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Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy

Published online by Cambridge University Press:  16 February 2016

Pnina Lahav
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“Liberty of the individual is a thing of the past, or the future, in Palestine”, wrote Bernard Joseph, a distinguished member of Israel's “government in the making” in 1948, shortly before Israel was inaugurated as a sovereign state. Joseph's “present” was the dusk of British rule in Palestine. Draconian Defence (Emergency) Regulations suspended conventional liberties ordinary westerners were accustomed to expect and turned Palestine into a police state.

Precisely what “liberty of the individual” the esteemed jurist, who held degrees from both McGill University and the University of London, had in mind when he invoked the past of Palestine is not entirely clear. He could not have possibly meant liberty under the Ottoman regime which prevailed until 1918. Ottoman rule in Palestine was authoritarian, feudal and corrupt.

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Israel Law Review , Volume 24 , Issue 2 , Spring 1990 , pp. 211 - 269
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1990

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References

1 Joseph, B., British Rule in Palestine (1948) 226 Google Scholar.

2 Ellsworth, F.L., Law on the Midway, The Founding of the University of Chicago Law School (1977) chap. 5Google Scholar.

3 Cardozo, B.N., The Nature of the Judicial Process (1921)Google Scholar.

4 In 1925, Bernard Joseph, then a young lawyer, described in a memorandum to the Mandatory authorities the “normal modus operandi” in the Palestine courts:

The judge carries on business through the medium of some … intermediary… who is on the one hand sufficiently shady to do work of this character, but on the other hand sufficiently respectable to inspire confidence in all concerned, and the agreed bribe is deposited with this intermediary. If the Judge can put through the business, the bribe is duly handed over to him. If… he fails to secure the desired judgment, the bribe is duly returned to the unsuccessful litigant.

Memorandum to the High Commissioner, by Harry Sacher and D. Yoseph [B. Joseph], Oct. 12, 1925, State Archives.

S.Y. Agnon, the Nobel laureate in literature who had emigrated to Palestine a little earlier was less generous:

Yesterday you gave the judge such and such a sum to rule in your favour, next morning before the court you see your nemesis winning, not because justice was on his side but because he had doubled the sum. Not only did you lose in court, you also lost your bribe money.

Shtrasman, G., Wearing the Robes: A History of the Legal Profession Until 1962 (1984, in Hebrew) 39 Google Scholar.

5 The first five justices to serve on the Supreme Court were approved by a vote of the Provisional State Council. Agranat was included in the original list of five submitted to the Provisional Council by the Provisional Government. The Right opposed the list since they felt it was too left of center and threatened to sabotage the vote. As a result, Agranat was replaced by S.Z. Cheshin, allegedly more sympathetic to nationalist ideologies. See Lahav, , “The Supreme Court of Israel: Formative Years, 1948-1955” (1990) 11 Studies in Zionism 45 CrossRefGoogle Scholar.

6 See Hertzberg, A., The Zionist Idea (1982) 181–192, 215–220, 559–570 Google Scholar. This theme antedates the Holocaust, but was reinforced and concretized by the death camps of the 1940s. See generally Avineri, S., The Making of Modern Zionism: The Origins of the Jewish State (1981)Google Scholar; Laqueur, W., A History of Zionism (1972)Google Scholar. The theme survived the implementation of Zionist ideology in Israel and has occupied a significant place in Israeli political culture. Recently, Israel's Prime Minister Yitzhak Shamir reflected the same perception when he said, “The Arabs are the Arabs and the sea is the same sea” — alluding to the Arab threat to throw the Jews into the sea as a fixed feature of the Arab/Israeli conflict: Ha'aretz, Jan. 27, 1989, at B-1. My friend Menahem Mautner observes that in modern Israel the Arab has replaced the gentile (“goy”) but the perception that “the entire world is against us” has remained intact.

7 The epitome of the Utopian dream, of course, is the kibbutz, with its strong and radically communitarian ideology. See generally S. Avineri, The Making of Modern Zionism, supra n. 6. See also Gorny, Y., “The Utopian Features in Zionist Thought” (1984) 9 Ha-Ziyonut 45 Google Scholar; Avishai, B., The Tragedy of Zionism (1985)Google Scholar. This theme ignited the imagination of the Christian world and fanned Western support for the Zionist enterprise. It rivalled the guilt felt by Western nations at the heels of the Holocaust (which proved the rational basis of catastrophe Zionism), for their failure to assist the Jews as they were systematically murdered in the death camps.

8 The words appear in a popular song of the thirties and forties in Israel: “Here in the darling land of our forefathers, all the hopes will be fulfilled; Here we shall live and will create, a life of liberty, a life of freedom; Here divinity shall dwell, the language of the Torah shall grow as well”. (A cardinal issue for Zionists was the revival of Hebrew as a spoken language.) Another popular song stated: “We came to our country, to build and be rebuilt in it” (author's translation).

9 The Camp David Accords and the peace with Egypt of the late seventies, as well as the more recent indication by Mr. Arafat that the PLO may have finally come to recognize the State of Israel in the late eighties, should not blur the fact that from the forties to the seventies the solid position of the Arab world was that the State of Israel should be destroyed and its Jewish inhabitants who arrived there after the Mandate (the majority) thrown out. See generally Laqueur, supra n. 6. See also Koestler, A., Promise and Fulfillment (1949) 84, 178 Google Scholar.

