1. Golda Meir (formerly Meirson) was born in Russia and brought up in the United States. Abba (Aubrey) Eban (known in Israel as Even) was born in South Africa and brought up in England.

2. The two exceptions were Justices Shneur Zalman Cheshin, appointed in 1948, and Eliyahu Mani, appointed in 1962.

3. C.A. 448/60, Lev v. ha-Mashbir ha-Merkazi, 16 P.D. 2688, 2699 (1962). Agranat wrote the majority opinion, with Justice Moshe Silberg dissenting.

4. This book draws heavily on interviews with Simon Agranat, conducted between 1983 and 1991. The quotations attributed to him in the text are based on the notes taken during those interviews. All the quotations from books, articles, and judicial opinions, which originally appeared in Hebrew, were translated by the author, following the conventional rules of transliteration.

5. Although a devout Zionist, he refused to hebraize his family name, unlike David Ben-Gurion (formerly Greenboim) or Golda Meir. He thereby rejected the Zionist notion that, in Israel, the Jew should shed all marks of galut, including the "foreign" family name, and insisted on retaining that part of his old identity. When Israel became a state, government policy required that public officials change their names into Hebrew. It is interesting that the majority of the Supreme Court justices would not comply.

1. For the Agranat family genealogy, see Paula Agranat Hurwitz, The Agranat Family: These Are the Generations (Los Angeles, 1988), 43.

2. John M. Allswang, A House for All Peoples: Ethnic Politics in Chicago, 1890-1936 (Lexington: University Press of Kentucky, 1971), 20. break

3. Later in his life, Aaron gave a series of lectures in Haifa, on a diverse range of topics, from Maimonides, medical history, women in the Talmud, and Jewish liturgy, to the Jewish theater. Aaron Agranat, untitled, Agranat papers, Agranat family, Jerusalem.

4. Irving Howe, World of Our Fathers (New York: Harcourt Brace Jovanovich, 1976), 205.

5. Simon himself attributed his dread of sailing to Palestine to his fear of sailing across Lake Michigan to visit his grandmother in Milwaukee.

6. Dorothy Kurgeans Goldberg, interview by the author, Washington, D.C., November 1983.

7. Von Humboldt Record 3 (January 1919).

8. Esther Schour, interview by the author, Chicago, Illinois, March 1983; Mary Satinover, interview by the author, Chicago, Illinois, March 1983; Leo Wolf, interview by the author, Tucson, Arizona, March 1983; Ben Sackheim, interview by the author, Tucson, Arizona, March 1983.

9. Ben Sackheim, letter to the author, 14 January 1983.

10. Elias Canetti, Crowds and Power, trans. Carol Stewart (New York: Viking Press, 1962), 394-96.

11. Richard Hofstader, The Age of Reform (New York: Vintage Books, 1955), 5, 11; Arthur A. Ekirch Jr., Progressivism in America (New York: New Viewpoints, 1974), 72.

12. Von Humboldt Record 3 (January 1919).

13. Simon Agranat, "School Spirit," Tuley High School Review 28 (December 1921): 3. Agranat's emphasis.

14. Von Humboldt Record 3 (January 1919).

15. Kevin Tierney, Darrow: A Biography (New York: Thomas Y. Crowell, 1979), 203.

16. Upton Sinclair, ed., The Cry for Justice: An Anthology of the Literature of Social Protest (Philadelphia: John C. Winston, 1915; New York: L. Stuart, 1963), 22.

17. Ibid., 9.

16. Upton Sinclair, ed., The Cry for Justice: An Anthology of the Literature of Social Protest (Philadelphia: John C. Winston, 1915; New York: L. Stuart, 1963), 22.

17. Ibid., 9.

18. Theodor Herzl (1860-1904) was the founding father of political Zionism. His pamphlet The Jewish State ([ Der Judenstaat ], trans. Harry Zohn [New York: Herzl Press, 1970]) argued that the Jewish question in Europe could not be resolved unless Jews had a state of their own. In 1897 he organized the World Zionist Congress and served as its first president.

19. Yonathan Shapiro, Leadership of the American Zionist Organization, 1897-1930 (Urbana: University of Illinois Press, 1971), 52.

20. The source of inspiration for both the Conservative movement and Young Judea was Professor Israel Friedlaender. Baila R. Shargel, Practical Dreamer: Israel Friedlaender and the Shaping of American Judaism (New York: The Jewish Theological Seminary of America, 1985), 12. In 1933, Simon married Israel Friedlaender's daughter, Carmel. See discussion on p. 54.

21. The Herzlite (1921), a private publication in the author's files.

22. Ibid.

23. Ibid.

21. The Herzlite (1921), a private publication in the author's files.

22. Ibid.

23. Ibid.

21. The Herzlite (1921), a private publication in the author's files.

22. Ibid.

23. Ibid.

24. Simon played Major Spence, who defended the young man in his military trial. Another indication that the issue of American Jewish identity was on continue

Simon's mind is the fact that his speech at his bar mitzvah was about the difficulties of growing up Jewish in America.

25. Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1984), 266; Arthur Hertzberg, The Jews in America: Four Centuries of an Uneasy Encounter: A History (New York: Simon & Schuster, 1989), 222-25.

26. Zionist Organization of America, Brandeis on Zionism: A Collection of Addresses and Statements by Louis D. Brandeis (New York: H. Wolff, 1942), 29. Agranat invoked this formula, quoting Brandeis, in C.A. 630/70, Tamarin v. State of Israel , 26(1) P.D. 197, 205 (1972).

27. George L. Berlin, "The Brandeis-Weizmann Dispute," American Jewish Historical Quarterly 60 (1970-1971): 37, 40.

28. Shapiro, Leadership, 161-79; Melvin I. Urofsky, American Zionism from Herzl to the Holocaust (Garden City, N.Y.: Anchor Press, 1975).

29. Chaim Weizmann, Trial and Error: The Autobiography of Chaim Weizmann (Philadelphia: The Jewish Publication Society of America, 1949), vol. 2, 267.

30. Norman Rose, Chaim Weizmann: A Biography (New York: Viking Press, 1986), 210.

31. The distinction is Ussishkin's. Urofsky, American Zionism, 295; see also Urofsky's analysis of American and European culture on pp. 283-98.

32. The Herzlite. Emphasis added.

33. Strum, Brandeis , 256.

34. Harry Barnard, The Forging of an American Jew: The Life and Times of Judge Julian W. Mack (New York: Herzl Press, 1974), 281.

35. Shakespeare, Julius Caesar, Act V, Scene 5, line 68.

36. Ibid., Act I, Scene 2, line 169.

35. Shakespeare, Julius Caesar, Act V, Scene 5, line 68.

36. Ibid., Act I, Scene 2, line 169.

37. The Herzlite. Agranat's emphasis.

38. Wolf, interview.

39. Theodor Herzl, Altneuland , trans. Lotte Levensohn (New York: Herzl Press, 1987); Rubin's Tel Aviv: A Salute to Tel Aviv on the Occasion of Its Seventy-Fifth Anniversary (n.p., n.d.).

40. Weizmann, Trial and Error, vol. 2, 318-19.

41. Ibid., 238.

40. Weizmann, Trial and Error, vol. 2, 318-19.

41. Ibid., 238.

42. Simon Agranat, "Bublik Speech" (a lecture given at the Hebrew University, July 1979).

43. Simon Agranat, "Concerning the Hebrew University," Chicago Yidisher Kuryer, 4 April 1925, English section of the weekend edition.

44. Agranat, "Bublik Speech" (emphasis added). Agranat had a long and complex relationship with the Hebrew University. He had served as a professor of criminal law since a law faculty had been established and is universally recognized as the founder of modern Israeli criminal law. The university, however, was not consistently kind to him. When told that he could no longer offer courses, he was stunned to learn that despite more than fifteen years of teaching he was not entitled to any pension. A proud man, he kept his pain to himself, but during the Bublik ceremony he did not resist the temptation to gently chide the university: "In 1950 I was asked by the Dean . . . to teach criminal law. . . . This is a position of an adjunct professor, he said to me, limited to one year only. . . . Despite this continue

constraint I agreed, with no hesitation, to take the task upon myself. . . . [The search for my replacement] took a long time." This remark was characteristic, both because of its subtle humor and because it captured the man: he would not forget wrongs done to him, but he detested fights for personal material gain.

45. 1348 Y.B. Liber Assisarium.

46. Lawrence M. Friedman, A History of American Law, 2d ed. (New York: Simon & Schuster, 1985), 613.

47. Oscar Kraines, The World and Ideas of Ernst Freund: The Search for General Principles of Legislation and Administrative Law (University: University of Alabama Press, 1974). See also Frank L. Ellsworth, Law on the Midway: The Founding of the University of Chicago Law School (Chicago: Law School of the University of Chicago, 1977).

48. Agranat contrasted the closed and open legal system in the following manner: "[A] 'closed' legal system [is] . . . one requiring the answers to all legal questions to be logically deduced from a fixed number of prescribed rules. . . . It is thus distinct from an 'open' system, which permits the gradual filling of legal gaps in accordance with changing circumstances, by the application of general standards and with the help of principles of equity considerations and of public policy." Simon Agranat, "The Supreme Court in Action," Jerusalem Post, 6 May 1973.

49. Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 17; G. Edward White, Patterns of American Legal Thought (Indianapolis, Ind.: Bobbs-Merrill, 1978), 97-191. It is quite possible that in the University of Chicago the struggle was less manifest than it had been at Yale, Harvard, or Columbia. The Law School at the University of Chicago was established on an understanding that there was room for both approaches. See Ellsworth, Law on the Midway, 74-77. Most Chicago law professors tried to pay lip service to Freund's insistence on the interdisciplinary approach. James Parker Hall, for example, said:

The case method . . . which has achieved so complete a mastery of American legal education of the better sort, has certain unrivaled advantages in dealing with fundamental or difficult legal problems. . . . But, as has often been observed, it is a slow method, and in a given time [more] . . . ground can be covered . . . by . . . didactic, or descriptive, or informational [methods]. It is not so often perceived, however, that this is not so much a criticism of the case method as a statement . . . that there is no easy and rapid method of acquiring an adequate professional knowledge of . . . law. History, economics, politics, religion, and all the important emotional reactions of society have affected the reasoned processes by which its doctrines have been wrought. (James Parker Hall, "Some Observations on the Law School Curriculum," 5 Am. Law School Rev. 61 [1923].)

In addition, people like Hall had been influenced not only by the father of the case method, Christopher Columbus Langdell, but also by Roscoe Pound, one of the founders of sociological jurisprudence, and they imparted to their students the notion that legal rules reflected the balancing of interests.

50. This tendency, which became more pronounced in later years and typified his performance as a judge, could have also contributed to his failure in his first bar examination in 1929. See discussion on pp. 37, 69.

51. Until his last year of law school, Simon lived with his family in Albany Park, worked as a teacher in a Reform synagogue, and commuted to law school. Thus he was probably remote from the school's social life. break

52. Benjamin L. Sacks, letter to the author, 14 February 1983.

53. "After the law school graduation ceremony, Simon wanted me to go to Palestine to practice law. He assured me that there were great opportunities for us in that country. He suggested, after studying Turkish and English laws, we would become successful lawyers in the Holy Land. I declined--he immigrated to Palestine. Simon did have the ability to look into the future and anticipate the possibilities in Palestine for our people." Samuel J. Benjamin, letter to the author, 3 April 1983.

54. Leon M. Despres, letter to the author, 14 February 1983.

55. Kraines, Ernst Freund, 154.

56. Joseph S. Shubow, "When We Lighted the Torch," Avukah Annual 5 (1930): 37, 38.

57. Ibid., 39. With the rise of European Fascism and anti-Semitism and the simultaneous collapse of the British commitment to the Jewish National Home, Avukah grew militant. It agitated in favor of a Jewish state, a "non-minority Jewish center in Palestine." It became a burden on the Zionist Organization of America (ZOA), which took a cautious diplomatic approach toward Britain and the future of Palestine and feared that Avukah was under Communist influence. By the end of 1941, the Executive Committee of the ZOA recommended that recognition of Avukah as the sole Zionist Junior Organization be rescinded. See The Avukah Problem: A Special Report by the American Zionist Youth Commission (New York: American Zionist Youth Commission, 1942), Jewish Archives, Cincinnati. Avukah closed down in 1943, after a majority of its membership had enlisted or been drafted into the armed forces. See Melvin I. Urofsky and David W. Levy, eds., Letters of Louis D. Brandeis, vol. 5 (Albany: State University of New York Press, 1978), 645.

56. Joseph S. Shubow, "When We Lighted the Torch," Avukah Annual 5 (1930): 37, 38.

57. Ibid., 39. With the rise of European Fascism and anti-Semitism and the simultaneous collapse of the British commitment to the Jewish National Home, Avukah grew militant. It agitated in favor of a Jewish state, a "non-minority Jewish center in Palestine." It became a burden on the Zionist Organization of America (ZOA), which took a cautious diplomatic approach toward Britain and the future of Palestine and feared that Avukah was under Communist influence. By the end of 1941, the Executive Committee of the ZOA recommended that recognition of Avukah as the sole Zionist Junior Organization be rescinded. See The Avukah Problem: A Special Report by the American Zionist Youth Commission (New York: American Zionist Youth Commission, 1942), Jewish Archives, Cincinnati. Avukah closed down in 1943, after a majority of its membership had enlisted or been drafted into the armed forces. See Melvin I. Urofsky and David W. Levy, eds., Letters of Louis D. Brandeis, vol. 5 (Albany: State University of New York Press, 1978), 645.

58. Anita Shapira, Herev ha-Yonah [Land and Power] (Tel Aviv: Am Oved, 1992), 141-56. Shapira sees the events of Tel Hai as the first to form "the defensive ethos" in Zionist historiography, according to which the Yishuv was peace seeking and nonbelligerent but at the same time determined to defend its settlements against aggression. According to the myth, the last words of Yosef Trumpeldor, the commander of the small force in Tel Hai, who died in the battle, were, "It is good to die for our country." This statement has become a motto in Israeli education. For a more provocative historical interpretation, see Idith Zertal, "Ha-Meunim veha-Kdoshim: Kinunah shel Martirologiyah Leumit [The Tortured and the Saints: The Establishment of a National Martyrology]," Zmanim 48 (1994): 28; Yael Zerubavel, Recovered Roots: Collective Memory and the Making of Israeli National Tradition (Chicago: University of Chicago Press, 1995).

59. See A. D. Gordon, "On Labor," Avukah Annual 5 (1930): 128. The political sympathies of Avukah also lay with labor Zionism. Max Rhoade, the president of Avukah, observed that "[w]e have set for ourselves . . . the goal of bringing the living creative Palestine of today--Erets Yisrael ha-Ovedet--Laboring Palestine--to the Jewish Youth of America--insofar as we are unable to bring them to Erets Yisrael ha-Ovedet." Max Rhoade, "Avukah Convention," New Palestine, 2 November 1928, 345.

60. Simon appended to the proposal correspondence with the leadership of the Youth Movement in Palestine and with the Keren Kayemet (Jewish National Fund), inquiring about the viability of his project. The responses from Palestine were at best lukewarm. break

61. Palestine Project for Avukah, Avukah's Future (Chicago: Chicago Chapter of Avukah, 1928).

62. Ibid., 7.

61. Palestine Project for Avukah, Avukah's Future (Chicago: Chicago Chapter of Avukah, 1928).

62. Ibid., 7.

63. New Palestine, 11 November 1927, 379, announced that "on Dec. 4th Chicago Avukah will present a Forum and Musicale, the proceeds of which are to go toward the Avukah project in Palestine."

64. Ibid., 13-20 July 1928, 55.

63. New Palestine, 11 November 1927, 379, announced that "on Dec. 4th Chicago Avukah will present a Forum and Musicale, the proceeds of which are to go toward the Avukah project in Palestine."

64. Ibid., 13-20 July 1928, 55.

65. Annual Avukah Report, Yivo Archives, New York, 1928.

66. Not only did the national leadership oppose them, but their correspondence with the institutions of the Yishuv made it clear that there was no enthusiasm for the project in Tel Aviv. Palestine Project for Avukah, Avukah's Future .

67. Shlomo Avinery, Arlosoroff (London: Weidenfeld & Nicolson, 1989), 11-59, 99-112.

68. Miriam Getter, Hayim Arlozorov: Biyografyah Politit [Chaim Arlosoroff: A Political Biography] (Tel Aviv: Ha-Kibuts ha-Meuhad, 1977), 176-81, 227.

69. Simon Agranat, letter to Louis and Mini Orloff, 26 January 1930, Agranat papers, Agranat family, Jerusalem.

70. Ibid.

69. Simon Agranat, letter to Louis and Mini Orloff, 26 January 1930, Agranat papers, Agranat family, Jerusalem.

70. Ibid.

71. "Shvirderlishe Shkhita in Tsfat, A Tsveyte Hevron, 22 Yiden Toit, Wilde Shvatim fun Siriyen Marshiren auyf Palestina," Chicago Yidisher Kuryer, 1 September 1929, 1.

72. "Ganze Yidishe Bafelkerung Antloyft fun Haifa," ibid., 10 September 1929, 1.

73. "Palestine Pool of Blood," Sunday Jewish Courier, English section of ibid., 8 September 1929, 1.

74. "The Ferment in Arabia," ibid., 1 September 1929, 1 (quoting the Chicago Daily News ).

75. Agranat, letter to Louis and Mini Orloff, 26 January 1930.

76. Ibid.

75. Agranat, letter to Louis and Mini Orloff, 26 January 1930.

76. Ibid.

77. Simon Agranat, letter to Louis and Mini Orloff, 23 February 1930, Agranat papers, Agranat family, Jerusalem.

1. After 1948, when Israel gained sovereignty, stationery of Jews would rarely display information in Arabic.

2. Simon Agranat, letter to Louis and Mini Orloff, 10 April 1930, Agranat papers, Agranat family, Jerusalem. Agranat is referring here to the British restrictions on Jewish immigration to Palestine.

3. Simon Agranat, "A Modern Maccabean, The Life and Death of Ephraim Chizik," Avukah Annual 5 (1930): 106.

4. Ibid., 108.

5. Ibid., 106.

6. Ibid., 109.

3. Simon Agranat, "A Modern Maccabean, The Life and Death of Ephraim Chizik," Avukah Annual 5 (1930): 106.

4. Ibid., 108.

5. Ibid., 106.

6. Ibid., 109.

3. Simon Agranat, "A Modern Maccabean, The Life and Death of Ephraim Chizik," Avukah Annual 5 (1930): 106.

4. Ibid., 108.

5. Ibid., 106.

6. Ibid., 109.

3. Simon Agranat, "A Modern Maccabean, The Life and Death of Ephraim Chizik," Avukah Annual 5 (1930): 106.

4. Ibid., 108.

5. Ibid., 106.

6. Ibid., 109.

7. This was up from 83 lawyers at the end of 1921. By 1936 the number jumped to 360. Of the 360, only 112 were Arabs, an indication of the influx of profes- soft

sional Jews coming to Palestine as a result of the British open-door policy and the rise of Fascism in Europe. See Gavriel Shtrasman, Ote ha-Glima: Toldot Arikhat ha-Din be-Erets Yisrael [Wearing the Robes: A History of the Legal Profession until 1962] (Tel Aviv: Hotsaat Lishkat Orkhe ha-Din be-Yisrael, 1984), 161.

8. Ya'acov Halevy (Simon's law partner in the 1930s), interview by the author, Givatayim, Israel, October 1984.

9. Simon Agranat, letter to the editor of Ahdut ha-Avodah, undated, Agranat papers, Agranat family, Jerusalem.

10. See Eli Shaltiel, Pinhas Rutenberg: Aliyato u-Nefilato shel "Ish Hazak" [Pinhas Rutenberg: Life and Times] (Tel Aviv: Am Oved, 1990).

11. The struggle took the British and Turkish governments before the International Court. See Permanent Court of International Justice, "The Mavrommatis Jerusalem Concessions," Collection of Judgments, ser. A, no. 5 (Leiden: A. W. Sijthoff, 1925).

12. "Simon Agranat Memorandum on the Rutenberg Concession," undated, Agranat papers, in the author's files.

13. Thorsten Sellin (editor-in-chief of the Annals ), letter to Mordechai Eliash, 8 September 1932, Agranat papers, in the author's files.

14. Ibid.

13. Thorsten Sellin (editor-in-chief of the Annals ), letter to Mordechai Eliash, 8 September 1932, Agranat papers, in the author's files.

14. Ibid.

15. Harry Viteles, letter to Mordechai Eliash, 18 September 1932, Agranat papers, Agranat family, Jerusalem. The volume was finally published as Palestine: A Decade of Development, Annals of the American Academy of Political Science, vol. 164 (Philadelphia: American Academy of Political and Social Science, 1932).

16. In Palestine, prominent lawyers always found themselves engaged in public affairs. When Simon joined his office, Eliash headed the delegation representing the Yishuv before the International Commission on the Status of the Western Wall.

17. It may well be that the "Yemenite male secretary," whom Simon remembered, later became Eliash's Yemenite law partner (Moshe Kehaty). Shtrasman, Ote ha-Glima, 26.

18. Ibid., 68.

17. It may well be that the "Yemenite male secretary," whom Simon remembered, later became Eliash's Yemenite law partner (Moshe Kehaty). Shtrasman, Ote ha-Glima, 26.

18. Ibid., 68.

19. Harry Sacher and Bernard Joseph, memorandum to the high commissioner, 10 December 1925, file P6/857, Bernard Joseph Archive, Israel State Archive.

20. Shtrasman, Ote ha-Glima, 39. Although Agnon was describing the dusk of the Ottoman period, his description is still telling of the beginning of the Mandatory era.

21. See Assaf Likhovski, "In Our Image: Colonial Discourse and the Anglicization of the Law of Mandatory Palestine," 29 Is. L. Rev. 291 (1995).

22. Moshe Silberg, Bain Ke-Ehad: Asufat Dvarim shebe-Hagut uva-Halakhah [In Inner Harmony: Essays and Articles] (Jerusalem: Magnes Press, 1981), 111.

23. Gad Frumkin, Derekh Shofet Bi-Yerushalayim [A Judge in Jerusalem] (Tel Aviv: Dvir, 1955), 275.

24. "The Jurisdiction of the Civil Courts shall be exercised in conformity with the Ottoman Law . . . and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, and the doctrines of equity in force in England . . . [p]provided always that the said . . . [English law] . . . shall be in force in Palestine so far only as the circumstances of Palestine continue

and its inhabitants . . . permit and subject to such qualification as local circumstances render necessary." Palestine Order in Council, 1922, art. 46, in Laws of Palestine, ed. R. Drayton, vol. 3 (London: Waterlow and Sons, 1934).

25. The case had a long trail of litigation. It started at the district court of Jaffa, then came before the Supreme Court of Palestine, from there to the Privy Council in London and back to the district court, and again on appeal to the Palestine Supreme Court in Jerusalem.

26. P.C.A. 1/35, Faruqi v. Aiyub [ sic ], 2 P.L.R. 390 (1935); C.A. 191/37, Farouqi v. Ayoub, 4 P.L.R. 331 (1937); P.C.A. 30/39, Ayoub v. Farouqi, 8 P.L.R. 116 (1941).

27. Margery Bentwich, Lilian Ruth Friedlander: A Biography (London: Rout-ledge & Kegan Paul, 1957), 23.

28. Shargel, Practical Dreamer .

29. One of her close friends was the noted Zionist activist Henrietta Szold. Bentwich, Lilian Ruth Friedlander, 37.

30. Most of her friends advised her against the move. Cyrus Adler (the scholar and Jewish leader) wrote: "It is difficult to exercise one's judgment on a short visit to the Holy Land. . . . It is a ruined and not too friendly land, to be redeemed, if at all, by the sturdy pioneer amidst many hardships. . . . Judaism in America needs your brave soul and your children too." Ibid., 81. The children learned Hebrew, attended Ha-Re'ali Gimnasium in Haifa, and acquired higher education abroad. Carmel's older brothers studied in Chicago, and Carmel herself graduated from the Froebel Educational Institute in Roehampton, England. In 1936 Lilian founded Beit Daniel, a guest house for artists and musicians, and became a major force in the development of the music scene in Palestine. The Encyclopaedia Judaica does not devote an entry to Lilian (as it does to her father, brothers, and husband), but Leonard Bernstein, in his foreword to her biography, wrote: "Every infant needs a mother; and so does every infant State. Young Israel has had its doting fathers. . . . [T]he world knows these men of passion, pride and dignity. We have heard less about its mothers . . . Lilian Friedlander was such a mother . . . a woman whose great fountain of maternal love was trained on the land she adored. My memories of her are all bathed in a matriarchal glow: I remember a piercing facial beauty, a lofty simplicity, and a steady effluvium of strength and kindness." Bentwich, Lilian Ruth Friedlander, foreword.

