Aahorn Barak. Gideon Sapir. Barak-Erez. Israeli Constitutional Law in The Making

ISRAELI CONSTITUTIONAL LAW IN THE MAKING
In the domain of comparative constitutionalism, Israeli constitutional law is a fascinat-

ing case study constituted of many dilemmas. It is moving from the old British tradition
of an unwritten Constitution and no judicial review of legislation to fully-fledged con
stitutionalism endorsing judicial review and based on the text of a series of Basic Laws.
At the same time, it is struggling with major questions of identity, in the context of
Israel’s constitutional vision of ‘a Jewish and Democratic’ state.
Israeli Constitutional Law in the Making offers a comprehensive study of Israeli
constitutional law in a systematic manner that moves from Constitution-making to spe-
cific areas of contestation including State/religion relations, national security, social
rights, as well as structural questions of judicial review. It features contributions by
leading scholars of Israeli constitutional law, with comparative comments by leading
scholars of constitutional law from Europe and the United States.
Volume 2 in the series Hart Studies in Comparative Public Law

Hart Studies in Comparative Public Law
Recent titles in this series:
The Use of Foreign Precedents by Constitutional Judges
Edited by Tania Groppi and Marie-Claire Ponthoreau
Israeli Constitutional Law
in the Making
Edited by
Gideon Sapir, Daphne Barak-Erez and Aharon Barak
OXFORD AND PORTLAND, OREGON

2013
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Acknowledgements
This book originated in an international conference based on the academic cooperation
of three law schools – Bar Ilan University Faculty of Law, the Buchmann Faculty of Law
at Tel Aviv University, and the Radzyner School of Law at the Interdisciplinary Center
(IDC). We are grateful for their support.
We are particularly grateful to our students who helped us in the editing process – Avi
Vaknin, Alon Dvir, Alon Nahear, Dudi Rabinowits and Neta Shapira.
Roman Zinigrad acted as our deputy editor and we express our deep appreciation to
his assistance throughout the whole process of editing.
February 2013
Table of Contents
Acknowledgements v
List of Contributors xi
Table of Cases xiii
Table of Legislation and Documents xxvii
1. Introduction: Israeli Constitutional Law at the Crossroads 1
Part 1 Towards a Full-Fledged Constitution

2. Why a Constitution – in General and in Particular in the Israeli Context? 9
Gideon Sapir
3. The Right to Judicial Review: The Israeli Case 25
Alon Harel
4. The Purpose of the Israeli Constitution 41
Ariel L Bendor
5. Consensus, Dissensus, and Constitutionalism 59
Sanford Levinson
Part 2 Models of Judicial Review in Israeli Constitutional Law

6. Majestic Constitutionalism? The Notwithstanding Mechanism in Israel 73
Tsvi Kahana
7. Constitutional Adjudication and Political Accountability: Comparative
Analysis and the Peculiarity of Israel 91
Yoav Dotan
8. Justifying Judicial Review: The Changing Methodology of the Israeli
Supreme Court 105
Joshua Segev
9. The Democratic Case for Diffuse Judicial Review in Israel 121
Ori Aronson
10. Constitutional Adjudication in Israel: Some Comments 139
Víctor Ferreres Comella
Part 3 Global Impacts on Israeli Constitutional Law

11. The Use of Foreign Law in Israeli Constitutional Adjudication 151
Iddo Porat
viii Table of Contents
12. The Israeli Case of a Transformative Constitutionalism 173

Moshe Cohen-Eliya
13. Proportionality in Israel and Beyond: Four Aspects 189
Margit Cohn
14. Constitutional Law in an Age of Globalization 205
Vicki C Jackson
Part 4 Balancing in Israeli Constitutional Law

15. Constitutional Proportionality: (Appropriate) Guidelines 225
Mordechai Kremnitzer
16. The Deficiencies of Balancing: Restricting Speech due to Offence to Feelings 239
Yaacov Ben-Shemesh
17. Proportionality: Comparative Perspectives on Israeli Debates 255
Sujit Choudhry
Part 5 ‘Unenumerated Rights’ in Israeli Constitutional Law

18. Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in
Israel: Definitions and Parameters 267
Tamar Hostovsky Brandes
19. The Inherent Authority of Judges in a Three-Track Democracy to Recognise
Unenumerated Constitutional Rights: The Israeli Story of a Judicial Mission
with No Ammunition 285
Sharon Weintal
20. Perpetual Constitutional Moments: A Reply to Hostovsky Brandes and Weintal 303
David Fontana
Part 6 Social Rights in Israel

21. In Search of the Right to Health in Israeli Constitutional Law 311
Aeyal Gross
22. The Fiscal Objection to Social Welfare Rights: A Closer Look 333
Amir Paz-Fuchs
23. Constitutional Review of ‘Eligibility Conditions’ in Social Rights Litigation 349
Neta Ziv
24. The New Consensus on Enforcing Social Welfare Rights: Comments on
Three Papers 369
Mark Tushnet
Table of Contents ix
Part 7 Constitutional Rights and Private Law

25. Constitutional Rights and Private Law 379
Aharon Barak
26. Human Rights in Private Law: Hybridization of the Balancing Tests 401
Michal Tamir
27. Private Actors and Constitutional Rights 419
Stephen Gardbaum
Part 8 Constitutional Rights and ‘State of Emergency’

28. The National Security Constitution and the Israeli Condition 429
Daphne Barak-Erez
29. The Role of the Legislature in Determining Legitimate Responses to
Security Threats: The Case of Israel 445
Barak Medina
30. Of Law, Constitutions and Security 461
Adam Tomkins
Part 9 Israel – ‘Jewish and Democratic’

31. Jewish and Democratic: Three Zionisms and Post-Zionism 473
Chaim Gans
32. A Jewish Nation-State: A Discussion in Light of the Family Reunification Case 487
Aviad Bakshi and Gideon Sapir
33. National Identity and Religion–State Relations: Israel in Comparative
Perspective 503
Gila Stopler
34. The Dilemmas of Identity in a Jewish and Democratic State: A Comparative
Constitutionalist Perspective on Bakshi and Sapir, Gans, and Stopler 517
Susanna Mancini and Michel Rosenfeld
Index 531
List of Contributors
Ori Aronson is Lecturer, Bar-Ilan University, Faculty of Law.

Aviad Bakshi is Adjunct lecturer, Bar-Ilan University, Faculty of Law.
Aharon Barak is Former President of the Supreme Court. Professor of Law, The
Interdisciplinary Center (IDC), Herszliya.
Daphne Barak-Erez, is Justice, The Supreme Court of Israel. Formerly Professor of Law
and the Stewart and Judy Colton Chair of Law and Security, Faculty of Law, Tel Aviv
University.
Ariel L Bendor is Frank Church Professor of Legal Research, Faculty of Law, Bar-Ilan
University.
Yaacov Ben-Shemesh is Senior Lecturer, Faculty of Law, Ono Academic College.
Sujit Choudhry is Cecelia Goetz Professor of Law, NYU School of Law; Faculty Director,
Center for Constitutional Transitions at NYU Law.
Moshe Cohen-Eliya is Dean and Professor of Law, Academic Center of Law and
Business.
Margit Cohn is Senior Lecturer, Faculty of Law and Federmann School of Public Policy,
Hebrew University of Jerusalem.
Víctor Ferreres Comella is Professor of Constitutional Law, Pompeu Fabra University
(Barcelona, Spain); Visiting Professor, University of Texas at Austin (United States).
Yoav Dotan is Edwin A. Goodman Professor of Law, Faculty of Law, Hebrew University
of Jerusalem.
David Fontana is Associate Professor of Law, George Washington University Law
School.
Chaim Gans is Professor of Law, Faculty of Law, Tel Aviv University.
Stephen Gardbaum is MacArthur Foundation Professor of International Justice &
Human Rights, UCLA School of Law
Aeyal Gross is Professor of Law, Faculty of Law, Tel Aviv University.
Alon Harel is Phillip P Mizock & Estelle Mizock Chair in Administrative and Criminal
Law, Faculty of Law, Hebrew University of Jerusalem.
Tamar Hostovsky Brandes is Lecturer, Faculty of Law, Ono Academic College.
Vicki C Jackson is Thurgood Marshall Professor of Constitutional Law, Harvard Law
School.
xii List of Contributors
Tsvi Kahana is Associate Professor, Faculty of Law, Queen’s University, CA.

Mordechai Kremnitzer is Bruce W Wayne Professor of International Law, Hebrew
University of Jerusalem.
Sanford Levinson is W St John Garwood and W St John Garwood Jr Centennial Chair
in Law, University of Texas Law School, and Professor of Government, University of
Texas at Austin.
Susanna Mancini is Professor of Comparative Law, Law School of the University of
Bologna, Adjunct Professor of International Law, SAIS Johns Hopkins University,
BC.
Barak Medina is Lawrence D. Biele Professor of Law, Faculty of Law, Hebrew University
of Jerusalem.
Amir Paz-Fuchs is Senior Lecturer, Law Faculty, Ono Academic College.
Iddo Porat is Senior Lecturer, Academic Center of Law and Business.
Michel Rosenfeld is Justice Sydney L Robins Professor of Human Rights and Director,
Program on Global and Comparative Constitutional Theory, Benjamin N Cardozo
School of Law, NYC.
Gideon Sapir is Professor of Law, Faculty of Law, Bar-Ilan University.
Joshua Segev is Senior Lecturer, Netanya Academic College School of Law.
Gila Stopler is Senior Lecturer, Academic Center of Law and Business.
Michal Tamir is Senior Lecturer, Sha’arei Mishpat College of Law.
Adam Tomkins is John Millar Professor of Public Law, University of Glasgow, UK.
Sharon Weintal is Lecturer, Netanya Academic College School of Law.
Neta Ziv is Director of The Cegla Clinical Law Programs and Professor of Law, Faculty
of Law, Tel Aviv University.
Table of Cases
Australia
High Court
Al-Kateb v Godwin [2004] HCA 37.......................................................................... 214
Canada
Supreme Court (By Case Name)

Adler v Ontario [1996] 3 SCR 609............................................................................ 218
Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567............................. 255
Attorney General v Irwin Toy [1989] 1 SCR 927........................................................ 216
Chaoulli v Quebec (AG) [2005] 1 SCR 791.........................................................328, 373
Dagenais v CBC [1994] 3 SCR 835 ........................................................................... 383
Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624............................ 338
Ford v Quebec (AG) [1988] 2 SCR 712........................................................................13
Global Securities Corp v British Columbia (Securities Commission) [2000]
1 SCR 494............................................................................................................ 217
Gosselin v Quebec [2002] 4 SCR 429........................................................................ 345
Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497........... 275
Pepsi-Cola Canada Beverages v RWDSU [2002] 1 SCR 156........................................ 383
R v Big M Ltd [1985] 1 SCR 295.......................................................................196, 258
R v Edwards Books and Art Ltd [1986] 2 SCR 713.................................................... 216
R v Oakes [1986] 1 SCR 103................................................................195, 197, 198, 232
Reference re Assisted Human Reproduction Act [2010] 3 SCR 457............................ 217
RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573................ 183, 383, 384, 404, 420, 424
Schachter v Canada [1992] 2 SCR 679....................................................................... 342
Singh v Minister of Employment and Immigration [1985] 1 SCR 177........................ 342
Slaight Communications Inc v Davidson [1989] 1 SCR 1038...................................... 452
European Court of Justice (By Case Number)

8/55 Fédération Charbonnière de Belgique v High Authority of the European
Coal and Steel Community [1954-1956] ECR 292.................................................. 191
107/63 Toepfer v Commission of the European Economic Community [1965]
ECR 405.............................................................................................................. 191
11/70 Internationale Handelsgesellschaft MBH v Einfuhr- und Vorratsstelle fur
Getreide und Futtermittel [1970] ECR 1125....................................................191, 195
4/73 Nold v Commission of the European Communities [1974] ECR 491.................. 191
279-280/84 Rau v European Economic Community [1988] 2 CMLR 704.................... 195
xiv Table of Cases
C-331/88 R v Minister for Agriculture, Fisheries and Food ex p Fedesa [1990]

ECR I-4023.......................................................................................................... 195
C-426/93 Federal Republic of Germany v Council of the European Union [1995]
ECR I-3723.......................................................................................................... 195
C-84/94 United Kingdom and Ireland v Council of the European Union [1996]
ECR I-5755.......................................................................................................... 195
C-434/02 Arnold André v Landrat des Kreises Herford [2004] ECR I-11825............... 195
Opinion of Advocate General Trstenjak delivered on 14 April 2010, in Case C-271/08

Commission v Germany [2010] ECR I-07091........................................................ 216
European Court of Human Rights (By Case Name)

A v United Kingdom (2009) 49 EHRR 29....................................................196, 462, 468
Abdulaziz v United Kingdom (1985) 7 EHRR 471..................................................... 196
Chahal v United Kingdom (1997) 23 EHRR 413..........................................465, 468, 469
Conka v Belgium (2002) 11 EHRR 555..................................................................... 192
Dogru v France (2009) 49 EHRR 8.....................................................................196, 221
Dudgeon v United Kingdom (1982) 4 EHRR 149...................................................... 212
Erkalo v Netherlands (1998) 28 EHRR 509............................................................... 192
Gaygusuz v Austria (1996) 23 EHRR 364........................................................... 358, 359
Handyside v United Kingdom (1979) 1 EHRR 737.............................................192, 196
Lingens v Austria (1986) 8 EHRR 407....................................................................... 196
Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1................................... 469
Sahin v Turkey (2005) 44 EHRR 5............................................................................ 221
Smith and Grady v United Kingdom (2000) 29 EHRR 493......................................... 200
Sunday Times v United Kingdom (1979) 2 EHRR 245........................................ 192, 196
France
Constitutional Council
99-412 DC, 15 June 1999.......................................................................................... 523
Germany
Federal Constitutional Court (By Case Year)
7 BVerfGE 198 (1958) [‘Lüth’]....................................................................182, 388, 405
33 BVerfGE 303 (1972)............................................................................................. 179
39 BVerfGE 1 (1975)..........................................................................................176, 180
88 BVerfGE 203 (1993)...............................................................................176, 180, 373
115 BVerfGE 118 (2006).................................................................................... 259, 459
India
Delhi High Court
Naz Foundation v Govt of NCT of Delhi (2009) 160 DLT 277.................................. 258
Table of Cases xv
Ireland
Supreme Court
TD v Minister for Education [2001] 4 IR 259............................................................ 335
Israel
Supreme Court (By Case Number)
HCJ 5/48 Leon v Acting District Commissioner of the Urban Area of Tel Aviv
(Gubernik) 1(1) PD 58 [1948].........................................................................106, 107
HCJ 7/48 Al-Karabutli v Minister of Defence 2(1) PD 5 [1949] ............107, 431, 439, 447
HCJ 10/48 Zeev v Acting District Commissioner of the Urban Area of Tel Aviv
(Gubernik) 1(1) PD 85 [1948].........................................................................107, 134
HCJ 1/49 Bejerano v Minister of Police 2 PD 80 [1949]............................................. 286
HCJ 73/53 Kol Ha’am v Minister of Interior 7 PD 871
[1953]....................................................................... 100, 158, 162, 167, 211, 243, 286
FH 16/61 Company Register v Kardosh 16 PD 1209 [1962] ....................................... 100
HCJ 357/61 Tatlees v Mayor of Herzliya 16(2) PD 902 [1961].........................................
HCJ 243/62 Ulpanei Hasrata v Gery 16 PD 2407 [1962]............................................ 159
HCJ 188/63 Batzul v Minister of Interior 19 (1) PD 337 [1965]....................................26
CrimA 336/61 Eichmann v Attorney General 17 PD 2033 [1962]................................ 487
EA 1/65 Yardor v Chairman of the Central Elections Committee to the Sixth
Knesset 19(3) PD 365 [1965]...................................................................179, 293, 487
HCJ 58/68 Shalit v Minister of the Interior 23(2) PD 477 [1970]................................ 389
FH 10/69 Boronovski v Chief Rabbi of Israel 25(1) PD 7 [1971]................................. 286
HCJ 98/69 Bergman v Minister of Finance 23(1) PD 693
[1969]................................................................................54, 100, 107, 112, 113, 116
HCJ 124/70 Cochavei Shemesh v Registrar of Companies 25(1) PD 505
[1971].................................................................................................................. 242
HCJ 351/72 Keinan v Film and Play Review Board 26(2) PD 811 [1972]..................... 243
HCJ 107/73 Negev Automobile Service Ltd v State of Israel 28(1) PD 640 [1974]....... 295
HCJ 148/73 Kaniel v Minister of Justice 27(1) PD 794 [1973]...............100, 107, 114, 295
HCJ 230/73 STM Ltd v Mayor of Jerusalem 28(2) PD 113 [1974].............................. 242
CA 312/74 Cables and Electric Threads Company v Kristianpoler 29(1) PD 316
[1974].................................................................................................................. 405
HCJ 60/77 Ressler v Chairman of the Elections commission 31(2) PD 556
[1977]........................................................................................................... 107, 295
HCJ 114/78 Burkan v Minister of Finance 32(2) PD 800 [1978]................................. 487
HCJ 148/79 Saar v Minister of Interior and Police 34 PD 169 [1979].......................... 100
HCJ 355/79 Katalan v Prisons Service 34(3) PD 294 [1980]........................................ 286
HCJ 59/80 Beer-Sheba Public Transport Services Ltd v National Labour Court 35(1) PD
828 [1980]............................................................................................................ 391
HCJ 246/81 Agudat Derekh Eretz v Broadcasting Authority 35(4) PD 1
[1981].............................................................................................. 54, 100, 107, 114
FH 22/82 Beit Yules v Raviv 43(1) PD 441 [1989]....................................................... 391
HCJ 141/82 Rubinstein v Chairman of the Knesset 37(3) PD 141
[1983].............................................................................................. 55, 100, 107, 114
xvi Table of Cases
HCJ 153/83 Levi v Police Commissioner for the Southern District 38(2) PD 393
[1984]....................................................................................................100, 159, 246
CA 165/82 Kibbutz Hatzor v Assessing Officer 39(2) PD 70 [1985]............................ 389
HCJ 399/85 Kahana v Broadcasting Authority Management Board 41(3) PD 255
[1987].......................................................................................................... 159, 408,
HCJ 14/86 Laor v Film and Play Review Board 41(1) PD 421
[1987].................................................................................................................. 243
HCJ 910/86 Ressler v Minister of Defence 42(2) PD 441 [1988]................................. 101
HCJ 104/87 Nevo v National Labour Court 44(4) PD 749 [1990]........................ 159, 416
HCJ 265/87 Beresford v Minister of Interior 43(4) PD 793 [1987].............................. 290
HCJ 953/87 Poraz v Mayor of Tel Aviv 42(2) PD 309 [1998]...................................... 205
EA 2/88 Ben-Shalom v Central Elections Committee to the Twelfth Knesset
42(4) PD 749 [1988].......................................................................................477, 488
CrimA 347/88 Demjanjuk v State of Israel 47(4) PD 221 [1988]................................. 487
HCJ 680/88 Schnitzer v Chief Military Censor 42(4) PD 617 [1989]........................... 440
HCJ 806/88 Universal City Studios inc v Films and Plays Censorship Board
43(2) PD 21 [1989]................................................................................................ 240
HCJ 142/89 Laor Movement v Speaker of the Knesset 44(3) PD 529
[1990].................................................................................................... 55, 187, 294
HCJ 344/89 HSA International Commerce v Minister of Industry and Trade
44(1) PD 456 [1990].............................................................................................. 193
HCJ 935/89 Ganor v Attorney General 44(2) PD 485 [1990]...................................... 193
HCJ 2994/90 Poraz v Government of Israel 44(3) PD 317 [1990].........................193, 440
CA 294/91 Jerusalem Community Burial Society v Kestenbaum 46(2) PD
464 [1992]................................................................. 183, 385, 397, 398, 401, 425, 487
HCJ 5667/91 Jabbarin v IDF Commander of Judea and Samaria 46(1) PD 858
[1992].................................................................................................................. 193
CA 105/92 Reem Engineers Contractors v Nazareth-Illit 47(5) PD 189 [1993].......77, 487
CA 2145/92 State of Israel v Gueta 46(5) PD 704 [1992]............................................ 412
HCJ 5394/92 Hupert v Yad Vashem 48(3) PD 353 [1994].........77, 102, 272, 276, 313, 314
HCJ 5510/92 Turkeman v Minister of Defence 48(1) PD 217 [1993]........................... 193
HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v Broadcasting
Authority 48(2) PD 1 [1994].................................................................................. 245
HCJ 2481/93 Dayan v Wilk 48(2) PD 456 [1994]...................................159, 239, 272, 402
CA 2781/93 Daaka v Carmel Hospital 53(4) PD 526 [1999]................................283, 394
CA 3414/93 On v Diamond Exchange Plants 49(3) PD 196 [1995].............................. 413
HCJ 3872/93 Mitral v Prime Minister and Minister of Religious Affairs 47(5)
PD 485 [1993]................................................................................................... 21, 77
HCJ 4330/93 Ganam v Israeli Bar Association 50(4) PD 221 [1996]........................... 225
CA 4628/93 State of Israel v Apropim Housing and Promotions 49(2) PD 265
[1995].................................................................................................................. 241
CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 49(4)
PD 221 [1995]...........................................3, 26, 41, 42, 43, 47, 101, 102, 113, 115, 116,
117, 119, 125, 129, 144, 159, 160, 161, 168, 184, 193, 195,
228, 232, 267, 268, 286, 291, 294, 295, 296, 354, 403, 440
HCJ 7081/93 Botzer v Municipal Council of Maccabim-Reut 50(1) PD 19
[1996]....................................................................................................181, 338, 339
Table of Cases xvii
HCJ 205/94 Nof v Minister of Defence 50(5) PD 449 [1997]...................................... 298