10 This theme is not particular to Zionism. Israelis often point out that other nations pretending to uphold high humanitarian standards have applied suppressive measures during periods of crisis. A good example is the detention of Japanese Americans during the Second World War or the detention of aliens in England during the same period. This Israeli position, of course, emphasizes the theme of normalcy: Israel is a state like any other and should not be reproached for taking the same measures taken by other countries. This claim harbors resentment of the application of double standards to Israel, but at the same time rejects the Utopian Zionist theme of Israel as “a light unto the nations” a position which necessarily entails standards higher than those applied by ordinary nations. See also Dershowitz, A., “Preventive Detention of Citizens During a National Emergency — A Comparison Between Israel and the United States” (1971) 1 Is. Yrbk of Human Rights 295 Google Scholar; Supperstone, M., Brownlie's Law of Public Order and National Security (1981) 225, 324–25Google Scholar.

11 Declaration of the Establishment of the State of Israel, 1948, 1 L.S.I. 3. The first part of the Declaration mentions: “The catastrophe which recently befell the Jewish people — the massacre of millions of Jews… was another clear demonstration of the urgency of solving the problem of its homelessness by re-establishment in Eretz-Israel the Jewish State …”; the third part declares: “The State of Israel… will be based on freedom, justice and peace as envisaged by the Prophets of Israel; it will ensure the complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex; it will guarantee freedom of religion, conscience, language, education and culture …”

12 The original five Justices were: Chief Justice Moshe Smoira, born and educated in Germany; Justice Itzhak Olshan, born in Russia and educated in Palestine-Eretz Israel and in London; Justice Menachem Dunkelblum, born in Poland and educated in Poland and Holland; Justice Simha Assaf, born in Poland and educated there and in Palestine-Eretz Israel; Justice Shneur Zalman Cheshin, born in Palestine-Eretz Israel and educated in Palestine-Eretz Israel and at New York University in the United States. In the first year, Justice Shimon Agranat (born and educated in the United States) and Justice Moshe Silberg (born in Poland and educated in Germany) joined the Court.

13 Justices Yoel Sussman and Alfred Witkon, born and educated in Germany, arrived in Palestine after Hitler came to power. Justice Moshe Landau, educated in Germany and in London (the only conscious Zionist in this group) left his hometown, Danzig, in 1929 as the Nazis were rising to power. Justice Itzhak Kahan, born and educated in Poland, arrived in Israel on the heels of the Polish government's sanctions against the Jewish community in the thirties. The first three are of particular significance here, since they joined the Court in the early fifties and had a tremendous influence on its course.

14 See Avineri, supra n. 6, at 88-100; Weizmann, Chaim, Trial and Error: The Autobiography of Chaim Weizmann (1949) vol. 1, pp. 15–28 Google Scholar.

15 See, for example, the article he wrote when he was 18 years old, on the occasion of the establishment of the Hebrew University in Jerusalem, which he termed “The first attempt within almost two thousand years to lay the foundation of a Hebrew culture in Palestine…. We Jews ask ourselves a selfish question: What is it that will satisfy us in our endeavor to provide the world with the advantages of a great culture. Can it be the glory that we shall never derive in our own lifetime? … we answer that in life one should strive to attain the highest sort of perfection imaginable … if then we are convinced that the future Hebrew culture will inspire the universe with such lofty ideals as it has never before experienced, then it is in the impulse and aspiration to lay the basis of such a culture that we recognize our own personal satisfaction”. Der Yiddisher Currier, Apr. 5, 1925 (Sunday English Edition).

See also his eulogy for Ephraim Chizik who died in 1929 during an Arab attack on the Jewish settlement of Hulda: “In the Galuth we were familiar with the kedoshim (martyrs) who knew how to die to … preserve the spiritual treasures of Israel …. But the Chiziks… mark the return… of an old-new type of hero… the gibbor (hero) …. It was the gibborim who fought for the concrete evidences of the national unity for the tangible fatherland, for their country, for the national soil. And it was they whom the world has understood … when they ceased to appear, we ceased to be discernible as a national entity … in the death of a Chizik [we] feel more keenly … our passage whether mental or physical - from Galuth to Geula (from exile to redemption). Avukah, , A Modern Maccabbean (1930) 104, 108–09Google Scholar.

16 The Chief Justice, Moshe Smoira, said: “… for almost two thousand years the People of Israel prayed three times a day ‘Restore our judges as of old and our counsellors as at first’; with awe we now approach the fulfillment of this vision”. Speech of Smoira, Moshe at the Inauguration of the Supreme Court, (1948) 5 HaPraklit 187, at 189 Google Scholar; Itzhak Olshan, who later became Chief Justice remembered: “It was as if each and everyone of us heard the voice of history calling him to ascend to the summits and from there dispense justice to the citizens of the state” [the allusion to Mount Sinai is rather striking]. Olshan, I., Din U-Dvarim (1978, in Hebrew) 213 Google Scholar.

