I. Prologue of setting the stage
This paper aims to offer an in-depth outlook into the academic research that scholars in Israel have produced on law and society. Based on analysis of hundred of studies on law and society written by Israelis that have been published since the 1950s, in Hebrew, Arabic and English, it unveils the fruitful scholarship of Israelis as articulation, construction and generation of conflicts around the meaning of the nation-state and its relations with various segments of society from ruling elites to marginalised communities. I have preferred not to analyse the genealogy of studies on law and society along recognisable lines of theory vs. empiricism or positivism and formalism vs. realism. Rather, the paper endeavours to unveil how scholarship on law and society resonates with struggles around division of political power, defining and redefining the nation-state, and contradictory expectations of construction and reconstruction of public policies.
These struggles and conflicts of identities have formed and shaped distinctive types of research questions, theories and methodologies, which cannot exclusively be explained as an upshot of academic training; rather, scholars have been affected through a range of visions and concepts of the nation-state. Furthermore, to explore scholarship only based on affiliations with identity groups will not suffice. This paper aims to unveil a more compound map of research that looks mainly into the origins of how various scholars view the nation-state, and the ways in which local and global types of knowledge have converged to formulate interactions of research with social forces through law.
Readers may justly ponder the purpose of drilling into a local knowledge regarding law and society. One may erroneously presuppose that the meaning of local knowledge is nothing more than usage of generic terms in law and society scholarship in the context of a single country, like Israel. As shall be demonstrated below, Israeli scholars have indeed produced critical questions that have not merely a local meaning but which do entail broader ramifications on our understanding of research. However, the paper does not pretend to cover all dilemmas and questions raised in law and society scholarship published on Israel; rather, it will address some major issues under hectic intellectual deliberations and analyse the rise of critical legal scholarship on Israel published by Israelis.
II. What is law?
For Israeli scholars, the quandary of what is ‘law’ has been embedded from the outset in the challenge of establishing the nation-state in 1948. Prominent academics of law and society were active members of political parties and were involved in what Barzilai and Peleg have coined ‘constitutional engineering’ of the newly born state (Barzilai and Peleg, Reference Barzilai and Peleg2009). As with other post-colonial countries, like India, Israel had inherited a colonial system of laws – the British Mandatary legalistic setting, and to a lesser extent the Ottoman system of law (Shamir, Reference Shamir2000; Likhovsky, Reference Likhovski1998).
Yet, as in other post-colonial states, the formation and codification of national state law, somewhat immersed in a colonial past, and yet aspiring to articulate and mould a newly born independence, was at stake. At this point, scholars of law and society were involved in debating the necessity of a written constitution and the possible need for a comprehensive legal codification. Since, in the early 1950s, the community of law and society scholars in Israel was very small, the debates were limited in scope and dealt primarily with ‘constitutional engineering’ (Barzilai and Peleg, Reference Barzilai and Peleg2009).
Thus, in the 1950s and 1960s, renowned scholars such as Benjamin Akzin (Reference Akzin1965, Reference Akzin1966, Reference Akzin and Aktzin1968) and Hans Klinghoffer (Reference Klinghoffer1963) were engaged in debates around the drafting of a written constitution. They presumed that state law was autonomous to politics and society, a professional and formal field that may structure, legalise and regulate public life. Akzin, a professor of political science and constitutional law at the Hebrew University of Jerusalem, was influenced by the positivist philosopher of jurisprudence Hans Kelsen. Accordingly, he argued for the enactment of a formal, hierarchical set of constitutional norms that would codify the essentials of a democratic political regime in Israel. Klinghoffer, also a professor of law at the Hebrew University, was engaged in administrative law and its ability to engender constitutional order. Both Akzin and Klinghoffer were affiliated with the political opposition, aspiring to restrain the political power of the then dominant ruling party, Mapai.Footnote 1 Akzin was an active Revisionist during the pre-state era, and served as the secretary of Revisionism'sFootnote 2 founding father, Ze'ev Jabotinsky. Klinghoffer was a member of the General Zionists,Footnote 3 and later its active Member of Knesset (Israeli parliament). As students of continental Austrian–German concepts of law, both of them believed in a strong cohesive state law as an effective instrument in the establishment of an independent civic mechanism of separation of powers and entrenchment of civil rights (Barzilai and Peleg, Reference Barzilai and Peleg2009).
This jurisprudential concept was further enunciated by a second generation of scholars of constitutional and administrative law such as Aharon Barak (Reference Barak1998, Reference Barak2004, Reference Barak2006) and Itzhak Zamir (Reference Zamir1993a, Reference Zamir1993b; Zamir, Rubinstein and Guy-Ron, Reference Zamir, Rubinstein and Guy-Ron2001), both former deans of the Hebrew University Faculty of Law, and later Supreme Court Justices, as well as other scholars, most prominently Amnon Rubinstein (Reference Rubinstein1969) and Amos Shapira (Reference Shapira1983, Reference Shapira1993; Shapira and Bracha, Reference Shapira and Bracha1972), deans of Tel Aviv University Faculty of Law. These scholars were interested in developing a codified Israeli law as a structured autonomous professional field, which would transcendently form and monitor political order (Barzilai and Peleg, Reference Barzilai and Peleg2009).