HCJ 453/94 Israel Women’s Network v Government of Israel 48(5) PD 510
[1994]....................................................................................................102, 168, 170
HCJ 721/94 El-Al v Daniloviz 48(5) PD 749 [1994]......................................159, 272, 297
HCJ 726/94 Klal Insurance Co Ltd v Minister of Finance 48(5) PD 441
[1994].................................................................................................................. 443
HCJ 987/94 Euronet Golden Lines (1992) Ltd v Minister of Communications
48(5) PD 412 [1994].............................................................................................. 193
HCJ 2920/94 Adam Teva Va Din v National Committee for Planning and
Construction of National Infrastructures 50(3) PD 441[1996]................................ 231
CA 4463/94 Golan v Prisons Service 50(4) PD 136 [1996]....................................277, 298
HCJ 4541/94 Miller v Minister of Defence 49(4) PD 94 [1995]....................274, 275, 276,
277, 278, 282, 298, 342,
HCJ 4676/94 Mitral v Knesset 50(5) PD 15 [1996].......................................................42
HCJ 4804/94 Station Film v Council of Film Supervision 50(5) PD 661
[1997]........................................................................................................... 159, 269
HCJ 5100/94 Public Committee against Torture in Israel v State of Israel 53(4)
PD 817 [1999]..............................................171, 193, 236, 259, 373, 440, 447, 452, 458
HCJ 6026/94 Nazal v IDF Commander of Judea and Samaria 48(5) PD 338
[1994].................................................................................................................. 230
HCJ 6126/94 Senesh v Broadcasting Authority 53(3) PD 817 [1999]........................... 245
CrimA 537/95 Ganimat v State of Israel 49(3) PD 365 [1995]..................................... 241
CA 733/95 Arpal Aluminum Ltd v Klil Industries Ltd 51(3) PD 577 [1997]................. 294
HCJ 1554/95 Shoharei Gilat Society v Minister of Education 50(3) PD 2
[1996].................................................................................................................. 339
HCJ 2316/95 Ganimat v State of Israel 49(4) PD 589 [1995]...................................... 178
HCJ 3477/95 Ben-Atiyah v Minister of Education, Culture and Sports 49(5)
PD 1 [1996]................................................................................................... 193, 195
HCJ 6055/95 Zemach v Minister of Defence 53(5) PD 241
[1999]....................................................................................... 55, 102, 107, 127, 342
HCJ 6698/95 Ka’adan v Israel Land Administration 54(1) PD 258 [2000]................... 488
HCJ 5016/96 Horev v Minister of Transportation 51(4) PD 1 [1997]............193, 216, 408
CA 6601/96 AES System Inc v Saar 54(3) PD 850 [2000]..................................... 389, 398
HCJ 164/97 Kontram v Ministry of Finance 52(1) PD 289 [1998]............................... 347
HCJ 450/97 Tnufa v Minister of Labour and Welfare 52(2) PD 433 [1998]................. 347
LCA 1185/97 Milgrom’s Estate v Mishan 52(4) PD 145 [1998]................................... 415
HCJ 1715/97 Investment Managers Bureau v Minister of Finance 51(4) PD 367
[1997].......................................................................... 44, 55, 102, 107, 127, 234, 408
CA 2000/97 Lindorn v Carnit – Road Accident Victims Fund 55(1) PD 12
[1999].................................................................................................................. 389
HCJ 2888/97 Novick v Second Television and Radio Authority 51(5) PD 193
[1997].................................................................................................................. 245
HCJ 3267/97 Rubinstein v Minister of Defence 52(2) PD 481 [1998]............299, 382, 452
HCJ 3648/97 Stamka v Minister of Interior 53(2) PD 728 [1999]............................... 494
HCJFH 4191/97 Recanat v National Labour Court 54(5) PD 330 [2000]......342, 385, 390
HCJ 5496/97 Mardi v Minister of Agriculture 55(4) PD 540 [2001]............................ 342
LCA 6339/97 Roker v Salomon 55(1) PD 199 [1999].................................................. 391
xviii Table of Cases
CrimFH 7048/97 John Does v Ministry of Defence 54(1) PD 721

[2000].............................................................................................171, 229, 232, 449
HCJ 1163/98 Sadot v Prisons Service 55(4) PD 817 [2001].......................................... 283
HCJ 1384/98 Avni v Prime Minister 52(5) PD 206 [1998]......................................42, 102
HCJ 2344/98 Maccabi Healthcare Services v Minister of Finance 54(5) PD 729
[2000]........................................................................................................... 318, 336
HCJ 2671/98 Israel Women’s Network v Minister of Labour and Social Affairs
52(3) PD 630 [1998].............................................................................................. 181
CA 3156/98 Ben Yishai v Veingarten 55(1) PD 939 [1999].......................................... 398
LCA 4905/98 Gamzu v Yeshayahu 55(3) PD 360 [2001].......................................315, 361
CA 5121/98 Yissacharov v Chief Military Prosecutor 61(1) PD 461
[2006]....................................................................................................168, 170, 283
CA 5258/98 A v B 58(6) PD 209 [2004] ..................................................................... 391
HCJ 6971/98 Paritzky v Government of Israel 53(1) PD 763 [1999]..................... 440, 448
CA 12/99 Jamal v Sabek 53(2) PD 128 [1999]............................................................ 487
HCJ 1030/99 Oron v Speaker of the Knesset 56(3) PD 540 [2002] ...................... 102, 127
HCJ 3091/99 Association for Civil Rights in Israel v Knesset (1 August 2006),
Nevo Legal Database (by subscription)................................................................. 435
HCJ 3091/99 Association for Civil Rights in Israel v Knesset (8 May 2012),
LCA 3145/99 Bank Leumi v Hazan 57(5) PD 385 [2003]............................................ 119
HCJ 4112/99 Adalah v Tel-Aviv Municipality 56(5) PD 393 [2002] (in Hebrew........... 487
HCJ 4124/00 Yekutieli v Minister of Religious Affairs (14 June 2010), Nevo
Legal Database (by subscription)...................................................................... 42, 46
HCJ 6845/00 Niv v National Labour Court 56(6) PD 663 [2002]........................342, 416
HCJ 24/01 Ressler v Knesset 56(2) PD 699 [2002]...................................................... 443
HCJ 1514/01 Gur Aryeh v Second Television and Radio Authority 55(4) PD 267
[2001].................................................................................................................. 245
LCA 5368/01 Yehuda v Teshuva 58(1) PD 214 [2003]................................................. 361
HCJ 7374/01 John Does v Director of the Ministry of Education (10 September
2003), Nevo Legal Database (by subscription)....................................................... 339
HCJ 8424/01 Handelman v Income Tax Commissioner (30 September 2002),
Nevo Legal Database (by subscription) 126
HCJ 9163/01 Clalit Health Services v Minister of Health 56(5) PD 521 [2002]........... 318
HCJ 769/02 Public Committee against Torture in Israel v Government of Israel
62(1) PD 507 [2006]................................................................................373, 441, 447
HCJ 1437/02 Association for Civil Rights in Israel v Minister of Public Security
58(2) PD 746 [2004].............................................................................................. 452
HCJ 2055/02 Oubeid v Minister of Defence (12 December 2002), Nevo Legal
Database (by subscription)................................................................................... 126
HCJ 2117/02 Physicians for Human Rights v Commander of the IDF forces in
the West Bank 56(3) PD 26 [2002]......................................................................... 441
HCJ 2936/02 Physicians for Human Rights v Commander of the IDF forces in
the West Bank 56(3) PD 3 [2002]........................................................................... 441
HCJ 3799/02 Adalah v GOC Central Command, IDF 60(3) PD 67, 80 [2005]............. 453
HCJ 4022/02 Association for Civil Rights in Israel v Minister of Interior
(11 January 2007), Nevo Legal Database (by subscription).................................... 495
Table of Cases xix
HCJ 4128/02 Adam Teva Va Din v Prime Minister of Israel 58(3) PD 503
[2002]........................................................................................................... 270, 361
HCJ 4253/02 Kiryati v the Attorney General (17 March 2009), Pador Legal
Database (by subscription) ........................................................................... 327–328
, 330
HCJ 4953/02 John Does v Government of Israel (10 June 2002)
(unpublished)....................................................................................................... 360
HCJ 5578/02 Manor v Minister of Finance 59(1) PD 729 [2004].........................160, 344
HCJ 6427/02 Movement for Quality Government v Knesset 61(1) PD 619
[2005].................................................. 102, 119, 186, 229, 235, 237, 269, 276, 277–78,
285, 286, 291, 293, 298, 299–301, 354, 396
HCJ 7473/02 Bahar v IDF Commander of Judea and Samaria 56(6) PD 488
[2002].................................................................................................................. 230
HCJ 8300/02 Nasser v Government of Israel (22 May 2012), Nevo Legal Database
(by subscription)....................................................................................... 42, 50, 127
CA 10064/02 Migdal Insurance Company Ltd v Abu Hana 60(3) PD 13
[2005].................................................................................................................. 417
CA 11081/02 Dolev v Kadosh 62(2) PD 573 [2007].................................................... 391
EA 11280/02 Central Elections Committee to the Sixteenth Knesset v Tibi 57(4)
PD 1 [2003]............................................................................................. 28, 296, 488
HCJ 212/03 Herut v Chairman of the Central Elections Committee 57(1)
PD 750 [2003]..................................................................................... 42, 77, 102, 107
HCJ 316/03 Bakri v Israel Film Council 58(1) PD 249 [2003].............................233, 245,
HCJ 366/03 Commitment to Peace and Social Justice Association v Minister of
Finance 60(3) PD 464 [2005]...........................................................181, 269, 274, 315,
344, 354, 361, 396, 408
HCJ 494/03 Physicians for Human Rights v Minister of Finance 59(3) PD 322
[2004].............................................................................................347, 356, 359, 364
HCJ 1433/03 Bachtin and Others v Minister of Finance (3 November 2008),
HCJ 3379/03 Moustaki v Attorney General 58(3) PD 865 [2004]............................... 193
HCJ 4947/03 Be’er Sheva Municipality v Government of Israel (10 May 2006),
HCJ 5432/03 SIN v Council for Cable and Satellite Broadcasting 58(3) PD 65
[2004]....................................................................................................159, 245, 283
HCJ 5784/03 Salama v IDF Commander of Judea and Samaria 57(6) PD 721
[2003].................................................................................................................. 449
HCJ 7052/03 Adalah v Minister of Interior 61(2) PD 202 [2006]...............3, 43, 155, 226,
276, 286, 408, 440, 495, 524,
HCJ 7102/03 Gal-On v Attorney General (30 May 2005), Nevo Legal Database
(by subscription).................................................................................................. 495
HCJ 8099/03 Association for Civil Rights in Israel v Minister of Interior
(14 May 2006), Nevo Legal Database (by subscription) ......................................... 495
HCJ 8263/03 Askafi v Minister of Interior (14 May 2006), Nevo Legal Database
(by subscription) ................................................................................................. 495
HCJ 8730/03 Maccabi Healthcare Services v Minister of Finance (21 June 2012),
Nevo Legal Database (by subscription) ................................................................ 319
xx Table of Cases
HCJ 9333/03 Kaniel v Government of Israel (16 May 2005), Nevo Legal Database
(by subscription) ................................................................................................. 345
HCJ 10203/03 Hamifkad Haleumi v Attorney General 62(4) PD 715
[2008] ............................................................................................... 3, 235, 277, 408
HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v
Prime Minister 61(1) PD 1 [2006] .................................................................. 382, 432
HCJ 11286/03 Ornan v the Minister of Interior (20 September 2004), Nevo Legal
Database (by subscription) .................................................................................. 483
HCJFH 247/04 Minister of Finance v Marciano (10 May 2004), Nevo Legal Database
(by subscription) ................................................................................................. 182
HCJ 1512/04 Hanuka v National Insurance Institute (10 April 2005), Nevo Legal
HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807
[2004] ......................................................... 29, 171, 185, 190, 216, 344, 441, 497, 525
HCJ 2887/04 Abu-Medigam v Israel Land Administration 62(2) PD 57 [2007] .......231, 354
HCJ 4764/04 Physicians for Human Rights v IDF Commander in Gaza 58(5)
PD 385 [2004] .................................................................................................29, 347
HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v Rosenzweig 60(1)
PD 38 [2005] ....................................................................................................... 345
HCJ 7957/04 Mara’abe v Prime Minister of Israel 60(2) PD 477 [2005] ..............344, 441
HCJ 8192/04 Movement for Quality Government v Prime Minister 59(3)
PD 145 [2004] ........................................................................................................44
HCJ 9593/04 Morar v IDF Commander of Judea and Samaria 61(1)
PD 844 [2006]................................................................................................ 231, 232
HCJ 10662/04 Hassan v National Insurance Institute (28 February 2012), Nevo
Legal Database (by subscription) ....................................................127, 316, 325, 363
HCJ 10907/04 Solodoch v Municipality of Rehovot (1 August 2010), Nevo Legal
HCJ 1661/05 Hof Aza Regional Council v Knesset 59(2) PD 481
[2005] ............................................................................. 102, 127, 232, 235, 343, 441
HCJ 2557/05 Majority Camp v Israel Police 62(1) PD 200
[2006] ........................................................................345, 181, 312–14, 345, 371, 396
HCJ2605/05 Academic Center of Law and Business v Minister of Finance
(19 November 2009), Nevo Legal Database (by subscription) ............. 44, 56, 102, 127,
182, 193, 234, 277, 290, 291, 294, 298, 344, 382
HCJ 2911/05 Elhannati v Minister of Finance 62(4) PD 406 [2008] ........................... 398
HCJ 3071/05 Louzon v Government of Israel (28 July 2008), Nevo Legal
Database (by subscription) ....................................................... 321–26, 341, 343, 348
HCJ 7190/05 Lobel v Government of Israel (18 January 2006), Nevo Legal
HCJ 8276/05 Adalah v Minister of Defence 62(1) PD 1 [2006]............................127, 453
HCJ 699/06 Israeli v Ministry of Communication (30 May 2006), Nevo Legal
HCJ 2194/06 Shinui Party v Chairman of the Central Elections Committee
(21 June 2006), Nevo Legal Database (by subscription) ......................................... 245
HCJ 2974/06 Israeli v Committee for the Expansion of the Health Basket (11 June
2006), Nevo Legal Database (by subscription) ...............................................311, 345
Table of Cases xxi
HCJ 3723/06 Clalit Health Services v Ministry of Health (24 July 2006), Nevo
Legal Database (by subscription).......................................................................... 320
CrimA 6659/06 A v State of Israel 62(4) PD 329 [2008].......................................234, 449
HCJ 6784/06 Shlitner v Director of Pension payments (12 January 2011), Nevo
Legal Database (by subscription) ......................................................................... 298
HCJ 7348/06 Jerusalem Open House for Pride and Tolerance v Police
Commissioner for the Jerusalem District (19 June 2006), Nevo Legal Database
(by subscription) ...................................................................................................... 250
HCJ 8397/06 Wasser v Minister of Defence 62(2) PD 198 [2007] ........................182, 344
HCJ 8988/06 Meshi Zahav v Police Commissioner for the Jerusalem District
(27 December 2006), Nevo Legal Database (by subscription) ......................... 246, 250
HCJ 466/07 Gal-On v Attorney General (11 January 2012), Nevo Legal Database
(by subscription) ................................................................................................. 291
CA 1966/07 Ariel v Pension Fund of Egged Members Ltd (9 August 2010), Nevo
HCJ 2150/07 Abu Safiyea v Minister of Defence (29 December 2009), Nevo Legal
HCJ 4004/07 Tronishvili v Ministry of Health (19 July 2007), Pador Legal Database
(by subscription) ................................................................................................. 321
LCA 4447/07 Mor v Barak ESS Company for International Telecommunications
Ltd (25 March 2010), Nevo Legal Database (by subscription) ............................... 394
HCJ 4638/07 Al-Aktza Almobarak Company Ltd v Israel Electric Co (29 October
2007), Nevo Legal Database (by subscription) ...................................................... 342
HCJ 5277/07 Marzel v Police Commissioner for the Jerusalem District (20 June
2007), Nevo Legal Database (by subscription)....................................................... 246
HCJ 5597/07 Alut – The National Association for Children with Autism v Minister
of Education (21 August 2007), Nevo Legal Database (by subscription) ................ 339
HCJ 6298/07 Ressler v Knesset (21 February 2012), Nevo Legal Database (by
subscription) .........................................................................................................83
CHR 8823/07 John Doe (Anon) v State of Israel (11 February 2010), Nevo Legal
Database (by subscription) ..................................................... 126, 236. 286, 299, 452
HCJ 1067/08 Noar Kahalacha v Minister of Education (14 September 2010), Nevo
CA 4243/08 Dan Area Revenue Service v Perry (30 April 2009), Nevo Legal Database
(by subscription) ................................................................................................. 344
HCJ 5079/08 Jane Doe v Rabbinical Court Judge, Rabbi Sherman (25 April 2012),
HCJ 5317/08 Marzel v Police Commissioner for the Jerusalem District (21 July 2008),
Nevo Legal Database (by subscription) ..................................................246, 247, 250
HCJ 9353/08 Abu Dheim v GOC Central Command, IDF (5 June 2009), Nevo Legal
Database (by subscription) ...........................................................................229, 230
APA 343/09 Jerusalem Open House for Pride and Tolerance v Municipality of
Jerusalem (14 September 2010), Nevo Legal Database (by subscription) ......... 297, 409
HCJ 434/09 Davidov v Minister of Health (3 May 2009), Pador Legal Database
(by subscription) ................................................................................................. 321
HCJ 6304/09 Lahav v Attorney General (2 September 2010), Nevo Legal Database
(by subscription) ...................................................................................................43
xxii Table of Cases
CA 751/10 John Doe v Dayan-Urbach (8 February 2012), Nevo Legal Database

(by subscription) ................................................................................................. 164
HCJ 4908/10 Bar-on v Knesset (7 April 2010), Nevo Legal Database (by
subscription) ....................................................................................................... 294
HCJ 488/11 Medical Organization of Israel v Minister of Health (19 June 2011),
Nevo Legal Database (by subscription)................................................................ 399
HCJ 2114/12 Association for Civil Rights in Israel v Government of Israel
(15 August 2012), Nevo Legal Database (by subscription) ..................................... 329
District Court (By Case Name)