17 See Avineri, supra n. 6; Teveth, S., Ben Gurion: The Burning Ground, 1886-1948 (1987)Google Scholar.

18 These political trends preceded the establishment of Israel. See Horowitz, D. and Lissak, M., Origins of the Israeli Polity (1978) 120–56Google Scholar. See also Eisenstadt, S., The Transformation of Israeli Society (1985) 173, 177–78Google Scholar.

19 “The perception of the individual as a bearer of collective ideals whose commitment to these ideals makes him or her subordinate to their imperatives was characteristic of both the pioneering ideology and the ideology of the national radical right In its own way, each of these movements called on the individual to sacrifice private interests and to place him or herself at the disposal of … collective goals and interests”. Horowitz and Lissak, supra n. 18, at 131. Itis also worth mentioning that Jewish law, being both an ancient and religious legal system, has not explicitly recognized a concept of human rights. Rather, Jewish law revolves around the concept of duties. For an interesting discussion see Cohn, H., Human Rights in Jewish Law (1984) 17–20 Google Scholar.

20 Most oriental Jews (Sephardim) came into Israel in the late forties and fifties. They did not have any significant influence on the country's culture or politics until the late seventies. For example, in the Supreme Court since independence and until the seventies, there had been only one representative of oriental descent. Eisenstadt, supra n. 18, at 117, 124, 311-15.

21 The consequences of this rivalry are obvious in the legal system today. Most of Israel's private law has been codified since independence, and bears the influence of the German BGB. The mode of judicial reasoning, on the other hand, remains closely tied to the common law. For a discussion see Friedmann, D., “Independent Development of Israeli Law” (1975) 10 Is.L.R. 515 Google Scholar; Friedmann, D., “Problems of Codification of Civil Law in Israel” (1979) 2 Jewish Law Annual 88 Google Scholar; Mautner, M., “Risk Creators and Those Exposed to Risks: The Defense Based on Another's Appearance in the New Civil Legislation” (1986) 16 Mishpatim 92 Google Scholar.

22 See generally Kammen, M., The Machine That Would Go of Itself (1987)Google Scholar.

23 During this time, 156,000 Palestinian Arabs stayed in Israel. Immigrants came mostly from Europe, the Middle East, and North Africa; they numbered 239, 576. Eisenstadt, supra n. 18, at 151, 295.

24 The bitterness felt by the immigrants brought the rise of the Likud to power in 1977. Many voters associated socialism with the self-righteous, Ashkenazi-centered, heart-less bureaucracy of the fifties and sixties. See Eisenstadt, supra n. 18, at 492.

25 For a discussion of the labor reform legislation in the fifties, see Ben-Israel, R., “Israel” in International Encyclopaedia for Labour Law and Industrial Relations (1988) vol. 6, p. 38 Google Scholar. See also Compulsory Education Law, 1949, 3 L.S.I. 125; Women's Equal Rights Law, 1951, 5 L.S.I. 171.

26 See Gavison, , “The Controversy Over Israel's Bill of Rights” (1985) 15 Is. Yrbk of Human Rights 113 Google Scholar.

27 Defence (Emergency) Regulations (1945), reprinted in P.G., No. 1442 (Supp. II), incorporated into Israeli law by sec. 11 of the Law and Administration Ordinance, 1948, 1 L.S.I. 7. See also supra text accompanying n. 1.

28 For the application of censorship see Goren, D., Secrecy and the Right to Know (1979) 115 Google Scholar; see also Lahav, P., Press Law in Modern Democracies (1985) 274 Google Scholar. Administrative detention and sanctions on freedom of movement were applied primarily to members of the Irgun and Fighters for the Liberation of Israel (Stern Gang) and Palestinian Arabs. See Lustig, I., Arabs in the Jewish State (1980) 123–25Google Scholar; see also Akiva Brun v. Prime Minister of the State of Israel (1948) 1 P.D. 109.

29 In June, 1948, the Altalena, an Irgun ship loaded with arms and ammunition, arrived at the shores of Israel. Prime Minister Ben Gurion insisted that the shipment be handed over to the IDF (Israel Defence Forces). He interpreted the arrival of the Altalena as “a threat to his authority and the legitimacy of the new government”. Perlmutter, A., The Life and Times of Menachem Begin (1987) 233 Google Scholar. Indeed, it seems that a putsch was contemplated by certain quarters at both the Irgun and Lehi (Stern Gang) leadership (id., at 232). After nerve wrecking negotiations between the IDF and Menachem Begin (the Irgun's chief commander), the Altalena was hit by cannon fire and burst into flames. The Irgun was subsequently dissolved and its members joined the IDF as individuals (id., at 233). Toward the end of September, 1948, Ben Gurion had also accomplished the controversial dissolution of the Palmach, the Kibbutz movement's ideologically left-leaning elite combat units, for fear that the Palmach would not be unequivocally loyal to Israel's civilian government under his leadership. Shapira, A., The Army Controversy, 1948: Ben Gurion's Struggle for Control (1985) 54 Google Scholar.

