Tikvah Scholar
Academic Year 2010-2011
Arie Rosen
Arie Rosen is a J.S.D. candidate in New York University School of Law concentrating on legal and political philosophy. He is writing his doctoral dissertation on the relations between models of legal authority and the question of the concept of law, under the supervision of Professor Jeremy Waldron.
Arie completed his LL.M. at New York University School of Law as an Arthur T. Vanderbilt scholar, and received the George Colin Award for distinction in the LL.M. program. He received his LL.B. magna cum laude from Tel Aviv University, where he also earned an undergraduate degree in philosophy summa cum laude. He is a member of the Israel Bar since 2008.
During his studies in Tel Aviv, Arie served as the editor of the Tel Aviv University Law Review, and as a research assistant in the fields of economic analysis of law, corporation and torts. After his graduation, Arie also served as a teaching assistant in a civil litigation workshop and in an introductory course in jurisprudence.
Research
Interpretation, Judicial Review, and the Crisis in the Authority of the Israeli Supreme Court.
(Mentored by Professor Michael Walzer, Joint Tikvah/Straus Fellow)
As a 2010-2011 Tikvah Scholar-in-Residence, I propose to explore the decline in the authority of the Israeli Supreme Court in the last two decades. The authority of the judiciary, like the authority of any other political institution, is based on the stories we tell ourselves regarding this institution and its legitimacy; the less persuasive the story becomes, the less people can be expected to voluntarily respect the institution and its law.
The paper starts by exploring the stories we are used to telling ourselves about our judiciary. What makes the judiciary an acceptable institution with authority to determine the content of law? It then considers three inter-connected factors that might explain the decline in the authority of the Court: (1) the employment of the doctrine of purposive interpretation; (2) the Court’s declaration of its judicial review powers; and (3) the use of a value-laden vocabulary by the Court in exercising its interpretive and reviewing power, influenced by foreign constitutional law and international human rights vocabularies. The paper will focus on how these vocabularies failed to resonate with large parts of the Israeli population.
Together, these three factors make the legal role of the judiciary practically and theoretically untenable. From a realist or positivist perspective, the Supreme Court’s authority is challenged as political and discretionary, overstepping the bounds of the judicial role by moving into the legislative arena. From a naturalist perspective, judicial interpretation is exposed as a value-laden practice in a morally pluralistic society.
The paper ends with some wider conclusions regarding the relations between political morality and institutional authority, the importation of values across cultures, and institutional stability in diverse societies.