While the first generation represented by Akzin and Klinghoffer was robustly familiar with theories of political regimes, the second generation was mainly preoccupied with systematically framing and organising systems of administrative and constitutional law. They assigned particular importance to legalistic rules of the political game, the norms of legal interpretation, the establishment of administrative tribunals, the effectiveness of the judiciary – especially the Supreme Court – and the construction of constitutional law that would ensure governability and civil rights. The 1967 occupation of the Palestinian territories was considered a challenge to democratic law, but temporary in essence. The emphasis was not on critically examining first-order issues of national ideology, its legalistic reproduction, and political power, but rather the emphasis was on second-order issues of legal construction and interpretation (Barzilai and Peleg, Reference Barzilai and Peleg2009).
Both generations of scholars aspired to employ law as a system to establish and maintain the democratic Jewish nation-state, with an emphasis on constitutionally defining its fundamentals and constructing its various aspects of private, public, civil and criminal law.
Gradually, however, the main issues unveiled by law and society scholars have shifted from formalistic legalistic constructions of the Israeli Jewish republic into analysing the possible contradictions in its definitions as a nation-state, examining the ramifications of those contradictions on state and society relations and on minority–majority interactions. The sections below deal with efforts of Israeli law and society scholars to respond to and to explicate aspects of law and society relations and to critically use law and society concepts to better deconstruct state law.
III. A Jewish and democratic state
The statutory legalistic definition of Israel as a ‘Jewish and Democratic state’ dates back to 1985, when Clause 7A(a)(1) to Basic Law: The Knesset was enacted, and since then Basic Law: Human Dignity and Freedom (Clause 1A), and Basic Law: Freedom of Vocation (Clause 2), were enacted in 1992 and 1994, respectively. Yet public and constitutional controversies among scholars of law and society regarding the nation-state's desirable constitutional definition had already been aired, primarily since the beginning of the 1980s, when students of law and society were concerned with the possible contradictions between the democratic facets of the nation-state and its ethno-national aspirations as a centre of Jewish nationalism.
The controversies have primarily been aired around three main issues: separation of state from religion and freedom of religion; non-Jewish minorities, mostly Arab-Palestinians facing Jewish ethno-nationalism, and democracy; and possible contradictions between the aspirations of a ‘Jewish and democratic state’ and the 1967 military occupation. Let us elaborate on each of these categories.
3.1 State and religion
The first debate among jurists and law and society experts has been focused on the effects of Orthodox Judaism that has never been constitutionally separated from the nation-state in Israel public life, and its ramifications on the Israeli rule of law. Mainly Zionist religious scholars have underscored that, with the exception of religious Halachik law in Rabbinical courts, Orthodox Jewish religious values are absent in legal interpretations, and they should be reinforced through legislation and legal interpretations (Statman and Sapir, Reference Statman and Sapir2014). Yet the most vocal voice in that respect has been Supreme Court Justice Menachem Alon, who has ruled in various courts that ignorance of the judiciary from Orthodox Jewish values in legal hermeneutics stands in contradiction to Basic Law: Fundamentals of Law (1980), which allows judges to refer to Halachik law in legal interpretations (Alon, Reference Alon1973, Mautner, Reference Mautner2008).
Furthermore, Alon has argued in his academic research and writings that contemporary legal interpretations of the Basic Law: Fundamentals of Law are purposely and regretfully neglecting the usage of Halachik Jewish sources as Biblical, Talmudic and Rabbinical legal texts (Mautner, Reference Mautner2008). Conversely, Chief Justice Aharon Barak, like several law and society scholars, has consistently articulated the opposite view and underscored the need to render and develop legal interpretations based on a secular, liberal outlook (Barak, Reference Barak2006; Gavison, Reference Gavison1999a, Reference Gavison1999b; Mautner, Reference Mautner2008). Similarly, liberal Zionist religious Jews have argued that balancing the values of Israel as a Jewish state with liberal values may encourage more inclusion and liberalisation of religious services (Statman and Sapir, Reference Statman and Sapir2014; Stern and Ravitzki, Reference Stern and Ravitzki2007). One important issue that has been debated in this context is marriage and divorce.
Israel state law has not recognised civil marriage and divorce nor allowed civil jurisdiction in this matter. All legal registered marriage and divorce cases are subjected to religious Orthodox law based on the religious faith and religious–national affiliations of the relevant couples. Thus, Halachik law has been applied to Jews, Shari'a law to Muslims, canonical law to Christians, Druze religious texts to Druze, etc. Each ethno-national religious community has had its relevant religious judicial system recognised by state law, which also manages judicial nominations to those respective religious courts. Rulings of the religious courts have been subjected to the possibility of appeals to the High Court of Justice (HCJ), which has been inclined to intervene and reverse those rulings only very rarely in relatively few legal cases of a judicial mistake that has distorted the Court's decision.
As legal realism and critical scholarship of law have taught us (Fisher and Horwitz, Reference Fisher and Horwitz1993), scholars have to drill into the discrepancies and contradictions between law in life and law in the books, and study the socio-economic essence of the rule of law. While the national legal regime is of Orthodox religious marriage and divorce, the majority of the Israeli public is secular or non-Orthodox, primarily among Jews and Arab-Christians. Accordingly, and especially with the liberalisation of legal culture after the 1980s (Barzilai, Reference Barzilai2003), there has been a rise in various forms of non-Orthodox marriage procedures (e.g. reformists and conservatives) and civil marriage forms conducted by Israeli Jews outside Israel, in countries like Cyprus and Paraguay. Furthermore, common-law marriages have become more prevalent, and the judiciary has acknowledged property rights of spouses (including homosexuals) who have lived in the framework of a common-law marriage (Statman and Sapir, Reference Statman and Sapir2014). Hence, formal state law has constantly been challenged by civil non-Orthodox practices that have contextualised formal state law.
