Summary
Podamsky v. State of Israel, as Lahav presents it: Simon Agranat’s twenty-one-page unanimous opinion (argued 18 February 1952) sustaining the coercion conviction of two men who at gunpoint freed prisoners from a Tel Aviv detention room, in which he gave Israeli decisional law its first serious discussion of the meaning of “rights”, importing Wesley N. Hohfeld’s 1913 theory through Sir John Salmond’s treatise (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1180-1260).
Details
- The prisoners freed had been detained under an arrest order that had expired, so they were held illegally; the district court convicted the liberators under section 100(c) of the Criminal Code of coercing the guards to do an act they were not legally bound to do (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1195-1230).
- Agranat divided rights into legal rights entailing obligations, legal liberties or privileges, and legal powers: the police had neither a right nor a power to detain the prisoners, but, acting on what they believed a valid court order, were at liberty to resist the escape — two liberties colliding — so the coercion offence was made out (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1225-1255).
- Lahav’s reading: the analytical dress was chosen to make rights appear inherent in the “pure science of law”, immune to a charge of judicial politicking; its scheme reduced the state apparatus to the level of its citizens — the state existed for its citizens, not the citizens for the state — while resting on pure majoritarianism, with no rights immune from majority rule, a timidity Agranat himself soon recognised (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1240-1270).
- The opinion was written during the 1952 attack on the judiciary by Minister of Justice Bernard Joseph and delivered exactly one month after the Knesset rejected discussion of Chief Justice Smoira’s protest letter (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1250-1275).
Related pages
Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, Simon Agranat, Kol Ha’am Case, Mandelbrot Case