CC (Jm) 40/61 Attorney General v Eichmann 27 PM 169 [1961] ............................... 487
CrimA (TA) 70597/04 Handelman v State of Israel (1 December 2005), Nevo
HP (Jm) 2247/03 Reshef v Levi (16 March 2004), Nevo Legal Database
(by subscription) ................................................................................................. 413
Magistrate Court (By Name)

CC (Ha) 4583/96 Association for the Protection of the Rights of Individuals v
Matzkin [1996] (unpublished) .............................................................................. 184
CrC 4696/01 State of Israel v Handelman (14 April 2003), Nevo Legal Database
(by subscription) ................................................................................................. 126
SC (Ac) 1457/07 Inbar v Iberia (20 November 2007), Nevo Legal Database (by
subscription) ....................................................................................................... 126
CC (Jer) 11258/93 Na’amne v Kibbutz Kalia (1 September 1996), Nevo Legal
CC (TA) 15/97 Shamsiyan v Rosemary Garden Rest (12 January 1999), Nevo Legal
SC (PT) 940/07 Taruf v Iberia (8 July 2007), Nevo Legal Database (by
subscription) ....................................................................................................... 126
Labour Court (By Case Name)

LA 1353/02 Applebaum v Holtzman 39 PDA 495 [2003] ........................................... 184
LA 1557/04 Clalit Health Services v Kaftsan (29 December 2005) (unpublished) ....... 320
DLC 5360/01 Dekel v Klalit Health Services (1 August 2002) para 106
(unpublished). ..................................................................................................... 320
LA 33680-08-10 Dizengoff Club v Zoili (16 November 2011), Pador Legal
LA 45021-05-10 Eliav v Clalit Health Services (12 July 2010) (unpublished) .............. 321
DLC 14-339/99 Grundstein v Klalit Health Services (24 March 1999) (unpublished)...... 320
DLC 22/99 Isaac v Minister of Health (10 December 1999) (unpublished) ................. 320
LA 90/08 Isakov Inbar v Commissioner for Women Labour (8 February 2011),
LA 575/09 Maccabi v Dehan (6 January 2011) (unpublished) .................................... 320
NLC 5-7/97 Madzini v Clalit Health Services 33 PDA 193 [1999] .............................. 320
NLC 53/3-223 Palestine Post Ltd v Yechiel 27 PDA 436 (17 October 1994) ................. 408
Table of Cases xxiii
LA 1091/00 Shitrit v Meuchedet Health Services 35 PDA 5 [2000] ............................. 320

NI (Naz) 1822/09 Yedinek v National Insurance Institute (7 January 2010), Nevo
New Zealand
Court of Appeal
Hosking v Runting [2004] 7 HRNZ 301 ................................................................... 386
South Africa
Constitutional Court (By Case Name)
Bernstein v Bester NO 1996 (2) SA 751 (CC) ............................................................ 380
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) ................... 380, 396
Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) ...................................... 235
Du Plessis v De Klerk 1996 (3) SA 850 (CC) ............................................................. 380
Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) ....... 180
Khosa v Minister of Social Development 2004 (6) SA 505 (CC) ......................... 357, 358
Khumalo v Holomisa 2002 (5) SA 401 (CC) ............................................................. 380
Metcash Trading Limited v Commissioner for the South African Revenue Service
2002 (4) SA 317 (CC) ........................................................................................... 235
Occupiers of 51 Olivia Road v City of Johannesburg 2008 (3) SA 208 (CC) .............. 371
Pharmaceutical Manufacturers Association of South Africa: Re ex p President of
the Republic of South Africa 2000 (2) SA 674 (CC) ............................................... 258
Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794
(CC) ................................................................................................................... 237
Rail Commuters Action Group v Transnet Ltd 2005 (2) SA 359 (CC) ........................ 380
S v Makwanyane 1995 (3) SA 391 (CC) .................................................................... 175
S v Manamela 2000 (3) SA 1 (CC) ............................................................................ 235
Soobramoney v Minister of Healt Kwazulu Natal 1998 (1) SA 765 (CC) ............180, 348
Swaziland
High Court
Aphane v Registrar of Deeds and Others [2010] SZHC 29......................................... 360
Turkey
Constitutional Court
E 2008/16, K 2008/116 (22 October 2008, Official Gazette No 27032) ....................... 221
UK
House of Lords (By Case Name)
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68
[‘Belmarsh’]....................................................................................200, 236, 442, 461
A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006]
xxiv Table of Cases
2 AC 221.............................................................................................................. 463
AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32,
[2009] 1 WLR 1385............................................................................................... 200
Attorney General’s Reference (No 3 of 1999) [2009] UKHL 34, [2009] 3 WLR 142..... 200
Conway v Rimmer [1968] UKHL 2, [1968] AC 910 ................................................... 462
Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6,
[1985] 1 AC 374 [‘GCHQ’]................................................................................... 199
Duncan v Cammell Laird [1942] UKHL 3, [1942] AC 624.......................................... 462
G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173 ........................ 200
Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007]
2 AC 167 ............................................................................................................. 200
Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465 ............ 200
Liversidge v Anderson [1941] UKHL 1, [1942] AC 206....................................... 462, 467
R v Chief Constable of Sussex, ex p International Trader’s Ferry [1998] UKHL 40,
[1999] 2 AC 418 ................................................................................................... 198
R v Halliday, ex p Zadig [1917] UKHL 1, [1917] AC 260 (HL)................................... 462
R v Secretary of State for Transport, ex p Factortame (No. 2) [1990] UKHL 13,
[1991] 1 AC 603 ................................................................................................... 198
R (Alconbury Development Ltd) v Secretary of State for the Environment, Transport
and the Regions [2001] UKHL 23, [2003] 2 AC 295 ............................................... 200
R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15,
[2007] 1 AC 100 ............................................................................................198, 261
R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001]
2 AC 532 ............................................................................................................. 198
R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23, [2004]
1 AC 185 ............................................................................................................. 200
RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10,
[2010] 2 AC 110 ................................................................................................... 469
Secretary of State for the Home Department v MB [2007] UKHL 46, [2008]
1 AC 440 ............................................................................................................. 468
Secretary of State for the Home Department v AF [2009] UKHL 28, [2010]
2 AC 269 ............................................................................................................. 468

Ahmed v HM Treasury [2010] UKSC 2, [2010] 2 AC 534 ................................... 464, 465
Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531 .................................... 466
Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452 ............................................ 469
Court of Appeal (By Case Name)

AS (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289,
[2008] HRLR 28 .................................................................................................. 469
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010]
EWCA Civ 65, [2011] QB 218 .............................................................................. 463
R (Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334, [2012]
HRLR 6 .............................................................................................................. 463
R v Chief Constable of Sussex, ex p International Trader’s Ferry [1997]
Table of Cases xxv
2 CMLR 164, 182 ................................................................................................ 198

R v Secretary of State for the Home Department, ex p Cheblak [1991]
1 WLR 890 .......................................................................................................... 462
R v Secretary of State for the Home Department, ex p Hosenball [1977]
1 WLR 766 .......................................................................................................... 462
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947]
EWCA Civ 1, [1948] 1 KB 223 .............................................................................. 465
Privy Council
De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and
Housing [1998] UKPC 30, [1999] 1 AC 69 ..................................................... 199–200
Special Immigration Appeal Commission

Othman (Abu Qatada) v Secretary of State for the Home Department [2012]
UKSIAC 15/2005 ................................................................................................. 469
USA
Abrams v US 40 250 US 616 (1919) .......................................................................... 158
Adair v United States 208 US 161 (1908) .................................................................. 336
Adkins v Children’s Hospital 261 US 525 (1923) ....................................................... 336
Baker v Carr 369 US 186 (1962) ........................................................................ 194, 209
Bowers v Hardwick 478 US 186 (1986) ..................................................................... 212
Brown v Board of Education 347 US 483 (1954) .......................................... 93, 110, 275
Cantwell v Connecticut 310 US 296 (1939) ............................................................... 158
City of Boerne v Flores 521 US 507 (1997) ................................................................ 217
Coker v Georgia 433 US 584 (1977) .......................................................................... 215
Curtis Publishing v Butts 388 US 130 (1967) ............................................................. 208
Dandridge v Williams 397 US 471 (1970) .................................................................. 335
Dennis v United States 341 US 494 (1951) ..................................... 158, 167, 209, 211–12
DeShaney v Winnebago County 489 US 189 (1989) ................................................... 180
Dred Scott v Sandford 60 US 393 (1857) ............................................................... 30, 62
Edward J De Bartolo Corp v Fla Gulf Coast Bldg & Constr Trades Council 485
US 568 (1988)....................................................................................................... 422
Fay v New York 332 US 261 (1947) .............................................................................74
Fordyce County, Georgia v Nationalist Movement 505 US 123 (1992) ........................ 345
Gitlow v NY 268 US 652 (1924) ............................................................................... 158
Goldberg v Kelly 397 US 254 (1970) ......................................................................... 355
Hamdan v Rumsfeld 548 US 557 (2006) ................................................................... 432
Hamdi v Rumsfeld 542 US 507 (2004)................................................................ 432, 457
Harris v MacRea 448 US 297 (1980) ......................................................................... 180
Hirabayashi v United States 320 US 81 (1943) ........................................................... 236
Hurd v Hodge 354 US 24 (1947) .............................................................................. 208
Hustler Magazine v Falwell 485 US 46 (1988) ........................................................... 208
Jackson v City of Joliet 465 US 1049 (1984) ............................................................. 395
xxvi Table of Cases
King v Smith 392 US 309 (1968) ............................................................................... 355

Korematsu v United States 323 US 214 (1944) ......................................227, 230, 236, 524
Lawrence v Texas 539 US 558 (2003) ........................................................................ 213
Lochner v New York 198 US 45 (1905) .......................................................... 30, 63, 336
Loving v Virginia 388 US 1 (1967) ............................................................................ 519
Lugar v Edmondson Oil Co 457 US 922 (1982) ......................................................... 183
Marbury v Madison 5 US 137 (1803) .....................................94, 122, 125, 145, 160, 168
Mathews v Eldridge 424 US 319 (1976) .................................................................... 335
New York Times Co v Sullivan 376 US 254 (1964) ............................................. 384, 387
Plessey v Ferguson 163 US 537 (1896) .........................................................................93
Roe v Wade 410 US 113 (1973) ................................................................................. 180
Schenck v US 249 US 47 (1918) ................................................................................ 158
Shelley v Kraemer 334 US 1 (1948) .........................183, 184, 384, 385, 405, 420, 422, 423
Snyder v Phelps 131 S Ct 1207 (2011) ....................................................................... 208
Southern Pacific Co v Jensen 244 US 205 (1917) ....................................................... 394
Tyson & Brother v Banton 273 US 418 (1927) .......................................................... 336
United States v Carolene Products Co 304 US 144 (1938) ...................................186, 194
United States v Lopez 514 US 549 (1995) .................................................................. 219
United States v Morrison 529 US 598 (2000) ......................................................208, 219
Weaver v Palmer Bro Co 270 US 402 (1926) .............................................................. 336
Whitney v California 274 US 357 (1926) ................................................................... 158
Wyman v James 400 US 309 (1971) .......................................................................... 335
Federal Courts (By Case Name)

Bowers v DeVito 686 F 2d 616 (1982) ....................................................................... 180
Jackson v City of Joliet 715 F 2d 1200 (1982) ....................................................180, 395
Parrish v Civil Service Commission 66 Cal 2d 260 (1967) .......................................... 355
United States v Associated Press, 52 F supp 362, 372 (1943) ...................................... 158
Zimbabwe
Supreme Court
Nyambirai v National Social Security Authority [1996] 1 LRC 64, 1995 (9)
BCLR 1221 ...................................................................................................198, 199
Table of Legislation and Documents
National (In Alphabetical Order)

Australia
Australian Constitution..............................................................................................97
Charter of Human Rights and Responsibilities Act 2006 ............................................97
Canada
Canadian Charter of Rights and Freedoms
art 1.......................................................................................................161, 192, 382
art 24 .................................................................................................................. 122
art 33 ....................................................................................................................74
Anti-Terrorism Act 2001.......................................................................................... 442

Constitution Act, 1867............................................................................................. 218
Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982
pt V.......................................................................................................................78
Emergencies Act 1985 .......................................................................................439, 444
Egypt
Constitution of the Arab Republic of Egypt, 26 December 2012 ..........................59, 520
Germany
Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz][GG][Basic Law],
23 May 1949, BGBl I
art 1..................................................................................................................... 176
art 1(3).......................................................................................................... 379, 422
art 9(3)................................................................................................................. 380
art 79(3)............................................................................................................... 292
art 93................................................................................................................... 122
art 94(1).................................................................................................................96
The Constitution of the German Reich, 1919 (Die Verfassung des Deutschen Reichs)
[‘Weimar Constitution’]
art 48................................................................................................................... 436
xxviii Table of Legislation and Documents
Civil Code (BGB) 182

s 826......................................................................................................182, 388, 422
Greece
1975 Syntagma [Constitution]
art 3 .................................................................................................................... 506
art 16(2)............................................................................................................... 506
Hungary
Magyarország Alaptörvénye [Fundamental Law of Hungary], 1 January 2012
art D ................................................................................................................... 525
India
India Const
art 13 §2.................................................................................................................98
art 15................................................................................................................... 381
Israel
Documents
Declaration of the Establishment of the State of Israel, 1 LSI 7 (1948) [‘Declaration of
Independence’] 1..............54, 100, 107, 134, 174, 177, 179, 430, 475, 477, 479, 487, 510
‘Harari Decision’ DK 5 (1950) 1743 ................................. 2, 106, 157, 177, 267, 295, 430
Basic Laws
Basic Law: Freedom of Occupation, 5752-1992, SH No 1387 p 114 .............................73
Basic Law: Freedom of Occupation, 5754-1994, SH No 1454 p 90 ..............................73
s 1 ................................................................................................................298, 403
s 2 ................................................................................................................403, 474
s 4 ..................................................................................................................44, 404
s 5 .........................................................................................................379, 397, 404
s 8.................................................................................................................... 51, 57
s 10...................................................................................................................... 440
Basic Law: Human Dignity and Liberty
s 1A .................................................................................................................... 474
s 2 ................................................................................................................268, 396
s 3.................................................................................................................268, 115
s 4 ................................................................................................................268, 396
s 5...................................................................................................................55, 268
s 6........................................................................................................................ 268
s 7........................................................................................................................ 268
s 8 ................................................ 44, 160, 192, 225, 227, 230, 308, 372, 452, 455, 456
s 9..........................................................................................................................55
s 10...................................................................................................................... 440
s 11...............................................................................................................379, 397
Table of Legislation and Documents xxix
s 12...................................................................................................................... 434

Basic Law: The Government, 5728-1968, SH No 540 p 226 ....................................... 432
Basic Law: The Government, 5752-1992, SH No 1396 p 214
s 49 ..................................................................................................................... 432
s 50 ..................................................................................................................... 432
Basic Law: The Government, 5761-2001, SH No 1780 p 158
s 1........................................................................................................................ 432
s 32...................................................................................................................... 432
s 38–39 ................................................................................................................ 432
s 39(c).................................................................................................................. 433
s 40...................................................................................................................... 433
s 40(b).................................................................................................................. 433
s 44(a).................................................................................................................. 434
Basic Law: The Judiciary
s 4(b) .....................................................................................................................99
ss 15(c), 15(d)(2) .................................................................................................. 127
s 20(b) ................................................................................................................. 124
Basic Law: The Knesset
s 1..........................................................................................................................41
s 4..........................................................................................................................54
s 7A........................................................................................ 292, 293, 294, 296, 481
ss 8, 44–45..............................................................................................................76
Basic Law: The Military
s 2(a) ................................................................................................................... 431
Basic Law: The President of the State ...................................................................... 100
Laws, Ordinances and Orders
Administrative Affairs Courts Law, 5760-2000 ......................................................... 152

Arrangements Law (Legislative Amendments for Achieving the Budget Goals and the
Economic Policy for the 2003 Fiscal Year), 5763-2002
ss 17(2)(a)(1), 17(2)(c), 17(3)(a), 17(11), 17(13) ..................................................... 356
Chief Rabbinate of Israel Law, 5740-1980 ................................................................ 511
Civil Defence Law, 5711-1951 .................................................................................. 444
Citizenship Law, 5712-1952
s 7 ....................................................................................................................... 494
Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003,
SH No 1901 p 544 .........................................................................................496 495
Citizenship and Entry into Israel Law (Temporary Provision) (Amendment),
5765-2005, SH No 2018 p 730 ........................................................................ 524 495
Commodities and Services (Control) Law, 5718-1958 ............................................... 431
Contract for Services Law, 5734-1974 ....................................................................... 415
Contracts Law (General Part), 5733-1973
s 39 ..................................................................................................................... 184
The Courts Law (Consolidated Version), 5744-1984
c 1, pt 3 ........................................................................................................... 45, 99
s 7(c)(2) ..........................................................................................................45, 128
xxx Table of Legislation and Documents
Criminal Code Ordinance, 5696-1936

s 179 ................................................................................................................... 243
Criminal Procedure Law (A Detainee Accused in a Security Offence) (Temporary
Provision), 5766-2006
s 5........................................................................................................................ 452
Criminal Procedures Law (Criminal Investigations), 5762-2002
s 17...................................................................................................................... 449
Criminal Procedure Law (Enforcement Powers – Detentions) Law, 5756-1996
s 34–35 ................................................................................................................ 449
Denial of Holocaust (Prohibition) Law, 5746-1986 ................................................... 487
Defamation Law, 5725-1965..................................................................................... 404
Deferment of Military Draft for Yeshiva Students Whose Occupation is the Study
of Torah Law, 5762-2002 [‘Tal Law’] .................................................................... 299
Economic Emergency Programme Law (Legislative Amendments for Achieving
Budgetary Goals and the Economic Policy for the 2002 and 2003 Fiscal Years),
5762-2002 ............................................................................................................ 360
Emergency Land Requisition (Regulation) Law, 5710-1949 ....................................... 431
Emergency Powers Law (Detentions), 5739-1979
s 2........................................................................................................................ 449
Employment Law (Equal Opportunities), 5748-1988 ................................................ 401
Equality Right for People with Disability Law, 5758-1998 ......................................... 401
Family Agriculture Arrangements Law, 5752-1992 [‘Gal Law’] .......................... 115, 119
Family Agriculture Arrangements Law (Amendment), 5753-1993 ............................. 115
Foundations of Law Law, 5740-1980
s 2 ....................................................................................................................... 153
The General Security Service Law, 5762-2002
s 8–12 .................................................................................................................. 450
The Gift Law, 5728-1968 .......................................................................................... 415
Jewish Religious Services Law (Consolidated Version), 5731-1971 ............................ 511
Incarceration of Unlawful Combatants Law, 5762-2002 ............................................ 441
Income Supplement Law, 5741-1980
s 9A(b) ................................................................................................................ 349
s 9A(c) ................................................................................................................ 363
Income Supplement Law (Amendment no 15), 5761-2001, SH no 1772 p 122 ............ 349
Insurance Contract Law, 5741-1981 ......................................................................... 415
Investment Consulting Law, 5755-1995 ......................................................................44
King’s Order in Council, 1922
sign 46................................................................................................................. 153
sign 51(1) ............................................................................................................ 511
sign 52 ................................................................................................................ 511
Knesset Elections Law and Local Authorities (Funding, Limits on Expenditure and
Control), 5729-1969 ............................................................................................. 112
Law and Administration Law (Cancellation of Application of Law, Jurisdiction and
Administration) (Amendment), 5771-2010, SH No 2263 p 58 ..................................51
The Law and Administration Ordinance, 5708-1948
s 9 ....................................................................................................................... 430
s 11 ..................................................................................................................... 430
Table of Legislation and Documents xxxi
s 18 ..................................................................................................................... 430