Both secular and religious scholars of law and society have been aware of it, and have intellectually challenged the legalistic status quo of Orthodox monopoly over marriage and divorce in order to adapt it to multicultural and practical legal pluralism in Israel. Thus, beside secular critical scholars who have called for complete separation between the nation-state and religion, liberal Zionist religious scholars have argued that, whilst Judaism is a dominant part of Zionism and embedded in Israel's national identity, two formal institutionalised channels of marriage and divorce should be established – Orthodox religious and civil (Statman and Sapir, Reference Statman and Sapir2014).
This construction of dual institutional arrangements has reflected an increasing critique of state law, even among religious intellectuals. Yet it has reflected a rather limited critique of the basic non-separation between Judaism, religious Orthodoxy, Zionist nationality and the nation-state (Barzilai, Reference Barzilai2003). Hence, legal writings drilling into such specific issues as Rabbinical courts and jurisdiction over marriage and divorce, even scholarship on the privatisation of religious services (Gavison, Reference Gavison1999a, Reference Gavison1999b), have intellectually blurred the connection between secondary religious arrangements and the institutionalisation of Jewish Orthodoxy in state power foci. Conversely, the critical perspective on law and society has considered the non-separation of Jewish Orthodoxy and the nation-state as subjugation of secular and non-Orthodox religious Jews to a legal regime that has excluded alternatives ways of life (Mautner, Sagie and Shamir, Reference Mautner, Sagie and Shamir1998).
3.2 Non-Jewish minorities
Law and society scholars have been puzzled as to whether non-Jewish minorities might be empowered and get their legal rights in a nexus of a ‘Jewish and democratic state’. The percentage of non-Jewish minorities in Israel seen a constant rise since the late 1940s: about 15 per cent when Israel was established in 1948, to about 25 per cent (including foreign workers) in 2014. Among the minorities that have constituted about 25 per cent of the country, roughly 75 per cent are Muslims (predominantly Sunni Muslims). Scholarship on law and society has analysed their legal status on three levels: individual rights, group affiliated rights, and their status as an integral part of the republican body politic (Peled, Reference Peled1992; Barzilai, Reference Barzilai2003). Research has demonstrated that, amidst the development of more liberal jurisprudence, including in Supreme Court rulings (Dotan, Reference Dotan2013; Mautner, Reference Mautner2008), most of the discrimination against Arab-Palestinians – Israeli citizens – might be unveiled at the collective (republican) level (Peled, Reference Peled1992; Rouhana, Reference Rouhana1997; Sultany, Reference Sultany2012; Saban, Reference Saban2002, Reference Saban2004, Reference Saban2005; Smooha, Reference Smooha1990).
Thus, some scholars have underscored cases of discrimination against Israeli Arab-Palestinians as individual citizens, discrimination that may have been tightly connected to the structure of Israel as a Jewish state, albeit a democracy (Kretzmer, Reference Kretzmer1990; Jabareen, Reference Jabareen2000; Smooha, Reference Smooha1990, Reference Smooha1997, Reference Smooha1999; Sultany, Reference Sultany2012). The liberal presumption has been that litigation and legislation, even some statutory apparatus of affirmative action, may offer legalist remedies to such cases of unjust preferences given to Jews over Arab-Palestinians. The more Israel becomes a liberal democracy, the more its constitutional balance between Jewish and democratic values may affect the formation of an egalitarian public policy. Subsequently, less discrimination may be entailed against individuals, and correspondingly less police violence may be inflicted on Israeli Arab-Palestinians (Hasisi, Reference Hasisi2006). The research and publications of advocates of liberal jurisprudence have alleged that the structure and fundamentals of a ‘Jewish and democratic state’ may allow the removal of cultural and institutional impediments that have halted equality between Arab and Jewish citizens of Israel (Gavison and Hacker, Reference Gavison and Hacker2000).
Conversely, however, some law and society scholars have shifted the perspective from individual rights to group rights that are rendered to or kept from a cultural group as a collective vis-à-vis the Jewish nation-state (Barzilai, Reference Barzilai2003; Shamir, Reference Shamir1996; Sultany, Reference Sultany2012; Jabareen, Reference Jabareen2000). Israeli law has recognised some of those types of rights in legislation and court rulings. One type would be rights given to non-Jewish Christian communities to have communal schools subsidised by private funding. Muslim schools, on the other hand, are part of the national education system but have the right to shape a curriculum in Arabic and to have also Shari'a studies, yet are tightly supervised by the government (Al Haj, Reference AL-HAJ1995). In personal law, religious courts do enjoy jurisdiction, since the nation-state had already recognised a multiplicity of religious practices in 1948. Yet the nation-state has prevented, both in legislation and in court rulings, any constitutional recognition of Palestinian nationalism under the pre-1967 territories (Barzilai, Reference Barzilai2003; Kedar, Reference Kedar1998, Reference Kedar2001; Yiftachel, Reference Yiftachel2000; Saban, Reference Saban2002, Reference Saban2004, Reference Saban2005).