31. "Papa's 'Tuntine' (sunshine) was his name for her, and she was the delight of Lilian's father, who called her Peg-o'-my-Heart." Bentwich, Lilian Ruth Friedlander, 37.

32. Simon had relied on one of Friedlaender's essays for a college paper. In 1970 Agranat paid tribute to his father-in-law, quoting from his work in his Who Is a Jew dissent (see discussion on p. 207).

33. The description of Friedlaender's work in the Encyclopaedia Judaica could apply with equal force to that of Agranat's: "His public activity, as well as his writings, were characterized by his ability to see the different sides of the same question and to mediate between them." Encyclopaedia Judaica, s.v. "Israel Friedlaender."

34. Bentwich, Lilian Ruth Friedlander, 112.

35. Ibid.

34. Bentwich, Lilian Ruth Friedlander, 112.

35. Ibid.

36. "The picture that remains uppermost, is the six bridesmaids, such lovely children, in Kate Greenaway dresses of organdy, all assembled in Nita's small room, continue

like a cloud of white and blue. Little Nita [Carmel's cousin] might have stepped out of a Botticelli picture, and Viola like nothing but her attractive self." Ibid., 112-13.

37. See, for example, Judah Magnes's speech at the opening of the Hebrew University's academic year 1929/1930: "One of the greatest cultural duties of the Jewish people is the attempt to enter the promised land, not by means of conquest as Joshua, but through peaceful and cultural means, through hard work, sacrifice, love and with a decision not to do anything which cannot be justified before the world conscience." Encyclopaedia Judaica, s.v. "Judah Magnes." Compare that entry with Agranat's elegy for Ephraim Chizik, written at about the same time.

38. Their first, Israel, was born in 1935; Zilla, in 1939; Hillel, in 1941; Yael (Didi), in 1942; and Ronnie, in 1951.

39. See his description of his fiftieth birthday party: "That event was celebrated 'en famille'--the highlights being a tape-recorded program given by the children, with Hillel orating (remarkably well and in the original) an Antonius speech from Shakespeare's Julius Caesar and Zillah playing beautifully two of my favorite (and sentimental) American songs on the piano. The deus ex machina behind all this was, as usual, the Good Lady Carmel." Simon Agranat, letter to Morris and Mary Schussheim, 24 December 1956, Agranat papers, Agranat family, Jerusalem.

40. Yitzhak Kahan, interview by the author, Haifa, June 1984.

41. Shoshana Klein, letter to Simon Agranat, 7 March 1965, in Gvurot le-Shimon Agranat [Essays in Honor of Simon Agranat], ed. Aharon Barak et al. (Jerusalem: Graf Press, 1986), unnumbered page.

42. Article 2 of the Mandate for Palestine provides, simultaneously, for a Jewish National Home and for safeguarding the rights of the Palestinian (native) population: "The mandatory shall be responsible for placing the country under such political administrative and economic conditions as will secure the establishment of the Jewish National Home . . . and also for safeguarding the civil and religious rights of the inhabitants of Palestine irrespective of race and religion." Max M. Laserson, ed., On the Mandate: Documents, Statements, Laws and Judgments Relating to and Arising from the Mandate for Palestine (Tel Aviv: Igereth, 1937), 41.

43. Chaim Weizmann recalled Lord Passfield's having told him, in 1930, that "there is not room to swing a cat in Palestine." Palestine Royal Commission, Minutes of Evidence Heard at Public Sessions, vol. 1 (London: H. M. Stationery Office, 1937), 36; Shabtai Teveth, Ben-Gurion: The Burning Ground, 1886-1948 (Boston: Houghton Mifflin, 1987), 572.

44. Simon Agranat, letter to Louis and Mini Orloff, 22 May 1930, Agranat papers, Agranat family, Jerusalem.

45. Ha-Va'ad ha-Leumi. The local Jewish committee--Va'ad ha-Kehilah--was also involved. The lawyers were paid five English pounds per month, a small sum not sufficient to cover costs. They were expected and agreed to do the work as a national service. Most of the illegal immigrants in the Safed court were Syrian Jews. Yehuda Shachrour, letter to the author, 11 July 1995.

46. Ordinarily, the illegal immigrant would be sentenced to three months in jail. Next, the attorney would approach the chief of police and the head of the C.I.D. (the security services of Mandatory Palestine), who had discretion to release the prisoners on bail, pending deportation orders.

47. Ironically, Agranat himself was not a Palestinian citizen at the time. He continue

also recalled making ludicrously legalistic arguments, when the case seemed utterly hopeless. In one case, when the immigrant was caught close to the border and not far from a police station, he argued that one was not obliged to obtain a visa prior to arrival: "[I]t is perfectly conceivable that the defendant was heading toward the police station, after having crossed the border, in order to request a visa." To his astonishment, the court accepted the argument. But visa was denied, and the person was duly deported. "The operation was successful; the patient died," Agranat apologetically said in summation.

48. The high commissioner decided to free the detainees on a bail of 100 English pounds per person--an exorbitant amount. Members of the public volunteered to sign as collaterals. Simon, along with Moshe Goldberg, who owned an automobile, drove to the prison on a rainy Friday afternoon, just before the Sabbath began, to inform the prisoners that their release was imminent and that they should terminate their hunger strike.

49. Arlosoroff, head of the Political Department of the Jewish Agency, with whom Simon had crossed paths during the days of Avukah and in the debate over the legislative council for Palestine, was assassinated as he was strolling with his wife on the Tel Aviv beach. There followed an acrimonious upheaval, with the Left blaming the Right for the assassination. The question is still an open wound in Israel. See Shabtai Teveth, Retsah Arlozorov [The Murder of Arlosoroff] (Jerusalem: Schocken, 1982).

50. The other attorney was Zeev Argaman. Assisting the committee was Yitzhak Kahan, who later became Simon's clerk.

51. For historical background on Brit Shalom, see Aharon Kedar, "Brith Shalom--The Early Period (1925-1928)," in Pirkey Mehkar be-Toldot ha-Tsiyonut [Studies in the History of Zionism], ed. Yehuda Bauer, Moshe Davis, and Israel Kolatt (Jerusalem: Ha-Sifriyah ha-Tsiyonit, 1976), 224.

52. Babbitt was the conformist hero of Sinclair Lewis's novel Babbitt (New York: Harcourt Brace Jovanovich, 1922).

53. Palestine Royal Commission, Report: Presented by the Secretary of State for the Colonies to Parliament by Command of His Majesty, July 1937 (London: H. M. Stationery Office, 1937), 120. "[A]bout 43 per cent of the qualified population were not Palestinian citizens. The Jews have not availed themselves readily of the opportunity . . . and this is accounted for by the fact that their chief interest is in the Jewish community itself and allegiance to Palestine and its Government are minor considerations to many of them" (p. 332).

54. "The Department of State in Washington has informed the Consulate General that you lost the nationality of the United States on March 17, 1941 . . . by acquiring Palestine citizenship on that date. A certificate of Loss of Nationality was . . . approved by the Department of State on September 20, 1941." American Consul in Jerusalem, letter to Simon Agranat, Agranat papers, Agranat family, Jerusalem. Until the 1960s, loss of citizenship occurred automatically once it was established that a citizen had obtained naturalization in a foreign state. Since that time, a consensus has evolved that American citizens have a constitutional right to remain citizens unless they voluntarily assent to expatriation. See, generally, Alan G. James, "Expatriation in the United States: Precept and Practice Today and Yesterday," 27 San Diego L. Rev. 853 (1990). The American-born Carmel did retain her American citizenship, but Simon's expatriation could have been in- soft

terpreted as casting doubts on the validity of her citizenship because she was now married to a foreign national, an act that also entailed expatriation, according to American law at the time.

55. Arthur Koestler, Thieves in the Night: Chronicle of an Experiment (New York: Macmillan, 1946), 235. Agranat directed my attention to this description. It was common knowledge in Haifa legal circles at the time that Koestler was describing the courtroom in which Agranat and Landau held trials.

56. "Shoftey Shalom 'Britim' ve-Yehudim ['British' and Jewish Magistrates]," 2 Ha-Praklit 98 (1945); "Shoftim Britim ve-Erets Yisraelim [British and Palestinian Judges]," 3 Ha-Praklit 164 (1946). In the 1940s there were a number of changes in the jurisdiction of Palestinian magistrates. See, generally, "Harhavat Samkhutam Shel Shoftey ha-Shalom ha-Erets Yisraeliim [Wider Jurisdiction for Palestinian Magistrates]," Ha-Praklit, April 1944, at 5; "Bitul ha-Zkhut le-Berur Shoftim [The Abolition of the Right to Choose Judges]," 4 Ha-Praklit 197 (1947).

57. At the insistence of Carmel's mother the family moved to Zikhron Ya'acov, to escape the bombing. They were joined by the families of Agranat's two good friends, Naftali Lifshits and Jacob S. Shapiro. The men commuted between Haifa and Zikhron Ya'acov.

58. Agranat and his colleague, Moshe Landau, served as privates. Jacob Solomon, another Jewish lawyer, was bombardier, and Jacob S. Shapiro was lance bombardier.

59. The Court could thereby save the cost of interpreting the opinions in order to make them accessible to the English- and Arab-speaking members of the legal community.

60. For a sample of Agranat's unpublished opinions as a magistrate, see C.A. 6776/40, Abramowitz v. Argamann; C.A. 4261/41, Gorodisky v. Shwartzbord; C.A. 1152/42 (names of parties not mentioned); C.A. 2704/43, Dayan v. "Haver"; C.A. 2853/43, Dikstein v. Glazer, Agranat papers, Agranat family, Jerusalem.

61. "In the paper which Cohen delivered at the first Conference of Legal and Social Philosophy, he demonstrated--to my mind, effectively--the falsity of what he called 'the phonograph theory of the judicial function,' according to which 'the judge merely repeats the words that the law has spoken to him'. . . . [T]oday most jurists would, I think, look upon that thesis as commonplace, yet at the time when Cohen advanced it, it was anathema to legal orthodoxy." Simon Agranat, "The Philosophy of Morris R. Cohen, A Symposium: Reflections on the Man and His Work," 16 Is. L. Rev. 282, 287 (1981). For an analysis of the challenge to legal orthodoxy in the United States, see Horwitz, Transformation .

62. "I remember that . . . he was unable to obtain a copy of Holmes' Common Law [in Palestine] and I found a copy and sent it to him." Fred H. Mandel, letter to the author, 8 February 1983.

63. Felix Cohen, "Transcendental Nonsense and the Functional Approach," 35 Colum. L. Rev. 809 (1935). See also Agranat's 1973 characterization of the Mandatory legal system as a "closed system," Simon Agranat, "The Supreme Court in Action," Jerusalem Post, 6 May 1973.

64. The fact that he continued to write long opinions after his elevation to the top of the judicial pyramid does not necessarily cast doubt on this explanation. It may well be that by then the practice had become second nature to him, difficult if not impossible to shed. break

65. "Shwartz v. Hoiser," 10 P.L.R. 170, 172 (1943). "How do you like my excessive modesty?" Agranat asked, after showing me the quotation. "I don't brag about myself, but I admit that I am good."

66. The program, announced in the Biltmore Hotel in New York, included the opening of the gates of Palestine to mass Jewish immigration, an active role in the Palestine economy for the Jewish Agency, and the eventual establishment of a Jewish commonwealth in a part of Palestine.

67. Palestine Gazette, Supp. 2, 1055 (1945).

68. Yehoshua Porath and Yaacov Shavit, eds., Ha-Historyah shel Erets Yisrael: Ha-Mandat Veha-Bayit ha-Leumi [The History of Palestine: The British Mandate and the Jewish National Home] (Jerusalem: Keter, 1981), 76; Joseph Heller, "Meha-Shabat ha-Shhorah la-Halukah, Kayits 1946 ki-Nekudat mifne be-Toldot ha-Tsiyonut [From the 'Black Sabbath' to Partition (Summer 1946 as a Turning Point in the History of Zionist Policy)]," Zion 43 (1978): 314, 331-38.

69. "Mi-Yom le-Yom [From Day to Day]," Ha-Arets, 2 July 1946, 2.

70. See chap. 6, n. 14, and chap. 10, n. 8.

71. The British generally refrained from utilizing native judges in their effort to crush the rebellion. Native judges could not be trusted to side with British interests in such matters. Agranat was seldom called on to preside over trials of a political nature and hence did not experience the dilemma between justice and law in its most acute form.

72. Benny Morris, The Birth of the Palestinian Refugee Problem, 1947-1949 (Cambridge, England: Cambridge University Press, 1987), 19-23; Simha Flapan, The Birth of Israel: Myth and Realities (New York: Pantheon Books, 1987), 187-99; Ilan Pappe, The Making of the Arab-Israeli Conflict, 1947-1951 (London: I. B. Tauris, 1992), 102-34. For a description from the Palestinian perspective, see Walid Khalidi, "The Fall of Haifa," Middle East Forum 35 (1959): 22.

73. United States, Department of State, Foreign Relations of the United States 1947, vol. 5, The Near East and Africa (Washington, D.C.: U.S. Government Printing Office, 1971), 1327.

74. "Mevakshim Hahashat Berur Mishpatim Lifney Ha-Pinuy [Requests for Expedited Trials before the Evacuation]," Ha-Arets, 23 October 1947, 3.

75. "According to British Military Intelligence, 'the hurried departure of Ahmad Bey Khalil . . . is a very significant illustration of the opinion of the local Arabs as to the outcome of an extensive Jewish operations at present.'" Morris, Palestinian Refugee Problem, 77.

76. Cable from the foreign minister of Egypt to the U.N. Security Council, 15 May 1948: "Egyptian forces entered Palestine for the purpose of restoring security and order." Shmuel Ettinger, Toldot Am Yisrael [History of the Jewish People], ed. H. Ben-Sasson, vol. 3 (Tel Aviv: Dvir, 1969), 335.

1. Moshe Landau, "Al ha-Shofet Shimon Agranat: Be-Nimah Ishit" [About Justice Simon Agranat: A Personal Recollection], in Barak et al., Gvurot, 1, 2.

2. See Ruth Bondy, Felix: Pinhas Rozen u-Zmano [Felix: Pinchas Rosen and His Time] (Tel Aviv: Zmora-Bitan, 1990), 385-86, 417-18. break

3. Jerusalem became a center of political activity only later. At the time, Hebrew Jerusalem was under Jordanian siege, and all government business centered in Tel Aviv. The Partition Resolution designated Jerusalem as an international city. See, generally, Motti Golani, "Zionism without Zion: The Jerusalem Question, 1947-1949," Journal of Israeli History 16 (1995): 39.

4. Jacob S. Shapiro, interview by the author, Tel Aviv, January 1984.

5. "Ha-Yakum Bet ha-Din ha-Elyon ha-Kavua al Yedei Moetset ha-Memshalah ha-Zmanit? [Will the Provisional Government Establish a High Court?]," Al ha-Mishmar, 15 July 1948, 1; "Herkev Bet ha-Din ha-Elyon Huavar le-Va'adat ha-Va'adot [Composition of the Supreme Court Forwarded to the Steering Committee]," Ha-Arets, 11 July 1948, 1; Protocols of the provisional government, 14 July 1948, pp. 44-45, on file with the author.

6. The list of five candidates included three prominent lawyers (Moshe Smoira, Menachem Dunkleblum, and Isaac Olshan), one representative of the religious sector (Simha Assaf, who did not have a law degree), and one judge (Agranat). Of the three lawyers, two (Olshan and Smoira) had close ties to MA-PAI, and one (Dunkleblum, chairman of the Jewish Bar Association of Palestine) was a centrist. The insistence on Judge Cheshin's appointment could be attributed either to the fact that he was a more senior and experienced judge than Agranat or to his reputation as a nationalist (thereby making the list more politically balanced)--or both.

7. The proceedings against Shams are themselves indicative of the turmoil that overtook Israeli society at that point. The judge was put on trial by the Haganah. Obviously, considerations of the separation of powers and the integrity of the judiciary were not yet a part of the public ethics in Israel. Agranat, who told me the story, remembered objecting to this process. Azoulai was promoted to the presidency of the district court once Agranat had left for the Supreme Court. It is widely thought that the only Sephardi minister in the government, Bechor Shetreet, had held hostage the permanent appointment of Justice Moshe Silberg to the Supreme Court until the government agreed to Azoulai's promotion.

8. The red ribbons signaled the wearer's competence to adjudicate murder trials. The custom of wearing a gown was preserved in Israel, but the red ribbons had been removed.

9. "Nesi Bet ha-Din ha-Mehozi Mevatel Psak Din Briti [The President of the District Court Invalidates a British Decision]," Ha-Arets, 31 August 1948, 4.

10. It is, however, quite likely that once the other branches of the government were firmly established in Jerusalem, the Court would have naturally followed suit. The point here is that given the uncertain status of Jerusalem at the time, the justices preferred the Tel Aviv location, and they would have had it had the Court been higher on the government's priority list.

11. Pnina Lahav, "The Supreme Court of Israel: Formative Years, 1948-1955," Studies in Zionism 11 (1990): 45, 49.

12. Ibid.

11. Pnina Lahav, "The Supreme Court of Israel: Formative Years, 1948-1955," Studies in Zionism 11 (1990): 45, 49.

12. Ibid.

13. "We declare that . . . until the establishment of . . . the Constitution which shall be adopted . . . not later than 1 October 1948, the People's Council shall act as a Provisional Council of State." Declaration of the Establishment of the State of Israel, 14 May 1948, 1 L.S.I. 3. break

14. Isaac Olshan, Din u-Dvarim: Zikhronot [Memoirs] (Jerusalem: Schocken, 1978), 213.

15. This was a temporary appointment. Agranat became a permanent member on 28 December 1949.

16. Knesset Members (Immunity, Rights and Duties) Law, 5711-1951, 5 L.S.I. 149.

17. Judges Law, 5713-1953, 7 L.S.I. 124.

18. Olshan, Din u-Dvarim, 241-42, 349-53.

19. For a development of this thesis, see Ehud Sprinzak, Ish ha-Yashar be-Enav: Illegalizm ba-Hevrah ha-Yisraelit [Every Man Whatsoever Is Right in His Own Eyes: Illegalism in Israeli Society] (Tel Aviv: Sifriyat Poalim, 1986).

20. Yosef Heller, LEHI: Idiologyah u-Politikah 1940-1949 [LEHI: Ideology and Politics, 1940-1949], vol. 2 (Jerusalem: Keter, 1989), 435-62.

21. There was also fear that, following the assassination, Bernadotte's plan would acquire more power because it would be viewed as the late count's will.

22. In June 1948, when the Altalena, an Irgun ship loaded with arms ammunition, arrived, Ben-Gurion insisted that the shipment be handed over to the Israel Defense Forces (IDF). He interpreted the arrival of the Altalena as "a threat to his authority and the legitimacy of the new government." Amos Perlmutter, The Life and Times of Menachem Begin (Garden City, N.Y.: Doubleday, 1987), 233. Indeed, it seems that a putsch was contemplated by certain quarters at both the Irgun and the LEHI (Stern Gang) leadership (ibid., 232). After nerve-wracking negotiations between the IDF and Menachem Begin, the Irgun's chief commander, the Altalena was hit by cannon fire and burst into flames. The Irgun was subsequently dissolved, and its members joined the IDF as individuals (ibid., 233). Toward the end of September 1948, Ben-Gurion had also accomplished the controversial dissolution of the Palmah, the kibbutz movement's ideologically left-leaning elite combat units, for fear that the Palmah would not be unequivocally loyal to Israel's civilian government under his leadership. Anita Shapira, Mi-Piture ha-Rama ad Peruk ha-Palmah: Sugiyot ba-Maavak al ha-Hanhagah ha-Bithonit [The Army Controversy, 1948: Ben Gurion's Struggle for Control] (Tel Aviv: Ha-Kibbutz ha-Meuhad, 1985), 50-57.

23. "Camps of LEHI in Jerusalem were surrounded and occupied, persons found in camps were arrested and substantial quantities of arms and ammunition were confiscated." "Conclusions of the Commission to Assess the Report Submitted by the Solicitor General to the Government of Sweden in the Matter of the Assassination of Count Folke Bernadotte," Bernadotte Report, 1, in the author's files.

24. Ibid.

23. "Camps of LEHI in Jerusalem were surrounded and occupied, persons found in camps were arrested and substantial quantities of arms and ammunition were confiscated." "Conclusions of the Commission to Assess the Report Submitted by the Solicitor General to the Government of Sweden in the Matter of the Assassination of Count Folke Bernadotte," Bernadotte Report, 1, in the author's files.

24. Ibid.

25. Prevention of Terrorism Ordinance, 5708-1948, 1 L.S.I. 76.

26. Ironically, when the right-wing Likud (descendant of the Irgun and LEHI) came to power, its leaders cleared the dust off the antiterrorism ordinance and turned it into a weapon against the Palestine Liberation Organization (PLO). Prevention of Terrorism Ordinance (Amendment) Law, 5740-1980, 34 L.S.I. 211; Hok le-Tikun Pkudat Meni'at Teror (Mispar 2), 5746-1986 [Amendment to the Prevention of Terrorism Law (No. 2)], 1985/6 S.H. 219.

27. Mo'etset ha-Medinah ha-Zmanit [Provisional State Council], vol. 1, 19th session at 17 (23 September 1948). break

28. Bernadotte Report, 28, 42, 55, 62. The report is also discussed in Kati Marton, A Death in Jerusalem (New York: Pantheon Books, 1994), 246-50.

29. For a discussion of the relationship between Israel's government and LEHI in the summer of 1948, see Ilan Amitzur, Bernadotte in Palestine, 1948: A Study in Contemporary Humanitarian Knight-Errantry (London: Macmillan, 1989), 210-11. At the time, there was a feeling that the government did not do all it could to bring the perpetrators to justice. See Gideon Rafael, Destination Peace: Three Decades of Israeli Foreign Policy: A Personal Memoir (New York: Stein & Day, 1981), 18. In the recently released cabinet protocols from this period, the sections pertaining to the cabinet's discussions of the Bernadotte affair are censored, thereby implying that "the government is concealing information about the matter. A few items mentioned in this context about LEHI were also censored. Question: did the cabinet know who assassinated Bernadotte and did it conceal it?" Tom Segev, "Ha-Sodot ha-Rishonim [The First Secrets]," Ha-Arets, 3 February 1995, 35.

30. This conclusion was supported by another member of the commission, Justice Haim Cohn (then solicitor general), interview by the author, Jerusalem, June 1984.

31. See also Yonathan Shapiro, Ilit le-Lo Mamshikhim: Dorot Manhigim ba-Hevrah ha-Yisraelit [An Elite without Successors: Generations of Political Leaders in Israel] (Tel Aviv: Sifriyat Poalim, 1984), 107-25.

1. H.C. 16/48, Brun v. Prime Minister and Minister of Defense, 1 P.D. 109, 112 (1948). Emphasis added. On the panel with Smoira sat Olshan and Dunkleblum; the three were the troika that led the Court.

2. Dan Horowitz and Moshe Lissak, Origins of the Israeli Policy: Palestine under the Mandate, trans. Charles Hoffman (Chicago: University of Chicago Pres, 1978), 131.

3. The confiscation was limited and did not include passage of title. Among those who benefited from the confiscations were the attorney general and a few judges. In interview, Agranat emphasized that he loathed the procedure and was determined not to resort to it, even though the Ministry of Justice did indicate that he could benefit from it should he need housing when he moved from Haifa to Jerusalem. The issue of confiscation of Arab land should not be confused with the one discussed here. Ian Lustick, Arabs in the Jewish State: Israel's Control of a National Minority (Austin: University of Texas Press, 1980), 173; David Kretzmer, The Legal Status of the Arabs in Israel (Boulder, Colo.: Westview Press, 1990), 49-69.

