Summary
Process jurisprudence (legal process), as Lahav presents it in Chapter 12: the 1950s American school emphasising the process by which decisions are made over their substance, whose core claim is that a lawyer’s expertise lies in deciding which institution is most competent to make a particular decision — the jurisprudence Simon Agranat used to justify judicial restraint in Shalit (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 2500-2551).
Details
- The 1950s generation, uncomfortable with progressive jurisprudence and legal realism yet having internalised the critique of formalism (Cardozo, Pound, Llewellyn [as printed]), developed in the New Deal spirit a jurisprudence of judicial restraint: the legislature, as the people’s representatives, should make policy decisions (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 2500-2551).
- Agranat never studied legal process as such and never read Hart and Sacks’s materials, but his sympathies were rooted in the same soil; Barak and Zamir brought enthusiasm for the “new approach” back from Harvard in 1967, and Landau was a devoted disciple of restraint (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 2500-2551).
- In Shalit, where the majority used legal formalism for Shalit and Agranat used Sociological Jurisprudence to analyse the problem, process supplied the justification for not deciding: “When the judge encounters a problem … about which the opinions of the enlightened public are fundamentally divided so that between them there is a deep abyss— … it would be better for the judge to refrain from expressing his private opinion, … provided that he has a legal outlet which enables him to do so” (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 2500-2551).
- Lahav argues the same legal-process thought underlay the Agranat Commission’s refusal to judge parliamentary responsibility — only the political branches, accountable to the people, could make that substantive decision — and the deferential, standing-based Court of the 1970s that followed Shalit (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 2500-2791).
Related pages
Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, Sociological Jurisprudence, Shalit Case, Agranat Commission, Simon Agranat