A Question for Amos on the Comparative Role of the Judiciary

by Kenneth Anderson

I’m delighted that Amos is guest-blogging with OJ this week, and I’ve read with great interest his posts – as well as his scholarship and policy writing – on administrative detention and related topics.  I have always wanted to ask the following, without a lot of knowledge, as I’ve never been to Israel and have only reading knowledge both of how the legal structures work but, more importantly for this question, how Israeli society works.  It’s this:

In important areas of security-terrorism policy, whether it be detention as Amos has been discussing in these posts, or targeted killing, as I’ve been discussing various places, and other things besides, the Israeli judiciary and the Israeli Supreme Court play a very important role.  It is a role that goes far beyond the role of the judiciary in American society, at least to the limited extent that I understand law and Israeli society, or the role of the American judiciary in counterterrorism and national security, even taking into account the increased role of the Federal courts in the counterterrorism and national security cases since 9/11.

What difference does this make, or should it make, in considering whether and the extent to which Israel’s approaches to detention, targeted killing, etc., can or should be adopted (adapted?) in the US?  Speaking without a personal knowledge of Israeli society, it appears to me from afar that the Israeli Supreme Court plays a societal role that is far wider and far deeper than the SCOTUS.  Juridical notions of separation of powers, the constitutional traditions of the political branches and foreign policy, the role of the commander in chief – all those things seem to me to raise important questions as to how far comparitivism can get on these issues.

There are other kinds of differences as well, beyond the question of the role of the judiciary in each society.  The proximity of the terrorism threat and a hostile adjacent population, the quasi-permanent nature of it in its impingement upon Israel as a polity and a society – one can argue that terrorism is a quasi-permanent fact of life for the United States and that in an age of globalized movement it is also always proximate.  But while worth bearing in mind, at least with my limited understanding of Israel, those differences are very real and very big, and they change the way in which a society responds to a threat that, because of those factors, impinges far more internally than, as with the United States at least up to this point, externally.

Europe likewise differs from the United States in these factors.  Much of the difference between European and US points of view on countering terrorism simply has to do with the strategic fact that for the US (and despite what will almost certainly be an increase in internal recruiting to jihadist terrorism inside the US), it remains largely external and hence amenable at least in part to war as a policy (whether successful or not in the actual event).  For Western Europe – Britain or France, the Netherlands or Denmark, for example – the terrorist threat is as much or more internal as anything.  Externally conducted war does not really address the threats these countries face; their lack of enthusiasm for it oftentimes carries a moralistic demeanor (as does the American response), but at bottom it arises from the strategic facts of the world and how they differ between the US and Europe.

And so too, it seems to me, with Israel.  The US situation is socially different, juridically and constitutionally different, and strategically different, starting with the geography of the struggle.  That does not render comparisons irrelevant or not useful – on the contrary, if only because differences can teach as much about policy as similarities – but it does suggest that they need to be evaluated on the basis of difference as well as similarity.  This, of course, I say in the abstract, never having been in Israel, so let me put the question to Amos: what are the differences, as he sees them, and how and to what extent do they condition the policy advice that one might give to the US?

http://opiniojuris.org/2009/06/18/a-question-for-amos-on-the-comparative-role-of-the-judiciary/

2 Responses

  1. As someone who’s never been to Israel, the way you describe court-society relationships in Israel is impressively accurate.

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