Carl Schmitt and the Jewish Leviathan_Emanuele Ottolenghi

8/8/2019 Carl Schmitt and the Jewish Leviathan_Emanuele Ottolenghi

http://slidepdf.com/reader/full/carl-schmitt-and-the-jewish-leviathanemanuele-ottolenghi 1/25

101

Emanuele Ottolenghi

Carl Schmitt and the Jewish Leviathan The Supreme Court vs. the Sovereign Knesset

INTRODUCTION

Conflicts between courts and democratically elected insti-

tutions are common to many western countries, especially when judicialbodies perform review of statutes.è Although contested as undemocratic,

judicial review is justiWed as being the enforcement of a supra-legal norm,êusually a constitution, whose binding force is higher than primary legisla-tion and whose function is to create limits for the use of popular sover-eignty.ë

Israel lacks a written, entrenched constitution; hence, in Israel there isan additional dimension to this conXict. The lack of a constitution meansthat there are no formal limits to sovereign power (vested with parliament),and we are therefore justiWed prima facie in discussing Israel as a case on itsown. The peculiarity of Israel’s situation is strengthened by recent decisions

of the Israeli Supreme Court. On the basis of two Basic Laws approved in1992,í the Court declared its power to review legislation enacted by theKnesset [Parliament].ì It may be argued that too much focus put on formalaspects of a political system is less relevant than on substantive ones, but theimportance attached to the constitutional question within Israeli politicaldiscourse justiWes an examination of the conXict between parliamentary sovereignty and judicial review. At the root of this conXict lies a conceptionof sovereignty that, although perhaps democratic, does not always includea commitment to liberal values and to limited government. It is my conten-tion that this conception is at the heart of the failure to adopt a constitution,and it presently provides the normative basis for some of the criticism

voiced against the Supreme Court. Hence, the need to discuss sovereignty

within Israel’s context.I would argue that sovereign power in Israel is the reXection of a

conception of political authority conceived along the ideas expounded by



102 • israel studies, volume 6, number 1

Carl Schmitt in his books, Political Theology and The Concept of the Political.îIn order to prove my argument, I will address the apparent conXict betweenparliamentary sovereignty and judicial review in Israel. I will focus on threeelements: the theory of sovereignty, and Israel’s constitutional and ideo-logical contexts. Through this analysis, I hope to show that the Israeli

version of parliamentary sovereignty is a re-elaboration in democratic and participatory terms of the classic theory of sovereignty as elaborated by

Thomas Hobbesï and Schmitt. Part of the criticism of Israel’s SupremeCourt attempts to defend this view of political power; thus, I will developmy claim as a counter-argument to critics of the Court. By pointing out analogies between Schmitt’s sovereignty and the power attributed by many critics of the Court to the Knesset, I hope to highlight the similarity be-tween Schmitt’s political theory and some of the arguments raised against Israel’s Supreme Court . In doing so, I will suggest that these arguments failto realize that this conception of authority, though aimed at guaranteeingorder and social cohesion within a rifted democracy, bears the seeds of authoritarianism.

SOVEREIGNTY AND THE POLITICAL

In its classical version, sovereignty presupposes a hierarchically structured political order. The sovereign is its highest authority. Any binding norm

must stem from its will.ñ As the supreme power within the polity,ó thesovereign has the last word on both the meaning and content of rules. What is relevant to determining whether rules are valid, therefore, is their source,not their content.èé Other state powers must enforce sovereign will accord-ingly. Any challenge to it must be considered illegitimate.èè Having thepower to limit all its subjects by expressions of will, but not being itself subject to those limits, the sovereign is absolutely free with two exceptions:self-restraint èê and the creation of another similar power, since two abso-lutes cannot coexist without neutralizing each other.èë

Sovereign order is the result of two premises—one logical and onenormative. If power is understood as being naturally expressed by relationof subjugation and subordination, sovereignty is logical in-so-far as a pyra-

midal structure requires an original, non-derivative power, which, as thehighest authority, justiWes all other powers.èí Logic alone, however, cannot

justify a speciWc conception of order unless there is a further normativepremise that reXects a particular understanding of human condition withina political society.



Carl Schmitt and the Jewish Leviathan • 103

According to Hobbes, it is inherent to the human condition that people will attempt to overcome one another. Hence, an absolute authority that rules over society is the only solution for otherwise inevitable anarchy.èì

By understanding society as conXict-ridden, Hobbes’s theory of sovereignty is a response to what he sees as the inevitable political disorder . If conXict istruly the natural order of social relations, there must be one political willthat is universally recognized as the supreme authoritative voice in thesolutions of matters of contentious nature,èî even though the price fororder might be the restriction of freedom.èï This premise is important,because, if sovereignty is the instrument to avoid political disorder and internal conXicts within a polity, any other authority empowered to chal-lenge the sovereign automatically becomes a threat to order and socialpeace. A judiciary empowered to perform judicial review of legislationrepresents precisely the kind of alternative source of legitimacy, which

would limit sovereignty and neutralize its ability to ensure order.èñ Theacceptance of sovereign supremacy dispels the danger of competing sourcesof legitimacy within the polity and ensures the conservation of order and peace.èó The need for a sole and supreme source of power is not deduced onthe ground of logic alone, therefore, but is also normatively justiWed as anantidote against disorder.êé

Schmitt shares Hobbes’s normative premise. In The Concept of the

Political, he states that “The speciWc political distinction to which politicalactions and motives can be reduced is that between friend and enemy.”êè

Schmitt’s distinction between friend and enemy is important to both ageneral discussion on the nature of political power, and a particular discus-sion of conceptions of power within the Israeli polity. Schmitt never fully clariWed his much-quoted dichotomy.êê This is due to two important as-sumptions: “the inability . . . to deWne a priori speciWc contents and motivesthat deWne political action”êë is caused by the fact that the friend-or-enemy distinction is contingent on time and space. It is therefore imperative to beaware, not of the speciWc categories of the distinction (which change), but of the essence of the political, which is rooted in conXict: “in extremesituations, human action reveals its totally contingent origins, which lack guarantees and are exposed to absolute disorder . . .”êí That conXict is anextreme possibility does not deny these two principles: the roots of conXict

are circumstances, which cannot be forecast in advance, and conXict, whichcan lead to absolute disorder. Left with no categories to deWne either friend or enemy, Schmitt argues that:




The political can derive its energy from the most varied human endeavors,

from the religious, economic, moral, and other antitheses. It does not describe

its own substance, but only the intensity of an association or dissociation of

human beings, whose motives can be religious, national (in the ethnic or

cultural sense), economic or of another kind and can eV ect at diV erent times

diV erent coalitions and separations.êì

The intensity of the association (friend) or dissociation (enemy) indicatesonly the likelihood of conXict,êî not its nature: “The real friend-enemy grouping is essentially so strong and decisive that the nonpolitical antith-esis, at precisely the moment at which it becomes political, pushes aside and subordinates the hitherto purely religious, purely economic, purely culturalcriteria and motives to the conditions and conclusions of the politicalsituation at hand.”êï There is simply no possibility of knowing what kind of antithesis will become so intense as presupposing conXict at any point intime, or in any given social context.

