Menachem Hofnung

LEGAL DEFEATS—POLITICAL WINS Why Do Elected Representatives Go to Court?

Why do political parties and politicians turn to litigation instead of using political channels in their efforts to affect public policies? Over the past 20 years, there has been a noticeable trend in which Israeli parties and politicians have turned to the courts for intervention in national and internal party affairs, government policies, and even parliamentary procedures. The authors argue that this phenomenon is tied to the growth of open competition within political parties on one hand and reforms in the legal doctrines controlling access to litigation on the other. This study indicates that politicians seek litigation even when their chances of winning in court are marginal. According to the findings, politicians exhibit a lower propensity to seek out-of-court settlements than other kinds of litigants. The results suggest that politicians resort to litigation to challenge majoritarian policies and also because they gain considerable media exposure (regardless of the actual outcome of litigation), enhancing their political stature.

State formation and international aid: The emergence of the Palestinian authority

Abstract Thirty years ago, Samuel Huntington criticized Western aid policy toward new states that assumed that economic improvement in the standard of living coupled with democratic institutions would yield a more stable and democratic state-building process. An extensive political economic literature on the developmental state has since emerged that explores the complex relationship between state capacity, economic development and democracy, much of it critical of both the economist assumption, and the importance of democracy in achieving sustainable growth, at least in the initial stages of statehood. This literature, however, does not specifically relate to the impact of international aid affects state consolidation despite its critical role in the initial stages of new states. The paper explores how international aid affects on new state formation in the 1990s as reflected by the Palestinian experience, and more specifically whether Huntingtons criticism is valid today regarding the international aid regime toward the Palestinian Authority established in May 1994. It shows that international aid was initially based on economist assumptions, changed course to reflect the importance of the state, and now must seek a better balance between the centralization of power, developing state capacity, and promoting civil society.

The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel

The power of courts to engage in constitutional politics and to apply judicial review is based, in most cases, on a grant of formal authority to do so and on an expansion of that capacity by the courts. Is it possible then, that a formal grant of judicial review may lead to a consequent reduction in the judiciary power to engage in constitutional politics? Since 1945, many states in Western Europe, Asia and Latin America have established or reestablished constitutional courts with review powers. This power of review enables the courts to determine the acceptability of a given law or other official action on grounds of incompatibility with constitutional norms.1 These court powers are used today more frequently than before to strike down laws and administrative actions. European governments, parliaments, and administrators interact differently as a result of this judicial activity. In their comparative study, Shapiro and Stone show how the language, the style, and the outcomes of European policy processes are now different from what they would have been in the absence of constitutional review.2 Shapiro and Stone identify several main characteristics of the new constitutional politics:3

Power or Justice? Rule and Law in the Palestinian Authority

Rule of law is usually analyzed exclusively in reference to domestic peace within the political entity. Yet, establishing a powerful independent legal system can have a major impact on peaceful relations between political entities. This article evaluates the Palestinian Authoritys performance in creating democratic and legal institutions from its inception in the summer of 1994 until the outbreak of the armed conflict between Israel and the Palestinians in September 2000. Three potential explanations drawn from the literature on state formation are evaluated in explaining the outcome: the foreign intervention thesis blames the failure on the asymmetry of power between Israel and the PLO; the domestic structural claim is that the weakness of the legal system stems from the unwillingness of the ruler to limit his power; and the cultural argument claims that only Anglo-Saxon and European states are truly liberal and democratic. The findings show that the quest for power led to centralization of authority in the executive, despite valiant attempts by politicians and civil society to avert such an outcome, and the article identifies the types of obstacles that need to be overcome to transform the Palestinian entity into a democratic reality that would promote peaceful coexistence with its neighbors.

States of emergency and ethnic conflict in liberal democracies: Great Britain and Israel

In constitutional theory, the declared purpose of a state of emergency is to restore the established constitutional order. Several liberal democracies have been employing emergency measures for many years to deal with internal ethnic conflict. Two notable cases are Israel and the United Kingdom that have maintained a state of emergency for over five decades. This raises an important question: Does the state of emergency that is designed to restore constitutional order actually yield an undesirable legal order? Our findings suggest that emergency measures in both countries have permanently changed the nature of the democratic constitutional order. This new order grants the executive branch of government special powers at the expense of the legislature and judiciary. This finding should be remembered before declaring a national state of emergency rather than allowing ‘temporary’ emergency provisions to become entrenched permanently in the legal system.

Litigating Military Service at Civil Court

Compulsory military service is perhaps one of the most demanding duties a society may impose on its members. Yet, in the research of civil–military relations, the role of civil courts in imposing such a duty is often neglected. Most of the existing literature regarding compulsory service tends to focus on issues such as conscientious objection and civil disobedience. However, the issue of compulsory military service is bound to evoke conflicting demands from groups and individuals looking to change the existing policies. That being the case, what is the role of national courts in settling such disputes? The findings presented here show that in the past decade the Supreme Court of Israel went through an interesting transformation; namely, from a court enforcing universal conscription policy into an arbitration tribunal used by groups and individuals to attain personal rights and career ambitions.