Thus, Israeli law allows the government to cut about one-third of the national budget from any public institution that mentions the Palestinian Naqba (Law Fundamentals of Budget). The Supreme Court in its rulings has recognised the right of Israeli Arabs to have road signs in Arabic, but only as long as such a right is based on liberal jurisprudence of individual rights. Such reluctance of recognition of group rights, while not unique to Israel, has certainly incited criticism, mainly by Israeli Palestinian law and society scholars (Jabareen, Reference Jabareen2000; Sultany, Reference Sultany2012). The nation-state has prevented any constitutional recognition of legal rights that may endanger the ethnic–national hegemony of the Jewish majority (Al Haj, Reference AL-HAJ1995). Critical law and society scholars have shifted the intellectual gravity point from liberal jurisprudence as a balancing legalistic force between Judaism and democracy, arguing that liberal jurisprudence may increase individual equality among citizens but would enforce discrimination against Israeli Arab-Palestinians as a national minority that has challenged Jewish republicanism and ethno-nationalism (Barzilai, Reference Barzilai2003; Kedar, Reference Kedar1998, Reference Kedar2001; Yiftachel, Reference Yiftachel2000; Saban, Reference Saban2002, Reference Saban2004, Reference Saban2005; Shamir, Reference Shamir1996; Sultany, Reference Sultany2012; Jabareen, Reference Jabareen2000; Peled, Reference Peled1992).
The 1967 military occupation has been largely criticised by law and society scholars, both Jews and Arab-Palestinians. Yet its ramifications on democratic foundations have been viewed differently. Liberal students of law and society have emphasised that a constitutional balance between the democratic principles and ethno-national interests had somewhat been consolidated in pre-1967 Israel, however rift that reality might be. Yet maintenance of the 1967 military occupation, they have warned, may cause irreversible damage to Israel's pre-1967 democratic principles (Kretzmer, Reference Kretzmer2002; Kremnitzer, Kretzmer and Benish, Reference Kremnitzer, Kretzmer and Benish2002; Dotan, Reference Dotan1999, Reference Dotan2013; Peleg, Reference Peleg1995, Reference Peleg2004a, Reference Peleg2004b).
Critical observers of law and society's practices have pointed to additional process of both external and internal colonisation against Israeli Palestinians and Palestinians in the occupied territories, respectively, which may uproot democracy in Israel. Accordingly, while a constitutional balance between Jewish and democratic values, as articulated in the HCJ's rulings, may halt the prompt destruction of democratic fundamentals, it may veil ethno-nationalism as the main cause of danger to Israeli democracy. Hence, critical scholars of law and society (Barzilai, Reference Barzilai and Peleg1998, Reference Barzilai2003/2005; Kedar, Reference Kedar1998, Reference Kedar2001; Shamir, Reference Shamir1990, Reference Shamir1994) have argued that legalistic criticism of specific court rulings and specific legislation are insufficient for attaining the constitutional democratic order of the Israeli setting. Rather, they have called for a structural reform that requires a constitutional separation between Israeli nationality and Judaism, and the transformation of ethno-religious nationality into liberal citizenship that is conferred based on residence, immigration and loyalty, but not on predetermined ethno-national affiliations (Peled, Reference Peled1992; Yiftachel, Reference Yiftachel2006).
The Law of Return (1950) that has been defined by the Israeli Supreme Court as fundamental legislation that embodies Israel's basic national values is an important point of controversy.Footnote 4 On the one hand, research may point out that the Law of Return is necessary to form the criteria for citizenship in a country which is based on the absorption of immigrants (Carmi, Reference Carmi2003). About 60 per cent of Israel's population growth has been based on immigration. Furthermore, the Law of Return may be justified in a country that has been engaged in a war since 1948, amid salient Palestinian claims to return to lands confiscated during the 1948 war. Yet especially Israeli Arab-Palestinian scholars have argued that the Law of Return is discriminatory due to the absence of distinction between Judaism, nationality and citizenship, and hence it should be declared null and void (Jabareen, Reference Jabareen2000; Sultany, Reference Sultany2012).
The controversy over the Law of Return has also been contentious as to whether a liberal democracy may generate ethno-nationalism, giving a preference to Jewish nationality. While some Jewish scholars have criticised it, the Law of Return has mainly been severely questioned by Israeli Palestinian scholars. They have considered it not only a legalistic means that disconnects Palestinians from their right to return, but also a symbolic setting that points to two types of citizens and discrimination against Israeli Arabs (Jabareen, Reference Jabareen2000; Sultany, Reference Sultany2012).
3.3 The 1967 military occupation
Largely, the community of law and society scholars in Israel has opposed the 1967 military occupation of the West Bank and has considered it as damaging to the fundamentals of Israeli democracy. Yet there has been a divide between liberals and critical scholars of law and society. The former have argued that the ‘green line’, the pre-1967 border between Israel and Jordan, is in practice and legally the borderline between a liberal democracy that respects human rights and civil rights, and a military regime over the 1967 occupied territories.
On the one hand, there is a political democratic regime that abolished martial rule over the Arab-Palestinian minority in November 1966, and on the other hand, there is the post-1967 military rule over the West Bank, and the unilateral annexation of East Jerusalem and the Golan Heights, which may never end (Sheleff, Reference Sheleff1996; Kreztmer, Reference Kretzmer2002). Liberal legal observers have marked the political space based on three main criteria: ordered legalistic democratic procedures, civil rights, and effective judicial review. Based on these criteria, Israel has been considered a divided political regime, within and outside the ‘green line’. Thus, above the issue of military rule and the absence of civil rights, scholars have largely criticised the lack of effective judicial review by the HCJ over the deeds of the military and the security forces in the 1967 occupied territories (Shamir, Reference Shamir1990; Hofnung, Reference Hofnung1996; Peleg, Reference Peleg2004b; Kretzmer, Reference Kretzmer2002). The more the Supreme Court has become engaged in political affairs, and the more the Israeli academia has been touched by US-led intellectual focus on the judiciary, the more such a scholarly criticism of the HCJ has been aired (Dotan, Reference Dotan2013; Gavison, Kremnitzer and Dotan, Reference Gavison, Kremnitzer and Dotan1990; Hirschl, Reference Hirschl1997).