30 “Camps of LHY (Stern Gang) in Jerusalem were surrounded and occupied, persons found in camps were arrested and substantial quantities of arms and ammunition were confiscated”. (Report on the Assassination of Count Folke Bemadotte and Colonel Andre Serot, 3 May 1949, U.N. Security Council s/1315, p. 1).

31 Id.

32 Prevention of Terrorism Ordinance, 1948, 1 L.S.I. 76.

33 Ironically, when the right wing Likud (descendent of the Irgun and Fighters for the Liberation of Palestine) came to power in the late seventies, its leaders cleared the dust off the anti-terrorism ordinance and turned it into a weapon against the PLO. Prevention of Terrorism Ordinance (Amendment) Law, 1980, 34 L.S.I. 211 as amended.

34 Provisional State Council, vol. I, 19th session at 17.

35 Members of the bar sent a letter to Ben Gurion warning that such a view would undermine the confidence in the judiciary, without which an honest and efficient government would not stand. See Shtrasman, supra n. 4, at 177.

36 Unger, R., Law in Modern Society (1976) 52–54 Google Scholar.

37 But Ben Gurion's observations about the meaning of law reflected only one angle of the emerging Israeli legal culture. After all, the very insistence on enacting a special statute, given that the Defence (Emergency) Regulations were in full force and provided ample means to handle the crisis, must have revealed some belief that political discourse included the language of law.

38 See also infra, text accompanying nn. 106-108.

39 For Israelis generally, the terms state and nation are synonymous.

40 See cablegram of 27 Sept. 1948 from Ralph Bunche to the Secretary General, U.N. files s/1018.

41 As was suggested to me by Justice Haim Cohn, then Prosecutor General of Israel and a member of the Commission.

42 The Report, available in the archives of the State, is classified as top secret for a period of 50 years. Parts of it appear in the U.N. archive, s/1315; at the time there was a feeling that the government did not do all it could to bring the perpetrators to justice. See Raphael, G., Destination Peace (1981) 18 Google Scholar, and Heller, J., Lehi, 1940-1949 (1989, in Hebrew) vol. II, p. 459 Google Scholar.

43 Zeev v. The Acting District Commissioner of the Urban Area of Tel Aviv (Yehoshua Gubernik) and Others (1948) 1 P.D. 85; 1 S.J. 68. The apartment was confiscated in order to provide a home for the Director of the Financial and Control Section of the Ministry of the Interior. The newly established government located its headquarters in Tel Aviv and had to move a considerable number of civil servants to this location.

44 It was not surprising that lawyers would try to make this argument, since in 1945 a unanimous Jewish bar denounced the regulations as draconian and authoritarian. See Shtrasman, supra n. 4, at 148.

45 Supra n. 11, quoted in 1 S.J. 71.

46 Zeev v. Gubernik, supra n. 43, at S.J. 71-72.

47 See Joseph, supra n. 1.

48 Quite a few cases established the rights of individuals against the State. But while I have not conducted a statistical study of the issue, I have the impression that the bulk of the cases failed to address individual grievances.

49 Infra n. 51, at 82.

50 A Turkish word, referring to “a tip, gratuity or alms”. Webster's New World Dictionary, (3rd College ed., 1988)Google Scholar.

51 Bezerano v. Minister of Police (1949) 2 P.D. 80.

52 Id., at 82.

53 Id.

54 Id., at 82, 83 and 84 respectively.

55 See generally Pocock, J., The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (1987)CrossRefGoogle Scholar.

56 The opinion was short and relied only on precedents appearing in the Palestinianmandatory decisional law. Interestingly, the two other judges on the panel, Silberg J. and Assaf J., both orthodox Jews, did not volunteer sources from Jewish law. Since both considered their role on the Court to be that of infusing Israeli decisional law with Jewish sources, I take their omission in this instance to mean that they did not attribute specific significance to the case.

57 (1950) 4 P.D. 34 Google ScholarPubMed.

58 The Palestine Post of Dec. 7, 1947, p. 1, reported: “Two Jews were killed and one is missing as a result of Arab attacks in the Gaza area today. A truck on the way to Negba settlement from Gath was ambushed and Ernst Miller, an immigrant from Chile, was killed and another reported missing. Later, a party that set out from Negba to search for the missing man was engaged by an Arab band and Moshe Litvak was killed”.

59 Supra n. 57, at 44.

60 Id., at 47-48.

61 The pre-independent Jewish community in Palestine.

62 Id., at 37.

63 Id.

64 Id.

65 Id.

66 Id.

67 Shapira, A., “Judicial Review Without a Constitution: The Israeli Paradox” (1983) 56 Temple L.R. 405, at 417 Google Scholar.

68 I am relying here on Karl Llewellyn's distinction between formal and grand style opinions and their respective role in the development of the law. See Llewellyn, K., The Common Law Tradition: Deciding Appeals (1960)Google Scholar. By and large the Israeli opinions were of the formal style.

