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7 The Pains and Gains of Writing Biography: Reflections on Writing the Biography of Chief Justice Simon Agranat

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7 The Pains and Gains of Writing Biography: Reflections on Writing the Biography of Chief Justice Simon Agranat

Pnina Lahav

When I embarked on the project of writing the biography of Chief Justice Simon Agranat, I met with Philippa Strum who had just completed her biography of Justice Louis Brandeis.1 “How long did it take?” I asked. I did not know what answer to expect. My horizon was mainly formed by the practice of writing law review articles. I anticipated that this project would take more than two years, and four years seemed like a lot. Strum’s reply, “Eight years”, came as a shock. Trying to keep an amiable demeanor, I assured myself silently that this would not happen to me. Little did I know that the Agranat project would take eleven years to mature. Little did I know that even as the book went to print I could easily have invested another five years and produced a much better biography.

What I learnt as I slowly found myself withdrawing from my other academic activities, my interest in freedom of expression, comparative press law and women’s rights, and immersed myself in the world of Simon Agranat, was that biography writing demands mastery of several discip- lines and sifting through mountains of materials. Beyond that, it demands a certain state of mind. One must dive into the consciousness and concerns of another person in another time. One is faced with the need to make difficult choices and enter into substantial soul searching. Biography writing is bound to raise conflicts between the writer and the subject, the interviewer and the interviewees, and makes one understand oneself and others in more profound, and not always flattering, ways. It demands disciplined awareness of possible projection and transference. All of these take time to ripen and get sorted out. At the end, I came to the conclusion that the process took roughly two years (when one is a full-time faculty member simultaneously fulfilling ordinary professorial obligations) to


launch, and then an additional year for every decade of the subject’s life. And after all this, I realize that I did not cover even half of Agranat’s life and significant contributions.

The pain of writing is compounded by the environment. Friends and well-wishers ask, “What is taking you so long?” Explanations usually evoke a silent reprieve, as if to say, “Here comes yet another excuse – no task should take so long”.2

Thus, if you seek instant gratification, or if you do not yet have tenure and need to show productivity (let alone if you are dependent on the judgment of others for academic promotion), do not indulge in this genre. It is not a career-making project.3

But there is also something wonderful in biography writing, which attracted me to the medium as soon as I discovered it. It has the most intense interdisciplinary quality. In the beginning of the 1980s when I embarked on this project, Israeli law was still drearily uni-dimensional. Good legal scholarship was internal to the field: it focused on doctrine, encouraged learned explorations of razor sharp distinctions or technical pirouettes and frowned on any attempt to understand the law in context. Blindness to historical, social, political and economic aspects of the development of the law was praised as “thinking like a lawyer.” Respect for the judiciary was required (a typical case analysis would state “with all due respect this author begs to differ with the learned judge”), and discussion of the non-doctrinal reasons for any decision was irrelevant. And there was more to the scholarship of the day: it insisted on being dry and impersonal. In fact, the drier and less personal, the better. The reason for this had to do with the expectation that law would be more scientific and therefore more objective if it tried to emulate the formulaic style of scientists. The result was scholarship that did not make the heart leap, at least not mine.

Against this background, the medium of judicial biography was liberating. It invited historical, social, political and psychological insights. It allowed me to understand the great saga of Zionism and the role of law within it and, more specifically, Agranat’s role as a person and as a judge in this exciting environment. It also allowed me to write the way I liked: by telling a good story, emphasizing the drama, capturing the excitement and the humor as well as the sorrow and the disappointment. Of course, none of this was my own invention. The medium of biography was already well developed in the United States and had begun to appear in Israel as well. Two biographies especially influenced my decision to undertake the project. One was Anita Shapira’s splendid biography of Berl Katznelson, the great Zionist leader of the first half of the twentieth century, that high- lighted the significance of the interplay between Zionism and personality. The other was Ronald Steel’s extraordinary book, Walter Lippman and the American Century, which proved that the life of one prominent person may serve as a prism through which one can paint the great canvass of an entire century.4 None of this, of course, was new; but for an Israeli legal academic, it was intoxicating terra nova. Devoting more than a decade of my professional life to the biography forced me to accept a marginal role in the academic life of constitutional law. But writing Agranat’s biography enriched me as a person and more than compensated for the loss of career opportunities.

