social movements enthusiastically sought to join the judicial community, thereby participating in the debates that would ultimately shape High Court decisions. Both sets of actors were enthusiastic agents in the cultivation of the community and in the debates and conversations within the community, albeit in an unequal relationship. Both gained through the interaction, most notably in knowledge of trends in thinking within the community and knowledge of the personal and professional reputations of members. The decision of the High Court to begin challenging the institutional autonomy of state religious authorities in 1988 led to a dramatic increase in

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judicial power in Israel. As discussed in chapters 1 and 6, the number of cases brought to the court skyrocketed during this period, in part due to social and political changes in the years before the 1988 decisions and in part in response to the precedents set in key High Court cases. Moreover, the High Court became the focus of a barrage of criticism, threats, and even calls for its dismantling as religious constituencies expressed outrage at the court’s challenge of their institutions and leaders (chapter 4). By being placed in the media spotlight in this way, the court and the entire judiciary dramatically increased in public visibility and political salience. Perhaps ironically, public opinion polls demonstrated continued and even increasing court legitimacy in the eyes of the public throughout the 1990s (Barzilai 1994; Israel Democracy Institute 2002). This support came despite or perhaps partly in response to this criticism. Public support for the institution of the judiciary in spite of the widespread attacks and challenges to its legitimacy lends credence to Hendley’s argument (1996) that increasing judicial visibility means increasing political salience, which in turn translates into increasing judicial power. I have argued that the High Court’s choice to challenge another part of the state, and particularly the administrative power of the state, is key to this increasing judicial power. In this case, the administrative powers the court curtailed were located within state religious institutions. Challenging the administrative power of the state may contribute to the public perception of the judiciary as protecting the substantive rights of citizens against state power (Scheingold 1974), increasing judicial standing in the public eye. And it certainly increases the power of the judiciary vis-à-vis the state institutions that it succeeds in reviewing, challenging, or otherwise undermining. Increasing judicial power is not, however, only an expression of expanding the power of “the state.” To the contrary, I argue that judicial power may increase the most when the judiciary challenges other parts of the state, and particularly when it protects substantive rights and challenges the administrative powers of the state. In some ways, this process can be boiled down into one of judicial bolstering of the public perception of a “myth of rights” (Scheingold 1974). However, it is also true that in challenging the right of state institutions to exert state power over citizens in certain areas, real changes in the substantive rights of individuals do sometimes occur. In the Israeli case, as seen in chapter 6, these new rights in practice are visible in women’s rights to sit on local religious councils, to be voting members for municipal rabbis, to gain equal division of property in divorce cases, and the like. While I do not deny that courts may be more constrained than rights advocates may want

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to believe (Rosenberg 1991), and I agree that courts seek power (Shamir 1990), I would deny that court decisions have no impact on substantive rights. While some may criticize them for not going far enough, the landmark cases discussed in chapter 6 have significantly changed the lives and life options for real women in Israel. Regarding substantive rights, the question becomes whether it makes a difference if state power is centered among administrative institutions, which are usually granted the power to enforce law and policy on citizens, or within the judiciary. In criticizing judicial power, then, it is important to note that “state power” is neither unified nor unitary (Migdal 2001; Mitchell 1988b). Administrative power may have substantially different implications for citizens than does judicial power where judiciaries are subject to both judicial independence and checks and balances. As seen in the case of France, below, even where the highest court leans toward administrative authorities, it is still bound by the law, which constrains it in certain areas (see also Thompson 1975).

Judicial Communities in Comparative Context: Suggestions for Further Research Is the judicial community’s model relevant to other cases? The short answer is yes. In the case of judiciaries where judicial independence is well established (but not excessive, as in the case of Italy), we should expect to find that judicial decisions are largely informed by the intellectual community around justices. The question for each case is who, exactly, is part of that community. Where the executive, for example, is a major intellectual referent for the highest level of the judiciary, we should expect to see decisions that fairly closely reflect executive thinking on a topic (as in France). Where the judicial community is dominated by left-wing legal scholars and social movement lawyers, as in Israel, we should expect a jurisprudence with a concerted focus on rights. The preexisting predilections of justices may well be important; in the case of Israel, for example, the justices had already demonstrated willingness to tackle certain rights issues. It remained for cause lawyers only to push the justices to the logical conclusions of some of their own positions (as in advocating for women’s rights, an issue previously avoided by the justices). In the coming pages, I apply a preliminary judicial communities analysis to the cases of France, India, the United States, and Italy. These cases include highly disparate institutional configurations, cultural and historical contexts.

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In all but one case, judicial communities appear to be present and important in justice thinking on legal questions. In the case of Italy, because of a rare institutional configuration (virtually no checks and balances of the judiciary by an outside institution), the number of judicial communities is so high as to render such an analysis moot. I suggest a few factors as helpful in distinguishing types of judicial communities as well as their potential influence on judicial decisions. The cohesiveness of the community will affect the normative orientation of the high court, as well as the consistency of high court decisions. If the salient intellectual community around the justices of the high court is highly cohesive, meaning that there is one primary intellectual community binding most or all of the justices, the court is likely to develop common normative orientation that will be relatively predictable along major philosophical lines. Some have suggested that when U.S. lower courts include three judges with similar political orientations (rather than two similar and one different), such courts are more likely to develop an “extreme” jurisprudence along normative lines (Sunstein 2001, 37). This hypothesis is in keeping with my argument that judges who are part of cohesive judicial communities are likely to develop jurisprudence that is relatively predictable along certain normative lines, particularly regarding administrative powers versus substantive rights. Decisions on specific, smaller subissues will be harder to predict, but major trends in orientation regarding substantive rights versus administrative authority will become clear over time in a cohesive judicial community. Highly Cohesive Israel is just such a case of high cohesiveness with a common normative orientation and fairly consistent jurisprudence, in this case, in favor of rights and maintaining administrative powers in check. This book explores the Israeli case in great detail. In the coming pages, I will suggest several cases that demonstrate that judicial communities exist and thrive elsewhere as well, and in cases that vary by institutional structure; written constitution or not; republican or single-district national systems; multiparty or pluralist electoral systems; and civil, common, or multiple-tradition legal systems. The existence of these communities under such varying conditions suggests that judicial communities are a highly significant “find” in the study of comparative judicial politics that warrants further investigation. I will analyze these cases briefly in terms of cohesiveness, orientation, and consistency.

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A case that is similar in cohesiveness to Israel, but lies on the opposite end of the normative spectrum, is France. The French judicial community is highly cohesive and is dominated by political elites (by contrast to Israel’s left-wing legal scholars and social movement lawyers). Due to historical French insistence on separation between judicial and administrative functions in order to curb judicial power, the regular courts do not review governmental actions, and they rarely review cases related to individual claims against state agencies (Provine 1996). Rather, an administrative court, the Conseil d’Etat, and a special constitutional court, the Conseil Constitutionnel, address questions of administrative power and constitutionality of legislation, respectively. In the latter case, the review of legislation is purely “abstract review” of proposed legislation; the Conseil Constitutionnel does not review legislation that has been passed (Guarnieri 2001). The Conseil d’Etat also engages in abstract review of legislation when requested. Its primary formal role has been to provide legal council to the administrative arm of the state, and, importantly, to hear cases relating to the exertion of administrative power, particularly complaints that some part of the state bureaucracy had transgressed the rights of a citizen or citizens. Thus, it is the intellectual community of the “judges” of the Conseil d’Etat that is the salient comparison for the judicial communities theory. The Conseil d’Etat was first established at the Palais-Royal, in Paris, in 1793 to offer advice and legal council to the administrative arm of the state. It has engaged in administrative review since 1799. “Administrative review, it was hoped, would be sufficient to protect the rights of French citizens against the arbitrariness of the much-resented bureaucracy” (Provine 1996, 187). However, its constitutional-type role increased with the new constitution of 1958, which strengthened the position of the administrative arm of the state. This constitutional role has become even more pronounced since the 1970s, since which time it has been asked to review legislation and administrative acts before enactment, in addition to its role as decision maker on issues of fundamental rights versus administrative power (Provine 1996; also see Le Conseil d’Etat Web site: http://www.conseil-etat.fr). The Conseil d’Etat is the highest administrative court in France, which has three levels of administrative courts, the judges of which are considered judicial personnel (Abraham 1993; Stone 1992). For the purposes of this study, it is important to highlight the fact that the members of the Conseil d’Etat are considered part of the administrative branch of the state. The French state has gone to extreme ends to insulate both regular judges and those of the Conseil from all other social actors in an effort to maximize judicial independence. Regular judgeships are appointed

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through a highly professionalized merit process directed by the judiciary (Guarnieri 2001). Judges are trained in specialized schools after receiving a law degree. The majority of the approximately three hundred appointees to Conseil d’Etat are recruited through examination from a single graduate school, the Ecole Nationale d’Administration. Some hold law degrees, but many do not. Very few, if any, have been regular judges. Rather, their professional experience is within the administrative branch of the state. Most of the few who come to the Conseil by “external” route also attended the same graduate school and have had at least ten years of experience as public servants working for the state. Recruits who enter by exam are taken from the top of the Ecole Nationale d’Administration, and they pass through a threetiered promotion process that requires at least three years for the first promotion, twelve years for the second. These promotions usually take longer than the minimum, and promotion to the highest posts within the Conseil are conducted strictly on the basis of seniority. Once at the highest level, members become “Councilors for the State” overseeing the eight major branches of the structured bureaucracy that is the Conseil d’Etat. Although career paths vary somewhat, when one reaches the top leadership positions within the Conseil it is most likely that one has spent one’s adult life working within the Conseil, periodically elsewhere within the administrative branch, and perhaps having had brief leaves of absence to work in the private sector. Moreover, it is not uncommon for high-ranking bureaucrats to have attended the same high school in Paris, Lycée Louis XIV (or Lycée Louis-le-Grand), which is the primary training ground for those who seek to be important members of the state bureaucracy. For example, Georges Pompidour, Jacques Chirac, and all presidents of the Fifth Republic attended Lycée Louis XIV. Because of their common education, some of the highest ranking members of the Conseil and the executive branch have known one another as acquaintances (and sometimes as friends) not only all their adult lives, but since their teens. This common training and professionalization process is reflected in the people who the highest ranking councilors turn to as their primarily legal-intellectual community. In Bruno Latour’s one-of-a-kind ethnography of the Conseil d’Etat (2004), the everyday workings of the Conseil unveil a set of judges for whom the major referents in legal questions, both mundane and weighty, are found among members of the executive branch. At one point, in attempting to determine what should be done about the bureaucratic oversight of a missing signature on a document, an oversight with no additional legal significance except in as much as it breaks a bureaucratic rule, the head justice determines that he will clarify what to do with the

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Secretary-General of the Government, who has more experience with these things (Latour 2004). One anonymous legal scholar with ties to the top judges on the Conseil told me in 2004 that the head justice and the Prime Minister regularly discuss issues such as the scope and limits of laïcité, the extent to which the Conseil will be able to support, legally, the administration’s position on limiting women’s right to veil, and other major issues in which the Conseil is concerned about impending administrative decisions. The type of interaction I am highlighting between the Conseil and the executive branch is suggestive of informal interactions in which discussions and debates regarding legal issues both large and small are carried out. The close-knit training and professionalization process of the Councilors finds a strong parallel with the highly cohesive judicial community in Israel, except that in Israel the members all went to the same law school, and many have taught at yet the same law school in Jerusalem. With nearly all of the Councilors receiving their professional training within the executive, they are most familiar through education and professionalization with the norms, values, and bureaucratic-administrative orientation of the executive. And there is convincing ethnographic evidence of close intellectual ties on legal issues between Councilors and the executive. Thus, the judicial community around the Conseil in France has important characteristics of being a normative community. They speak and debate about legal issues, small and large, on a regular basis. Most live in close geographical proximity, primarily around Paris. Thus, as in the Israeli case, they are both intellectually and geographically close. It is important to note that, while there is direct communication between members of the executive and the Conseil in France, the interaction that produces the common intellectual orientation is one that is both intense, or frequent, and diffuse, meaning among acquaintances over long periods of time. It is not a process dependent on the close-knit interactions of five or ten close friends, but rather, a matter of intellectual-legal debate among the wider community of councilors and members of the executive. This can be seen well in the process of education and professionalization of the vast bureaucracy within the Conseil d’Etat and within the administrative branch at large. The judicial community in France has tended to produce relatively consistent rulings in favor of the administrative authorities, even going so far as to adopt major political interpretations of the executive. France’s Conseil d’Etat, for example, has supported the basic premise of the executive regarding its particular interpretation of secular nationalism, an extreme form of “laïcité,” in deciding against the religious expression of Muslim girls who seek to wear headscarves in public schools. Interestingly, when applied to Catholic

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forms of public religious expression, both the executive and the Conseil have been far more lenient, upholding the right to wear “nonostentatious” religious symbols in public schools, such as crosses, as well as upholding the right of the state to maintain sixteen national holidays that are Catholic holidays. ( Jewish Stars of David were considered non-ostentatious as well.) The right of priests and nuns to wear their religious habits in public or private schools in France has not been contested. When, however, the executive suggested publicly that it would like to ban the wearing of ostentatious religious symbols in all public places, such as Muslim headscarves and Jewish yarmulkes, the head of the Conseil reportedly cautioned the Prime Minister in private that, were the Conseil faced with a decision on such a policy, it might be forced to overturn it.2 Thus, the Conseil does not act as simply a rubber stamp for the executive, but the executive or administrative branch is the most salient legalintellectual community for the leaders of the Conseil d’Etat. Interestingly, the French case is not one in which institutional inefficacy or parliamentary paralysis has been important in increasing the caseload of the Conseil d’Etat. This fact highlights the role of institutional inefficacy as an enabling factor that can lead to dramatically increased demand for court decisions, when combined with social mobilization. It is important to remember that social mobilization can come from any location on the political spectrum, and in any given country case it may be dominated by rights activists (on the right or left) or by forces supporting administrative powers of the state (on the right or left). The French case demonstrates that institutional inefficacy is not strictly necessary for judicial communities to have an important impact on judicial policy. However, social mobilization remains critical to maintaining or raising demand for court decisions, which provides the Conseil with the opportunity to decide controversial issues—in this case, usually in favor of the administrative powers. Another case of a highly cohesive judicial community highlights the importance of social mobilization to the level of impact that we can expect from judicial communities. In India, justices are appointed to the Supreme Court by the President in consultation with the Chief Justice, who is also appointed by the President. The Parliament need not approve judicial appointments. Thus, the extent to which the appointment process is judicially or politically directed depends on the relationship between the President and the Chief Justice. Generally speaking, justices are appointed from the “high courts” of the Indian states. Their primary professionalization is within the judiciary, and they have all received training before that as lawyers. Some fewer have worked in legal practice. Like the United States and Israel,3 but unlike France, the Supreme Court has both final appellate

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and constitutional jurisdiction. It is noteworthy that several justices today maintain memberships in prominent rights-oriented legal-intellectual nongovernmental organizations (NGO), including the Indian Law Institute in New Delhi, suggesting legal as well as informal contacts with lawyers and scholars. Justices regularly attend such social organization functions; they frequently engage in extrajudicial writing on everything from their legalprofessional biographies to legal issues such as women’s rights; and they share a common professionalization process primarily within the judiciary. (In Israel, the professionalization of justices comes primarily through working as legal academics, through the judiciary, and to a far lesser extent, through legal practice; in France, it comes primarily through the administrative bureaucracy, often with the majority of one’s professional life centered in the Conseil d’Etat.) In all of these cases, the judicial community exists, but it has the greatest impact in Israel (where social mobilization and institutional inefficacy are both very high). The Indian Supreme Court is known for its support, ideologically, for many rights issues. However, it has been only a marginally activist court in the direction that its predominant judicial community would suggest, that is, in favor of rights and checking administrative powers (Epp 1998). For example, as recently as the 1970s, the Indian Supreme Court was unwilling to protect women’s rights in the area of violence against women (Basu 2001). State-level high courts had a stronger record of protecting women against rape and other forms of violence than did the Supreme Court. Lawyers, legal scholars, women’s organizations, and some colleagues of the Supreme Court began to protest some of the Supreme Court’s decisions on rape in the late 1970s (Basu 2001; Epp 1998). By the late 1980s, in the landmark Shah Bano case, the Supreme Court held up the right of women to at least minimal maintenance (alimony) above the autonomy of religious communal leaders to determine their laws. The court’s legal reasoning centered on jurisdictional issues; it asserted that the relevant secular law superseded religious laws when there was a conflict between the two (Akhtar 1994). In this case, women’s rights became the legal “event” necessitating (or allowing) the assertion of secular law over communal religious law. But this case did not reflect a wider rights-oriented jurisprudence, despite an apparent “rights consciousness” on the court (Epp 1998; Jacobsohn 2005). This contradiction is well explained by Charles Epp (1998), who cites the lack of a well-organized set of social movement organizations providing the Supreme Court with the opportunity of cases to decide. Without effective social mobilization that ultimately provides cases to the court, the court is like a ship without a sail; by all appearances, most of its justices maintain

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strongly rights-oriented attitudes, but without cases brought by society (social demand), the court cannot provide decisions ( judicial supply). In some cases, judicial communities themselves can provide social demand, as in cases such as Israel in which some members of social movement organizations who are also attorneys are active members of the judicial community. India has potential to be such a case, in which legal and other NGOs engage in litigation drives of their own, informed by the participation some of them already enjoy (particularly legal NGOs) in the Indian judicial community.

Low Cohesiveness—Multiple Judicial Communities High courts with low cohesiveness of the judicial community have several or even many judicial communities around nodes (or blocs) of justices who represent similar thinking on judicial issues. That is, a small number of justices with similar attitudes will gravitate toward like-minded legal-intellectual communities. In such cases, the same diffuse intellectual influence occurs between members of a given judicial community, who similarly reflect and are affected by a wider community of acquaintances who come together as an intellectual community to debate the major legal issues of the day. However, in this case, the influence of any one judicial community on the entire court is limited by the balance of normative orientations and potential alliances among the multiple judicial communities of justices. The multiple judicial communities compete with one another for influence over judicial thinking on major issues of the day. Generally, their influence is limited by the number of justices on the court who are part of their major philosophical orientation, the number of swing voters, and the potential coalitions around specific issue areas. The presence of multiple nodes of judicial communities within a single high court therefore complicates greatly the ability to identify judicial orientation(s) of the court as a whole, or to predict judicial outcomes even along major normative lines such as administrative power versus substantive rights. Multiple, non-cohesive judicial communities thus decrease the utility of the judicial communities model. In some contexts in which the number of judicial communities remains relatively small, as in the United States, analysis of the several judicial communities around the justices of the highest court may, nonetheless, prove significant to understanding sources of and variation in orientations, potential blocs on certain issues, and the like. Multiple judicial communities are not only a reflection of country size, or of unitary or federal systems, as they appear in such diverse contexts as the federal system in the United States, and the modified unitary system in

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Italy. The extent to which regions represent diverse or fractured interests and the extent to which regions have an impact on judicial appointments may affect the chances of multiple judicial communities developing. Country size may have an impact on fractured appointments due to the increased chance of fractured legislative branches, however, the size itself is not the cause. Both multiparty and pluralist electoral systems may also have either cohesive or multiple judicial communities. The key variables that increase the chances for multiple, non-cohesive judicial communities, as suggested by the cases below, include (1) fractured appointments, on a normative scale, and (2) the strength or weakness of checks and balances. Multiple judicial communities are more likely than cohesive judicial communities to produce either a fractured decision making on the court, meaning the development of a fractured jurisprudence; or to produce a middling effect, in which the separate judicial communities agree for a time on moderate or limited jurisprudence that may not be the most desired approach of any one of the multiple judicial communities. Some have suggested that under conditions of a fractured legislature, high courts with similarly fractured appointments and fractured legal and political orientations may produce a jurisprudence that is more moderate than any of the single orientation nodes within the court. The United States is a case in which most Supreme Court justices have worked as judges in various parts of the country, sometimes as attorneys as well. Judges must have a law degree. Most justices are educated in a number of elite law schools in various parts of the country. Although at some level there is a professionalization process common to many or most lawyers in the country (Abel and Lewis 1995),4 the United States provides a relatively diverse context, by contrast to some countries in which justices come from one or two law schools and perhaps even the same high school. Appointments are conducted through the political branches, by contrast to both Israel and Italy. Both the relatively diverse education and professionalization of justices in the United States, as well as institutional factors relating to electoral regimes, appear to play a great role in creating conditions of multiple, noncohesive judicial communities. Cornell Clayton (1999) has argued that the U.S. William Rehnquist court through the 1990s demonstrated the potential moderating effect of fractured judicial appointments under continuing conditions of a fractured legislative branch. He identifies three main blocs within the pre-2000 Rehnquist court and argues that: “Decision making on the Rehnquist Court . . . became the product of shifting coalitions around these three blocs, with O’Connor and Kennedy casting deciding votes in most controversial case and Stevens and Scalia the most vociferous and frequent dissenters” (159). While the

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Rehnquist Court during this period often produced fractured decisions in which justices signed as parties only to certain clauses within a decision, or in which entire blocs strongly dissented, at times it was able to avoid such fracturing. The effect of attempts to avoid fractured decisions was the development of decisions that were highly limited in scope and application. Even when the court avoids making fragmented decisions, it often does so only by strictly limiting the principle holding of the decision in order to accommodate competing jurisprudential views of the justices. Thus, political and jurisprudential fragmentation has led to a type of decision making that is pragmatic and minimalist. Increasingly, the Court decides cases on the most narrow grounds available and avoids broad principles that would control other cases, future courts, or the efforts of the elected branches to correct imperfections in their policies. Decisions are narrowly tailored to the specific facts of each case and are usually tied to careful, incremental developments of doctrine. (Clayton 1999, 161)

By contrast to the situation of a fractured legislature, when a single party dominates both legislative and executive branches and the highest court reflects multiple, competing judicial communities, the moderating effect that is possible under fractured electoral branches becomes less likely. For example, while the Rehnquist Court leaned toward state rights and limiting the power of Congress to create federal regulations throughout the 1990s (Rosenkranz 2005), it did so with increasing consistency after the electoral shift to single-party domination of both legislative and executive branches after the 2000 elections. Debates over the blocs and periodization of the Rehnquist Court provide insight into the impact of electoral change on the court. Some have argued that the Rehnquist Court can be split into two major periods, one from 1986 to 1994 in which the cases the court chose to hear were dominated by social issues (including abortion, the right to die, affirmative action, religion and state). The second period, according to this argument, was 1994 to the present, with a docket dominated by issues of federalism versus state rights (generally supporting the latter) (Merrill 2003). Clayton emphasizes three blocs on the Rehnquist Court in the 1990s: a conservative, center-right, and center-left bloc, each with three justices.5 By 2003, however, Thomas Merrill argues that the court was dominated by a single, five-person bloc (2003, 570). Given Clayton’s observations about the importance of regime change and level of electoral stability (or lack thereof) on judicial decision making, it is likely that the discrepancy between the two accounts lies in the regime change from a fractured legislature to a

