Judicial rhetoric, government lawyers, and human rights : The case of the Israeli High Court of Justice during the Intifada

Many studies suggest that courts fail to protect individual rights since they support and uphold state repressive practices during periods of emergency or confrontation. Previous studies focused on judicial policies as reflected in judicial declarations and decisions that were fully disposed by judges and officially published. I argue that the study of out-of-court settlements and the comparison between the outcomes of settlements and the judicial rhetoric are key to understanding the behavior of courts in times of national crisis. At such times, courts may hesitate to openly confront the government on the issue of minority rights, but they may strive to protect minorities by exerting pressure on the governmental legal apparatus and by effecting out-of-court settlement: more favorable to minorities than official decisions. Thus, courts influence social practices while avoiding government or public opinion counterreactions that would impair their institutional autonomy. This argument is demonstrated in a case study of the Israeli High Court of justice during the Palestinian Intifada. It is an accepted postulate that courts are important social institutions having a broad influence on political and social processes. Nevertheless, the techniques by which judicial influence is exerted have yet to be fully explored by social scientists. Declarations included in judicial decisions may, in some cases, stir a process of social change. Likewise, the outcomes of judicial proceedings, whether in an individual case or a series of related cases, may have wide effects on political institutions. judicial rhetoric and formal court orders are not, however, the only ways by which courts may influence the social environment. Other, albeit less formal, methods may be used by judges to achieve social goals. In particular, courts may pressure the parties to litigation to bring about an out-of-court settlement and thus avoid the need for a final judicial disposition. judges may also express their opinion on a certain point of law or policy, either in court during the course of litigation or via other channels of communication, and thus affect the motivation or the persistence of certain parties to pursue legal proceedings (Mather 1995; Atleson 1989). The role of informal judicial techniques within the process of judicial intervention in political and administrative processes is the focus of this article. I argue that in some cases, in order to evaluate the role courts play in society, it is not enough to study the open rhetoric and the final orders given by courts. Rather, one must also take into account informal techniques used by courts, as well as the relationship between those techniques and the formal methods of influence, so as to obtain the full picture of the courts' involvement within a particular field of social activity. This is particularly true when courts are required to intervene in sensitive political problems, such as in the protection of human rights in emergencies. Constitutional theorists maintain that courts are required to defend individual rights, particularly those rights of minorities or disadvantaged groups in the relevant political community. Courts are also expected to refrain from excessive interference in decisionmaking by the other two branches of government. Both these themes derived from the assumption that courts, unlike the legislature and the executive, are not representative institutions. They are not required to reflect in their decisions the popular preferences of the majority. Rather, they are expected to do the reverse: to confront popular decisions that endanger human rights (Bickel 1962; Ely 1980; Ackerman 1984). The "success" of courts in maintaining their institutional autonomy, according to this line of thinking, is revealed by the ability to withstand political pressures and perform their countermajoritarian role (Barzilai 1997). To what extent, however, do courts fulfill their function of protecting individual rights against governmental actions? …