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Collective Memory and Judicial Legitimacy: The Historical Narrative of the Israeli Supreme Court

Published online by Cambridge University Press:  18 July 2014

Daphne Barak-Erez
Daphne Barak-Erez
Affiliation:
Deputy Dean, Faculty of Law, Tel-Aviv University, Tel-Aviv,Israel, barakerz@post.tau.ac.il
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Abstract

Occasionally, courts assume the role of historians and narrate stories of historic significance. The courts are fully aware of their “historical” role when they are called to make decisions about historical facts in a dispute that happens to be relevant to their decision. In contrast, this article centers on the unwitting writing of history by the courts when they describe past events as uncontested historical facts, usually through the doctrine of “judicial notice,” ignoring the fact that their story is not necessarily uncontested. As a test-case, the article focuses on decisions given by the Supreme Court of Israel, especially in the formative period of the State. The article argues that the historical narratives of judges, who are usually part of the mainstream in their societies, represent the nation's accepted version of its collective memory. It then tries to shed light on the importance of this narrative in the context of the court's institutional legitimacy.

Résumé

Les tribunaux jouent parfois le rôle d'historien et rapportent le récit d'affaires ayant une importance historique. Ils sont pleinement conscients de ce rôle “historique” lorsqu'ils sont appelés à prendre des décisions se rapportant à des faits historiques dans un litige relevant de leur compétence. Cet article est, par comparaison, centré sur l'écriture involontaire de l'histoire par les tribunaux lorsqu'ils rapportent un événement passé comme un fait historique incontestable, généralement à travers la doctrine de la connaissance judiciaire, en ignorant le fait que cette version puisse être contestée. Pour souligner ces propos, cet article se concentre sur les décisions prises par la Cour Suprême israélienne en particulier pendant la formation de l'Etat. Il affirme que le récit historique des juges, qui généralement font partie de l'élite d'une société, représente la version reconnue de la mémoire collective. Il s'efforce, ensuite, de mettre en lumière l'importance de ce récit dans la légitimité institutionnelle des tribunaux.

Type
Section: Law and History/Dossier: Droit et histoire
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 16 , Issue 1 , April 2001 , pp. 93 - 112
Copyright
Copyright © Canadian Law and Society Association 2001

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References

1 The use of judicial sources as raw material for social history is common practice in historical research.

2 For a general account of the “revival of narrative” in historiography, see Novick, P., That Noble Dream: The “Objectivity Question” and the American Historical Profession (Cambridge [England]: Cambridge University Press, 1988) at 622–25.CrossRefGoogle Scholar

3 White, H., “The Historical Text as Literary Artifact” in Tropics of Discourse: Essays in Cultural Criticism (Baltimore; London: The Johns Hopkins University Press, 1978) 81 at 84Google Scholar (originally published in (1974) 3 Clio 277). See also White, H., Metahistory (1973) at 1–31Google Scholar; White, H., “The Value of Narrativity in the Representation of Reality” in Mitchell, W.J.T., ed., On Narrative (Chicago: University of Chicago Press, 1981) 1.Google Scholar

4 The doctrine of judicial notice also covers historical facts, such as the country's engagement in a war at the time considered in the judgment. See Phipson, S.L., On Evidence, 14th ed. by Howard, M.N., Crane, P. & Hochberg, D.A. (London: Sweet & Maxwell, 1990) at 35–36Google Scholar; Wigmore, J.H., Evidence in Trials at Common Law, vol. 9 (Boston: Little, Brown, 1981) sec. 2520.Google Scholar

5 The role of interpretation in the making of history was also discussed by White, H. in “Interpretation in History” in Tropics of Discourse, supra note 3, 51.Google Scholar

6 See Scheppele, K.L., “Foreword: Telling Stories” (1989) 87 Mich.L.Rev. 2073 at 2094–96CrossRefGoogle Scholar; Ferguson, R.A., “The Judicial Opinion as Literary Genre” (1990) 2 Yale J.L. and Hum. 201Google Scholar; Jackson, B.S., “Narrative Theories and Legal Discourse” in Nash, C., ed., Narrative in Culture: The Uses of Storytelling in the Sciences, Philosophy, and Literature (London; New York: Routledge, 1990)Google Scholar; Baron, J.B. & Epstein, J., “Is Law Narrative?” (1997) 45 Buffalo L.Rev. 141 at 142.Google Scholar

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8 A. Sarat & T.R. Kearns “Writing History and Registering Memory in Legal Decisions and Legal Practices: An Introduction” in ibid., 1 at 3.