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single party dominating both the legislative and the executive branches with the 2000 elections. Note that this effect is not only in appointments, which come far less frequently than do electoral changes. A move from a fractured legislature to a single-party-dominated legislature and executive may have its own impact on the court irrespective of changing judicial appointments. It may, thus, be that the Rehnquist Court can be said to have three identifiable periods, the last beginning with the election debacle of 2000. Indeed, in other cases, scholars have observed that when judges foresee a regime change, even in authoritarian contexts, they are more likely to make decisions against the existing regime and in favor of what they expect to be the coming regime (Helmke 2005). This observation may explain the dramatic shift seen in the U.S. Supreme Court during the election of 2000 from one in which the multiple orientation nodes on the court created a dual fracturing and moderating-limiting effect, to one in which one node with a new coalition of five within the court was able to dominate decision making even before the election was complete (on the Supreme Court during the 2000 election, see Gillman 2001). Under new conditions of single-party dominance in both electoral branches, this new coalition of five increasingly superseded, as Merrill suggests, the three sets of three justice blocs that Clayton observed in the 1990s. The greater the number of judicial communities associated with a single high court, the greater the number of orientations, and the less consistent judicial decisions will be along major normative lines, such as administrative powers versus substantive rights. Indeed, for each additional judicial community, one would expect more than one additional orientation and greater variety of judicial outcomes, as each new judicial community would result in increasing options for alliances among nodes on the court, and an increasing variety of swing voters. In some cases, the number of judicial communities may reach a high or even an infinite level. Under such conditions, the judicial communities model is not a useful tool except in as much as one may point out the existence of numbers of judicial communities too large to provide an analytical tool for predicting the normative orientation(s) of a high court. The Italian case provides an interesting counterpoint to the cases already discussed. It is one in which the number of judicial communities is extremely high due to interesting and unusual institutional arrangements. Italy is a case of multiple, non-cohesive judicial communities like the United States. But unlike the United States and French cases, it is a case of a sort of hyper-judicial independence with paradoxical results. Individual judges at all court levels enjoy an extraordinary level of formal independence from state institutions and from social actors. Individual judges at all levels have nearly

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unlimited discretion. Below the constitutional court, judges can and do move freely between the roles of judge and prosecutor; as prosecutors, they have discretion not only to investigate cases brought to them, but to initiate investigations of their own (Frederico 2001). Indeed, the terms “judge” and “prosecutor” are used interchangeably in the Italian lexicon. It is not only the constitutional court in Italy but lower court judges who have brought cases against corrupt politicians. When they have done so, they have dramatically increased their personal political standing as well as that of the judiciary at large (Frederico 1995, 239). On an individual level, judges are free to cultivate ties with both social and political interests. This is due to the lack of institutional checks on judicial discretion by any branch other than the judiciary itself (including, again, both judging and prosecutorial roles). Both in the process of recruitment and professional socialization and in administering the guarantees of their status, Italian judges—and Italian prosecutors—are subject only to limits that are unquestionably less constricting than those found elsewhere, since all decisions relating to them are made only by a body, the High Council of the Judiciary, two-thirds of whose members are magistrates elected by their colleagues. (Guarnieri 1995, 247–248)

The judicial branch selects lower court judges and does so in a way that keeps out extreme ideological positions (Alivizatos 1995, 577). Nonetheless, the judicial field is extremely fractured both ideologically and in terms of professionalization. Legal scholars, who make up the vast majority of parliamentary and executive appointments to the Corte Constituzionale, have become increasingly varied in their interpretation of codes.6 This situation stands in sharp contrast to the traditional civil law reliance on a consensus of prominent legal scholars regarding the interpretation of legal codes (Merryman 1985). The influence of academic doctrine has also lessened because it appears today much more diversified than before—many academics are advocating a more activist posture by judges—and because the organizational mechanism that once supported its importance, the evaluation of written judicial rulings as a base for career advancement, is no longer effective. (Guarnieri 1995, 252)

In addition to variation in the academic field, due to judges’ individual discretion to cultivate social and political ties of their choosing within the context of their professional work, the professionalization process does not lead to coherence among judges regarding legal norms or practices.

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The institutional freedom of the judiciary and its increasing activism in political questions can be traced to the establishment of the Higher Council of the Judiciary in 1959. This institutional change resulted in progressively more changes, put in place by the Higher Council, which took away institutional checks on the judiciary outside of the judiciary itself (Guarnieri 1995, 246). Regime change does not appear to be a significant factor in this case, as Italy maintained a single-party-dominant regime from 1945 until the early 1990s, with weakening of the hold of single-party dominance beginning only in the 1970s (Rimanelli 1999, 48–49). Importantly, the Italian case well demonstrates the limits of the judicial communities theory as well. The judicial communities framework cannot help to explain why the Italian judiciary has increasingly challenged especially executive but also legislative powers since the 1960s. While the Italian judiciary has the reputation of being an activist judiciary, it is so fractured at all levels, including the Corte Constituzionale, that the judicial communities framework is not useful in explaining the increased political activity of the judiciary. There are too many judicial communities for the normative legal development within a single judicial community to have an identifiable impact on the decision of judges to challenge the other branches, particularly on political corruption. The question of the relative activism of Italy’s constitutional court, the Corte Constituzionale, is debated. Some scholars suggest that there is a wide consensus that Italy’s is one of the most activist constitutional courts in Europe (see, for example, Alivizatos 1995), while others note that it has begun to avoid abstract review of parliamentary or executive decisions in recent years with 90 percent of its caseload instead based on appeals from ordinary courts (Bugaric 2001). Given the role of the lower courts in driving the politization of the judiciary, this appeals-dominated caseload still allows room for activism at the highest court level. However, because the legal scholars and judges who make up most of the highest court are both so fractured, there are too many judicial communities on the Corte Constituzionale for the judicial communities model to be helpful. What is most interesting for this analysis is the unusually important role that lower court judges play in driving judicial politics and increasing judicial power under conditions of nearcomplete institutional autonomy on the part of the judiciary. The autonomy of the Italian judiciary highlights the significance of checks and balances to the impact of judicial communities on the wider judicial system. Under conditions of hyper-independence, in which judiciaries are not effectively checked by other state institutions, the unchecked

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discretion of judges at all levels means that each judge is free to develop ties with myriad social and/or political forces. That is, the peculiar institutional arrangement found in Italy has a stronger impact on judicial choices than do the innumerable judicial communities that surround tiny groups or even individual judges across the country. In most states, these conditions will lead to far too many judicial communities for the framework effectively to explain judicial change and politization. In Italy, the individual decisions of judges around the country, rather than one or several judicial communities at the highest court level, are critical to the judicial challenge of other state institutions and resultant increases in judicial power. Thus, institutional and individual factors (likely suggesting a combination of attitudinal and strategic; see Eptstein and Knight 1998) are more important in the absence of checks and balances vis-à-vis the judiciary. The structural differences among these cases provide an ideal setting to test the impact of the common process that I argue is at the heart of the development of legal norms. That is, with the exception of Italy, despite the differences among these cases, judicial decision making appears to be highly influenced by the respective judicial communities. The outcomes may vary, as would be expected depending on membership of the communities, but the process of legal norms development as the foundation of judicial decision making appears to remain the same. The particular legal norms used as the foundation for jurisprudence in each of these country contexts matters for rights claims (freedom of religion, women’s rights, and other rights questions) in the long term. It is important to note the limits of the judicial communities theory. It does not apply to authoritarian states. Nor does it apply to conditions in which the judiciary has nearly un-checked autonomy, as discussed with the Italian case. Under authoritarian conditions, judicial communities may well exist. However, that community is likely not to have the freedom to work with justices based on the norms developed within the community in the way that it can under freer conditions. Working together regularly is an important part of the process of legal norms generation within judicial communities. Perhaps even more important, no matter who makes up the judicial community, under authoritarian states, it is most likely that the executive or the military will direct judicial decision making to a far greater extent than will the organic intellectual process of legal norms development within the judicial community.7 So, judicial communities may exist under authoritarian conditions, but they are unlikely to have a great impact on judicial decisions. Under conditions of judicial corruption—when decisions are for sale—the judicial communities

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theory likewise does not apply. Both authoritarian states and corruption speak to the requirement for judicial independence. However, it is important to note that corruption may come under either authoritarian or democratic conditions (Newberg 1995; Nardulli 1986, 383–384). In cases of un-checked judicial power, as seen in the Italian case, judges may be free to develop unlimited numbers of social and political ties on an individual level. As such, the most salient intellectual community in thinking about legal norms over time may be different from judge to judge. That is, a highly or completely autonomous judiciary may have, in the extreme, as many judicial communities as there are judges in the country. In such a case, judicial communities cannot explain why highest courts do or do not challenge administrative power of the state, or any other issue. Other factors, likely associated with attitudinal and strategic considerations, are likely to be more important in judicial decision making in these cases. In light of the critical role of the judicial community in the Israeli case, and preliminary investigation suggesting an important role in other cases, I would argue that an analysis of judicial communities is important to solving the puzzle that has faced scholars of comparative judicial politics. Why have so many judiciaries around the world increasingly taken on big political issues, and particularly rights questions, since the end of World War II (Russell and O ’Brien 2001; Tate and Vallinder 1995)? Why have we seen increases in judicial power at the same time that we have seen this increasing judicial intervention in politics? The Israeli case demonstrates the need for attention to the intellectual communities of the justices as essential to the development of legal norms. Given the cultivation of certain legal norms judicial communities may contribute to increasing judicial power. The particular membership and norms generated within judicial communities appears to be an important potential answer to these questions. Legal norms are in many ways the currency of judicial decisions. I argue that legal norms, the role of the state (judiciary) in the construction of legal norms, and the role of social actors in their construction, are critical to understanding the foundations of judicial decisions in many cases. Certain types of judicial decisions—particularly those that involve increasing judicial intervention into political questions, and curbing the administrative power of the state—are likely to lead to the greatest increases in judicial power. I argue that these decisions, and thus judicial power, cannot be understood without attention to the political sociology of intellectual developments within judicial communities.

Notes

Introduction 1. While the Association for Civil Rights in Israel, the Israel Women’s Network, and the Israel Religion Action Center—each of which is a sort of umbrella representative of the civil rights movement, women’s movement, and religious pluralism movement—maintain a high level of prestige within the judicial community and among themselves, they are decidedly not popular in the wider society. Classic accounts of strategic decision making would lead us to expect the HCJ to ally with popular movements, which could garner widespread social support for the institution and its decisions. To the contrary, the HCJ has allied with unpopular movements that are, even more to the point, pursuing a largely unpopular policy change in seeking to uproot the institutional status of religious authorities in Israel. Thus, while the HCJ’s choice of legal arguments used to confront religious authorities certainly suggests a strategic aspect to its decision making, the strategic considerations are complex and have been more rooted in seeking legitimacy through legal norms than through popular support. 2. Nevo (1990) is a labor case that began prior to Shakdiel and “Poraz.” It was heard, in part, concurrently with them. It is the first case in which the HCJ heard the argument for women’s equality. Frances Raday brought that case to the HCJ. 3. Some members of the women’s movement are not feminists. For more on this topic, see my “It’s Israeli After All: A Survey of Israeli Women’s Movement Volunteers,” Israel Studies Forum 19, no. 2 (April 2004): 29–53. 4. See discussion of the treatment of the Israeli women’s movement in Israel as a foreign (and, primarily, American) movement, out of touch with mainstream Israeli society in my article cited in note 3. 5. H.C. 2888/92 Goldstein v. The Minister of the Interior et al.; H.C. 1000/92 Bavli v. The Supreme Rabbinical Court P.D. 48 (2) 221 (1994) (Hebrew); H.C. 257/89 Hoffman et al. v. The Guardian of the Western Wall P.D. 48 (2) 263 (1994) (Hebrew); H.C. 3358/95 Hoffman et al. v. The Guardian of the Western Wall P.D. 54 (2) 345 (2000) (Hebrew).