The inability to deWne the categories of the political produces aninability to formulate categories of response in advance of the materializa-tion of conXict. Since the distinction does not require belligerence to exist,but it is based on an intense dissociation—which can, in the extreme case,lead to conXict—political power cannot be limited in the range of optionsit has at its disposal to face the political.êñ If political authority must have themeans to eV ectively handle conXict, it follows that it must enjoy absolute

power.êó This explains why Schmitt deWnes the sovereign as that which decidesthe exception.ëé The exception “. . . is principally unlimited authority,

which means the suspension of the entire existing order.” Only full freedomof action gives the sovereign the ability to face the exception—which thefriend-or-enemy distinction can in the extreme case produce—in its unpre-dictable circumstances and Wnd the proper answer to address its conse-quencesëè; consequently, no legal or constitutional constraint can be put onthe sovereign. Such limitation implies the refusal of the concept of thepolitical, and the rejection of a world where conXict can eventually takeplace. Authority is thereby deprived of the instruments to forecast theconsequences of a conXict. In fact, political power becomes hostage to the

limits imposed by a constitutional state, where, in the event of an emer-gency, the resort to proper means will be denied or delayed by checks and balances.ëê The price of order requires the legitimization of the monopoly of force and its concentration in the hands of one supreme authority that hasno limits to its exercise. This obviously includes judicial review.




Though Schmitt does not relate explicitly to the powers of courts,Hobbes does, and their theory of sovereignty is in a sense a theory of judicialinterpretation.ëë This is so because the theory of sovereignty requires totalsubordination of all state powers to the sovereign and can allow judges tointerpret the law (which is the will of the sovereign) only on certain condi-tions. The will of the sovereign must be carried out, and yet the sovereigncannot be the one physically applying and interpreting the law at all times.

A theory of interpretation is therefore needed that will not endanger Hobbes’sand Schmitt’s understanding of political power: the interpreter must apply the law as if the sovereign itself was sitting in judgment.ëí An interpretationthat is not in line with sovereign will could jeopardize order for two reasons:

1. A dissonant interpretation represents a diV erent and competing will, which can create alternative sources of legitimacy and is therefore apt to cause conXict.

2. The limitation of sovereign will constitutes the limitation of the politi-cal power to handle the emergency and to confront the political in fullfreedom.

Even if persons other than the sovereign physically carry out the interpreta-tion and execution of the law, the same power and the same will must be thesource of the legislative and interpretative production of the state. Thus,sovereignty requires a jurisprudence that denies judges the possibility tointerpret statutes independently from sovereign will.ëì The coincidence of

will and interpretation avoids conXict and preserves the sovereign powers

to face the political and address the emergency. Conformity with the will andthe intention of the sovereign with regard to the meaning of the law preventsthe interpreter from becoming the author of new rules, through “creative”

jurisprudential readings.ëî

If political conXict stems from a friend-or-enemy distinction between various groups within society, conformity to the will and the intention of thesovereign also guarantees that judicial interpretation will not become anobstacle to the elaboration of compromises capable of reducing socialconXicts and of establishing political consensus; the more intense the asso-ciation and dissociation within society, the more preferable the choice for asovereign that has no limits on its powers. Only by accepting this under-standing of sovereignty is the power of judicial review (which includes the

power to void laws) a subversive power , since the interpreter voids the will of the sovereign and, by so doing, limits the sovereign’s capability to faceemergencies and manage conXict. The interpreter replaces the politicalsovereign by curtailing its power to frame political compromises in laws and determine their meaning; hence, judicial review is subversive because:




1. It replaces the sovereign in the production of will.2. It creates an alternative source of legitimacy within the polity.3. It limits the sovereign in its ability to face and solve emergencies.4. It prevents the sovereign from resorting to its full powers in the wake

of conXict. This theory views judicial review, not as an instrument to protect civil

liberties or as a desirable constraint on power, but rather as an obstacle topolitical power’s attempts to eV ectively manage the conXictual nature of society, thus becoming, itself, a source of conXict. And this is true even

when judicial review attempts to redress a wrong, since it interferes with thesovereign and ultimately hurts the sovereign’s ability to fulWll its func-tions.ëï The more established the assumption that political power is justly unlimited, the more violent the clash between supporters of sovereignty (which in Israel is entrusted to the Knesset) and the courts’ attempts to limit and frustrate legislative will through judicial review. In Schmitt’s view, thisclash cannot be reconciled and therefore requires a choice among centers of power, where one must ultimately emerge as supreme.ëñ

Applied to the conXict between courts and political power, this under-standing views judicial review as the attempt to establish the judges’ sover-eignty over the supremacy of the political. Those who attack the SupremeCourt in Israel on the basis of the argument that judicial review infringesupon sovereignty, accept Schmitt’s call for a choice. Their choice stems froma conscious recognition that Israel is a rifted democracy—that is, one that is

very strongly divided or fractured among diV erent groups, religious, ethnic,and social—and, as such, it is ridden with friend-or-enemy distinctions of the most intense and existential kind. These distinctions demand absolutefreedom to formulate compromises within society in order to avoid conXict.By trying to protect the sovereign powers to elaborate political compro-mises in full freedom, however, critics of the Supreme Court, by puttingemphasis on the appeasing qualities of an unbound sovereign, are in fact making a case for an authoritarian conception of political power that knowsno limits and has no restraints.

ISRAEL’S CONSTITUTIONAL CONTEXT

Israel’s constitutional beginnings are known. Failure to adopt a constitu-tion in 1949–1950 led the way to the Harari Resolution and to the peculiardevelopment of Israel’s piecemeal constitution. As a result, the Knesset isboth a constitutional assembly and an ordinary legislature to this day. While




waiting for a constitution, it has been a commonplace argument that Israel’sconstitutional system is similar to England’s. A sovereign parliament and the lack of a written constitution are referred to as proof of resemblance.Yet, despite the formal similarities, there are at least W ve substantial diV er-ences:

1. The Knesset is both a constitutional assembly in permanent sessionand an ordinary parliament empowered to make laws.

2. In Israel, lack of a constitution originates in an existential disagreement on the nature and identity of the state that is reXected in a lack of consensus on the legitimate sources of political authority.

3. The doctrine of parliamentary sovereignty is not accompanied by adiV use liberal culture of civil rights; it is rather a normative justiWcationfor a political regime lacking formal constitutional checks and bal-ances.

4. The persistence of emergency legislation Wfty-two years after indepen-dence requires a normative theory of permanent emergency and of thepolitical power in charge of dealing with emergency situations.

