Strategic Considerations Behind Normative Explanations: Lessons from Israel's Supreme Court Expropriations Case

Abstract

In a key expropriations law case, the Israeli Supreme Court enunciated a revolutionary constitutional meta-principle but voluntarily refrained from applying it in the concrete case and instead it charged the legislature with the task of giving it a detailed legislative expression. The result of the Court’s move was a subversion of its own fundamental ruling and delayed justice for the parties. The article argues that the Court’s exceptional behavior was guided by two alternative covert strategic considerations rather than by its overt normative explanation. The first was a compromise among the judges in light of an internal dispute. The second was the consideration of the implications of the decision for the public support of the Court. The overall conclusion is that, ultimately, strategic considerations do influence courts, and courts even draw strategic lessons. While courts do not often leave clear direct traces of their strategic considerations, conclusions about this type of considerations may be drawn from the circumstantial evidence that they do leave.

Keywords: constitutional law, strategic considerations, judicial process, right of property, expropriations, Israel