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Chapter 1. Judicial Community, Judicial Power, and National Politics 1. I use the word “organic” here in the sense that Antonio Gramsci uses it when he discusses the natural, organic process through which authentic intellectuals emerge from their social communities and classes (1971, 5). In the case of judicial communities, they are also organic communities in that they develop through a combination of a common set of (intellectual) interests, physical proximity, and regular physical contact. Close personal ties are not critical here; it is being part of a process of regular, diffuse contact that is most important in the intellectual development of the community. By using Gramsci’s understanding of the term “organic,” I am not suggesting that members of the judicial community make up their own class. Members of the judicial community belong to different class groups in the wider society. They do, however, make up a small social and, most importantly, intellectual community. In identifying organic intellectuals, Gramsci makes space for them to emerge from either social groups or social classes. In the case of judicial communities, members come together over time to form a coherent, intellectual social group (what I am calling a community) that is much narrower than a social class and is not organized on material interests. 2. In cases in which judicial processes are checked exclusively by the judiciary, conditions of hyperjudicial independence may occur. Under such conditions, as in the Italian case discussed later, the number of judicial communities may become almost as high as the number of judges in the country, making analysis of judicial communities no longer the most effective tool in predicting major trends in high court thinking. 3. For a detailed discussion of judicial independence, see Russell and O’Brien 2001. Russell defines judicial independence, a requirement for a “liberal society,” in terms of what it is not: “political direction of judicial decision making, bribery, corruption, and a nearly total absence of economic security for their judges” (2001, 1); or in more abstract terms, “structural, personnel, administrative, and direct” impingements on the ability of a judiciary to make decisions free of external controls (13). 4. The work of Lynn Mather, Craig McEwen, and Richard Maiman supports this point; they emphasize that communities of legal practice shape and are shaped by the values and conduct of individual attorneys (2001, 14). Likewise, in his work on courts as organizations, Lawrence Mohr points out that “decision-making groups . . . may well be subject to different contexts at different times and may shift, with changes of context, into different modes of choice” (1976, 627). 5. Durkheim writes regarding governmental authority: “Thus it partakes of the authority that the collectivity exercises over the consciousness of individuals, and from this stems its strength. Yet once this strength has arisen, not breaking free from the source from which it derives and on which it continues to feed, it nevertheless becomes a factor of social life which is autonomous, capable of producing its own spontaneous actions” (1997, 43).

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6. See Gavison 1998. Aspects of her argument have been published in English in the Israel Law Review, the Israel Yearbook on Human Rights, and in an interview with the newspaper Haaretz. 7. I am grateful to Stuart Scheingold for insights regarding this point. 8. Nardualli cites Andrew H. Malcolm, “Chicago’s Inquiry Shows Courts Hidden Side,” New York Times, December 18, 1983, p. 17. 9. The term “Grundnorm” was used by Hans Kelsen (1992) to refer to an overarching legal principle upon which many different specific types of legal decisions are grounded. For Kelsen’s hierarchical theory of legal norms, “Each layer successively generated the next, and all emanated from a single primordial governing norm (Grundnorm) at the highest level of authority” (Alpern 1999). Thus, a Grundnorm would include the acceptance of the principle of administrative legality, in which all state institutions are required to treat all citizens equally unless specifically allowed to do otherwise by written statute. This Grundnorm is a major principle underlying many different types of questions relating to governmental treatment of citizens, from unequal treatment of ethnic minorities, women, gays, and lesbians, children, members of a certain profession, and so forth. Kelsen’s theory of the Grundnorm became one of the grounds of constitutional law in the civil law tradition in continental Europe (Bugaric 2001). While the term emerges from the civil law tradition, it has become common parlance within the common law tradition as well (see Brandon 2003; Jenkins 2001; Winterton 1976). The term is prescient for Israel, which has a mixed legal tradition emerging from both civil and common law roots. Israel’s legal system was deeply influenced by civil law for at least the first three decades of its existence, particularly due to the fact that the majority of its justices during this period were born and educated in Germany (Salzberger and Oz-Salzberger 1998). Since the 1980s, and especially the 1990s, the HCJ has increasingly drawn on American constitutional law in the discussion of legal principles in its case decisions, while still reflecting some aspects of the civil law tradition. (For example, its case decisions reflect the type of legal treatise more characteristic of the civil law tradition than that of common law, although these two traditions are arguably merging [see Merryman 1985].) 10. See, for example, Pnina Lahav’s discussion of the Agranat Commission, which investigated the failure of the Israeli political leadership to foresee the attacks of the 1973 War. The commission, a special judicial tribunal, decided it did not have jurisdiction to determine whether the Knesset had failed in its duty, as that was a political question that must be decided by the elected institutions and the people. The commission, and the High Court by extension, was criticized for distinguishing between institutional responsibility, which it refused to decide, and the personal accountability of specific leaders, which it did decide (1997, 231–233). In the case of the Kahan Commission on the Sabra and Shatila massacres, the commission was criticized for not returning a more condemning decision against Ariel Sharon, who was found to be complicit but not to have given a direct command. In the case of the Kahan Commission, a massive social movement emerged after its decision, the first massive movement against certain executive and Israeli Defense Forces policies, first in Lebanon and then in the Occupied Territories more generally (see Barzilai 1996, chap. 6).

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Chapter 2. The Israel High Court of Justice and Religious Authorities 1. “Kulturkampf” is originally a German term referring to the conflict between the German Prince Bismark and the Catholic Church in the late nineteenth century. The term is usually translated as referring either to a battle for civilization or culture war. For more information, see Ronald J. Ross, The Failure of Bismark’s Kulturkampf: Catholicism and State Power in Imperial Germany, 1871–1887 (Washington, DC: Catholic University Press of America, 2000). 2. Itzhak Zamir seems to define natural justice, for the Israeli case, as referring to basic principles that do not require legislation but provide the groundwork for a broad range of legal questions. He associates the rule of law with natural justice, particularly as it requires that the actions of the government remain within the confines of the law, and that the official decisions of public servants not be subject to conflict of interests (1996, 8, 28; Zamir and Zysblat 1996, citing Aharon Barak in a 1980 HCJ decision, 172, 174–176). 3. One source of contention in the conflict since 1988 has been precisely in defining what falls under personal status law: rabbinical officials include matters such as conversion and official Jewish identity, whereas secular lawyers and judges include only marriage, divorce, burial, and a few other matters not including conversion or identity (interview with Rabbi Eliyahu Ben-Dahan, Director General of the Rabbinical Courts of Israel, August 1997). 4. Most changes in the early years of the state were legislative: the Women’s Equal Rights Law (1951); Adoption Law (1951, based loosely on halakhic principles); Capacity and Guardianship Law (1962); Succession Law (1965, based loosely on halakhic principles); Dissolution of Marriage Law (1969); and Spouse Property Rights Law (1973). The case law on the subject of religion and state is extensive (see Rubinstein, 1996, vol. 1, chaps. 4, 5, 6). However, the cases in which the authority of the religious establishment was ultimately challenged or undermined have been far fewer. A few important HCJ cases include: H.C. 26/5 Kutik v. Wolfson 5 P.D. 1341 (1951) (Hebrew); H.C. 262/62 Peretz v. Local Council of Kfar Shmaryahu 16 (3) P.D. 2101 (1962) (Hebrew); H.C. Halkai v. Minister of the Interior P.D. 17 (1963) (Hebrew); and H.C. 58/68 Shalit v. The Minister of the Interior et al. P.D. 23 (2) 477 (1969) (Hebrew). With the exception of Shalit, these cases did not provide a direct assault on the institutional autonomy of rabbinical authorities. In addition, other cases were brought to the High Court relating to religious law and religious authorities, but usually were not successful in the court. In a few cases that were successful in the court, the decision did not constitute a High Court challenge because of clear legislation. In the famous “Brother Daniel” case (Rufiesen v. The Minister of the Interior), in which a Jewish-born man who subsequently converted to Christianity and became a monk sought rights as a Jew in Israel, the HCJ decision was the outcome desired by religious authorities and thus cannot be included as a High Court challenge of religious authorities. 5. In the early years of the state, including the Women’s Equal Rights Law (1951); the Adoption Law (1951, based loosely on halakhic principles); Capacity

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and Guardianship Law (1962); Succession Law (1965, based loosely on halakhic principles); Dissolution of Marriage Law (1969); and Spouse Property Rights Law (1973). The case law on the subject of religion and state is extensive (see Rubinstein 1996, chaps. 4, 5, 6). However, the cases in which the authority of the religious establishment was ultimately challenged or undermined have been far fewer. 6. H.C. 26/5 Kutik v. Wolfson 5 P.D. 1341 (1951) (Hebrew). 7. H.C. 262/62 Peretz v. Local Council of Kfar Shmaryahu 16 (3) P.D. 2101 (1962) (Hebrew). 8. H.C. Halkai v. Minister of the Interior P.D. 17 (1963) (Hebrew). 9. Other cases were brought to the High Court relating to religious law and religious authorities but usually were not successful in the court. In a few cases that were successful in the court, the decision did not constitute a High Court challenge because of clear legislation. 10. Cf. note 9 in chapter 1. 11. For a broader account of the judicial developments regarding security in Israel, see Kretzmer 2002 and Hofnung 1996b. 12. Security and religion are widely held to be the two most controversial or what many in Israel call “sacred cow” issues in Israeli politics. 13. Justices are chosen by a professional committee composed of the Minister of Justice, who formally chairs the committee; one other member of the Cabinet; the President of the High Court, who in practice has dominated the committee; two other High Court justices; two Knesset members; and two representatives of the Israel Bar Association. Thus, both in practice and in law, the judicial appointment process has been strongly directed by the legal profession, with a high degree of influence granted, in practice, to the President of the High Court. For more on judicial appointment and tenure, see Shetreet 1994. 14. It is theoretically possible that under revolutionary conditions, justices’ intellectual communities could become politically salient in previously authoritarian states. However, the judiciary would have to be part of the revolutionary movement in order for this to be the case. In transitional democracies, too, judicial communities might become politically salient. However, it is unlikely that they would have an important influence on judicial politics under continuing authoritarian conditions. 15. One exception relevant to the religious law debates is H.C. 262/62 Peretz v. Local Council of Kfar Shmaryahu 16 (3) P.D. 2101 (1962) (Hebrew). The Movement for Progressive Judaism was involved in bringing this case, but for a number of reasons, in 1962 it would be inaccurate to call that group a social movement. 16. See chapter 6 for further discussion. 17. Interview with Frances Raday, Jerusalem, 1997.

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18. By 1997, the IWN was an umbrella organization for 33 women’s organizations in Israel, as well as 127 organizations peripherally in contact. 19. The earliest case broadening the rules of standing was H.C. 217/80 Segal v. Minister of Interior 34 (4) P.D. 429 (1980); followed by H.C. 1/81 Shiran v. Israeli Broadcasting Authority 35 (3) P.D. 365 (1981); and finally H.C. 910/86 Ressler v. Minster of Defense 42 (2) P.D. 441 (1986). 20. According to the Guttman Report (1993), 67 percent of the Israeli public either supported the existing relationship between religion and state, or wanted more religion in public life (see also Liebman and Katz 1997, 21). More recent surveys seem to indicate an opening of attitudes toward Reform and Conservative groups, and a slight decrease in support for the status quo on religion and state. However, for the period in question, when the women’s movement brought the initial cases to the court, the Guttman figures are salient.

Chapter 3. The Irony of State Incorporation 1. As discussed in chapter 1, the civil courts in Israel are separated into three different levels: magistrate (trial) courts, district appeals courts, and the Supreme Court. The Supreme Court functions both as the highest court of appeal for trial cases and as the HCJ. The Supreme Court hears regular appeals based on falsified evidence, or if another person has been convicted of the crime in question. As the HCJ, it decides whether lower courts have acted within their jurisdiction, within the parameters of natural justice, or in other “exceptional cases” where it sees fit to intervene in the interest of justice. It is as the HCJ that the court has jurisdiction over rabbinical ( Jewish religious) courts (Moaz 1991, 477). 2. Yishuv is the Jewish community in Israel before the establishment of the state. 3. The various Zionist schools have been discussed at length elsewhere, and will not be revisited here. See, for example, Cohen 1992, Hertzberg 1959, Rubinstein 1984, Sachar 1996, Segev 1986, and Shafir 1996. 4. Many scholars have discussed the nationalist bargain for Jews in Europe. After the French Revolution, French Jews were asked, formally, whether their first loyalty was to the French nation or to the Jewish community. Citizenship was granted to Jews in France based on the answer that Jews were French citizens first. Ethnonationalism in Europe thus had stunning implications for the Jewish and other communities, the impact and complications of which are still seen today, particularly in ethnic conflicts in which the assumption is that the territory of the state should naturally correspond with the boundaries of the (homogeneous) community, and vice versa (on ethnonationalism, see Hobsbawm 1994, 1996). 5. For a discussion of the various intellectual trends in Zionist thinking on the significance of Judaism for the Zionist programs, see Rubinstein 1984 and Hertzberg 1959.