Law of Return, 5710-1950
s 1 ....................................................................................................................... 487
Mandatory Education Law, 5709-1949
ss 1–2 .................................................................................................................. 350
Martyrs’ and Heroes’ Remembrance Day Law, 5719-1959 ........................................ 487
Martyrs’ and Heroes’ Commemoration Law – Yad Vashem, 5713-1953 .................... 487
Meat and Meat Products Law, 5754-1994 (Import of Frozen Meat Law, 5754-1994)
s 2 .........................................................................................................................21
National Health Insurance Law, 5754-1994 .............................................................. 312
s 1........................................................................................................................ 316
s 81...................................................................................................................... 317
s 13(5).................................................................................................................. 317
s 49 ..................................................................................................................... 336
National Insurance Law (Consolidated Version), 5755-1995 ..................................... 360
The Nationality Law, 5712-1952
s 2 ....................................................................................................................... 356
Nazi Persecution Disabled Persons Law, 5717-1957 .................................................. 487
Nazis and Nazi Collaborators (Punishment) Law, 5710-1950 .................................... 487
Patient’s Rights Law, 5756-1996
s 3(b) ................................................................................................................... 320
Penal Law, 5737-1977
s 13(b)(2) ............................................................................................................. 487
s 173.................................................................................................................... 243
s 214(a) ............................................................................................................... 243
Prevention of Terrorism Ordinance ......................................................................... 448
Prohibition of Discrimination in Products, Services and in Entry into Places of
Entertainment and Public Places Law, 5761-2000 .................................................. 401
Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953
s 1–2 ............................................................................................................ 510, 511
Rental and Borrowing Law, 5731-1971
s 22 ..................................................................................................................... 416
The Sale Law (Apartments), 5733-1973 .................................................................... 415
Special Education Law 5748-1988 ............................................................................ 182
Standard Contracts Law, 5743-1982 ......................................................................... 406
State Education Law (Amendment No 5), 5760-2000
s 2(4) ................................................................................................................... 487
Tort Ordinance (New Version), 5728-1968
s 63 ..................................................................................................................... 183
Victims of Holocaust Property Law (Restoration to Successors and Dedication to
Support and Perpetuation), 5765-2005 ................................................................. 487
Wiretap Law, 5739-1979
s 4 ....................................................................................................................... 448
Draft Bills and Bills Memoranda
Bill Memorandum of Basic Law: The Legislation, 2012 ..............................................42

xxxii Table of Legislation and Documents
s 2..........................................................................................................................42
s 24 ..................................................................................................................... 131
Draft Bill Amending Basic Law: Freedom of Occupation, 1993, HH 128 .....................78
Draft Bill Amending Basic Law: The Judiciary (Judicial Review of Legislation),
2007, P/17/1975 ................................................................................................... 107
Draft Bill Amending Basic Law: The Judiciary (Judicial Review of Legislation),
2010, P/18/2056 ................................................................................................... 108
Draft Bill Amending Basic Law: The Judiciary (No 4) (Judicial Review), 2008, HH M
s 1 .........................................................................................................................26
Draft Bill Amending Basic Law: The Judiciary (Powers of the High Court of Justice),
2010, P/18/2018 .....................................................................................................45
Draft Bill Amending The Courts Law (Number of Justices in the Supreme Court), 2009,
P/18/1760...............................................................................................................45
Draft Bill Amending The Courts Law (Transparency of Procedures to Appoint
Supreme Court Justices and the President and Deputy President of the Supreme
Court), 2011, P/18/3423 ....................................................................................... 102
Draft Bill Basic Law: Bill of Rights, 1983, HH 111 .......................................................2
Draft Bill Basic Law: Constitutional Court, 2009, P/4/18 .......................................... 130
Draft Bill Basic Law: Human and Civil Rights, 1973, HH 448 ......................................2
Draft Bill Basic Law: Judicial Review, 2006, P/17/1864 .............................................. 107
Draft Bill Struggle Against Terrorism, 2011, HH M 1408 ......................................... 441
Italy
Costituzione [Cost] ......................................................................................................
art 135...................................................................................................................11
New Zealand
Bill of Rights Act 1990
Preamble ............................................................................................................. 166
Norway
Kongeriget Norges Grundlov [Constitution] 17 May 1814
art 112 ................................................................................................................ 294
South Africa
S Afr Const, 1996
Preamble.......................................................................................................176, 177
s 7(2).................................................................................................................... 396
s 8........................................................................................................................ 405
s 8(1).................................................................................................................... 379
s 8(2).................................................................................................................... 380
s 8(3).................................................................................................................... 394
s 8(3)(b)............................................................................................................... 395
s 28...................................................................................................................... 357
s 36...............................................................................................................358, 364
Table of Legislation and Documents xxxiii
s 37...................................................................................................................... 437

s 167.................................................................................................................... 122
Immigration Act (No 13, 2002)

s 25(1) ................................................................................................................. 358
Social Assistance Act 2004 ....................................................................................... 357
Spain
Constitución Española, BOE n 311, 29 December 1978
s 159(3) .................................................................................................................11
Swaziland
Swaziland Constitution ........................................................................................... 360
Turkey
Constitution of the Republic of Turkey 7 November 1982
art 2 .................................................................................................................... 509
art 136................................................................................................................. 509
art 174(4)............................................................................................................. 510
UK
Acts
Anti-terrorism, Crime and Security Act 2001
s 23...................................................................................................................... 236
Counter-Terrorism Act 2008 ............................................................................. 463, 466
European Communities Act 1972
s 2(1) ................................................................................................................... 198
Human Rights Act 1998 (HRA) .................................................................. 98, 206, 431
Hunting Act 2004 .................................................................................................... 463
Prevention of Terrorism Act 2005 ............................................................................ 463
Special Immigration Appeals Commission Act 1997 ................................................. 466
Terrorist Asset-Freezing etc Act 2010 ................................................................463, 466
s 2(1) ................................................................................................................... 465
s 26 ..................................................................................................................... 465
Terrorism Act 2000 ................................................................................................. 462
Terrorism Act 2006 ................................................................................................. 463
Terrorism Prevention and Investigation Measures Act 2011 ...............................463, 466
United Nations Act 1946 ......................................................................................... 464
Bills
House of Lords Reform Bill (2012-13) [52]................................................................ 463
xxxiv Table of Legislation and Documents
USA
US Const
art I, §9, cl 2 ........................................................................................................ 438
art II §1 .................................................................................................................81
art V ................................................................................................................... 291
amend I ............................................................................................................... 168
amend II ............................................................................................................. 296
amend XIII ......................................................................................................... 380
amend XIV §1....................................................................................................... 93
Patriot Act 2001
s 224.................................................................................................................... 442
International (In Alphabetical Order)

Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (Protocol of San Salvador) (entered into
force 16 November 1999) OAS Treaty Series No 69 (1988) reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System OEA/Ser
L V/II82 Doc 6 Rev 1 at 67 (1992)................................................................... 359, 360
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into
force 21 October 1986) (1982) 21 ILM 58.............................................................. 360
American Convention on Human Rights, ‘Pact of San Jose’, (adopted 22 November
1969, entered into force 18 July 1978).................................................................... 360
American Declaration of the Rights and Duties of Man, OAS Res XXX adopted by
the Ninth International Conference of American States (1948) Reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System OEA/Ser
L V/II82 Doc 6 Rev 1 at 17 (1992).......................................................................... 360
European Council in Copenhagen, 21–22 June 1993, Conclusions of the Presidency,
DOC/93/3............................................................................................................ 522
Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights, as amended) (ECHR)
art 3 .............................................................................................................215, 469
art 6..................................................................................................................... 468
art 15................................................................................................................... 215
arts 32-35...............................................................................................................98
European Charter for Regional or Minority Languages (5 November 1992)
CETS 148............................................................................................................. 523
European Social Charter (18 October 1961) CETS 35
Preamble.............................................................................................................. 359
pt II, art 1-19........................................................................................................ 359
European Social Charter (Revised) (3 May 1996) CETS 163
pt I ..................................................................................................................... 359
pt V, art E ............................................................................................................ 359
UN Committee on Economic, Social and Cultural Rights, General Comment No 14:
The Right to the Highest Attainable Standard of Health (Art 12 of the Covenant)
(11 August 2000) UN Doc E/C 12/2000/4 .............................................................. 324
Table of Legislation and Documents xxxv
UN Committee on Economic, Social and Cultural Rights, General Comment No 19:

The right to Social Security (Art 9 of the Covenant) (4 February 2008) UN Doc E/
C12/GC/19 .......................................................................................................... 353
art 24 .................................................................................................................. 353
Hague Convention (IV) Respecting the Laws and Customs of War on Land and its
Annex: Regulations Concerning the Laws and Customs of War on Land (adopted
18 October 1907, entered into force 26 January 1910) TS 539
art 43 .................................................................................................................. 447
UN Human Rights Council, Implementation of General Assembly resolution 60/251
of 15 March 2006 entitled “Human Rights Council”: Report of the Special
Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism (29 January 2007) UN Doc A/HRC/4/26 ....... 524
International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 ................................................. 166
art 2(2)................................................................................................................. 359
art 4..................................................................................................................... 436
International Covenant on Economic, Social and Cultural Rights (adopted 16
December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) ........... 316
International Convention on the Elimination of All Forms of Racial Discrimination
(adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 .... 480
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights
(22–26 January 1997)............................................................................................ 433
UN Commission on Human Rights, Note verbale dated 86/12/05 from the Permanent
Mission of the Netherlands to the United Nations Office at Geneva addressed to
the Centre for Human Rights (‘Limburg Principles’) (8 January 1987) UN Doc
E/CN4/1987/17..................................................................................................... 333
European Commission For Democracy Through Law (Venice Commission), Opinion
on the New Constitution of Hungary, Opinion no 621/201, paras 39-40................ 525
Waldman v Canada (1999) UN Doc CCPR/C/67/694/1996 ....................................... 218
European Union (In Alphabetical Order)

Charter of Fundamental Rights of the European Union (18 December 2000)
OJ C 364/1
art 31(1) .............................................................................................................. 350
EC Treaty (Treaty of Rome)
art 5 .................................................................................................................... 191
art 42 .................................................................................................................. 191
art 120 ................................................................................................................ 191
Treaty of Lisbon
art 3b(1)............................................................................................................... 191
Treaty on European Union (Maastricht treaty)
art 13(3) .............................................................................................................. 191
art 14(6) .............................................................................................................. 191
1
Introduction: Israeli Constitutional Law
at the Crossroads
GIDEON SAPIR, DAPHNE BARAK-EREZ AND AHARON BARAK
I
SRAELI CONSTITUTIONAL LAW is a sphere of many contradictions and tradi-
tions. Growing from the tradition of British law which was absorbed by the legal
system of Mandatory Palestine, Israeli constitutional law had followed the path of
unwritten constitutional principles. At the same time, inspired by the new arena of post-
World War constitutionalism, as well as by Resolution 194 of the General Assembly of
the United Nations recognizing the establishment of the new State and the wording of its
Declaration of Independence, the newly established State planned to adopt a
Constitution. However, at the time of writing, this vision has not been finalized due to
inner controversies on the content of the Constitution. In the meantime, the vision has
been converted to the enactment of a series of Basic Laws, which function as Israel’s de
facto Constitution. The constitutional outcomes of this special history are the subject of
many controversies, to be explored in this book.
On 15 May 1948, close to the termination of the British Mandate in Palestine, the
members of the People’s Council representing the Jewish community assembled and
proclaimed the establishment of the State of Israel. The Declaration of Independence
promised, inter alia, a Constitution for Israel:
We declare that, with effect from the moment of the termination of the Mandate being tonight,
the eve of Sabbath, the 6th Iyar, 5708 (15 May, 1948), until the establishment of the elected,
regular authorities of the State in accordance with the Constitution which shall be adopted by
the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council
shall act as a Provisional Council of State, and its executive organ, the People’s Administration,
shall be the Provisional Government of the Jewish State, to be called ‘Israel’.1
The Declaration presented a course for the process of enacting a Constitution com-
prising three stages. In the first stage, the ‘Provisional Council of State’ was to act as a
temporary legislative branch and in the second stage, elections were to be held for a
‘Constituent Assembly’ charged with drafting a Constitution. After accomplishing this
task, the Constituent Assembly was supposed to disperse. In the third stage, elections
were supposed to be held for a legislative authority according to the electoral system to
be determined in the Constitution. With the election of a legislature, the Provisional
Council of State would conclude its task and disperse as well.
Declaration of the Establishment of the State of Israel, 1 LSI 7 (1948).

1
2 Gideon Sapir, Daphne Barak-Erez and Aharon Barak
In reality, things had taken a different course. First, the Provisional Council of State
decided it would cease to exist with the convention of the Constituent Assembly, and its
powers would be transferred to the Assembly.2 Thus, the Constituent Assembly was
assigned the role of the ordinary legislator, alongside its original role as a body charged
with the drafting of a Constitution.3 Second, the Constituent Assembly, already known
by its new name – the Knesset – did not succeed in getting to a consensual constitutional
text. From May 1949 until June 1950, the Knesset was the scene of stormy debates.4
Disagreements persisted, and the inability to reach consensus on the contents, the form,
or even the need for a Constitution, finally led to the adoption of the compromise for-
mula, proposed by Knesset Member Yizhar Harari. This compromise took the shape of
a decision to adopt a piecemeal Constitution by enacting a series of Basic Laws, stating
the following:
The First Knesset charges the Constitution, Law, and Justice Committee with the task of pre-
paring a constitution for the country. The constitution will be built chapter by chapter, so that
each one will in itself be a basic law. The chapters will be submitted to the Knesset as the
Committee concludes its task and, together, all these chapters will become the constitution of
the country.5
In fact, for many years, the ‘Harari decision’ was implemented only partly. Although
the Knesset enacted a series of Basic Laws over the years, they addressed only the insti-
tutional aspects of Israeli constitutional law and focused on the ‘rules of the political
game’, and not the arena of values and basic rights.
In the absence of a formal constitutional Bill of Rights, the Israeli Supreme Court cre-
ated alternative mechanisms for the protection of human rights, by reference to unwrit-
ten principles and values, as well as by applying the doctrines of administrative law to
limit executive power.6 Judicial activism, however, had its limits. The Supreme Court
perceived itself as generally precluded from reviewing Knesset legislation (in contrast to
administrative actions), following the British tradition of parliamentary sovereignty.
Therefore, the lack of a formal Bill of Rights was still felt and relevant. For decades,
however, several attempts to anchor a Bill of Rights in the form of a Basic Law proved
unsuccessful,7 and no breakthrough seemed in sight.
A significant change followed the enactment of two new Basic Laws dealing with human
rights – Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty
(hereinafter: the new Basic Laws).8 As its name attests, Basic Law: Freedom of Occupation
deals with one right only – freedom of occupation and trade. Its counterpart – Basic Law:
Human Dignity and Liberty – applies to several rights – property, movement from and to
2
Transition Law, 5709-1949, s 1.
3
This decision evoked misgivings on both the right and the left of the political spectrum. See R Gavison,
‘The Controversy Over Israel’s Bill of Rights’ (1985) 15 Israeli Year Book of Human Rights 113, 117.
4
See J Segev, ‘Who Needs a Constitution? In Defense of the Non-decision Constitution-making Tactic in
Israel’ (2007) 70 Alberta Law Review 409, s IIB; Gavison (n 3) 147–50.
5
DK 5 (1950) 1743 (in Hebrew).
6
See, B Bracha, The Protection of Human Rights in Israel (1982) 12 Israeli Yearbook of Human Rights 110;
A Maoz, Defending Civil Liberties Without a Constitution: The Israeli Experience (1988) 16 Melbourne
University Law Review 815.
7
Draft Bill Basic Law: Human and Civil Rights, 1973, HH 448; Draft Bill Basic Law: Bill of Rights, 1983,
HH 111.
8
For an English translation of Israel’s Basic Laws see: knesset.gov.il/description/eng/eng_mimshal_yesod1.
htm.
Introduction 3
Israel, liberty, dignity, and privacy (but does not mention specifically several other import
ant human rights, such as equality, freedom of expression, and freedom of religion).
Soon after the passing of the new Basic Laws, the Supreme Court stated that their
enactment created a ‘constitutional revolution’, in the sense that they granted the Court
the authority to review primary Knesset legislation.9 Since then, the Israeli constitutional
arena has changed significantly. The Supreme Court has used the new Basic Laws as a
platform for developing Israel’s constitutional law, by interpreting them broadly to
include those rights not specifically mentioned in the constitutional text. It stated that
many of these unenumerated rights were protected under the broad ‘umbrella’ of the
right to human dignity.10 This judicial innovation was accompanied also by a rich schol-
arly discourse. Debates and controversies soon followed.11 Unfortunately, due to the
language barrier, only a small portion of that judicial and academic activity is known to
the international constitutional law community.
This book attempts to make a modest contribution to overcoming the language bar-
rier, and help expose the Israeli scene to the English speaking scholarly community. The
book offers a comprehensive study of Israeli constitutional law in a systematic manner
that moves from constitution-making to specific areas of contestation. The book fea-
tures contributions by scholars of Israeli constitutional law, followed by comments by
leading scholars of comparative constitutional law from Europe and the United States.
In fact, it aspires not only to present Israeli constitutional law, but rather to present the
controversies that shape it in a manner that sheds light on theoretical questions, as well
as on the experience of other systems.
Part 1 of the book presents the reasons and justifications offered for promoting the
Israeli constitutional project and adopting a full formal Constitution. This is a question
still considered open in Israel, a country that has not yet completed the process of enact-
ing its Basic Laws. Gideon Sapir discusses the various functions a Constitution can fulfill
and evaluates their relevance to the Israeli context. He argues that Israel needs a
Constitution that will serve as a gag rule which bars constant controversies over certain
issues. Alon Harel bases the need to complete the Israeli constitutional project on the
importance of judicial review which grants a hearing to aggrieved individuals. Ariel L
Bendor discusses the importance of having a constitutional regime by reference to its
contribution to defining the basic principles of the legal system. Part 1 concludes with a
comment by Sanford Levinson.
Part 2 discusses the various institutional models for judicial review that may suit the
needs of the Israeli constitutional arena. Currently, Israel follows the US model that rec-
ognizes the power of every court to review the constitutionality of legislation, but this
has been a contested model in the Israeli public arena. Yoav Dotan argues that the scope
of judicial review should be determined in correlation to the system for selecting judges,
and therefore Israel should not follow the US model of full-fledged judicial review, as
CA 6821/93 United Mizrahi Bank Ltd v Midgal Cooperative Village 49(4) PD 221 [1995] (in Hebrew).
9
HCJ 6298/07 Ressler v Knesset (21 February 2012) (in Hebrew); HCJ 7052/03 Adalah v Minister of
10
Interior 61(2) PD 202 [2006] (in Hebrew); HCJ 10203/03 Hamifkad Haleumi v Attorney General 62(4) PD 715
[2008] (in Hebrew).
11
See, eg D Barak-Erez, ‘From an Unwritten to a Written Constitution: The Israeli Challenge in American
Perspective’ (1995) 26 Columbia Human Rights Law Review 309; G Sapir, ‘Constitutional Revolutions – Israel
as a Case Study’ (2010) 5 International Journal of Law in Context 358; B Medina, ‘A Response to Richard
Posner’s Criticism of Aharon Barak’s Judicial Activism’ (2007) 49 Harvard International Law Journal 1.
4 Gideon Sapir, Daphne Barak-Erez and Aharon Barak
long as it follows a professional based process of selecting judges. Joshua Segev evaluates
the prevalent view of the Israeli system and argues for a reform that will empower only
the Supreme Court to practice judicial review of legislation. Ori Aronson criticizes this
alternative, which seems to gain growing popularity. He argues that this model over-
looks the redeeming potential of trial court adjudication for a deliberative, participatory,
and pluralistic process of creating constitutional norms and understandings. Tsvi Kahana
evaluates the Israeli experience with the notwithstanding mechanism which was incor-
porated in 1994 into Basic Law: Freedom of Occupation, as inspired by the Canadian
Charter of Rights and Freedoms. Kahana argues that as long as Israel’s Basic Laws can
be amended without a super majority, deviations from them should be made by constitu-
tional amendments, rather than through a notwithstanding mechanism. Part 2 concludes
with a comment by Víctor Ferreres Comella.
Part 3 assesses the connections between Israeli constitutional law and global pro-
cesses. Iddo Porat analyzes the persistent influence of foreign law on Israeli constitu-
tional judicial decisions. Following a similar route, Moshe Cohen-Elliya discusses the
influence of Western liberal thinking on Israeli constitutional law in the format titled by
him as ‘transformative constitutionalism’. Margit Cohn offers a detailed analysis of the
constitutional doctrine of proportionality in a comparative perspective. Part 3 concludes
with a comment by Vicki C Jackson.
Part 4 analyzes the process of constitutional balancing. Mordechai Kremnitzer offers
a critical evaluation of the dangers ingrained in balancing for the protection of human
rights. Yaacov Ben-Semesh offers an evaluation of the case study of balancing in the area
of freedom of speech, with regard to speech allegedly offending the feelings of others.
Part 4 concludes with a comment by Sujit Choudhry.
Part 5 discusses the status of the so-called unenumerated rights in Israeli constitu-
tional law, focusing on the role played by the benevolent interpretation offered by the
Israeli Supreme Court to the concept of human dignity, which enables it to fill the void
created by the failure of the current Basic Laws to specifically mention rights such as:
equality, freedom of speech and freedom of religion. Tamar Hostovsky-Brandes offers a
broad overview of current judicial interpretations of the right to human dignity. Sharon
Weintal discusses the possibility of compensating for the supposedly missing rights in
the Basic Laws by reference to non-written constitutional principles. Part 5 concludes
with a comment by David Fontana.
Part 6 focuses on the challenge of social rights in the context of Israeli constitutional
law. The constitutional status of social rights and their enforceability is an open ques-
tion in many systems, but even more so in Israel which lacks an express recognition of
them. The result has been a limited protection of these rights as derivatives of the con-
cept of human dignity, usually offering them only a ‘minimum’ level of protection. Both
Aeyal Gross and Amir Paz-Fuchs discuss this model of mimimum-level protection of
social rights in a critical manner. Neta Ziv offers another critical view, by focusing on
the dynamic of conditioning social rights entitlements. Part 6 concludes with a comment
by Mark Tushnet.
Part 7 moves forward to assess the applicability of constitutional rights in private law.
Aharon Barak discusses the Israeli approach to this question – defined as an ‘indirect
application model’ – and compares it to other prevalent models. Michal Tamir discusses
this question in a contextualized manner which focuses on contractual relations. Part 7
concludes with a comment by Stephen Gardbaum.
Introduction 5
Part 8 is dedicated to the issue of emergency constitutional powers and other national
security related constitutional matters. This topic is of the highest importance in the
Israeli context, taking into consideration the threats to Israel since its establishment.
Daphne Barak-Erez analyzes the Israeli model of regulating the power to declare an
emergency situtation in a comparative perspective. Barak Medina discusses the role of
legislation in regulating national security threats. Part 8 concludes with a comment by
Adam Tomkins.
Part 9 evaluates various outcomes of Israel’s particular raison d’etre as a State defined
in its Basic Laws as ‘Jewish and Democratic’. This constitutional formula has ramifica-
tions to both the nation state model and to the regulation of State and religion matters.
Chaim Gans discusses the Israeli nation state model in the context of Zionist thinking,
examining the various ideological streams within the Jewish national movement. Aviad
Bakshi and Gideon Sapir evaluate the implications of Israel’s identity as the nation state
of the Jewish people for its immigration policy, by analayzing the case study of family
reunification applications of Palestinians. Gila Stopler explores the connection between
national identity and the regulation of religion–State relations in Israel. She claims that
the Israeli model has been only partially successful in shaping national identity and
relates this limited success to the State’s lack of control over its own religious establish-
ment. Part 9 concludes with a comment by Susanna Mancini and Michel Rosenfeld.
* * *
Read together, the various chapters and comments included in this book present Israeli
constitutional law as a living sphere, which reflects the dilemmas the country is faced
with, as well as the challenges of constitutional theory in general. As such, our hope is
that the book will promote not only the future study and development of Israeli consti-
tutional law, but also the understanding of the complexities of constitutional systems
that are still coping with the challenge of nation-building and transitions.
Part 1
Towards a Full-Fledged Constitution

2
Why a Constitution – in General and in
Particular in the Israeli Context?
GIDEON SAPIR
I. INTRODUCTION
A
CCORDING TO A common rationale, a Constitution is required to defend
basic values. The constitutional model necessary for that purpose comprises
three components: supremacy, entrenchment and judicial review. This chapter,
however, considers two more constitutional rationales that are completely different
from the one just described. According to one alternative view, the function of the
Constitution is to create public dialogue over important issues, and according to the
other a Constitution can serve as a silencing mechanism, or as a ‘gag rule’.
This chapter is divided into three parts: in part II, I present the three rationales for
adopting a constitutional strategy and three different constitutional models that derive
from them, respectively; in part III, I examine which of the models is appropriate for
Israel and in part IV, I examine which of the models has been chosen thus far in Israel.
II. THREE RATIONALES AND THREE MODELS
A. Protecting Constitution
According to a common rationale, a Constitution is required to defend basic values. This

rationale is based on two main premises: that certain values are of supreme importance
and that those values are under threat of attack. When sober, we know what is permitted
and what is prohibited, but we also know that there may be situations – under conditions
of inebriation – in which control over clear reasoning is lost. Hence we strive, while sober,
to make it difficult for ourselves, when in a state of loss of control, to perform acts we will
later rue.1 The constitutional model necessary for that purpose comprises three compon
ents: granting supreme status to the document that anchors the values (supremacy), safe
guarding it from ordinary legislative amendment (entrenchment), and granting authority
1
The technical term used in this context is precommitment, and a common metaphor used in this context is
Ulysses and the Sirens. J Elster, Ulysses and the Sirens (Cambridge, Cambridge University Press, 1979) ch 2;
S Freeman, ‘Constitutional Democracy and the Legitimacy of Judicial Review’ (1990) 9 Law and Philosophy
327; M Klarman, ‘Majoritarian Judicial Review: The Entrenchment Problem’ (1997) 85 Georgia Law Journal
491, 496.
10 Gideon Sapir
to the courts to invalidate primary legislation that contradicts this document (judicial
review).
This rationale and its accompanying model are the best known of the three that will
be discussed in this chapter, but, as is known, they suffer from a number of weaknesses
that are the subject of an extensive body of literature. We shall note some of them in
brief: even if we agree that there are values of supreme importance, in a pluralistic soci
ety a consensus does not exist on the identity of these values. If a Constitution should be
accepted by consensus and not forced on a segment of the public, it is not clear how it is
possible to overcome the lack of agreement and to adopt a Constitution. Moreover, even
if we were to succeed in solidifying an agreed upon list of supreme values, there would
still be a significant dispute over how to apply them in concrete circumstances. This
model authorises the court to interpret the Constitution and to enforce it, thereby grant
ing the court the power to decide over many constitutional dilemmas, an approach that
does not coincide with the democratic principle.2 Furthermore, owing to the tension
between this model and the democratic principle, the court might be perceived by the
public as a political player whose actions lack legitimacy, a situation that is liable to
erode its standing. Finally, the great difficulty in changing the Constitution and the
transferring of the moral discourse to the confines of the court is likely to weaken the
public’s motivation to deal with issues of values, which would lead to the dilution of
the democratic discourse.3
Various attempts have been made to overcome the failings of this constitutional
model, or at least some of them. One proposed solution is to adopt a democratic appa
ratus for electing justices that would grant the public control over the composition of the
court. The selection of justices whose stance on disputed constitutional issues coincides
with the public’s position could be used by the public as a means, albeit indirect and
slow, yet effective, to participate in the process of fashioning the Constitution through
interpretation. Thus, for example, Donald Kommers explains the system applied in
Germany according to which the Parliament elects the judges of the Constitutional
Court:
What makes the Constitutional Court’s ‘activism’ less objectionable in terms of democratic
theory, however, is that Parliament – not the executive – elects each justice by a two-thirds vote
for a single nonrenewable term of twelve years, thereby averting the rise of an aging judicial
oligarchy out of tune with major currents of modern life.4
2
For a classical expression of this argument, see AM Bickel, The Least Dangerous Branch: The Supreme
Court at the Bar of Politics (New Haven, Yale University Press, 1962) 16: ‘The root difficulty is that judicial
review is a counter-majoritarian force in our system’. For a contemporary expression of the argument, see
J Waldron, Law and Disagreement (Oxford, Oxford University Press, 1999) 255–62.
3
The classical expositor of this argument is James Bradley Thayer. See JB Thayer, OW Holmes,
F Frankfurter and PB Kurland (eds), John Marshall (Chicago, University of Chicago Press, 1967) 106–07: ‘the
exercise of judicial review, even when unavoidable, is always attended with a serious evil, namely, that the cor
rection of legislative mistakes comes from the outside, and the people thus lose the political experience, and the
moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting
their own errors’. For a contemporary expression of this claim, see M Tushnet, ‘Policy Distortion and
Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty’ (1995) 94 Michigan
Law Review 245, 247.
4
See DP Kommers, ‘Comparative Constitutionalism: German Constitutionalism: A Prolegomenon’ (1991) 40
Emory Law Journal 837, 844. On this argument, within the American context see, TJ Peretti, In Defense of a
Political Court (Princeton, Princeton University Press, 1999) 84–85, 131. See also L Hilbink, ‘Beyond
Manicheanism: Assessing the New Constitutionalism’ (2006) 65 Maryland Law Review 15, 21–25; W Cohen and
M Cappelletti, Comparative Constitutional Law: Cases and Materials (Indianapolis, Bobbs-Merrill, 1979) 76.
Why a Constitution? 11
Similar statements were made by Victor Comella:

Judicial review of legislation may give rise to a ‘democratic objection’, inasmuch as the legisla
tion in question is the product of a democratic legislature. This objection may be minimised if
the members of the court are selected in ways that are relatively democratic.5
There are those who propose adding to the democratic election apparatus a term limit
for judges. Comella explains this as follows:
[A] country . . . may limit the term of judges of the constitutional court to reduce the risk of a
serious gap between the constitutional jurisprudence of the court and the basic moral and
political beliefs of the people and their elected representatives.6
It is customary in most Western countries to limit the tenure of judges to about 10 years.7
The United States is an exception to this trend: the term of service is not set in years, and
there is no mandatory age of retirement.8 Yet, scholars in the United States are critical of
the current apparatus and call for aligning it to that of other democracies.9
A standard argument raised against democratization of election apparatuses is that
this would expose the appointment process to political wheeling and dealing. This claim
should be rejected outright for two reasons. First, if we agree that deciding constitu
tional issues is not mechanical but demands the application of strong discretion, and if it
is presumed that the stances of a judge influence his discretion, then political trading at
the election stage, during which every side tries to bring about the election of a judge
whose worldview seems to that side fitting and proper, is precisely the aim which the
democratic apparatus for electing justices wishes to obtain and not a shortcoming it
wishes to avoid. Second, political tradeoffs around the appointment to an office that
concentrates within its grasp such great political power is unavoidable.10 The question is
5
VF Comella, ‘The European Model of Constitutional Review of Legislation: Toward Decentralization?’
(2004) 2 International Journal of Constitutional Law 461, 468; J Bell, Judiciaries within Europe: A Comparative
Review (Cambridge, Cambridge University Press, 2006) 25–26.
6
Comella, ibid.
7
In Germany the judges of the Federal Constitutional Court are appointed for a 12-year period, and they
cannot be reappointed at the end of the period. See DP Kommers, The Constitutional Jurisprudence of the
Federal Republic of Germany, 2nd edn (Durham, Duke University Press, 1997) 20–21; In Italy, and Spain,
judges of the Constitutional Court are appointed for nine years and cannot be reappointed for a second con
secutive term. For Italy, see Costituzione [Cost], art 135; TG Watkin, The Italian Legal Tradition (Farnham,
Ashgate Publishing, 1997) 90; for Spain, see Constitución Española, BOE n 311, 29 December 1978, s 159(3);
E Merino-Blanco, The Spanish Legal System (London, Sweet & Maxwell, 1996) 97.
8
This situation raises more than a few doubts as to the capability of the aged judges. See, eg DJ Garrow,
‘Mental Decrepitude on the US Supreme Court: The Historical Case for a 28th Amendment’ (2000) 67
University of Chicago Law Review 995: ‘Mental decrepitude and incapacity have troubled the United States
Supreme Court from the 1790s to the 1990s. The history of the Court is replete with repeated instances of
justices casting decisive votes or otherwise participating actively in the Court’s work when their colleagues and/
or families had serious doubts about their mental capacities’. It should be noted, though, that the average age
of retirement of American Supreme Court Justices is 70, after an average term of 15 years. See the statistics
appearing in HJ Abraham, Justices, Presidents and Senators: A History of the US Supreme Court Appointments
from Washington to Clinton, revised edn (Lanham, Rowman & Littlefield Publishers, 1999) 379–81.
9
See SB Prakash, ‘Book Review: Americas Aristocracy: Taking the Constitution Away from the Courts. By
Mark Tushnet’ (1999) 109 Yale Law Journal 541; J Resnik, ‘Judicial Selection and Democratic Theory:
Demand, Supply and Life-Tenure’ (2005) 26 Cardozo Law Review 579; DR Stras and RW Scott, ‘Retaining Life
Tenure: The Case for a Golden Parachute’ (2005) 83 Washington University Law Quarterly 1397.
10
See JC Yoo, ‘Choosing Justices: A Political Appointments Process and the Wages of Judicial Supremacy’
(2000) 98 Michigan Law Review 1436, 1437: ‘If . . . judicial power has expanded such that in one direction or
another, the Court will be a pervasive influence on a wide range of issues that can only in a partial and periph
eral way be considered legal rather than political, it is only inevitable that players in the political process will
seek to advance their preferences via Supreme Court nominations’.
12 Gideon Sapir
only whether it will take place under fair conditions and in the light of day or will be
determined under inequitable conditions and in secrecy. Of these two possibilities, the
first seems more attractive.
If there is any drawback at all to the proposal to adopt a democratic judicial selection
process and to limiting judges’ terms of service, then it resides in this proposal not prop
erly avoiding the dilution of the democratic discourse. As noted, the source of the diffi
culty rests in making the court the final arbiter over serious issues. This problem does
not change even if judges are elected democratically. To be sure, the adoption of a demo
cratic apparatus allows the public to influence the judicial product, but it does not return
the moral discourse to the public arena. The public can, perhaps, try to influence the
outcome, but it cannot take an active part in the decision-making process. I agree whole
heartedly with the opinion of Jeremy Waldron that ‘impotent debating about what a
few black-robed celebrities might decide in the future is hardly the essence of democratic
citizenship’.11
B. Dialogical Constitution
According to a second rationale, the function of the Constitution is to create public dia
logue over important issues. This rationale is based on a number of premises: first, in
every political unit, as homogeneous as it may be, there are disputes over many issues.
Second, under these circumstances, the principle of justice that should be applied is the
principle of democratic determination. Third, democracy requires that decisions over
essential issues be taken by the public. Democracy not only grants the public a right to
discuss and decide on these issues, but imposes on it a moral obligation to effectuate this
right. Fourth, the structure of the political system provokes a fear that the decisions over
essential issues will be made in passing. The role of the Constitution is to provide a
response to this fear and to ensure that essential questions will receive proper attention.
In a constitutional system based on the premises just described, the constitutional
model will be delineated as follows: the Constitution will determine a series of abstract
principles, leaving their precise manner of implementation open to discussion. The court
will be given a certain amount of authority to interpret the Constitution and review pri
mary legislation but the final word will be reserved for the legislature. According to this
model, the function of the court is to stimulate the political system to discuss constitu
tional issues seriously.
The rationale of a Constitution as promoting dialogue is relatively new in constitu
tional discourse, but in recent years it has been gaining momentum. As Stephen
Gardbaum notes,12 constitutional models appropriate for this rationale were adopted in
recent decades in a number of countries belonging to the British Commonwealth group,
such as Canada, New Zealand, and Britain.
Adopting the dialogic model involves two main dangers that have been well described
by Mark Tushnet. The first peril is that the legislature will do as it wishes while ignoring
the court’s positions and the second, that the legislature will accept the court’s positions
See Waldron, Law and Disagreement (n 2) 291.

11
S Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 American Journal of

12
Comparative Law 707.

without invoking independent reasoning. Both dangers are actually one set in two sce
narios, namely, that the model will not succeed in creating true dialogue.
Tushnet argues that the Canadian experience demonstrates well the realization of the
second danger.13 He points out the dearth of instances in which the Canadian legislature
– federal or provincial – made use of the known ‘Notwithstanding Clause’ as an indica
tion that the Canadian legislature accepts the judiciary’s positions without reflection, in
a way that prevents the formation of a true dialogue.14 Yet, just as Tushnet himself
alludes, it is possible to propose at least two alternative explanations for the scant use
of the ‘notwithstanding’ mechanism. First, the Canadian ‘notwithstanding’ mechanism
is formulated not as an instrument for overriding the court’s interpretation of the
Constitution, and for the proposal of a no less legitimate alternative interpretation, but
as an instrument for overriding the Constitution.15 Under these circumstances the legis
lature’s abhorrence of the use of the ‘notwithstanding’ mechanism is understandable,
since it erroneously perceives – or at least assumes that the public will perceive – this use
as an illegitimate attempt to detract from basic constitutional principles.16 A change in
the formulation of the ‘notwithstanding’ apparatus, which would be accompanied by a
campaign explaining the dialogic logic underlying it, might lead to a conceptual change,
which would increase the legislature’s willingness to use the implementation that was
put at its disposal.17
Another possible explanation for the scant use of the Canadian ‘notwithstanding’
mechanism is related to the way the apparatus and its use were etched into the awareness
of the Canadian public. The first to use the mechanism, applying it most extensively, was
Quebec. In June 1982, a short time after the enactment of the Charter, the Quebec
National Assembly passed a law that presumed to immediately add to all existing Quebec
legislation a ‘notwithstanding’ mechanism, which would apply retroactively through to
the day of the passing of the Charter. This law did not pretend to defend specific enact
ments against annulment but rather to challenge the very legitimacy of the Charter.18 The
law was discussed in a number of courts and ultimately ratified in principle by the
Canadian Supreme Court.19 Perhaps the use Quebec made of the ‘notwithstanding’ mech
anism, as well as the confirmation the Canadian Supreme Court gave to this use, unfairly
13
M Tushnet, ‘Comparative Constitutionalism: State Action, Social Welfare Rights, and the Judicial Role:
Some Comparative Observations’ (2002) 3 Chicago Journal of International Law 435, 450: ‘Canada’s experi
ence with the notwithstanding clause suggests, although not conclusively, that the clause has failed to create a
distinctive form of judicial review, and that Canada has a rather robust form of judicial review, the notwith
standing clause notwithstanding’.
14
ibid: ‘The clause has rarely been invoked, for reasons that are complex’. For a review of the range of the
use of this apparatus up to 2000, see B Billingsley, ‘Section 33: The Charter’s Sleeping Giant’ (2002) 21 Windsor
Year Book of Access to Justice 331, 339–43; K Roach, ‘Constitutional, Remedial, and International Dialogues
About Rights: The Canadian Experience’ (2005) 40 Texas International Law Journal 537, 543.
15
S 33 of the Canadian Charter states that: ‘33(1) Parliament or the legislature of a province may expressly
declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall
operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter’ (emphasis added).
16
See J Waldron, ‘Some Models of Dialogue Between Courts and Legislatures’ (2004) 23 Supreme Court
Law Review (2d) 7, 36–38.
17
Yet, I agree with the misgivings expressed by Waldron concerning the chance of convincing the supporters
of a human rights regime to agree to his formulation of the ‘“Notwithstanding” clause that involves an honest
acknowledgment that . . . a . . . legislature might have a view of rights that was, though controversial, no less
reasonable than the view arrived at by the judiciary’ (ibid).
18
See CP Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism
(Oklahoma, University of Oklahoma Press, 1993) 200–01.
19
Ford v Quebec (AG) [1988] 2 SCR 712 (Can).
14 Gideon Sapir
blemished this apparatus and created an image of it as a tool undermining the essential
public responsibility to guard basic fundamental values.20 In conclusion, the scant use of
the Canadian Notwithstanding Clause does not necessarily attest that the mechanism is
unable to serve as an instrument for the creation of dialogue. Proper formulation and
judicial meticulousness over the proper use of the apparatus will enhance its chances to
attain the goal for which it was created.
C. Gagging Constitution
In a democracy decisions are commonly made after open public discussion in which each
side attempts to gain supporters for its position. Yet, even in a democratic system there
may be reasons to want to silence certain disputes and to prevent dealing with them
publicly and openly. This refers to topics that are particularly divisive, and on which
public discussion is liable to arouse negative feelings, to deepen fissures and demand a
high cost in terms of time and political inputs. In such instances, and in contrast to
accepted psychological intuitions, gagging can play a positive role. An entrenched
Constitution can be of help in the creation and maintenance of a particularly strong gag
rule. The reason is rather simple: the supremacy and entrenchment of the Constitution
make it difficult to amend. Under these circumstances, it is very likely that civil motiva
tion to take part in the decision-making processes will decline, a fact that will limit the
scope and lower the intensity of the public discourse over the issues being anchored in
the Constitution.
This last point clarifies one major difference between the first justification for utilizing
constitutional strategy and the rationale proposed now. It has to do with the way each
model perceives the silencing effect of the constitutional strategy. According to the first
understanding, the silencing effect is perceived as a disadvantage that one should try to
overcome, or to take into overall consideration.21 Yet, according to the understanding
proposed now, the dilution of the public discourse is essentially the aim for which the
constitutional strategy is chosen. Note well that the perception of the Constitution as a
gag rule does not mean that the dilution of public discourse constitutes by its very nature
an advantage, but that for certain issues and under certain circumstances, it serves a
positive purpose.
A second significant difference between protecting Constitution and gagging
Constitution has to do with their criteria for selecting the issues to be included in the
Constitution. Protecting Constitution attributes a positive intrinsic value to the content
of the Constitution. The Constitution contains the ‘correct’ value determinations that
need protection. In contrast, gagging Constitution does not assume the justness of the
determinations anchored in the Constitution. The criterion for selecting the issues to be
included in the Constitution according to this model is not justice or importance but
rather utility. It is highly probable that all the rival groups will find flaws in the agree
ment anchored in the gagging Constitution and will even criticise it harshly. Yet, despite
this, they will agree that it is worthwhile to include the determination in the Constitution,
20
For a description of Quebec’s use of the Notwithstanding Clause as a blemishing factor, see PW Hogg and
AA Bushell, ‘The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights isn’t
Such a Bad Thing After All)’ (1997) 35 Osgoode Hall Law Journal 75, 83.
21
See n 3 above.
for fear that the political system will pay too heavy a price for leaving it outside the
Constitution. The constitutional document that will result in the gagging Constitution
model will not be one that we will hang on the walls of schools and oblige our children
to memorise. It does not set high-minded principles. Just the opposite, it anchors com
promises that no one actually loves, and despite that, we can agree that it is valuable for
its silencing effect.
For a Constitution to reach its goal as a gag rule, it must silence all the players in the
arena, that is, to gag both the political system and the court. At first glance, it seems that
this is an impossible goal, since ostensibly there are only two possibilities: that the consti
tutional method will create a selective gag rule, or that it will not succeed to create a gag
rule. The question as to which of the possibilities will materialise depends upon the consti
tutional model that will be chosen. If the protecting Constitution is selected, the gag will be
selective since the Constitution will be submitted to the interpretation of the court.
Conversely, in choosing the dialogical Constitution, no gagging will be created at all.
According to this model, the court, to be sure, does not enjoy preference over the political
system, but the equality between them is not in that both are gagged but in that both are
not gagged. The question, therefore, is whether a Constitution can serve as a gag rule
silencing all, or whether it is destined to one of two failures: fanning the discussion, or
selective gagging that leaves the court free to fashion the arrangements as it wishes.
Elsewhere I have argued that it is possible to employ a Constitution to obtain full gag
ging by means of including in the Constitution detailed arrangements for the topics
whose gagging is sought. This specification will achieve gagging because whether the
right to the last word is reserved to the court (as in protecting Constitution) or given to
the legislature (as in dialogical Constitution), the holder of the right to the last word is
not authorised to ignore or annul clear instructions rooted in the Constitution.22
The proposal to include in the Constitution detailed arrangements and not just to
include abstract principals does not fit the common approach that presumes as obvious
that the Constitution is intended to be vague by virtue of its definition. Yet, generaliza
tion and vagueness are not a logical derivative of the concept ‘Constitution’. The ques
tion as to whether to specify and clarify or to generalise and make vague this document
of the highest normative validity depends on the aim that is to be achieved. In order to
achieve the silencing effect, clarity and specification are needed.
III. WHICH MODEL IS APPROPRIATE FOR ISRAEL?
A. The First Model Does Not Fit
The protecting constitutional model is patently unfit for the State of Israel because the
special nature of Israel’s society and political system hones and worsens each of its short
comings. The Israeli society is characterised by deep rifts among the groups composing it.
22
It should be noted though, that even with the most detailed text it is not possible to completely prevent the
court from employing creative methods of interpretation. The continental experience clarifies this point. See,
eg JR Maxeiner, ‘Legal Certainty: A European Alternative to American Legal Indeterminacy?’ (2007) 15
Tulane Journal of International and Comparative Law 541, 570–71; R Zimmermann, ‘Statuta Sunt Stricte
Interpretanda? Statutes and the Common Law: A Continental Perspective’ (1997) 56 CLJ 315, 320–21,
325–26.
16 Gideon Sapir
In such circumstances, doubt grows stronger over the possibility of achieving consensus
on the momentous questions of values; an agreement which is, of course, an imperative
condition for the legitimacy of a protective Constitution. Placing the authority to enforce
the Constitution in the hands of the court would allow it to fashion the Israeli value sys
tem. The latter danger is particularly strong in the light of the judicial culture that has
developed over the past few decades in Israel, which is characterised by a self-awareness
of mission and duty to serve as the delineator for issues of values.
The culture of political discourse and decision-making in Israel is woefully poor, and
the ethos of governmental fairness is deficient. These facts usually serve in Israel pre
cisely as an argument in favour of enhancing the court’s role in supervising government
goals as well as fashioning them – with or without the aid of a Constitution – with the
claim that the court is the last hope. It seems, however, that reality, after three decades
of intensive judicial intervention, shows that alongside a certain benefit (that grew out of
the court’s ever-increasing intervention) in eliminating phenomena of corruption and
improper administration, this intervention also contributed to the weakening of the
political system and to detracting from its ability to develop an independent moral spine.
When the court took upon itself the role of gatekeeper, the legislature considered itself
free of acting according to its wishes without being bothered by the question of whether
its behaviour was upstanding.23
The final reason for the incompatibility of the first model with Israeli reality resides in
the Israeli judicial selection mechanism. This mechanism ascribes to the incumbent
Supreme Court justices a great deal of power in choosing those who will join their
ranks.24 In the past, the composition of the Israeli Supreme Court reflected the values of
the old elite. As long as the system for electing judges remains as it is, this elite is ensured
that its values will continue to dominate the court. This fact increases the tension
between the great power placed in the hands of the court and the principle of democratic
determination, and it severely erodes the Israeli public’s faith in the court.
23
D Barak-Erez, ‘The Justiciability of Politics’ (1999) 8 Plilim 369 (in Hebrew). A similar danger exists in
other countries as well. For such a fear as expressed by a New Zealand scholar, see G Huscroft, ‘Protecting
Rights and Parliamentary Sovereignty: New Zealand’s Experience with a Charter-Inspired, Statutory Bill of
Rights’ (2002) 21 Windsor Year Book of Access to Justice 111, 123: ‘The power of the courts to strike down
legislation can . . . result in perverse incentives. Governments may exploit judicial willingness to make hard
decisions by leaving rights to be vindicated in litigation rather than dealing with them in the legislative process.
American experience suggests that the temptation is always there to leave the constitutional dirty work to the
courts’. For the argument that that is what happens in reality, in the American context, see M Tushnet, Taking
the Constitution Away From the Courts (Princeton, Princeton University Press, 1999) 54–71.
24
See, eg M Edelman, Courts, Politics, and Culture in Israel (Charlottesville, University of Virginia Press,
1994) 34: ‘By established practice, appointments to the Supreme Court require an affirmative vote of all three
justices on the panel’. Moshe Ben-Zeev, who served as the Attorney General between the years 1963–68 wrote:
‘It is impossible to appoint a person to the post of a judge, and certainly not to the post a Supreme Court jus
tice, if the appointment is uniformly opposed by the three Supreme Court judges participating in the
Committee. I had hoped that this was an unwritten custom, but if this is not the case, it should be anchored in
law’ (my translation, GS), M Ben-Zeev, ‘Politics in the Appointment of Judges’ (27 May 1981) The Lawyer 13
(in Hebrew). For additional sources see M Haller, ‘The Court That Packed Itself’ (1999) 8 Azure 64. Over the
last few years fissures are beginning to appear in this conventional understanding, and the Supreme Court just
ices are increasingly confronting Ministers of Justice who are unwilling to be submissive.
B. The Second and Third Model Fit
As the first model does not fit Israel, it is not recommended to adopt it. There is, however,
definitely room to consider use of the third model, the second model, or a combination of
the two.
As stated, the decision to impose a gag over a certain issue derives from its being the
subject of deep dispute, and from the conclusion that an open discussion on that topic is
liable to be detrimental to national cohesiveness and to waste a great deal of precious
public energy. In Israel, which is riven in terms of values and which grapples with main
taining the elementary conditions of security and stability, there are a number of dis
puted issues whose gagging by means of the Constitution would likely be beneficial.
The most salient candidate for such a treatment is the controversy over matters of
religion and State, which has split the Jewish public in Israel from the beginning of the
Zionist movement. Another dispute that warrants consideration of gagging by means of
the Constitution is the one between the Jewish majority and the Arab–Palestinian minor
ity over the identity of the State. Conducting debate on these two issues within the ordin
ary political process utilises unreasonable inputs from the political system and sunders
the Israeli public, so it seems reasonable to anchor arrangements in these two spheres in
a Constitution of the gag rule type.
A possible argument against the proposal to employ a gagging Constitution in Israel is
that it is not necessary. In order to gag a given topic, it is not imperative to adopt a con
stitutional strategy. The gag rule can also be rooted in regular legislation, in secondary
legislation, or even in a political agreement. The ‘status quo’ arrangement on matters of
religion and State, which operated within the Israeli political system for a long period,25
could serve as a good example of a successful, non-constitutional gag rule. From the
establishment of the State, and for over a generation, the realm of religion and State in
Israel enjoyed relative quiet and stability. This is somewhat surprising considering the
rampant differences of opinion among the various groups in Israel on these matters. The
startling relative quiet in this sphere may be attributed to the notion that the political
system chose to invoke a gagging approach for this topic. Traditionally included in the
coalition agreements for establishing the government was a paragraph stating that the
status quo over matters of religion and State would remain unchanged.26 As many writ
ers note, that gagging agreement, which was re-anchored from one Knesset (Israeli
Parliament) to the next and from government to government, derived from exactly those
reasons cited above as the motive for adopting a gagging Constitution: understanding
25
On the ‘status quo’, see, eg G Sapir, ‘Religion and State in Israel: The Case for Reevaluation and
Constitutional Entrenchment’ (1999) 22 Hastings International and Comparative Law Review 617.
26
See, eg The Coalition Agreement between the Alignment Parties (The Labour Party – Mapam – Arab
Lists), The National Religious Party, The Independent Liberal Party, DK 69 (1974) 706: ‘(e) Status quo over
religious issues (1) In continuation of previous coalition agreements, also in the period of the Eighth Knesset
the status quo will be maintained concerning public transportation on the Sabbath and holidays. (2) As above,
the status quo will be maintained over the law of marriage and divorce and all other religious matters’. The
Coalition Agreement between the Parties, The Israel Labour Party, the Herut Bloc – Liberals, the National
Religious Party, The Independent Liberal Party, DK 56 (1970) 272: ‘(e) Status quo over religious issues (1) In
continuation of coalition agreements in the Third, Fourth, Fifth, and Sixth Knessets, there will be maintained
in the term of the Seventh Knesset the status quo concerning public transportation on the Sabbath and
holidays. (2) As above, the status quo will be maintained over the law of marriage and divorce and all other
religious matters’ (my translation, GS).
18 Gideon Sapir
that the topic is hotly disputed and that open discussion is liable to create a rift among
different groups that will deter from national cohesiveness and draw a large part of the
public energy that is needed for the solution of other vital tasks.27
If, as just demonstrated, the goal of gagging destructive disputes is realised even
without using constitutional weaponry, the question arises as to why this should not be
sufficient without involving the Constitution on the issue at hand. Two responses can be
given to this question: the first is that there is indeed no need to use the Constitution for
purposes of gagging, and it is required only in cases in which we are interested in a par
ticularly forceful gag rule. The second answer is more interesting: precisely when the
political system chooses to switch from a model of parliamentary democracy to a model
of constitutional democracy, the efficacy of the usual gagging techniques is weakened
and the need arises to use a constitutional gagging technique.
Let us assume that the parties to the dispute agree to gag it. The gagging will be main
tained as long as the sides continue to want it, or if the agreement included an efficient
enforcement mechanism. That is the usual situation, but when the Constitution enters
the picture, the fate of the gag rule is expropriated from the grip of the parties, and it
becomes exposed to possible third-party intervention, since the court is empowered to
interpret and implement the Constitution. The only way to ensure effective gagging in a
constitutional democracy is to upgrade the gag rule and give it constitutional status.
It is possible to illustrate this argument through the history of the Israeli gag rule in
the area of religion–State relations. After a long period in which it was, more or less,
maintained, the agreement concerning religion and State, and with it the gagging, is
quite obviously collapsing. Arrangements maintained for a great many years with no
significant change are being opened and abandoned with the waging of a fierce, harsh
dispute. This change can be attributed to many factors,28 but it seems that the Supreme
Court is playing a central role in this change. If in the past, the players in the political
system could suffice with political agreements for removing certain issues from the pub
lic agenda, once the court determined that it was within its purview to invoke judicial
review, they became dependent upon the good will of the court. In these circumstances,
the need arose to change the pattern of gagging and to reinforce it.
The dialogical Constitution model is also particularly appropriate for Israel. As
stated, one of the premises at the base of this model is that the regular political appara
tus does not motivate the political players to discuss vital issues seriously enough. This
assumption is clearly verified in the State of Israel, a country in which there is a danger
ous combination between the intensity of the disagreements over essential issues and the
27
Eliezer Don-Yihya characterizes the ‘status quo’ arrangement as consociational, See E Don-Yihya,
Religious Institutions in the Political System – The Religious Councils in Israel (Jerusalem, Jerusalem Center
for Public Affairs, 1989) (in Hebrew). As Lijphart explains, at the basis of consociationality stands the aware
ness of the political leadership for the potential for a rift and instability inherent in a dispute that splits society,
an awareness that leads to the development of patterns whose aim is to enable coexistence, and foremost
among them being to refrain from applying the principle of decision by majority. See A Lijphart, ‘Consociational
Democracy’ (1969) 21 World Politics 207. My argument is that the ‘status quo’ arrangement is in effect an
informal gag rule coinciding well with this description. Accordingly, not only is the content of the arrangement
intended to ensure stability and cooperation but also willingness in principle to immunize it against discussion
and change.
28
For a discussion, see A Cohen and B Susser, ‘Between Fragile Consensus to Breaking Consensus – Changes
in the Relationship between Religion and State: Between Consociationalism and Resolution’ in M Mautner,
A Sagi, and R Shamir (eds), Multiculturalism in a Democratic and Jewish State (Tel-Aviv, Ramot Publishing
House, 1998) 675, 675–701 (in Hebrew).
lack of discourse and deep thinking about those issues before deciding upon them. It is
therefore important in Israel to create mechanisms that will guarantee a minimal degree
of seriousness. Yet, these apparatuses must absolutely not bypass the political system
and replace it, as the first model proposes, but rather guide the political system and obli
gate it to develop a proper culture of discourse and decision-making. This is precisely
what the model of a Constitution as promoter of dialogue offers.
As was pointed out above, the great doubt hovering over the dialogic model is whether
it will succeed in achieving the double purpose set for it: reinforcing seriousness over
vital issues without taking away from the public the right and duty to decide upon these
issues by itself. As noted, there is a fear that the dialogic model will not attain the goal of
dialogue, either because the legislature will ignore the position of the court and refuse to
seriously consider constitutional issues, or because it will unquestioningly accept the
court’s stance, without actively participating in the decision-making process.
There are some who argue that in light of the political culture prevailing today in
Israel, the greater fear is the legislature ignoring the court.29 Conversely, Jeremy Waldron
is convinced that the opposite fear is always stronger:
Partly because systems of judicial supremacy are associated with a strong culture of self-
righteousness on the part of the judiciary and its academic supporters, there tends to be much
less in the way of genuine dialogue than in constitutional systems where there is legislative
supremacy (of one kind or another). Legislative supremacy is very seldom accompanied by a
sense, among legislators, that they have nothing to learn from any other branch of government;
and in cases where the legislature remains sovereign, but the judiciary is given a role, the judges
are more likely to be listened to by the legislature than the legislators are likely to be listened to
in a system that gives the judges final say.30
It seems that Waldron’s fear is especially relevant in the Israeli context. Those who set
the tone in the media and in legal academe in Israel regularly provide broad public back
ing to the Supreme Court and take care to describe its rulings as deriving directly from
the Constitution, without admitting that on many topics there is legitimate debate that
cannot be decided upon easily. This approach delegitimises the legislators who try to
stand as equals vis-à-vis the court. Under these circumstances, if the dialogic model is to
be adopted in Israel, it would have to be fashioned in a way that would not only grant
the legislature the theoretical possibility to overturn the court’s position, but would rein
force the legitimacy of this step. Owing to lack of space, I will not expand on this issue.
C. Can the Dialogical and Gagging Models be Combined?
Thus far this chapter has argued for the option to use the dialogical and gagging models
separately, but their combination is also possible, both intellectually and practically. As
for their respective rationales, these two models are akin. To be sure, the second model
seeks to achieve dialogue while the third wishes to gag it, but both of them begin at the
same starting point, namely, the existence of ideological pluralism. Even the different
29
See AL Bendor and Z Segal, The Hat Maker – Discussions with Justice Aharon Barak (Or-Yehuda,
Kinneret Zmora-Bitan Dvir, 2009) 138 (in Hebrew) (Barak says, ‘The British approach is considered by the
English as good for them . . . It’s not England here. In Israel there would be a great deal of hoopla and nothing
