Prof. Eli Salzberger is a prominent and veteran figure in the realm of law - he is the dean of the law faculty at the University of Haifa - but his voice is not often heard in the media and when there is talk of him, it concerns articles he has written in his area of specialization: the use of economic theory in legal analysis. At a recent conference at the Hebrew University of Jerusalem entitled "The Future of Legal Education in Israel," Salzberger stated that "the legal profession in Israel is in its greatest crisis since the founding of the state, since the level of legal studies is of very poor quality, in general." Salzberger added that law schools "are not doing their job" and called for improving the quality of their programs.
A number of law school lecturers and graduates felt that someone had finally said what many have felt for quite some time, but hadn't dared to utter. However, there were also those who harshly attacked his remarks as deriving from personal frustration, claiming they are divorced from reality and could seriously damage the principle of social equality.
Salzberger greets us in his home in Zichron Yaakov, which is being redecorated. "My wife wanted this," he says, gesturing humorously toward his spouse, history professor Fania Oz-Salzberger, who is baking bread in the kitchen and later goes upstairs to her study to be interviewed in the American media about the situation in the Gaza Strip.
He does not retract any of his statements at the conference. "Prof. Yoav Dotan [the dean of the Hebrew University faculty of law] pushed for privatization of the law faculties at the universities to contend with the competition from abroad. I am opposed to the privatization of higher education, and I argued that there is no justification for exceptional treatment of the field of law. I explained that it is precisely in law that we have an example of privatization: the colleges. In my opinion some of them are churning out the worst lawyers in the country. I don't rule out privatization or the free market, but in Israel higher education must not be privatized.
"At the colleges a combination of two things has happened: One is the total failure of the Council for Higher Education [CHE] to supervise as it is supposed to do, and the other is that some of the colleges are motivated by swinish capitalism. Though they are defined as nonprofit institutions, in fact they are motivated by clear considerations of profit, and therefore accept as many students as possible; they have an interest in the maximum number completing their studies. There are, for example, deans who get paid according to the number of students they succeed in enrolling. Not all the colleges are dreadful, but a mass of students can be found at terrible colleges."
Salzberger makes it clear that he is not referring to the Interdisciplinary Center in Herzliya or the College of Management in Rishon Letzion. Nor is his criticism directed at the quality of the lecturers at the colleges. "Even at the dreadful colleges there are good lecturers, good faculty members, but they are working according to a system of rewards and in an impossible constellation," he stresses.
Are you proposing the elimination of the colleges? In the United States there are private universities. Why not here?
Salzberger: "It is hard to compare us to the United States because it has institutions that are hundreds of years old and an entirely different culture. In Israel the number of lawyers per capita is the highest in the world: Half of 1 percent of the general population of Israel are lawyers. I have no objection to a lot of lawyers if they are indeed worthy of being lawyers.
"The situation in Israel is awful for a number of reasons. [Firstly,] two worlds are emerging in the law: higher law and lower law. Class A and Class B. There are law firms where they don't look at graduates of the colleges and accept only university graduates. These firms provide services at a high level, but charge clients very high fees and only wealthy people and well-established companies can afford their services.
"But most of the public needing legal services are ordinary people who can't afford the leading firms, and therefore have to turn to the inferior class of lawyers. There are lawyers who can't utter a coherent sentence. Judges have complained to me that they are not able to make themselves understood by lawyers during deliberations in court. The average level of service is dreadful, because those large firms that serve the wealthy are the minority. This situation amplifies the inherent inequality in Israeli society.
"Secondly, the quality of the legal system is a precondition for economic growth and in the long term this will harm the Israeli economy. Thirdly, law professors in democratic countries are pioneers in defending the rule of law, democratic values and human rights. Here the problem is on a level of morals and values: Some graduates of the colleges are not committed to the values democracy is suppose to represent. They have not received the values that must be part of a legal education."
Are you saying that the colleges are taking in people who have no morals?
"Not necessarily, but they are not getting the education to values that is needed. It is a fact that university graduates are more committed to the values of democracy and the rule of law. Nowadays it is very popular to have legal clinics. There are colleges where the clinic program is severely damaging to the rules of legal ethics and to clients because the service is not given by sufficiently professional people. Such students trip up the people who apply to them. If there is not correct supervision of the student, he does more harm than good."
So what is the solution?
"The solution should have come from the CHE, but it has failed. The Israel Bar Association is very worried about the situation and has established a number of teams to examine it and to propose reforms. I appeared before one of those teams, headed by attorney Rachel Ben Ari, whom I respect, and they discussed the idea of having a master's degree as a condition for joining the bar association, beyond making the bar exams more difficult. In addition, the association is making suggestions that would mean its increased involvement in law studies. Under the circumstances here, this is not appropriate and is liable to harm academic freedom."
Why did the CHE fail?
"The CHE is a very sad story. Its function is to approve the opening of new institutions and to supervise their activity, and it has failed entirely in this. The problem starts with colleges that misrepresent their lecturers, although they are pensioners from the established faculties, and continues with the farce of the report of law schools written by a committee at the CHE a number of years ago. We thought there would be a serious review and findings with operative conclusions. We were put to work for tens of thousands of hours, replying to long questionnaires. We prepared books about the curricula, publications and much more, and the report [by a committee headed by former Supreme Court justice Itzhak Englard] was never made public. It was shelved. They never announced why it was set aside and not published. Following the demand from the four deans of law faculties, they sent each the relevant part of the report, two years ago, but failed entirely in supervision or review."
No checks or balances
The Salzberger family's living room is modest and functional. On the dining table are a board game and four decks of cards, ostensibly for the four inhabitants of the house: the two professors and their 14-year-old twins. The simplicity is accented by a stunning view of Mount Carmel from the windows, and the Mediterranean greenery that envelopes the yard outside. The tranquil landscape and Salzberger's measured tone of voice, do not, however, blunt the sharp criticism he voices.
You have published articles against some of Justice Minister Daniel Friedmann's reforms - for example, those limiting the authority of the High Court of Justice. How would you sum up his term?
"From my perspective the period has been more bad than good. Notwithstanding the fact that he hasn't managed to implement the vast majority of the reforms he has tried to promote, the damage he has inflicted with respect to public confidence in the legal and judiciary system - the major asset and the power base of that system - will last for many years. We owe our democracy to the legal system and above all to the Supreme Court. Through the eyes of a scholar, it is possible to express wonder at the fact that we are one of 22 countries that have succeeded in maintaining an uninterrupted democracy over the past 50 years. Most of the countries of the European Union don't belong to this club, among them Spain, Portugal and Greece. We are a country living in a state of emergency, with wars and an existential threat. We don't have a rigid constitution that has limited the power of the regime in a clear way, and most of the founding fathers came from a nondemocratic tradition. We inherited a colonial legal system. In these circumstances the chance of Israel developing a democracy should have been nearly zero. Yet the founding generations of the Supreme Court were more activist than the later generations."
Was the Supreme Court at the founding of the state more activist than today?
"In deeds, not in rhetoric. The Supreme Court at the time of the War of Independence issued a restraining order on [David] Ben-Gurion against expropriating a house, and that was more activist than issuing an injunction against the route of the separation fence. There is a serious flaw in the structure of the Israeli government in that it lacks a system of checks and balances. In the United States, for a law to be legislated it has to go through the House of Representatives, the Senate and the president. Each of these institutions is based on a different structure of representation. In addition, there is separation between state and federal government. There are also many filters, and decisions require a majority of more than 51 percent ...
"Public decisions are taken with a very narrow majority [here]. The only balancing mechanism is the court. This is the explanation for judicial activism, and the justification for the central role of the court. It has a more significant role than the federal U.S. Supreme Court. Here it is the only entity that acts as a brake on the political authorities.
"There are problems. There is scope for reforms, for amendments. In Friedmann's case, I don't know whether he intended to destroy the trust in the legal system and its reputation, but this is what he has done. He is not knowledgeable about the political system and doesn't know how to tiptoe between the political raindrops - he says things too directly. Perhaps this is because he had a personal struggle with figures in the legal system, but things he has said have caused the public's trust, the court's main asset, to drop from 80-90 percent to 25 percent."
Is your criticism only of Friedmann?
"It's mostly Friedmann. The attacks on the Supreme Court started before then. Initially it was the Orthodox and the ultra-right extremists, then there was the battle by [Benjamin] Netanyahu, [Limor] Livnat and [Reuven] Rivlin [who rejected the excessive judicial activism, in their opinion, under the leadership of former Supreme Court president Aharon Barak] - but the public related to this as part of the political shtick. Then along comes a professor of law, not from the political milieu, and attacks the Supreme Court, and it's perceived badly and this creates serious difficulties.
