Courts as Hegemonic Institutions:
The Israeli Supreme Court in a Comparative Perspective

This article deals with the hegemonic power that supreme courts may have in democracies. From that comparative perspective, I analyze the change that the Israeli Supreme Court has experienced from being a rather secondary political institution in the 1950s, and 1960s, to being a major political institution, even a hegemonic one, since the 1970s, and principally in the 1980s and 1990s. I exhibit that this change has many similarities to growing adjudication in other democracies. Based on a theoretical analysis and exploration of the institutional and public status of the Israeli Supreme Court until nowadays, I raise two explanations as to its prime role in Israeli politics. The first explanation focuses on fragmentation and polarization of other political power foci. The second explanation focuses on cultural and social changes in the Israeli society, especially its Americanization and more prevalence of liberal norms among several segments in Israeli society. I show how the Court has transformed public sources of legitimacy and has become hegemonic. This article concludes by exploring the costs of broad adjudication for judicial legitimacy, and the social costs concerning judicial legitimacy for segments like Arab-Palestinians and ultra-orthodox Jews who do not enjoy the liberal discourse.

The power of courts to engage in constitutional politics and to apply judicial review derives, in most countries, from a provision of formal authority and from extension of that authority by the courts. Is it possible, though, that a formal provision of judicial review may lead to a consequent reduction in judicial power to engage in constitutional politics? The powers of judicial review are currently used more frequently than before in striking down laws and administrative actions. European governments, parliaments, and administrators interact differently as a result of this judicial activity. In Europe and the US, the courts usually base their constitutional review on an accepted yardstick, (e.g. a written constitution or the European Community legislation), when interfering with sensitive political decisions. By contrast, the history of judicial review in Israel offers an interesting case, where, in the absence of a written constitution, the Supreme Court, especially when acting as the High Court of Justice, has been a very active actor in national constitutional politics. I will argue here that a grant of formal authority in Israel, in 1992, created a situation in which the courts' power to review future legislation and executive policies is in jeopardy. This is the case because this grant of formal authority has caused the courts to be publicly perceived as partisan actors in the political arena, whereas previously, they were viewed as neutral unbiased judicial organs. Furthermore, this shift has induced minority groups to attempt to introduce their own exceptions to the law and thus avoid the implications of judicial review.

This article examines the nexus between political structural change and leadership development in Israel. It also demonstrates that the development of Israel's regime and political leadership is in many ways comparable to other western democracies. Third, it contributes to the largely neglected comparative study of leadership in democratic and democratizing states. The Israeli case is pertinent since Israel has experienced a movement from a collectivist and elitist, to a pluralist and corporatist, and, more recently, to a democratic regime in which individuals are more assertive and freer from the state's bonds. This analysis assumes that political culture and arrangements answer social needs. I suggest that, due mainly to shifting social loyalties and inclinations, Israel's consociational arrangement carried over from the pre-state period was replaced in the late 1960s by neo-corporatism, and that the latter is now being transformed into a multicultural private liberal arrangement. The transition from a neo-corporatist to liberal private market regime in Israel and other democratic states has been marked by the emergence of transactional, meteoric, and bargaining leaders, whose strengths are pragmatism, a cautious and flexible reformism, and clever use of the media.

Systems of interest groups constitute complex configurations that are subject to cross-cultural and cross-national variability. This article attempts to place interest politics in Israel in a comparative perspective in order to reveal in which respects it resembles, or alternatively differs from, other democratic societies. Cross-national studies of interest group systems have centered on three fundamental theories: pluralism, corporatism, and elitism (partyism). The paper shows first how Israel fits into these models. The paper focuses on the changes taking place in interest group politics. The scope of the change, its pace, its direction, and its determinants are analyzed. Changes are noticeable in every aspect of interest group politics: ·groups are no longer mobilized to the national cause or attached political parties. State power is gradually shrinking; organizational concentration of interests group has weakened; the associational arena has turned more diverse, and access has widened. These changes are evoked by alterations in the economy, in society, and in the polity

The social organization of the Israeli economy has been shifting, since the mid-1960s, from a pluralist to a dual economy, in which a multitude of small firms coexist with big business. At the top of the Israel's big business are several business groups, a feature that is shared with many other countries both developed and developing. This paper studies the factors which have contributed to the emergence and dominance of business groups in the Israeli economy. Studies on other societies where business groups prevail suggest several explanations. These include market imperfections, cultural heritage, and political economy. This paper suggests that in the Israeli context a combination of political and economic factors has led to the emergence and dominance of business groups. State organizations have played a decisive role in these processes. The Israeli state apparatus itself, as in other newly industrializing countries, directs the economic development; it was responsible for the industrialization in the 1950s onwards, the emergence of the military-industrial complex in the mid 1960s, and the privatization policy in the 1980s. The economic processes which have strengthened the concentration trend and the central role of business groups are the business collapse after the recession of the 1960s, the hyper-inflation of the late 1970s, the economic crisis in the mid 1980s, and the rapid growth from the early 1990s.