In a small country where the HCJ has dealt every year with about 4,000 legal cases – and in total the Supreme Court has annually decided on about 14,000 legal cases – the expectations of the Supreme Court have been enormous (Barzilai, Segal and Yuchtman-Yaar, Reference Barzilai, Segal and Yuchtman-Yaar1994). Yet only rarely the Court has decided to uphold an appeal that rules on the illegality of the occupation (Kretzmer, Reference Kretzmer2002). For liberals who have been educated to believe in the power of judicial review and to have faith in its contribution to the liberal process, the relative judicial passivity of the Supreme Court has caused grave concern.
On the other hand, critical observers of law and society in Israel have viewed it differently. The mere fact that the Supreme Court had decided in the early 1970s to impose its judicial review on the occupied territories has been considered negatively; primarily but not exclusively by Israeli Arab-Palestinian scholars (Sultany, Reference Sultany2012; Jabareen, Reference Jabareen2000). They have regarded the Supreme Court as a Jewish institution – with only one Arab-Palestinian judge, a state's agent of the larger structure of the Jewish nation-state that has activated its judicial agent to legalise and legitimate the 1967 military occupation – as if it has been subjected to a transparent, professional and fair judicial review (Shamir, Reference Shamir1996). More generally, critical scholars have underscored a broader context of colonisation, whereby the Jewish–Zionist elite has expelled Arab-Palestinians from their lands within the 1948 borders, confiscated lands, and prevented Arab-Palestinians (including the Bedouin) from returning to their lands. From that perspective, the 1967 occupation has only been an epiphenomenon of the ethno-national conflict and the structured exclusion of Arab-Palestinians from their national and land rights (Kedar, Reference Kedar1998, Reference Kedar2001; Yiftachel, Reference Yiftachel2000; Saban, Reference Saban2002, Reference Saban2004, Reference Saban2005; Shamir, Reference Shamir1996; Sultany, Reference Sultany2012; Jabareen, Reference Jabareen2000; Peled, Reference Peled1992).
IV. Social equality
4.1 Making law more accessible
With the emergence of the politics of identities in various campuses around the Western world, and an increasing number of Israeli scholars who graduated in liberal US law and social sciences or humanities graduate schools, being hired by Israeli universities, research aimed at a socio-economic, cultural and political deconstruction of law began to significantly emerge in Israel after the 1980s. Those scholars were trained less in the formalistic reading of law and more in a realist and critical intellectual environment, and were educated in the interdisciplinary deconstruction of law. Thus, more and more research has been published since the early 1990s on law and social equality.
The 1967 military occupation, accompanied by the predicament of Israeli Arab-Palestinians and rising socio-economic stratification in Israeli society, have incited the legal deconstruction of the state's legal ideology, judicial policy and court rulings, and its veiled sociopolitical and economic interests. Correspondingly, formalistic analysis of state law has been considered too simplistic or conservative. Conversely, deconstruction of state law as a means of generating its use for garnering social equality has been considered more relevant by not a few scholars. Unlike formalistic analysis of state law, deconstructionists have fundamentally been opposed to the legal political setting as has been shaped primarily since the 1967 war.
Formalistic adherents of state law have been engaged, especially since the mid-1980s and through the 1990s and early 2000s, in intensive efforts to draft a written constitution, and they have extensively used litigation in the Supreme Court, expecting it to advance Aharon Barak's ‘constitutional revolution’, declaring laws as null and void in cases of brute contradiction to the essence of Israel as a ‘Jewish and democratic’ state.
Alternatively, critical thinkers of law and society have unveiled the socio-economic, cultural and political forces that have halted social equality through formal law, promoting false sociopolitical consciousness, and benefiting the Jewish upper-socio-economic echelons of society. Hence, critical scholars of law and society have asked which alternative legal orders are feasible to promote social justice. Unlike formalistic scholarship that has been aimed at constructing better legal codes, critical law and society scholars have pointed out how a specific type of Zionist ideology, motivated by exclusivist socio-economic and political interests, has shaped state law, while legalising hegemonic interests. Therefore, state law needed to be deconstructed, so as to become accessible to marginalised groups, and to empower oppressed and marginalised interests and identities, allowing for equal representation in the legal field and the public arena. The 1995 self-proclaimed judicial policy of ‘constitutional revolution’ that allowed the Supreme Court to form a constitutional review and abolish the Knesset's laws, have further garnered social criticism from both left and right (Barzilai, Reference Barzilai2003; Gavison et al., Reference Gavison, Kremnitzer and Dotan1990; Mautner, Reference Mautner2008; Sultany, Reference Sultany2012; Saban, Reference Saban2005). While the Supreme Court has incited an ideology of extensive judicial engagement in political issues, and litigation has been a more prominent type of collective action in Israel (Barzilai, Reference Barzilai, Feeley, Halliday and Karpik2007; Dotan and Hofnung, Reference Dotan and Hofnung2001; Dotan, Reference Dotan2013), law and society critical scholars have devoted their attention to various sources of social inequalities, and explored the ways in which law is advancing and challenging those inequalities.