9 For example, Reva Siegal criticizes the judicial interpretation given to the Nineteenth Amendment. (Siegal, R.B., “Collective Memory and the Ninteenth Amendment: Reasoning about ‘the Woman Question’ in the Discourse of Sex Discrimination,” in History, Memory, and the Law, ibid., 131).Google Scholar Brook Thomas criticizes the major precedents dealing with different treatment and affirmative action in regard to African-Americans. (B. Thomas “Stigmas, Badges, and Brands: Discriminating Marks in Legal History,” in ibid. 249.)

10 See Ball, M.S., “Stories of Origin and Constitutional Possibilities” (1989) 87 Mich.L.Rev. 2280 at 2297–2300CrossRefGoogle Scholar; Williams, R.A., “Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law” (1989) 31 Ariz.L.Rev. 237Google Scholar; Soifer, A., “Objects in Mirror are Closer Than They Appear” (1994) 28 Geo.L.Rev. 533.Google Scholar

11 Note that, in the nineteenth century, judges in the US tended to describe the period of British rule as tyranny. See Likhovski, A., “‘Tyranny’ in Nineteenth-Century American Legal Discourse: A Rhetorical Analysis” (1997) J.Interdisc.Hist. 205 at 216.CrossRefGoogle Scholar

12 The South African Constitution starts with a Preamble that acknowledges past injustices. The decision of the South African constitutional court in the matter of the truth commissions (C.C.T. 17/96, [1996] The Azanian Peoples Organization (Azapo) v. The President of the Republic of South Africa, 4 S.A. 671) also starts with a historical narration: “For decades, South African history has been dominated by a deep conflict between a minority which reserved for itself all control over the political instruments of the state and a majority who sought to resist that domination.” Compare this to previous South-African jurisprudence addressing the history of the country. See Mertz, E. “The Uses of History: Language, Ideology, and the Law in the United States and South Africa” (1988) 22 L.and Soc.Rev. 661.CrossRefGoogle Scholar

13 See Law, S.A., “Conversations Between Historians and the Constitution,” (1991) 12 The Public Historian 11CrossRefGoogle Scholar; Farber, D.A., “History as Evidence,” in Nijboer, J.F. and Reijntjes, J.M., eds., Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence (Lelystad: Koninklijke Vermande; [Heeren]: Open University of the Netherlands, 1997) 63.Google Scholar

14 Cr.A. (Criminal Appeal) 232/55, Attorney-General v. Greenwald 32 S.C. (Supreme Court) 3 (Hebrew).

15 Cr.A. 336/61, Eichmann v. Attorney-General 16 P.D. (Piskei Din — Decisions) 2033 (Hebrew), translated in (1968) 36 Int'l.L.Rep. 5.

16 Cr.A. 347/88, Demjanjuk v. State of Israel 37 (4) P.D. 221.

17 For a discussion of this case, see Lahav, P., Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley, University of California Press, 1997) at 121–44.Google Scholar

18 For a discussion of the Eichmann trial, see Lahav, ibid., at 145–62; Arendt, H., Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Viking Press, 1963).Google Scholar

19 C.C. (Civil Case) (Tel-Aviv) 818/93, Sharon v. Benziman (not published). The historic nature of this judgment is not affected by Judge Talgam's warning at the opening of his ruling about the constraints imposed on a court attempting to determine historical facts: the need to keep to the actual claims of the sides, the restrictions imposed by the laws of evidence and, in the current case, the many instances of information that still remains classified for security reasons.

20 See H.C. (High Court, the Supreme Court sitting as a High Court of Justice) 152/82, Alon v. Government of Israel 36 (4) P.D. 449 (Hebrew).