69 See Gavison, supra n. 26, at 115-17.

70 On Feb. 17, 1952, one day before Podamsky was argued and six weeks before the Podamsky opinion was delivered, Olshan J. rebuked the government for having repealed a license previously granted to open an ice cream factory, on the ground that such a factory was not vital to the State: “I doubt whether members of the civil service in our State … understand their [responsibility]… they have to follow certain principles, tantamount to first principles, such as: every citizen is innocent until otherwise proven [guilty], justice should be done and also seen … elementary justice requires that before a decision is reached the citizen be granted the opportunity to explain so as to remove doubts. We are not convinced that in this case this was not done ….” (emphasis in the original). The Court, however, did not overrule the administrative action, Lizi Sax v. Minister of Trade and Industry (1952) 6 P.D. 696, at 703.

71 (1952) 6 P.D. 341 Google ScholarPubMed.

72 The judge issuing the detention order on Sept. 1, 1950, had jurisdiction to detain the prisoners only for a period of 15 days. Hence by Oct. 15 (the day these events took place) the detention order had expired and the prisoners were free men. Id., at 346.

73 The problem of law enforcement was so acute that Prime Minister Ben Gurion, in a broadcast speech to the nation on the occasion of Israel's first anniversary, devoted a whole paragraph to it, emphasizing the need to change national attitudes toward the judge and the policeman: “In exile, and for a long time in our own land, we saw the alien judge and policeman—as a hostile enemy. With independence, we have the opportunity to … see in the agents of the law and its guardians loyal friends of the people…. In particular, a difficult and heavy responsibility rests on the young police force”, Ha'aretz Yearbook (1949) 300 Google Scholar. The program of austerity and rationing, introduced by the government in an effort to rebuild the economy, caused a black market to flourish and an almost universal violation of the austerity laws. In addition, the large influx of immigrants, embattled and disoriented, caused significant law enforcement problems. See Segev, T., 1949, The First Israelis (1986) 297–322 Google Scholar.

74 Criminal Code Ordinance, 1936, P.G., no. 633, p. 973. [Now partially incorporated in Penal Law, 1977, L.S.I. Special volume, sec. 192].

75 Podamsky, supra n. 71, at 353.

76 Cheshin and Assaf JJ. concurring.

He did, however, overturn the other conviction: carrying a weapon without a license. In the indictment the appellants were not charged with this offense but rather with sec. 66(a) of the Criminal Code (carrying a weapon for the purposes of committing treason against the government). The District Court decided that since sec. 66(a) did not apply, it had jurisdiction to convict the appellants of another offense, that of carrying a weapon without a license. The Supreme Court held that since sec. 66(a) had already been held as implicitly repealed by the new law regulating the carrying of weapons, it was void when the indictment was brought before the Court. The District Court, it held, could not substitute a valid offense for one which was void. Id., at 347.

77 Podamsky, supra n. 71, at 354.

78 The English translation appears in the text of the opinion, but in Hebrew this second category appeared as “liberty rights”, i.e., the term right was used for this category as well as for the first one.

79 Podamsky, supra n. 71, at 354.

80 Id.

81 Id. (emphasis in the original).

82 Id.

83 Id., at 355.

84 Id., at 357.

85 Id.

86 “A homeowner empowering another to sell his house, invests in him the power to deny the homeowner's right in the property”. Id.

87 Id. The significance of this statement lies with its emphasis on the premise of the coequality of the branches of the government and the concomitant assumptions that executive actions not warranted by law are ultra vires. These should be read in the context of the attack in the Knesset on judges which had occurred at about the same time. See infra text accompanying nn. 103-116.

88 Id., at 359.

89 It is important, however, to reemphasize that the appeal was partially successful, in that the Supreme Court overturned the conviction for holding weapons without license. Thus, even in terms of the result alone, the case cannot be seen as a straight triumph for the police.

90 Lizi Sax, supra n. 70, at 703.

91 Podamsky, supra n. 71, at 354.

“It should be clear that in our discussion we did not mean to engage in a comprehensive study of the subject, but rather to summarize a few principles which are relevant to our subject matter and which were derived from the literature — writings of authoritative legal scholars — as follows: Salmond, , Jurisprudence (10th ed.) chap. 10CrossRefGoogle Scholar; Paton, , Jurisprudence (1946) part III, chap. 10Google Scholar; the article “Legal Analysis and Terminology” of Corbin, published in Hall's, Readings in Jurisprudence, p. 471 Google Scholar”.

92 Hence, his dictum that had they petitioned the High Court for habeas corpus they would probably have won their freedom through legal means. Podamsky, supra n. 71, at 361.

93 Id., at 361.

94 Cohen, Mitchell, Zion and State (1987)Google Scholar.

95 This is amply clear when one looks at the sources which inspired the model, but also from the various examples offered by Agranat J., most related to issues of private law.

96 Singer, , “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld” (1982) Wis. L.R. 975, at 1057 Google Scholar.

97 Id., at 984.

98 I am indebted to Morton J. Horwitz for helping me clarify this relationship between Podamsky and American law.

99 SirSalmond, John, Jurisprudence (1902, 10th ed., 1947)Google Scholar. For a discussion of Israeli legal education in its formative period, see Grunis, A.D., “Legal Education in Israel: The Experience of Tel-Aviv Law School” (1975) 27 J. Legal Ed. 203 Google Scholar.