4. H.C. 10/48, Zeev v. Gubernik, 1 P.D. 85, 88-89 (1948); "The provisional state council is the superior institution in whose jurisdiction lies the discretion to prefer the needs of public security over individual rights," Brun, 112. See also Marbury v. Madison, 5 U.S. 137 (1803).

5. Amnon Rubinstein, Ha-Mishpat ha-Konstitutsyoni shel Medinat Yisrael [The Constitutional Law of the State of Israel] (Jerusalem: Schocken, 1991), 44-45; Ruth Gavison, "The Controversy over Israel's Bill of Rights," 15 Israel Yearbook on Human Rights 113 (1985). break

6. Prevention of Terrorism Ordinance, 5708-1948, 1 L.S.I. 76.

7. See for example, Itzhak Zamir, "Labour and Social Security," in Studies in Israel Legislative Problems, ed. Gad Tedeschi and Uri Yadin, Scripta Hierosolymitana (Jerusalem: Magnes Press, Hebrew University, 1966), 298.

8. The very first case to be decided by the Court was the appeal of an Englishman who had been convicted of spying. The hearing took place in a charged and volatile atmosphere, hypersensitive to "spies and traitors." The acquittal, a direct rejection of the position of the government, was accomplished through a narrow reading of the Criminal Code and a meticulous evaluation of the evidence. This methodology set the boundaries of judicial intervention. See Cr.A. 1/48, Sylvester v. Attorney General, 1 P.D. 5 (1948).

Later, the Court overturned the government's decision to end the institution of "petition writers," which deprived a whole group of people of their livelihood. The government's decision was well intentioned and typical of the period. The "petition writers," a part of the oriental landscape, were a go-between the citizenry and the bureaucracy. Their elimination thus signified planning and modernization, an end to the age of undue influence. The Court held that the "right to pursue an occupation" was a "natural right" that could not be taken away from a citizen without an authorizing statute, through administrative fiat. See H.C. 1/49, Bezerano v. Minister of Police, 2 P.D. 80 (1949). See also H.C. 144/50, Sheib v. Minister of Defense, 5 P.D. 399 (1951), where the Court invalidated the dismissal of Israel Eldad Sheib, a LEHI leader, from his position as an educator, by Prime Minister and Secretary of Defense Ben-Gurion.

9. Olshan had been a partner at Eliash's law firm, where Agranat had clerked in the early 1930s. See discussion on p. 49.

10. In one of Agranat's first opinions, decided 28 February 1949, he expressed an understanding for the need to use emergency powers in violation of civil rights and refused to interfere with a confiscation order:

Everyone knows that when this [emergency] statute was enacted (May 1948) it was a few days after we declared independence--when the state was fighting to defend itself against enemy armies which had attacked it from almost all sides. It was, in fact, a situation of emergency in the full sense of the term. Section 9 was designed . . . to invest full authority in the . . . [executive] to act in order to defend the state, the public security and the . . . essential services, without facing any obstacle or hindrance. . . . [I]t would be a serious harm to the above purpose--to the point of foolishness--if we [gave the statute a narrow interpretation]. (H.C. 9/48, Selinger v. Commander of the Dan Region, 2 P.D. 190, 195 [1949]).

In H.C. 37/49, Goldstein v. Custodian of Property of Missing Persons, 2 P.D. 716, 729 (1949), decided 11 September 1949, Agranat held that a governmental entity can evacuate a person from property only through legal means, even if that person took hold of that property through illegal means. The above is a sample of Agranat's opinions during the period under discussion.

11. H.C. 95/49, Al-Couri v. Chief of Staff, 4 P.D. 34A (1950).

12. "Two Jews were killed and one is missing as a result of Arab attacks in the Gaza area today. A truck on the way to Negba settlement from Gath was ambushed and Ernst Miller, an immigrant from Chile, was killed and another reported missing. Later, a party that set out from Negba to search for the missing man was en- soft

gaged by an Arab band and Moshe Litvak was killed." "Two Killed in Attack in South," Palestine Post , 7 December 1947, 1.

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid.

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid.

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid.

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid.

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid.

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid.

19. Amos Shapira, "Judicial Review without a Constitution: The Israeli Paradox," 56 Temple L. Q. 405, 417-26 (1983).

20. Karl Llewellyn's distinction between formal-and grand-style opinions and their respective role in the development of the law is relevant here. Israeli Supreme Court opinions of the 1950s were written in the formal, not the grand, style. Agranat's opinions, written in the grand style, were clearly exceptional in the Israeli judicial landscape. See Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little, Brown, 1960), 62.

21. Protocol in the author's files.

22. On 17 February 1952, one day before Cr.A. 95, 99/51, Podamsky v. Attorney General , 6 P.D. 341 (1952) was argued and six weeks before the Podamsky opinion was delivered, Justice Olshan rebuked the government for having repealed a license previously granted to open an ice-cream factory, on the ground that such a factory was not vital to the state: "I doubt whether members of the civil service in our state . . . understand their [responsibility]. . . . [T]hey have to follow certain principles, tantamount to first principles, such as: every citizen is innocent until otherwise proven [guilty], justice should be done and also seen. . . . [E]lementary justice requires that before a decision is reached the citizen be granted the opportunity to explain so as to remove doubts. We are convinced that in this case this was not done." Olshan's emphasis. The Court, however, only partially granted the petition. See H.C. 113/52, Sax v. Minister of Trade and Industry , 6 P.D. 696, 703 (1952).

Agranat had personal reasons for being aggravated with the bureaucracy as well. On 16 April 1954 he wrote the following letter (on file with the author) to the customs officials:

[L]ast Saturday we celebrated my son Hillel's Bar Mizvah. At the same time, I received a notice . . . that a parcel containing a Parker fountain pen 51, and a mechanical pen, sent to him by my uncle . . . a Chicago resident . . . has arrived, and that I should pay duty in the sum of 39.305 Israeli pounds. All would agree that this sum is much higher than the value of the gift. Indeed, it is a wonder that when an American Jew sends his relative here a Bar Mizvah gift, he [should pay such a high fee]. . . . It is hard to accept the thought that the authorities in the state of Israel shall turn their back to this typical Jewish institute [the Bar Mitzvah] and require a sum so high as to force me to return the gift to its sender. I hope that your honor will exempt the parcel from the above said taxes.

23. Podamsky.

24. Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," 23 Yale L. J. 16 (1913); Wesley Newcomb Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial Reasoning," 26 Yale continue

L. J. 710 (1917). Hohfeld's work was incorporated into John William Salmond, Jurisprudence , 10th ed. (London: Sweet and Maxwell, 1947), 238.

25. The judge issuing the detention order on 1 September 1950 had jurisdiction to detain the prisoners for a period of only fifteen days. Hence, by 15 October (the day these events took place) the detention order had expired, and the prisoners were free men. Podamsky , 346.

26. The problem of law enforcement was so acute that Prime Minister Ben-Gurion, in a broadcast speech to the nation on the occasion of Israel's first anniversary, devoted a whole paragraph to it, emphasizing the need to change national attitudes toward the judge and the policeman: "In exile, and for a long time in our own land, we saw the alien judge and policeman--as a hostile enemy. With independence, we have the opportunity to . . . see in the agents of the law and its guardians loyal friends of the people. . . . In particular, a difficult and heavy responsibility rests on the young police force." Luah ha-Arets li-Shnat Tashay [Ha-Arets Yearbook, 1949], 300. The program of austerity and rationing, introduced by the government in an effort to rebuild the economy, caused a black market to flourish and an almost universal violation of the austerity laws. In addition, the large influx of immigrants, embattled and disoriented, caused significant law-enforcement problems. See Tom Segev, 1949: The First Israelis (New York: Free Press, 1986), 297-323.

27. Criminal Code Ordinance, 1936, Palestine Gazette , 1936, Supp. 1, 285, 316-17.

28. Podamsky , 353.

29. Justices Cheshin and Assaf concurred. The Court also overturned the conviction for carrying a weapon without license. In the indictment the appellants were charged not with this offense but rather with a violation of section 66(a) of the Criminal Code (carrying a weapon for the purposes of committing treason against the government). The district court decided that even though section 66(a) did not apply, it had jurisdiction to convict the appellants of carrying a weapon without a license. The Court held that section 66(a) had already been held as implicitly repealed by a new law and that the district court could not substitute a valid offense for one which was void. Ibid., 346-50.

30. Ibid., 354.

29. Justices Cheshin and Assaf concurred. The Court also overturned the conviction for carrying a weapon without license. In the indictment the appellants were charged not with this offense but rather with a violation of section 66(a) of the Criminal Code (carrying a weapon for the purposes of committing treason against the government). The district court decided that even though section 66(a) did not apply, it had jurisdiction to convict the appellants of carrying a weapon without a license. The Court held that section 66(a) had already been held as implicitly repealed by a new law and that the district court could not substitute a valid offense for one which was void. Ibid., 346-50.

30. Ibid., 354.

31. In Hebrew this second category appeared as "liberty rights"; that is, the term right was used for this category as well as for the first one.

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid.

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid.

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid.

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid.

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid.

37. "A homeowner empowering another to sell his house invests in him the power to deny the homeowner's right in the property." Ibid.

38. Ibid. The significance of this statement lies in its emphasis on the premise of the coequality of the branches of the government and the concomitant assumptions that executive actions not warranted by law are ultra vires. These should be read in the context of the attack on judges in the Knesset that took place at about the same time.

39. Ibid., 359. break

37. "A homeowner empowering another to sell his house invests in him the power to deny the homeowner's right in the property." Ibid.

38. Ibid. The significance of this statement lies in its emphasis on the premise of the coequality of the branches of the government and the concomitant assumptions that executive actions not warranted by law are ultra vires. These should be read in the context of the attack on judges in the Knesset that took place at about the same time.

39. Ibid., 359. break

37. "A homeowner empowering another to sell his house invests in him the power to deny the homeowner's right in the property." Ibid.

38. Ibid. The significance of this statement lies in its emphasis on the premise of the coequality of the branches of the government and the concomitant assumptions that executive actions not warranted by law are ultra vires. These should be read in the context of the attack on judges in the Knesset that took place at about the same time.

39. Ibid., 359. break

40. It is important, however, to reemphasize that the appeal was partially successful, in that the Court overturned the conviction for holding weapons without a license. Thus, even in terms of the result alone, the case cannot be seen as a straight triumph for the police.

41. Sax , 703.

42. "It should be clear that in our discussion we [relied on] . . . a few principles which are relevant to our subject matter and which were derived from . . . writings of authoritative legal scholars--as follows:--Salmond, Jurisprudence , 10th ed. chapter 10; Paton, Jurisprudence (1946) part III chapter 10; the article Legal analysis and Terminology by Corbin, published in Hall's Readings in Jurisprudence , p. 471." Podamsky , 354.

43. Hence Agranat's dictum that had they petitioned the Court for habeas corpus they probably would have won their freedom through legal means. Ibid., 361.

44. Ibid.

43. Hence Agranat's dictum that had they petitioned the Court for habeas corpus they probably would have won their freedom through legal means. Ibid., 361.

44. Ibid.

45. Mitchell Cohen, Zion and State: Nation, Class and the Shaping of Modern Israel (New York: Basil-Blackwell, 1987), 201.

46. This is amply clear when one looks at the sources that inspired the model and also at the various examples offered by Agranat, mostly related to issues of private law.

47. Joseph W. Singer, "The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld," 1982 Wis. L. Rev. 975, 1057.

48. Ibid., 984.

47. Joseph W. Singer, "The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld," 1982 Wis. L. Rev. 975, 1057.

48. Ibid., 984.

49. I am indebted to Morton J. Horwitz for helping me clarify this relationship between Podamsky and American law.

50. For a discussion of Israeli legal education in its formative period, see Asher D. Grunis, "Legal Education in Israel: The Experience of Tel-Aviv Law School," 27 J. Legal Ed. 203 (1975).

51. There were, however, legal consequences to the categorization of the policemen's actions as liberty. It precluded a criminal or civil charge against the police for such actions. It should also be mentioned that the Israeli legal academy was enchanted by Hohfeld, whose model was taught extensively in introductory courses in jurisprudence as the epitome of legal philosophy.

52. It may well be that the pragmatic Israelis had no patience with the highly analytical concepts embedded in the opinion. Shortly thereafter, when Israeli Supreme Court opinions were proudly translated into English to show the world the fruit of Israeli judicial labor, Podamsky was not included.

53. Indeed, Agranat himself returned to his Podamsky opinion in 1956 and introduced to Israel's legal landscape the fourth category put forward by Hohfeld, immunities. C.A. 22/56, Cohen v. Ministry of Defense , 10(2) P.D. 1375 (1956).

54. Other Agranat opinions related to civil liberties at this time concerned Israeli Arabs, particularly their right to stay in Israel and their freedom of movement, and the government's often rough treatment of the right wing and of free speech. For example, in H.C. 112/52, Khalf and Issa Halil Khalf v. Minister of Interior , 7 P.D. 185 (1953), Agranat rejected a challenge to a deportation order. He did, however, urge the minister of the interior to let the petitioner stay in Israel. The petitioner, a seventeen-year-old, had been a student in Lebanon during the 1948 war, had no relatives in Lebanon, and had a large family in Israel. In H.C. continue

46/50, Al-Ayoubi v. Minister of Defense , 4 P.D. 222 (1950), Agranat sustained an order limiting the right to travel of an Israeli Arab. The petitioner asserted that he was sick and in need of relocating to Jaffa, where he could obtain medical treatment. Agranat held that the military governor had acted within his powers when he decided to confine the petitioner to his village on the grounds of danger to the public peace and that the governor was not obliged to disclose his reasons in court. Agranat, however, recommended that the governor reconsider his order. But in H.C. 183/52, Abu Gosh v. Minister of Interior , 6 P.D. 862 (1952), Agranat dissented from a decision to sustain a deportation order on the ground that the petitioner left during the war "out of his own free will." Agranat held that there was no free will, because the petitioner, being known for his help to the Israeli forces, was in real danger of retribution. Similarly, in H.C. 8/52, Moustafa Saad Bader v. Minister of Interior , 7 P.D. 366 (1953), Agranat held three deportation orders against an Israeli Arab as invalid on grounds of due process and deployment of irrelevant considerations.

In Cr.A. 37/50, Sternhal v. Attorney General , 6 P.D. 119 (1952), Agranat upheld a conviction for contempt of court. Appellant Sternhal was convicted for having written in a letter to the minister of justice that, "because there is in the Supreme Court an atmosphere of fear of lawyers, there must be [a greater fear] of [judges in the rabbinical courts] because they have a connection to the court in Heaven." In Cr.A. 139/52, Attorney General v. Amos Keynan , 7 P.D. 619 (1953), Agranat rejected the prosecution's appeal of the acquittal of a defendant who was known as a former member of LEHI. The appellee was charged with placing a time bomb near the residence of former Minister of Transportation David Zvi Pinkas on 22 June 1952. Agranat spoke at length about the significance of the right to remain silent and then, refusing to interfere with the holding of the district court that the appellee, a journalist, did not have to testify about a telephone message he had received concerning the bomb, explaining that it was "a professional secret, that he should not divulge to others, including to the police." It was, probably, the first recognition of a reporter's privilege in Israel. Ibid., 644-48. The above is a sample of Agranat's opinions during this period.

55. A bill on the judiciary was presented to the Knesset on 26 February 1951, 8 Divre ha-Knesset [Israeli Parliamentary Protocol], 1176 (1951). It was passed to the Constitution, Statutes and Law Committee.

56. From its inception and until 8 October 1951, the Ministry of Justice was in the hands of the Progressive Party. A crisis related to a disagreement between the government and the Knesset about elementary-school education led to the organization of a new government in which the Progressive Party did not participate. During this period Bernard Joseph, known in Israel by his Hebrew name, Dov Yoseph, served as minister of justice. The Progressive Party returned to the government on 23 December 1952, and the Ministry of Justice was returned to Pinhas Rosen, who had held it previously. See Gad Yaacobi, Ha-Memshalah [The Government] (Tel Aviv: Am Oved & Zmorah, Bitan, Modan, 1980), 341.

57. 11 Divre ha-Knesset , 1115-29 (1952).

58. Ibid.

59. Ibid., 1116.

57. 11 Divre ha-Knesset , 1115-29 (1952).

58. Ibid.

59. Ibid., 1116.

57. 11 Divre ha-Knesset , 1115-29 (1952).

58. Ibid.

59. Ibid., 1116.

60. After observing that Israel's press is licentious and is damaging the inter- soft

ests of the state, Joseph continued: "It is true that our financial situation is bad, but it is not necessary to publicize it so that the enemy will know." "Ha-Hok al Tkifat Shotrim Hu'avar la-Va'adah [The Law of Assault on Policemen Was Transferred to the Committee]," Ha-Arets , 25 June 1952, 2.

61. Olshan, Din u-Dvarim , 244.

62. Elyakim Rubinstein, Shoftey Erets [Judges of the Land] (Jerusalem: Schocken, 1980), 98.

63. On grounds of separation of powers. Ibid.

64. 11 Divre ha-Knesset , 1146 (1952).

65. "Sar ha-Mishpatim etsel Nesi Bet ha-Mishpat ha-Elyon [The Minister of Justice Visited the Chief Justice]," Ha-Arets , 5 March 1952, 10.

66. Simon Agranat, "Trumatah shel ha-Rashut ha-Shofetet le-Mifal ha-Hakikah [The Contribution of the Judiciary to the Legislative Endeavor]," 10 Iyune Mishpat 233, 234 (1984).

67. Judges Law, 5713-1953, 9 L.S.I. 124, sec. 13.

68. Smoira was in bed with a stroke, and Justices Olshan and Silberg were not on speaking terms. In addition, the Court was in the midst of a confrontation with the Ministry of Foreign Affairs, which had refused to issue the justices diplomatic passports. Agranat's travel on an ordinary passport was viewed as a setback in this struggle. There were also some personal considerations against traveling: a fifth child had just been added to the family.

69. Durham v. United States , 214 F.2d 862 (1954).

70. Bartley C. Crum was a partner in the law firm of Hays, Podell, Algase, Crum & Feuer in New York City. He had been a member of the Anglo-American Committee of Inquiry on Palestine in 1946, an experience that turned him into a staunch supporter of the Jewish state, as he revealed in his book, Behind the Silken Curtain: A Personal Account of Anglo-American Diplomacy in Palestine and the Middle East (New York: Simon & Schuster, 1947).

71. Simon Agranat, letter to Dr. Arthur Fishzohn, 30 October 1953, Agranat papers, Agranat family, Jerusalem, acknowledging receipt of books and ink.

72. H.C. 73/53, 87/53, Kol ha-Am v. Minister of the Interior , 7 P.D. 871 (1953) (Hebrew), 1 Selected Judgments of the Supreme Court of Israel 90 (1948-1953) (English) (known as Kol ha-Am ).

73. Dennis v. United States , 341 U.S. 494 (1951).

74. See Abrams v. United States , 250 U.S. 616 (1919); Gitlow v. New York , 268 U.S. 652 (1925); Whitney v. California , 274 U.S. 357 (1927) (concurrence).

75. Terminiello v. Chicago , 337 U.S. 1 (1949).

1. S. N. Eisenstadt, The Transformation of Israeli Society (Boulder, Colo.: Westview, 1985), 177-78. At the same time, Agranat was also involved in a number of cases related to the suppression of right-wing extremists. Notable among these was the trial of the Zriffin underground. After a series of terrorist attacks on the Czech and Soviet embassies in Tel Aviv in 1952, the police arrested a number of right-wing activists and sympathizers and charged them with membership in a continue

terrorist organization. The group was tried before a military court. Ben-Gurion suggested that Agranat be the judge in the trial, but Agranat refused on grounds of separation of powers. A district court judge, Benjamin Halevy, accepted the military appointment. Agranat then reluctantly accepted an appointment as appellate judge.

Agranat's confidential memorandum to the minister of defense recommended that the sentences be reduced considerably. Agranat rejected the military court's position that no proof of intent (mens rea) was necessary for a finding that the group formed a terrorist organization. Such an approach, he said, based on a literal reading of the law, imposed strict liability on the defendants and collided with the most basic principles of criminal law. Furthermore, he overruled the military court's holding that the confessions of two defendants could be used as recriminating evidence against other defendants. (Two of the defendants confessed to having been involved in the bombings, declined to testify, and were not cross-examined.) He differed substantially when it came to the teenaged defendants. The military court "impose[d] such [heavy] sentences as [would] constitute an effective deterrent against such deeds." Agranat disagreed: the guiding principle should be rehabilitation, not deterrence. "They did what they did out of lightheadedness or because of adult influence, [imprisonment] might damage them deeply, destroy their future, nurse a sense of bitterness toward the state and even turn them into dangerous . . . criminals." Instead of jail sentences, he recommended individual attention and education.

Agranat's opinion helped cool the heated atmosphere. It brought the messianic zealots down from their high ladder (the movement's newspaper was called Sulam [Ladder]) and yet sheltered them from the paranoic wrath of the government. It was another brick in the legacy Agranat had already began to build--his determination that the rule of law was not only about ends but also about means. Simon Agranat, Memorandum to the Minister of Defense, 16 September 1953, Agranat papers, Agranat family, Jerusalem.

Pinhas Lavon (replacing Ben-Gurion, who was still on leave) accepted fully the Agranat recommendations. On 24 April 1955, Ben-Gurion, again minister of defense, pardoned the members of the group who remained in jail. See Isser Harel, Ha-Emet al Retsah Kastner: Teror Yehudi be-Medinat Yisrael [The Truth about the Kasztner Murder] (Jerusalem: Idanim, 1985), 72; Cr.A. 49/58, Heruti v. Attorney General , 12 P.D. 1541 (1958).

2. Between 11 and 18 July 1952 twenty-three of the Soviet Union's most senior Jewish intellectuals were tried and sentenced to death. On 13 January 1953 nine physicians, seven of whom were Jewish, were accused of an attempt to poison the Soviet leadership. In the Jewish world these events were interpreted not only as anti-Semitic but also as a campaign to crush Jewish consciousness in the Soviet Union. See Benjamin Pinkus, The Soviet Government and the Jews, 1948-1967: A Documented Study (Cambridge, England: Cambridge University Press, 1984), 195-201; Bernard D. Weinryb, "Antisemitism in Soviet Russia," in The Jews in Soviet Russia since 1917 , 3rd ed., ed. Lionel Kochan (Oxford: Oxford University Press, 1978), 300, 322-23.

3. Kol ha-Am , 875 (Hebrew), 94 (English).

4. H.C. 25/53, Kol ha-Am v. Minister of the Interior , 7 P.D. 165 (1953) (known continue

as the First Kol ha-Am ). This First Kol ha-Am was written by Justice Olshan, with Justices Agranat and Silberg concurring. Agranat did not mention this case in his own Kol ha-Am opinion. Why Agranat joined the majority in the First Kol ha-Am and why he failed to distinguish it in his own opinion remain unknown. In interviews, Agranat was not helpful in shedding light on the episode. Because the Court was not bound by its own opinions, Agranat was free to ignore the First Kol ha-Am . One explanation could be that Agranat joined Olshan and Silberg because he did not wish to single himself out as "too Progressive," knowing that both Olshan and Silberg were unsympathetic to the idea of broad press freedoms and that he was waiting for a more sympathetic panel to help him voice his views on free speech as a majority opinion. Also, because Olshan, as deputy chief justice, had the power to decide who would sit on the panels, Agranat could expect that Olshan might not assign him to future press cases if he expressed a "Radical" commitment to press freedom. The combination of a more supportive panel of justices (Landau and Sussman), his trip to the United States, and a less strenuous relationship between Israel and the Soviet Union could explain his seminal opinion in Kol ha-Am .