21 See supra note 4.

22 See H.C. 4185/90, The Temple-Mount Faithful Movement v. The Attorney-General 47 (5) P.D. 221 at 228–47 (Hebrew).

23 See H.C. 3269, 4637, 7617/95 Katz v. The Jerusalem District Court 50 (4) P.D. 590 at 617 (Hebrew).

24 Note that the court undertakes to narrate history in these judgments as well, but what makes them special is that it does so with full awareness of their significance.

25 Kalman, L., The Strange Career of Legal Liberalism (New Haven, Conn.: Yale University Press, 1996) at 180.Google Scholar

26 E.A. (Election Appeal) 1/65 Yeredor v. The Chairman of the Central Election Committee for the Sixth Knesset 19 (3) P.D. 365 (Hebrew).

27 Ibid. at 386. Note that Justice Sussman, who concurred with Justice Agranat, learned a different lesson from history, based on the experience of the Weimar Republic (see ibid. at 389). In so doing he was following the ruling of Justice Witkon in H.C. 253/64, Charts v. The Haifa District Commissioner 18 (4) P.D. 673 at 679 (Hebrew). For a discussion of this case, see also Lahav, supra note 17, at 181–95. A closely related example is the decision of Justice Elon in the Ben Shalom case, E.A. 2/88, Ben Shalom v. The Central Election Committee for the Twelfth Knesset 43 (3) P.D. 221 (Hebrew). Justice Elon was in favor of disqualifying lists of candidates whose platform negated the legitimacy of Israel as a Jewish state, and based his ruling on a detailed historical survey of the close ties of Jews to Zion (ibid. at 265–71).

28 H.C. 125/49, Amado v. The Director of the Immigrants' Camp Pardess Hanna 4 P.D. 4 (Hebrew), officially translated in (1948/1953) 1 S.J. (Selected Judgments of the Supreme Court of Israel) 299.

29 Ibid. at 23. See also Lahav, P., “The Formative Years of Israel's Supreme Court: 1948–1955” (1989) 14 Tel-Aviv U.L.Rev. 479 at 491–92 (Hebrew).Google Scholar

30 H.C. 222/68, Motion 15/69, National Groups v. Minister of Police 24 (2) P.D. 141 (Hebrew).

31 Ibid. at 157.

32 Ibid. at 158.

33 On collective memory, see Funkenstein, A., “Collective Memory and Historical Consciousness,” (1989) 1 History and Memory 5.Google Scholar See also Connerton, P., How Societies Remember (Cambridge [England]; New York: Cambridge University Press, 1989).CrossRefGoogle Scholar

34 For judicial opinions as a genre of its own, see Ferguson, supra note 6.

35 In many legal texts (not only court decisions), the subject is plural, resulting in a contrast between “us” and “them.”

36 Morris, B. “The New Historiography: Israel Confronts its Past” in Lerner, M., ed., Tikkun: To Heal, Repair, and Transform the World: An Anthology (Oakland, Calif.: Tikkun Books, 1992) 291.Google ScholarMorris, B., The Birth of the Palestinian Refugee Problem, 1947–1949 (Cambridge [England]; New York: Cambridge University Press, 1987)Google Scholar affords a representative sample of “new” history in Israel. For more views on this debate, see the series of articles on “The New Historians” in (1996) 8 Theory and Critique (Hebrew); Shapira, A., “Politics and Collective Memory: The Debate over the ‘New Historians’ in Israel,” (1995) 7 History and Memory 9Google Scholar; Rubinstein, A., From Herzl to Rabin: 100 Years of Zionism (Yerushalaim; Tel-Aviv: Shoken, 1997) at 238–64 (Hebrew).Google Scholar

37 Amnon Rubinstein also uses this term, describing Morris's research into the Palestinian refugee problem as opposed to “the official history of Israel” (ibid. at 244) (Hebrew).

38 Shapira, supra note 36, at 12. Shapira goes on to refer to the success of the critical school in bringing about a “consensus drift.” She argues that “the fact that ideas that seemed marginal twenty years ago have now become partly legitimate reflects a slow shift in patterns of what is accepted and patterns of collective memory” (ibid. at 32).