100 There were, however, legal consequences to the categorization of the policemen's actions as liberty. It precluded a criminal or civil action against the police for such action. It should also be mentioned that the Israeli legal academy was quite taken by Hohfeld, whose model was taught extensively in introductory courses in jurisprudence as the “epitomy oflegal philosophy” (quote from my friend M. Mautner, member of the Law Faculty, Tel Aviv University).

101 It may well be that the pragmatic Israelis had no patience for the highly analytical concepts embedded in the opinion. Shortly thereafter, when Israeli Supreme Court opinions were proudly translated into English, to show the world the fruit of Israeli judicial labor, Podamsky was not included. However, the entire subject of which opinions of Israel's Supreme Court are translated into English and which remain in Hebrew only, is of profound significance for comparative legal scholarship. Scholars and teachers outside of Israel are entirely dependent for their understanding of Israeli jurisprudence on the sample of translated cases or on the writings of those who do read Hebrew. So far no access has been available to the factors which determine the selection.

102 Indeed, Agranat J. himself returned to his Podamsky opinion in 1956, and introduced to Israel's legal landscape the fourth category put forward by Hohfeld, immunities. Cohen v. Ministry of Defence (1956) 10 P.D. 1375.

103 A bill on the judiciary was presented to the Knesset on Feb. 26, 1951 (2nd Session of 2nd Knesset), but it was shelved following a brief deliberation; see Divrei HaKnesset, 1952, vol. 8, p. 1176 Google Scholar.

104 From its inception and until Oct. 8, 1951, the Ministry of Justice was in the hands of the Progressive Party — a middle class liberal party. A crisis related to disagreement between the government and the Knesset about elementary school education led to a construction of a new government in which the Progressive Party did not participate. During this period, Bernard Joseph, known in Israel by his Hebrew name, Dov Yoseph (see supra n. 1) served as Minister of Justice. The Progressive Party returned to the government on Oct. 23, 1952, and the Ministry of Justice was returned to the hands of Pinhas Rosen, who had held it previously. See Yaacobi, G., The Government (1980) 341 Google Scholar.

105 Divrei HaKnesset, Jan. 28, 1952, vol. 11, p. 1115 Google Scholar.

106 Id.

107 Id., at 1116.

108 After observing that in Israel the press was licentious and was damaging the interests of the State, Joseph continued: “It is true that our financial situation is bitter, but it is not necessary to publicize it so that the enemy will know”. Ha'aretz, Jan. 29, 1952.

109 Olshan, supra n. 16, at 244.

110 Rubinstein, E., Shoftei Eretz (Judges of the Land) (Tel Aviv, Schocken, 1980, in Hebrew) 98 Google Scholar.

111 On grounds of separation of powers.

112 Divrei HaKnesset, Feb. 27, 1952, vol. 11, p. 1461 Google Scholar.

113 Ha'aretz, Mar. 5, 1952.

114 See White, G.E., The American Judicial Tradition (1976) 158 Google Scholar.

115 7 L.S.I. 124, sec. 13.

116 The Chief Justice was very ill, and two of the most senior Justices of the Court were not on speaking terms. In addition, the Court was in the midst of a confrontation with the Ministry of Foreign Affairs revolving around the issue of passports. As a part of their campaign to be recognized as an equal branch of the government, the Justices asked that the same passports that were being issued to Ministers in the Cabinet also be issued to them. The Foreign Ministry refused. Agranat's travelling on an ordinary passport was viewed as a set back in this struggle. There were also some personal considerations against travelling, as a fifth child has just been born to the family.

117 In her biography of Berl Katznelson, one of the Yishuv's leading intellectuals, historian Anita Shapira, recounts Katznelson's first visit to the United States: “Both [Eretz Israel and the United States] were meant to provide a solution to the existential problem of the Jews. … there was a hidden and an overt competition between Eretz Israel and America over the soul of the Jewish immigrant… Berl anticipated the encounter [with his soul mates and relatives who had emigrated to the United States from Russia] with mixed curiousity and anxiety: which way of life was better? who made the right choice? which country was better for the immigrants — Eretz Israel or America?” Shapira, A., Berl, A Biography (1980, in Hebrew) vol. I, p. 214 Google Scholar.

118 Durham v. United States, 214 F.2d 862 (1954).

119 Bartley C. Crum was a partner in the law firm of Hays, Podell, Algase, Crum & Fever in New York City. He had been a member of the Anglo-American Committee on Inquiry on Palestine in 1946, an experience which turned him into a staunch supporter of the Jewish State, as he revealed in his book Behind the Silken Curtain (1947): Who Was Who in America 1951-1960, (1960) vol. III, p. 199 Google Scholar.

120 He had earlier learned that the entire set of the Harvard Law Review had been reissued.

121 Dennis v. United States, 341 U.S. 494 (1951).

122 See Abrams v. United States, 250 U.S. 616 (1919); Gitlow v. New York, 268 U.S. 652 (1925), and the concurrence in Whitney v. California, 274 U.S. 357 (1927).

123 (1953) 7 P.D. 871; 1 S.J. 90.

