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Book Review: Joshua Segev on Daniel Friedmann’s “The Purse and the Sword: The Trials of Israel’s Legal Revolution”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Joshua Segev reviews Daniel Friedmann’s book on The Purse and the Sword: The Trials of Israel’s Legal Revolution (Oxford 2016)]

Dr. Joshua Segev, Associate Professor, Netanya Academic College School of Law, Israel

The Purse and the Sword, by Daniel Friedmann, is a fascinating book. It offers special insights for scholars of comparative constitutional law and followers of Supreme Courts around the world. This book provides all the “juicy details” of what has transpired behind closed doors, while describing and analyzing the expansion of the powers of Israel’s Supreme Court (the “Court”) and the weakening of the political leadership in the context of major issues faced by modern Israel.

Part of the book’s unique contribution is connected to the multi-faceted point of view of the author himself, a prominent legal scholar, who was appointed Israel’s Minister of Justice (2007-09), partly because of his critical stand on the Court. The book, while not devoid of theoretical shortcomings and weaknesses, pierces the veil of excellence, success and accomplishment of the “Supremes” in Israel. Thus, it provides a sobering reminder of the dangers of over-rationalizing judicial supremacy and the world’s new constitutional culture.

The Thesis in Three Parts

The book is divided into three principal parts.

Part One, entitled “The Classical Court,” concisely discusses the initial period of the Court from 1948 to 1980. Friedmann portrays this period as a “golden age,” in which the Court reached the high point of its public and moral authority. Its jurisprudence, he writes, was “attuned to the need for stability and continuity, while advancing the law in a sound and gradual way and protecting private citizens from arbitrary actions of the state.” [16]

Part Two, entitled “The Legal Revolution,” discusses at length the period following the Yom Kippur War of 1973 and especially since the 1980s–a period characterized by the weakening of the mainstream political leadership. The vacuum created by the impotence of the central government enabled the Court, emboldened by the Attorney General, to seize new powers for itself, transforming it into a central force in the running of the State.

The Court’s jurisprudence during that period reflected “the rapid annulment of long series of legal rules and principles that previously constituted the foundation of the Israeli system.” [54-55] The new jurisprudence also exemplified a “radicalization of certain civil rights” [129] – in particular, of freedom of speech and equality. The Court’s new central role in “running the country,” Friedmann explains, rested on three legs: the abrogation of the requirement for standing, the nullification of the political question doctrine, and the rule that any government decision is reviewable under the reasonableness doctrine. In the 1990s, the revolutionary Court exploited its powers of legal interpretation to “arrogate” the authority to write a constitution for Israel and adopted a full-fledged form of judicial review. [189]

Part Three, entitled “Partial Restraint,” discusses a relatively brief period in the history of the State of Israel, from the Second Lebanon War of 2006 to the present time. Friedmann argues that, contrary to the “golden age,” this period is characterized by the decline in the public status and prestige of the Court, which was principally caused by the following factors: (1) the “Court’s arrogance,” summed up by the “everything is justiciable” principle; (2) the Court’s over-involvement in security issues; (3) reports of nepotism in the Court published in the press; and (4) a general feeling that the Court has taken control of all other branches of government. [305-07]

While The Purse and the Sword is not an autobiography, Friedmann voices his side of the story and the events he witnessed. While in office as Minister of Justice, Friedmann proposed numerous substantive and structural reforms and attempted to diversify the personal-ideological background of the justices. Both initiatives faced fierce opposition from Justice Dorit Beinisch, then-President of the Supreme Court; thus, Friedmann was only partly successful in achieving his objectives. Nonetheless, he alleges that these overall developments caused the Court to “retreat from the extreme activism” of the revolutionary Court. [340] The Court’s jurisprudence today is characterized as radical in principle–since it has not reversed the precedents of the revolutionary Court, through which it appropriated excessive powers–but moderate in practice, since it fears the response of Israel’s Knesset.

Evaluation: Systemic and Personal

Supreme courts, like other social institutions, are surrounded by barriers, rules and mores that constitute, shape and limit our perceptions of the judicial behavior exhibited in them.[1] Friedman is not the first to identify and critique the greater role of the Court in Israel’s system of government and the “new activism.” Evaluating The Purse and the Sword’s main thesis depends upon its contribution to our perception of the Court. Does the book expand and improve our perception? In what sense?

In recent decades, the conventional view among constitutional scholars has been that the Supreme Court, beginning in the 1980s, has gone through a transformation in the nature of its judicial function.[2] The traditional view, according to which the sole function of the Supreme Court in the area of public law is to resolve disputes between individuals and public authorities, has been replaced by a perception that views the Court as an institution responsible for the protection of the rule of law, democracy and human rights in the broadest sense of these concepts.[3] The change principally manifested itself in the systematic increase in the powers of the Court by enlarging the scope and the depth of judicial review.

