Democracy and Judicial Autonomy in Israel's Early Years

Abstract

The purpose of this article is to examine the question of judicial autonomy in the State of Israel during the first five years of independence in light of the tension prevailing between the idea of judicial autonomy and the principles of democracy and republicanism. Modern political culture in the West assigns great significance to autonomous courts because these institutions, which interpret the law and oversee its implementation, are largely responsible for the actual predominance of the rule of law. Judicial autonomy, however, is in constant tension with the ideas of democracy and individual sovereignty. This tension requires all democracies ruled by law to find a suitable balance between judicial autonomy and the need for democratic monitoring of the judicial authority. The question of judicial autonomy in early Israel deserves renewed attention because current historiographic research tends to describe the judges' status in Israel's early years as inferior to that of their colleagues in Western countries. According to this stance, not only did a long time elapse until judicial autonomy was formally ensured, but the public and government institutions also had little deference for, or understanding of, the judicial branch. This perception was detrimental to the courts' status and threatened their independence. The paper demonstrates that at the time of Israel's establishment judges already enjoyed independence, respect, and high status, and further argues that the attitude of the political elite toward the judges was compatible with the principles of democracy and the rule of law and followed from them.

Keywords: Legal History, Comparative Law, Law and Politics