39 See also Ewick, P. and Silbey, S., “Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative,” (1995) 29 L. and Soc.Rev. 197, at 211–17.Google Scholar

40 Anderson, B., Imagined Communities, rev. 2nd ed. (London; New York: Verso, 1991) at 6.Google Scholar See also Appelby, J., Hunt, L. & Jacob, M., Telling the Truth About History (New York; London: Norton, 1994) at 100–7Google Scholar, which discusses the nation-building project in the United States and speaks of historians of the independence period “preferring to use history to create artificially the ‘mystic chords of memory’ the nation lacked” (ibid. at 102).

41 Bickel, A.M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed., (New Haven, Conn.: Yale University Press, 1986) at 26.Google Scholar

42 It may be noted that the writings of some scholars have centered on the inaccuracy of the history written by the courts. See Kelly, A.F., “Clio and the Court: An Illicit Love Affair” (1965) Sup.Ct.Rev. 119Google Scholar; Miller, C.A., The Supreme Court and the Uses of History (Cambdridge, Mass.: Belknap Press of Harvard University Press, 1969).Google Scholar Their criticism usually addresses the constitutional history of the United States as discovered by judges in the course of their constitutional adjudication, compared with the results of professional historical research regarding the relevant constitutional events and documents.

43 Cover, R.M., “Foreword, Nomos and Narrative,” (1983) 97 Harv.L.Rev. 4.Google Scholar

44 Fitzpatrick, P., The Mythology of Modern Law (London; New York: Routledge, 1992) at 111–18.Google Scholar

45 For the purpose of the current discussion, a general description of Supreme Court Judges as educated Jews holding Zionist worldviews, mostly with previous careers in public service or academia, will suffice. See Rubinstein, E., Judges of the Earth (1981) 137–67 (Hebrew)Google Scholar; Lahav, supra note 29, at 484–86 (Hebrew). A detailed description of the deep Zionist convictions held by Chief Justice Agranat, one of Israel's most influential judges, is given in his biography. See Lahav, supra note 17. Relying on the terminology of the Court, its members may be viewed as classic examples of what the court at times calls the “enlightened public.” See Shamir, R., “Society, Judaism, and Democratic Fundamentalism: On the Social Roots of Judicial Interpretation,” (1995) 19 Tel-Aviv U.L.Rev. 699 at 706. (Hebrew).Google Scholar

46 Van Zandt, D.A., “An Alternative Theory of Practical Reason in Judicial Decisions,” (1991) 65 Tulane L.Rev. 775.Google Scholar

47 See Wilson's, K. introduction, “Governments, Historians, and ‘Historical Engineering’,” in Wilson, K., ed., Forging the Collective Memory: Government and International Historians Through Two World Wars (Providence: Berghahn Books, 1996) 1.Google Scholar

48 See Benedict Anderson's discussion of the role of museums in building national histories (Anderson, supra note 40, at 178–85).

49 See, for example, The Martyrs' and Heroes' Commemoration (Yad Va-Shem) Law, 1953. On the other hand, intervention through criminal legislation in the narration of history is an unusual occurrence in democratic regimes. In this regard, legislation forbidding the denial of the Holocaust represents a notable exception. See Stein, E., “History Against Free Speech: The New German Law Against the ‘Auschwitz’ — and Other — ‘Lies’,” (1986) 85 Mich.L.Rev. 277CrossRefGoogle Scholar; Douglas, L., “The Memory of Judgment: The Law, The Holocaust, and Denial,”. (1996) 7 History and Memory 100.Google Scholar

50 Court cases related to security usually include facts connected with the history of the State. In H.C. 94/49, Al Kuri v. Chief of Staff 4 P.D. 34 (Hebrew), for example, in which the administrative detention of an Arab who had been engaged in hostile activity was discussed, reference is made to various facts relating to the history of the Jewish-Arab struggle at the end of the British Mandate in the country, such as the non-intervention of the British police station in Iraq-Suedan in the attack on Kibbutz Negba (ibid., at 36) (Hebrew).