4.2 Militarism and inequality
The crucial enormity of the armed forces in Israeli society has been a prominent issue that has framed and generated legal rights and legal practices. The actual real legal status of Israeli citizens has largely been affected by their military service or its absence. Anti-militarist legal research has promoted the deconstruction of state law and has benefited from research that has explicated how the legal setting has sustained and advanced militaristic aspects and organisations of collective violence in Israeli society. The arrangements of compulsory military service alongside collective political exemptions, e.g. to Yeshiva students, and the relative absence of effective judicial review on military issues, problems in the enforcement of civilian control over the armed forces, the repercussions of the militarisation of Israeli society on the practical status of Israeli Arab-Palestinians, and the scope of desirable obedience to military orders, as well as the preservation of socio-economic stratification due to the sanctification of military and national security needs, have been unveiled in research (Ram, Reference Ram2006; Shachar, Reference Shachar1981; Sheleff, Reference Sheleff1989, Reference Sheleff1996; Barzilai, Reference Barzilai1996; Ben-Eliezer, Reference Ben-Eliezer1998; Gans, Reference Gans1992; Gross, Reference Gross2003; Hofnung, Reference Hofnung1996; Kremnitzer, Reference Kremnitzer1987, Reference Kremnitzer1989, Reference Kremnitzer1994; Kretzmer, Reference Kretzmer2002; Levy, Reference Levy2004; Peleg, Reference Peleg1995, Reference Peleg2004b; Simon, Reference Simon1994; Statman, Reference Statman and Kapitan1997).
Furthermore, critical scholarship has excavated injustices in compulsory military service, the origins of and justifications for conscientious objection to military service, severe infringements of human rights associated with the 1967 military occupation, the prominence of national security arguments in legislation and court rulings, and the immense weight of myths around national security in sustaining the legal ideology of the Jewish nation-state while causing injustices to non-Jewish minorities. The normative ramifications of these studies have revealed that law as an agent of military power should be critically unveiled and reformed by virtue of civil justice.
4.3 Feminist deconstruction and equality
Scholarly interactions between feminist scholars and anti-militaristic scholars have sometimes been symbiotic. Feminist thinkers (Gerbi, Reference Gerbi1996; Lahav, Reference Lahav1993b; Herzog, Reference Herzog1999) have alluded to the intimate bond between militarism, patriarchy and law. They have argued that women have been marginalised through the masculinity of militaristic, male-oriented discourse in Israel.
Hence, patriarchy has been identified as a cause of social discrimination, and the legal setting that has formed, maintained and entrenched gender discrimination has been subjected to deconstruction, primarily through the publications of feminists who have applied sociopolitical, cultural and legal feminist theories to the Israeli justice system. State law has been identified as a prime agent of patriarchy, and demands for its deconstruction have been advanced through the studies of feminists, especially since the early 1990s when legal feminism became more integrated into Israeli law faculties (Bilsky, Reference Bilsky1998; Dahan-Kalev, Reference Dahan-Kalev1995; Hacker, Reference Hacker2001, Reference Hacker2003; Kamir, Reference Kamir1998, Reference Kamir2004; Lahav, Reference Lahav1993a; Morag-Levine, 1994; Shachar, Reference Shachar1993, Reference Shachar2001; Shalhoub-Kevorkian, Reference Shalhoub-Kevorkian1999, Reference Shalhoub-Kevorkian2000; Tirosh, Reference Tirosh2005; Rimalt, Reference Rimalt2002, Reference Rimalt2007; Almog, Reference Almog2008). They have striven to dismantle male-made law as a garrison of patriarchy. Through their studies of the legal process, legislation, court rulings, law enforcement, judicial review, institutional arrangements, family law, the practice of violence, ethnicity, and nationality, they have embarked on establishing more egalitarian alternative perspectives.
Liberal feminists studying law and society have recommended ways to reform existing state law and have underscored equal enforcement of legislation and regulation (Lahav, Reference Lahav1993a; Raday, Reference Raday and Shetreet1998). In contrast, critical feminists have striven to examine the fundamental sociopolitical, economic and cultural causes of women's historical dependency upon and subjugation by men, which have led to systematic discrimination against women. Hence, social equality between men and women necessitates the deconstruction of legal ideologies, interests and principles of policy that underlie the prevailing patriarchal legal setting. Indeed, liberal jurisprudence in Israel has embedded, especially since the 1990s, some reforms that have been based on more litigation around pay equity, affirmative action legislation, court rulings, and legislation to reduce the scope of sexual harassment, and to increase the advancement of women in the armed forces, including in battle units and as battle pilots in the air force, and the promotion of women in the labour market. Yet critical feminists have studied why and how these reforms have not significantly altered the basic structural discrimination against women (Bilsky, Reference Bilsky1998; Dahan-Kalev, Reference Dahan-Kalev1995; Hacker, Reference Hacker2001, Reference Hacker2003; Kamir, Reference Kamir1998, Reference Kamir2004; Lahav, Reference Lahav1993a; Morag-Levine, 1994; Shachar, Reference Shachar1993, Reference Shachar2001; Shalhoub-Kevorkian, Reference Shalhoub-Kevorkian1999, Reference Shalhoub-Kevorkian2000; Tirosh, Reference Tirosh2005; Rimalt, Reference Rimalt2002, Reference Rimalt2007; Almog, Reference Almog2008).