5. The consociational nature of Israeli democracy is far removed from theEnglish socio-political conditions that are necessary to facilitate thesmooth functioning of democracy in the absence of a constitution.Lack of a written constitution in England is the result of a long evolu-

tion, not of a conscious decision. In addition to peculiar historical circum-stances, the Westminster model is functional to a majoritarian system and is

the result of low ideological frictions and the absence of many crosscuttingcleavages. That is not the case of a highly fragmented society like Israel, where the presence of high ideological polarization and deep social divi-sions suggests, in line with the practice of other consociational democracies,that a constitution is a desirable instrument to protect and entrench conso-ciational practices against bare majority rule. But in Israel, divisions arementioned for the opposite reason; namely, in order to justify the absenceof a constitution, rather than the presence of highly entrenched constitu-tional rules. It follows that these diV erences are crucial to the present argument.

It is commonly argued that the decision not to adopt a constitution inIsrael stemmed from the precarious security situation and the desire to

avoid a rift between religious and secular. But it is my contention that thesereasons are symptoms more than causes. Failure to bring the 1950 constitu-tional debate to a concrete product and the indeWnite procrastination of aconstitutional settlement are in line with the Yishuv’s political tradition: theHarari Resolution Wts an already well-established traditional pattern of




political compromise of Jewish and Yishuv political cultures.ëó This tradi-tion was founded on the absence of constitutional limits to the exercise of power. In the absence of political sovereignty, a political authority lackingresources and the monopoly of coercive power had to rely on consensus inthe formation and implementation of policies. This situation emphasized compromise and the defusing of conXict by co-optation and co-operationamong rival political forces. Co-operation could be achieved at the price of avoiding divisive issues at all costs. Decisions not to decide were not un-common, therefore, nor were they oddities in the range of possible solu-tions to conXicts within the political community.

Similarly, in order to be legitimate, power had to rely on periodicelections with wide participation and representation, which provided legiti-macy by encouraging power-sharing and discouraging exit. This patternstrengthened the participatory aspect of Israel’s political culture and en-sured both democracy and consensual policy-making within a deeply di-

vided society. Parliamentary sovereignty, proportional representation and consociational politics in a regime lacking constitutional constraints are asalient feature of pre-state political tradition, which suited Israel’s foundersas they addressed constitutional issues.íé

Hence, the traditional justiWcation for postponing a decision is not enough. Had the constitutional debate been temporarily suspended and later addressed with a view to enshrining a compromise between the reli-gious and the secular in a constitution that could protect each other’s

sensitivities, one could concur with the need to wait for quieter times. AfterWfty-two years, however, the provisional decision not to decide has becomepermanent, rendering its explanation questionable. One reason why it seems that the lack of a constitution today cannot be blamed on religion and security alone is because the Knesset did not even discuss the nature and contents of a possible constitutional compromise. The only Knesset debatethat took place focused on whether or not to have a constitution, without addressing its details.íè One motive for not adopting a constitution, there-fore, lies in the procrastinating tactics that are typically adopted in the wakeof existential issues on which consensus is lacking.

Contrary to the practice of other consociational democracies, Israel’sapproach has been traditionally to avoid any permanent resolution, in the

hope that future developments might tilt the balance in favor of one of thesides to a dispute. The consequence is a political system without constitu-tional checks and balances and no formal limit to political players in shapingtemporary arrangements for the management of society. By maintaining thesupremacy of the political in the revolutionary fabric of the Zionist project,




no outcome is hindered, especially in the absence of a shared vision of thenature of this project.

In 1948, Israel’s founding fathers faced such existential questions as themeaning of a Jewish state, its constitutional nature, and the role of Jewishtradition and heritage in public life, all in the midst of a desperate war forsurvival. Israel’s Wrst few months of life were Wlled by this more pressingtask, and when elections for a constitutional assembly took place, the mainstate institutions were already in place. From the point of view of state-building, a constitution was not a compelling necessity anymore—it was anoption, which entailed addressing vexing questions of national identity.íê

Thus, the predominant political culture of the time and contingent prob-lems determined the constitutional debate’s Wnal outcome. It soon becameclear that the new state would not have a Western-styled constitution.Mainly, there are four reasons for this:

1. A desire to keep intact the trend of political accommodation amongleaders.

2. A desire to avoid a conXict between the religious and the secular on thenature of the state.

3. A desire to give maximum latitude to the executive in handling emer-gencies, in light of the permanent state of war.

4. A desire to ensure the primacy of the political in formulating, advanc-ing, and securing the revolutionary goals of the Zionist dream.

These four elements were predominant factors in the Israeli founding.

As such, they were instrumental in discouraging the adoption of a formalconstitution, which would have guaranteed entrenched civil and politicalrights to all citizens and the judicial power to enforce those rights against executive and legislative encroachment. The result was the development of a vision of political power loosely modeled after doctrines of politicalsovereignty such as the one expounded by Schmitt. In these circumstances,courts lacked both a formal constitutional framework within which touphold civil rights and a political culture to fall back on that could bereceptive enough to rights-oriented judicial decisions. Similarly, lack of constitutional constraints gave more Xexibility to the political options avail-able for elaborating agreements.íë

Judicial review in particular was considered an obstacle to the Zionist

fabric. According to Philippa Strum, Ben-Gurion’s opposition to a consti-tution derived from his “desire to govern without constitutional restric-tions, taking whatever actions he deemed best to put the state on a Wrmfooting.”íí He viewed democracy as the rule of the majority, which found expression in the agreements reached among parties and in the resulting




laws.íì Absence of an entrenched constitutional document would prevent the existence of a judiciary empowered to control political power while thestate was busy implementing its revolutionary project of security, settle-ment, and absorption.íî

In the context of a divided society, it was argued that only the statecould emerge as a unifying factor in the fabric of a nation and as theguarantor of social cohesion.íï The state could obtain this only if it had unlimited powers: only as a supreme and free power could the state have theauthority to solve internal rivalries and conXicts of interests. Such a concep-tion of authority inevitably clashes with the notion of limited government propounded by western constitutionalism. Under limited government, “inorder for the citizen to be free, the state cannot be free.”íñ If, in order toachieve the goals of state and society, the sovereign is free, individualfreedom becomes subordinate to considerations of national interest.

The consequence is a deferential judiciary. Judges must be the faithfulenforcers of sovereign will in order to guarantee order within the polity.

Their interference for the sake of constitutional principles bears the seeds of disorder, which, according to Schmitt and Hobbes, is intrinsic to the limi-tation of sovereign power. Law, as the expression of sovereign will, must berespected instrumentally as a means to the ends, but it is subordinated to theinterests that law comes to serve. Otherwise, judges become an alternativecenter of legitimacy, competing for supremacy with the political sovereign.