Friedmann surveys and describes the changing role of the Court artfully and meticulously. His contribution in this regard, however, is limited, since others have already identified and critiqued these developments.[4] The book has some methodological and theoretical weaknesses, especially with respect to the problem of periodization of the Court’s legal history and the jurisprudential problem of adopting criteria and standards by which we can judge the judicial role. Nonetheless, Friedmann does enhance the aforesaid widely-held perception of this judicial metamorphosis in two ways: systemic and personal.

The Systemic Account: To better understand the changing role of the Court, scholars have provided a “systemic analysis,” which examines the interaction of the Court with the political system and the general culture. Friedmann brings a wider systemic account to the research table. While most common accounts are Court-centered and constitutional law-oriented, Friedmann argues that the changes in the judicial role should also be attributed to the mutual cooperation between the Court and the Attorney General [237-51]. In Israel, the Attorney General is responsible for providing the government with legal counsel and, in addition, is in charge of criminal prosecution. This cooperation has mutually enhanced the legal and political powers of both institutions–not only in the area of public law, but also in the extensive use of criminal law against public figures [213-36] and the emergence of a “symbiotic” relationship that has led to the appointment of great numbers of public prosecutors to the courts. This in turn reinforced the personal and ideological agreement between the key figures in the two institutions.

The Personal Account: It is no secret that Justices Barak, Shamgar, Zamir and Beinisch are–or, more properly, were–the central figures in Israel’s legal storm. The Purse and the Sword emphasizes the immense importance of the personal element in the operation of constitutional justice and provides a detailed analysis of the sequence of legal events, accompanied by the personal contribution of the principal players at any given time. However, unlike other common accounts regarding the personal realm, part of the unique contribution and appeal of Friedmann’s book relates to his ability to unmask the inconsistencies, double standards, and blatant hypocrisy of Israel’s judicial augmentation. While justices often justified their specific decisions, actions and positions by appealing to high political and moral ideals, the reality documented by Friedmann–at times, in the form of first-hand testimony–shows that justices are frequently motivated by narrower institutional interests (e.g. increasing the Court’s powers) and even by personal interests, gains, and even feuds and quarrels [317-24]. Indeed, all of these are probably part of any human behavior, where self-dealing and self-judging acts are involved. The Purse and the Sword makes it clear that even justices are humans: reflecting, caring, fearing, hating and holding grudges. To borrow the words of Jerome Frank, “judges are incurably human.”[5]

Rattling the Iron Cage of the Supremes

The famous metaphor of the “iron cage” is used in Weber’s sociology to describe the various ways by which increased rationality shapes and constrains our perception and our behavior. The Purse and the Sword pierces the veil of excellence, success, and accomplishment of Israel’s Supreme Court justices, thereby rattling the iron cage of the new constitutional world order, which preaches fidelity to judges, if not their absolute idolization. But The Purse and the Sword should also serve as an invitation to reflect on finding the key to unlock this cage. And this is something that the book fails to include: a set of proposals to reform the ills of Israel’s legal revolution.

Suggested Citation: Joshua Segev, Review of Daniel Friedmann’s “The Purse and the Sword: The Trials of Israel’s Legal Revolution”, Int’l J. Const. L. Blog, Mar. 28, 2017, at: http://www.iconnectblog.com/2017/03/segev-friedmann-bookreview


[1] For a theory that likens social interaction and institutions to the theater, see Erving Goffman, The Presentation of Self in Everyday Life (1956).

[2] See Joshua Segev, The Changing Role of the Israeli Supreme Court, 20 Temp. Int’l & Comp. L. J. 1, 3-4 (2006).

[3] For the systematic increase in the power of courts in other western democracies, see Ran Hirschl, Towards Juristocracy: The Origin and Consequence of the New Constitutionalism (2004); Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000); The Global Expansion of Judicial Power (C. Neal Tate & Torbjorn Vallinder eds., 1995); Mark Tushnet, The Rights Revolution in the Twentieth Century (2009); Rivka Weill, Is it the Right Revolution? On Tushnet’s The Rights Revolution in the Twentieth Century, 42 Isr. L. Rev. 483 (2009).

[4] Menachem Mautner, The Decline of Formalism and the Rise of Values in Israeli Law, 17 Tel Aviv U. L. Rev. 503 (1993).

[5] Jerome Frank, Are Judges Human? Part One: The Effect of Legal Thinking of the Assumption that Judges Behave Like Human Beings, 80 U. Pa. L. Rev. 17, 24 (1931).

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Published on March 28, 2017
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