Panel: Israeli Legal History: Conventional Historiography and the Emergence of New Perspectives
Friday, October 23, 10:30-12:00
Chair: Pnina Lahav, Boston University School of Law
1998 marks the 50th anniversary of the State of Israel. Israeli legal history is slowly beginning to gain momentum as more scholarly works in this area are being published. This panel addresses the issue of periodization in Israeli legal history. Conventional Israeli historiography tends to ignore the period before establishment (prior to 1948) as largely irrelevant. It also marks the year 1948 as the time when the Zionist agenda, incorporating progressivist and social democratic ideals began to be implemented. Convention also holds that the year 1977, when the Right-wing Likud ousted Labour and for the first time headed the government signals the shift from the regulatory to the de-regulatory state. The three papers in this panel challenge the conventional assumptions and offer different perspectives on the development of Israel's legal system. Each paper challenges prevailing myths and offers a more nuanced and integrated way of looking at the development of Israeli law and society.
Between Mandate and State: Re-thinking the Periodization of Israeli Legal History
Assaf Likhovski, Faculty of Law, Tel Aviv University
Periodization schemes often reflect ideological biases. Israeli legal history has not been free from such biases, especially the tendency to view the past through the prism of Zionist ideology. One of the main effects of Zionism on the periodization of twentieth century Israeli history has been to divide this history into two clear-cut periods: A "colonial" stage before 1948 (when Palestine was ruled by the British) and the period after Israeli independence in 1948. This division has led to the view that important legal events that occurred in the 1950s, such as the appearance of a constitutional rights discourse in Israeli law, or the enactment of comprehensive social and labor legislation, were caused by internal Israeli factors such as the utopian streak in Zionist ideology which sought to create in Palestine a model state, or by the fact that the country was initially ruled by a progressive, social-democratic party (MAPAI).
My paper argues that some of the major events attributed to the post-independence phase of Israeli history had their origins not in Zionist ideology or politics, but in the effect of the Second World War on British colonial policy. Thus, my paper suggests that Israeli legal history (perhaps like any other national legal history) would benefit from a comparative angle that would seek to link national events, and national periodization schemes, to global trends.
Paper: A Measured History of Encounters between State and Citizen in the Supreme Court of Israel
Yoram Shachar, Interdisciplinary Center for Law and Technology, Herzlia, Israel
The 50-year history of the Supreme Court of Israel is often depicted as a history of progress from passivity to activism in both the style and the performance of the Court itself, paralleled by a general trend in larger society and politics from centrist-State interventionism to laissez faire individualism. The present analysis aims to test some aspects of this depiction by observing and measuring the dynamic history of Court encounters between State agencies and individuals, when pitched against each other in actual cases throughout the history of the Court. It was hypothesized that, for the above mentioned depiction to be correct, there should be an observable increase in the overall rate of winning by individuals over State agencies, and that there should be a meaningful decrease in the incidence of such agencies involved in Court cases, particularly in civil cases (as opposed to purely-constitutional or criminal cases). Analysis was performed on a database collected in collaboration with Dr. M. Gross and Dr. R. Harris of Tel-Aviv University from 7,147 published court cases between 1948 and 1994. It was found that State agencies, when pitched against an individual (as either appellant or respondent) won twice more often than individuals when the whole period is considered, but that this advantage (dubbed here "State Advantage") has been consistently growing throughout the period. While winning barely over 50% of the cases against individuals in the late 1940s, State agencies have been consistently winning nearly 75% of the cases since the early 1990s. Separate analysis for different branches of the law shows that much of the increase in recent years has been driven mainly by both a major increase in the incidence of cases involving "civil" aspects of state-citizen activities (e.g. licensing, control, welfare grants, etc.) and a particularly-high rate of winning by the state in such cases. It is argued that these findings throw doubt not only on the passive-to-activist and statist-to-individualist view of the history of the court, but also on the larger view of the history of government in Israel in terms of consistent transition from interventionism to laissez-faire individualism.
Class, Nation, State: Whose Goals was Israel's Early Social Legislation Tailored to Match
Ron Harris, Faculty of Law, Tel Aviv University
The Israeli Labor party seems, in the late 1990s, to be more alienated than it ever was from the working class and the poor. Its social and economic platform does not reflect a socialist ideology much more than that of the Likud party. Its electorate is mostly middle and upper class. The question is: when and why did it cease to be a socialist party preferred by proletarian electorate? The question bedevils historians ever since 1977, the year when the Labor Party was ousted by the voters for the first time in the history of Zionism.
I shall focus on the early 1950s, the years following Independence, as a period with a potential of furnishing new insights for dealing with the historical question presented above. The first decade was a unique, one time, opportunity for the Labor movement, and its dominant party, MAPAI, to implement socialist legislation in a new state and a new society, not yet infected by bourgeois legal system and capitalist vested interests.
A brief glance at the statute book of the first decade reveals that within a six-year period, 1951-57, over ten major statutes were passed in the fields of individual labor law, collective labor law, and social security. This extensive social legislation is often presented as a vindication of MAPAI as a genuine socialist or social-democrat party past 1948.
I shall critically examine this standard narrative and claim that the early social legislation in fact favored the strongest socio-economic group in contemporary Israeli society, organized and unionized white collar and skilled blue collar, who held secure job, with institutional employers, and were mostly Jewish, male, of European origins, who immigrated to Israel before the 1930s. Suggested legislative items that could benefit disadvantaged groups: women, Arabs, new immigrants, non-unionized, unemployed, were buried.
If that indeed was the case, as I assert here, then the implementation of this non-socialist or less socialist legislation was due to affect Israel's class stratification, political alignment and the electoral base of the Labor parties in future years.
Comment: Eben Moglen, Columbia University Law School