124 Eisenstadt, supra n. 18, at 178.

125 Between July 11-18, 1952, twenty-three of the Soviet Union's most senior Jewish intellectuals were tried and sentenced to death. On January 13, 1953, nine physicians, seven of whom were Jewish, were accused of an attempt to poison the Soviet leadership. In the Jewish world these events were interpreted not only aa anti-Semitic, but also as an effort to put an end to Jewish national consciousness in the Soviet Union. See Pinkus, B., The Soviet Government and the Jews 1948-1967 (1984) 195–201 CrossRefGoogle Scholar; Weinryb, B.D., “Anti-Semitism in Soviet Russia”, in The Jews in Soviet Russia Since 1917, Kochan, L. ed. (3rd ed., 1978) 322–23Google Scholar.

126 See Lahav, supra n. 28, at 270-81.

127 Supra n. 123, at S.J. 94.

128 Drayton, , Laws of Palestine, vol. II, p. 1214 Google Scholar.

129 Kol Ha'am v. Minister of Interior (Kol Ha'am I) (1953) 1 P.D. 165, at 166. For attempts to explain the conflict between the two Kol Ha'am cases see Shapira, A., “Self Restraint of the Supreme Court and the Preservation of Civil Liberties” (1973) 2 Iyunei Mishpat 640 Google Scholar; Lahav, , “American Influence on Israel's Jurisprudence of Free Speech” (1981) 9 Hastings Const. L.Q. 21, at 30 Google Scholar, and Lahav, , “The Jurisprudence of Chief Justice Shimon Agranat”, in Essays in Honour of Shimon Agranat, Gavison, R. and Kremnitzer, M., eds., (1986, in Hebrew) 9 Google Scholar.

130 In a recent interview, thirty-five years after the events, Agranat J. was intrigued by the proximity of these events, but could not recall their direct influence on his decision.

131 See Lahav, “American Influence …”, supra n. 129, at 37-69.

132 Id., at 46-61.

133 Supra n. 123, at S.J. 94.

134 Id.

135 Id.

136 Id., at S.J. 96.

137 Id., at S.J. 95.

138 Id., at S.J. 99.

139 Schenck v. United States, 249 U.S. 47 (1919); Whitney v. California, supra n. 122.

140 Supra n. 123, at S.J. 100.

141 Id.

142 See Dennis, supra n. 121.

143 In principle he could resort to the Mandate or the King's Order in Council, but these were not authentic Israeli documents. It would be too much of a paradox to speak of democracy and self-rule and then rely upon norms imposed upon the polity from without. The Palestine Order in Council (1922), reprinted in Drayton, R., Laws of Palestine (1934) vol. 3, p. 2569 Google Scholar.

144 See Zeev v. Gubernik, supra n. 43.

145 Supra n. 123, at S.J. 105.

146 In 1986, M. Ben-Porath, Deputy Chief Justice of Israel's Supreme Court, deplored the “failure to enact the Declaration as part of Israel's constitution”. She said: “The moral force of the Declaration is beyond doubt and in its light most important decisions safeguarding the rights of the individuals in their relationship with the government were made”. Ben-Porath, , “Symposium: A Constitution for the State of Israel — Whether Desirable or Feasible?” (1986) 11 Iyunei Mishpat 19 Google Scholar. Indeed, in recent years, the Declaration has taken root as the source of constitutional rights in Israel and is frequently being invoked by the Supreme Court.

147 For example, Reg. 94 regulates the issuance of permits to publish newspapers thus: “The District Commissioner, in his discretion and without assigning any reason therefore, may grant or refuse any… permit…”; Reg. 111 provides that “A Military Commander may by order direct that any person shall be detained for any period not exceeding one year in such a place of detention as may be specified by the Military Commander in the order”. The matter regarding administrative detention has been regulated in an Israeli law, Emergency Powers (Detention) Law, 1979, 33 L.S.I. 89; Law and Administrative Ordinances, 1948, 1 L.S.I. 9. Other powers to limit rights of Israelis are still in force.

148 Supra n. 128. Sec. 19(2): “The High Commissioner [now replaced by the Minister of Interior]… may (a) if any matter appearing in a newspaper is, in the opinion of the High Commissioner… likely to endanger the public peace,… suspend the publication … for such a period as he may think fit….”

149 Kol Ha'am I, supra n. 129.

150 Supra n. 123, at 102.

151 5 U.S. (1 Cranch) 137 (1803).

152 When discussing political and civil liberties in Israel, commentators uniformly hail Kol Ha'am as proof of the commitment of the Supreme Court to basic notions of liberty. See e.g., Laufer, , “Israel's Supreme Court: The First Decade” (1964) Legal, J. Ed. 43, at 52–53 Google Scholar; Barak, A., “Chief Justice Agranat: ‘Kol Ha'am’ — The People's Voice”, in Essays in Honour of Shimon Agranat, Gavison, R. and Kremnitzer, M., eds., (1986, in Hebrew) 129 Google Scholar; Maoz, A., “Defending Civil Liberties Without a Constitution — The Israeli Experience” (1988) 16 Melb. U.L.R. 815 Google Scholar.

153 Mandelbrot v. Attorney General (1956) 10 P.D. 281; 2 S.J. 116.

154 Id., at S.J. 151.

155 For an excellent discussion of the history of the Act, see Shachar, Y., “The Sources of the Criminal Code Ordinance, 1936” (1979) 7 Iyunei Mishpat 73 Google Scholar.