For attempts to explain the conflict between the two Kol ha-Am cases, see Abraham Shapiro, "Ha-Risun ha-Atsmi shel Bet ha-Mishpat ha-Elyon ve-Havtahat Zekhuyot ha-Ezrah [Self Restraint of the Supreme Court and the Preservation of Civil Liberties]," 2 Iyune Mishpat 640 (1973); Pnina Lahav, "American Influence on Israel's Jurisprudence of Free Speech," 9 Hastings Const. L. Q. 21, 30 (1981); Pnina Lahav, "Kavim le-Hashkafat ha-Olam ha-Mishpatit shel ha-Shofet Agranat [The Jurisprudence of Chief Justice Simon Agranat]," in Barak et al., Gvurot , 9.

5. See Lahav, "American Influence," 37-69.

6. Ibid., 46-61.

5. See Lahav, "American Influence," 37-69.

6. Ibid., 46-61.

7. See discussion on p. 30.

8. Kol ha-Am , 876 (Hebrew), 94 (English).

9. Ibid., 876 (Hebrew), 95 (English).

10. Ibid.

11. Ibid., 877 (Hebrew), 96 (English).

12. Ibid.

13. Ibid., 879 (Hebrew), 99 (English).

8. Kol ha-Am , 876 (Hebrew), 94 (English).

9. Ibid., 876 (Hebrew), 95 (English).

10. Ibid.

11. Ibid., 877 (Hebrew), 96 (English).

12. Ibid.

13. Ibid., 879 (Hebrew), 99 (English).

8. Kol ha-Am , 876 (Hebrew), 94 (English).

9. Ibid., 876 (Hebrew), 95 (English).

10. Ibid.

11. Ibid., 877 (Hebrew), 96 (English).

12. Ibid.

13. Ibid., 879 (Hebrew), 99 (English).

8. Kol ha-Am , 876 (Hebrew), 94 (English).

9. Ibid., 876 (Hebrew), 95 (English).

10. Ibid.

11. Ibid., 877 (Hebrew), 96 (English).

12. Ibid.

13. Ibid., 879 (Hebrew), 99 (English).

8. Kol ha-Am , 876 (Hebrew), 94 (English).

9. Ibid., 876 (Hebrew), 95 (English).

10. Ibid.

11. Ibid., 877 (Hebrew), 96 (English).

12. Ibid.

13. Ibid., 879 (Hebrew), 99 (English).

8. Kol ha-Am , 876 (Hebrew), 94 (English).

9. Ibid., 876 (Hebrew), 95 (English).

10. Ibid.

11. Ibid., 877 (Hebrew), 96 (English).

12. Ibid.

13. Ibid., 879 (Hebrew), 99 (English).

14. Citing Schenck v. United States , 249 U.S. 47 (1919); Whitney .

15. Kol ha-Am , 880 (Hebrew), 100 (English).

16. Ibid.

17. Ibid., 881 (Hebrew), 101 (English).

15. Kol ha-Am , 880 (Hebrew), 100 (English).

16. Ibid.

17. Ibid., 881 (Hebrew), 101 (English).

15. Kol ha-Am , 880 (Hebrew), 100 (English).

16. Ibid.

17. Ibid., 881 (Hebrew), 101 (English).

18. He could resort to the charter of the Mandate or the King's Order in Council; both were still good law in Israel, but they were not authentic Israeli documents, and it would be too much of a paradox to speak of democracy and self-rule and then rely on norms imposed on the polity from without. See the Palestine Order in Council, 1922, in Drayton, Laws of Palestine , 2569.

19. Zeev.

20. Kol ha-Am , 884 (Hebrew), 105 (English).

21. The declaration had taken root as the source of constitutional rights in Israel and was frequently being invoked by the Supreme Court. See Aharon Barak, continue

Parshanut ha-Mishpat [Interpretation in Law], vol. 2 (Jerusalem: Nevo, 1993), 425-27 and references therein. In 1994 the Declaration of Independence was recognized as a guiding interpretive tool by two Basic Laws recognizing human rights.

22. Defense (Emergency) Regulations, Palestine Gazette , 1945, Supp. 2, 1055. For example, Regulation 94 regulates the issuance of permits to publish newspapers thus: "The District Commissioner, in his discretion and without assigning any reason therefore, may grant or refuse any . . . permit."

23. "The High Commissioner [now replaced by the minister of interior] . . . may (a) if any matter appearing in a newspaper is, in the opinion of the High Commissioner . . . likely to endanger the public peace, . . . suspend the publication . . . for such a period as he may think fit." Sec. 19(2), Press Ordinance, 1933, in Drayton, Laws of Palestine , 1225.

24. Kol ha-Am , 892 (Hebrew), 115 (English).

25. When discussing political and civil liberties in Israel, commentators uniformly hail Kol ha-Am as proof of the commitment of the Court to basic notions of liberty. See, for example, Joseph Laufer, "Israel's Supreme Court: The First Decade," 17 J. Legal Ed. 43, 52-53 (1964); Aharon Barak, "Ha-Nasi Agranat: 'Kol ha-Am': Kolo shel ha-Am [Chief Justice Agranat: 'Kol ha-Am': The People's Voice]," in Barak et al., Gvurot , 129; Asher Maoz, "Defending Civil Liberties without a Constitution: The Israeli Experience," 16 Melb. U. L. Rev. 815, 820 (1988).

1. Cr.A. 118/53, Mandelbrot v. Attorney General , 10(1) P.D. 281 (1956) (Hebrew), 2 Selected Judgments of the Supreme Court of Israel (1954-1958), 116 (English).

2. Ibid., 298 (Hebrew), 138 (English).

1. Cr.A. 118/53, Mandelbrot v. Attorney General , 10(1) P.D. 281 (1956) (Hebrew), 2 Selected Judgments of the Supreme Court of Israel (1954-1958), 116 (English).

2. Ibid., 298 (Hebrew), 138 (English).

3. For discussion of the history of the act, see Yoram Shachar, "Mekorotehah shel Pkudat ha-Hok ha-Plili [The Sources of the Criminal Code Ordinance, 1936]," 7 Iyune Mishpat 75 (1979).

4. See, generally, Dine Onshin: reshimot Le-fi Hartsaot S. Agranat [Criminal Law: Notes of S. Agranat's Lectures], ed. Mordekhai Lemberg and Shabat Levi (Jerusalem: Mifal ha-Shikhpul, 1964). For an assessment of Agranat's contribution to Israeli criminal law, see Mordechai Kremnitzer, "Le-Zikhro shel ha-Shofet Agranat [In Memoriam: Justice Agranat]," 22 Mishpatim 5 (1992).

5. It is also interesting to note that in crafting the Durham opinion, Judge Bazelon relied heavily on a brief by a brilliant Progressivist Jewish lawyer (later Supreme Court justice), Abe Fortas. See Laura Kalman, Abe Fortas: A Biography (New Haven, Conn.: Yale University Press, 1990), 177-80. See also Sheldon S. Glueck, Mental Disorder and the Criminal Law: A Study in Medico-Sociological Jurisprudence (Boston: Little, Brown, 1925), 215-16.

6. Mandelbrot , 346 (Hebrew), 203 (English).

7. "I would consider it highly improper to usurp the place of the Knesset and myself lay down the law. . . . [W]e must not allow ourselves to be beguiled into giving decisions that undermine the legal edifice. We are subject to the law as it is and not as we would wish to see it." Ibid., 345 (Hebrew), 201 (English). In a continue

eulogy for Justice Goitein, Agranat quoted him as saying that in some of Israel's decisional law, "English conservatism won a victory over Israel-American liberalism." Simon Agranat, "In Memoriam: Mr. Justice Goitein," Jerusalem Post, 28 August 1961, 4. This statement, which in reverse could be applied to Mandelbrot, indicates that both Agranat and his brethren understood the jurisprudential tension to be between Conservatism and Liberalism, England and America, respectively.

8. Section 11 (Intention, Motive) of the Criminal Code Ordinance reads:

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or in part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.

Section 14 (Insanity) reads:

A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission. But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.

9. See Glueck, Mental Disorder, 215-16.

10. "The view of the subject of rights embraced by the seventeenth-century contract theorists is usually termed Cartesian. It assumes that the individual will is the cause of all actions, individual and collective; it ascribes decisive epistemic and, hence, moral authority, to the individual over his actions, on the grounds that he has privileged access to the contents of his own mind. For this reason individual consent becomes vital to the whole idea of political activity." Ian Shapiro, The Evolution of Rights in Liberal Theory (Cambridge, England: Cambridge University Press, 1986), 275.

11. Mandelbrot, 323 (Hebrew), 170 (English).

12. Ibid., 293-94 (Hebrew), 131 (English).

13. Ibid., 311 (Hebrew), 156 (English). See also his reference to "a sense of justice and fairness," ibid., 311 (Hebrew), 155 (English).

14. Ibid., 313 (Hebrew), 158 (English) (emphasis added).

11. Mandelbrot, 323 (Hebrew), 170 (English).

12. Ibid., 293-94 (Hebrew), 131 (English).

13. Ibid., 311 (Hebrew), 156 (English). See also his reference to "a sense of justice and fairness," ibid., 311 (Hebrew), 155 (English).

14. Ibid., 313 (Hebrew), 158 (English) (emphasis added).

11. Mandelbrot, 323 (Hebrew), 170 (English).

12. Ibid., 293-94 (Hebrew), 131 (English).

13. Ibid., 311 (Hebrew), 156 (English). See also his reference to "a sense of justice and fairness," ibid., 311 (Hebrew), 155 (English).

14. Ibid., 313 (Hebrew), 158 (English) (emphasis added).

11. Mandelbrot, 323 (Hebrew), 170 (English).

12. Ibid., 293-94 (Hebrew), 131 (English).

13. Ibid., 311 (Hebrew), 156 (English). See also his reference to "a sense of justice and fairness," ibid., 311 (Hebrew), 155 (English).

14. Ibid., 313 (Hebrew), 158 (English) (emphasis added).

15. See discussion on p. 91.

16. See chap. 4, n. 42.

17. In Kol ha-Am, 887 (Hebrew), 108 (English), he interpreted the term likely to incorporate the Vinson/Hand formula of Dennis . In Mandelbrot he interpreted Section 11 to include the insanity defense.

18. Mandelbrot, 328 (Hebrew), 177 (English). In Cr.A. 186/55, Meysan v. Attorney General, 11 P.D. 769 (1955), a majority of the Court accepted Agranat's opinion in Mandelbrot, and it has been followed ever since. Interestingly, it was the continue

prosecution which argued in Meysan that the Agranat position should be endorsed as reflective of the positive law. See Miriam Ben-Porat, "Zikhronot Me-Nivhe He-Avar [Memories of the Past]," in Barak et al., Gvurot, 5. For a discussion, see Yuval Levy and Eliezer Lederman, Ikarim be-Ahrayut Plilit [Principles of Criminal Responsibility] (Tel Aviv: Ramot, 1981), 266-75.

19. Other opinions of the period confirm Agranat's resolve to lay solid foundations for a judicial bill of rights. Typically, the opinions concerned bureaucratic excesses, Israeli Arabs, or governmental treatment of dissent. In several cases Agranat structured and limited the powers of the executive to deny licenses to individuals; see, for example, H.C. 180/57, Nahisi v. Herzliya, 12 P.D. 272 (1958); H.C. 212/57, Aurbach v. Director of Customs, 12 P.D. 780 (1958); H.C. 20/58, Geffen v. Regional Council of Ashkelon, 12 P.D. 1306 (1958).

In Cr.A. 40/58, Attorney General v. Taufik Ziad, 12 P.D. 1358 (1958), an Israeli Arab and political activist was imprisoned after a military court convicted him of breaching the peace. In prison he refused an order to sweep his cell, and, after an argument, he attacked his guard, was convicted of battery, and appealed. Agranat sustained the conviction, but in dicta he set down the rules concerning police behavior. The police could order a prisoner to do only things that were expressly permitted by law, and these did not include sweeping cells. Otherwise, he explained, vesting drastic powers in the police might lead to police abuse, for example, by "torturing the prisoners who are within their jurisdiction and treating them tyrannically" (p. 1365).

In another important opinion, Heruti, which should be read as a companion case to Kol ha-Am, Agranat limited the powers of emergency legislation to curb freedom of association. Jacob Heruti, a LEHI activist who was suspected of close ties to right-wing extremists, appealed his convictions of contempt of court and membership in a terrorist organization, pursuant to the Prevention of Terrorism Ordinance. Agranat sustained the conviction for contempt of court where, following a Jerusalem lower-court acquittal of Kasztner of perjury (chapter 7), Heruti published a pamphlet in which he wrote, "Citizens, even the Israeli courts are joining the defense of war criminals."

Speaking for a majority of three, with two justices dissenting, Agranat sustained the defendant's acquittal of the charge of membership in a terrorist organization. The significance of this opinion lies in the guidelines Agranat laid down for the evidentiary rules required for proof of membership in terrorist organizations, with Justices Landau and Sussman concurring. In order to prove the existence of a terrorist organization, Agranat held, it was not enough to show conspiracy. Proof should be submitted that "the defendants passed from the stage of preparation to the stage of [violent] action." Agranat also held that no proof was submitted that "the members of the organization continued to believe in violence as a means that should be used in the present or in the near future" (Agranat's emphasis) and that the government's declaration that the organization is a terrorist organization was not dispositive, for otherwise the trial would be a "show trial, in which the court will decide the fate of a defendant solely on the basis of a document which is traced to an act of the executive without more." In so holding, Agranat expressly narrowed the reach of Brun . Agranat also narrowed considerably the meaning of the offense of sedition. Heruti, 1556, 1559, 1562-63. break

Finally, in Cr.A. 63/58, Najim Ajami, Eliyahu Shalom et al. v. Attorney General, 13 P.D. 421 (1959), Agranat defended the autonomy and dignity of women. The appellant, who was convicted of organizing an invasion of his estranged wife's bedroom in order to obtain proof of her adultery, argued that he was justified as a husband attempting to vindicate his marriage rights. Agranat responded: "The meaning of [the defendant's] argument is that the husband is entitled to instruct strangers . . . to treat his wife's body as an object abandoned in their hands, so long as they do not use excessive force against her; as if the end justifies these foul means. Clearly this is an intolerable view which should be absolutely rejected, and I can only express my indignation at the phenomenon that an attorney in the state of Israel saw fit to make such an argument and ask these courts to endorse it" (p. 436). The above is a sample of Agranat's opinions during this period.

1. Yehiam Weitz, Ha-Ish she-Nirtsah Paamayim [The Man Who Was Murdered Twice] (Jerusalem: Keter, 1995), 60.

2. Kasztner was not elected, but his inclusion in the list shows his political clout within MAPAI circles.

3. Shalom Rosenfeld, Tik Plili 124: Mishpat Gruenvald-Kastner [Criminal Trial 124--The Gruenvald-Kasztner Trial] (Tel Aviv: Karni, 1955), 16-17.

4. The phrase "converted from Orthodoxy to Zionism" is Haim Cohn's. Michael Shashar, Hayim Cohn, Shofet Elyon: Sihot im Michael Shashar [Haim H. Cohn, Supreme Court Judge: Talks with Michael Shashar] (Jerusalem: Keter, 1989), 49. He used it to describe the ideological conversion of his cousin, Azriel Karlibach, founder of the evening daily newspaper, Maariv . The description fits both cousins.

5. In his memoirs, Bernard Joseph denied that he had urged Kasztner to press a libel charge or resign and claimed that it was Cohn who had put pressure on Kasztner. Dov Joseph, Yonah va-Herev [In Quest of Peace] (Givatayim: Masada, 1975), 321-22. Joel and Hansi Brand, in their book, remember that it was Joseph who had applied the pressure. Joel and Hansi Brand, Ha-Satan veha-Nefesh [Satan and the Soul], ed. Benjamin Gepner (Tel Aviv: Ladori, 1960), 115.

6. Yonathan Shapiro, Le-Shilton Behartanu: Darkah shel Tenuat ha-Herut: Hesber Sotsyologi-Politi [Chosen to Command: The Road to Power: The Herut Party in Israel: A Socio-Political Interpretation] (Tel Aviv: Am Oved, 1989), 93-94. In 1952 Tamir resigned from Begin's Herut because "the Party has given up the war to decimate the criminal and corrupt . . . regime." Ibid.

7. Halevy was president of the district court. He sat alone, rather than in a panel of three judges (Israel has no jury), failing to anticipate the developments in the trial. His opinion was published only ten years later, in Attorney General v. Gruenvald, 44 P.M. 3 (1965).

8. Cr.A. 11/58, Menkes v. Attorney General, 12(3) P.D. 1905 (1958). Kasztner's assassins were pardoned in 1963. Zeev Ekstein, one of the assassins, acknowledged the strong influence that extreme right-wing ideology (LEHI circles) had on his thinking about Kasztner, denied the theory that he was recruited to kill, and said, continue

"[T]he moment I understood the psychology of this man [Kasztner] this country could not bear both of us." Yair Sheleg, "Rotsho shel Kastner Medaber [Kasztner's Assassin Speaks]," Kol ha-Ir, 13 August 1993, 28, 94. See Harel, Ha-Emet, arguing that extremist right-wing circles were behind the assassination.

9. "Halevy's opinion looks more like the final argument by the prosecutor." "Mi-Yom le-Yom [Day to Day]," Ha-Arets, 25 June 1955, 2.

10. Tom Segev, The Seventh Million: The Israelis and the Holocaust, trans. Haim Watzman (New York: Hill & Wang, 1993), 292-93.

11. In particular, Agranat became acquainted with Yohanan Bader, a leader of Herut and a close friend of Menachem Begin. He found Bader to be "a charming, cultured, and a reasonable man," one not at all fitting MAPAI's image of a nationalist, irresponsible, and demagogic Herut. Agranat recalled beginning to doubt the good sense in Ben-Gurion's famous dictum that he would not form a coalition with either Herut or the Communist Party.

12. See also "Sar ha-Pnim Kore le-Hishtatfut mele'ah [The Minister of the Interior Calls for Full Participation]," Ha-Arets, 26 July 1955, 1, reporting Agranat to have concluded: "This is a holiday, where we demonstrate at home and abroad that the previous elections were not an aberration and that our state is a freedom loving state whose foundations are democratic."

13. See discussion on pp. 41-43.

14. See discussion on pp. 73-74.

15. Yehuda Bauer, Ha-Shoah: Hebetim Historiyim [The Holocaust--Some Historical Aspects] (Tel Aviv: Sifriyat Poalim, 1982), 134-218; Dina Porat, Hanhagah Be-Milkud [An Entangled Leadership] (Tel Aviv: Am Oved, 1986), 385-91; Michael R. Marrus, The Holocaust in History (Hanover, N.H.: University Press of New England, 1987), 185-92.

16. Cr.A. 232/55, Attorney General v. Gruenvald, 12(3) P.D. 2017, 2021 (1958). Ten years later Agranat denounced violence as a means of settling political controversy. In Cr.A. 255/68, State of Israel v. Ben-Moshe, 22(2) P.D. 427 (1968), decided a year after the Six Day War, a Holocaust survivor and army veteran stabbed Meir Vilner, leader of Israel's Communist Party. The defendant justified his act as an attempt to alert public opinion to the evil inherent in Vilner's criticism of Israeli policy concerning the occupied territories. In arguing against leniency in such cases, Agranat emphasized the significance of safeguarding the freedom of speech of politicians: "[T]he right of a member of the Knesset to voice, within or outside of this forum, his world view about current political questions without fear or suspicion that he might be hurt by someone, who disapproves of these views or is convinced that they are dangerous to the people--this right is the mirror image of the strong link between the principle of freedom of expression and debate and the . . . democratic process" (p. 435).

17. Gruenvald, 2215.

18. Shalom Rosenfeld, "Ha-Shofet Agranat Mezake Et Kasztner [Justice Agranat Acquits Kasztner]," Maariv, 16 January 1958, 2. Another telling aspect of the trial was the logistics of producing the opinion. The Court did not have the resources to reproduce multiple copies and arranged for Akademon, the student organization of the Hebrew University, to oversee the operation. Agranat remembered that the justices were proud that, in contrast to the government, which continue

hardly managed to prevent leaks, a complete veil of secrecy shrouded the entire process of publication. "Emtsa'ey Bitahon Likrat Psak ha-Din be-Irur Kasztner [Security Measures in Anticipation of Kasztner's Verdict]," Yediot Aharonot, 14 January 1958, 1.

19. Gruenvald, 2022.

20. See discussion on p. 108.

21. Gruenvald, 2065.

22. Ibid., 2084.

21. Gruenvald, 2065.

22. Ibid., 2084.

23. Nazi and Nazi Collaborators (Punishment) Law, 5710-1950, 4 L.S.I. 154.

24. Gruenvald, 2084-85.

25. Rosenfeld, Tik Plili, 312.

26. Ibid., 5. Rosenfeld, declaring in his introduction that his 451-page book aims at assisting in the discovery of truth, failed to mention one fact: that an appeal against the decision of the lower court was pending before the Supreme Court of Israel.

25. Rosenfeld, Tik Plili, 312.

26. Ibid., 5. Rosenfeld, declaring in his introduction that his 451-page book aims at assisting in the discovery of truth, failed to mention one fact: that an appeal against the decision of the lower court was pending before the Supreme Court of Israel.

27. He cited George Macaulay Trevelyan, "Bias in History," in An Autobiography and Other Essays (London: Longmans, 1949), 68; Isaiah Berlin, Historical Inevitability (London: Oxford University Press, 1954). Gruenvald, 2055.

28. Agranat cited Justice Felix Frankfurter, Of Law and Men: Papers and Addresses of Felix Frankfurter, 1939-1956, ed. Philip Elman (New York: Harcourt Brace, 1956). Gruenvald, 2056.

29. Ibid., 2058.

30. Ibid., 2060.

28. Agranat cited Justice Felix Frankfurter, Of Law and Men: Papers and Addresses of Felix Frankfurter, 1939-1956, ed. Philip Elman (New York: Harcourt Brace, 1956). Gruenvald, 2056.

29. Ibid., 2058.

30. Ibid., 2060.

28. Agranat cited Justice Felix Frankfurter, Of Law and Men: Papers and Addresses of Felix Frankfurter, 1939-1956, ed. Philip Elman (New York: Harcourt Brace, 1956). Gruenvald, 2056.

29. Ibid., 2058.

30. Ibid., 2060.

31. Rosenfeld, Tik Plili, 371.

32. Roscoe Pound, "Mechanical Jurisprudence," 8 Colum. L. Rev. 605 (1908).

33. Sheldon Glueck, Crime and Justice (Boston: Little, Brown, 1936), 97 (citing Roscoe Pound).

34. Gruenvald, 2043, 2076.

35. Ibid., 2076.

34. Gruenvald, 2043, 2076.

35. Ibid., 2076.

36. In accordance with the Law against the Nazis and Nazi Collaborators. An implicit criticism of the trial judge could also be discerned in the present analysis, in which Agranat commented that, even though Halevy decided that Kasztner's behavior did "not differ morally, publicly and even legally from handing over most Jews to their murderers," he failed to refer to any substantive criminal offense in Israel's criminal code. Gruenvald, 2067. Agranat's emphasis.

37. Ibid., 2069 (quoting Glanville Williams).

38. Ibid., 2071.

36. In accordance with the Law against the Nazis and Nazi Collaborators. An implicit criticism of the trial judge could also be discerned in the present analysis, in which Agranat commented that, even though Halevy decided that Kasztner's behavior did "not differ morally, publicly and even legally from handing over most Jews to their murderers," he failed to refer to any substantive criminal offense in Israel's criminal code. Gruenvald, 2067. Agranat's emphasis.

37. Ibid., 2069 (quoting Glanville Williams).

38. Ibid., 2071.

36. In accordance with the Law against the Nazis and Nazi Collaborators. An implicit criticism of the trial judge could also be discerned in the present analysis, in which Agranat commented that, even though Halevy decided that Kasztner's behavior did "not differ morally, publicly and even legally from handing over most Jews to their murderers," he failed to refer to any substantive criminal offense in Israel's criminal code. Gruenvald, 2067. Agranat's emphasis.

37. Ibid., 2069 (quoting Glanville Williams).

38. Ibid., 2071.

39. Idith Zertal, "The Poisoned Heart: The Jews of Palestine and the Holocaust," Tikkun 2 (1987): 79. Yitzhak (Antek) Zuckerman, one of the leaders of the Warsaw Ghetto uprising, told Claude Lanzmann, creator of the film Shoah, that "If you could lick my heart, it would poison you to death." Ibid.

