Courting the court: Social visions, state authority, and the religious law conflict in Israel.

摘要

After thirty-nine years of uneasy coexistence between Israel's civil legal system and state religious authorities, in the late 1980s the High Court of Justice (HCJ) began to challenge state rabbinical authorities in a conflict so heated that, by the mid-1990s, the President of the High Court began to receive death threats as editorials and letters in Orthodox newspapers called him a traitor to his people. Why was the HCJ able and willing to enter into this protracted, divisive conflict when it had been dramatically unsuccessful the one time it had tried to do so previously? I argue that the emergence of new, polarized social movements in the 1970s, a weakening of the Knesset after the 1977 elections, and changes in the rules of standing in the HCJ in the 1980s provided the HCJ with the opportunity to enter this conflict in a new position of strength. Social movements like the women's movement, which challenged the religious status quo, entered into an implicit alliance with the HCJ, transforming both and changing the balance of power between the HCJ and other state institutions. The HCJ made use of the opportunity afforded to it by this legal mobilization, taking up the argument brought to it by the women's movement: the women's equality argument. It combined women's equality with a positive law method it had developed in earlier years, using general equality together with administrative legality to advocate rights. In this case, it advocated women's rights in favor of citizens and against religious authorities. I argue that the HCJ's use of administrative legality, while citing British common law as its source, has more in common with the development of administrative legality (to make constitutional-type decisions) in civil law countries of continental Europe. I use multiple types of evidence—particularly informal processes—available through court battles and the extra judicial debates around those battles to triangulate my argument that the HCJ and social movements entered into an implicit alliance, interacting through the judicial community and the courtroom in Israel. These informal processes have important implications for scholars seeking to study state-society relations in other state institutions.