The coincidence of a particular political culture and of peculiar contin-

gencies involving a security threat inXuenced the outcome of the constitu-tional debate of 1950. This combination justiWed the formal adoption of theEnglish model of parliamentary sovereignty, but the underlying substantialconception of power was closer to sovereignty in its classic understanding,before its limitation by liberal elements. Any reference to English constitu-tional theory, therefore, is merely a rhetorical device disguising a sovereignparliament capable of making and undoing laws (as the expression of thenational interest and of compromises between political players) without constitutional constraints. This model met the requests of religious parties vis-à-vis the constitution and gave government a free hand in matters of security.

This is why this particular scenario is best interpreted by making

reference to Schmitt’s version of sovereign power. Lack of constraints onpolitical power means maximum freedom of action in the spheres of secu-rity and in the elaboration of political compromises. Hence, the supremacy of the political in a hostile regional environment and in a rifted internalcontext allows public authorities wide powers and great latitude in maneu-




vering and addressing internal divisions and external threats. In this framework, judicial review constitutes a direct threat to the state’s capability toeV ectively face internal and external challenges. The doctrine of sovereignty becomes a cogent normative argument, not only to justify and explain aparticular institutional set-up (the lack of a constitution), but also to pre-

vent independent powers such as the judiciary from becoming obstacles tothe full display of the political.

This political vision is particularly problematic in the sphere of civilrights, especially when considerations of national security or the higherneeds of national consensus require their limitation. Sovereignty becomescrucial to justify a political system that is at the same time absolute and democratic, and to allow the possible violation of rights for the sake of national security or social appeasement. It is apparent, then, that parliamen-tary sovereignty and judicial review clash when Israel’s Supreme Court proceeds to curtail the Knesset’s sovereign faculties.

DEFENDING THE SUPREMACY OF THE POLITICAL

The diV erence between Israel’s democratic context and classical sovereignty lies in the plural and democratic nature of the Israeli sovereign as opposed to the Leviathan’s monistic preference. The Knesset embodies sovereignpower, and produces expressions of sovereign will through the discussion

of ideas. DiV erent worldviews agree upon laws as a consequence of compro-mises among the members of the sovereign body and of its majority, whichdetermines the outcomes of debates. The output of this exercise expressesthe ability of the polity to mediate among its parts and reach compromises.But it also reXects the power of an absolute sovereign, free of constitutionalrestraint, to eV ectively manage the friend-or-enemy distinction. Thoughthe various components of Israeli society are willing to co-operate and reachcompromises, they are “in a specially intense way, existentially somethingdiV erent and alien, so that in the extreme case conXicts with [them] arepossible.”íó It follows that the absence, suspension, or derogation of thenorm are preferable to the existence of a norm precisely because the natureof the extreme case cannot be anticipated.ìé According to Schmitt, “Every

religious, moral, economic, ethical, or other antithesis transforms into apolitical one if it is suYciently strong to group human beings eV ectively according to friend and enemy.”ìè Israel’s cleavages are suYciently intense“in an existential sense” to Wt Schmitt’s distinction and to make his deWnitionof the political suit an understanding of political power devoid of constitu-




tional constraints, including judicial review. If politics is the art of thepossible,ìê the supremacy of the political gives the free and unbound sover-eign a world of endless possibilities to compromise. This idea is especially palatable in a rifted society, as it is Israel, where the Knesset is the meetingpoint for compromise among society’s components. Constitutional con-straints, such as a bill of rights and judicial review to enforce it, become anobstacle to the sovereign’s ability to compromise. By contrast, lack of restraints allows parliament to elaborate acceptable solutions to all parties,

without fear of judicial censorship. The only limit is self-restraint, as is thecase with classical sovereignty, which derives from mutual vetoes within theKnesset.

One of the essential components of Israel’s political system is the lack of consensus on the source and origin of political authority. Lacking any agreement on what principles lie at the foundations of the state, an en-trenched constitution cannot provide any such source to which parliament must be subordinated. Similarly, there can be no institution such as a

judicial body giving preference to one vision of authority over another when conXicts arise. ConXicts must be reconciled exclusively through po-litical compromise, and political compromise is best achieved by a collectivebody that includes all the components of society and gives equal voice and legitimacy to their conXicting visions, without limits to its political inven-tiveness.

Recent decisions made by Israel’s Supreme Court stand in stark con-

trast with this vision. On various occasions, the Court has either declared (without using) the power to review the Knesset’s legislation, or it hasproceeded to void sections of statutes.ìë In some cases, the Court’s statu-tory interpretation has displeased the legislators: such decisions, touchingoften upon matters of religion and state, national security or equality beforethe law, have been condemned or criticized for departing from legislativeintentions. In other cases, the Court has set stringent boundaries of execu-tive and legislative discretion.ìí The enunciation of these boundaries inabsolute terms indicates that sovereignty is henceforth permanently lim-ited. This has drawn criticism from politicians and academics alike: judgesare being accused of reducing the sovereign’s capability to eV ectively handleemergencies, as well as to overcome social divisions.

I chose to discuss two separate criticisms of the Court in order to show how Schmitt’s defense of the supremacy of the political echoes in the wordsof many journalists and academics. The Wrst criticism focuses on the Court’sdecision to curtail the special emergency powers enjoyed by the executive inthe war against terror. The second criticism targets more generally the




impact that recent jurisprudence has had on the system’s capability to fostersocial cohesion and reach compromises.

The examples analyzed in this section were not selected to prove that criticism of the Court invariably follows Schmitt’s concept of the political;instead, only those critics who follow Schmitt’s line of reasoning are men-tioned here. The purpose of this exercise is not to claim that any criticism of

judicial involvement in political questions is based on Schmitt’s politicalphilosophy. My intention is simply to show how certain kinds of argumentsagainst the Court can be interpreted as Schmittian, since they ultimately reXect a fundamentally illiberal preference of order over freedom.

Following the September 1999 judgment to prevent the use of physicalpressure during General Security Service interrogations of security sus-pects, much concern was voiced in the Israeli press. One author criticized Chief Justice Aharon Barak because he “decides public issues against thepublic will, and against the democratic principle according to which thepeople choose their destiny through their representatives.”ìì Another criticclaimed that the decision was adopted despite the fact that the Knesset had not addressed the issue yet, and consequently there was no statutory basisfor it.ìî Thus, it was argued, the decision shared the same basic problem of earlier ones: the Court ignored the political preferences of the public.ìï

Another article supporting a law that would override the Court’s decisionsuggests that “the pressures of the war against terror demand giving GSSinterrogators clear legal authority to exert pressure on suspects under inter-

rogation in extreme cases.”ìñ These examples express a feeling of unease vis- à-vis the imposition of limits on the sovereign power to face the emergency (of terror in this case) with exceptional measures that no law should preven-tively tame or restrain. For these critics, no limit based on moral consider-ations should be imposed on political power because:

1. It conXicts with the will of the people, the only agreed upon source of legitimacy.

2. There is no consensus on the course taken by the court (public opinionopposes it).

3. The Knesset, as the true representative of the people, has so far failed toreach (or has refrained from reaching) a consensus on the matter.