This paper seeks to understand the reasons behind the politicization of the white South African and Israeli Jewish business communities expressed through their support for peacemaking with Africans and Palestinians receptively Positions taken by the business communities and their allies converged with security concerns and underwrote the redefinition of the white-black and Israeli-Palestinian conflicts as obstacles to economic modernization. The new perspective resonated with an acute consciousness concerning the difference between "winning" and "losing" countries.

The cold winds of economic liberalization appear to have chilled the long-standing dominance of the state in Israel's political economy. This is notable, given the continued relevance of ideologies and practices associated with Zionism and the Arab-Israeli conflict, the essential underpinnings of the state's remarkable record of economic interventionism. Following a brief historical introduction, this paper presents an empirical survey of the scope and significance of changes since 1985 in critical loci of potential liberalization: internationalization (flows of goods and capital); public expenditure; concentration and control of capital; privatization and deregulation; and labor market transformations. It concludes that Israel's political-economic regime is in the advanced throes of policy reforms, institutional shifts, and structural changes that are directly at odds with its long record of embedded illiberalism. Yet, liberalization has not occurred evenly, consistently, or completely. Despite dramatic changes in the public sector, "normalization" of the Histadrut and the ascendancy of market-oriented culture, the legacy of Zionist collectivism persists. The role of the state especially its management of the national conflict - remains crucial to the political economy even though it is less obvious. From a comparative standpoint, the broad outlines of the Israeli story are similar in essence to trends elsewhere, yet the Israeli case also supports the generalization that politics of liberalization are to some extent nationally specific and potentially contradictory to global economic "imperatives."

This paper offers a comparative analysis of the interaction between warfare, polity-formation, and the consolidation of national patterns of policy making in Israel. The comparative perspective offers the American pluralism, the French etatism, and the Dutch corporatism as a framework of reference for the study of polity-formation, for the institutionalization of national policy patterns, and for the extent of change. War and war preparations resulted in the formation of a strong and centralized military machine on the one hand, and an autonomous and strong Israeli state on the other. In addition, they contributed to both the consolidation of the Jewish labor movement and the political decline of the Jewish middle class. Without denying the importance of change, this paper contends that continuity in the basic characteristics of the Israeli policy pattern will prevail over the normative tendency of dominant social groups to adopt a more "American" type of pluralism in Israeli policy making and will constrain the converging effects of globalization over the Israeli political economy

The case of Israeli citizens who are ethnically Arab is of special interest because of Israel's commitment to democratic institutions and the intensity of the Arab-Israeli conflict. The position of the Arab minority in Israel is the weakest aspect of Israeli democracy, but this can be explained in part by security considerations; in part, it is also a function of Jewish political experience and traditions. Comparison of this experience to other cases suggests that "consociational" democracy is, as observers have generally claimed, better equipped in general to cope with serious divisions within a country. There are, however, clear limits in its application to ethnic minorities not identified with the dominant ethos, at least where a tradition for sharing power with other national groups does not exist.

"Race," "ethnicity," and their equivalents are social constructions, created and used by states in social policy and administrative practices to establish and maintain status and power hierarchies. In the US they are, however, commonly understood and treated as universal, objectively observable, and measurable scientific facts. This enables their usage in policy and administrative contexts. I argue here that edah has been understood and used in similar ways, contributing to silences in public discourse that impede social change.