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6. Indeed, later comments from Rabbi Kalmann Kahana point to a failure on the part of both secular and religious educators, in their battle over secular versus religious education, to recognize the cultural and religious heritage of the “oriental” communities they sought to mold: I blame [MAPAI MK Nahum] Levin’s education for trying to take away from Oriental immigrants not only their religion, but also their communal and cultural identity. However, in this matter I blame us too. The religious education, too, failed to appreciate the culture which those people had brought with them from Yemen, Morocco, and Turkey, and we did them harm by imposing our own religious education on them. There were Yemenite children who knew entire chapters of the bible [sic] by heart, and I, a Hebrew teacher, taught them as if they didn’t know any Hebrew, because their accent differed from mine. And what did I teach them?—The cat sat on the mat. I did them harm. Today I feel that it was a disaster, not only to the immigrants but to the whole country. (cited in Segev 1986, 229) 7. These regulations were relaxed due to pressure from the secular or semisecular public. Orthodox and ultra-orthodox communities have fought these issues periodically, but generally displayed flexibility as far as attempts to force the secular public to follow these restrictions. On personal status law, this flexibility has not appeared (Edelman 1994, 58–59), at least not publicly. (There are some indications, from anecdotal accounts in my interviews, that there are rabbis whose interpretations of personal status, and particularly divorce codes, are more flexible and “liberal” than current standard readings amongst the central authorities of the rabbinical courts and Rabbinate. However, for whatever reason, these rabbis do not appear able to make these positions public.) 8. See, for example, the Brother Daniel case; Shalit 1969; Shas v. Office of Population Registry 1987. 9. For work on the strategic factors involved in religious establishment attempts to raise public funds for religious schools, and to keep those schools out of the reach of any government oversight, see Sebba and Shiffer 1998. 10. An agreement was reached in 2000 between the government and the Reform Movement in Israel (The Israel Movement for Progressive Judaism) that allows the movement’s members to pray at a separate part of the Western Wall, not visible from the central plaza. Reform movement members do pray with men and women together. 11. I use the term “institution” at several different levels: (1) the state as a whole; (2) the state in its parts, meaning all the institutions that make up the state, such as the High Court of Justice, and religious courts, and the like; and (3) institutions that cross the boundaries between state and society, or over which there is competition between state and society, such as family, religion, marriage and divorce law, and so on. 12. This analysis is informed by Mary Douglas’s framework of group and grid (1978) to understand varying emphases on group boundaries and internal communal restrictions.

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13. Personal interview, Johnathan Rosenblum, founder of Am Ahad, an English-language lobby and public relations organization for the Haredi community, Jerusalem, May 2000. On Haredi disapproval of the establishment of the state, see Charles S. Liebman, Religion, Democracy, and Israeli Society (London: Harwood Academic Publishers, 1997) as well as Cohen 1992, Rubinstein 1984, Sachar 1996, and Segev 1986. 14. See Beliefs, Observances, and Social Interaction among Israeli Jews ( Jerusalem: Louis Guttman Israel Institute of Applied Social Research, 1993). See also Levy, Levinsohn, and Katz 1997. 15. Reform and Conservative leaders I interviewed referred to themselves specifically as Reform or Conservative. 16. The Mizrahi Movement was a prestate Orthodox movement in Israel that eventually became a political party. It was mainly composed of Ashkenazi orthodox Jews. See, for example, Avi-Hai 1974, Cohen 1992, Rubinstein 1984, and Segev 1988. 17. On Ottoman Jewry in Palestine, see Campos 2000. 18. On changes in Haredi communities in Israel toward participation in modern commerce and some forms of modern technology, see Sheleg 2000, p. 136, and Hermoni, 2000. 19. Sheleg 2000, p. 174. Sheleg argues that a new ideology emphasizing a Haredi woman’s role as supporting her husband’s religious studies has led to this development, whereby women have entered paid employment, including work with computers. This paid work has typically remained within Haredi neighborhoods; work with computers allows a new freedom for women to work from home. Sheleg emphasized this point to me in a personal interview (May 2000). The use of computers is interesting in the Haredi community given statements by Haredi leaders against computers. (See for example, Heilman 1998: “The religious court of the Haredi Congregation, associated with the United Torah Judaism Knesset faction, ruled last month that computers have the capacity to ‘bring the Evil Inclination in by the back door.’”) 20. Personal interview, Livka Luvitch, founding member of the Women’s Forum, an Orthodox women’s organization. Nire Etzion, June 2000. 21. Very little has been written about this topic, likely because it is difficult to find statistics on the religious makeup of rabbinical institutions in Israel. Personal interviews with people on various sides of the religious law conflict, however, indicate that a majority of rabbinical court judges and members of the rabbinate in the 1990s were Haredim. Personal interview, Yair Sheleg, Jerusalem May 2000. Personal interview, Uri Regev, Jerusalem, March 2000. Asher Cohen and Charles S. Liebman (1997) have also noted this trend. See also Friedman 1972, who noted the beginnings of this trend in the 1970s. 22. For a further discussion, see Shahar Ilan, “Chief Rabbis of No One,” Haaretz, September 6, 2000. Ilan notes the significance of the coming election

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(2003) of the Chief Rabbis, in which both “national-religious” [or Haredi-Leumi] and Haredi candidates are running. Ilan argues that a Haredi win “will mark the final severance of religious Zionism from the chief rabbinate” but does not note the religious and political convergence between those two groups. 23. Personal interview, Rabbi Menachem Porush, former head of Agudat Israel, Jerusalem, December 1999. 24. Personal interview, Rabbi Eliyahu Ben-Dahan, general director of the Rabbinical Courts of Israel, personal interview, Jerusalem 1997. 25. On the treaties of Versailles, see Hobsbawm 1996, pp. 31–34. 26. Personal interview, Tel Aviv, August 1997. 27. Under halakhic law, a man who is not divorced may be remarried if he has the signature of one hundred rabbis. In practice in Israel, a man who is not divorced may start a new family without getting remarried; as long as the woman partner has no halakhic restriction binding her, his children from this new union will have no restrictions placed on them. 28. For discussions of conflicts between the existing religious personal status laws and women’s rights in Israel, see, for example, Leibman and Don-Yehya 1984, p. 24; Edelman 1994, p. 65; Strum 1989, p. 485. For one rabbinic criticism of halakhic decisions that go against women’s rights, see Schweid on Rabbi Haim Hirschensohn 1994, pp. 64–65, 72–74. 29. Personal interview, Jerusalem, July 1997. 30. Personal interview, Rabbi R. Klein, Rabbinical Judge, Rabbinical Court, Beer Sheva, Israel, August 1997. 31. Most religious officials I talked to were quick to recognize the existence of non-Jewish communities in Israel. Indeed, they emphasized the rights of all communities to religious autonomy. But at the same time, there remains a tendency in Israel to use “Israel” as a stand-in for “Jews,” only periodically correcting that definition with terms such as “the Jewish community in Israel” or “the Arabs in Israel” or “Arab-Israelis” or, more rarely, “Palestinian-Israelis.” The religious officials I spoke with were part of this tendency to talk about Israel as “Jews” or even “the Jews,” while the next moment talking about other religious communities within the state. 32. Personal interview, Menachem Porush, Jerusalem, December 1999; personal interview, Yair Sheleg, Jerusalem, June 2000. 33. Surveys throughout the 1990s show an increasing openness to Reform and Conservative streams in Judaism on the part of Jewish Israelis. It does not appear that this trend is only due to the increase in Jews from the former Soviet Union, as it appears to reflect a wide range of the Israeli public. 34. Personal interview, Leah Shakdiel, Jerusalem, July 1997.

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35. Author’s notes taken at the Women of the Wall prayer session, June 4, 2000, at the Western Wall of the Temple Mount. 36. See also Sheila Miyoshi Jager, The Genealogy of Patriotism: Gender, Memory, and Narrative in Korea (New York: M. E. Sharpe, 2003). 37. Religious authorities define “who is a Jew” for identity cards. All citizens of Israel must carry identity cards. Driver’s licenses are not used, as they are in the United States, as the primary identity card.

Chapter 4. Social Movement Lawyers, Judicial Community, and the Countermovement That Binds Them The third quote at the beginning of the chapter is from a personal interview I had with an anonymous HCJ clerk (CB) in April 2000 in Israel. This study includes five anonymous sources in the judicial community: one former HC J clerk for Aharon Barak (whom I have given the fictional initials, CA), one HC J clerk (whom I have given the fictional initials CB), two sources in the Ministry of Justice ( JA and JB), and one legal scholar (LS). 1. Cause lawyers are broadly understood to be ideologically engaged in the cases they try, choosing cases according to ideological conviction and serving the cause rather than necessarily the client (Lawrence 1990; Sarat and Scheingold 1998). 2. Rosenblum 1999, pp. 6–15. Rosenblum writes from an Ashkenazi, ultraorthodox (Haredi) perspective. He runs a social organization in Jerusalem called One Nation, which advocates for understanding of the Haredi community in the Englishlanguage world, particularly in Israel, England, and the United States. 3. Referring to much of the judiciary, not only the HCJ. See Horev 1996, p. 2. Horev’s article appeared in Yated HaShavua, which is an ultra-Orthodox paper published in Jerusalem. 4. And, indeed, a new generation of social movement cause lawyers in the late 1990s were also part of the more distant outer circle. 5. Personal interview, Frances Raday, Jerusalem, June 1997. 6. Itzhak Zamir seems to define natural justice, for the Israeli case, as referring to basic principles that do not require legislation but provide the groundwork for a broad range of legal questions. He associates the rule of law with natural justice, particularly as it requires that the actions of the government remain within the confines of the law, and that the official decisions of public servants not be subject to conflict of interests. See Zamir 1996, pp. 8, 28; and Zamir and Zysblat 1996, citing Aharon Barak in a 1980 HCJ decision, pp. 172, 174–176.

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7. The two Basic Law are Human Dignity and Freedom, and Freedom of Occupation. 8. Personal communication, Ruth Gavison, Jerusalem, April 2000. 9. Ibid. 10. Personal interview, JA, July 2000, Israel (Hebrew). 11. Personal interview, LS, July 2000, Israel (Hebrew). 12. Personal interview, CB, April 2000, Israel (Hebrew). 13. Personal interview, Frances Raday, June 1997, Jerusalem. 14. Ibid. 15. Ibid. 16. Personal interview, CB, April 2000, Israel (Hebrew). 17. Note that religious authorities have formal legal jurisdiction over marriage and divorce law in Israel. They have had some formal legal authority over aspects of conversion, although most of their authority in that area has been as a matter of practice rather than written law. Changes in the norms of existing practice on conversion has been a matter of enormous public controversy. 18. Interview, CA, April 2000, Israel. 19. Interview, CB, February 2000, Israel (Hebrew). 20. Personal interview, Rabbi Uri Regev, Director and attorney for the Israel Religious Action Center of the Movement for Progressive Judaism in Israel (Reform Movement), August 1997, Jerusalem. 21. Personal interview, CB, February 2000, Israel (Hebrew). 22. Personal interview, CB, April 2000 (Hebrew); personal interview, JA, July 2000 (Hebrew). Shas is a religious political party that claims to represent the Mizrahi community in Israel. 23. The fact that Yated views the Jewish community as the one that the HCJ is supposed to serve is significant. It also sets Yated apart from human rights and civil rights advocates who argue that the HCJ should serve the entirety of Israeli citizens, including Palestinians and other non-Jews, as well as the human rights principles of the international legal community, particularly via-à-vis Palestinians in the Occupied Territories (Shamir 1990). Yated’s position on the questions of citizenship and membership, debated at length in Israeli scholarship, is made clear in assigning the community to whom the HCJ is ultimately responsible (Kook 1995; Peled 1992; Peled and Shafir 1996). 24. Personal interview, Yair Sheleg, Jerusalem, June 2000 (Hebrew).