4. The decision prevents the sovereign from facing a truly exceptional

situation (terrorism) with adequate means.Points 1, 2, and 3 relate to the only source of legitimacy for judicial enforce-ment of rules: a clear will, expressed by the people’s representatives and backed by public opinion. Point 4 relates to the desire to maintain thesupremacy of the political by giving the sovereign a free hand. This double




understanding is expressed in a legal norm introduced into Basic Law: Freedom of Occupation in a 1994 amendment. Section 8 of the Revised Version of the Basic Law says that

A provision of a law that violates freedom of occupation shall be in e V ect, even

though not in accordance with section 4, if it has been included in a law passed

by a majority of the members of the Knesset, which expressly states that it shall

be of eV ect, notwithstanding the provisions of this Basic Law; such law shall

expire four years from its commencement unless a shorter duration has been

stated therein.

Draft legislation recently introduced in the Knesset to address emergency powers in the war on terrorism would adopt a similar mechanism of suspen-sion of the legal order sanctioned by basic legislation. According to a billdrafted by Likud MK Reuven Rivlin, special powers of interrogation would be granted to GSS interrogators. Section 10(A) of the bill says that “This law shall apply notwithstanding the instructions of Basic Law: Human Dignity and Liberty.” Section 10(B) enacts a review mechanism according to which“the instructions of this law shall remain in force for a period of two yearsfrom the day of its enactment. Its validity shall not be extended unless by means of a law that is passed by a majority of Knesset members.”ìó

Both provisions, the one proposed and the one in place, give thesovereign the power to suspend the legal order and to create an exception to

it, without necessarily having to change the norm, to abolish it, or to causedisruption. The derogation mechanism of the Basic Law: Freedom of Occupa-

tion is meant to protect the supremacy of the political. Born out of acoalition crisis concerning the alleged violation of the religious status quo,Section 8 prevents the Court from reviewing political compromises that might infringe upon rights protected in the Basic Law. The time limit implies that those political compromises that involve derogation fromrights protected in basic laws must be periodically renegotiated in the

political arena, away from judicial review.Similarly, the derogation mechanism introduced in the draft proposal

on special powers of interrogation attempts to re-establish wide discretion-ary powers in the hands of the sovereign by eliminating the legal and judicial

constraints created by basic laws and by judicial decisions. As an emergency becomes permanent and requires exceptional means to overcome it, thisprovision attempts to transform the exception into a rule, and the suspen-sion of the norm becomes an exceptional normalcy. The judge, faced witha continuous reminder of emergency and its needs, must ignore the other




laws and refrain from applying rules to which he/she is usually bound. Indoing so, he/she acknowledges the sovereign power to make laws and

violate them, since laws cannot bind the sovereign. The derogation mecha-nism removes any limit on sovereignty, re-establishes the pristine freedomof the sovereign, and thus reXects Schmitt’s sovereignty.

Other recent attacks voiced against the Court highlight the fact that themain motive behind the argument against judicial review is rooted inSchmitt’s conception of sovereignty and in a culture that privileges thesupremacy of the political above the law as the preferred route in the searchfor compromise within a rifted society. These attacks are more general intheir focus, and go beyond the narrow criticism voiced in security-related matters. The clash between secular and religious is one topic that drawsmuch concern about the role the Court has taken in Israel. Secular and religious alike call on the Court for self-restraint in order to avoid setting oV

a latent, but potentially devastating, conXict.Religious parties recently tried to have the Knesset condemn judicial

interference in the political process, but their attempt back Wred.îé How-ever, religious parties are not alone in their attacks on judicial interference.Secular academics have voiced similar criticism. It is my contention that their argument closely resembles Schmitt’s and Hobbes’s concepts of sover-eignty. In a recent article, Dan Avnon claimed that

In the decades since independence, when conXicting visions of the nature and

purpose of the state erupted into social and political feuds, political compro-mises were negotiated on a case-by-case basis. When matters of principle

could be translated into a state law, laws were legislated. The political ability to

negotiate ad hoc resolutions to the clash of apparently irreconcilable interpre-

tations of the good life worthy of such a political entity included the important

possibility of not deciding. This deWning characteristic of Israeli political

culture was brought to an abrupt end in 1992. In that year, the twelfth Knesset

decided to include in basic law legislation a deWnition of the State of Israel as

“a Jewish and Democratic State.”îè

Avnon decries the end of freedom for the sovereign and its power to reachcompromises. Thus, his argument is interesting for two reasons. The Wrst

lies in the Hobbesian echo of Avnon’s words. When Avnon says that only “When matters of principle could be translated into state law, laws werelegislated,” a Hobbesian remark comes to mind: “The interpretation of thelaws of nature, in a commonwealth, dependeth not on the books of moralphilosophy. The authority of writers, without the authority of the common-




wealth, maketh not their opinions law, be they never so true.”îê Only thoseprinciples that the legislator has formally and explicitly subscribed to can beapplied by courts and then only as long as the legislator does not decide tomodify them and renegotiate their meaning. Any other principle or value,“no matter how true or just,” has no validity, lacking a clear sovereignsanction.

The second reason why Avnon’s argument is important is its resem-blance to Schmitt’s argument in defense of the supremacy of the political.Central to Avnon’s argument against judicial review, is the claim that theconXict between the religious and the secular suits the friend-or-enemy distinction. The 1992 basic law legislation has reduced the venues for politi-cal compromises by limiting society’s freedom to renegotiate political ar-rangements from time to time:

These essentially philosophical, political or theological understandings are no

longer a matter to be debated in civil society, and resolved on an ad hoc basis

through the practices and institutions of democratic politics. Competing

views on these issues, that until 1992 were granted public form through their

representation in competing political agendas, are now a matter for judicial

interpretation. The stakes are high, for the Court’s rulings, unlike political

compromises, are binding.îë

According to Avnon, courts have deprived elected institutions and

society at large of the power to decide, not to decide, and to decide tochange previous decisions. Moreover, to Avnon, judicial rulings are bind-ing, unlike political compromises. By making a distinction between demo-cratic institutions and the courts Avnon implies that only the elected repre-sentatives of the sovereign people are truly democratic. This suggests aHobbesian hierarchy, where judges should take a subordinate position.Moreover, obstacles to the freedom of the people’s representatives to elabo-rate compromises are a threat in-so-far as they create binding solutions. Thepolitical, untamed by constitutional limits, is preferable, since it constantly reaYrms the Xexible and provisional nature of arrangements, whose con-tents can be continuously reshaped to meet new circumstances, so long asthey exist in a universe devoid of legal constraints and therefore of open-

ended possibilities.Hence, while those who support the notion of limited government

welcome the new constitutional asset derived from the new Basic Laws, Avnon condemns it:




To abruptly end the tacit social agreement to defer to future generations the

resolution of Israel’s ultimate telos (and hence values) as a state by suddenly

thrusting this question onto the Courts, through constitutional legislation, is

simply wrong.îí

It is not wrong because he necessarily disagrees with the content of some judicial rulings; rather Avnon criticizes the attempt to impose constitu-tional limits on a sovereign power dedicated to displaying its full potentialto maintain domestic peace. The danger of the 1992 reforms is that they curtail the sovereign’s freedom to reach compromises (and thus to defusesocial tensions and avoid conXict). For critics of the Court, there are twoconsequences: the limitation of sovereign powers to address the friend-or-enemy distinction (the political) and to face the emergency (the exception)

will make political power less capable to overcome potential con Xicts withinsociety. Disorder and heightened social strife will become a feature of thepolitical landscape and could ultimately jeopardize the fragile social bal-ance. It follows from this argument that judicial review is a threat to socialconsensus.

