A new legal article traces a little known but ironic quality
of influence missing in Israeli jurisprudence--namely that
the current legal system operating in the Jewish state is
deeply rooted in German concepts.
A group of German Jewish judges who came to Israel in the
1930s became the core of the Israeli legal establishment, and
their imprint was especially strong on what was to become the
High Court.
The study which appeared in the journal Iyunei
Mishpat, was edited by Ali Zaltzberger, a lecturer in
Haifa University Law Faculty and Fania Oz-Zaltzberger, a
lecturer in Haifa University' General History Department.
If the Judges were glad to be rid of Germany and everything
it stood for upon arriving in Eretz Yisroel, they
certainly did not show it. The autobiographical writings of
Israeli judges, for example, repeatedly stress the comfort
and pleasantness of life in Germany in the days of the Weimer
Republic.
In that time, the barriers totally fell, and the Jews of
Germany advanced on a broad front and began to occupy key
positions in the academic and political world.
(One of the veteran judges of the Supreme Court, who was not
born in Germany, but admired its culture, recalled all of the
birthdays of the German Kaisers and would bless his
colleagues in court in their honor).
Obviously this "pleasant period" ended in a cruel and
terrible manner, when the Nazis took over.
Yet the researchers point out that it was the Law Faculties
at German universities, more than any other (with the
exception of medical faculties) that displayed an expeditious
and strong tendency toward Nazism.
Worse, the failure of the Weimer legal system did not leave a
lasting impression on the Jewish judges who fled to Israel.
On the contrary, the judges chose to adopt a complex legacy,
at times at odds with itself, from the legal culture of
Germany.
Among other things, they point to the study of Professor
Yoram Shachar, who focused on the personal diary of Uri
Yadin, the head of the Legislation Department of the Justice
Ministry in the early years of the state.
Shachar reveals that Yadin, with some support from then
Justice Minister Pinchos Rosen, sought to present his
innovations as original Israeli creations, or at least like
Rosen, spoke about the "continental method." But the changes
which he proposed in the civil law were similar to German law
more than to any other method. In Professor Shachar's
opinion, Yadin's need to hide the German inspiration of the
legislation he initiated, can be explained as stemming from
"the expected aversion for German imports of any sort."
According to the researchers, the purpose of this camouflage
conceivably teaches why the number of direct references to
German culture and law in the rulings of the Supreme Court is
so small, and why the German echo doesn't find genuine
expression there.
"The examples of the `a state ruled by law' and the
`enlightened public,' concepts which were imported into
Israeli law, without the citing of explicit sources...can
support these conclusions," the authors wrote.
Historians of the Jews of Germany have recently noted the
special significance of the legacy of German enlightenment on
the shaping of the culture and identity of modern German
Jewry.
The Jewish emancipation movement took these concepts from the
German culture, to the point that "pool of concepts of
enlightenment was absorbed by the students of the jurists who
had immigrated to Israel."
The German concept, "a state ruled by the law" as a supreme
value, was enthusiastically adopted by the Supreme Court.
This concept, write the researchers, is non-existent in the
English language, and since its appearance in the 19th
century, was regarded as a uniquely German concept in Germany
and outside it.
"This concept was translated into Hebrew by the founding
fathers of the Israeli legal system, without the slightest
trace of irony, and with more than a bit of pride in their
German tradition."
But these factors find expression in the concept "the
enlightened public" which manifests the philosophy of
progress and enlightenment adopted by the Supreme Court
justices.
In an article in 1962, entitled "The Opinion of the
progressive Public," Justice Alfred Vitkon wrote that the
court must represent that public which wants to belong to the
"family of the enlightened nations" and to share the values
of the "entire cultured world." The court must defend the
"values of civilization" which is in a state of progress, but
submerged by the intimidating shadow of "doubts, primitivism
and religion."
Vitkon wrote: "We, as judges, are mandated to accord
expression and validity not to our private ideas, but to what
we think reflects public opinion, and I am referring to the
erudite and progressive part of it...It seems to me that our
public wants to consider itself part of the family of the
enlightened nations of the world, and to be a partner to
those values which shape the image of the entire cultured
world."
That year, Justice Moshe Landau already coined the concept,
"the enlightened public" and demanded that the judge "be a
loyal interpreter of the world views accepted by the
enlightened public."
Other justices adopted this criterion, which in time became
an accepted foundation.
In a verdict which he wrote thirty years later, Aharon Barak
quoted Landau's remarks and determined that over the years,
Landau's idea became a "general standard, according to which
the judge should function when granting normative content for
the benefit of the public in its various aspects."
Recently, Barak devoted a special article in which he
celebrated this concept. In it he determines that he sees the
concept, "the enlightened public," as a very potent metaphor
of Israeli law.
This study shows that on this issue, Israel's judges decided
to take a one-sided stance. Many philosophers have decided to
decry the concept of enlightenment and have pointed, in
various ways, to the "limitations of the insistent belief in
reason and progress," and on the "supercilious disregard for
all those who did not receive the `right' education."
This opposition has no place in the viewpoint of "the
intelligent and progressive" section of the community or "the
family of the enlightened nations" of the justices of
Israel's Supreme Court, write the researchers.
The judges refrain from acknowledging the problematic aspect
of the very determination that there is an enlightened public
which the court is capable of defining, and for which it
should be a mouthpiece. As a result, the authoritative tone
of the concept `a state ruled by law' was accepted as self
understood and the exclusive class and ethnic-cultural aspect
of the concept `enlightened public' was as accepted as self
understood.
The researchers located only one anomalous expression on this
matter by one Judge, who in one of his opinions disagreed
with the whole concept, pointing out that German history
casts doubts on the possibility of seeing the "erudite and
progressive public" as a reliable ethical index.