would change’) (my translation, GS).
30
Waldron, ‘Some Models of Dialogue’ (n 16).
20 Gideon Sapir
mechanisms that they propose do not clash. Anyone convinced that public discussion is
valuable can agree that for certain issues prolonging discussion, rather than being bene
ficial, will be harmful. The same applies to the obverse. Those who support gagging
certain issues do not do so out of an abhorrence of debates over essential issues but
because they feel that with regard to those issues the danger inherent in discussion is
greater that the possibilities it provides.
The aim of the gagging Constitution is to remove the issues included in the Constitution
from public discourse. To attain this goal, the Constitution must contain a detailed
arrangement for the gagged topics. Conversely, creation of dialogue obliges the constitu
tional anchoring solely of abstract principles. Nevertheless, it is possible to combine
these two models, although such a blend will create a hybrid product with obvious dif
ferences among its elements. The part whose aim is gagging will be detailed while the
part whose goal is encouragement of dialogue will be succinct and abstract. The combin
ation of the objective of the second model with the third is, therefore, intellectually logi
cal and practically possible, but the seam between its different parts will be sewn together
with rough stitching.
IV. WHICH MODEL IS USED IN ISRAEL TODAY?
A. Not Dialogue
Some people argue that the State of Israel has already adopted the dialogical model. This
claim is supported by two pieces of data. The first is that in contrast to other
Constitutions, in which there is great difficulty in changing the constitutional text,
Israel’s Basic Laws are relatively easy to change. This fact enables the Knesset to over
turn a decision of the court – if it does not see this determination as favourable – by an
amendment to the Constitution. Yoav Dotan feels that
in line with this concept both the Knesset and the court have to reconcile to the idea that a situ
ation in which the Knesset overturns a determination by the court and amends the constitution
is not a situation of severe ‘constitutional crisis,’ indicating a major confrontation between
these two authorities, but rather a normal, possible situation in which each side fulfills its func
tion in the constitutional dialogue.31
Aharon Barak, too, has reiterated this point several times in his academic writings,32
even though he himself has expressed support for raising the threshold of the entrench
ment.33 Another datum cited as support for the argument that Israel has adopted the
dialogical model relates to the ‘notwithstanding’ mechanism, which is contained in the
Basic Law: Freedom of Occupation. To evaluate these claims, especially the second one,
one must first describe the circumstances in which the ‘notwithstanding’ mechanism was
adopted and the context in which it was employed in Israel.
Since the establishment of Israel, frozen beef has been imported exclusively by the
State. The reason given was that this was a necessity since Israel was in a state of emer
31
Y Dotan, ‘A Constitution for the State of Israel – The Constitutional Dialogue after the “Constitutional
Revolution”’ (1997) 28 Mishpatim 149, 207 (in Hebrew).
32
A Barak, The Judge in a Democracy (Princeton, Princeton University Press, 2006) 236 ff.
33
ibid 239–40.
gency and therefore had to ensure the regular supply of basic commodities and prevent
speculation. According to this arrangement, the State imported only kosher meat,
explaining that this simplified the task, since all citizens of the State can eat kosher meat.
In 1992 the Government decided to privatise the import of meat. The Shas Party, which
was a member of the coalition, opposed granting import licenses in an uncontrolled
manner. Shas argued that giving a license for the import of non-kosher meat would dis
rupt the status quo on this issue and lead to the flooding of the country with non-kosher
meat whose price is lower than kosher meat. The Government discussed this issue a
number of times and ultimately decided to arrange for the privatization of the meat
import branch through legislation. Until the legislation is completed, the prevailing situ
ation will remain as it is, meaning, the State will be the sole importer of meat. The
Mitral Company – which sought to import meat to Israel – submitted a petition on this
issue.34 The Supreme Court accepted the petition and ordered the State to give Mitral
import licenses. The court determined that the refusal to grant import licenses violated
Mitral’s freedom of occupation, and noted in dictum that this violation would not meet
the proportionality test set in the Basic Law: Freedom of Occupation.35
The ruling in the Mitral v Prime Minister case made the coalition frantic. The Shas
faction, which understood that the usual political instruments would not suffice in this
instance, aimed its arrows at the Basic Law: Freedom of Occupation. The political crisis
kept intensifying and the Basic Law was put in danger. At this stage Supreme Court
Justice Aharon Barak entered the fray and proposed to the political system a compro
mise solution – the inspiration for which he gained from the Canadian Charter – accord
ing to which the Basic Law would be amended and a Notwithstanding Clause would be
added to it.36 Barak’s intervention in the political crisis derived from his desire to protect
the Basic Law: Freedom of Occupation and the entire endeavour of Basic Laws. As he
saw it, it was preferable to weaken the Basic Law a little rather than endanger its very
existence.
The Government adopted Barak’s compromise proposal, and following it, the Knesset,
too. After the amendment of the Basic Law: Freedom of Occupation, the Knesset enacted
the Import of Frozen Meat Law, 5754-1994. The law – which met the requirements set
forth in the ‘notwithstanding’ mechanism – determined that ‘no person shall import meat
unless he has received a certificate of kashrut in relation to it’.37 From 1994 until today the
Knesset has made no further use of the Notwithstanding Clause.
Is it true that the constitutional model applied in Israel promotes dialogue between
the legislature and the court? I think not. Amendment of the Constitution, even if it can
be done relatively easily, does not constitute dialogue, since the very amendment gives
vent to an ‘admission’ of deviation from the Constitution in its present format. The
Notwithstanding Clause in the Basic Law: Freedom of Occupation is phrased not as an
instrument for overriding the court’s interpretation of the meaning of the Constitution,
HCJ 3872/93 Mitral v Prime Minister and Minister of Religious Affairs 47(5) PD 485 [1993] (in Hebrew).
34
ibid para 24 of Or J’s opinion: ‘It seems that any legislation which is seeking to condition the import of
35
meat upon its being “kosher meat” is imposing restrictions upon the freedom of occupation. These restrictions
are in contradiction to the restriction criteria’ (my translation, GS).
36
See A Barak, ‘On Amendments to the Basic Law: Freedom of Occupation’ (1994) 2 Law and Government
545 (in Hebrew); Bendor and Segal (n 29) 57 (Barak says: ‘I am the one who advised adding this paragraph, the
Notwithstanding Clause’).
37
S 2 of the law. Later the name of the law was changed, and today it is the Meat and Meat Products Law,
5754-1994.
22 Gideon Sapir
and for the proposal of an alternate interpretation no less legitimate, but as an instru
ment for overriding the Constitution, and even then, this is possible only for a short
period of time. The circumstances for the introduction of the ‘notwithstanding’ mechan
ism as well, and the fact that apart from once the Knesset has made no use of it, show
that the apparatus is not perceived by the Israeli public as a legitimate tool for conduct
ing a dialogue between the legislature and the courts.
It seems, therefore, that the presentation of the relatively easy possibility to amend the
Constitution or use of the Notwithstanding Clause in its present format as dialogue is
erroneous and attests to a basic lack of understanding of this concept. Additional proof
of such misunderstanding can be found in Aharon Barak’s claim that dialogue exists
even when the legislature does not use the Notwithstanding Clause, and it does not even
amend the Constitution, but simply amends a law invalidated by the court according to
its directives.38 As Manfredi and Kelly note ‘Genuine dialogue only exists when legisla
tures are recognised as legitimate interpreters of the constitutions and have an effective
means to assert that interpretation’.39
B. Not Gag Rule
In part II I argued that for a Constitution to serve as a successful gag rule it must gag all
the players and not only some of them. For that purpose, the Constitution must anchor
a detailed arrangement concerning the issues that are to be gagged. The Israeli
Constitution does not meet this requirement. The two Basic Laws dealing with human
rights are extremely laconic in formulation. This conciseness serves the Israeli Supreme
Court as an instrument for developing the Basic Laws and for using them as a platform
for the creation of a complete Constitution, while totally ignoring the original intention
of their framers.
The enactment of the two Basic Laws on human rights took place after 44 years of
failure to carry out this mission. Elsewhere I have dealt with the question of how did the
Knesset, one fine day, find itself establishing a charter of human rights in a Basic Law?
What prepared the way for enacting what many thought to be impossible?40 One of the
answers I presented there, which was provided by the Knesset Members who promoted
the step, is that the success stemmed from adopting a compromising approach in which
disputed rights, such as freedom of speech, were removed from the Basic Laws and a
number of concessions were made to the Orthodox camp, which traditionally opposed
anchoring human rights in the Constitution. Unfortunately, it is already completely
clear today that the intentions of compromise have been set aside by the Supreme Court,
through its rulings that granted the Basic Laws a totally different meaning than intended
by their framers.
In this reality, the Israeli Constitution, a large part of which is the product of the
Supreme Court, not only does not gag disputes and rifts that threaten the stability of
Israeli society but even inflames disagreements and deepens rifts. If in the past decisions
38
Barak, The Judge (n 32) 157.
39
See CP Manfredi and JB Kelly, ‘Six Degrees of Dialogue: A Response to Hogg and Bushell’ (1999) 37
Osgoode Hall Law Journal 513, 524.
40
G Sapir, ‘Constitutional Revolutions – Israel as a Case Study’ (2010) 5 International Journal of Law in
Context 355.
over disputed issues were made within the political system, some of them even as a con
sensual compromise, today are taken by the court despite the opposition of the players
in the political field. The fact that the composition of the Israeli Supreme Court does not
represent the gamut of opinions in Israeli society, but only a certain sector of it, deepens
the frustration of the sector that is not represented and whose positions are consistently
rebuffed.
C. Yes Protection of Basic Values by the Court
Israeli reality is definitely exceptional in the democratic landscape. The Supreme Court
writes the Constitution, interprets it, and thereby decides in disputes concerning values
that were gagged in the past by the political system. This unusual reality, which clashes
with basic concepts of democracy and fairness, encounters strong opposition and
shatters the public’s faith in the Court. How can the Supreme Court and its supporters
justify such a situation?
The answer to this question, in my opinion, can be found in statements written by
Menachem Mautner in 1993, shortly after the enactment of Basic Laws on human rights:
In the years following the Six-Day War, there was a strengthening, simultaneously, of all three
elements taking part in the struggle for the cultural image of Israel: extreme nationalism (a prod
uct of Zionism), Judaism, and western liberalism. Moreover, in those years it not infrequently
seemed that the powers of nationalism and Judaism had joined forces to shove aside western
liberalism from Israeli life. The Supreme Court has always made an important, perhaps deci
sive, contribution to fortifying Israel’s connection with the values of the liberal west. In the
1980s, the court came out against those who challenged Israel’s link to the values of the west and
acted assertively and decisively for the continued existence of this link. Anyone who believes
that in the coming years Israel’s attachment to the liberal west should continue and even grow
stronger must hope that the battle waged by the Supreme Court will be crowned with success.41
The statements quoted clearly express the Supreme Court’s perception of reality and
well explain the justification that it and its supporters among the Israeli public ascribe to
its conduct. As they understand it, Israeli society is a polarised one – in which a war is
being waged between liberal forces, under the leadership of the Court, and clerical, anti-
liberal forces. In such a situation, whoever desires progress and light must abandon the
path of dialogue and compromise that gags and support the Court’s battle. From their
perspective, the Israeli Constitution is not an instrument for the protection of a common
value system but a tool for the protection of the desirable value system against the threat
to which it is exposed.
V. SUMMARY
This chapter explained that alongside the constitutional model of a Constitution anchor
ing basic values and of a court charged with enforcing it, it is possible to propose two
alternate models of a Constitution. One sees the Constitution as a catalyst for serious
41
M Mautner, ‘The Decline of Formalism and the Rise of Values in Israeli Law’ (1993) 14 Tel-Aviv
University Law Review 504, 596 (in Hebrew). This article is translated to English in Mautner’s 2011 book,
published in English (M Mautner, Law and the Culture of Israel (Oxford, Oxford University Press, 2011) ch 4).
24 Gideon Sapir
discussion of disputed essential issues, and the other considers the Constitution as a means
for gagging debates on crucial questions, after a compromise has been reached over them.
The model of protecting Constitution has many shortcomings, and the unique cir
cumstances in the State of Israel make these flaws particularly serious. In Israel, which is
riven with different values, in which the culture of political discourse is weak, and in
which judges play a significant role in the appointment of their colleagues, it is unjusti
fied and illogical to adopt this model. The alternate models, however, are especially
appropriate for the special circumstances prevailing in Israel. In light of the poverty of
political discourse in Israel it is very important to create within it a mechanism that will
encourage serious discourse over essential questions, as the dialogical model proposes.
In a country torn regarding values and still struggling to ensure elementary conditions of
security and stability, there are a number of disputed issues the gagging of which, after
having reached a compromise, is likely to be beneficial, so there is importance in creating
a gagging mechanism as proposed by the model of a gagging Constitution.
Unfortunately, the model customary in Israel today is the first model. Some will argue
that initial encouraging signs can be discerned about the recognition of the need to use
precisely the other two models, and particularly that of a Constitution as promoting
dialogue. Testimony to the recognition of the importance of dialogue may, perhaps, be
found in Aharon Barak’s proposal to add a Notwithstanding Clause to all Basic Laws.42
A proposal of this type also appears as one of the alternatives in the draft Constitution
published by the Knesset Constitution, Law and Justice Committee.43 At the same time,
there are early inklings of signs of willingness to consider use of the gag rule model.44
Despite these encouraging signs, there is definitely room for concern. For the two
alternate models proposed here to be accepted and achieve their goal, a change of heart
is necessary. For the creation of a true dialogue on issues of values, one must internalise
that there exists in Israel a legitimate dispute over questions of values, a dispute that
remains despite an initial agreement on the underlying premises concerning certain val
ues. One must understand that handing the authority to decide on these issues to the
court involves a heavy moral price and that the place best suited for making these deci
sions is the political system. Regretfully, many Israelis have not yet internalised these
truths. In order to create an effective gag rule, there must be thorough appreciation of
the insight that the Israeli collective has value and that its survival depends, among other
things, on its ability to bind, through compromise, the various groups within it. This
truth, too, is far from having become ensconced in the hearts of many citizens of Israel.
In Israel the model of the Constitution as a defender of basic values through the court
became a means for extra-political decision-making. It was not born into a vacuum, but
reflected – and still does – the moods prevailing among the Israeli elite. So that decision-
making will return to the political system, so that it will be made after serious consider
ation of values, and so that the gagging compromise will once again be an accessible,
legitimate option, the value of democratic dialogue and the value of compromise must
make their way into people’s hearts.
42
See, eg Bendor and Segal (n 29) 141–42; see also Y Dotan, ‘Judicial Review and Accountability – A
Comparative Analysis’ (2007) 10 Law and Government 489, 519 (in Hebrew).
43
See S Kogut and E Zandberg, Annotated Version of Proposals for a Constitution (Constitution, Law and
Justice Committee, 2006) www.metzilah.org.il/webfiles/fck/file/hatzaut_lachuka.pdf (in Hebrew).
44
See, eg the proposal for a Constitution by the Israel Democracy Institute, which includes a type of gag
clause regarding issues of religion and State: Constitution by Consensus (Jerusalem, The Israel Democracy
Institute, 2007) 299–302 en.idi.org.il/media/1529178/ConstitutionByConsensus_Draft.pdf.
3
The Right to Judicial Review:
The Israeli Case
ALON HAREL
I. INTRODUCTION
T
HE COURTS’ GROWING involvement in matters of public/political signific
ance is controversial. There are many voices which maintain that courts are too
powerful and influential and that they make decisions that ought to be decided
exclusively by majoritarian/democratic processes. One expression of this sentiment is
the growing opposition to judicial review of statutes. Another expression of this senti
ment is the opposition to what is often labelled ‘creative/purposive interpretation’ –
interpretation which conflicts with legislators’ ‘real’ intentions or with the literal
meaning of a statute. Both judicial review of statutes as well as ‘creative/purposive inter
pretation’ are perceived to replicate the political and ideological whim of judges and
therefore to be illegitimate.
The attack on the courts’ growing powers is shared by theorists of opposing political
persuasions including liberals, such as Jeremy Waldron, Mark Tushnet and Larry
Kramer, and conservatives such as Bork and Scalia.1 In Israel this scepticism is also
shared by conservative leaders as well as by some leftist theorists.2 Unlike Europe and
the US, the attack on the alleged activism is part of a general attack on ‘elites’. In the last
few years the hostility to elites targeted the judicial branch as well as the academic elites.3
1
For liberal critics, see eg J Waldron, Law and Disagreement (Oxford, Oxford University Press, 1999) (argu
ing against judicial review on the grounds that it violates the right of political participation); M Tushnet,
Taking the Constitution Away from the Courts (Princeton, Princeton University Press, 2000) (challenging the
constitutional powers of the courts on various grounds in particular the lack of competence of the courts); M
Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional
Law (Princeton, Princeton University Press, 2008) (establishing that courts are not effective in protecting wel
fare rights); LD Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford,
Oxford University Press, 2005) (challenging the belief that courts were historically designed to have exclusive
constitutional powers to interpret the Constitution). For conservative critics, see, eg A Scalia, A Matter of
Interpretation; Federal Courts and the Law (Princeton, Princeton University Press, 1998) and R Bork, ‘The End
of Democracy? Our Judicial Oligarchy’ (November 1996) 67 First Things 21, 21–24.
2
For conservative opponents, see, eg C Shine, ‘The High Court’s Voyage of Disengagement’ (2006) 5 Netanya
Academic College Law Review 105 (attacking the alleged over-activism of the Israeli Supreme Court); on leftist
voices opposing the Court, see, eg R Shamir, ‘The Politics of Reasonableness’ (1994) 5 Theory and Criticism 7 (in
Hebrew) (demonstrating the ineffectiveness of the Court in protecting rights).
3
Among the most pernicious manifestation of this hostility to elites is the new ‘report’ of the extreme right-
wing movement ‘Im Tirzu’ against what they perceive as the leftist inclinations of the universities: www.imti.
org.il/Reports/AcademicSpeechGag.pdf (in Hebrew). For a popular exposition of the faults of one of the more
26 Alon Harel
Let me speculate here and suggest that some of the reasons for the anti-elitist senti
ments are grounded in the psychology of those who share these sentiments and not in the
sins of their targets. For various reasons these anti-elitist sentiments are directed against
courts.4 The resentment directed against courts resembles sometimes the hysterical reac
tion of spoiled babies who are confronted for the first time with the word ‘No’! The
courts in Israel are pushed to a position of a parent who ought to discipline children who
have lost control. The underlying sentiments guiding the opposition to the courts and
the fact that Israeli society has lost its ability to set limits on itself suggests that even the
most compelling arguments favouring judicial review will not be heard. Trashing
the court is conducive to political success. And, yet, despite the passions which silence
the voice and blind the sight of reason I wish to examine the significance of judicial
review and its proper scope in a liberal society.
I started by observing that two questions occupy the participants in the debate about
judicial activism. The first question concerns the very willingness of courts to intervene in
legislative decisions, that is to strike down laws.5 Some voices argue that judicial review is
never justified;6 others believe that it is sometimes justified;7 and last some believe it is
always justified.8 The second question – the question of ‘creative interpretation’ – is much
broader; it arises also in cases involving judicial review of secondary legislation, decisions
of the executive and even in cases involving interpretation of contracts. This latter ques
tion touches upon the depth, the stringency, and the scope of legal interpretation.
hideous reports of this movement, see A Harel, ‘The Elitophobic Anti-academic Movement in Israel: Who
Wants to Destroy the Elites and Why’ (7 November 2010) hebrewu-law.blogspot.com/2010/11/blog-post_07.
html (in Hebrew).
4
The conjecture that the attack on courts is part of a broader phenomenon, namely what can be labelled
elite-phobia, explains the frequent link made between elites and courts. Gadi Taub, eg argues that: ‘There is
something illusory in the manner in which the new elite struggles to base its hegemony: while it supports right-
economic policy, and judicial activism meant to take political power from the hands of the democratic process
– the Knesset -and place it in hands of the judges of the Supreme Court’. See G Taub, ‘Israeliness – That Isn’t
Us’ (2008) 45 Eretz Acheret 30, 31 www.acheret.co.il/en/?cmd=articles.323&act=read&id=2042&print=1.
Guy Bechor believes that: ‘A new Justice Minister is appointed and before he opens his mouth the old elites
whose power depends on the Supreme Court, universities and the media become hysterical’. See G Bechor
(7 February 2007) www.gplanet.co.il/prodetailsamewin.asp?pro_id=226 (in Hebrew). It is interesting to note
that while Gadi Taub identifies the Court with the ‘new elite’, Guy Bechor identifies it with the ‘old elites’. This
contrast indicates that there is no serious attempt to identify who the elites which allegedly govern the courts
are. The alleged link between the elites and courts was also discussed in academic literature. See M Mautner,
‘The 1980’s Years of Anxiety’ (2002) 26 Tel-Aviv University Law Review 645 (in Hebrew). Foreign theorists
also attributed the alleged rise in the activism of the Israeli Court to interests of elites. See, eg M Mandel, ‘Brief
History of the New Constitutionalism, or How We Changed Everything so that Everything Would Remain the
Same’ (1998) 32 Israel Law Review 250, 252.
5
This question occupied the Israeli public in the 1990s as a result of the enactment of the two Basic Laws:
Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation.
6
This position has been the dominant position for many years and was labelled by theorists ‘the omnipotent
Knesset’ position. An example is the view of Berinson J in HCJ 188/63 Batzul v Minister of Interior 19 (1) PD
337, 349 [1965] (in Hebrew). It is significantly less popular now but it is still supported by some Knesset
Members. See, eg MK Shaul Yahalom who argues: ‘our opposition is that we do not want the Supreme Court
to have any powers to strike down legislation of the Parliament or any court whatsoever’. See Models of
Judicial Review (Jerusalem, Israeli Institute of Democracy, 2002) 62 (in Hebrew).
7
This view has recently become popular in the Knesset. See the Draft Bill Amending Basic Law: The
Judiciary (No 4) (Judicial Review), 2008, HH M 26, s 1, which limits the subject matters that are subjected to
judicial scrutiny. The proposal was justified by its proponents on the grounds of separation of powers, the risk
of mistakes on the part of the courts, the risk of inevitable delays resulting from the judicial process and the
risks of undermining the public trust in the legal system.
8
See the decision of Barak J in CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 49(4) PD
221 [1995] (in Hebrew) (in particular para 79 to the judgment of Barak J).
The Right to Judicial Review: The Israeli Case 27
In this chapter I focus my attention on the first question and examine the arguments
concerning judicial review of legislation. My conclusion would inevitably irritate both
proponents and opponents of judicial review. On the one hand (in part II) I will argue
that most of the existing arguments favouring judicial review are flawed, dangerous (in
that they may contribute to judicial elitism) and, therefore give rise to justified resent
ment. The conventional arguments favouring judicial review is that giving power to
courts contributes to the better and more effective protection of important values. Often
(although not always) this argument is based on the claim that judges are better able to
identify the scope of rights and their weight.9 Part II examines critically this traditional
justification and establishes its falsity.
On the other hand, despite this conclusion, I shall argue in part III that judicial review
is ultimately justified on the grounds that individuals have a right to a hearing. The jus
tification for judicial review is simply to guarantee that individuals who claim (rightly or
wrongly) that their rights were violated are provided with a forum in which they could
raise their arguments, guarantee that these arguments be investigated, and trigger a
reconsideration of the decision in light of the deliberation.10
II. JUDICIAL REVIEW OF STATUTES: WHY THE INSTRUMENTAL