"Friedman's claims about judicial activism are, at base, also not true. In fact, the supreme court in Israel has invalidated very few points of law relative to constitutional courts in Europe. Our supreme court has invalidated five or six clauses. The court in England, which was given the authority for judicial review of laws eight years after the constitutional revolution took place here, has sent more than 20 laws back to Parliament in recent years."
How would you assess the functioning of the Supreme Court?
"In the era after its president Aharon Barak retired, it is less intellectual, more down to earth, but I would like to see more of an equilibrium. In his last years as president, Barak got tired of ensuring a correct balance in appointments. In my opinion he erred when he opposed, for example, the appointment of Prof. Ruth Gavison to a Supreme Court position. Even if she doesn't concur with his judicial philosophy, the apprehension wasn't justified and her appointment could have been very fruitful. However, the court today has not significantly changed its willingness to intervene in decisions by the executive and legislative authorities, relative to the eras of [former Supreme Court president Meir] Shamgar and Barak."
Although the interview with Salzberger is taking place with the war in Gaza in the background, he prefers to refrain from discussing political issues. His father-in-law, writer Amos Oz, is the "spiritual father" of the new leftist party taking shape with Meretz.
"Do you believe that the Labor Party has completed its historical task?" we ask, referring to Oz's harsh remark about Ehud Barak and the party. But before Salzberger says anything, his wife advises him not to go into the issue. "There's an uprising in the family," they say in chorus, with a mysterious smile.
From their remarks it appears that around the Friday night dinner table, Oz is liable to find himself in the minority when it comes to discussing the Labor Party.
'A different Jerusalem'
Eli Salzberger's roots are planted deep in Jerusalem, where he was born 49 years ago. His mother, Lotte Salzberger, was a deputy to mayor Teddy Kollek and founded Hamoked: Center for the Defense of the Individual, a human rights organization that helps Palestinians, in 1988.
How did a Jerusalemite like you come to teach in Haifa?
"I loved Jerusalem and my studies at the university there; I flourished there. I was a teaching assistant in a course on the judicial process. A first-year course, in small groups. This was a course whose lecturers were Aharon Barak, Ruth Gavison, Mishael Cheshin and Yitzhak Zamir. I was the assistant for all of them at once. I remember that all the lecturers would meet at Cheshin's house - he was a private attorney at the time. You can imagine the academic debates that went on between the dramatis personae, and I would mediate. My formative experiences were in Jerusalem."
After completing his bachelor's degree in law in Jerusalem, Salzberger went on to complete a master's degree and doctorate at Oxford University. He relates that his original plan had been to come back and serve as a lecturer at Hebrew University.
"Those were the days of the first intifada and when I came back home for a visit, I discovered that Jerusalem was changing before my eyes. It was a different Jerusalem. Less tolerant, attracting extremists from all sides, like a magnet. I didn't want to go back to live in Jerusalem, and you can imagine that when your mother is the deputy mayor, this isn't an easy decision. At that time Yitzhak Zamir was the first dean in Haifa and he invited me to join."
There is a feeling that Tel Aviv University gets a lot of donations, but we don't hear much about you.
"This stems from the fact that we're on the periphery. Tel Aviv has raised vast amounts of money from law firms, because the firms are in Tel Aviv. There is a big demand for our graduates, but we haven't yet been recognized as an institution associated with the veteran and wealthy firms of Tel Aviv.
"One of my frustrations is the fact that Haifa is beyond the pale, and no one from the media ever comes. It's hard to get ourselves into the newspaper if it isn't a fully paid advertisement. In the wake of the Second Lebanon War, Haifa has moved even further away from the center and has become part of the periphery. People don't want to travel north. It is untenable that Israel be only Tel Aviv. There is a definite imbalance between what happens in Tel Aviv and what happens in other parts of the country, and this is tied to the loss of faculty members. Some of the faculty who have left have been attracted as though by a magnet back to Tel Aviv. It's funny that Jerusalem and Haifa are in a similar situation, however, unlike Jerusalem ... most of the people from Haifa who have left Haifa still love the place and would be happy to return to it, if Haifa offered more. Haifa can still be saved, and Jerusalem perhaps, too, in a different world, of peace."