Discrimination against homosexuals has been another issue that has garnered attention by Israeli law and society scholars. Most feminists who have studied law and society have been heterosexual (Barzilai, Reference Barzilai2003), and they have often presumed the dominance of heterosexual ideology. Conversely, queer theories have underscored the pathologies of injustice embedded in the sociopolitical and legal dominance of heterosexual ideology. Legal deconstruction from a homosexual perspective has been required to allow for a better understanding of the ways in which heterosexual ideology has been perceived and practised in law as the ‘normal state of affairs’, and how in turn heterosexual ideology has justified explicit and implicit discrimination against homosexuals (Gross, Reference Gross1998; Harel, Reference Harel2000; Spivak, Reference Spivak and Birnhack2006).
4.4 Veiled voices: historical inequalities, language and hegemony
Current injustices have been effected through the past. Law and society scholars have also contributed to a better understanding of legal histories of state law, legal practices and alternative hermeneutics. Traditionally, the legal histories of Israel were narrated through the autobiographies of judges and lawyers, biographies, archive material such as diaries, protocols and primary documents, and other secondary sources.
The research, publication and teaching of critical legal history are relatively new in Israel and, similarly to other fields in law and society scholarship, it has emerged through critical scholarship in the West, predominately in the US. Critical research of legal histories has been published by scholars who graduated from law schools, often with some complementary undergraduate or graduate education in history. Most of these graduates then attended leading universities, again mainly in the US, and were supervised by prominent legal historians, such as Morton J. Horwitz at Harvard Law School and Lawrence M. Friedman at Stanford Law School (Lahav, Reference Lahav1993a; Harris, Kedar, Lahav and Likhovski, Reference Harris, Kedar, Lahav and Likhovski2002; Likhovski, Reference Likhovski1998; Shamir, Reference Shamir2000)
They have looked at marginalised legal voices, mainly in Mandatary Palestine (1917–1948), and then unveiled marginalised cultural groups and minorities, primarily Muslim Arab-Palestinians. The history of the Supreme Court has also been a topic of more critical research, especially during its early years (Brun, Reference Brun2008, Reference Brun2014; Sagy, Reference Sagy2004), when the Court had to deal with injustices in Israel in its formative years. Thus, through these writings, we may identify the structural origins and boundaries of contemporary legal interpretations that have emerged as part of the national Jewish project, and the marginalisation of some types of legal hermeneutics. Accordingly, we may also explore economic sociopolitical sources and interests that are underlying the Israeli land regime and property law (Kedar, Reference Kedar1998, Reference Kedar2001; Yiftachel, Reference Yiftachel2000).
Overall, due to critical studies of legal histories, we can trace the creation and costs of the dominant legal ideology and its historical ramifications in contemporary Israel. Rather than deliberating on one imagined unified history of law, this scholarship has generated various explorations of histories of law, and explicated how the formal legal setting has been constructed by the hegemonic Zionist elite, while marginalising other potential legal orders. Deconstructing state law and its ideology and interests via examining untold histories of communities and groups has enabled us to comprehend the essence of legal pluralism and the practices that have pointed to various legal normative orders, some of which were marginalised and suppressed following the establishment of Israel as a Jewish republic.
The studies cited above, with their focus on law and social equality, have reflected heterogeneous research projects embedded in additional critical disciplines. Critical sociological, economic, linguistic and political studies have explored Israel's hegemonic culture that has shaped state law and legal cultures (Mautner, Reference Mautner1998, Reference Mautner1999; Mautner et al., Reference Mautner, Sagie and Shamir1998; Barak-Erez, Reference Barak-Erez2001, Reference Barak-Erez2002). Similarly, Marxist, neo-Marxist and post-Marxist scholars of Israeli law (Hirschl, Reference Hirschl1997, Reference Hirschl2004; Peled, Reference Peled1992; Shafir and Peled, Reference Shafir and Peled2002; Bruner and Peled, Reference Bruner, Peled, Ben-Ami, Peled and Spektorovski2000; Shamir, Reference Shamir1990, Reference Shamir1994, Reference Shamir1996) have identified social class interests in the forming of judicial hegemony, citizenship and legal ideology mobilised through the legal profession. A similarly critical approach to the study of law and society has been published regarding the ascendancy of the liberal conception of private property, the private accumulation of wealth, and the decline of the representation of labour unions (Gross, Reference Gross1998; Holzman-Gazit, Reference Holzman-Gazit1997; Kedar, Reference Kedar1998, Reference Kedar2001; Margalit, Reference Margalit2006; Mundlak, Reference Mundlak1998; Lobel, Reference Lobel1998). Thus, a regulatory regime of egalitarian land allocation between Jews and Arabs has been suggested, as have new ways to empower employees through the construction of a more democratic and egalitarian labour environment.
Soaring socio-economic stratification and decreasing social welfare services have primarily endangered non-ruling communities, such as Arab-Palestinians and ultra-Orthodox Jews, who have been further marginalised in an intensively capitalised economy that for various reasons has not been receptive to these constituencies. Critical communitarian thinkers and students of localities and marginalised minorities have debated the ability of non-ruling communities and various localities to attain equality through state law and communal hermeneutics (Barzilai, Reference Barzilai2003, Reference Barzilai2005; Blank, Reference Blank2004; Elbashan, Reference Elbashan2003; Jabareen, Reference Jabareen2000; Jamal, Reference Jamal2002, Reference Jamal2005; Migdal, Reference Migdal2001; Saban, Reference Saban2002, Reference Saban2004).