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26. In the Talmudic period, gematria was used as a sometimes fanciful method of interpreting the biblical texts. In later years, it became associated with various mystical methods of attaining knowledge of or closeness to the Divine. See, for example, Holtz 1984, p. 21. 27. Personal interview, Johnathan Rosenblum, May 2000, Jerusalem. 28. Israel shares with Kuwait the distinction of having signed the International Convention on Civil and Political Rights with a reservation for personal status issues. Israel’s reservation reads: “With reference to Article 23 of the Covenant, and any other provision thereof to which the present reservation may be relevant, matters of personal status are governed in Israel by the religious law of the parties concerned. To the extent that such law is inconsistent with its obligations under the Covenant, Israel reserves the right to apply that law” (seehttp://www.unhchr.ch/html/menu3/b/ treaty5_asp.htm). Regarding the Convention on the Elimination of All Forms of Discrimination against Women, Israel maintained the following reservation: 1. The State of Israel hereby expresses its reservation with regard to article 7 (b) of the Convention concerning the appointment of women to serve as judges of religious courts where this is prohibited by the laws of any of the religious communities in Israel. Otherwise, the said article is fully implemented in Israel, in view of the fact that women take a prominent part in all aspect of public life. 2. The State of Israel hereby expresses its reservation with regard to article 16 of the Convention, to the extent that the laws on personal status which are binding on the various religious communities in Israel do not conform with the provisions of that article. Declaration: 3. In accordance with paragraph 2 of article 29 of the Convention, the State of Israel hereby declares that it does not consider itself bound by paragraph 1 of that article (http://www.unhchr.ch/html/menu3/b/ treaty9_asp.htm). 29. In using this strategy, the HCJ may well be following the strategy of U.S. Chief Justice Thurgood Marshall in announcing powerful rhetoric followed by the use of well-accepted legal norms as the foundation of the decision. The HCJ has become progressively more influenced by U.S. law throughout the 1980s and 1990s, increasingly citing U.S. case law. Justices like Barak are well aware of the history of the U.S. Supreme Court. 30. I am marking this trend, following much of the public law literature in Israel, as beginning in the early 1970s. However, it is clear that the 1969 Shalit case was part of this development. Furthermore, there were a few cases throughout the 1960s that were precursors, giving hints of the coming trend. See discussion in chapter 2.

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Chapter 5. Changing Visions, Conflicting Missions 1. All of the justice extrajudicial writings, with the exception of one by Menachem Elon, are in Hebrew. Translations are my own unless otherwise cited from a secondary source. 2. Israel is quite distinct from the United States, for example, in the engagement of the society in both political and academic issues. Thus, originally an esoteric debate within legal journals and perhaps political science journals, as the debate about the role of the court entered the press, it also became a major source of popular debate. The same has occurred with other academic debates in Israel, including the originally highly esoteric historical debate over Zionism versus postZionism, which has become a part of public discourse in Israel, as noted by scholars such as Kenneth Wald (1998). 3. In the 1970s, Aharon Barak’s writings reflect such technical issues as the distinction between legal injury and personal suffering (1979); and conflict of interest (1980). Interestingly, by the early 1980s, Barak’s writings had taken a more activist stance, with articles and books on issues such as legal interpretation (1982, 1984); justicability (1983, 1992c); original intent (1985); American law and Israeli law (1987a); the Basic Laws, which function as constitutional principles (1987b); and judicial review (1989). 4. The significance of German legal philosophy in the case of Justice Shamgar was noted by one HCJ clerk (personal interview, CB, February 2000, Israel [Hebrew]). 5. It is significant that Cohn uses the term “Grundnorm,” a term arising from German civil law scholarship. In this short piece, Cohn uses other German terms such as Selbstverständlichkeit, or naturalness. The use of such terms indicates a philosophical tie to German civil law scholarship. 6. Personal interview, CA, anonymous former clerk for Aharon Barak, April 2000, Israel. 7. Personal interview, CB, anonymous HCJ clerk, February 2000, Israel (Hebrew). 8. In 1986, as will be discussed in more detail in the next chapter, Leah Shakdiel brought her case to the HCJ, in which ACRI attorneys argued that a committee of ministers could not bar her, as they had done, from being a representative on a religious council because she was a woman. The women’s equality argument, first made in a labor case by Israel Women’s Network attorney Frances Raday, was used successfully by ACRI in the landmark Shakdiel case that I argue marked the beginning of the religious law conflict. 9. H.C. 257/89 Hoffman et al. v. The Guardian of the Western Wall P.D. 48 (2) 263 (1994) (Hebrew).

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Chapter 6. Social Movements and Changing Language of the Court 1. H.C. 262/62 Peretz v. Local Council of Kfar Shmaryahu 16 (3) P.D. 2101 (1962) (Hebrew). 2. H.C. 2301/86 Shoshana Miller v. Minister of the Interior et al. (1986) and H.C. 264/87 Shas v. Office of Population Registry 43 (2) 727 (1987) (Hebrew). 3. H.C. 26/51 Kutik v. Wolfson 5 P.D. 1341 (1951) (Hebrew). 4. H.C. 262/62 Peretz v. Local Council of Kfar Shmaryahu 16 (3) P.D. 2101 (1962) (Hebrew). 5. According to Rabbi Uri Regev, the Israel Religious Action Center was founded in 1986 with the explicit intention of engaging in legal action to pursue religious pluralism in Israel. “The legal arena provided a vehicle for change that we had, for too long, not utilized. This [approach] came from a realization of the American civil rights movement experience; a realization that we would never be able to match the Haredi hold over a constituency; and the realization that the political scene was not generally merit and value motivated, and that it was often cynical.” Interview, Jerusalem, March 2000. 6. See chapter 3 for a discussion of the significance of marriage, divorce, and related boundary issues for Haredi and neo-Haredi communities in Israel. 7. H.C. Halkai v. Minister of the Interior P.D. 17 (1963) (Hebrew). 8. H.C. 58/68 Shalit v. The Minister of the Interior et al. P.D. 23 (2) 477 (1969) (Hebrew). 9. H.C. 72/62 Rufeisen v. The Minister of the Interior P.D. 16:2428–2455 (1963) (Hebrew). 10. Indeed, this is the definition noted in the Succession Law (section 4B), which is in keeping with the halakhic norm. See also Elon 1994, pp. 1688–1689. 11. See Beresford. A summary is available in English in The Jerusalem Post: Law Reports, reported and edited by Asher Felix Landau ( Jerusalem: Magnes Press, Hebrew University of Jerusalem, 1993), see p. 127, where Landau summarizes: “It seemed, Justice Elon continued, that the application of the test of what was recognized by the ‘other faith’ was based on the decision of the Supreme Court [sic] in the Rufeisen Case, in which the late Justice Silberg had held that a person who was born a Jew always remained a Jew in the eyes of Halacha, even if he converted to another religion.” “This view, however, was wrong, the correct opinion being that, under the Halacha, a willing convert forfeited his legal and social rights expressing his belonging to the family, or the community, or the Jewish People.” 12. Elon cites from Mekhilta, Mishpatim, sec. 18; TB Bava Mezi’a 59b; Maimonides, MT, De’ot 6:4; and Sefer ha-Hinnukh, Commandment #431. See Elon’s opinion in Miller. Excerpts from this opinion are available in English in Elon 1994, p. 1690, footnote 289.

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13. See H.C. 104/87 Nevo v. The Jewish Agency et al. P.D. 44 (4) 749 (1990) (Hebrew); H.C. 153/87 Shakdiel v. The Minister of Religion, et al. P.D. 42(2) 309 (1988) (Hebrew); the “Poraz” case: H.C. 953/87 The Labor Party, Tel Aviv Branch Office, et al. v. The Tel-Aviv-Yaffo Municipal Council et al. P.D. 42 (1988) (Hebrew); H.C. 2301/86 Shoshana Miller v. Minister of the Interior et al. (1986); and H.C. 1003/92 Haia Bavli v. The Rabbinical Court of Tel Aviv-Yaffo. 14. NIF Web site: http://www.nif.org (as of June 2001). 15. NIF Web site: http://www.nif.org/contact/intro.html (as of June 2001). 16. In addition to its policy of combining litigation with legislation, by the early 1990s, organizations within the movement had redoubled their efforts to influence other state institutions as well. The IWN established its Center for the Development of Women’s Leadership in 1995. It held workshops entitled “Empowerment and Leadership Training” to encourage and train women on how to run for local and national political office. By the 1996 election, in which Benjamin Netaniyahu of the right-wing Likud Party was elected, the number of women in local offices increased 10 percent. That 10 percent increase brought the number of women in local offices to only 11 percent of all local representatives. Roughly 94 percent of all women in local offices were in some way affiliated with the IWN. This high level of association has given the women’s movement some hope that in the future these women politicians will be able and willing to make changes from within local and (potentially) national state institutions. At the national level, however, the number of women in the Knesset has remained low: nine women are MKs as of 2000, making up 7.5 percent of Knesset seats. Seven of the nine women MKs are current or former members of the IWN. The movement’s influence in political bodies themselves may thus be increasing at the local level. At the national level, influence in legislature and executive remains relatively low, despite some significant advances through women parliamentarians (i.e., the establishment of the Knesset Committee on the Status of Women). 17. The survey was conducted by phone. Twenty organizations were selected from nearly two hundred in the country to represent the types of activities and issues addressed in the movement as well as geographical location. From those organizations, two hundred volunteers were telephoned at random and were surveyed in Hebrew. Those surveyed crossed economic, educational, and ethnic lines, however, significantly fewer Arab women were surveyed than Jewish women. Those Arab women who were surveyed reflected a very high economic and educational status, and reported a high level of knowledge of women’s status in marriage law in Israel (93 percent) as well as awareness of IWN legal activities (64 percent). 18. Frances Raday, personal interview, July 1997, Jerusalem. 19. Personal interview, Esther Sivan, IWN Law Center, June 1997, Jerusalem. 20. The establishment of this court has led to what is called a “race for jurisdiction.” In a divorce, whichever party files first gets to choose which court will hear the financial and custodial parts of the case, the secular Family Court or the Rabbinical Court. Typically, men prefer the Rabbinical Court while women prefer

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the Family Court, as the perception is that men are treated better in the former, women in the latter. Thus, the race to file first is quite literally a race. 21. Sanctions include closing bank accounts, rescinding driver’s license, barring exit from the country, jail, and the like. While these are stringent measures, they have rarely been applied. According to the IWN, rabbinical courts have only applied sanctions (including jail, which was allowed before the 1995 law) a total of eighteen times, with Haifa accounting for half of those. (The Haifa Rabbinical Court is known for being fairly liberal). 22. Personal interview, Daniela Valensi, IWN Knesset lobbyist and IWN representative for informal seat on the Knesset Committee on the Status of Women, Israel Women’s Network, July 1997, Jerusalem. 23. Personal Interview, Rabbi Uri Regev, Israel Religious Action Center, Jerusalem, 1997. 24. N.L.C. Edna Hazin et al. v. El Al Israel Airlines Inc. P.D. 4 (365) (1972–1973) (Hebrew). 25. Frances Raday, personal interview, July 1997, Jerusalem. 26. Hadassah is a Jewish women’s organization, established early in the century, that sponsors many social and political activities for women, as well as establishing hospitals around the world, including several in Israel. 27. Frances Raday, personal interview, July 1997, Jerusalem. 28. In a 1990 article, Dan Izenberg called the Nevo case a landmark decision. Evelyn Gordon, in a 1990 piece, emphasized that the Histadrut and Hadassah were not concerned about this ruling; she also presented the ruling as one that links principles of equality generally with the specific issue of women’s rights. 29. Frances Raday, personal interview, July 1997, Jerusalem. 30. For English summary, see Asher Felix Landau (1993). 31. Frances Raday, personal interview, July 1997, Jerusalem. 32. The letter is available in the HCJ case file for Shakdiel. See also the published case decision (227). 33. The Rabbinate is one of the central institutions of the Jewish religious bureaucracy in Israel, largely funded by the state, but also largely independent of it. 34. Found on pages 227, 231 (twice), 233, 275 (twice), 276, 237, 272, and 274. 35. See the plaintiff’s petition in the HCJ file for Bavli. The date on the document is not legible, however, it predates the first HCJ proceedings in the case, which took place on July 20, 1992. 36. For example, the HCJ decided in a case of Doe v. Roe (see Polanim v. Almony) that a woman who had joined a different religion could have custody of

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her children, but could not raise them according to her religious beliefs because it is in the interests of the health of the children to be raised in the religion of their fathers. Interestingly, the HCJ cited one of its own precedents in a Muslim law case to support this contention. In this case, the HCJ allowed the burden and responsibility of raising the children to go to the mother but decided that she must abide by her husband’s, her state’s, and male orthodoxy’s definition of Judaism in raising them. 37. Tefillin and tallitot are prayer garments limited to men in orthodox practice. 38. As of July 2000, the Ministry of Justice and the government were hoping to come to an arrangement under which the WOW would be able to pray at a remote section of the wall (south, and out of sight of the main area, next to Robinson’s Arch), which was designated earlier in the year for Conservative Jews. A government committee and the Conservative Movement in Israel reached this agreement after similar legal cases brought to the High Court throughout the 1990s by the Reform and Conservative Movements in Israel. The Reform Movement did not agree to the Robinson’s Arch solution. 39. Yeshiva students are Jewish religious school students, who in Israeli Orthodox yeshivas, are male.