This essay challenges the essentialist interpretations of sacred places which deny the historical transformation of the meanings attributed to those places and the role of politics in the constitution of those meanings. Here we compare the conflict between Hindus and Muslims in the destruction of the Ram Temple and Babri Mosque in Ayodhya in 1992 and conflict between Jews and Muslims over Jerusalem's Temple Mount and Noble Sanctuary, especially in one violent confrontation in 1990 between Israelis and Palestinians. In both cases we attempt to show the long history of conflicts in both sites. We argue that control over sacred sites like Ayodhya's Ramjanmabhumi/Babri Masjid and Jerusalem's har ha-bayit/al-haram as- sharif proves the avenue and mechanism for challenging and transforming the definition of citizenship in the modern nation-state. In both cases, this represents a continuation of the ancient function of sacred sites, to centralize the polity. But, it also means that changing the constituent elements of the nation-state, in this case citizenship, through the center accelerates the rapidity of that change. Sacred real estate becomes a highly productive and potentially violent venue for the articulation of change. In this comparative analysis we are able to determine five factors involved in the social construction of physical territory and the symbolic map of the nation-state. First, sites like these are contested within the traditions which hold them to be sacred. Second, access to ritual space and time in sacred of sites is conditional upon the exercise of state power. Third, the sacrality of the site cannot be separated from the historical exercise of state power in general, and the nation in particular. Fourth, the religions anchored in these sites have been essential to the formation of modern nationalist movements. Fifth, since the legitimacy of the state is grounded in claims to these sites, they also become the battlegrounds for those who wish to challenge and ultimately transform the state itself.

Through analysis of the evolution of Israeli abortion politics, this study examines the impact of interconnections between legal culture and local policy problem definitions on the reception of imported policy paradigms. Despite efforts to infuse Israeli abortion politics with American-derived pro-life and pro-choice formulations, these definitions remain at the margin of relevant Israeli debates. The article attributes this phenomenon to two related factors: (1) dissonance between the absolutist, individualist, and universalist underpinnings of the American problem definitions and contextual, collectivist, and particularistic Jewish understandings of the issue in Israel; and (2) incompatibility between American limited government and related constitutionalist framing of the legitimacy of abortion regulation on the one hand, and salient Israeli political- and legal-cultural traits on the other. Especially important in this regard is the place of traditional Israeli deference to the state as an embodiment of shared values, and a systemic reliance on circumvention mechanisms, termed here de facto legalism, as an alternative to explicit articulation of these increasingly contested values. In abortion, as in many other domains where conflicts between Israeli Jewish and democratic commitments are implicated, the avoidance of law has served to deflect what Israelis increasingly fear may be irreconcilable differences. American-inspired conceptions of what is at stake in abortion ultimately failed to alter the course of Israeli abortion politics because they were incompatible with the terms of this increasingly fragile compromise.

This article explores Israeli environmental policy and places it in comparative perspective. While Israel's policies were roughly similar to those of other nations at comparable levels of development through the early 1970s, since the mid-1970s, Israel has accorded environmental protection a lower priority than other rich democracies. After a number of explanations for Israel's status as an environmental "laggard" are explored, the paper concludes by noting that as Israel has become a more "normal" post-industrial nation, the attention it has accorded to environmental protection has gradually increased.

This research report replicates, extends, and adds a longitudinal dimension to several recently published analyses, one of which appears in a volume on Israel in comparative perspective. Focusing on the relationship between gender and attitudes toward international conflict, and specifically on the gender and pacifism hypothesis which asserts that women are more peace-oriented than men, the present report analyzes data from two public opinion surveys in Israel and from additional opinion surveys in Egypt, Kuwait, Jordan Lebanon, and Palestine. The dual and interrelated goals of this study are (1) to incorporate the Israeli case into an on-going effort to test a social science hypothesis purporting to have explanatory power in diverse social and cultural contexts; and (2) to compare findings from Israel and other Middle Eastern societies in order to determine whether aggregate societal circumstances affect the applicability of this hypothesis.

Ideas about the Promised Land and Chosen People may deter accurate self-assessment in modern Israel by emphasizing the uniqueness of the nation and its homeland. A consideration of three issues on the national agenda shows that Israel is not clearly distinctive from other countries on these traits. On the dimensions of income inequality and traffic deaths, some measurements challenge the conventional wisdom: they show Israel scoring more desirable than international norms. By implication to other fields, the findings put the burden of demonstration on those who would claim that Israel or any other country has special traits that distinguish it from others. Parochialism may have serious consequences if it leads to distortions of resource allocations to fields where policymakers think there are shortfalls, but where the country actually does well by international standards. In Israel's case, moreover, a parochial insistence on land thought to be promised by the Almighty may get in the way of agreements that would increase a measure of worldly peace.