Let me give two examples of the liberating aspects of biography writing. First, the simple question of how people look. Because law strives to be objective, it ignores the “personal” attributes of the actors in the legal system. Biography overcomes this deficiency. Writing a biography allowed me to describe the different judges and thereby make them human. The chapter in the biography on the Shalit case (the “Who is a Jew?” case) was almost identical to the chapter I contributed to a volume in memory of the late Ariel Rozen-Zvi.5 In the biography, the chapter includes short physical descriptions of two of the protagonists: Justice Haim Cohn and Justice Moshe Zilberg. I thought that readers would want to know how these two eminent justices and great rivals looked. In the Rozen-Zvi book, these descriptions were deleted because the editors felt that “they had nothing to do with the analysis of the case.” I leave it to the reader to decide which version better captures the law as a living discipline.

Another example has to do with the relevance of social and historical context to the understanding of the legal system in general and of judges in particular. In 1919, the American Jewish community suffered one of its first major traumas, known as the Brandeis-Weizmann dispute, or “the Split”. Louis Brandeis and his followers, among them Felix Frankfurter and Julian Mack, were defeated in their bid for control of the American Jewish Congress. Humiliated and angry, they left. Chaim Weizmann, president of the World Zionist Congress and later the first president of the State of Israel, succeeded in having his candidate seize control. Afterward, the Russian-born Weizmann declared triumphantly, “There is no bridge between Washington and Pinsk”. At that time, Agranat was a teenager, his father supported Weizmann, and Agranat adored his father and in general agreed with his views. Yet Brandeis was the venerated Associate Justice of the United States Supreme Court and leader of the Progressive movement, the man who taught that “to be good Americans, we must be good Jews and to be good Jews, we must be Zionists.” Agranat was torn between the two forces and yearned for unity, for harmony rather than dissonance. Including this episode allowed me to capture three important themes in Israeli history: first, the fact that immigrants are shaped by their life histories and traumas dating from before their immigration. It is thus a mistake to perceive the founding members of Israel’s judiciary as men and women whose life “began” in Palestine or Israel and to ignore their native culture. Second, the yearning for unity and the trauma of the split were central to Agranat’s professional life. In cases such as Shalit, as well as the Agranat Commission, the fear of a split and the longing for unity were powerful forces which influenced his thinking and legal argumentation. Third, the search for unity is not merely personal. Israeli historiography is dominated by the quest for unity and the dread of fragmentation and strife (the names of the two major parties: Likud (unity) and One Israel are the most recent indicators of this historical narrative).6

* * *

Once you overcome the first hurdle – “Why biography?” – the question of subject arises – “Why Agranat?”

My first encounter with Agranat’s work was in the mid-1970s, when I was investigating questions of freedom of expression in Israel. At that time, civil liberties was not a topic taught at law schools in Israel and there was no academic legal literature to rely on. In my examination of cases, I came upon the 1953 opinion in the Kol Ha’Am case. Kol Ha’Am (Hebrew for “The People’s Voice”) was the name of the official newspaper of the Israeli Communist Party. It had the tendency to deliver vitriolic attacks on the government at a time when the persecution of Jews in the Eastern block was intensifying and the Cold War was reaching a peak. The decision in Kol Ha’Am written by Justice Agranat, which ordered that the newspaper be reopened at a time when the fledgling State of Israel was still rather authoritarian, was a veritable gem. A long opinion, compared with the typical judicial opinions of the period, it meticulously reviewed the justifi- cations for freedom of expression as these applied to Israeli society. Agranat deftly linked the statutory interpretation and the doctrine (the gravity of the evil discounted by its improbability, or what Israelis came to call “the near-certainty test”) to these justifications. The result matched the visionary spirit, and the government’s suspension of the newspaper was held invalid. The case became the cornerstone of my research on freedom of speech. I gave it a prominent place in the law school courses I was then beginning to develop, which dealt with freedom of speech and civil liberties, and used it as the centerpiece of the first law review article ever published on the issue of freedom of expression in Israel.7