One unique program at the law faculty in Haifa is aimed at serving judges. "Fifteen percent of the District Court and the Magistrate's Court judges have already studied in this program," says Salzberger proudly. "These are people who went to law school 20 years ago, and we update them on legal theory. Lecturers love to teach in this program because behind closed doors the judges talk about how they work and are not afraid to express an opinion. They learn from us and we also learn from them."
And how does this influence them?
"In the course on law and society, we take them to unrecognized Bedouin villages, to the separation fence and to Acre to meet residents of public housing projects. Judges have said that since they have visited these places, their way of thinking about eviction from Amidar [Public Housing Authority], for example, has changed. They see far beyond what is presented to them in court. In the course on law and economics, some of them encounter this way of thinking for the first time. They are 'reshaped' academically."
Last September, Salzberger was elected president of the European Association of Law and Economics. Serving in the organization are top experts who believe in using economic theories to apply the law. This is considered one of the most important legal fields today, thanks to the various influential economists and jurists involved in it, some of whom have won Nobel Prizes (among them John Nash, Ronald Coase, Israeli Robert Aumann and others).
"The law and economics school of thought isn't necessarily identified with an ideology of maximization of wealth, privatization of everything and sanctification of the free market," explains Salzberger. "In Europe, law and economics specialists are on the right and on the left. The variety of ideological positions is wide, and often the thinking focuses on disagreements in economics and not in law.
"The current economic crisis will not wipe out these theories, but it will provide a better balance to different ideological positions. It's strange that I'm saying this as the first Israeli to serve as president of the European Association of Law and Economics, but I see it as a mission to make the field of law and economics more relevant to the policy of the European Union. We will write position papers for the decision makers."
Salzberger returned recently from a conference in Brussels that dealt with comprehensive research embracing all the EU countries and Israel on the matter of regulation. "In the studies it was found that the United States and England are the only two countries with proper procedures for examining the quality of regulation. Prior to any regulation it is necessary to carry out a cost-benefit analysis and orderly calculations.
"The current crisis is based on a failure in regulation precisely in the United States and England. Moreover, the American rescue plan, the cost of which is far higher than any regulation in recent decades, has not undergone a rational process. They pass decisions to offer support of hundreds of billions of dollars, and a week later they change them. This is an example of failure of, or at least a harsh blow to, a dogmatic approach to law and economics. The theory that the market will do its job has taken a beating. Now we will see a profound change."
How would you evaluate regulation in Israel?
"In Israel there aren't orderly rules for regulatory procedures. There are no measures for assessing the rationality of decisions - how much a decision will cost, what it is supposed to bring about. But our macroeconomic figures are successful with respect to growth and economic development. The reason is that we have review after the fact by the court. The Supreme Court in its intervention contributes to Israel's economic success at the macro level, although the court does not make cost-benefit calculations as in academia ... [Via certain processes, it] restricts the capricious judgment of the executive authorities. This is another reason why, in my opinion, Daniel Friedmann is incorrect in his criticism of judicial activism. If the quality of regulation and legislation is improved, in any case, the court's involvement will decrease."
Dr. Dudi Schwartz, dean of the law faculty at Ono Academic College, said in response to Prof. Salzberger's criticism of the colleges that the faculty of his college "is continuing this year, as in the past, in extensive research activity. Thus, for example, during the past three years 21 leading books in key areas of the law have been published and six more books are expected to come out this year. This output in key areas of the law is certainly more than that of the law faculty of the honorable dean from Haifa. To the books can be added dozens of articles published during those years by our faculty in leading forums in Israel and abroad. As part of the institution's vision of changing the face of society, each year scholarships totaling NIS 20 million are awarded to students from the periphery and to those who cannot afford to pay, so they are able to study and integrate into society."
The CHE responded that its work in assessing the quality of law studies has been done in the framework of an initial and experimental round of quality assessment. Therefore, the older committee reports do not fulfill the council's current requirements when it comes to implementing necessary changes. In addition, the considerable amount of time that passed between the visits to the institutions and the completion of the draft documents means that they do not fully reflect the situation of studies in the field. At the CHE they added that to prevent the damage inherent in publishing draft reports that are not up to date, it was decided that they would not be used for drawing operative conclusions vis-a-vis the relevant institutions and would not be published.
The CHE also noted that the evaluation activity it carries out does not free institutions of the need to advance the quality of their law faculties and schools, as they are the ones that determine the criteria for acceptance and formulate curricula.
The justice minister's bureau informed Haaretz that Friedmann was not interested in responding to the comments made here.
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