156 Mandelbrot, supra n. 153, at S.J. 203.

157 “… I would consider it highly improper to usurp the place of the Knesset and myself lay down the law… we must not allow ourselves to be beguiled into giving decisions that undermine the legal edifice. We are subject to the law as it is and not as we would wish to see it”. Id., at S.J. 201.

158 Criminal Code Ordinance, Chapter IV, “General Rules as to Criminal Responsibility”, Section 11 (Intention: motive) reads:

(1) Subject to the express provision of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or in part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

[Now incorporated in Penal Law, 1977, L.S.I. Special volume, secs. 15 and 16]. Section 14 (Insanity) reads:

A persons is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission. But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such a disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission. [Penal Law, 1977, sec. 19].

159 See Glueck, S., Mental Disorder and the Criminal Law (1925) 215–16Google Scholar.

160 “The view of the subject of rights embraced by the seventeenth century contract theorists is usually termed Cartesian. It assumes that the individual will is the cause of all actions, individual and collective; it ascribes decisive epistemic and, hence, moral authority, to the individual over his actions, on the grounds that he has privileged access to the contents of his own mind. For this reason individual consent becomes vital to the whole idea of political activity”. Shapiro, I., The Evolution of Rights in Liberal Theory (1986) 275 Google Scholar.

161 Mandelbrot, supra n. 153, at S. J. 170.

162 Id., at S.J. 131.

163 Id., at S.J. 156.

164 Id., at S.J. 158.

165 See supra n. 43.

166 As the dissenting and concurring opinions in Mandelbrot made amply clear.

167 Supra n. 71, at 349.

168 In Kol Ha'am he interpreted the term “likely” to incorporate the Vinson/Hand formula of Dennis, supra n. 123, at S.J. 113. In Mandelbrot he interpreted sec. 11 to include the insanity defense, supra n. 153.

169 Mandelbrot, supra n. 153, at S.J. 177.

170 This perception about the two cases Chief Justice Agranat related to me many times, sometimes saying it about himself and sometimes attributing it to others. In Meysan v. Attorney General (1957) 11 P.D. 769, a majority of the Court accepted Agranat's opinion in Mandelbrot and it has been followed ever since. Interestingly, it was the prosecution which argued in Meysan that the Agranat position should be endorsed as reflective of the positive law. See Ben-Porath, M., “Memories”, in Essays in Honour of Shimon Agranat, Gavison, R. and Kremnitzer, M., eds. (1986, in Hebrew) 5 Google Scholar. For a discussion see Levy, Y. and Lederman, E., Principles of Criminal Responsibility (1981, in Hebrew) 266–275 Google Scholar.

171 Durham v. United States, supra n. 118.

172 Mandelbrot, supra n. 153, at S.J. 171.

173 Leopold, 18 years old, and Loeb, 17 years old, sons of wealthy Chicago families, confessed to having kidnapped and murdered Bobby Franks “for the sake of a thrill”. Clarence Darrow, hired as their defense attorney, argued that their insanity should operate to mitigate the punishment. The trial attracted wide media attention. Weinberg, A., Attorney for the Damned (1957) 16 Google Scholar.

174 These facts were related to me during interviews with Justice Agranat. When I asked him if Lucia would enjoy a defense of irresistible impulse, he laughed, saying, “I did not think about it”.

175 Mandelbrot, supra n. 153, at S.J. 176.

176 Baylin, B., The Ideological Origins of the American Revolution (1967) 189 Google Scholar.

177 Schnitzer v. Chief Military Censor (1988) 42(iv) P.D. 617.

178 At the risk of doing injustice to some judges of the Court, I will mention that Justices Shlomo Levin and Gabriel Bach are also important actors in building upon this tradition. This does not mean that other judges do not occasionally follow the same path.

179 Gavison, supra n. 26.

180 See e.g., Saar v. Minister of Interior (1980) 34(ii) P.D. 169; Kahana v. Broadcasting Service (1987) 41(iii) P.D. 255; La'or v. Film Censorship Board (1987) 41(i) P.D. 421; Poraz v. Shlomo Lahat, Mayor of Tel Aviv (1988) 42(ii) P.D. 309.

181 Joseph, supra n. 1.

182 Kassrawi v. Minister of Defence (1985) 39(iii) P.D. 401 (deportation); Badir v. Minister of Interior (1985) 39(iii) P.D. 54 (restriction ofright to travel); Matar v. Military Court in Nablus (1986) 40(iii) P.D. 817 (detention before trial); El-Hatib v. District Commissioner of Jerusalem (1986) 40(iii) P.D. 657 (repeal of license of publish newspapers); Hamad v. Military Commander of Judea and Samaria (1986) 40(iii) P.D. 361 (conditions in prison); Daher v. Minister of Interior (1986) 40(ii) P.D. 701 (freedom of movement); Hamdan v. Military Commander in Judea and Samaria (1986) 40(ii) P.D. 614 (closure of sports and educational club on grounds of national security).

183 Mandelbrot, supra n. 153, at S.J. 156.