51 See Carr, E.H.What is History? 2nd ed. by Davies, R.W. (London: Macmillan, 1986) at 1–24.CrossRefGoogle Scholar According to Carr, “[t]he facts speak only when the historian calls on them; it is he who decides to which facts to give the floor, and in what order or context” (ibid. at 5).

52 Defense Regulations 1939, and Defense (Emergency) Regulations 1945 (henceforth: Defense Regulations).

53 H.C. 5/48, Leon v. Acting District Commissioner of Tel-Aviv 1 P.D. 58 (Hebrew), officially translated in (1948/1953) 1 S.J. 41.

54 H.C. 10/48, Zeev v. Acting District Commissioner of Tel-Aviv 1 P.D. 85 (Hebrew), officially translated in (1948/1953) 1 S.J. 68.

55 The Leon case, supra note 53, at 66 (Hebrew).

56 H.C. 7/48, Al-Carbutli v. Minister of Defense 2 P.D. 5 (Hebrew).

57 Ibid. at 12.

58 Law and Administration Ordinance, 1948, which was the first statute to be enacted in Israel, stated the following in Section 11: “The law which existed in Palestine … shall remain in force … subject to such modifications as may result from the establishment of the State and its authorities.”

59 See Motion 41/49 Shimshon Palestine Portland Cement Factory Ltd v. Attorney-General 4 P.D. 143 (Hebrew), officially translated in (1948/1953) 1 S.J. 290; H.C. 113/49 Sifri v. Minister of Justice 4 P.D. 613 (Hebrew); C.A (Civil Appeal) 55/49, Finegold v. Administrator-General 5 P.D. 1180 (Hebrew); H.C. 279/51 Amsterdam v. Minister of Finance 6 P.D. 945 (Hebrew); C.A. 28/52, ‘Peles’ Advertising Co Ltd v. Ministry of Transport 9 P.D. 436 (Hebrew).

60 The Shimshon case, ibid. at 148.

61 H.C. 59/49, Dimant v. Minister of Finance 4 P.D. 164 (Hebrew).

62 Ibid. at 167.

63 S.C. (Shipping Case) 1/49, Zur Ships Co Ltd v. Attorney-General 4 P.D. 288 (Hebrew).

64 Ibid. at 297.

65 Clearly, the collective memories of the Palestinians concerning the war are totally different. See, for instance, Abu-Louhod, I., “El-Nakba [The Disaster]: This is What Happened,” (1998) 16 Alpayim 152. (Hebrew).Google Scholar

66 H.C. 125/51, Hassin v. Minister of the Interior 5 P.D. 1386 (Hebrew).

67 Ibid. at 1392.

68 Cr.A. 44/52, Diab v. Attorney-General 6 P.D. 922 (Hebrew), officially translated in (1948/1953) 1 S.J. 269.

69 Ibid. at 932.

70 See also Lahav, supra note 29, at 496 (Hebrew).

71 The Yeredor case, supra note 26, at 386 (Hebrew). As stated, Justice Agranat extended his historical reference in this judgment to what might be considered “learning from history.” See supra note 27.

72 Ibid. at 380.

73 H.C. 114/78, Borkhan v. Minister of Finance, 32 (2) P.D. 800 (Hebrew).

74 Ibid. at 805. Moreover, the recapture of the Old City of Jerusalem in the Six-Day War is commonly described in Israel as “liberation.” Thus, for instance, Justice Shamgar in his opinion in the Borkhan case, explained that “when the Old City was liberated in the Six-Day War, the government decided that the city should be restored to its former glory” (ibid, at 806). A similar terminology is also used in other recent judgments. In his opinion in the case of the Temple-Mount Faithful, Justice Elon completed as follows the historical survey regarding the Temple Mount in the events of the Six-Day War: “When the Kingdom of Jordan began a military offensive against the State of Israel and Jewish Jerusalem, the Temple Mount and the Western Wall were liberated from Jordanian occupation” (the Temple-Mount Faithful case, supra note 22, at 246). Recently, in C.A. 2405/91, 2912/93, The State of Israel v. The Estate of Rabbi Pinchas David Horowitz, Deceased 51 (5) P.D. 23 (Hebrew), dealing with an expropriation of land in Jerusalem, Justice Cheshin explained that “[w]ith the capture of the Old City of Jerusalem by the Arab Legion in the War of Independence, contact between the owners and their assets was lost. That was the situation until the Six-Day War in 1967, when Jerusalem was liberated” (ibid. at 28).

