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

11 International Journal of Constitutional Law 751-770 (2013)

Posted: 2 Nov 2013

See all articles by Haim Sandberg

Haim Sandberg

College of Management (Israel) - School of Law

Date Written: September 27, 2013

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

Suggested Citation

Sandberg, Haim, Strategic Considerations Behind Normative Explanations: Lessons from Israel's Supreme Court Expropriations Case (September 27, 2013). 11 International Journal of Constitutional Law 751-770 (2013), Available at SSRN: https://ssrn.com/abstract=2348576

Haim Sandberg (Contact Author)

College of Management (Israel) - School of Law ( email )

7 Yitzhak Rabin Blvd.
P.O. Box 25072
Rishon LeZion, IL Israel 75190
Israel
972-3- 9634096 (Phone)

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