by Patricia J. Woods. Albany, NY: SUNY Press, 2008. 272pp. Cloth. $75.00. ISBN: 9780791473993. Paper. $24.95.ISBN: 9780791474006.
Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University, College Station, TX 77843-4348. Email: j-baer [at] tamu.edu.
Comparative public law scholarship has, so far, eschewed the prevailing dichotomy of comparative politics: the separation between micro-research (often termed “single-country studies”) and macro-research (what the cool kids do). Patricia Woods’ important new book is a welcome continuation of this counter-trend. Her study of Israeli judicial politics is shrewd, sophisticated, culturally sensitive, and historically grounded. She is able to make good use of both her closeness to and distance from her subject. Her background as a feminist and a student of comparative religion and politics sustained her dedication through the long haul of writing a book. Her status as a non-Jew helped her to win the trust of members of mutually antagonistic Jewish factions. (No doubt, her ability to conduct interviews in Hebrew, indicated in the references, also helped.) The book’s first and last chapters initiate and frame the daunting task the author has assumed: generating testable hypothesis and macro-theory about public law and comparative politics by researching a nation like no other in the world.
Israel was the first modern religious-linked state. It remains the only such state founded on (rather than progressing toward) liberal principles. In a century when bonds between official religions and their countries were loosening – or being ruptured – Israel was founded by Jews for Jews. A member of the High Court of Justice, writing in 1973, identified the founding principles of the nation as “efficacy,” “democracy,” and “Jewishness” (p.127). This last word is not and has never been synonymous with “Judaism.” Israel requires no sectarian membership or observance; it has no religious test for high office; it guarantees freedom of, and from, worship. But there is no Jeffersonian wall between state and religion.
“Status-quo agreements” (p.36) between the founders and the Orthodox and Ultra-Orthodox gave religious courts “exclusive authority over personal status or family law (p.36). David Ben-Gurion, the first prime minister, defended these concessions as essential to establishing the unity that would allow a state to exist at all; while he may have been right, the decision has come back to haunt the society. Conflict between Orthodox patriarchy and commitment to equality and democracy was inevitable. The entrenchment of judicial review assured that particular conflicts would end up in the courts. As a result, the HCJ has been confronted with such issues as praying at the Western Wall, eligibility for membership on local councils, and the enforceability of religious court orders. Imagining a parallel situation where American courts reviewed the personnel [*33] policies of the Roman Catholic Church or the Church of Jesus Christ of Latter-Day Saints will give the reader an idea of how incendiary these rulings have been.
There is no sign that the Orthodox factions have considered a retreat similar to that of the Catholic hierarchy on birth control after GRISWOLD v. CONNECTICUT. (This analogy suggests a nagging counter-factual: what if such a retreat had been followed by the equivalent of ROE v. WADE?) In the 1990s, “the president of the HCJ received death threats and the HCJ has been compared to biblical enemies of the Jews” (p.75). But the secular Jews who comprise the majority of Israelis have mixed loyalties. These attitudes are suggested by the familiar phrase, “the synagogue I don’t go to is an Orthodox synagogue” (p.176). This majority would have confronted cross-pressures had the HCJ chosen religious autonomy over gender equality. But the judicial trend has been in the opposite direction. The HCJ ruled over Orthodox objections that women can serve on local councils. It reversed an order forcing a woman to try to reconcile with her estranged husband. And, in an episode reminiscent of the “all deliberate speed” rhetoric of BROWN v. BOARD OF EDUCATION II, the HCJ required the government to effect a compromise between the “‘sensitivities’ of those praying at the Wall, and the ‘traditions’ of the place” (p.167) administered by the Haredi Jews. The solution was to reserve a prayer site at the wall for women.
Woods’ treatment of the judicial output provokes the one negative observation I have about the book. Like many who privilege process over doctrine and result, she lacks the skill of narrating questions in a way that makes it clear at the outset who won and who lost. This difficulty can frustrate the reader who is not already familiar with the decisions, and it makes the book less accessible to students. But this is a less than devastating criticism of a valuable study. Woods’ focus is on court decision-making, and she has intriguing and incisive new things to say about it.
The book’s organizing question is this: “When, why and how do national courts begin, systematically, to engage heated issues?” (p.1). This formulation presumes that courts have a choice whether or not do this. While I suppose any court can find a way of not deciding, staying out of the fray is easier in some systems than in others. Applied to Israel, Woods’ question suggests another vital question: “When, why, and how does a faction gain or lose control of an issue area?” This derivative question might come into play, for instance, if demographic changes strengthened or weakened a group within a jurisdiction. Woods takes her question in an unfamiliar direction. Her argument that “intellectual communities with whom judges live and work and think on a daily basis provide the most determining factor to explain when, why, and in what manner courts chose to intercede in political battles” leads her to develop the concept of “judicial communities” (p.13), evocative of Jeremy Bentham’s concept of judge and company. Members of cohesive judicial communities share geographical region, formal educational history, and professional socialization, and are likely to have known one another for a long time. Israel’s judicial community amply qualifies as cohesive, but it would not [*34] necessarily top the list. While most members attended the same law school, the Hebrew University of Jerusalem, French judges may well have gone to the same lycee. Israel’s judicial community, again like that of France, and, probably, like most such communities, is as noticeable for whom it leaves out as for whom it includes: not only those less privileged by education and comfort, but also the Orthodox factions. The interest group that controls family law is separated from the dominant legal community.
As Woods recognizes, her concept of a judicial community could not be wider of the mark in describing judge and company in the United States. She coins the term “multiple judicial communities” to refer to systems in which factions “compete with one another for influence on judicial thinking” (and where the Orthodox might fit right in). This situation, she concedes, decreases “the utility of the judicial communities model” (p.187). But this may concede too much; after all, the United States had a far more cohesive judicial community when its judicial activism began than it does now. One might also ask whether the degree of cohesion in a judicial community has affected judicial activism or restraint. Has the further multiplication of judicial communities in the United States since World War II, stimulated by, inter alia, the GI Bill, the education amendments to the civil rights laws, and the growth of mass communications, affected the courts’ willingness to engage in controversy; and if so, how?
JUDICIAL POWER AND NATIONAL POLITICS is a welcome addition to the scholarship on comparative judicial politics, and Patricia Woods is a welcome new voice in the field. This promising scholar shows an ability not only to identify and explore sophisticated research questions, but also to generate new ideas for herself and others. The impact of her work will cut across subfields and enrich the political science discipline.
BROWN v. BOARD OF EDUCATION II, 349 U.S. 294 (1955).
GRISWOLD v. CONNECTICUT, 381 US 479 (1965).
ROE v. WADE, 410 US 113 (1973).
© Copyright 2009 by the author, Judith A. Baer.