In the course of my research, I also spoke to Agranat. I discovered the quiet charm of a wise judge, passionately committed to progressive values, and at the same time cognizant of the social and political constraints on the judicial decision-making process. I became intrigued by the tension between his opinion in Kol Ha’Am and his opinion, eleven years later, in Yeredor, where he denied a Palestinian nationalist party the right to run in the elections. I came to understand that he was one of the major founders of the jurisprudence of political and civil liberties in Israel. When I began considering the idea of writing a judicial biography, Agranat came immediately to mind. That of course, does not mean that other justices would have made less fascinating subjects. Smoira and Olshan, the two Chief Justices prior to Agranat, one a cultivated and erudite German Jew, and the other a shrewd and somewhat coarse Eastern European, will make wonderful materials for biography. (I urge the reader not to jump to the silly conclusion that German Jews tend to be cultivated and erudite as distinct from the Eastern Europeans.) Haim Cohn, who as attorney general in the 1950s facilitated the repressive policies of the government but from the mid 1960s became a staunch defender of civil liberties, will also present a remarkable challenge to good biographers. Others deserve attention as well. My own heart was set on Agranat.

Initial readings in the field of biography taught me that for a project to succeed, one must like the subject of the biography. I liked Agranat. I also thought that my familiarity with American law and American history would make it easier for me to understand his jurisprudence. Most judges of the founding generation immigrated from Central or Eastern Europe, and an in-depth study of their lives would have demanded familiarity with the legal histories of Germany, Poland, Russia, and the Austro-Hungarian Empire. The American background was much more accessible to me and, I confess, more interesting.

The final factor that led me to focus on Agranat was his life story. In my few encounters with him, I came to learn that he was born in the United States and made a decision to travel to Palestine as a young man purely out of devotion to the Zionist ideal. Unlike most members of the founding generation, he did not become a Zionist against the background of fascism and anti-Semitism in Europe. He could have made a brilliant career in the United States, as did his life-long friend Arthur Goldberg. Goldberg, a fellow Chicagoan, became Secretary of Labor in 1961 during the Kennedy administration, later served as a Justice on the United States Supreme Court, and then as the United States Ambassador to the United Nations. Agranat’s Zionism was particularly appealing to me, as I was myself a naive Zionist and preferred to believe that the State of Israel was primarily about the building of a model society, and only then about providing a haven from persecution. Another feature that attracted me to Agranat was the panoramic richness of his judicial career. He served as Justice of the Peace during the British Mandate, and was appointed to the Supreme Court in 1949, shortly after Israel came into being. Thus, his career coincided with the history of the State and gave me the opportunity to explore the development of law from before the “beginning,” i.e., prior to the establishment of the State. I could thus explore the roots of Israeli law in the Mandatory period. Further, as a judge, Agranat took part in the resolution of many of the crises that together make the stuff of Israeli history. At the zenith of his judicial career he was called upon by the government to serve as chairman of the Agranat Commission, which investigated the causes of the Yom Kippur war. That war, more than any other until then in Israel’s history, forced my generation to ask penetrating questions about the myths of Zionist ideology and its power. Confronting these questions in the shadow of classical Zionism was an intellectual feast.

Thus Agranat’s life offered an exciting opportunity to study Israeli law in the context of the history of the State and the ideology which nurtured its creation and culture. I wrote to Agranat and suggested the project. After some hesitation, he agreed. I found myself committed to writing the first judicial biography in Israel.

* * *

Next I had to think about methodology. How should I conduct research in a legal system which was unfamiliar with and largely indifferent to legal history?
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