When I began my legal studies in 1983, there was an ascendant school of thought called Critical Legal Studies, or CLS. Led by a group of young and charismatic professors, they believed that laws and the rule of law had no inherent value in and of themselves, but were simply a tool to be manipulated by those who had the power to create them and enforce them. These scholars popularized the claim that the rule of law was nothing more than a method by which the reigning class maintained its hegemony over the working class.
In the ensuing years, with the fall of the Marxist-Leninist states of Eastern Europe a decade later, CLS lost most of its luster. I was reminded of this legal doctrine last week when I heard about the passing of retired judge Meir Shamgar, the former Chief Justice of Israel’s Supreme Court. For Justice Shamgar, the rule of law was a paramount value.
Shamgar’s worldview was largely a result of his personal story. Shamgar moved to Palestine as a teenager in 1939. The Jewish settlement in the pre-State (Yishuv) era was dominated by two streams of thought, the ruling Labor Zionists, who controlled the Jewish Agency and went on to control the State of Israel for the first three decades of its existence, and the upstart Revisionists, who ultimately evolved into the Likud party, which has dominated Israeli politics for the last 40 years. Shamgar chose to affiliate with the Revisionists, and joined their underground paramilitary organization, the Irgun Tzva Leumi, or “Etzel”.
The British Mandatory authorities viewed the Etzel as a terrorist organization, and Shamgar paid a heavy price for his activities. He was arrested and deported to a British internment camp in Eritrea, where he remained for four years. Upon his return to the newly-founded State of Israel in 1948, he joined the IDF to fight in the War of Independence, and then rejoined the military after completing his legal studies. His formal career in public service, from military attorney, to Chief Prosecutor of the IDF, to Attorney General of the State of Israel, Supreme Court Justice, and finally Chief Justice, lasted more than 40 years, ending with his mandatory retirement in 1995 upon turning 70. Even in retirement, however, Justice Shamgar headed numerous public commissions, and continued to have a major impact on public life in Israel.
If there was one theme that was consistent across Justice Shamgar’s many rulings and reports, it was respect for the rule of law, regardless of the political consequences. While serving as the IDF’s chief legal officer in the years leading up to the Six-Day War of 1967, Shamgar laid out the blueprint for Israel’s ultimate control of the West Bank. In so doing, he aroused the ire of critics on the left, who felt that Israel’s use of legal tools was just a cover for an occupation that was inherently wrong, and critics on the right, who felt that the restrictions of international law were denying Israel its true mandate over ancient Biblical lands.
Given Shamgar’s own background in the Irgun, it’s probably not hard to guess where his personal sympathies were, but this was totally irrelevant to his role in the military. His loyalty was owed solely to the rule of law and the principles of international law that Israel had taken upon itself. More than fifty years have passed since Shamgar’s instructions were implemented in the West Bank, and the criticisms from right and left have not ceased.
As a judge, Justice Shamgar was keenly aware of the limitations of the judicial branch. He did not try to legislate from the bench, but interpreted the laws in a way that was consistent with the underlying values necessary for a free and open society. In particular, he recognized that freedom of speech was a bedrock value of democratic rule, and required that libel laws be interpreted narrowly so that they not be used to stifle legitimate criticism (much like the US Supreme Court did in its famous decision of New York Times v. Sullivan, limiting libel claims against public figures).
After he retired from the Supreme Court, Shamgar’s influence remained strong, due to his participation in numerous public commissions, and due to the heightened credibility that his name added to these commissions. Here again, he was careful to avoid precedent-setting rulings that manipulated the rule of law. Instead, he tried to steer the conversation to non-legal methods when necessary to achieve a just result.
One case that stands out in particular is his work on the commission appointed by the IDF to investigate claims by former Navy divers that they had become ill with cancer after being exposed to dangerous chemicals during their service. The case exposed many raw nerves in Israel, due to the public sympathy for the plight of elite former soldiers suffering from grievous diseases, allegedly arising out of training dives in the polluted waters of the Kishon River.
As with many such cases, litigation proved to be an ineffective tool for addressing these claims. The Shamgar commission investigated the soldiers’ claims, and could not agree on the fundamental question of whether the cancer had been caused by their military activities. In his minority opinion, Justice Shamgar, though clearly touched by the case of these soldiers, did not try to bend the law, or the facts, to reach a desired outcome. Instead, he argued that the IDF had a moral responsibility to compensate these soldiers and their families by recognizing them as military casualties. He simply stated what he thought was the right thing to do and, not surprisingly, his view carried the day, and was accepted by the IDF.
One of Shamgar’s last public efforts was to support the cause of the Falashmura, descendants of Jews living in Ethiopia who had been forced to convert to Christianity in earlier generations. They had been rejected by the general Christian Ethiopian community around them, and yet were not fully accepted by Ethiopian Jewry, and the Israeli Rabbinate refused to accept them under the Law of Return. Here again, while Shamgar acknowledged that they had no legal rights under Israel’s Law of Return, he argued (successfully) that Israel had a moral obligation to bring this community to Israel. The man who once had to travel from East Africa to Israel himself to rejoin his people, after being exiled by the British, was now fighting for the right of others to do the same.
While the Marxist CLS scholars that I encountered during my legal studies have mostly been quieted, the attacks on the rule of law have not ceased. There are always those who will claim, when it suits them politically, that the laws are being manipulated against them. For Chief Justice Shamgar, however, the rule of law was an intrinsic value, regardless of which way the political winds happened to be blowing at any particular time. Shamgar played a key role in ensuring that this value was respected by all branches government of the State of Israel, while never forgetting the moral imperative binding on all Jews “to do justice, to love mercy and to walk humbly with God” (Micah 6:8).