In a recent interview, Ruth Gavison similarly criticizes judicial involve-ment:

[I]t is right that the court will give legal sanction to the shared values, such as

basic human rights, but I do not think it right that the court will use its power

to give preference to values of one group in society at the expense of the valuesof another group. I do not think that it is right that the court will decide in

favor of Western outlooks over traditional outlooks. Or in favor of modernity

and individualism and against communitarianism.îì

Gavison’s opposition to judicial interference stems from the concernthat judges will decide contentious matters of principle upon which thereligious and the secular are divided. Given that these divisions cannot bereconciled, for Gavison, it would be preferable if the Court refrained fromapplying principles lacking consensus. Referring to the spiritual leader of Shas, Rav Ovadia Yosef, Gavison said that

[A]s a higher moral authority it is not clear that the court is better than OvadiaYosef is. And it is not clear that the supra-legal values of the enlightened public,

in whose name it works, trump the supra-legal values of the religious public,

for example. There are many people in the country, for whom Ovadia Yosef is




the higher moral authority and for whom religious law is the higher legal value

to be desired. The court should not ignore them. The court should not

compete with Rav Ovadia Yosef for their hearts. The court must make it clear

that it sits in a diV erent position, one of instruction and enforcement of the

values of the shared democratic framework.îî

Gavison sees judicial review as problematic from a democratic stand-point, especially in divided societies. Only those principles that are “shared”should be enforced by the Court. Only those principles that stem from amoral consensus within society should ever Wnd their way into a court of law.îï Other principles, though perhaps just and shared by some, should not be enforced judicially if their application reXects a preference of one

value system over another. The risk of a backlash that will hurt the Court’scredibility within society is frequently cited as one danger stemming from

judicial rulings on matters of ethical disagreement. This claim is weak not only because it is recurrent since 1950îñ; it is also unsubstantiated by theSupreme Court’s standing with Israeli public opinion.îó Gavison is correct,however, in identifying the source of the problem: the lack of shared values;but when she says that the Court should only enforce shared values “such asbasic human rights,” it should be noted that, even at that very basic level,Israeli society lacks a shared understanding and a consensus.ïé

In the Wnal analysis, Schmitt’s call for a choice is the only option: eitherunelected liberal judges upholding rights even against the better judgment

of elected oYcials, or the Hobbesian critique of moral principles. Thiscritique aims to defend the supremacy of the political over the judiciary and becomes the leitmotiv for criticizing a judiciary involved in the protection of civil rights. Whenever values are a source of disagreement, courts should refrain from interfering, and allow the political to manage the friend-or-enemy distinction: only at the price of absolute political freedom can thepolitical act with enough latitude to prevent domestic divisions from de-teriorating into conXict. But what is to be done when value systems are

always a source of disagreement ?

CONCLUSION

Hobbes and Schmitt would say that constitutional sovereignty is a euphe-mism for the gouvernment des juges. The supremacy of the political ensuresits autonomy from the control and limitation imposed by the principlesof constitutional government, whereas “[t]he boundaries of political au-




tonomy become much narrower when the courts can declare many ordinary laws as unconstitutional.”ïè Retaining such supremacy is, for many critics of the Court, the price to pay, since it allows for appeasement among the

various parts of society. The absence of constitutional restraints imposesonly one limit on political players: agreements are conditioned on thebalance of power between coalition partners, parliamentary parties, and social groups at large, and the substantial restrictions they impose by recip-rocal vetoes on principled issues. However, the moment this delicate bal-ance becomes threatened by the existence of constraints enforced by judges(who, by being independent, do not necessarily expound the will and intention of the sovereign), the danger of conXict becomes apparent as thespace for political maneuvering shrinks. From this perspective, judicialreview becomes a subversive instrument that upsets order and opens upconXicts.

Until 1992, no formal limits existed to a sovereign parliament in theelaboration of political compromises. This constitutional anomaly origi-nated in Israel’s political culture and in the need to avoid any deviation fromthe principle of judicial deference to the political branches lest a fragilebalance within society be upset. In this context, the traditional role of anindependent judiciary as a defender of fundamental civil rights was typically subordinate to the need to reconcile democracy with a permanent state of

war, to appease opposing views of society, and to fulWll Zionist goals.Israel is a society where there is a fundamental and existential disagree-

ment on the source of political authority, which translates into a permanent and insurmountable conXict on the nature and identity of the state. As if this were not enough, an external conXict is still on-going whose resolution willhave wide repercussions on both political legitimacy and national identity.

Traditionally, management of this permanent division relied upon a defer-ent judiciary and upon the ability of political forces to elaborate politicalcompromises. The absence of constitutional limits allowed for compro-mises to become legislation and bound the courts to enforce them—irratio-nal, unjust or illogic though they may be from a legal standpoint. Even

when agreements were ad hoc arrangements that deWed the legal logic of general and abstract rules, judicial deference ensured that there would be nointerference: the political would clarify the meaning and application of

these arrangements for each concrete circumstance.Similarly, the theory of sovereignty supplied the adequate normative

framework to a situation of permanent emergency, where exception becamethe rule, and the suspension of or derogation to the norm became anexceptional normalcy. Faced with the emergency, the judge withdraws,




refrains from enforcing the rule, and thus acknowledges the sovereignfreedom to make the rule and ignore it: “For having power to make, and repeal laws, he may when he pleaseth, free himself from that subjection.”ïê

CertiWcates of immunity, in camera proceedings, override clauses, “circumvention” of laws, are all facets of Schmitt’s exception, all expressions of willof a democratic but still Hobbesian Leviathan.

While derogation to the norm prevents judges from interfering withpolitical compromises or with the management of the emergency, theexistence of civil rights legislation with quasi-constitutional status has nar-rowed the boundaries of the autonomy of the political and created new tensions between the judiciary and the elected branches of government. Inlight of this tension, appeals to the principle of parliamentary sovereignty must be read as attempts to sanction the supremacy of the political in thename of an established pattern of political compromise. The potential forconXict has not waned over the years, and the need to constantly renegotiate

values and principles is still felt. If a constitution that judges can uphold isthe expression of a shared foundation of principle within a society, lack thereof seems to demand both the absence of a constitution and of thepower of judges to enforce it, since constitutional entrenchment can occa-sionally frustrate such negotiations; hence the conXict between judicialreview and parliamentary sovereignty in Israel.

The preference given so far by the Israeli legislator to coexistence of constitutional constraints (the Basic Laws) and of mechanisms for their

temporary suspension, derogation, and violation (circumvention clauses)attempts to create a precarious balance between the two. Though it isdiYcult to forecast how long and how successfully this balance can hold,experience suggests that emergency and provisional arrangements have apermanent nature in Israel. Critics of the courts correctly attack judicialexpansion of locus standi and lack of a political question doctrine as viola-tions of the separation of powers that should be corrected. One should add to this legitimate criticism, however, that the sovereign should accept that acknowledgment of discretionary powers in exceptional circumstancesmeans only that the exception creates the sovereign power to decide how tomanage the emergency.




Notes

*An earlier version of this article was presented at the Israel Law and Society

Association annual workshop, held in Miami, FL, on 25 May 2000. The author

wishes to thank Dr. Avner de-Shalit, Dr. Eugene Rogan, Mr. Mike Dahan, Mr.

Shlomi Segall, and Mr. Ori Lev for their useful comments and criticism.

1. The clash between courts and elected branches of government is said to raise

an “anti-majoritarian” diYculty, as decision-making performed by unelected judges

is considered, in a democracy, to suV er from a lack of legitimacy. See Alexander

Bickel, The Least Dangerous Branch. The Supreme Court at the Bar of Politics (New

Haven, CT, 1962).

2. The debate over the legitimacy of judicial review, therefore, focuses on

interpretation theories and the extent of judicial intervention.3. Consider the following examples. The Italian Constitution proclaims: “Sov-

ereignty belongs to the people, who exercise it within the framework and limits of

the Constitution (Art. 1.2).” German Basic Law states: “All state authority emanates

from the people. It is exercised by the people by means of elections and voting and

by separate legislative, executive and judicial organs (Art. 20.2),” and that “Legisla-

tion is subject to the constitutional order; the executive and the judiciary are bound

by the law (Art. 20.3).” The Spanish Constitution, after proclaiming that sover-

eignty emanates from the people (Art. 1), states: “Citizens and public authorities are

bound by the Constitution and all other legal provisions (Art. 9.1).” Portugal’s

Constitution declares: “Sovereignty, single and indivisible, rests with the people,

who shall exercise it in the manner and form laid down in this Constitution (Art. 3).”

4. Basic Law: Freedom of Occupation, and Basic Law: Human Dignity and Liberty

[Hebrew].5. See United Mizrachi Bank v. Migdal Cooperative Village (1995), Piskei Din,

49(4) 221 [Hebrew]; H.C. 6055 / 95 Zemach et al. v. Minister of Defence et al. (1999)

[Hebrew].

6. Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty

(Berlin, 1922). [English edition, translation and Introduction by George Schwab

(Cambridge, MA and London, 1985)], and The Concept of the Political (Berlin, 1932).

[English edition, translation and introduction by George Schwab (New Brunswick,

1976)]. Note that all page numbers for Schmitt refer to the English editions.

7. Thomas Hobbes, The Leviathan, Michael Oakeshott, ed. (London, 1962).

8. Ibid., 199.

9. C.E. Merriam, History of the Theory of Sovereignty since Rousseau (New York,

1900) 11.

10. See p. 90 in Kenneth C. Cole, “The Theory of the State as a Sovereign JuristicPerson,” in W. J. Stankiewicz (ed), In Defense of Sovereignty (London, 1969) 86–103;

Harold Laski, A Grammar of Politics, 4th Edn (London, [1925] 1950) 50.

11. See J.W. Harris, Legal Philosophies (London, 1980) 24; David Nicholls, The

Pluralist State, 2nd Edn (London, [1975] 1994) 42.




12. Jean Bodin, Six Books of the Commonwealth, 1576 . Abridged and Translated by M.J. Tooley (Oxford, 1967) 43–4.

13. See Preston King, The Ideology of Order: A Comparative Analysis of Jean Bodin

and Thomas Hobbes (London, 1974) 73; See p. 47 in Jean Jacques Maritain, “The

Concept of Sovereignty,” in Stankiewicz, In Defense of Sovereignty, 41–64; Albert

Rigaudiere, “L’invention de la souverainetè,” Pouvoirs, 67 (1993) 12 [French].

14. See Ivor Wilks, “A Note on Sovereignty,” in Stankiewicz, In Defense of

Sovereignty, 197–205.

15. Hobbes, The Leviathan, 100; also, Schmitt, The Concept of the Political, 26–39.

16. Merriam, History of the Theory of Sovereignty since Rousseau, 14.

17. Jean Hampton, Hobbes and the Social Contract Tradition (Cambridge,

1986) 104.

18. A threat to the sovereign that Hobbes addressed in The Leviathan.

19. See Don Herzog, Happy Slaves. A Critique of Consent Theory (Chicago, IL,

1989) 142.

20. Ibid., 97.

21. Schmitt, The Concept of the Political, 26.

22. Carlo Galli, Genealogia della Politica (Bologna, 1996) 738–9 [Italian].

23. Ibid., 739.

24. Ibid., 744.

25. Schmitt, The Concept of the Political, 38.

26. Ibid., 39: “What always matters is only the possibility of conXict.”

27. Ibid., 38.

28. Ibid., 27: “[I]t is suYcient for [the political enemy’s] nature that he is, in a

speciWcally intense way, existentially something diV erent and alien, so that in the

extreme case conXicts with him are possible. These can neither be decided by a previously determined general norm nor by the judgement of a disinterested and therefore

neutral third party.” [emphasis mine].

29. Ibid., 38: “[T]hat grouping is always political, which orients itself towards

this most extreme possibility.”

30. Schmitt, Political Theology, 5.

31. Ibid., 12; see also 36.

32. Ibid., 40.

33. See pp. 210–11 in Alan Ryan, “Hobbes’ Political Philosophy,” in Tom Sorell

(ed), The Cambridge Companion to Hobbes (Cambridge, UK, 1996) 208–245.

34. Herzog, Happy Slaves, 138.

35. Henry Abraham, The Judicial Process, 6th

Edn (New York and Oxford, 1993)

48.

36. Hobbes, Leviathan, 205.37. Ibid., 206: “[T]he interpretations of the laws of nature, in a commonwealth,

dependeth not on the books of moral philosophy. The authority of writers, without

the authority of the commonwealth, maketh not their opinions law, be they never

so true.”




38. Schmitt, The Concept of the Political, 67.39. See Don Horowitz and Moshe Lissak, Trouble in Utopia: The Overburdened

Polity of Israel (Albany, 1989). See also Ehud Sprinzak, “Elite Illegalism in Israel and

the Question of Democracy,” in Ehud Sprinzak and Larry Diamond (eds), Israeli

Democracy under Stress (Boulder, CO, 1993) 173–98; see p. 42 in Alan Dowty, “Israel’s

First Decade: Building a Civic State,” in S. Ilan Troen and Noah Lucas (eds), Israel:

The First Decade of Independence (Albany, NY, 1995) 31–50.

