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14 Contemp. Crises 1 (1990)

handle is hein.journals/crmlsc14 and id is 1 raw text is: Contemporary Crises 14: 1-22, 1990. © 1990 Kluwer Academic Publishers. Printed in the Netherlands. Rule of law versus political interest MICHAEL SALTMAN and HENRY ROSENFELD Department of Sociology and Anthropology, University of Haifa, Mount Carmel, 31999 Haifa, Israel Abstract. The limits of the rule of law are here tested by a case study. Two Arab prisoners were killed by Israeli security forces, a political cover-up was initiated and the tacit assent of the Supreme Court towards executive actions was achieved. The paper examines some theoretical positions in order to understand the relationship between the ideology of the Rule of Law and political interests - Althusser, Luhmann and Habermas. The conclusion is that structural and/or neo-structural functional theory is insufficient to explain the situation. The paper suggests alterna- tive variables to account for the legal system's subservience to the dictates of political interests. The theme stated: Domination of the legal sub-system by the State This paper addresses itself to a single case, that occurred in Israel during the period April 1984 - August 1986. The case involved the killing of two Arab terrorist prisoners, the subsequent attempt by governmental agencies to cov- er-up the issue and further attempts at all levels of government to mislead and browbeat the legal system. Obviously, a single case cannot constitute a corpus of data that would prove or falsify any given theory. Yet it can serve to highlight the nature of the complexity of relationships between systems, in this instance, the relationship between the legal and political systems. Despite the classic separation of powers between the branches of government, the legal system does not enjoy autonomy. The very fact that the substantive premises on which the legal system operates have been formulated by another political subsystem - the legislature - diminishes any claim for autonomy. However, beyond this very important, almost inherent, feature of the legal system, under the pressure of a political regime the legal system may well become distorted. Even when it asserts itself, it does so without vigour, that is to say, without making the full range of its claims contained within its historical framework. Thus, while we do not deny the capacity of the legal subsystem to seek out a certain functional adjustment between itself and the other subsys- tems, the dominance of the political- that the legal, the religious, educational and other subsystems are subsumed within or under the political - is to be recognized. The dominance has its ups and downs, but it is there. There is no doubt that