75 H.C. 807/78, Ein Gal v. Film and Theater Censorship Board, 33 (1) P.D. 274 (Hebrew).

76 Ibid. at 275.

77 ibid. at 275–76.

78 ibid. at 276.

79 H.C. 8382/96, The National Insurance Institute v. The National Labor Court 51(5) P.D. 658.

80 Ibid. at 663.

81 Ibid. at 664.

82 Note, however, that the Court did not address this accepted narrative of history in its decision on a previous case, dealing with the political organization of the El-Ard group. The Court rejected an appeal to register the group as an Ottoman association. See the Charts case, supra note 27.

83 See supra notes 79–81.

84 For the distinction between plain historical narratives and the process of drawing conclusions from it, see Section 2 of this article. A full discussion of the inclination of the Court to draw conclusions from history is beyond the scope of this article, and the examples mentioned in the text are quoted only for purposes of comparison.

85 H.C. 72/62, Rufeisen v. Minister of the Interior 16 P.D. 2428 (Hebrew), officially translated in 6 S.J. 1.

86 Ibid. at 2441.

87 H.C. 58/68, Shalit v. Minister of the Interior, 23(2) P.D. 477 (Hebrew), officially translated in 6 S.J. 35.

88 This was the approach adopted by Justice Silberg, ibid. at 493.

89 This was the approach of Justice Berinson, ibid. at 606–7. For further discussion of this case, see Lahav, supra note 17, at 196–220.

90 In a critical article, Avigdor Feldman pointed at the power of Jewish history as narrated in this decision against the biography of an individual Arab appellant which was not presented in a broader historical context. Feldman, A., “The Democratic State v. The Jewish State: A Space without Place, Time without Duration,” (1995) 19 Tel-Aviv U.L.Rev. 717. (Hebrew).Google Scholar

91 The legitimacy-conferring function of the court was theorized by Dahl, Robert: Dahl, R.A., “Decision-Making in a Democracy: The Supreme Court as National Policy-Maker” (1957) 6 J.of Public L. 279.Google Scholar For later discussions and criticisms, see Bass, L.R. & Thomas, D. “The Supreme Court and Policy Legitimation” (1984) 12 Am.Pol.Q. 335CrossRefGoogle Scholar; Marshall, T.R. “The Supreme Court as an Opinion Leader” (1987) 15 Am.Pol.Q. 147CrossRefGoogle Scholar; Gibson, J.L. “Understandings of Justice: Institutional Legitimacy, Procedural Justice, and Political Tolerance” (1989) 23 L.and Soc.Rev. 469.CrossRefGoogle Scholar

92 Bickel, supra note 41, at 30.

93 In the 78th Federalist, Alexander Hamilton explained that “[t]he Judiciary … has no influence over either the sword or the purse” (Hamilton, A., Madison, J. & Jay, J., The Federalist Papers, ed. by Rossiter, C., (New York: New American Library, 1961) at 465).CrossRefGoogle Scholar Following this well-known text. Justice Frankfurter argued that “[t]he Court's authority — possessed of neither the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction” (Baker v. Carr, [1962] 369 U.S. 186 at 267).

94 See Bickel, supra note 41, at 16.

95 See also Ely, J.H., Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980).Google Scholar

96 See Caldeira, G.A. “Neither the Purse Nor the Sword: Dynamics of Public Confidence in the Supreme Court” (1986) 80 Am.Pol.Sc.Rev. 1209.CrossRefGoogle Scholar

97 For a study on the public legitimization of the Court, see Barzilai, G., Ya'ar-Yuchtman, E. & Segal, Z., The Israeli Supreme Court and the Israeli Public (Tel-Aviv: Papirus, 1994)Google Scholar (Hebrew).

98 Proverbs 27: 6.

99 Shamir, R., “‘Landmark Cases’ and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice,” (1990) 24 L.and Soc.Rev. 781.CrossRefGoogle Scholar