40. Gruenvald, 2073.

41. Ibid., 2076-77.

40. Gruenvald, 2073.

41. Ibid., 2076-77.

42. See, for example, Herbert Wechsler and Jerome Michael, "A Rationale for the Law of Homicide," 37 Colum. L. Rev. 701, 1281 (1937).

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

43. Otto Kirchheimer, "Criminal Omissions," 55 Harv. L. Rev. 615, 636 (1942), quoted by Agranat in Gruenvald, 2077. This analysis rejected the fiction that a man continue

is presumed to intend the natural consequences of his actions, applied by the lower court in the Kasztner case. Ibid., 2076.

44. Ibid., 2082.

45. Ibid., 2179.

46. Ibid.

47. Ibid., 2080.

48. Ibid.

49. Ibid., 2121.

50. Ibid., 2033, 2046, discussing the Strashof-Vienna plan.

51. Ibid., 2098.

52. Much of the evidence in the trial tried to show that MAPAI's leadership during the early and middle 1940s had collaborated with the British by self-censoring news about the Holocaust, by condemning the Irgun's violence against the British (which, Tamir claimed, could have brought about earlier independence, thereby providing a haven for the persecuted Jews), and by failing to encourage the Jews in occupied Europe to organize armed resistance. The attitude of MAPAI's leadership and the Jewish population in Palestine toward the Holocaust is the subject of extensive debate among Israeli historians. See Dalia Ofer, Escaping the Holocaust: Illegal Immigration to the Land of Israel, 1939-1944 (New York: Oxford University Press, 1990); Hava Eshkoli, Elem: Mapai le-nokhah ha-Shoah, 1939-1942 [Silence: MAPAI and the Holocaust, 1939-1942] (Jerusalem: Yad Izhak Ben-Zvi, 1994); Idith Zertal, Zehavam Shel ha-Yehudim [From Catastrophe to Power] (Tel Aviv: Am Oved, 1996).

53. See Zertal, "Poisoned Heart."

54. This line was also followed by the leadership of MAPAI. See Nathan Alterman, Al Shete ha-Derakhim: Dapim min ha-Pinkas [Between Two Roads: Sections From a Diary], ed. Dan Laor (Tel Aviv: Ha-Kibbuts ha-Meuhad, 1989).

55. Rosenfeld, Tik Plili, 91-2.

56. Gruenvald, 2265. Silberg concludes his discussion of Kasztner in this paragraph: "I searched behind this fantastic language ['we paid less'] to find some bitter irony, a pinch of 'gallows humor,' but in vain! The careful financial calculations, the apologetic language, prove conclusively that Kasztner spoke in absolute earnestness. Indeed, here is egocentrism and its reward."

57. See discussion on p. 42.

58. Gruenvald, 2176. Emphasis added.

59. Michael Shagrir, "Be-Shulei ha-Psika" [Comments on Judicial Opinions]," Al-ha-Mishmar, 18 January 1958, 4.

1. Israel did not actively search for Eichmann until 1957, when it received information from Germany concerning his whereabouts. Segev, Seventh Million, 324-25. The Kasztner case, then pending on appeal, probably spurred the government to undertake the daring operation to abduct Eichmann from Argentina.

2. Gruenvald, 2280-81.

3. Olshan, Din u-Dvarim, 312-24. break

4. See American Jewish Committee, The Eichmann Case in the American Press (New York: Institute of Human Relations Press, 1962); Pnina Lahav, "The Eichmann Trial, the Jewish Question, and the American-Jewish Intelligentsia," 72 B. U. L. Rev. 555 (1992).

5. The initial plan was to exclude Halevy from the trial altogether, but Herut opposed the move, and in order to preserve political unity a compromise was reached whereby Halevy would serve on but not chair the panel. Olshan, Din u-Dvarim, 315-17.

6. Even Hannah Arendt, critical of the trial, praised Justice Landau's performance. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin, 1965), 4-5.

7. Cr.A. 336/61, Eichmann v. Attorney General, 16(3) P.D. 2033, 2084 (1962). Eichmann Supreme Court opinion, III-1 (English, mimeographed, in the author's files).

8. Gideon Hausner, Ha-Shoah bi-Re'i ha-Mishpat [Holocaust on Trial] (Tel Aviv: Am Oved, 1988), 8-9.

9. Susan Sontag, "Reflections on The Deputy," in The Storm over The Deputy, ed. Eric Bentley (New York: Grove Press, 1964), 118-23.

10. Carmel attended one of the sessions, a grueling experience. Her identification with the Jewish plight had nourished a strong aversion to Germans long before Eichmann's abduction. The catharsis offered during the Eichmann trial did not change her views. Throughout Agranat's service as chief justice she would shun any official ceremonies involving Germans. Years later, while returning from Liberia, the Agranats realized that their aircraft would make an emergency landing in Dusseldorf. The passengers were to stay in Germany overnight, but Carmel would not hear of it. She insisted that they leave immediately. After intensive nocturnal negotiations, the Agranats rode in the van that drove the crew across the border to Amsterdam, where the Israeli Consulate prepared accommodations for them.

11. "The world understood that it could not escape confrontation with its yesterday." Hausner, Ha-Shoah, 6.

12. Michael A. Musmanno, "The Objections in Limine to the Eichmann Trial," 35 Temp. L. Q. 1, 2 (1961). See also Yosal Rogat, The Eichmann Trial and the Rule of Law (Santa Barbara, Calif.: Center for the Study of Democratic Institutions, 1961); Dominik Lasok, "The Eichmann Trial," 11 Int'l & Comp. L. Q. 355 (1962); Herbert Wechsler, The Nation's Future (audiotape of NBC Radio debate, 8 April 1961). There were, however, scholars who did support the legality of the trial. See, for example, Hans W. Baade, "The Eichmann Trial: Some Legal Aspects," Duke L. J. 400 (1961).

13. Aviezer Golan, "Servatius Lo Hitsliah Lahafokh Le-Drama Maarekhet Hasium shel Mishpat Eichmann [Servatius Failed to Dramatize the Final Act in the Eichmann Trial]," Yediot Aharonot, 23 March 1962, 2.

14. Aviezer Golan, "Ha-Yo'ets ha-Mishpati Mazkir Nishkahot le-Eichmann [The Attorney General Makes Eichmann Remember]," ibid., 25 March 1962, 3.

15. On the tension between universalism and particularism, see Jacob Talmon, Ahdut ve-Yihud: Masot be-Hagut Historit [The Unique and the Universal] (Jerusalem: Schocken, 1965), 209-358. break

16. The factor of "lawlessness" connecting the raid in Nukeib and the Eichmann trial was not overlooked by Israelis. See, for example, Moshe Prager, "Nekudat ha-Moked shel ha-Mishpat ha-Histori [The Focus of the Historic Trial]," Davar, 30 March 1962, 2.

17. Eichmann, 2039 (Hebrew), I-4 (English).

18. Ibid., 2047 (Hebrew), I-17 (English).

17. Eichmann, 2039 (Hebrew), I-4 (English).

18. Ibid., 2047 (Hebrew), I-17 (English).

19. See chap. 7, n. 23.

20. Eichmann, 2039 (Hebrew), I-5 (English).

21. Lahav, "Eichmann Trial," 559-65.

22. "Before [the state] was established, Chaim Weizmann, then president of the World Jewish Congress . . ., asked in vain to appear before the Nuremberg Tribunal and testify . . . about the Jewish catastrophe. . . . In the State of Israel we could decide by ourselves what was preferred from the perspective of the Jewish interest." Hausner, Ha-Shoah, 8-9.

23. See discussion on p. 151.

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

24. Eichmann, 2048 (Hebrew), I-18 (English).

25. Ibid., 2048 (Hebrew), I-19 (English).

26. Ibid., 2049 (Hebrew), I-21 (English).

27. Ibid., 2051 (Hebrew), I-23 (English).

28. Ibid., 2052 (Hebrew), I-25 (English).

29. Ibid., 2053 (Hebrew), I-25 (English).

30. Ibid., 2061 (Hebrew), I-38 (English).

31. Ibid., 2066 (Hebrew), I-44 (English).

32. Ibid., 2067 (Hebrew), I-46 (English).

33. Ibid., 2070, 2075 (Hebrew), I-53, I-60 (English).

34. Agranat quoted at length from Sheldon Glueck, "The Nuremberg Trial and Aggressive War," 59 Harv. L. Rev. 396, 419-30 (1946), and from Quincy Wright, "The Law of the Nuremberg Trial," 41 Amer. J. of Int'l L. 38, 70-71 (1947).

35. Eichmann, 2075 (Hebrew), I-60 (English). Agranat's emphasis. The words "thereby absolving the executioners" were omitted from the English translation.

36. Ibid., 2080 (Hebrew), I-70 (English). The words "at all times and in all seasons" do not appear in the English translation.

35. Eichmann, 2075 (Hebrew), I-60 (English). Agranat's emphasis. The words "thereby absolving the executioners" were omitted from the English translation.

36. Ibid., 2080 (Hebrew), I-70 (English). The words "at all times and in all seasons" do not appear in the English translation.

37. And: "We could easily and in very few words dismiss all these contentions by saying that even a small cog, even an insignificant operator, is liable, under our criminal law, to become an accomplice. . . . But we shall not follow this facile and convenient path." Ibid., 2085 (Hebrew), III-3 (English).

38. "Now that the Eichmann trial has ended and the world has seen with what decorum, punctilio and meticulous observance of internationally recognized legal procedure the trial was conducted, the fears entertained by many honest-minded critics have been dissipated." Musmanno, "Objections," 2.

39. Eichmann, 2040 (Hebrew), I-6 (English).

40. Gruenvald, 2025.

41. Eichmann, 2081 (Hebrew), I-71 (English).

42. Ibid., 2100 (Hebrew), III-34-35 (English).

41. Eichmann, 2081 (Hebrew), I-71 (English).

42. Ibid., 2100 (Hebrew), III-34-35 (English).

43. Hayim N. Bialik, "On the Slaughter," in The Penguin Book of Hebrew Verse, ed. T. Carmi (New York: Viking Press, 1981), 512-13.

44. "Hayiti Ed Reiya la-Tliya [I Witnessed the Execution]," Yediot Aharonot, continue

1 June 1962, 2; "Ha-Tguva ba-Olam: Naasa Din Tsedek [The Reaction in the World: Justice Was Done]," Davar , 3 June 1962, 1; "Ha-Tguvot ba-Olam al Tliyat ha-Tsorer: 'Naasa din Tzedek' [The Reactions in the World to the Hanging of the Enemy: Justice Was Done]," Herut , 3 June 1962, 1. Eichmann was hung on Thursday, minutes before midnight. That explains why Yediot Aharonot made the announcement the next Friday, whereas the morning newspapers had to wait until Sunday because in Israel newspapers do not appear on Saturday.

45. See discussion of the Bernadotte Report on p. 88.

1. Yehuda Gotthilf, "E-Nahat ba-Hevrah ha-Yisraelit--Al shum Ma? [Restlessness in Israeli Society--Why?]," Davar , 7 June 1962, 2; Aharon Polonski, "Maamad Orekh ha-Din ba-Medinah uva-Hevra [The Status of the Lawyer in the State and in Society]," 18 Ha-Praklit 169 (1961).

2. "Bar-Or Hushaa me-Tafkido [Bar-Or Suspended from Office]," Ha-Arets , 1 June 1962, 8.

3. Mitchell Cohen, "Israel: The Lavon Affair," in The Politics of Scandal, Power and Process in Liberal Democracies , ed. Andrei S. Markovits and Mark Silverstein (New York: Holmes & Meier, 1988), 230.

4. In an interview, Hausner expressed the belief that at that time Ben-Gurion had decided to revive the issue of the mishap and, fearing that Hausner as attorney general might not assist him, decided to replace him. Yechiel Gutman, Ha-Yoets ha-Mishpati Neged ha-Memshalah [The Attorney General versus the Government] (Jerusalem: Idanim, 1981), 130, 167.

5. Ben-Gurion, however, kept insisting on a judicial resolution of the affair, thereby trying to involve the courts in the resolution of the political crisis. M. Cohen, "Lavon Affair," 234-35; Gutman, Ha-Yoets , 166-79.

6. See Gutman, Ha-Yoets , 130-36.

7. Ibid. (quoting Yohanan Bader, Herut's representative in the Knesset).

6. See Gutman, Ha-Yoets , 130-36.

7. Ibid. (quoting Yohanan Bader, Herut's representative in the Knesset).

8. The Ministry of Justice did retain the position of solicitor general, who was generally expected to exercise professional judgment and be insulated from politics.

9. Ben-Gurion's letter of 26 June 1962 instructed the commission to consider three questions:

1. (a) What are the powers of the attorney general concerning appeals, termination of legal proceedings and indictments?

(b) Are his powers exclusive?

(c) Is he obliged to consult the minister of justice, especially in matters related to defense, political implications or matters related to the public interest?

2. If the minister of justice does not accept the opinion of the attorney general--may he take over these powers?

3. If the minister and the attorney general contradict each other in the cabinet meeting--whose interpretation of the law is correct?

10. Robert Soblen v. United States , 370 U.S. 944 (1962).

11. There could be a tangible reason for Israel's hasty deportation of Soblen. continue

That same week Yosseleh Shuhmacker, an Israeli child abducted by his ultra-Orthodox grandfather, who had been missing for more than a year, was located in New York. Yosseleh's disappearance was a matter of intense concern for the government, which believed that the Orthodox establishment was defying its authority by shielding the abductors. Yosseleh was located by the Mossad on 27 June 1962. It may well be that Israel feared that the American government would not cooperate in releasing Yosseleh if Israel withheld cooperation in the Soblen matter. For an account of the Mossad's search for Yosseleh, see Isser Harel, Mivtsa Yossel'eh [Operation Yossel'eh] (Jerusalem: Idanim, 1982).

12. "Cabinet Today Rules on Soblen's Fate," Jerusalem Post , 1 July 1962, 1; "High Court Rejects Order Nisi; Appeal by Soblen's Lawyer," ibid., 4 July 1962, 1. The neutralization of the attorney general during the Soblen affair is also discussed in Gutman, Ha-Yoets , 142.

13. H.C. 156/56, Schor v. Attorney General , 11(1) P.D. 285 (1957). Schor sued a lawyer for defamation (in a criminal procedure, which a private party could initiate), claiming that she had fabricated a suicide attempt in order to prevent her eviction. The attorney general has the power to halt criminal proceedings if he or she thinks they are not in the public interest. Agranat declined to intervene, holding that there was a legal presumption that the attorney general had acted in good faith and in the public interest.

14. The report, issued unanimously and written by Agranat, reviewed three powers vested in the attorney general: the power to indict, the power to invalidate decisions of the district attorneys, and the power to halt proceedings. Agranat observed that all three powers have this in common: they deal with the power of the attorney general "to activate the judicial branch in order to punish a person for having committed a certain offence." Inherent in such jurisdiction was "legal discretion" to decide how law should be applied to a particular set of facts and whether considerations of justice or the public interest required that legal proceedings be halted. "Doh Va'adat ha-Mishpetanim bi-Dvar Samkhuyot ha-Yoets ha-Mishpati la-Memshalah [Jurists' Report about the Powers of the Attorney General]," in Sefer Klinghoffer Al ha-Mishpat ha-Tsiburi [Klinghoffer Book on Public Law], ed. Itzhak Zamir (Jerusalem: Institute for Legislative Research and Comparative Law, 1993), 421. Hereafter cited as Jurists' Report.

15. Ibid., 432.

16. Ibid., 427-28.

14. The report, issued unanimously and written by Agranat, reviewed three powers vested in the attorney general: the power to indict, the power to invalidate decisions of the district attorneys, and the power to halt proceedings. Agranat observed that all three powers have this in common: they deal with the power of the attorney general "to activate the judicial branch in order to punish a person for having committed a certain offence." Inherent in such jurisdiction was "legal discretion" to decide how law should be applied to a particular set of facts and whether considerations of justice or the public interest required that legal proceedings be halted. "Doh Va'adat ha-Mishpetanim bi-Dvar Samkhuyot ha-Yoets ha-Mishpati la-Memshalah [Jurists' Report about the Powers of the Attorney General]," in Sefer Klinghoffer Al ha-Mishpat ha-Tsiburi [Klinghoffer Book on Public Law], ed. Itzhak Zamir (Jerusalem: Institute for Legislative Research and Comparative Law, 1993), 421. Hereafter cited as Jurists' Report.

15. Ibid., 432.

16. Ibid., 427-28.

14. The report, issued unanimously and written by Agranat, reviewed three powers vested in the attorney general: the power to indict, the power to invalidate decisions of the district attorneys, and the power to halt proceedings. Agranat observed that all three powers have this in common: they deal with the power of the attorney general "to activate the judicial branch in order to punish a person for having committed a certain offence." Inherent in such jurisdiction was "legal discretion" to decide how law should be applied to a particular set of facts and whether considerations of justice or the public interest required that legal proceedings be halted. "Doh Va'adat ha-Mishpetanim bi-Dvar Samkhuyot ha-Yoets ha-Mishpati la-Memshalah [Jurists' Report about the Powers of the Attorney General]," in Sefer Klinghoffer Al ha-Mishpat ha-Tsiburi [Klinghoffer Book on Public Law], ed. Itzhak Zamir (Jerusalem: Institute for Legislative Research and Comparative Law, 1993), 421. Hereafter cited as Jurists' Report.

15. Ibid., 432.

16. Ibid., 427-28.

17. He was thus conceding implicitly that legal training alone could not necessarily capture the essence of the decision making involved.

18. Jurists' Report, 428.

19. Ibid., 433.

20. Ibid., 435.

18. Jurists' Report, 428.

19. Ibid., 433.

20. Ibid., 435.

18. Jurists' Report, 428.

19. Ibid., 433.

20. Ibid., 435.

21. Indeed, that was Pinhas Rosen's view. See Gutman, Ha-Yoets , 141.

22. The responsibility of the government before the Knesset for actions of the attorney general is rather narrow. The government does not have parliamentary responsibility for an actual action taken by the attorney general in executing his responsibilities. If the attorney general takes an action against the recommendation of the cabinet, the cabinet is responsible to the Knesset only in the narrow sense of not firing him for his action. Jurists' Report, 444-45. break

23. It is true that the result of this analysis means that the "supervisory powers of the Knesset over the attorney general are also limited" (in the same way that the responsibility of the cabinet toward the Knesset in this regard is limited). But "this is a low 'price' to 'pay' for the wish to invest in an a-political organ . . . the responsibility of safeguarding the public interest in matters of the criminal law." Ibid., 447.

24. Gutman, Ha-Yoets , 140.

25. Ibid., 156.

24. Gutman, Ha-Yoets , 140.

25. Ibid., 156.

26. Olshan, Din u-Dvarim , 357.

1. "Justice Agranat Receives His Notice of Appointment as President of the Supreme Court," Jerusalem Post , 19 March 1965, 8.

2. The regulations concerning the appointment of a chief justice were set in the early 1950s and were largely a product of the personal and political circumstances of the time. Smoira, the much-admired chief justice, suffered a stroke and became increasingly incapable of discharging his duties. His retirement, however, was postponed until the proper arrangements for his pension were solidified. Meanwhile, Olshan took over Smoira's responsibilities. The Court came to consider the question of how a new chief justice would be selected in a climate of political partisanship, shortly after the judicial crisis of 1953. It is in this context that one should understand the justices' recommendation to apply the principle of seniority. The recommendation was endorsed by the government, and on 5 August 1954 Olshan was appointed chief justice.

3. In his memoirs, Olshan denied these rumors categorically ( Din u-Dvarim , 367).

4. The appointment of the deputy chief justice represented an even more difficult hurdle. By seniority, Moshe Silberg was to ascend to the position. But Bernard Joseph, the minister of justice, feared that should Agranat become incapable of fulfilling his duties, Silberg would become chief justice. After a bitter argument, the Appointment Committee adjourned without making a decision. Joseph, not accustomed to having his judgment overruled, was angry; Shmuel Tamir, now a member of the committee, threatened to make the issue public. Agranat remembered several conversations with Joseph, during which he eventually managed to persuade the minister to remove his objections. Shalom Cohen, "Agranat Is Nominated Supreme Court Head," Jerusalem Post , 4 March 1965, 1. Why Joseph opposed Silberg is not too difficult to fathom. An Orthodox Jew who believed that Jewish law should and could govern the Jewish state could easily appear to Joseph as more representative of galut than of the nation reborn. It may well be that Joseph was eager to have secular leadership for the Court, emblematic of the Zionist dream of joining other Western democracies in form as well as substance.

5. Smoira was reputed to have called Olshan "Pahad Yitzhak"--the fear of Isaac--implying that he instilled fear in those close to him. Others called Olshan "the evil dwarf" (because he was rather short). break

6. In his opening remarks Agranat said: "Judicial and legal jurisprudence is not expressed and reduced to a mechanical application of laws and decisions. . . . [W]e all know . . . that a judicial decision contains what is generally called a value judgment, an ethical judgment . . . and the making of such a judgment depends, of course, first on the legal and general philosophy of the judge, on his world-view, but also on his character and the measure of responsibility he feels toward his role, not only from the perspective of the purpose to do justice in the particular case, but also from the perspective of his judicial work generally; from the perspective of efficiency . . . and other perspectives." Protocol of the Opening Session of the Judges Conference , 13 October 1965, 4-5, Agranat papers, Agranat family, Jerusalem.

7. "This conference is meant for judicial self-criticism. We must examine ourselves, our judicial activity in general, not the judicial activity of any particular judge. All the topics we chose for discussion . . . [have in common] the theme of judicial policy generally; since judicial policy, even if it is not written in the law books, is capable of influencing the judicial substance." Ibid.

8. In the summer of 1965, Agranat wrote two opinions that had a Conservative flavor. In C.A. 54/65, Mekitan v. Mekitan , 19(2) P.D. 651 (1965), Agranat wrote a concurring opinion in order to "refute . . . the claim that we are sitting as an appellate jurisdiction to review the judgment of the rabbinical court" (p. 666). In Cr.A. 94/65, Turjeman v. Attorney General , 19(3) P.D. 57 (1965), Agranat, with Silberg and Mani, and against the dissenting opinion of Justices Sussman and Landau, decided that the criminal law, which prohibited the "holding or administering of a place for prostitution," also applied to a place that was used by the prostitute for the dual purposes of work and residence. The case was particularly painful for Agranat because Sussman criticized Agranat's literal interpretation, calling it excessively formalistic. It appears that Agranat's formalism was designed to reach the Conservative conclusion that would permit the expansion of the war against prostitution.

After Yeredor the Conservative trend continued. See, for example, H.C. 130/66, Segev v. Rabbinical Court , 21(2) P.D. 505 (1967). Israeli Jews, married in a private ceremony, petitioned the Court to order the rabbinical courts to make a declaratory judgment about their marital status. Agranat held that because the petitioners did not exhaust their alternative remedies, the Court should not intervene. Agranat further said: "[T]his Court cannot be used--after the legislator in 1953 decided in favor of religious marriages as an exclusive option--as a forum where the struggle in favor of this reform shall be conducted" (p. 541).

To this list should be added an opinion classified as secret, upholding the government's power to censor a publication based on data obtained during an author's years in government service. Agranat, with Justices Silberg and Landau, held that the government may prohibit the publication of Isser Harel's (former Mossad chief) memoirs concerning the Eichmann abduction. The book, Isser Harel, Ha-Bayit bi-Rehov Garibaldi [The House on Garibaldi Street] (Tel Aviv: Sifriyat Maariv, 1974/1975), has since been published, but the opinion remains classified. This information is based on an untitled essay in honor of Simon Agranat written by Moshe Ben-Ze'ev (in the Agranat papers, Agranat family, Jerusalem).

