When justice is strained

January 16, 1998

Menachem Mautner tells John Davies how teachinglaw in Israel has been affected by the battle over the state's political future

It is Menachem Mautner's regret that in Israel the law and its practitioners are no longer neutral. They are seen as too closely linked to liberal-democrat politics - a position challenged by older, more fundamentalist Jewish values.

"Since the late 1970s there has been a battle over the shaping of the future culture and politics of Israel," Mautner explains. "Two groups have come up with comprehensive views as to what the country should look like. One wants to reinforce the process that made Israel a liberal democracy - to make it a western country with western political and cultural values. The other is identified with the religious sector and thinks Israel should be a Jewish Halachic state governed by Judaic laws and rules.

"Those who identify themselves with traditional Judaism study at the shivot where ancient Jewish law is taught, not at the university. That's a pity. I would very much have liked them to join the law school and study Israeli rather than ancient Jewish law. But they study the Talmud and look down on pro-western Israeli law. Law schools in particular are identified with western values."

Mautner is vice dean of the law faculty at Tel Aviv University. Born in Israel of parents who grew up in Berlin and Poland, he is clearly of the "pro-western" camp, with degrees from Yale Law School and has taught at the University of Michigan. Nevertheless, he did study the Talmud. He chose to study secular law "because public issues always interested me".

Remarkably, much of the early Israeli legal system was rooted in English common law. "In the first decade of statehood," Mautner explains, "the orientation of the whole legal system, and of legal education in particular, was towards Britain because of the 30 years of the British mandate." Having taken over the Ottoman province of Palestine in 1917, the British administration decreed that gaps in Palestine's existing Ottoman laws would be filled by borrowing from English common law. "All the British high commissioner's enactments and statutes were drafted very much in the spirit, if not in the text, of English legislation or common law." This spirit carried over into the new state of Israel: in 1948 the Knesset enacted a law under which all existing laws were continued. Only in 1980 did the Knesset abolish the connection between English and Israeli law - the culmination of a project of "enacting local Israeli-made law and terminating all external influences".

"Until a few years ago, to be admitted to a law school you were supposed to pass a test on your fluency in English, because as a student you were supposed to read a lot of appeals to the House of Lords and so on. And we were routinely using English textbooks."

There is more than one kind of western value, though, and it is now the United States model that predominates in the Israeli legal community. "Beginning in the 1980s, I think, the orientation of the legal system shifted to American law, both by borrowing precedents and in terms of the culture of law firms," says Mautner. But has the spirit of English law survived? "I think we've lost it, and we badly need to revive that intellectual current in our thinking... I get the feeling that social issues are very much alive (in Britain) in a way they are not in the US and Israel. The gap between rich and poor, the gap in terms of health, education, housing - these issues are dormant. There used to be a socialist tradition in Israel, or at least socialist thinking. Obviously our orientation to America hasn't helped us much to keep that tradition alive."

Mautner talks of a "radical process of juridification" that took place in the 1980s. "People use the term to mean that you cannot now make a move without consulting your lawyer." At the same time, Israel's supreme court acquired a higher profile - again, like the US. "It became a very activist court, it extended its jurisdiction dramatically." Unlike the US, however, the selection of judges is not in the hands of the executive but of a nine-person committee consisting of three existing members of the court, three members of the Bar and three from the Knesset. "By and large it's not a bad system. The only problem is that the proceedings of the committee are not open to the public."

Inevitably, the subject of the Palestinians under Israeli occupation comes up. "Basically it's a political problem that should be solved politically," says Mautner. "But, of course, it's got legal implications." Among them the status of the Occupied Territories "which is governed by the rules of belligerent occupation under international law. (The occupied territories) are not governed by Israeli law but by local law, Jordanian and Egyptian ... But in the early 1970s the supreme court extended its jurisdiction over the conduct of the military government in the occupied territories.

As a result "the inhabitants started to petition the court against the military government. This was unprecedented. No occupying power had ever before allowed the local population to petition its own court ... In the beginning the action was highly celebrated: people thought it a humane move which would help avoid misconduct, but now I would say the supreme court has paid a heavy price by coming out with decisions that are very problematic." Mautner cites the case of the 406 Hamas members who petitioned the Supreme Court in the early 1990s to stop their deportation to Lebanon as an example of a decision that went against the fundamental principles of Israeli law.

Mautner worries about the "very tricky situation" of an occupying power's supreme court adjudicating between a state and the inhabitants of a territory it occupies - a situation "in which the court cannot be impartial or neutral ... In too many cases it ha` no choice but to side with the occupying power".

Still, despite his apparent pessimism about many aspects of his country's position, Mautner sees signs of hope. For instance, there are more Arab students at his law school now than in the past - "not to the extent I would have wanted, but the number is increasing". He is in favour of "a more integrated" society. "There are secular Jews, religious Jews, there are Arabs. We all live in the same country; we should interact with each other in all avenues of life, particularly in law schools where important public decisions are being discussed."

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