Supreme difficulty

One of the main pleasures of legal translation is the story. Specifically, because there is a dispute, each side argues its point of view. This discussion is often fascinating and illuminating. Of course, the peak of such argumentation involves decisions of the Supreme Court.  Since I translate from Hebrew into English, I have learned the discretion can be better part of valor when it comes to taking on translation of Israeli Supreme Court decisions.

As compared to the structure of the American legal system, the Israeli Supreme Court is much more active and controversial. The reason is that a petitioner can access the high court in two manners. The court serves a court of last appeal, as in the United States. In addition, any citizen whose rights may be in danger of being breached may directly petition the Israeli Supreme Court to request a court order, which must hear the case, unlike in the United States. This is someone similar to the American process of filing a request for a restraining order in a state or federal district court. However, the Supreme Court has more freedom and thus can issue new interpretations of the law. Since these “emergency” situations generally involve complicated situations, such as immigration or destruction of property, the results of these appeals are of interest to both the legal and general community.  To give an example, if Benjamin Netanyahu succeeds in forming a government after the March elections, the Supreme Court undoubtedly will undoubtedly have to decide whether a prime minister, as compared to a minister, under indictment can legally serve, an issue regarding which current Israeli law is silent. Therefore, decisions of the Israeli Supreme Court are almost always relevant and controversial.

The justices must be extremely erudite. As a crossroads of multiple cultures and regimes, Israeli law is strange mélange of legal principles. In the United States in the states of Louisiana and Hawaii, certain matters actually follow the principles of Napoleonic and native law, respectively. In Israel, the situation is much more complex. Modern Israeli law, enacted since 1948, governs many but not all matters and is often vague or incomplete, whether intentionally or unintentionally. The regulations applying these laws sometimes take years to enter the books, complicating the issues even more.  The British ruled the territory from 1918 to 1948 and established many basic laws, some of which have not been replaced. The Ottomans ruled the region from 1517 to 1917 and had a complete set of laws. Unfortunately, the Turkish rules still have a strong influence on the procedures of land ownership. Even more relevant, religious laws still regulate marriage and divorce (but not custody) to the point of the existence of a separate special religious court system for Jews, Christians and Muslims, all applying ancient law. If none of these sources are clear, judges can refer to either modern American law, which does have a strong influence on legal reasoning, or, paradoxically, ancient Jewish law. To explain, the Halacha and Talmud, to name just the main sources, are interpretations of the Bible, similar to the body of interpretations on the Universal Commercial Code (UCC) in the United States.  Any decision supported by reasoning from these deeply respected sources has great weight. So, Israeli judges must have broad knowledge, way beyond current Israel laws and regulations.

Adding to the fun of reading and translating the decisions of the Israeli Supreme Court is the sheer number of languages that must be taken into account. Israeli law is in Hebrew. The application of the British colonial laws requires solid knowledge of English. Furthermore, many terms in Turkish law still are used in Israeli law, such as tabu, meaning registered ownership of land. Applying Islamic law requires knowledge of Arabic while Talmudic law requires understanding of Aramaic, an ancient language related to Hebrew. As American and British law traditionally use Latin terms to render the language fancier, judges must also be thoroughly familiar with that language. So, the learned judges of the Israeli Supreme Court must have thorough knowledge of Hebrew, English, Turkish, Aramaic, Latin and even sometime Arabic legal language.  It should be noted that many do not hesitate to demonstrate this mastery in their decisions.

Thus, the intrepid translator, facing some 200 pages or more of legal arguments from this huge corpus of sources, has to understand and transmit their meaning into English. For this reason, I have the greatest respect for those that successfully and artfully translate Israeli Supreme Court decisions into English.  I personally will only translate decisions up to the appeals court level and leave the Supreme Court decisions to the supremely talented and knowledgeable few who can properly handle them.

Supreme legal joy

The pinnacle of any legal career is being appointed a judge at the Supreme Court, the highest court of the land.  In most cases, it is lifetime job with no fear of being fired. Still, the responsibility placed on these judges is by definition heavy since they only rule on the most important cases.  However, significant differences exist in different countries between the legal procedures for high court cases.

For example, in the United States, the US Supreme Court may, but is not required to, rule on circuit court (first level of Federal appeals) rulings.  The key word is may since the court itself decides, by a decision of four of the nine judges, to take on a case in a given year.  The criteria for “the ideal case” are as mysterious and discussed as the elections of a new pope.  For instance, just recently, the Supreme Court announced the 50 cases it would hear in the coming year.  Most of the public discussion was on the omission, i.e. it would not hear any of the pending appeals regarding circuit court decisions to effectively allow single sex marriages.  Two reasons for this choice to ignore this controversial issue have been proposed: all of the circuit courts have reached the same conclusion, meaning that there is no need for the Supreme Court to intervene; alternatively or concurrently, the four judges against single-sex marriage are not sure of the support of the other conservative judge to reach a majority and therefore choose to wait for a more propitious moment. On the other hand, the Court, in its wisdom, did choose to hear a fascinating case, at least in my eyes.  Some crooked captain of a fishing trawler, caught with undersized fish at sea and instructed to hand over said fish to the police upon return to the port, ordered the crew to replace the small fish with larger ones.  Applying a section of law aimed at organized crime forbidding destruction of evidence during an investigation, the district attorney wants to give that crooked captain 20 years in prison instead of a fine that he otherwise would have gotten.  That is an issue that amuses more than divides (albeit not that captain).  Thus, US Supreme Court judges have this wonderful privilege of ignoring what is not convenient, for whatever reason.

In Israel, the high court hears two kinds of cases.  One is appeals of rulings of the appeal courts, like in the US.  In practice, the Court finds countless procedural reasons for not discussing appeals, quite often justifiably.  Its other role is the High Court of Justice, in Hebrew “Bagatz”, which gets it into quite a bit of trouble.  Any person, including a foreigner or illegal alien, that believes that his/her fundamental rights are being breached may petition for a hearing.  More often than not, these petitions involve minority rights and controversial issues.  For this reason, many voters, including the religious sector, want the Knesset to legislate a limit to the Court’s power while their opponents love the fact that the Court can do what the Knesset is scared to do.  However, for the judges themselves, this center stage position in the societal conflicts is both hard work and sometimes uncomfortable.  I would imagine that they envy their US colleagues, who can hide behind the shadows.

So, to paraphrase Orwell, the life of all Supreme Court judges is not created equal, even if the US Constitution says that we are.

N.S. My late great uncle, Simon Rifkind served as a Federal District Judge and took on a special assignment for the Supreme Court to rule on water distribution of the Colorado River.