However, while Agranat tilted toward a more Conservative judicial stance, his continue

judicial work as chief justice still contained the reformist elements that had characterized his earlier work. One of the most significant cases of his tenure as chief justice was the first case in which the Court exercised judicial review and invalidated a Knesset law. In H.C. 98/69, Bergman v. Minister of Treasury, 23(1) P.D. 693 (1969), a unanimous Court invalidated a campaign-financing law on the grounds that it violated the equal-protection guarantee of Basic Law: The Knesset, without meeting the procedural requirements that would validate such a violation. Agranat recalled that Justice Landau, who wrote the opinion for the Court, declined his advice to make Bergman an anonymous per curiam opinion. Another indication of his reformist inclinations is an announcement that "[t]he conference of Supreme Court justices decided that henceforth the Court will follow the principle that the fact that an attorney's fees were not paid on time should not be a justification for recusing the defense attorney from the obligation to represent his client on appeal." Simon Agranat, " Hoda'a--Se'if 15" [Announcement--Section 15 of the Criminal Procedure Law 5725-1965], 22(1) P.D. 308 (1968).

See also Ben-Moshe; Cr.A. 281/69, Bar Shalom v. State of Israel, 23(2) P.D. 85 (1969), where Agranat overruled a conviction for violation of a traffic sign, holding that drivers should not be required to ponder the meaning of vague traffic signs; and chap. 12, n. 76.

9. The ministry was in the hands of Chaim Moshe Shapira, leader of MAFDAL. But Shapira, who also served as minister of religious affairs, left the Health Ministry in the hands of his close associate, Raphael.

10. The "contribution" of 220,000 Israeli pounds was to be paid to two institutions: The Rav Kook Institute and a Yeshivah named after Rev Maimon. Both Raphael and Spiegel were involved in the affairs of these institutions. Moshe Golan, Doh Va'adat Hakira [Report of the Commission of Inquiry], 7 March 1965, 6, 33, in the author's files.

11. Levy Eshkol became prime minister in 1963 after Ben-Gurion, angry and frustrated by MAPAI's failure to heed his demands concerning "The Affair," left the government and later the party.

12. M. Golan, Doh, 33. Although the report's conclusions were made public, the report itself remained classified, thus feeding speculations and innuendo. In October 1965 the report was released as a part of the governmental effort to assuage the crisis.

13. "Ha-MAFDAL Yitba Limnoa Kfiyat Hizakekut le-Shiput Hiloni [MAFDAL Will Demand the Prevention of Coercive Secular Judicial Jurisdiction]," Ha-Arets, 23 September 1965, 3; "Raphael Says N.R.P. for Jurisdiction to Religious Courts," Jerusalem Post, 24 September 1965, 8. The rabbinical courts of Israel have exclusive jurisdiction in matters of marriage and divorce among Jews in Israel. In some other matters (personal status and succession, for example) the rabbinical courts have concurrent jurisdiction, conditioned upon the consent of all parties. Criminal law is within the exclusive jurisdiction of the secular courts. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 L.S.I. 139 (1952/1953).

14. "Lishkat Orche ha-Din Megalah Herdatah al Divre Yitzhak Raphael" [The Bar States Alarm at Raphael's Speech], Davar, 1 October 1965, 2.

15. See discussion on p. 103.

16. See also "Rejecting Raphael," Jerusalem Post, 8 October 1965, 9. Indeed, continue

within ten years MAFDAL would break its "historic alliance" with MAPAI and form a coalition with Likud. The roots of this major political shift could be found in the affair of Tel Giborim.

17. Aryeh Tsimuki, "Me-Hashash le-Hitpatrut ha-Shoftim ha-Elyonim Pursam Doh Golan [The Golan Report Was Published for Fear of the Resignation of the Justices]," Yediot Aharonot, 4 October 1965, 1; "Yefursam Gam Kovets ha-Eduyot she-Nimseru bifne ha-Shofet Golan [The Evidence Heard by Judge Golan Will Also Be Published]," Ha-Arets, 5 October 1965, 1, 3; Yosef Harif, "Ma Garam le-Pirsum ha-Doh ha-Maleh [What Caused the Publication of the Full Report]," Maariv, 4 October 1965, 11.

18. The "Agreement to Maintain the Status Quo"--that is, to maintain public religious observance (for example, shutting down transportation on the Sabbath)--was the result of fierce negotiations between Rabbi Leib Fishman Maimon, leader of MAFDAL, and Ben-Gurion in 1948. From Independence onward, secular Israelis challenged the legality of the status quo. See Rubinstein, Ha-Mishpat ha-Konstitutsyoni, 260. Rubinstein's book, the leading textbook on Israeli constitutional law, takes a decidedly secular position and is reflective of the view of mainstream secular Israelis on the issue.

19. See Justice Haim Cohn's statement in affirming Spiegel's conviction: "[The reporting of Spiegel to the police] was an exemplary act of good citizenship . . . that every law-abiding citizen and every conscientious citizen with a whiff of public responsibility is bound to make." Cr.A. 316/64, 325/64, Spiegel v. Attorney General 18(4) P.D. 7, 35 (1964). For a discussion of mamlakhtiyut, see M. Cohen, Zion and State, 228.

20. For a sample of these cases, see: H.C. 155/60, Elazar v. Mayor of Bat Yam, 14 P.D. 1511 (1960) (denying a license in order to promote a religious purpose violates the law); H.C. 262/62, Perets v. Kfar Shmaryahu, 16 P.D. 2101 (1962) (invalidating the refusal of a local community to rent a hall to Reform Jews to hold a religious service); H.C. 143/62, Funk Schlesinger v. Minister of Interior, 17 P.D. 225 (1963) (the ministry must register as married all Israeli Jews who were married abroad, regardless of the halakhic validity of the marriage); H.C. 231/63, Retef v. Minister of Trade and Industry, 17 P.D. 2730 (1963) (the Ministry of Trade and Industry cannot condition issuing an import license on the presentation of a kosher certificate from the rabbinate); H.C. 301/63, Streit v. Chief Rabbi, 18(1) P.D. 598 (1964) (the chief rabbinate cannot use the statutory exemption from bigamy [the permission to marry a second wife] as a means to coerce the first wife to agree to a divorce; this opinion was overruled in 1969 by Agranat, F.H. 10/69, Burnovski v. Chief Rabbis, 25[1] P.D. 7 [1971]); H.C. 195/64, Ha-Hevrah ha-Dromit Marbek v. Chief Rabbinical Council, 18(2) P.D. 324 (1964) (despite protestations by the rabbinical council that it is not subject to judicial review, the Court held that it would intervene when the rabbinate acted ultra vires).

21. "Shapira: Be-Inyan Raphael Paal Eshkol Tahat Lahats u-Mitoh Pahad ma Yihtevu [Shapira: In the Matter of Raphael, Eshkol Acted under Pressure and out of Fear of Public Opinion]," Yediot Aharonot, 22 October 1965, 2.

22. Agranat had started his efforts to heal the rift between the religious and the secular as soon as he was appointed chief justice. The staunchly secular Olshan was replaced by Yitzhak Kister, a devoutly religious judge. It was the first nomination continue

of a religious judge since the appointment of Justice Silberg to the bench in 1949. Kister's appointment raised the number of religious judges to two out of nine. The decidedly secular composition of the Court explains its willingness to expand the principle of the separation of church and state in the 1960s. During Agranat's tenure as chief justice, more moderate justices were appointed, thereby steering the Court away from contentious rulings on this issue. See also chap. 12, n. 8. In Israel, judges are appointed by a committee composed of members of the Supreme Court, the executive, the Knesset, and the bar, but the chief justice does have considerable influence on the decisions. See, generally, Shimon Shetreet, "Developments in Constitutional Law: Selected Topics," 24 Is. L. Rev. 368 (1990).

23. See discussion on p. 191.

24. Agranat, Judges Conference, 12-13. The remarks appear to have been made spontaneously.

1. Since 1948 Israelis have used various terms to designate the Palestinian Arabs who remained within Israeli territory: Israel's Arabs, Israeli Arabs, Palestinian Israelis, Falastini Israelis. See, generally, Dani Rabinowitz, "Nostalgiyah Mizrahit [Oriental Nostalgia]," Teoryah u-Vikoret 4 (1993): 141; Uzi Benziman and Atallah Mansour, Dayare Mishneh [Subtenants] (Jerusalem: Keter, 1992).

2. E.A. 1/65, Yeredor v. Chairman of the Central Elections Commission, 19(3) P.D. 365 (1965).

3. See Lustick, Arabs in the Jewish State; Benziman and Mansour, Dayare Mishneh; Sabri Jiryis, The Arabs in Israel, trans. Inea Bushnaq (New York: Monthly Review Press, 1976); Jacob M. Landau, The Arabs in Israel: A Political Study (London: Oxford University Press, 1969). For an analysis of the legal status of Israeli Arabs, see Kretzmer, Legal Status . In the Kafr Kassem incident of 1956, forty-seven Israeli Arabs, including fifteen women and eleven children, were massacred by members of the border police. A military court presided over by Judge Benjamin Halevy convicted eight and acquitted three of the accused. The incident fed the anger and increased the demoralization among Israeli Arabs. See Yigal Elam, Memaley ha-Pkudot [The Executors] (Jerusalem: Keter, 1990), 53-70.

4. "We also call upon the government to halt the persecution of Arabs in Israel and recognize the Arab Giant currently awaking and the peoples of Asia and Africa as the light towards which it should turn." Kifakh Al-Ard [The Struggle of Al-Ard], 7 December 1959, in the author's files.

5. H.C. 241/60, Qardosh v. Registrar of Companies, 15(2) P.D. 1151, 1154 (1961); 4 Selected Judgments of the Supreme Court of Israel 7 (1961-1962).

6. Cr.A. 228/60, Qahwaji v. Attorney General, 14(3) P.D. 1929 (1960). Qahwaji was a poet and schoolteacher. He was later dismissed from his teaching position. Al-Ard did apply for a permit to publish, but the government took its time pondering how to respond, and Al-Ard decided to publish while the application was pending. The publications contained polemical criticisms of Israel and were later used as evidence of Al-Ard's intentions. The opinion was written by Justice Landau. Agranat concurred. break

7. Qardosh, 1169. In the further hearing Agranat's majority prevailed. F.H. 16/61, Registrar of Companies v. Qardosh, 16(2) P.D. 1209 (1962); 4 Selected Judgments of the Supreme Court of Israel 32 (1961/2). One can discern an interesting pattern of increasing recognition of Israel by Al-Ard. In 1958 Al-Ard urged Arab voters to boycott the elections and thereby deny Israel legitimacy. By petitioning the Court in Qardosh, Al-Ard was signaling its readiness to offer Israeli institutions some recognition. The pattern peaked in the Yeredor case, when Al-Ard's members wished to run for the Knesset.

8. According to Jacob M. Landau, Al-Ard increased its capital from 1,500 to 120,000 English pounds. When the group was outlawed, a Haifa district court put the Al-Ard corporation out of business. See Landau, Arabs in Israel, 97, 100, 106.

9. See Jiryis, Arabs in Israel, 188; Landau, Arabs in Israel, 92-107.

10. H.C. 253/64, Jiryis v. Supervisor of Haifa District, 18(4) P.D. 673 (1964).

11. In 1961 and 1964 they attempted to attract international attention to their plight by protesting to the United Nations and foreign embassies in Israel about the "military government, expropriation of land, and the condition of Arab culture in Israel" (Landau, Arabs in Israel, 97-98). That, too, could not have endeared them to the Israeli authorities.

12. It is also possible that the Communist Party, which correctly understood Al-Ard's potential as a competitor for Arab votes, encouraged the Central Elections Committee to ban the party.

13. Yeredor, 371-73.

14. The irony of this result from the perspective of Zionism is striking. In the aftermath of the emancipation of French Jews, the slogan was "to the Jews as a nation--nothing, to the Jews as individuals--everything." In response, the Zionist movement insisted on the national rights of the Jewish people. Now the sovereign Jewish state was applying the same French slogan to the Palestinian Arabs.

15. See discussion on p. 93.

16. In interview, Agranat recalled that had he opposed efforts by the military governors to stifle Arab political speech by closing down Arab cafés under the pretext that heated discussions might cause a breach of the peace. In one case, he recalled, he ordered the reopening of such a café.

17. See discussion on p. 108.

18. Qardosh. Qardosh was the leader of Al-Ard. Agranat did, however, concur in the conviction of another Al-Ard leader. See Qahwaji . When asked about this case, Agranat said that his hands were tied because the violation of the law was so clear. Agranat's liberal view toward Arabs, however, was always tempered by the Zionist ethos. See, for example, Yoram Shachar, "Ha-Shimush be-Koah Katlani le-Bitsua ha-Din: Gold bi-Rei ha-Historyah [The Use of Lethal Force to Enforce the Law: Gold in Historical Perspective]," in Barak et al., Gvurot, 275.

19. Cohn said that the company registrar's decision was valid "whether reasonable or unreasonable, to the point or not to the point--I fear that even arbitrariness cannot suffice to invalidate such discretion." He tied this interpretation to judicial restraint, holding that the Knesset is free to change the contours of the discretion. Qardosh, 1172-73.

20. When the black-letter law served to suppress freedom, Agranat sought to continue

soften it through an interpretation that subordinated the language to the higher goals mentioned in Israel's Declaration of Independence. This was his view in both Al Couri and Kol ha-Am .

21. Qardosh , 1162.

22. Ibid., 1167.

23. Ibid., 1168-69. On the same page, he added: "My view is that to the extent that the legislature made specific and explicit arrangements, in which it vested in the executive branch the powers of 'prior' restraints on freedom of expression . . ., it is essential to insist that such powers be employed only pursuant to the conditions appearing in these arrangements through -- and this is the crucial point -- the administrative agencies designated to execute this difficult and delicate function, and through them alone" (p. 1169).

21. Qardosh , 1162.

22. Ibid., 1167.

23. Ibid., 1168-69. On the same page, he added: "My view is that to the extent that the legislature made specific and explicit arrangements, in which it vested in the executive branch the powers of 'prior' restraints on freedom of expression . . ., it is essential to insist that such powers be employed only pursuant to the conditions appearing in these arrangements through -- and this is the crucial point -- the administrative agencies designated to execute this difficult and delicate function, and through them alone" (p. 1169).

21. Qardosh , 1162.

22. Ibid., 1167.

23. Ibid., 1168-69. On the same page, he added: "My view is that to the extent that the legislature made specific and explicit arrangements, in which it vested in the executive branch the powers of 'prior' restraints on freedom of expression . . ., it is essential to insist that such powers be employed only pursuant to the conditions appearing in these arrangements through -- and this is the crucial point -- the administrative agencies designated to execute this difficult and delicate function, and through them alone" (p. 1169).

24. Further hearing, Qardosh , 1228. Olshan's reasoning centered on the fact that Agranat's limitation of the registrar's discretion reflected the Companies' Law as it obtained in Britain, not in Israel, and therefore amounted to judicial legislation.

25. Under Olshan's leadership, the chief justice retained complete control over the assignment of justices to the various panels. There is little question that this discretion enabled Olshan to manipulate the results of cases. Under Agranat's leadership, the system slowly shifted, and the panels were randomly composed by the Court's registrar. However, the chief justice still retains the privilege of assigning justices to particularly important cases.

26. The fact that Israel was the Jewish state was repeated twice in the section in which Agranat held that the "immortality -- of the State of Israel -- is a fundamental constitutional premise." Yeredor , 385-86.

27. Yaacov Yeredor, the petitioner, was a Jewish attorney and a member of a new leftist group, Ha-Peulah ha-Shemit (Semitic Action), dedicated to cooperation between Arabs and Jews. He started his political activity in the 1930s, as a supporter of the extreme nationalist leader Abba Ahi-Meir. During Israel's struggle for independence he was an active member of LEHI. In the 1950s, LEHI membership was split between the left and the right. Yeredor belonged to the leftist camp, which believed in a binational state. Later, his son, Reuven Yeredor, served as commander of Israel's high-security intelligence unit. The story is emblematic of the diverse roads to security, all in the family. Yossi Melman, "Yehidah Sodit Beyoter [A Top Secret Unit]," Ha-Arets , 14 April 1995, B4.

28. In Qardosh , 1172-73.

29. But he was too secular and modern to observe the other cardinal rule of orthodox Sabbath observance -- refraining from travel. Occasionally, he would take trips to visit family and friends.

30. Sussman filed a concurring opinion, relying on the Weimar experience and on the constitutional law of the Federal German Republic. Insisting that "life experience requires that we do not repeat the same mistake that we were all witness to [the fall of Weimar]," Sussman relied on the concept of "a fighting democracy" in the Basic Law of Germany and on a holding by the German Constitutional Court that certain principles are so sacred as to bind the Constitution itself. Yeredor , 389-90.

Sussman, born in Poland and raised in Germany, was a young referendar (clerk) in the Ausgericht Berlin—Pankow—the magistrate court of Berlin, when the Nazis continue

came to power. Days later, the chief magistrate assembled the clerks: "I have a letter here which applies to the Jews among you," he said. The letter ordered the immediate suspension of all Jewish personnel. Within three months Sussman found himself in Tel Aviv. Dr. Wulf Cegla, interview by the author, Tel Aviv, March 1984.

The comparison of Agranat's and Sussman's opinions is a fascinating illustration of the material that forms Israeli constitutional jurisprudence. Sussman wove German constitutional law into the Yeredor opinion. Agranat wove American law and experience. Thus both the fall of Weimar and the American Civil War came to influence a result related to the Palestinian-Israeli conflict in the Middle East.

31. Yeredor , 386.

32. Ibid., 387.

31. Yeredor , 386.

32. Ibid., 387.

33. Jiryis , 192.

34. Quoted in Justice Cohn's dissent: "We do not sit here as a court of law, and therefore we do not require the strenuous proof required by the law of evidence. We may be satisfied with less than would be required in a legal suit." Yeredor , 372.

35. Ibid., 370.

34. Quoted in Justice Cohn's dissent: "We do not sit here as a court of law, and therefore we do not require the strenuous proof required by the law of evidence. We may be satisfied with less than would be required in a legal suit." Yeredor , 372.

35. Ibid., 370.

36. However, some of the leaders of Al-Ard left Israel after 1965 and participated in the Arab struggle against Israel. Habib Qahwaji joined the Syrian intelligence services and was rumored to be the mastermind behind the Arab Jewish spy ring in the early 1970s. His wife, Naif Akala, was convicted in Israel for spying for Jordan. Sabri Jiryis joined the PLO and became a scholar of the Arab-Israeli conflict. See Benziman and Mansour, Dayare Mishneh , 25.

37. Jiryis , 675. The full text of Article I reads: "To raise the educational, scientific, physical, economic and political level of all its members."

38. The reference to the "contemporary political dictionary" is Justice Landau's in ibid., 680. The classic analysis of the Palestinian discourse as one containing multilayered meaning is found in Yehoshafat Harkabi, Arab Attitudes to Israel (Jerusalem: Keter, 1972).

39. Dani Rabinowitz, discussing the complex connotations attached to any term describing Israeli Arabs (or Palestinians who are Israeli citizens, which is the term he prefers) observes that in the 1950s and 1960s the term Arab "connoted a demonic and dangerous conglomerate of persons and nations . . . ready and able to coordinate powers and effort at any moment, so long as the target is inflicting an injury upon Israel. This disturbing feeling is an inseparable part of my childhood memories." Rabinowitz, "Nostalgiyah," 145.

40. I use the Arabic term here, to distinguish it from Mandatory Palestine.

41. Yeredor , 386. In interview, Agranat defended his ruling by saying, "I did what the people wanted," by which I think he meant that the cardinal precepts of Zionism had to be upheld.

42. And which Chafee himself borrowed from English legal historian Frederic William Maitland. Zechariah Chafee, Free Speech in the United States (Cambridge, Mass.: Harvard University Press, 1964), 20.

43. Yeredor , 386.

44. Ibid., 385-86, for the proposition that the Declaration of Independence has normative validity. break

45. Ibid., 386.

43. Yeredor , 386.

44. Ibid., 385-86, for the proposition that the Declaration of Independence has normative validity. break

45. Ibid., 386.

43. Yeredor , 386.

44. Ibid., 385-86, for the proposition that the Declaration of Independence has normative validity. break

45. Ibid., 386.

46. "It may be that Eichmann's trial will help to ferret out other Nazis--for example, the connection between Nazis and some Arab rulers. From what we hear on the Egyptian radio, some Egyptian propaganda is conducted on purely Nazi lines. . . . I have no doubt that the Egyptian dictatorship is being instructed by the large number of Nazis who are there." David Ben-Gurion, "The Eichmann Case as Seen by Ben-Gurion," New York Times Magazine , 18 December 1960, 7, 62.

47. It is important to note that Agranat did not altogether deny Arabs the right of representation. In a dictum he emphasized that the Declaration of Independence stated that Arabs should be adequately represented in all government institutions. Yeredor , 386.

48. "No free regime would assist and recognize a movement which strives to annihilate the same regime." Ibid., 388, quoting Justice Witkon in Jiryis , 679.

49. Ibid.

48. "No free regime would assist and recognize a movement which strives to annihilate the same regime." Ibid., 388, quoting Justice Witkon in Jiryis , 679.

49. Ibid.

50. See Segev, Seventh Million , 373.

51. Indeed, that was the theme which animated Justice Sussman's concurrence in Yeredor , 389.

52. Golda Meir, then Israel's foreign minister, said in the Knesset: "The strong connection between Hitler's regime and Cairo is known since Hitler's days. . . . [E]ighteen years after [the Holocaust] . . . the sons of this people [the Germans] reappear to partake in activity designed to destroy the state of Israel, where the Holocaust survivors have assembled." Segev, Seventh Million , 373.

53. Sir Ernst Barker, Reflections on Government (London: Oxford University Press, 1942), 405, quoted in Yeredor , 388.

54. Dennis.

55. In addition, in the early 1960s, Israel's security services had uncovered a few Soviet moles working within the Israeli security establishment. Their convictions, upheld by the Court, acquainted the justices with Soviet involvement in Israeli affairs. See, for example, Cr.A. 45/61, Cite v. Attorney General , 15 P.D. 1373 (1961); Michael Bar-Zohar, Ha-Memuneh [Isser Harel and Israel's Security Services] (Jerusalem: Weidenfeld and Nicolson, 1971), 179 (discussing the conviction of Yisrael Baer, a senior analyst in the Ministry of Defense who was convicted of espionage in 1962); Cr.A. 28/62, Ploni v. Attorney General , 16 P.D. 2305 (1962).

56. State Papers by Abraham Lincoln (1907): 9, quoted by Agranat, Yeredor , 388. Recall that Agranat wrote the entire opinion on a Saturday night. The fact that he kept a volume of Lincoln's speeches in his personal library made the insertion of the quotation in the opinion possible.

57. In his last year, he was thrilled to watch Ken Burns's epic on The Civil War on videotape.

58. Yeredor , 386.

59. In a curious way, the Eichmann trial and the heightened awareness of the Holocaust, which were meant to empower the Israelis, in fact paralyzed them. Fear for the Jewish state made it impossible to take risks or to think about the meaning of life other than in terms of mere survival. Thus the Court lost an opportunity to encourage a dialogue between Israeli Arabs and Jews.

60. Yeredor , 384. An article by a rabbi and retired professor of Hebrew, Louis Isaac Rabinowitz, in the right-wing newspaper Herut tied together the three events continue

in October—the final phase of the Tel Giborim scandal, Al-Ard, and the Judges Conference in an interesting way. The article challenged the idea that judicial decision making was objective and advised the readers that textual deconstruction could well explain the justices' worldview and thereby facilitate the prediction of results. Agranat and Sussman, the author observed, were devoted to the Jewish cause; hence their decision to sustain the ban on Al-Ard. Justice Cohn was not so devoted; hence his decision to invalidate the ban. Louis Isaac Rabinowitz, "Hakayemet Bikhlal Obyektiviyut ba-Mishpat [Is Law Objective?]," Herut , 22 October 1965, 3. The characterization of Cohn as a "bad Jew" was based on Cohn's commitment to the principle of the separation between church and state. Cohn's opinion in Spiegel and his comments, the previous year, that "because of an ancient Talmudic rule, racist-Nazi principles became law in the State of Israel" particularly enraged religious Jews. See H.C. 4/64, Vagnar v. Attorney General 18(1) P.D. 29 (1964), in which the Court rejected a petition challenging the decision not to open criminal proceedings against Justice Cohn.