40. See Yonathan Shapira, “The Historical Origins of Israeli Democracy,” in

Sprinzak and Diamond, Israeli Democracy under Stress, 68.

41. See Emanuel Rackman, Israel’s Emerging Constitution (New York, 1955).

42. See p. 101 in Nathan Yanai, “Politics and Constitution-Making in Israel: Ben

Gurion’s Position in the Constitutional Debate Following the Foundation of the

State,” in Daniel J. Elazar (ed), Constitutionalism: The Israeli and American Experi-

ences (Jerusalem, 1990) 101–20.

43. See p. 87 in Philippa Strum, “The Road Not Taken: Constitutional Non-

Decision Making in 1948–1950 and Its impact on Civil Liberties in the Israeli

Political Culture,” in Troen and Lucas, Israel, the First Decade of Independence, 83–

104: “Not adopting a constitution, . . . was in keeping with the policy that had

illuminated decision-making in the Yishuv, which was to avoid all potentially

disruptive decisions that were not absolutely necessary.”

44. Ibid., 92.

45. See David Ben-Gurion’s speech to the Knesset on 20 February 1950, in Divrei

HaKnesset , v 4, Session 119 (Jerusalem) 813–19 [Hebrew].

46. Ibid. See also p. 205 in Shlomo Aronson, “David Ben-Gurion and the British

Constitutional Model,” Israel Studies 3(2) (1998) 193–214.

47. See p. 175 in Eliezer Don-Yehiyah, “Political Religion in a New State: Ben-Gurion’s Mamlachtiut ,” in Troen and Lucas, Israel, the First Decade of Independence,

171–92

48. Eugene V. Rostow, The Sovereign Prerogative: The Supreme Court and the

Quest for Law (New Haven, CT, 1962) 120.

49. Schmitt, Political Theology, 27.

50. Ibid., 35: “That the extreme case appears to be an exception does not negate

its decisive character but conWrms it all the more.”

51. Ibid., 37.

52. In the sense given to it by Schmitt, as the ability to manage the friend-or-

enemy distinction, and therefore to overcome conXict thanks to the absolute free-

dom of the power holder.

53. The power of judicial review was announced (but not used) by the Court in

United Mizrachi Bank v. Migdal Cooperative Village, 221 [Hebrew]; see n.5 above.54. See H.C. 5100 / 94 Public Committee against Torture et al. v. State of Israel et al.

(not yet published), where GSS agents’ authority was subjected to judicial review

against the background of absolute limits set by Israel’s Basic Laws; H.C. 6698 / 95,

A’adal Ka’adan et al. v. Israel Land Administration et al. (not yet published), where




criteria in land allocation had to conform to Basic Laws; H.C. 6055 / 95 Zemach et al. v. Minister of Defence et al. (not yet published), where the Court voided a section of

the Military Criminal Code, based on Basic Law: Human Dignity and Liberty . [Cases

are in Hebrew]

55. Aaron Pappo, “Barak, Go to Barak,” Ma’ariv Today, 30 September 1999, 7

[Hebrew]. [The title is a play on words: (Ehud) Barak (the Prime Minister), Go to

(Aharon) Barak (the Chief Justice).]

56. Israel Harel, “An Unrealistic Supreme Court,” Editorial, Ha’Aretz internet

English edition, 9 September 1999.

57. Ibid.

58. Dan Margalit, “What the High Court Refuses to Understand,” Ha’Aretz, 23

December 1999, 1B [Hebrew].

59. “Proposal for a Criminal Procedure Bill (Authorities and Special Interroga-

tion Means in Security OV enses),” 1999: Draft Bill submitted by MK Reuven Rubi

Rivlin et al. (courtesy of MK Rubi Rivlin).

60. Gideon Alon, “The Ultra-Orthodox are Angry: the Supreme Court Inter-

feres with Knesset Works,” Ha’Aretz, 16 December 1999, 11 A [Hebrew].

61. See p. 537 in Dan Avnon, “The Israeli Basic Laws’ (Potentially) Fatal Flaw,”

Israel Law Review, 32(4) (1998) 535–66.

62. Hobbes, Leviathan, 206.

63. Avnon, “The Israeli Basic Laws’ (Potentially) Fatal Flaw,” 537–8.

64. Ibid.

65. Ari Shavit, “A Word from the Head of the Opposition: Interview with

Professor Ruth Gavison,” Ha’Aretz Supplement , 12 November 1999, 18 [Hebrew].

66. Ibid., 22. Shas is a political party whose membership encompasses primarily

the ultra-orthodox and religious traditional Jews whose origins are Arabic-speakingcountries.

67. Ruth Gavison, “The Role of Courts in Rifted Democracies,” Israel Law

Review, 33(2) (1999) 216–258; see especially 216–19 and 251–7.

68. This argument was made by Ben-Gurion during the Knesset’s constitutional

debate, on 20 February 1950. See pp. 818–19; n. 45 above.

69. In a study published by the Israel Democracy Institute in 1998 on conWdence

in institutions, the Supreme Court ranked second after the Army, with85 percent of

the sampled population declaring conWdence or full conWdence in the Court. The

Knesset came in a distant third, with 41 percent. Ten percent of those included in the

study said they had a certain conWdence in the Court, while only 5 percent said they

had no conWdence at all. See Yochanan Peres and Ephraim Yuchtman-Yaar, Between

Consent and Dissent, Democracy and Peace in the Israeli Mind (Jerusalem, 1998), 59. A

similar survey made in 1990 by the same authors showed that 83 percent of thepopulation trusted the legal system. A comparison with other countries showed

that, in the United States, trust in the legal system is only a bare 51 percent; in

France, 55 percent; and in the UK and in Germany, 66 percent. See Yochanan Peres

and Ephraim Yuchtman-Yaar, Trends in Israeli Democracy (Boulder, CO, and Lon-

don, 1992) 21–2.




70. Avnon, “The Israeli Basic Laws’ (Potentially) Fatal Flaw,” 561: “Controver-sies erupt precisely because the Israeli polity has not agreed to the contours and

contents of its fundamental value system. They reXect the fact that many decisions

that arise in the course of “normal politics” in Israel become political crises precisely

because they are interpreted in terms of divergent normative presuppositions that

are often widely at odds.”

71. See p. 48 in Menachem Hofnung, “Israeli Constitutional Politics: The Fra-

gility of Impartiality,” Israel A V airs, 5(2–3) (1999) 34–54.

72. Hobbes, Leviathan, 199.

Carl Schmitt and the Jewish Leviathan_Emanuele Ottolenghi

Documents

Transcript of Carl Schmitt and the Jewish Leviathan_Emanuele Ottolenghi