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Deliberation and Courts

The Role of the Judiciary in a Deliberative System

Donald Bello Hutt

We lack analyses of the judiciary from a systemic perspective. This article thus examines arguments offered by deliberativists who have reflected about this institution and argues that the current state of deliberative democracy requires us to rethink the ways they conceive of the judiciary within a deliberative framework. After an examination of these accounts, I define the deliberative system and describe the different phases deliberative democracy has gone through. I then single out elements common to all systemic approaches against which I test whether the regard that the authors show for the judiciary in deliberative terms can be maintained and argue in the negative. I conclude by pointing at the necessity to think about the definition of deliberative systems, and to the value of these discussions for debates on the legitimacy of judicial review when it is exercised under the form of judicial supremacy.

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Policymaking in the Italian Courts

The Affermazione Civile Project and the Struggle over Recognition of Rights for Same-sex Couples in Italy

Lauren A. Anaya

In this article, I use the current struggle over recognition of rights for same-sex couples in Italy as a window on larger policymaking processes. Associazione Radicale Certi Diritti is leading the charge for the recognition of rights for same-sex couples in Italy with its innovative national campaign Affermazione Civile that seeks to obtain marriage equality for same-sex couples in Italy through the deployment of judicial initiatives. Through the Affermazione Civile project, Italian LGBTI rights activists successfully circumvent national politics and advance recognition of same-sex couples' rights in Italy. I argue that recent policy changes with respect to the treatment of this group are direct products of the EU's influence on the national judicial system and demonstrate a continuing trend towards increased judicial activism at the expense of national politics. This article illustrates how the EU influences the making of national public policy outside the economic realm in unanticipated and unintended ways.

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The goddess Kumari at the Supreme Court

Divine kinship and secularism in Nepal

Chiara Letizia

In 2005 a human rights petition at the Supreme Court challenged the tradition of living goddesses called Kumaris and, in particular, that of the former royal Kumari, who lives a sequestered ritual life until puberty, and who used to bless and legitimate the king once a year. The case went on while Nepal overthrew its king and was declared a secular state in 2007. When the judgment was pronounced in 2008, the goddess was still at her post and now blessed the president. This court case is taken to illustrate the directions and form that Nepali secularism is taking. It reveals a distinctive form of secularism where the state is involved in supporting and reforming religion. The religious tradition here is seen as an asset for the state, worthy of preserving, provided it makes way for social reforms in tune with the times. Despite being reduced in court to a child capable of being deprived of her rights, the political power of the goddess remains intact and her role for the nation is recognized in the verdict; both human and divine, the Kumari has been acknowledged under the now secular legal regime.

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Assaf Meydani

In recent decades, the role that national supreme courts have played in shaping and determining institutional change has been studied from a number of angles. However, this vast literature has not produced a dynamic model that is capable of illuminating the impact of supreme courts on national policy or institutional change. This article proposes such a dynamic model using perspectives based on the 'shared mental model' and the concept of 'political entrepreneurship'. Adapting hypotheses from the neo-institutionalism literature, it develops a procedural model for analyzing how political rules are changed formally in a democratic system. The analysis also explores the political entrepreneur role that supreme courts play in developing institutional change and addressing social problems. This model is then used to study the Supreme Court in Israel.

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A Woman of Valor Goes to Court

Tort Law as an Instrument of Social Change under Multiculturalism

Ella Glass and Yifat Bitton

Can liberal legal tools appeal to non-liberal communities in settling their internal disputes? Are different legal routes for pursuing human rights instrumental in facilitating such usage? This article seeks to answer these questions by using the Israeli test case of the ‘Immanuel affair’. In this case, a segment of the ultra-Orthodox populace resorted to the secular legal system, seeking relief for the discrimination in education it had suffered at the hands of its own community members. As part of a non-liberal community, the plaintiffs were destined to face the classic ideological clash ignited by imposing liberal values on a non-liberal group, even when serving the group’s best interests. This article analyzes the plaintiffs’ choice to bring their grievances to court through the civil justice system. It concludes that the ethical ‘cosmology’ of non-liberal groups is perceived as less abridged when a case is adjudged as a civil tort claim, as opposed to being adjudged within the context of constitutional law.