Chapter 7. Conclusions 1. The Secretary-General has a complex position as an intermediary between the executive and parliamentary branches and the Conseil d’Etat. The SecretaryGeneral also has, under certain circumstances, the right to sign documents on behalf of the Prime Minister. The position is formally within the executive. 2. Personal communication with anonymous legal scholar with personal ties to high-ranking members of the Conseil d’Etat, Paris, May 2004. 3. In Israel, formally, when the highest court sits as highest court of appeal, it is called the Supreme Court. When it sits on cases involving the exercise of administrative authority and/or jurisdiction it is called the High Court of Justice. In both cases, the justices are chosen from the same body of individual justices. As the HCJ, it may be the court of first instance. Personal damages are not required in order to bring a case before the HCJ. 4. Work on cause lawyering has suggested that there is a significant counterhegemonic force of lawyers who defy the most common standards of “the profession” in the United States. These “cause lawyers,” while relatively small in number by comparison to the entire community of lawyers in the country, have had an important impact on U.S. jurisprudence, working for such associations as the NAACP, the ACLU, and the like (Sarat and Scheingold 1998). Others have noted discreet communities of lawyers with specific demographic characteristics and sets of professional standards (McGuire 1993), or discreet communities or lawyers that

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create their own legal cultures around informal practices as well as standards of appropriate informal and formal legal conduct (Mather, McEwen, and Maiman 2001). 5. Clayton defines those blocs as: conservative, Scalia, Rehnquist, and Thomas; center-right, O’Connor, Kennedy, and Souter; and center-left, Stevens, Ginsburg, and Breyer (1999, 159). 6. Five of the fifteen justices on the Corte Constituzionale are appointed by the president of the republic, five by the Parliament (both chambers), and five by the high courts (ordinary and administrative) (Guarnieri 2001, 113). The appointees in the early 2000s reflected a parliamentary preference for legal scholars who are academics; four out of the five parliamentary appointees were appointed from university posts. The Parliament has had a consistent preference for university professors since 1956 with a few lawyers and judicial administrators added to the mix. The president of the republic has also tended to appoint university professors. Past presidential appointees varied somewhat, with different presidents appointing varying numbers of legal scholars, lawyers, and judges. The high courts tend, and have tended, to appoint judges or administrators from the court system. 7. Under certain authoritarian conditions, such as the expectation of changing regimes, judiciaries may have periods of more freedom in their decision making. See Helmke 2005.

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CA (anonymous former clerk for Aharon Barak), April 2000, Israel. CB (anonymous High Court of Justice clerk), February 2000, Israel (Hebrew). Yoav Dotan, November 1999, Jerusalem. Ruth Gavison, April 2000, Jerusalem. Rabbi R. Klein, Rabbinical Judge, Rabbinical Court, August 1997, Beer Sheva, Israel (Hebrew). JA (anonymous in the Ministry of Justice) July 2000, Israel (Hebrew). LS (anonymous legal scholar), 2000, Israel (Hebrew). Livka Luvitch, founding member of the Women’s Forum, an orthodox women’s organization. Nire Etzion, June 2000. Menachem Porush, Jerusalem, December 1999 (Hebrew). Frances Raday, June 1997, Jerusalem. Rabbi Uri Regev, March 2000, June 1997, and August 1997, Jerusalem. Johnathan Rosenblum, May 2000, Jerusalem. Leah Shakdiel, July 1997, Jerusalem. Yair Sheleg, May and June 2000, Jerusalem (Hebrew). Esther Sivan, IWN Law Center, June 1997, Jerusalem. Eli Suissa, Minister of Religion and Minster of Interior, August 1997, Tel Aviv (Hebrew). Daniela Valensi, IWN Knesset lobbyist and IWN Representative for informal seat on the Knesset Committee on the Status of Women, Israel Women’s Network, July 1997, Jerusalem.

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Israeli High Court of Justice Cases Cited H.C. 69/81, 493/81 Abu Itta et al. v. Commander of the Judea and Samaria Region et al. 37 (2) P.D. 197 (1983) (Hebrew). H.C. 6698/95 Adal Kaadan et al. v. the Land Administration of Israel et al., published in Takdin, HCJ quarterly on CD-ROM (Hebrew). H.C. 5969/92 Aknin v. The District Rabbinical Court of Haifa et al. P.D. 96 (1) 690 (1996) (Hebrew). H. C. 258/79 Amira v. Minister of Defense 34 (1) P.D. 90 (1979) (Hebrew). H.C. 6821/93 Bank Hamizrahi v. Migdal Cooperative Village P.D. 49 (4) 221 (1995) (Hebrew). H.C. 1000/92 Bavli v. The Supreme Rabbinical Court P.D. 48 (2) 221 (1994) (Hebrew). H.C. 265/87 Beresford v. Minister of the Interior P.D. 43 (4) 793 (1989) (Hebrew). H.C. 98/69 Bergman v. Minister of Treasury 23 (1) P.D. 693 (1969) (Hebrew). Doe v. Roe case: H.C. 2266/93 Polanim v. Almony P.D. 49 (1) 222 (1995) (Hebrew). N.L.C. Edna Hazin et al. v. El Al Israel Airlines Inc. P.D. 4 (365) (1972–1973) (Hebrew). H.C. 1031/93 Ellen Pessaro (Hava Goldstein) v. Minister of Interior P.D. 49 (4) 661 (1995) (Hebrew). H.C. 1003/92 Haia Bavli v. The Rabbinical Court of Tel Aviv-Yaffo. H.C. Halkai v. Minister of the Interior P.D. 17 (1963) (Hebrew). H.C. 257/89 Hoffman et al. v. The Guardian of the Western Wall P.D. 48 (2) 263 (1994) (Hebrew). H.C. 3358/95 Hoffman et al. v. The Guardian of the Western Wall P.D. 54 (2) 345 (2000) (Hebrew).

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H.C. 337/84, 359/84 Hokhma et al. v Minister of the Interior et al. P.D. 38 (2) 826 (1984) (Hebrew). H.C. Khelou v. Government of Israel 27 (2) P.D. 169 (1972) (Hebrew). H.C. 73/53 Kol Ha’am v. Minister of Interior 7 P.D. 871 (1953) (Hebrew). H.C. 26/5 Kutik v. Wolfson 5 P.D. 1341 (1951) (Hebrew). H.C. 3914/92 Leah Lev et al. v. The Municipal Rabbinical Court of Tel Aviv-Yaffo 94 (1) (1994) (Hebrew). H.C. 5070/95 The Masorti (Conservative) Movement of Israel v. Ministry of the Interior P.D. 56 (2) 721. H.C. 230/86 Miller v. Minister of the Interior et al. P.D. 40 (4) 436 (1986). H.C. 104/87 Nevo v. The Jewish Agency et al. P.D. 44 (4) 749 (1990) (Hebrew). H.C. 1779/99 Nicole and Rutie Berner-Kadish v. Minister of the Interior P.D. 54 (2) 368 (2000) (Hebrew). H.C. 262/62 Peretz v. Local Council of Kfar Shmaryahu 16 (3) P.D. 2101 (1962) (Hebrew). “Poraz” case: H.C. 953/87 The Labor Party, Tel Aviv Branch Office, et al. v. The Tel-Aviv-Yaffo Municipal Council et al. P.D. 42 (1988) (Hebrew). H.C. 910/86 Ressler v. Minster of Defense 42 (2) P.D. 441 (1988) (Hebrew). H.C. 72/62 Rufeisen v. The Minister of the Interior P.D. 16:2428–2455 (1963) (Hebrew) (known as the “Brother Daniel” case). H.C. Samara v. Commander of the Judea and Samaria Region 34 (4) P.D. 1 (1979) (Hebrew). H.C. 217/80 Segal v. Minister of Interior 34 (4) P.D. 441 (1980) (Hebrew). H.C. 153/87 Shakdiel v. The Minister of Religion, et al. P.D. 42(2) 309 (1988) (Hebrew). H.C. 58/68 Shalit v. The Minister of the Interior et al. P.D. 23 (2) 477 (1969) (Hebrew). H.C. 264/87 Shas v. Office of Population Registry 43 (2) 727 (1987) (Hebrew). H.C. 1/81 Shiran v. Israeli Broadcasting Authority 35 (3) P.D. 365 (Hebrew). H.C. 2301/86 Shoshana Miller v. Minister of the Interior et al. P.D. 40 (4) 436 (1986) (Hebrew). H.C. 10/48 Zeev v. Gubernik I P.D. 85 (1948).

Index

Adam, 132, 156 Administrative legality, 43, 102, 108, 124, 142, 146, 152, 155, 171 Agudat Israel, 36, 63, 67–70, 78, 82, 176 Aguna/Agunot, see Personal Status Law Albek, Plia, 82–83 Aloni, Shulamit, 47, 53 Amalek, 88–89, 93 Ashkenazi, 68, 78–79, 114, 146 Attorney General, 105, 128, 162 Avi-Gia, Haviva, 164, 170 Bar Association of Israel, 96–97, 100, 102–3, 105 Barak, Ehud, 167, 171 Ben-Dahan, Rabbi, 82, 83, 85–87, 89–90 Ben-Gurion, David, 19, 36, 49, 59, 61–67, 69–74, 76, 80–81, 91, 93–94, 175–76 Bolsheviks, 96, 99, 117 Civil Law, 8, 43, 57, 100, 123–25, 137, 181, 191 Civil Rights (movement), 32, 42, 47–48, 101, 105, 119–20, 122, 136, 141, 145, 149 Class (social class), 3, 14, 61, 70–71, 96, 116 Common Law, 8, 100, 123–26, 137, 152, 181

Conservative Movement, 37, 86–87, 89–90, 112, 114, 168–69 Constitutionalism, 37–38, 43, 122, 124, 132, 137 Declaration of Independence, 72, 94, 122, 135–36, 146, 164 Democracy, 65, 71, 113–14, 118, 127, 129–30, 136, 146, 156, 194 Domestic Violence, 47, 147, 150, 165 Egypt, 88, 89, 93 Elections, Israeli 1977 Elections, 15, 30, 44, 45, 48, 49, 53, 110 1982 Elections, 55 1996 Elections, 76, 166 Elections, U.S. 2000 Elections, 189, 190 Etatism, 63, 66, 71–73, 99 Feldman, Avigdor, 151, 155 France, 1, 33, 67, 99, 180, 182–86, 190 Conseil Constitutionnel, 182 Conseil d’Etat, 182–86 Ecole Nationale d’Administration, 183 Lycee Loouis XIV, 183 Palais Royal, 182 Freedman, Marsha, 47 Gavison, Ruth, 104, 112–14, 117, 134–35, 149 Gay/Lesbian Rights, 26, 150, 172

239

240

Index

Gaza, 46, 79 Get, see Personal Status Law Government Attorneys, 4, 6, 97, 103–6, 120, 177 Great Britain, 1, 33, 69–70, 100, 124, 126, 134, 148 Greenberg, Izhak, 36 Grundnorms, 23–25, 31, 38, 108, 124, 126 Hadassah, 108, 154–55 Halakhah, 35, 37, 78, 81–83, 85, 87, 89–90, 92, 100, 137–39, 144–45, 161–62, 164–65, 167 Halperin, Uriel, 67 Haredi/Haredi-Leumi, 75–80, 83–84, 87–88, 93, 114–17, 142, 167, 171 Hebrew University, 95, 110, 149, 151 Herzl, Theodor, 81 India, 32–33, 180, 185–86 Indian Supreme Court, 185–86 Indian Law institute, 186 Italy, 33, 180–81, 188, 190–94 Corte Constituzionale, 191–92 High Council of the Judiciary, 191–92 Jerusalem, 34, 68, 103–4, 126, 148, 151, 184 Jewish Agency, 63, 108, 155–56, 158 Jewish Mysticism, 116–17 Judicial Judicial activism, 16, 40, 46, 112, 115, 118, 124–25, 130, 134, 137, 186, 191–92 Judicial appointments, 185, 188, 190 Judicial corruption, 22–23, 193 Judicial independence, 1, 8, 12, 44, 100, 118, 180, 182, 190 Judicial lawmaking, 132–34 Judicial/legal positivism, 40, 43, 97, 100–1, 118–20, 122–23, 134 Judicial review, 9–10, 12–13, 16, 26, 38, 39, 45–46, 102, 122, 137 Judicial standing, 46, 55, 93–94, 176 Jurisprudence, 16–17, 43, 123–24, 180–81

Justices, Israeli High Court of Justice Agranat, Shimon, 100, 123–26, 136, 155, 163, 171 Bach, Gabriel, 155–58, 170 Barak, Aharon, 1, 40, 55, 49, 107, 110–16, 118–19, 121–22, 130–34, 136, 139, 144, 164, 166, 171 Cohn, Haim, 101, 121–22, 126–30, 134–36, 139, 149 Elon, Menachem, 121–22, 137–39, 144–45, 162–63, 167 Mazza, Eliahu, 167 Shamgar, Meir, 101, 121, 126, 128–29, 134, 136, 145 Zamir, Itzhak, 102, 152 Kashrut/Kosher, 36, 62–63, 73–74, 77, 79, 86, 89–91 Klein, Rabbi R., 59, 83–85 Knesset, 30, 34, 36–39, 44–56, 66–67, 85, 93–94, 99, 103, 109–110, 113, 116, 123, 126, 130, 133, 135, 137, 147, 151, 158, 160, 164, 173, 176 Kotel (Western Wall of the Temple Mount), 34, 74, 87–90, 139, 167, 171 Kulturkampf, 30, 60, 62, 66, 70–72, 76, 93, 94, 175 Labor Courts, 35, 151, 154–55, 158–59 Labor Party, 76, 166 Laws, Israeli Basic Laws, 16, 38, 44, 55, 100, 122–23, 128, 133, 135, 141, 164, 166 Equal Employment Opportunity Law, 158 Equal Retirement Age for Men and Women Workers Law, 155, 158 Foundations of Law Act, 138 Interpretation Law of 1981, 153 Judge’s Law, 99, 100, 123 Law of Return, 135, 143–45, 152, 168–69 Rape Laws, 102, 109, 160, 186 Women’s Equal Rights Law of 1951, 149, 160, 164–65

Index Legal Cases, Israeli High Court of Justice Bavli v. The Supreme Rabbinical Court, 165, 169–70 Beresford v. Minister of the Interior, 144 Bergman v. The Minister of Treasury, 12, 16, 38, 102, 122, 128 “Brother Daniel,” see Rufeisen v. Minister of Defense “Doe v. Roe”, 170 Halakhai v. Minister of the Interior, 36, 143 Hoffman et al. v. The Guardian of the Western Wall, 34, 149, 153, 160, 165, 167, 169–71 Khelou v. Government of Israel, 38–39 Kutik v. Wolfson, 36, 143 Leah Lev v. The Municipal Rabbinical Court of Tel Aviv-Yaffo, 153, 165–66, 169–70 Nevo v. National Labor Court et al., 34, 57, 108, 145, 149, 151, 153, 155, 157–60, 162–63, 165, 169, 170, 173 Peretz v. Local Council of Kfar Shmaryahu, 36 “Poraz” (Poraz v. Mayor of Tel-Aviv), 114, 145, 151, 153, 155, 160, 164, 170–71 Ressler v. The Minister of Defense, 55 Rufeisen v. The Minister of the Interior, 143–44 Shalit v. The Minister of the Interior, 36–37, 45, 56–57, 100, 115, 126, 139, 141, 143, 173, 176 Shakdiel v. The Minister of Religion, 34, 57, 114, 136–37, 139, 145, 151, 153, 155, 157, 160–65, 170–73 Shas v. Office of Population Registry, 114, 145, 153, 168–69 Zeev v. Gubernik, 124 Legal Scholars, 4, 21, 24, 30–31, 45, 48, 97, 104, 112–13, 120, 125, 129, 177, 180, 182, 184, 186, 191–92

241

Likud Party, 76, 166 Local religious councils, 34, 85–86, 90–91, 93, 136, 160–64, 179 Mamlakhtiut, 63, 70–73, 91, 99 Mamzer/Mamzerim, see Personal Status Law Mekhitza (Separator fence between men and women), 90 Messianic, 60, 64, 67, 71, 77, 89, 91 Ministry of Religion, 33, 36, 81, 85, 161, 163, 164, 169–70 Ministry of Justice, 36, 97, 103–5, 112, 167, 169 Ministry of the Interior, 36, 56, 81, 85, 90, 143–44, 152, 168 Mizrahi, 59, 67–69, 72, 78–79, 114, 146, 168 National Religious Party, 87 Nationalism, 19, 67, 71, 77, 79, 80, 184 Netanyahu, Benjamin, 76, 166 Neturei Karta, 65, 67–69, 73 Nevo, Naomi, 154–55, 159 Non-Governmental Organizations (NGOs), see Social Movements, and Social Movement Organizations Occupied Territories, 39, 46, 79, 118 Orthodox/Ultra Orthodox, 19, 29, 34–37, 49, 60, 62–65, 68–70, 75–78, 82–83, 86–90, 96, 112, 114, 118, 168, 171–72, 175–76 Ottoman Empire, 33, 69, 78, 100, 124, 137 Pakistan, 18, 23, 32 Palestinians, 13, 39, 59, 99, 103–4, 118, 125 Peres, Shimon, 67 Personal status law, 19, 31, 33, 35–36, 60–63, 69, 73–74, 92, 148, 159, 175 Aguna/Agunot, 81 Conception, 81 Conversion, 49, 52–53, 57, 60, 76–77, 110, 112, 114, 142, 144, 145, 168, 169, 171

242

Index

Personal status law (continued) Divorce, 18, 33, 35, 50, 53, 57–62, 73, 76–77, 80–84, 90, 92, 110, 127, 135, 142, 143, 148, 150–51, 159–60, 165, 168, 175, 176, 179 Get, 81, 83, 151 Mamzer/Mamzerim, 81, 83, 92 Marriage, 18, 33, 35, 50, 53–54 Maternity Rights, 158 Reproduction, 18, 35, 90, 93, 158 Porush, Menachem, 70, 82, 85 Property Law, 165 Pshat, 131 Rabbinate, 36, 68, 69, 79, 86, 144, 161, 170 Rabbinical Courts, 33, 35–36, 56, 59, 69, 78–79, 83–85, 151–52, 160, 165–66, 169, 176 Raday, Frances, 48, 101, 107–111, 148–49, 151, 154–55, 159, 160, 162–63, 169–70, 172 Reform Movement, 36–37, 86–87, 89–91, 111–12, 114, 143–44, 168–69 Regev, Uri, 111, 149, 151–52 Religious pluralism movement, 32, 42, 48, 134, 141–42, 145, 149, 168 Religious education, 36, 62–63, 68, 162 Retirement, 108, 154–57 Rosenblum, Jonathan, 95, 117–18 Rosh Khodesh, 88, 93 Rufeisen, Oswald, 143 Rules of Standing, see Judicial Standing Sabbath/Shabbat, 36, 49, 51, 53, 62–63, 69, 73, 86, 89–90, 115, 135 Sexual harassment, 101, 108, 149–50, 154 Sexual Violence, 150, see also Domestic Violence) Shalit, Benjamin, 36–37, 115 Shakdiel, Leah, 86–87, 89–90, 93, 136, 160–63, 170 Shas Party, 78, 87, 114, 116, 161, 168 Shofman, Yehoshua, 162, 163 Sivan, Esther, 149

Social Movements, 10–11, 30, 37, 46–48, 93–97, 104–5, 109, 133, 136, 140–42, 146, 153, 169, 171–72, 176–78, 186–87. Social Movement Organizations, Israeli Association for Civil Rights in Israel (ACRI), 97–98, 103, 105, 110, 134–36, 141–42, 145–46, 149, 151, 155, 159–62, 164, 169, 172–73 Hemdat, 134, 149 International Coalition of Aguna Rights (ICAR), 98, 149, 151 Israel Religious Action Center (IRAC), 146, 149, 168 Israeli Women’s Network (IWN), 47–48, 98, 101, 108–109, 141, 146–49, 151, 155, 159–61, 169, 172 Masorti Movement in Israel, 141, 146, 149, 168 Movement for Progressive Judaism (MPJ), 98, 141, 143–45, 149, 151–53, 168 Na’amat, 141, 146–49, 151, 160–61, 164 New Israel Fund (NIF), 146, 149, 151 Women of the Wall (WOW), 87–89, 93, 139, 160, 167, 169 Social Movement Cause Lawyers, 4, 15, 24, 30–31, 45, 95–98, 101, 103–112, 120, 133, 140, 145, 163, 169–70, 172, 177, 180, 182 Socialism, 58, 60–61, 71, 91, 118, 175–76 Status Quo Agreements, 36, 49, 63, 76, 141, 159, 170, 176–77 Suissa, Eli, 81, 85–86, 90–91 Synagogue, 65, 88, 176 Tallitot, 167 Talmud, 116, 126, 145 Tedeski, Guido, 129 Tel Aviv Local Council, 163–64 Temple Mount, see Kotel Tefillin, 88, 167 Theocracy, 67, 70, 75

Index Tikkun Olam, 166 Torah, 75, 85–86, 88, 118, 135, 138, 162, 167 United Nations, 70, 119 United States, 20, 37, 46, 65, 83–84, 101–102, 111, 113, 117, 126, 132, 134, 136–37, 144, 148, 161, 165, 180–81, 185, 187–90. Supreme Court, 1, 20, 117, 188, 190 Rehnquist Court, 188–90 Wars, Israeli 1967 War, 46, 79 1973 War, 46, 79 West Bank, 46, 79 Western Wall of the Temple Mount, see Kotel Women’s equality, 30–31, 34, 42, 57, 108–109, 139–40, 142, 145–46,

243

152–55, 160, 163–64, 166, 169–71, 176–78 Women’s movement, 30, 32, 34, 42, 47, 57, 96, 141–42, 145, 147, 150, 160, 162, 170, 171, 178 Women’s rights, 26, 32, 41–42, 47–48, 101, 104, 107–108, 138, 159, 178, 180, 186, 194 World War II, 15, 119, 132, 194 Yarmulke, 185 Yated Neeman, 114–16 Yeruham Religious Council, 160–62 Yeshivot/Yeshiva, 68, 79, 172 Yishuv, 63 Yom Kippur, 85, 91 Yossef, Rabbi David, 116–17 Zionism, 59, 63–65, 67–69, 71, 73, 77–81, 83, 87, 89, 115, 175–76


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