61. One landmark opinion, however, stands out in this period: Bergman.

62. Benziman and Mansour, Dayare Mishneh , 111.

1. H.C. 58/68, Shalit v. the Minister of the Interior and the Population Registrar , 23(2) P.D. 477 (1969). Selected Judgments of the Supreme Court of Israel (Special Volume, 1971), 35.

2. Horowitz and Lissak, Origins , 51-64; Boas Evron, Jewish State or Israeli Nation ? (Bloomington: Indiana University Press, 1995), 172-204; Ehud Luz, Parallels Meet: Religion and Nationalism in the Early Zionist Movement (1882-1904) (Philadelphia: Jewish Publication Society, 1988).

3. David Vital, The Future of the Jews (Cambridge, Mass.: Harvard University Press, 1990), 81.

4. Ehud Sprinzak, The Ascendance of Israel's Radical Right (New York: Oxford University Press, 1991), 40 (quoting Moshe Dayan).

5. For a discussion, see Menachem Friedman, "The State of Israel as a Theological Dilemma," in The Israeli State and Society , ed. Baruch Kimmerling (New York: State University of New York Press, 1989), 203.

6. Law of Return (Amendment No. 2) 5370-1970, 24 L.S.I. 28 (1970). See Asher Maoz, "Mihu Yehudi: Rov Mehuma al lo Meuma [Who Is a Jew: Much Ado about Nothing]," 31 Ha-Praklit 271 (1978).

7. When, in 1972, Shalit petitioned the Court to register his third child, Tomer, as Jewish or, in the alternative, as "Hebrew," a unanimous panel of justices (Berinson, Kister, and Kahan) denied him relief, holding that that was an impermissible way to dodge the 1970 Amendment. H.C. 18/72 Shalit v. Minister of Interior , 26(1) P.D. 334 (1972) (the second Shalit ).

8. The Orthodox Justice Yitzhak Kahan replaced the retiring Justice Halevy. Justice Moshe Etzioni, replacing Justice Silberg, though not Orthodox, was not an avowed secularist either. See, for example, his concurring opinion in C.A. 450/70, Rogozinsky v. State of Israel , 26(1) P.D. 129, 137 (1972) (denying a petition continue

by atheist kibbutz members to recognize their "common-law" marriage ["(W)ith all the empathy I have for the conscientious argument of petitioners, I feel wholeheartedly offended by the idea that the uniform objective test of who is a Jew shall be sacrificed at the altar of freedom of conscience."]) There is no doubt that Agranat supported the elevation of these two Haifa district court judges to the Court. In 1982, Justice Kahan became the first Orthodox chief justice of Israel. See also discussion on p. 179.

9. Under Israeli law, matters of marriage and divorce are adjudicated by the religious courts, which are not bound by the data of the population registry and may make their own determination as to the religious identity of persons appearing before them. For a detailed critique of the relationship between rabbinical and secular law in matters of marriage and divorce, see Ariel Rosen-Zvi, Dine ha-Mishpahah be-Yisrael: Ben Kodesh le-Hol [Israeli Family Law: The Sacred and the Secular] (Tel Aviv: Papirus, 1990).

10. For an elaboration of this view, see A. B. Yehoshua, Between Right and Right , trans. Arnold Schwartz (Garden City, N.Y.: Doubleday, 1981), 64-68.

11. The Court first confronted the issue in the Brother Raphael matter, H.C. 72/62, Rufeisen v. Minister of Interior , 16 P.D. 2428 (1962). A Jewish Holocaust survivor who had converted to Catholicism and became a monk came to live in Israel and petitioned the Court to recognize him as Jewish under the Law of Return and grant him citizenship. All agreed that under the halakhah he remained Jewish despite his conversion. Rejecting his petition, the Court opined that the meaning of "Jewish" under the Law of Return is popular, not halakhic. Agranat did not participate in the Rufeisen panel.

12. See, generally, Sprinzak, Ascendance .

13. Galia Shalit was born on 11 February 1967. There followed lengthy correspondence between Shalit and the Ministry of Interior. Shalit filed his petition on 25 February 1968.

14. Initially, Justice Halevy, who sat in the district court during the Kasztner and Eichmann trials, was included in the panel, but he resigned in order to run for the Knesset under the Likud ticket, and the Orthodox Justice Kister took his place.

15. See discussion on p. 171.

16. Gideon Reicher, "Ish Fatah she-Imo Yehudiyah Rashai le-Herashem ke-Yehudi, va-Ani, Yelid ha-Arets, Eneni Yakhol Lirshom et Yeladay ke-Yehudim? [A Fatah Man Whose Mother Is Jewish May Be Registered as Jewish and I, Native Born, Cannot Register My Children as Jewish?]," Yediot Aharonot , 22 November 1968, 2. The headline here is particularly interesting, because the newspaper makes a distinction between the native-born man (who is Jewish) and the "other" Fatah man, thereby ignoring the fact that the Palestinians are also native born.

17. "In view of our special circumstances, when there is no practical way to supervise . . . all the borders . . . against infiltrators . . . who are a source of continuous grave danger to the state and its residents, it is essential that a legal resident in Israel will always be able to identify himself by an identity card." J. S. Shapiro, presenting the amendment in the Knesset, 56 Divre ha-Knesset 723, 725 (1970). In Hebrew, infiltrators ( mistanenim ) is a euphemism for Palestinian refugees. break

18. Shalit , 521 (per Justice Landau).

19. Justice Eliyahu Mani gave the majority its fifth vote. It is interesting that he, the only Sephardi justice on the Court, sided with its more Liberal camp. It is generally considered that Sephardi Jews have a more relaxed view of religion. Agranat, however, recalled that he had expected Mani to vote with him and was very disappointed at Mani's decision. Because Mani's opinions were typically cryptic, as was his Shalit opinion, not divulging any reasoning, it is difficult to assess his role as the first Sephardi justice on the Court.

20. Rubinstein, Ha-Mishpat ha-Konstitutsyoni , 89.

21. Cohn, Sihot , 118.

22. None of the parties to the dispute challenged the assumption that an objective test and the halakhic test were one and the same or submitted a different "objective" criterion (for example, a secular one).

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

23. See Shalit , 505 (per Justice Sussman), 492 (per Justice Silberg).

24. Ibid., 518.

25. Ibid., 498.

26. Ibid., 501.

27. Ibid., 490.

28. Ibid., 501.

29. Ibid.

30. Ibid., 606.

31. Ibid., 502.

32. The contemporary explorer of this theme is Philip Roth. The theme harks back to Proverbs 6: 24-25: "To keep thee from the evil woman, from the flattery of the tongue of a strange woman. Lust not after her beauty in thine heart; neither let her take thee with her eyelids."

33. Shalit , 584.

34. Ibid.

35. Ibid., 596, 599.

33. Shalit , 584.

34. Ibid.

35. Ibid., 596, 599.

33. Shalit , 584.

34. Ibid.

35. Ibid., 596, 599.

36. "Today pure logic denies the [discriminatory] distinction against the other [the child of the Jewish father]." Ibid., 595.

37. Ibid.

36. "Today pure logic denies the [discriminatory] distinction against the other [the child of the Jewish father]." Ibid., 595.

37. Ibid.

38. The phrase "Torah and Israel . . ." is Agranat's. Ibid., 580.

39. Ibid., 576 (quoting Ernst Barker).

38. The phrase "Torah and Israel . . ." is Agranat's. Ibid., 580.

39. Ibid., 576 (quoting Ernst Barker).

40. In the library of his late father, Aaron Agranat, he found Yehezkel Kaufmann's monumental work, Golah ve-Nekhar [Exile and Alienation] (Tel Aviv: Dvir, 1929-1932), and Chaim Tchernowitz's (Rav Tsa'ir) classic, Toldot ha-Halakhah [The History of the Halakhah] (New York, 1934). He quoted at length from his father-in-law's book, Israel Friedlaender, Past and Present: Selected Essays (New York: Burning Bush Press, 1961). Carmel's uncle, Eugen Meyer, contributed Ernst Barker, Principles of Social and Political Theory (Oxford: Clarendon Press, 1951). From his son-in-law, Oved Cohen (who the previous year had married his daughter Yael [Didi]), he borrowed S. N. Eisenstadt, Israeli Society (New York: Basic Books, 1967). His daughter Zilla, married in 1967, received from Carmel's uncle his books, Louis Finkelstein, ed., The Jews: Their History, Culture and Religion (Philadelphia: Jewish Publication Society of America, 3d ed., 1966) as a wedding gift; he now borrowed them to use in the opinion. From his son, Hillel, then a student of philosophy at the Hebrew University, he borrowed Nathan Roten- soft

streich, Ha-Mahshavah ha-Yehudit ba-Et ha-Hadasha [Jewish Thought in Modern Times] (Tel Aviv: Am Oved, 1945), and from his neighbor, Shimon Herman, he received Herbert Kelman's article, Herbert C. Kelman, "Patterns of Personal Involvement in the National System: A Social-Psychological Analysis of Political Legitimacy," in International Politics and Foreign Policy , ed. James N. Rosenau (New York: Free Press, 1969), 276.

41. Shalit , 577.

42. Ibid., 580.

43. Ibid., 585.

41. Shalit , 577.

42. Ibid., 580.

43. Ibid., 585.

41. Shalit , 577.

42. Ibid., 580.

43. Ibid., 585.

44. In support of these propositions he returned to the scholars Yehezkel Kaufmann and Rav Tsa'ir and quoted their analyses of the peculiar particularist and yet universal nature of Judaism. The Jewish people are the guardians of the Torah; in this sense they are bound to preserve its particularity. But the content of the Torah is universalist, and it is applicable to all people. Ibid., 585, 586.

45. Ibid., 586.

46. Ibid.

44. In support of these propositions he returned to the scholars Yehezkel Kaufmann and Rav Tsa'ir and quoted their analyses of the peculiar particularist and yet universal nature of Judaism. The Jewish people are the guardians of the Torah; in this sense they are bound to preserve its particularity. But the content of the Torah is universalist, and it is applicable to all people. Ibid., 585, 586.

45. Ibid., 586.

46. Ibid.

44. In support of these propositions he returned to the scholars Yehezkel Kaufmann and Rav Tsa'ir and quoted their analyses of the peculiar particularist and yet universal nature of Judaism. The Jewish people are the guardians of the Torah; in this sense they are bound to preserve its particularity. But the content of the Torah is universalist, and it is applicable to all people. Ibid., 585, 586.

45. Ibid., 586.

46. Ibid.

47. See discussion on p. 25.

48. Shalit , 589.

49. Ibid., 592-93.

50. Ibid., 592.

51. Ibid. Agranat then proceeded to quote Max Lerner for the proposition that, after World War II, one sees a trend within American Jewry "away from assimilationism and toward . . . assertion of their uniqueness and separateness as a historical community." Max Lerner, America as a Civilization: Life and Thought in the United States Today (New York: Simon & Schuster, 1957), 510. See also Shalit , 593. Agranat then quoted Melville J. Herskovits, "Who Are the Jews?" in The Jews: Their History, Culture & Religion , ed. Louis Finkelstein, 3d ed., vol. 2 (New York: Harper, 1960), 1493, who quoted Raymond Kennedy's assertion that American Jewry has both national and religious traits, which qualify them as a "religionational group." Shalit , 593.

48. Shalit , 589.

49. Ibid., 592-93.

50. Ibid., 592.

51. Ibid. Agranat then proceeded to quote Max Lerner for the proposition that, after World War II, one sees a trend within American Jewry "away from assimilationism and toward . . . assertion of their uniqueness and separateness as a historical community." Max Lerner, America as a Civilization: Life and Thought in the United States Today (New York: Simon & Schuster, 1957), 510. See also Shalit , 593. Agranat then quoted Melville J. Herskovits, "Who Are the Jews?" in The Jews: Their History, Culture & Religion , ed. Louis Finkelstein, 3d ed., vol. 2 (New York: Harper, 1960), 1493, who quoted Raymond Kennedy's assertion that American Jewry has both national and religious traits, which qualify them as a "religionational group." Shalit , 593.

48. Shalit , 589.

49. Ibid., 592-93.

50. Ibid., 592.

51. Ibid. Agranat then proceeded to quote Max Lerner for the proposition that, after World War II, one sees a trend within American Jewry "away from assimilationism and toward . . . assertion of their uniqueness and separateness as a historical community." Max Lerner, America as a Civilization: Life and Thought in the United States Today (New York: Simon & Schuster, 1957), 510. See also Shalit , 593. Agranat then quoted Melville J. Herskovits, "Who Are the Jews?" in The Jews: Their History, Culture & Religion , ed. Louis Finkelstein, 3d ed., vol. 2 (New York: Harper, 1960), 1493, who quoted Raymond Kennedy's assertion that American Jewry has both national and religious traits, which qualify them as a "religionational group." Shalit , 593.

48. Shalit , 589.

49. Ibid., 592-93.

50. Ibid., 592.

51. Ibid. Agranat then proceeded to quote Max Lerner for the proposition that, after World War II, one sees a trend within American Jewry "away from assimilationism and toward . . . assertion of their uniqueness and separateness as a historical community." Max Lerner, America as a Civilization: Life and Thought in the United States Today (New York: Simon & Schuster, 1957), 510. See also Shalit , 593. Agranat then quoted Melville J. Herskovits, "Who Are the Jews?" in The Jews: Their History, Culture & Religion , ed. Louis Finkelstein, 3d ed., vol. 2 (New York: Harper, 1960), 1493, who quoted Raymond Kennedy's assertion that American Jewry has both national and religious traits, which qualify them as a "religionational group." Shalit , 593.

52. Shalit , 594.

53. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 L.S.I. 135 (1952/1953), invested the rabbinical courts with a monopoly in matters of the marriage and divorce of Jews in Israel.

54. The concept of bastards under Jewish law applies to incestual, not to out-of-wedlock, relationships. A bastard cannot marry a Jew. See, generally, Ben Zion Schereschewsky, Dine Mishpahah [Family Law in Israel], 4th ed. (Jerusalem: Reuben Mass, 1992), 353-55.

55. Shalit , 394.

56. In C.A. 630/70, Tamarin v. State of Israel , 26 (1) P.D. 197 (1972), the petitioner stated that upon immigrating to Israel he felt both Croatian and Jewish. That gave Agranat another occasion to discuss the American Jewish community: "I only wish to state that it is not necessary that a person with two ethnic identities, will feel in certain situations that these identities conflict, but it is quite possible that their influences will coincide or affect him through mutual interaction, so that he might behave without feeling a conflict." And he quoted L. D. Brandeis: "[T]o be good Americans we must be good Jews, and to be good Jews we must be Zionists." Ibid., 205. break

57. Amending the law to validate only conversions that are recognized by the halakhah or by Orthodox Jewry would deny recognition of the Conservative and Reform conversions in the United States. Rubinstein, Ha-Mishpat ha-Konstitutsyoni , 183-87. See also note 74 below.

58. Shalit , 595.

59. Ibid., 503. Silberg's emphasis.

60. Ibid., 600.

58. Shalit , 595.

59. Ibid., 503. Silberg's emphasis.

60. Ibid., 600.

58. Shalit , 595.

59. Ibid., 503. Silberg's emphasis.

60. Ibid., 600.

61. Ahad ha-Am, Al Parashat Drakhim: Kovets Maamarim [At the Crossroads: Collected Essays], 2d ed., vol. 1 (Jerusalem: Dvir, 1949), 151.

62. Shalit , 598.

63. Ahad ha-Am, Parashat Drakhim , 158. Emphasis deleted.

64. Ibid., 159.

63. Ahad ha-Am, Parashat Drakhim , 158. Emphasis deleted.

64. Ibid., 159.

65. See discussion on p. 19. The phrases "Be patient till the last" and "with himself at war" come from Shakespeare, Julius Caesar , Act I, Scene 2, line 45 and Act I, Scene 2, line 169, respectively. See also discussion on p. 21. Within two years, in Tamarin , Agranat, speaking for the Court, rejected a petition to register an Israeli born in Croatia as Israeli rather than Jewish, arguing that the emerging Israeli identity should retain a religious element, but that there is room within the Jewish nation for a secular perspective, and that Israel is built on "Liberal-secular elements" which will enable the petitioner to fight for his views in the political process. Tamarin , 222.

66. Horwitz, Transformation , 253. See also White, Patterns , 144; Henry M. Hart and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law , prepared for publication by and containing an introductory essay by William N. Eskridge Jr. and Philip P. Frickey (Westbury, N.Y.: Foundation Press, 1994).

67. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Ind.: Bobbs-Merrill, 1962).

68. Barak is now chief justice, and Zamir an associate justice, on Israel's Supreme Court. As a law student at the Hebrew University at the time, I still remember the enthusiasm of Barak and Zamir about this "new approach." In 1970 Zamir published an article recommending the repeal of the word justice in the statute defining the Court's jurisdiction, so that judicial considerations would be purely objective. See Itzhak Zamir, "Al ha-Tsedek be-Vet ha-Mishpat ha-Gavohah le-Tsedek [On Justice at the High Court of Justice]," 26 Ha-Praklit 212 (1970). But this was not the only trend in Israeli law at the time. Amnon Rubinstein, then a young lecturer at Tel Aviv Law School, published an article calling on the legal profession to recognize the difference between formal and substantive justice and not to ignore the latter. See Amnon Rubinstein, "Shilton ha-Hok: ha-Tfisah ha-Formalit veha-Mahutit [The Rule of Law: Formalistic versus Substantive Approach]," 22 Ha-Praklit 453 (1966). Rubinstein's call was heeded fifteen years later, after Barak had joined the Supreme Court and adopted a more substantive, less processual approach to decisional law.

69. Moshe Landau, "Koho shel Bet ha-Mishpat u-Migbalotav [The Court's Power and Its Limitations]," 10 Mishpatim 196 (1979/80).

70. Shalit , 600.

71. Consensus was another term brought to esteem as a justifying construct for continue

judicial review by adherents of the school of legal process. See Harry H. Wellington, "Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication," 83 Yale L. J. 221, 284 (1973).

72. David Ben-Gurion, "Hahlatat ha-Memshalah be-Inyan mihu Yehudi: Maaseh ha-Noged ofya shel Medinatenu [The Government's 'Who Is a Jew' Decision: An Act Which Is Contrary to the Character of Our State]," Maariv, 6 February 1970, 11.

73. H.C. 4/69, Ben-Menashe v. Minister of Interior, 24(1) P.D. 105, 106 (1970), decided on 28 January 1970.

74. But there was no majority for requiring that conversion be performed "in accordance to the halakhah." That meant that conversion in accordance with the Reform or Conservative movements could be recognized as valid. More than a decade later, Yitzhak Shamir's government was about to conclude another deal with the religious parties and add the words "in accordance with the halakhah" to the law. The bill was defeated, largely because of the solid opposition of the American Jewish community. Ari L. Goldman, "21 Jewish Groups Deplore Israeli Bill," New York Times, 15 January 1985, 6; Thomas L. Friedman, "Israel Assembly, 62 to 51, Rejects Move to Redefine 'Who Is a Jew,'" ibid., 16 January 1985, 1.

75. H.C. 40/70, Becker v. Minister of Defense, 24(1) P.D. 238 (1970); H.C. 287/69, Miron v. Minister of Labour and Broadcast Authority, 24(1) P.D. 337 (1970).

76. The Court again refused to intervene in the matter of Saturday broad-casting in H.C. 80/70, Elizur v. Broadcasting Service, P.D. 24(2) 649 (1970).

In H.C. 161/70, Zaksh v. Mayor of Petach Tikva, P.D. 24(1) 698 (1970), Agranat denied a petition by a rabbi to shut movie and entertainment establishments on Saturday nights because they violated the freedom of exercise of religion of Orthodox Jews, on the grounds of no standing. In H.C. 222/68, Hugim Leumiyim v. Minister of the Police, 24(2) P.D. 141 (1970), a five-member panel rejected a petition to order the police to refrain from preventing petitioners from praying on the Temple Mount and to order the police to provide protection for petitioners as they exercised their religious practices. The issue was extremely volatile because it threatened to escalate the potent conflict between Jews and Muslims over the holy places. Agranat held that the Court lacked jurisdiction in this matter and that the issue was not justiciable.

In H.C. 243/71, Shik v. Minister of Interior, 26(2) P.D. 33 (1972), Agranat denied a woman's petition to change her name to the name of her companion, with whom she had established a home and had had two children. The petitioner stated that she was philosophically opposed to religious marriage, the only form of marriage available in Israel. Writing for the Court, Agranat let stand the government's position that the change might mislead the public to assume the couple was married.

In H.C. 442/71, Lansky v. Minister of Interior, 26(2) P.D. 337 (1972), Agranat, speaking for a unanimous five-member panel, held that the minister of the interior could invoke section 2 of the Law of Return to deny the petitioner, who was linked to organized crime in the United States, an immigrant visa, for fear that he might endanger the public peace.

In H.C. 89/71, Fauzi Al-Asmar v. Chief of the Central Command, 25(2) P.D. 197 (1971), Agranat denied a petition by an Israeli-Arab author and journalist, a former member of the outlawed Al-Ard, against a restraining order confining him continue

to the town of Lod. Al-Asmar argued that he could only make a living and socialize in Tel Aviv. Speaking for the Court, Agranat declined to interfere with the judgment of the military commander who had imposed the order.

In H.C. 148/73, Kaniel v. Minister of Justice, 27(1) P.D. 794 (1973), the Court rejected, per curiam (with Agranat on the panel), a challenge to an amendment to the elections law as violating the equality principle in section 4 of Basic Law: The Knesset, thereby refusing to extend the Bergman precedent to substantive violations that did meet the formal legislative requirements (61 votes). See also Tamarin .

In 1971 Agranat, overruling an important precedent and urging judicial restraint in statutory interpretation, held that the rabbinical authorities had the power to allow a married man to marry a second wife without violating the bigamy laws. Justices Sussman, Berinson, and Mani, members of the Shalit majority, joined Agranat with Justice Haim Cohn in dissent. F.H. 10/69, Burnovski v. Chief Rabbi, 25(1) P.D. 7 (1971). The case enabled the rabbis to overcome the problem of recalcitrant wives. The plight of agunot (anchored women) remains unresolved.

However, in Marriage Dissolution Petition 13/70, Rivkin v. Rivkin, 25(1) P.D. 309 (1971), Agranat criticized action by the rabbinical court in a matter concerning the divorce of a Jew and a non-Jew who had been married by a reform rabbi in New York, holding that the (secular) district court had jurisdiction. In H.C. 1/72, In re Holzman, 26(2) P.D. 85, 90 (1972), in a dictum, Agranat opined that Reform conversions in the United States were valid. Agranat also retained his Liberal attitude in matters of criminal procedure. In C.A. 44/72, Shimshi v. State of Israel, 26(1) P.D. 654, 657 (1972), Agranat emphasized the limits on the powers of policemen and insisted that in a criminal trial, the subject of which is personal liberty, an appellant should not be prevented from making a significant legal argument only because he or his attorney had failed to make that argument at the court below.

1. Robert Slater, Warrior Statesman: The Life of Moshe Dayan (New York: St. Martin's Press, 1991), 352-66.

2. C.A. 604/72, Yurman v. "Hasneh" Insurance, 28(1) P.D. 141 (1974).

3. Ronnie recovered, completed his studies, and joined the Physics Department at the Hebrew University in Jerusalem. The Yurman decision was signed by the Court on 26 November 1973. Ronnie had been wounded on 16 October. It appears that Agranat had circulated his opinion during the war and that in the intervening weeks Justices Sussman and Kahan had completed their majority opinion. Retired Chief Justice Olshan, whose only child, Yoram, died in the aftermath of the Yom Kippur War while serving as a reservist, wrote about the pain of a parent whose child died in war: "I always thought that I could feel the pain of these parents . . . that with time . . . the wound heals, and I believed that logic and persuasion could help in keeping the depression under control. But my misfortune taught me that it is a mistake for one who never experienced this to think that he can understand and feel . . . what transpires in the heart of the . . . parent. . . . continue

[E]xcept for when I sleep, not even a moment passes without my seeing Yoram before me." Olshan, Din u-Dvarim, 378-79.

4. Agranat held that the Court had jurisdiction to amend the decision against the driver to include a proviso that the judgment should not affect the insurance company's defense. Yurman, 153.

5. The Hebrew words bituah (insurance) and bitahon (security) have the same root.

6. As represented most forcefully in Haim Goury, Pirhey Esh [Flowers of Fire], the most popular collection of poems published after the War of Independence. See Dan Miron, Mul ha-Ah ha-Shotek [Facing the Silent Brother] (Jerusalem: Keter, 1992), 199-234.

7. William B. Quandt, Camp David: Peacemaking and Politics (Washington, D.C.: Brookings Institution, 1986), 112. Sharm-al-Sheik, returned to Egypt under the peace treaty, was conquered by Israel in the Six Day War.

8. Yurman, 153.

9. The watershed event in the Watergate scandal, known as the Saturday Night Massacre, when President Nixon fired Special Prosecutor Archibald Cox, reported that Attorney General Elliot Richardson and his deputy, William Ruckelshaus, had resigned, and announced that the Office of the Special Prosecutor was being abolished, occurred on 20 October 1973. In the preceding days the media had focused simultaneously on Nixon's negotiations with the special prosecutor and his handling of the raging war in the Middle East. Richard Nixon, The Memoirs of Richard Nixon (New York: Grosset & Dunlap, 1978), 920-42.

10. Fighting, particularly on the Syrian front, erupted frequently. Israel, Egypt, and Syria were negotiating disengagement agreements. Henry Kissinger, who launched his shuttle diplomacy then, did not make a secret of his preference for dealing with Meir and Dayan. Any of these reasons militated in favor of stability. See, for example, Golda Meir, My Life (London: Weidenfeld & Nicolson, 1976), 378-81; Moshe Dayan, Avne Derekh [Story of My Life] (Jerusalem: Idanim, 1976), 724-35; Abba Eban, Personal Witness: Israel through My Eyes (New York: G. P. Putnam's, 1992), 554-55, 562-63.

11. See, generally, Zeev Segal, "The Power to Probe into Matters of Vital Public Importance," 58 Tulane L. Rev. 941 (1984).

12. Matti Golan, "Vaadat Hakira Mamlakhtit Turkav ba-Yamim ha-Krovim [A Commission of Inquiry Will Be Established Shortly]," Ha-Arets, 19 November 1973, 1. The news about Ben-Gurion appeared on the same page. Ben-Gurion died on 1 December 1973.

13. The argument about favoritism rested on the fact that in 1967 Yadin, as advisor to Prime Minister Eshkol, had strongly lobbied to appoint Dayan minister of defense. Dan Hanegbi, "Yadin," Yediot Aharonot Magazine: Yamim, 6 July 1984, 12-13. Laskov was appointed military ombudsman by Dayan after two years of unemployment. Mordecai Naor, Laskov (Jerusalem: Keter, 1988), 334, 337. See also Slater, Warrior, 380.

14. Editorial, "Herkev Meule [Excellent Composition]," Ha-Arets, 23 November 1973, 5. For praise from public figures, see Haviv Kenaan, "Reactions," ibid., 22 November 1973, 2.

15. Of the 120 seats in the Knesset, the Alliance won 51 (down from 56), and continue

the Likud 39 (up from 33). RATZ, a new party founded by Shulamit Aloni, won 3 seats, and MAFDAL held onto its 10 seats.

16. Indeed, it may well be that during the elections of 31 December 1973 the people did not have the courage to perform the task and were hoping that the commission would do it for them. It could also be that the commission interpreted the popular vote in favor of Golda Meir's government as an indication that the people still trusted its leadership. A poll taken during the last week of November 1973 reflected the public confusion. Almost 56 percent of the respondents believed that some leaders should draw personal conclusions (a euphemism for resignation); slightly more than 24 percent believed that personal conclusions should not be drawn; and just under 20 percent had no opinion. More than 50 percent of those who favored personal conclusions could not decide which leaders should be required to resign; 73 percent believed that Dayan should not be replaced. Ha-Arets, 23 November 1973, 1-2.

17. For a description of public anger expressed at Dayan, see, for example, Slater, Warrior, 378; "Waterloo Be-Bar-Ilan [Waterloo at Bar-Ilan]," Ha-Olam ha-Zeh, 25 December 1974, 15. For a discussion of the protest movements, see Gad Barzilai, Demokratyah be-Milhamot [A Democracy in Wartime] (Tel Aviv: Sifriat Poalim, 1992), 163-73.

18. The full reports were declassified following a petition to the Court by Maariv . See "Bagats Maariv: ha-Nimukim ha-Ikariyim [The Maariv Petition: The Main Arguments]," Maariv Magazine, 24 September 1993, 11.

19. The quotes are from Eban, Personal Witness, 564. The following is a sample of the criticism after the report had been submitted: in the cabinet meeting, Yitzhak Rabin, then minister of labor, called the report "fundamentally defective" and suggested that it be returned to the commission (Yosef Harif, "Tsfouyim Zaazouim ba-Memshalah uva-Maarakh be-Ikvot ha-Tviot le-Hadahat Moshe Dayan [Shake-ups Expected in the Cabinet and the Alliance following the Demands to Impeach Moshe Dayan]," Maariv, 4 April 1974, 1); a front page editorial in Davar accused the report of applying a double standard ("Doh Agranat: Tsarikh le-Vatsea, u-Mutar le-Vaker [The Agranat Report: Must Be Implemented and Can Be Criticized]," Davar, 3 April 1974, 1); Yitzhak Ben-Aharon, Labor's venerated leader, called the day the report was submitted "a dark day for Israeli law" (quoted in Eliyahu Salpeter, "Mehol ha-shedim [Dance Macabre]," Ha-Arets, 5 April 1974, 16); the Moked Party in the Knesset (left wing) condemned the report as a part of a cover-up ("Moked: Doh Agranat Meavet u-Mehape [Moked: The Agranat Report Distorts and Covers Up]," Maariv, 4 April 1974, 2); Amnon Rubinstein, Israel's leading constitutional law expert, opined that the report was flawed because it ignored a whole body of Israeli law related to the powers of the minister of defense ("Doh Agranat: He'arot Mishpatiyot [The Agranat Report: Legal Comments]," Ha-Arets, 9 April 1974, 11).

Although public condemnation was widespread, there were also voices of caution, defending the commission: Editorial, "Vaadat Agranat veha-Politikah [The Agranat Commission and Politics]," Ha-Arets, 5 April 1974, 15; Shalom Rosenfeld, "Medinat Mishpat oh Medinat Lintch? [A State of Law or a State of Lynching?]," Maariv, 5 April 1974, 13-4.

20. Vaadat Agranat, Din ve-Heshbon Vaadat Agranat: Vaadat ha-Hakira Mil- soft

hemet Yom ha-Kippurim [Agranat Commission Report: Report of the Commission of Inquiry, the Yom Kippur War] (Tel Aviv: Am Oved, 1975), 44.

21. Ibid., 34-43. The commission recommended that the head of the intelligence services and other intelligence officers no longer serve in the intelligence branch, that the chief of the Southern Command be suspended, and that the service of the chief of staff be terminated.

22. Ibid., 19-21.

20. Vaadat Agranat, Din ve-Heshbon Vaadat Agranat: Vaadat ha-Hakira Mil- soft

hemet Yom ha-Kippurim [Agranat Commission Report: Report of the Commission of Inquiry, the Yom Kippur War] (Tel Aviv: Am Oved, 1975), 44.

21. Ibid., 34-43. The commission recommended that the head of the intelligence services and other intelligence officers no longer serve in the intelligence branch, that the chief of the Southern Command be suspended, and that the service of the chief of staff be terminated.

22. Ibid., 19-21.

20. Vaadat Agranat, Din ve-Heshbon Vaadat Agranat: Vaadat ha-Hakira Mil- soft

hemet Yom ha-Kippurim [Agranat Commission Report: Report of the Commission of Inquiry, the Yom Kippur War] (Tel Aviv: Am Oved, 1975), 44.

21. Ibid., 34-43. The commission recommended that the head of the intelligence services and other intelligence officers no longer serve in the intelligence branch, that the chief of the Southern Command be suspended, and that the service of the chief of staff be terminated.

22. Ibid., 19-21.

23. The Kahan Commission, appointed in 1983 to investigate Israeli involvement in the massacre at Sabra and Shatila, was bolder in its evaluation of the responsibility of the civilian leadership. While retaining the approach taken by the Agranat Commission, it gave a broader interpretation to the notion of "personal responsibility" and found that Minister of Defense Ariel Sharon was so responsible. But even the Kahan Commission was cautious not to intervene too heavily in political affairs and couched its recommendations in ambiguous language. Sharon was removed from his position as minister of defense but remained in the cabinet as minister without portfolio. See Segal, Power to Probe , 969-70.

24. Yaacov Hisdai, "Pirsum ha-Doh Tsoreh Leumi [Publication of the Report Is a National Imperative]," Maariv Magazine , 24 September 1993, 12-13.

25. See n. 19 above.

26. Zvi Lanir, Ha-Haftaah ha-Bsisit: Modiin be-Mashber [Fundamental Surprise: The National Intelligence Crisis] (Tel Aviv: Ha-Kibbutz ha-Meuhad, 1983), 55-59.

27. See, for example, Meron Medzini, Ha-Yehudia ha-Gea: Golda Meir va-Hazon Yisrael: Biyografyah politit [The Proud Jewess: Golda Meir and the Vision of Israel] (Jerusalem: Idanim, 1990), 359-409; Eban, Personal Witness , 492-555; Henry Kissinger, Years of Upheaval (London: Weidenfeld and Nicolson, 1982), 459.

28. See, for example, Lanir, Ha-Haftaah , 55-59; Uri Milstein, Krisah ve-Likhah: mi-Sadat le-Arafat [The Lesson of a Collapse: From Sadat to Arafat] (Kiron: Seridut, 1993), 96-98.

29. Vaadat Agranat, Din ve-Heshbon , 49.

30. See, for example, David Elazar's letter of resignation: "I refute the fundamental approach of the Commission regarding the respective jurisdictions of the minister of defense and the chief of staff. . . . In reality . . . the minister of defense was an operational authority above the chief of staff and all the operational and tactical plans before the war were submitted for his approval." Ibid., 146.

31. Ibid., 46, quoting Dayan's speech to the General Command on 21 May 1973: "I am now speaking as the representative of the government, also on the basis of information. We, the cabinet, say to the general command, gentlemen, please get ready for war where those threatening to open it are Egypt and Syria."

30. See, for example, David Elazar's letter of resignation: "I refute the fundamental approach of the Commission regarding the respective jurisdictions of the minister of defense and the chief of staff. . . . In reality . . . the minister of defense was an operational authority above the chief of staff and all the operational and tactical plans before the war were submitted for his approval." Ibid., 146.

31. Ibid., 46, quoting Dayan's speech to the General Command on 21 May 1973: "I am now speaking as the representative of the government, also on the basis of information. We, the cabinet, say to the general command, gentlemen, please get ready for war where those threatening to open it are Egypt and Syria."

32. See Eli Zeira, Milhemet Yom Ha-Kippurim: Mitos mul Metsiut [The October '73 War: Myth against Reality] (Tel Aviv: Yediot Aharonot, 1993), 106-7.

33. Ibid., 242-43.

32. See Eli Zeira, Milhemet Yom Ha-Kippurim: Mitos mul Metsiut [The October '73 War: Myth against Reality] (Tel Aviv: Yediot Aharonot, 1993), 106-7.

33. Ibid., 242-43.

34. Dayan's legal advisor was Elyakim Rubinstein, who later played important roles in the Camp David accords and the peace treaty with Jordan. Zeira claimed that Agranat himself advised him not to be represented by an attorney. Ibid., 190. David Elazar also said that he did not consult an attorney. Yaacov Erez, "Daddo: Ani lo Kofer be-Ahrayut ha-Ramatkal [Daddo: I Do Not Deny the Responsibility of the Chief of Staff]," Maariv , 5 April 1974, 1. break

35. Agranat relied on several sources, among them S. A. de Smith, Judicial Review of Administrative Law , 2d ed. (London: Stevens, 1968), 170-71, and Ivor Jennings, The British Constitution , 5th ed. (Cambridge, England: Cambridge University Press, 1968), 153-54. Vaadat Agranat, Din ve-Heshbon , 44.

36. See discussion on p. 216.

37. Vaadat Agranat, Din ve-Heshbon , 26.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

38. The report's description of Meir's government can only be read as criticism: the commission described how the institution previously in charge of security matters--the Ministerial Committee for Security Affairs--was expanded to include almost all members of the cabinet "for the sole purpose of guaranteeing thereby the secrecy of its deliberations" and thus to cure the problem of leakages. As a result, the committee ceased to perform its original function--serious deliberation of national security. This task, in turn, was vested in the "kitchen." Members of the "kitchen" who did not live in Tel Aviv did not take part in the critical decisions made on Yom Kippur. Ibid., 27.

39. Ibid., 28. The commission recommended that during war the government should authorize the prime minister to establish a war cabinet of not more than five persons who would make decisions related to the war, thereby permitting other ministers to continue to attend to other important matters.

40. Ibid., 30. The commission recommended the appointment of a national security council in the prime minister's office. The commission fell short of censuring the government for having failed to implement similar recommendations made in 1963.

41. Ibid., 45.

42. Ibid., 63, 80.

43. Ibid., 58.

44. Ibid., 95.

45. Ibid., 94.

46. Ibid.

47. See Uri Ben-Eliezer, "Uma be-Madim u-Milhama: Yisrael bi-Shnotehah ha-Rishonot [The Nation-in-Arms and War: Israel in Its First Years]," Zmanim 59 (1994): 50; Baruch Kimmerling, "Al Militarism be-Yisrael [Militarism in Israeli Society]," Teoryah u-Vikoret 4 (1993): 123.

48. This was also true about the feelings in the army. See Zeev Schiff, "Retia Psihologit be-Tsahal Midoh Agranat [A Psychological Reaction in the Army against the Agranat Report]," Ha-Arets , 2 February 1975, 3.

49. See Moshe Negbi, Namer shel Neyar [Paper Tiger: The Struggle for Press Freedom in Israel] (Tel Aviv: Sifriat Poalim, 1985), 37-40.

50. The Alliance's slogan during the 1973 election campaign, before the war.

51. See n. 19 above.

52. See, for example, Uzi Benziman, "Sodiyut Mugzemet [Exaggerated Secrecy]," Ha-Arets , 11 December 1973, 9.

53. "As we mention these phenomena, it has not been our aim to ask for correction of a personal wrong. Our main aim is to explain that the tense--and oftentimes foul--atmosphere . . . could have impaired the credibility of the . . . [commission], and turned our very onerous mission almost unbearable." Vaadat Agranat, Din ve-Heshbon , 63. break

54. See, for example, Gaby Baron, "Keshe-Hitbakesh ha-Shofet Agranat Lehagiv al ha-Doh Histapek Etmol be-Hafrahat Anney-Ashan mi-Miktarto [When Justice Agranat Was Asked Yesterday to React to the Report, He Only Puffed His Pipe]," Yediot Aharonot , 31 January 1975, 1.

55. Vaadat Agranat, Din ve-Heshbon , 61.

56. Ibid., 62.

57. Ibid.

58. Ibid., 63.

59. Ibid.

55. Vaadat Agranat, Din ve-Heshbon , 61.

56. Ibid., 62.

57. Ibid.

58. Ibid., 63.

59. Ibid.

55. Vaadat Agranat, Din ve-Heshbon , 61.

56. Ibid., 62.

57. Ibid.

58. Ibid., 63.

59. Ibid.

55. Vaadat Agranat, Din ve-Heshbon , 61.

56. Ibid., 62.

57. Ibid.

58. Ibid., 63.

59. Ibid.

55. Vaadat Agranat, Din ve-Heshbon , 61.

56. Ibid., 62.

57. Ibid.

58. Ibid., 63.

59. Ibid.

60. "Journalists and publishers who take the liberty to publish such things cannot argue that it is in the public interest. The Law decides what is permissible and what is forbidden in the public interest, and once the legislature has spoken all arguments about the public interest are terminated." Ibid., 64.

61. Ibid.

60. "Journalists and publishers who take the liberty to publish such things cannot argue that it is in the public interest. The Law decides what is permissible and what is forbidden in the public interest, and once the legislature has spoken all arguments about the public interest are terminated." Ibid., 64.

61. Ibid.

62. See discussion on pp. 11, 112.

63. But see his classified opinion, in the late 1960s, sustaining the censorship of a book on Eichmann's abduction, discussed in chap. 10, n. 8.

64. Vaadat Agranat, Din ve-Heshbon , 62-63.

65. See discussion on p. 42.

66. The commission had to decide whether it would allow the officers to conduct cross-examinations of witnesses and bring evidence to refute charges against them. At stake were sections 15(a) and (b) of the Commissions of Inquiry Law (1968), which stated that persons who might be damaged by the inquiry could defend themselves before the commission, through the presentation of evidence or through cross-examination. See Commissions of Inquiry Law, 23 L.S.I. 32 (1968) as amended 26 L.S.I. 30 (1972) and 33 L.S.I. (1979). The commission decided that a literal application of these sections would "absolutely undermine the inquiry, by irreparable entanglement of its processes" and gave the law an excessively narrow interpretation that denied the right to conduct a cross-examination or bring evidence, when the commission intended to rest its conclusions on the officer's own testimony or on documents to which he had been a party. Vaadat Agranat, Din ve-Heshbon , 15-16. General Shmuel Gonen, chief of the Southern Command during the war, who was suspended by the commission, petitioned the Court twice, arguing that this interpretation violated his rights and the statutory language. The Court denied his petitions, reasoning that justice did not require judicial intervention. H.C. 128/74, Shmuel Gonen v. Vaadat ha-Hakirah , 28(2) P.D. 80 (1974); H.C. 469/74, Shmuel Gonen v. Vaadat ha-Hakirah , 29(1) P.D. 635 (1975).

67. This was so both because two of the Court's most senior justices were members of the commission and because the public perceived the denial of Gonen's petition as an effort by the Court to assist the commission.

1. See, for example, F.H. 30/75, Koby v. State of Israel , 30(2) P.D. 757 (1976); Cr.A. 515/75, Katz v. State of Israel , 30(3) P.D. 673 (1975). The only opinion related to constitutional law in these volumes is H.C. 549/75, Noah Films Ltd. v. Film and continue

Theatre Censorship Board , 30(1) P.D. 757 (1975), reversing the board's decision to deny a permit to show the film Guardian of the Night . The board reversed its decision to grant the permit on the ground that the film might hurt the feelings of Holocaust survivors.

2. Agranat learned about the practice from Sir Leon Radzinowicz's account of James Fitzjames Stephen's retirement from England's High Court. See Leon Radzinowicz, Sir James Fitzjames Stephen: Selden Society Lectures (Menston, England: Scolar Press, 1975), 42-43. I am indebted to David Seipp for tracing this information for me.

3. The last reported case with Agranat as a panel member is C.A. 44/76, ATA Textile Company v. Schwartz , 30(3) P.D. 785 (1976). This decision is dated 5 September 1976. Justice Shamgar wrote the opinion, with Justices Agranat and Landau concurring. Agranat's very last opinion, in which he sat as a single judge, was not published.

4. For several years he taught a seminar at Bar-Ilan University Law School. Agranat also taught at Yeshiva University in New York and at Santa Clara University School of Law in California as a visiting professor of law.

5. Agranat's major writings during this period were: "The Philosophy of Morris R. Cohen: A Symposium"; "The Madrid Conference Demonstration Trial: Opinion in Rescue of Hostages Case," 16 Is. L. Rev. 142 (1981); "Trumatah shel ha-Rashut ha-Shofetet le-Mifaal ha-Hakikah [The Contribution of the Judiciary to the Legislative Endeavor]," 10 Iyune Mishpat 233 (1984); "Hitpathuyot ba-Mishpat ha-Plili [Developments in the Criminal Law]," 11 Iyune Mishpat 33 (1985).

6. Among these prizes were honorary degrees from the Jewish Theological Seminary, from Ben-Gurion University, and from the Hebrew University. In 1986 he received the Sussman Prize, for--among other things--his "Life work of truth and justice" and "For the example he set, in theory and in practice, to the future generations." In 1990 he was recognized by the bar for "being among the founders of democracy in Israel, for his unique contribution to laying down the principles of the rule of law, for his judicial opinions that shaped the principles of political and human rights, and for educating generations of law students." Agranat papers, Agranat family, Jerusalem.

7. See, generally, Moshe Negbi, Me'al la-Hok: Mashber Shilton ha-Hok be-Yisrael [Above the Law: The Constitutional Crisis in Israel] (Tel Aviv: Am Oved, 1987); Pnina Lahav, "A Barrel without Hoops: The Impact of Counterterrorism on Israel's Legal Culture," 10 Cardozo L. Rev. 529 (1988); Dan Simon, "The Demolition of Houses in the Israeli Occupied Territories," 19 Yale J. Int'l L. 1 (1994); Sprinzak, Ascendance . In 1988 Agranat agreed to serve as president of the Israeli Association of Civil Rights (ACRI), thereby lending the young organization his prestige and authority. This was a significant step on Agranat's part, and it attests to his commitment to political and civil rights. The legal establishment frowned on his decision, and some members of his family advised him against it, because ACRI was constantly challenging human-rights violations, thereby causing embarrassment to the government and to the Court. Agranat's decision to assist ACRI is another indication that his prudent approach during his service as chief justice stemmed more from his conception of his position than from a change of heart about the need to protect rights in and by the Israeli polity. break

8. Compare with Agranat's own 1925 dismissal of the Talmud in "Concerning the Hebrew University."

9. The phrase was suggested to the family by Justice Cohn, who had contributed an article on the subject to the Festschrift published in honor of Agranat's eightieth birthday. See Haim Cohn, "Din Emet La-Amito," in Barak et al., Gvurot, 35. The Talmud explains that "[t]he one who judges the truth truthfully is like an accomplice to the Lord in the Creation." And "a truthful judgment is when the truth inheres in the heart of the judge; judging the truth truthfully means that that truth has accomplished its mission, a just judgment." Ibid., 86.

1. Paul Goldberger, "Public Work That Ennobles as It Serves," New York Times, 13 August 1995, H30.

2. After 1967 Agranat declined to move the Supreme Court to East Jerusalem. In response to my question, "Why?" he said, cryptically, "There are enough good places in Hebrew Jerusalem."

3. In 1973 Agranat participated in a ceremony to lay the foundations for a Supreme Court building on Mount Scopus. Golda Meir's government pledged to underwrite the building, but the Yom Kippur War brought about the suspension of these plans.

4. Basic Law: Freedom of Occupation (5752-1992), S.H. 114, as amended (5752-1994), S.H. 90; Basic Law: Human Dignity and Freedom (5754-1992), S.H. 150. See Aeyal Gross, "Theories and Discourses of Rights and Democracy: A Comparative Inquiry" (S.J.D. diss., Harvard Law School, 1996).

5. On his last day in Court, Agranat sat on a panel with the recently appointed Justice Shamgar. The occasion was poetically symbolic, for in that case Agranat and Shamgar joined forces in limiting the power of film censorship in Israel. See Noah Films Ltd. v. Film and Theatre Censorship Board .

6. Aharon Barak, "Ha-Mahapekhah Ha-Hukatit [The Constitutional Revolution: Protected Human Rights]," 1 Mishpat U-Mimshal 9 (1992-1993); Gary J. Jacobsohn, Apple of Gold: Constitutionalism in Israel and the United States (Princeton, N.J.: Princeton University Press, 1993).

7. Menahem Mauntner, Yeridat ha-Formalizm va-Aliyat ha-Arakhim ba-Mishpat ha-Yisraeli [The Decline of Formalism and the Rise of Values in Israeli Law] (Tel Aviv: Maagele Daat, 1993).

8. See, for example, David Kretzmer, "Akhifata U-Ferusha shel Amanat Geneva IV [The Supreme Court and the Fourth Geneva Convention: Domestic Enforcement and Interpretation]," 26 Mishpatim 49 (1995); Simon, "Demolition of Houses"; Ronen Shamir, "'Landmark Cases' and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice," 24 Law and Society Rev. 781 (1990); Gad Barzilai, "Political Institutions and Conflict Resolution: The Israeli Supreme Court and the Peace Process," in The Middle East Peace Process: Interdisciplinary Approaches, ed. Ilan Peleg (New York: State University of New York Press, forthcoming). break