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Jean-Louis Briquet

Twice in just one month – on 24 September by the court in Perugia

and on 23 October by the one in Palermo – Giulio Andreotti was

cleared of charges that had hung over him since the first allegations

by pentiti (repentant mafiosi) of his involvement with the Mafia.

The first of these charges was that he had commissioned the mafia

killing of the journalist Mino Pecorelli, who had threatened

Andreotti and members of his entourage that he would reveal compromising

facts concerning the political and financial Italcasse scandal

of the late 1970s. The second accusation – less serious from the

criminal point of view but certainly more significant from the political

one – was that since the 1960s Andreotti had established a

‘pact’ with Cosa Nostra, either directly or through his political allies

in Sicily. In both cases, the verdict rekindled the controversy on the

political ‘activism’ of certain public prosecutors’ offices, and on the

role played by the investigating magistrates in the collapse of the so-called

First Republic. The verdict, in fact, has been hailed as

Andreotti’s political absolution and, more generally, as rehabilitating

the Democrazia cristiana (Christian Democrats: DC) and the

‘regime’ with which he has been identified for almost fifty years.

The sentence has also been used to accuse certain magistrates of

using criminal investigations for political ends, and of trying to

impose a simplistically ‘criminal’ view of Italy’s recent history.

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Anat Stern

This article examines Jewish civilian criminality during the 1948 War and the way it was handled by military forces. It demonstrates the dilemma the Haganah forces were confronted with in dealing with civilian criminality in the absence of a functioning civil court system, and the various measures taken against civilian profiteering and looting. In July 1948, the practice of trying civilians in military courts was terminated due to an appeal to the Israeli High Court of Justice by one of the looters. This article examines these issues, thus allowing a different periodization of the 1948 War, based on a legal rather than on a military perspective.

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Israeli High Court Rulings on the Security Wall

National and International Effects

Udi Sommer

With the ever-growing significance of international law both domestically and internationally, courts mediate much of the give and take between the international system and the national political arenas, thus acting in settings where global and local are mixed. Such a pivotal position, I argue, lends courts the ability to maximize a twofold utility, which is inextricably linked. First, on the international level, judicial institutions play an increasingly important role and form what is essentially a transnational epistemic community. Second, on the domestic level, courts capitalize on this pivotal position to become increasingly central in the decision-making process, forming alliances with other domestic players and thereby securing the implementation of judicial rulings. A case study of decisions of the Israeli Supreme Court concerning the security fence Israel built around the Occupied Territories is offered as an empirical test for the Court-Pivot Dual Utility Model that I present in this article.

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Na'ama Carmi

In May 2006, the Supreme Court of Israel, by a narrow majority of 6 to 5, upheld the constitutionality of the Nationality and Entry into Israel Law (Temporary Provision), which severely restricts the rights of Palestinian residents of the Occupied Territories to live in Israel. The main implications of the Act are that West Bank and Gaza spouses of Israeli citizens are prevented from living with their husbands or wives in Israel. This article reviews the court's judgment in light of the general immigration policy of Israel, which is reflected in three major laws. After presenting and analyzing the ruling, the article comments on some of the dilemmas and difficulties that the judgment raises.

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Udi Sommer

This article analyzes decision making in national security cases on the Israeli Supreme Court and draws broader comparative conclusions. In the post-9/11 era, security has topped the national agendas in numerous established democracies, with repercussions involving their courts. Analyses of decision making on national security in Western judiciaries may benefit from lessons from the Israeli Court, which has been a pivotal player in this domain. A formal model analyzes how internal court institutions plus the rationality of individual justices are conducive to strategic Court behavior. Predictions are tested empirically using an original database with security decisions from 1997 to 2004. The findings indicate that constitutional design, Court leadership, ideology of the ruling coalition and interest group activity have influenced decisions of the Israeli Court on national defense. This study builds on and expands existing scholarship on the complex links among law, politics, and national security in Israel and beyond.