Religious Courts and Rights in Plural Societies: Interlegal Gaps and the Need for Complex Concurrency

The administration or recognition of religious courts is a form of religious accommodation present in many constitutional states today commonly analysed in legal pluralism terms. This article contributes to the further analysis of the relationship between legal pluralism and rights in religiously diverse societies by examining the status of state religious courts and their interaction with state non-religious (secular) courts. In particular, I examine what Cover calls “jurisdictional redundancies” between the courts and conceptualize the allocation of power between religious and non-religious courts as a potentially productive site of interlegality. In doing so, I support concurrent jurisdictional allocations, arguing that exclusive jurisdiction could result in what I call an interlegal gap, whereby instead of inter-penetration of norms and production of reconciliatory principles, there is a justice gap whereby litigants may find themselves unable to obtain appropriate legal recourse including when neither court is willing to assume jurisdiction over the matter. This requires us to see the relationship between religious courts and non-religious courts through the more mundane but more practical lens of jurisdictional overlaps and competition, rather than through the more abstract framing of normative or even civilizational clashes. Accordingly, I argue that concurrent jurisdiction and interlegality have greater potential to strike a balance between individual and group rights and could be more protective of religious diversity. In other words, I argue for a closer, rather than a more separate, relationship between religious and non-religious courts, while denying that a hierarchical relationship where religious courts are subordinated to non-religious courts is the only way to protect rights.

Diversity Through Bureaucracy: System Judges and Intersectional Diversification of the Israeli Judiciary

This article examines the role bureaucracy has in enhancing the social diversity of judiciaries. It does so by analyzing the Israeli judiciary and its reforms over the last three decades, and the interaction of these reforms with the appearance of intersectional judges—Arab women, Jewish women of Orthodox background, and Jewish women from geographic and economic peripheries—into the Israeli judiciary. Based on an original empirical study, the article shows that the career paths of intersectional judges include administrative roles in the judiciary more often than non-intersectional judges. The article further demonstrates how these administrative career paths were shaped by bureaucratic-minded reforms. The Israeli case study thus shows how the bureaucratic design of the judiciary can accommodate diversity efforts, sometimes unintendedly, and discusses the merits, boundaries, and drawbacks of such bureaucratic design.

Courts and Diversity: Normative Justifications and Their Empirical Implications

The study distinguishes between three normative approaches that view diversity in the judiciary as a desirable ideal, outlines their expected empirical implications for judicial decision-making, and tests the implications against data from the Israeli Supreme Court. The “reflecting” approach suggests that diversifying the courts is important mainly as a means of strengthening the public’s confidence in them and does not impact judicial decisions. The “representing” approach asserts that judges serve as representatives of their social sectors. Thus, they tend to rule in favor of their group’s interest only in cases that are relevant to their in-group. The “social background theory” is based on the premise that people of different backgrounds develop distinct worldviews. Hence, social attributes are expected to influence judicial decisions across a wide range of socio-legal issues. The empirical investigation centers on the role of gender and religiosity in judging on five carefully selected socio-legal issues: petitions against the Great Rabbinical Court’s rulings, constitutional disputes in all legal procedures, social welfare cases, and criminal appeals in sex offenses and in drug offenses. The results lend support to social background theory with regard to gender and are consistent with the representing approach with respect to religiosity. I further discuss the limitations and policy implications of the findings.

Solving One-Side Polarization: Supreme Court Polarization and Politicization in Israel and the U.S.

The Israeli Supreme Court has become increasingly polarized between liberal and conservative judges. This phenomenon is relatively new to the Israeli Supreme Court and follows the much older and more well-known example of the U.S. Supreme Court. This article surveys both U.S. and Israeli court polarization and shows the history, reasons, and special features of polarization of both courts, including the important differences between them. It also adds a distinction to existing literature on court polarization—the distinction between court polarization and politicization, and especially the distinction between “regular” polarization and “one-side” polarization. Regular court polarization happens when the court is divided roughly equally between the two main political contenders (usually between right and left). One-side polarization happens when there is a clear advantage to one side of the political map in the make-up of the court. The current U.S. Supreme Court, with six conservative justices and only three liberal justices, is an example of one-side court polarization that is tilted to the right. The current Israeli Supreme Court (as of the writing of these lines) is an example for one-side court polarization tilted to the left; there are 10 liberal judges and only five conservative judges on the court. The article’s main argument is that one-side court polarization presents a particularly vexing problem for the legitimacy of the court, even more so than “regular” polarization. The article concludes with a survey of possible solutions to help Israel retract itself from one-side court polarization.

Border Disputes: Religious Adjudication Along the Private/Public Divide

The article uses Israel’s volatile jurisdictional dynamics of the past two decades concerning access to religious community justice, as a telling case for examining the way legal pluralism is deployed along the public–private divide. The Israeli case exhibits a complex combination of an ostensibly liberal democratic regime, a commitment to a particularistic ethno-national political project, structural entanglements of state and religion against the backdrop of an unsettled constitutional order, and an historically diffuse mode of often-illiberal normative ordering within its diverse religious communities. All this provides a rich backdrop for various strategies by communal and institutional elites seeking to consolidate power, legitimacy, and authenticity in their often mutually-reliant jurisdictional projects. The article explores several salient episodes from Israel’s religious jurisdiction dynamics, focusing for purposes of analytical clarity on the case of Jewish orthodox legality. The analysis uncovers the main strategies stakeholders resort to, and shows how agency flows in different ways, with the choices of each player affecting the possibilities of the others. The institution at the arguable top of the system—the Supreme Court—is shown to be often devoid of effective means of elucidating, let along imposing, a coherent vision for a fragmented jurisdictional field. Conceptually, the judicial forum is revealed as the locus of an ongoing, uneasy engagement among normative imaginaries in a sometimes-competitive, sometimes-collaborative negotiation over coherence, tolerance, authority, and legitimacy.

“Unity in Diversity” Reloaded: The European Court of Human Rights’ Turn to Subsidiarity and its Consequences

The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.

Representing What? Gender, Race, Class, and the Struggle for the Identity and the Legitimacy of Courts

In 1935, when the U.S. Supreme Court’s new building opened and displayed the phrase “Equal Justice Under Law,” racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court’s inscription has become its motto, read as if it always referenced an understanding of equality that has become central to the identity and the legitimacy of courts. The judiciary “looks” somewhat different than it did and, in a sense, has become more “representative” of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the “difference that difference makes” requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation (“equal justice under law”) remains elusive, while the “justice gap” (shorthand for the lack of sufficient governmental help for under-resourced litigants) is pervasive. Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed assessments as income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice.

The Politics of Civil Procedure: The Curious Story of the Process for the Eviction of Tenants

This article examines the process for the eviction of tenants (PET), which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, the story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages.