“Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice

Abstract

The image of courts as impartial and independent sources of authority is considered a prerequisite if they are to play a legitimizing role. Yet many studies suggest that courts systematically support and uphold state-sponsored policies. I ask how courts can support dominant political interests and at the same time appear impartial. A solution is suggested by looking at highly publicized judicial decisions by Israel's High Court of Justice in which state policies concerning the Israeli occupied territories were overruled. Such cases, while rare, nevertheless reinforce the legitimacy of courts. Consequently, decisions that counter some governmental practices allow courts to confer legitimacy on other and sometimes similar governmental policies. Finally, I place the findings in a comparative context and outline a possible explanation for the circumstances under which landmark decisions are reached.