Language and law are inseparable, both as a means to attain justice and as a means to forestall it. Law is constituted through language, and it constructs language. The constitutive presentations of law and its enforcement are generated through language. While a more doctrinal reading of law may reduce language to formalities, more recent studies have used linguistic deconstruction of law in order to demonstrate its hidden national, cultural, sexual, economic, racial and ethnic interests that may cause discrimination and inequalities (Kamir, Reference Kamir1998, Reference Kamir2004; Tirosh, Reference Tirosh2005; Esmeir, Reference Esmeir2004; Yovel, Reference Yovel2001).
Similarly, as part of the scholarly effort to deconstruct state law so as to promote more social justice, and halt injustices, students of criminal law and society have examined how national identities, ethnicity, gender and socio-economic dispositions may affect criminal prosecution, judicial decisions, punishment, policing and law enforcement among various segments of society. Some studies have revealed discrimination against Israeli Arab-Palestinians, through police behaviour towards the minority members (Hasisi, Reference Hasisi2006; Kremnitzer, Reference Kremnitzer1989; Kremnitzer and Shapira-Ettinger, Reference Kremnitzer and Shapira-Ettinger1999; Lavi, Reference Lavi, Sarat and Boulinger2005; Shapira, Reference Shapira1997; Salzberger, Reference Salzberger1996; Sebba, Reference Sebba1999; Sheleff, Reference Sheleff1989, Reference Sheleff2000; Gazal-Ayal and Kenan-Sulitzianu, Reference Gazal-Ayal and Kenan-Sulitzianu2010)
4.5 A culture of litigation
Not only state law and legal texts, but also lawyers as professional agents who may generate more equality have been subjected to critical research. Israel has had the highest number of lawyers per capita in the world among democracies (Barzilai, Reference Barzilai, Feeley, Halliday and Karpik2007). The lawyering profession itself has been under criticism since legal scholars have introduced crucial questions about its essence and aims (Shamir and Ziv, Reference SHAMIR, ZIV, Sarat and Scheingold2001). Some lawyers have been ‘cause lawyers’ (a term first coined by two prominent American scholars, Austin Sarat and Stuart Scheingold, Reference Sarat and Scheingold1998, Reference Sarat and Scheingold2004), namely, they have attempted to promote the social interests of marginalised groups and promote equality. Yet most Israeli lawyers have been active in business and civil law for profit-making purposes, while only relatively few have devoted their time to human rights cases, and even fewer have acted as cause lawyers (Barzilai, Reference Barzilai, Feeley, Halliday and Karpik2007).
The level of litigation in Israel has been so intensive that it has replaced other avenues of potential public action, and has been used by both marginalised groups and elites to mobilise political interests (Dotan and Hofnung, Reference Dotan and Hofnung2001). Yet in summer 2011, massive social protest in Israel showed that lawyers' effect on Israeli society may be in decline. The demonstrators and their elite leaders rejected the path of litigation that has failed to generate meaningful social change. Lawyers have also been unnecessary for social mobilisation due to the Internet and the ability to mobilise the masses through digital means (Almog and Barzilai, Reference Almog and Barzilai2014).
All of these studies have not only examined how litigation transforms issues from the private to the public sphere, and vice versa, but have also weighed the social costs and benefits of litigation to a democratic and egalitarian society. While litigation may mobilise resources for particular political social issues, and transform them to become salient public constitutional problems, it may also serve state power and its hegemonic ideology by eliminating or marginalising other avenues of collective action such as demonstrations and civil disobedience. Hence, as the above-cited research has argued, litigation has not necessarily incited more social equality.
V. Conclusion
This paper has systematically explicated how and why law and society scholars have narrated the place of law in politics and society, and the role of social political forces in law. Clearly, no one paper can wholly cover all the material that has been written and published by a large and dynamic community of Israeli scholars. Yet, relying on Hebrew, English and Arabic sources, I have tried to map some of the major issues that have characterised the scholarly debates and intellectual discourse, primarily critical questions on political power, the nation-state, law, rights discourse and equality.
On the one hand, major issues of research have reflected local predicaments and challenges vis-à-vis Jewish Zionist nationalism in a bi-national setting. Local multiculturalism, and gender, ethnic, socio-economic, religious–secular and national divides have all affected, as was unveiled above, the scholarship of law and society writings. The 1967 military occupation, alongside the emergence of a neo-liberal capitalist economy, has generated a more critical outlook on the legal challenges embedded in sociopolitical, economic and cultural practices. The lack of success, or absence of interest, in resolving the Arab-Palestinian–Israeli conflict, and the fragmentation of the political partisan map in Israel, have incited more emphasis on the place of the Israeli Supreme Court, primarily sitting as a High Court of Justice, in public life as an important regulatory institution. This focus on the judicial power of the Court has resulted in even more frantic controversy on whether the Court has become too engaged in political affairs.
On the other hand, the developments and trends in Israeli academia, by and large, and within the field of law and society scholarship in particular, have been tightly linked to developments and trends in Western academia, predominantly the US. The rise of the politics of identity, and its reflections in more realist research on interactions between identities, institutions and cultures, has affected law and society studies in the Israeli context. Similarly, the influence of critical legal studies and post-Marxist concepts of law, underscoring how law may maintain and even advance power relations and socio-economic stratification, have touched upon Israeli scholars through their legal education and academic training. Local and more global types of understanding how to read and analyse law, particularly through a critical deconstructionist lens, have become integral parts of the ways that knowledge of law and society in context has been produced and published.