ARGUMENTS FAIL
Judicial review is often subjected to the accusation that it is anti-democratic. Judges,

after all, are not elected. A judicial decision to strike down a law is therefore a violation
of the right to political participation.11 Some would say that the right to political partici
pation ought to be balanced against other rights.12 The results of this balancing depend
on the importance and significance of the right to political participation. Others such as
Jeremy Waldron regard the right to political participation as undermining the legitimacy
of judicial review.13 Judicial review is a violation of the basic right of citizens to partici
pate in decisions concerning the scope of rights and their weight. Controversies over the
scope of rights and their weight ought to be decided by citizens in a democratic process.
On a less abstract level some political scientists believe that judicial review is a scheme
9
See, eg O Fiss, ‘Two Models of Adjudication’ in RA Goldwin and WA Schambra (eds), How Does the
Constitution Secure Rights? (Washington, Aei Press, 1985) 36, 43; OM Fiss, ‘Forward: The Forms of Justice’
(1979) 93 Harvard Law Review 1, 12–13. See also MJ Perry, The Constitution, the Courts, and Human Rights:
An Inquiry into the Legitimacy of Constitutional Policy Making by the Judiciary (New Haven, Yale University
Press, 1984) 102 (examining the contribution of constitutional provisions to the protection of rights); LG Sager,
Justice in Plainclothes: A Theory of American Constitutional Practice (New Haven, Yale University Press,
2004) 199 (pointing out ‘structural features of a constitutional judiciary that make it a promising environment
for the contestation of rights’). In Israel similar arguments have been made. See, eg A Barak in Models of
Judicial Review (n 6) 28–29.
10
For earlier attempts to develop this argument, see A Harel and Y Eylon, ‘The Right to Judicial Review’
(2006) 92 Virginia Law Review 991; A Harel and T Kahana, ‘The Easy Core Case for Judicial Review’ (2010) 2
Journal of Legal Analysis 227; A Harel and A Shinar, ‘Between Judicial Review and Judicial Supremacy: A
Cautious Defense of Constrained Judicial Review’ (2010)10 International Journal of Constitutional Law
950–975.
11
See, eg Waldron (n 1) ch 11. This argument is also heard in Israel. See also the statements made by Dr Dan
Avnun, MK Shaul Yahalom and the Minister Zippi Livni in Models of Judicial Review (n 6).
12
See C Brettschneider, Democratic Rights: The Substance of Self Government (Princeton, Princeton
University Press, 2007) ch 7. For my critique: A Harel, ‘Judicial Review and the Value Theory of Democracy’
(2011) 47 Representation 63.
13
See Waldron (n 1) 232 ff.
28 Alon Harel
designed by social elites to guarantee their political dominance even after they lost con
trol over the elected political institutions.14 Both the claim that judicial review violates
the right to political participation and the view that it is being used by elites struggling to
maintain their power have been raised in Israel by the opponents of the Supreme Court.15
The standard reaction of proponents of judicial review to this argument is that judi
cial review is designed to guarantee better or superior outcomes. This instrumental jus
tification for judicial review is based on the contingent outcomes of judicial review.16
Most of the instrumental arguments are based on meritocratic reasoning according to
which courts are simply more likely to decide correctly than legislatures. The reason for
the alleged superior ability of the court to make decisions is simply the superior ability of
judges to make decisions in their specific areas of expertise, such as human rights or the
institutional features of the court, which make it a superior decision-maker in certain
designated areas. The view that judicial review is essential for the protection of human
rights, the protection of minorities, the protection of democracy or the establishment of
stability are all based on premises concerning the special qualities of judges or on the
special features of adjudicative institutions.17
What is shared by all instrumentalist theories is the sharp differentiation between two
steps of the analysis. First the theorist identifies the goals/values of the constitutional
provisions. Thus, some argue that the Constitution is designed to protect minorities;
others believe that it is designed to protect democracy and the integrity of the majoritar
ian system, promote fertile dialogue or remove from the public agenda issues which are
detrimental to social solidarity or stability. At the second stage the constitutional theor
ist identifies what the institutional scheme which is the most capable of realizing these
goals/values is. The power to interpret the Constitution ought to be given to the institu
tion which is most capable of realizing the goals/values that the Constitution is designed
to realise.18
Thus, for instance, Hamilton believes that the aim of the Constitution is to defend
rights and that judges make better decisions with respect to rights.19 The constitutional
theorist Ely argues that the aim of the Constitution is to defend democracy.20 Bruce
Ackerman believes that the aim of the Constitution is to protect constitutional politics
against mundane daily politics.21
14
M Mautner, Law and Culture in Israel at the Threshold of the Twenty-First Century (Tel-Aviv, Am Oved,
2008) 17 (in Hebrew).
15
For an academic defence of this view, see D Avnun, ‘The Enlightened Public: Jewish and Democratic or
Liberal and Democratic’ (1996) 3 Law and Government 417 (in Hebrew).
16
Classical advocates of the instrumental view are Adrian Vermeule and Ronald Dworkin. See A Vermeule,
Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (Cambridge, Harvard University
Press, 2006) 5; R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge,
Harvard University Press, 1996) 34.
17
For a discussion of instrumentalist theories, see Harel and Kahana (n 10) 230–38.
18
For a detailed analysis of this view, see Harel and Kahana ibid.
19
See A Hamilton, ‘Federalist No 78’ in The Federalist Papers 465 (New York, NAL Penguin, 1961).
20
See JH Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Harvard University Press,
1980) 74 (‘pursuit of participational goals of broadened access to the processes and bounty of representative
government’ ought to replace ‘the more traditional and academically popular insistence upon the provision of
a series of particular substantive goods or values deemed fundamental’). The Israeli Supreme Court voiced a
similar view. See HCJ 11280/02 Central Elections Committee to the Sixteenth Knesset v Tibi 57(4) PD 1, 61
[2003] (in Hebrew) (emphasizing the role of the court in defending democracy).
21
B Ackerman, We the People: Foundations (Cambridge, Harvard University Press, 1991) 6.
After identifying the values promoted by the Constitution, constitutional theorists

identify the court as the institution which is most likely to realise successfully the consti
tutional values. Various reasons including claims about the professional background of
judges or the institutional structure of courts and their insulation from daily politics are
provided to establish the conjecture that judges are likely to interpret the Constitution in
a way that realises better the constitutional values.
This part investigates one dominant instrumentalist theory. Perhaps the most domin
ant instrumentalist theory maintains that courts make better decisions on issues con
cerning individual rights because they are more protective of rights than the legislature.22
The conclusion of my discussion is: (1) the question of who makes better decisions,
namely decisions that are more conducive to the constitutional values, has no clear
answer. As a matter of fact the institutional competence of the court hinges on contin
gent factors which cannot be universalised; (2) even if courts are better decision-makers
with respect to individual rights, it does not follow that courts ought to be authorised to
have constitutional powers over these issues.
Let us start with some basics. There is not a single theorist who denies that individuals
have rights and that the State ought to protect these rights. Opponents of judicial review
do not dispute the fact that individuals have rights and that the State ought not to violate
these rights; they dispute the claim that the best institution to do so is the court.23 The
importance of individual rights in the governance of a liberal polity is not in itself suffi
cient to justify judicial review. In addition one ought to establish that judges are better
or more successful in protecting them than legislatures.
Proponents of judicial review propose two possible explanations for the superiority of
courts with regard to this task. Some theorists maintain that the superiority of judges is
based on their professionalism or their expertise. Protecting rights requires legal exper
tise. Legal expertise is acquired in a long process of thinking about rights and applying
them.24 Other theorists maintain that the special ability of judges to protect rights is
explained not on the basis of judicial expertise but on the basis of the distinctive struc
ture of judicial institutions and, in particular, the relative independence of judges and
their insulation from sectarian and political constraints.25 The legislature represents the
majority and therefore promotes the interests of the majority even when promoting
these interests violates minorities’ rights.26 The view according to which constitutional
22
Harel and Kahana (n 10) 232.
23
See, eg Waldron (n 1) 232 ff.
24
See, eg C Black, A New Birth of Freedom: Human Rights, Named and Unnamed (New Haven, Yale
University Press, 1997) 125 (‘Human-Rights claims are made in the name of the law, as the outcome of reason
ing from commitment; judges are practiced in this kind of reasoning, and some of them are expert at it’). This
view is also endorsed by the Israeli Court itself. Thus the Court said: ‘The military commander is an expert of
the military significance of the separation wall. We are experts with respect to its humanitarian aspects. The
military commander determines where in the mountain and in the valley the separation wall should be built.
This is his expertise. We determine whether the effects of this wall satisfy the requirement of proportionality.
This is our expertise’. See HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807, 846
[2004] (in Hebrew). In another case the Court said: ‘Judicial review does not examine the wisdom to maintain
military activity. The examination done by the review is an examination of the legality of the military activity.
We assume therefore that the military activity in Rafah is from a military perspective necessary . . . We do not
replace the judgment of the military commander with respect to military considerations. This is his expertise.
We examine the results from the perspective of humanitarian law. This is our expertise’. HCJ 4764/04 Physicians
for Human Rights v IDF Commander in Gaza 58(5) PD 385, 393 [2004] (in Hebrew).
25
See, eg n 9.
26
See, eg LH Tribe, American Constitutional Law, 3rd edn (New York, Foundation Press, 2000) 896.
30 Alon Harel
constraints are designed to protect rights is, as Jeremy Waldron noted, the most domi
nant view among contemporary constitutional proponents of judicial review.27
But a systematic examination of this argument exposes difficulties in this conventional
view. To justify judicial review it is not sufficient to determine that the legislature is not
sufficiently protective of individual rights. In order to generate this conclusion one needs
two additional premises. First one ought to establish that legislatures are less protective
of rights than courts. Second judicial review is costly in other respects as courts may
wrongly protect concerns which ought not to be protected as rights. In other words
judicial review may be detrimental because of judicial mistakes concerning the scope
and weight of rights. The advocate of the instrumentalist/meritocratic justification of
judicial review ought to establish that judicial mistakes (eg unjustified intervention in
legislative decisions) are less dangerous or costly than the concerns resulting from violat
ing human rights in a system which does not authorise courts to review legislation.28
Regrettably both historical and theoretical considerations do not support either of
these conjectures.29 Historical evidence does not support the view that courts protect
human rights better than legislatures.30 The famous case of Dred Scott illustrates that
courts may misunderstand what rights are and what values they are designed to pro
tect.31 The case of Lochner illustrates that courts can defend too fanatically what is
wrongly perceived as rights and thereby undermine the legitimate pursuit of important
social and economic goals.32 Perhaps this historical evidence led some theorists to chal
lenge the assumption that judges are better than other institutions in protecting rights:
Before accepting [the authority of the court] . . . it is necessary to ask about judicial competence
to evaluate moral arguments of this sort, and also to ask about facts and incentives. Perhaps
the Court is not especially well equipped to evaluate those arguments; and if consequences
matter, the moral arguments might not be decisive.33
Theoretical examination also raises doubts concerning the alleged superior compe
tence of courts in protecting rights. First, as Andrei Marmor argued, ‘the questions
which the court is asked to settle in the context of constitutional law . . . are simply not
27
Waldron (n 1) 11.
28
See, eg Harel and Kahana (n 10) 234–38.
29
NK Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy
(Chicago, University of Chicago Press, 1997) 256–61 (pointing out weaknesses of courts in making decisions);
Vermeule (n 16) 243 (establishing that often courts are institutionally inferior to other institutions).
30
See, eg DM Rabban, Free Speech in its Forgotten Years (Cambridge, Cambridge University Press, 1997)
131 (establishing that the court has not always been protective of freedom of speech). Waldron (n 1) 288 (ques
tioning the assumption that courts are typically more protective of rights); W Sadurski, ‘Judicial Review and
the Protection of Constitutional Rights’ (2002) 22 OJLS 275–78 (examining and questioning the competence
and the willingness of courts in protecting rights).
31
Dred Scott v Sandford 60 US 393 (1857).
32
Lochner v New York 198 US 45, 76 (1905) (striking labour law legislation designed to protect workers).
For a discussion of Lochner and the lessons of Lochner, see C Wolfe, That Eminent Tribunal Judical Supremacy
and the Constituition (Princeton, Princeton University Press, 2004) 154 (explaining that the Court erred in
Lochner by overextending rights protection beyond the provisions of the Constitution); WM Wieck, Liberty
Under Law: The Supreme Court in American Life (Baltimore, The Johns Hopkins University Press, 1988) 123–
25 (‘Lochner has become in modern times a sort of negative touchstone. Along with Dred Scott, it is our fore
most reference case for describing the Court’s malfunctioning . . . we speak of “lochnerizing” when we wish to
imply that judges substitute their policy preferences for those of the legislature’).
33
Vermeule (n 16) 242; Sadurski (n 3) 299 (questioning the assumption that courts are better in protecting
rights than other institutions); M Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law
(Cambridge, Harvard University Press, 1988) 120 (identifying the mistakes made by courts).
legal questions . . . but moral and political’.34 Both historical and theoretical analysis
suggests that there is no reason to believe that judges have better ability to identify the
scope of rights or their weight. Furthermore, many theorists argued that it is not only
that judges have no superior ability to identify the scope of rights or their weight, but
also that judges may be inferior in these respects as they belong to social or economic
elites. Judges, in contrast to elected representatives, replicate the ideology of dominant
classes or social elites and their cultural, ethnic background, and even their gender (pri
marily male) distort their judgments.35 Legal feminism exposed the fact that the Israeli
legal system suffers from gender bias and it does not sufficiently protect women.36
Furthermore, it was argued that the legal system may be too remote and detached and
that
the detachment of the [judiciary] from the public may distort its perceptions. Its independence
may generate arrogance and undue preference for the institutional interests of the judiciary . . .
the public will may often reveal hidden truths that are not known to the wise men who serve as
judges.37
The detachment of courts is particularly problematic in the higher echelons of courts.38

Finally, some of the harshest critics of courts argue that the inevitable focus of courts on
the words of canonical texts (eg the written Constitution) sustains and reinforces a
formalistic rigid and legalistic reasoning in comparison to the more flexible, less rigid
reasoning characterizing the legislatures. Courts rely in their reasoning on the canonical
formulations of the Constitution, such as ‘due process’ or ‘equal protection’ in the
American, or the concept of dignity in the German and in the Israeli Constitutions. The
commitment to legalistic semantics and judicial scholasticism comes at the expense of
serious moral deliberation that characterises (some) legislatures.39
But, even if, as a factual matter, we could establish the claim that courts are better
than legislatures, there are grave doubts as to whether it follows that judges ought to
have a veto right over the legislature’s decisions. Jeremy Waldron argued at length
against drawing this inference.40 According to Waldron even if courts identify better the
scope of the rights and their relative weight, judicial review violates the right to political
participation. In a democratic society there is a bitter controversy concerning the con
tent, scope and weight of individual rights. The right to political participation is the
right to participate in the determination of the content, the scope, and the weight of
individual rights. Hence one ought not to take the powers from the elected representa
tives to determine the content, scope, and weight of rights even if judges make more
accurate decisions than the legislature. Waldron’s view has been subjected to numerous
A Marmor, ‘Judicial Review in Israel’ (1997) 4 Law And Government 133, 154 (in Hebrew).
34
The view is most forcefully voiced by K Marx and F Engels, The German Ideology (New York, International
35
Publishers, 1970) 47. For a contemporary survey of this tradition, see ‘Law and Ideology’ (Stanford Encyclopedia
of Philosophy, first published 22 October 2001) www.plato.stanford.edu/entries/law-ideology.
36
R Bogush and R Don-Yihyeh, Gender and Justice: Discrimination of Women in the Courts (Jerusalem,
Jerusalem Institute, 1999) (in Hebrew).
37
See, eg G Sapir, ‘The Constitutional Judicial Proceeding as a Political Proceeding’ (2003) 19 Bar-Ilan Legal
Studies 461, 476 (in Hebrew).
38
See also J Waldron, ‘The Core Case for Judicial Review’ (2006) 115 Yale Law Journal 1346, 1379–80.
39
See ibid 1381.
40
ibid 1386.
32 Alon Harel
criticisms.41 Yet his view challenges successfully the instrumentalist meritocratic theory
of rights.
Last, I also said that this argument triggers justified resentment. Judges who strike
down statutes on the ground that their judgments are better or superior presuppose their
own superiority. Even if judges are indeed superior with respect to certain issues, for
example issues concerning individual rights, it is difficult to infer from this fact that they
ought to be given powers to decide these questions. Even if one proves beyond reason
able doubt that the Lubavitcher Rabbi (the leader of an influential Hassidic community)
or his many representatives are the best experts on the Israeli–Palestinian conflict, the
citizens of Israel could not give him the power to make decisions concerning the resolu
tion of the conflict. Of course they could elect him to be a political leader. But they could
not deprive themselves of the power to replace him in the next elections. Granting him
such powers undermines the view that we are all capable of reasoning, and that we all
can, and should, make use of our powers of reasoning. Similar arguments can be made
with respect to the courts. Even if a committee of rabbis proves beyond doubt that their
intelligence, holy inspiration, or even the institutional structure of their institutions,
guarantees greater accuracy and wisdom it would be inappropriate to grant them the
power to make political decisions. The argument is not that the granting of powers to
the Lubavitcher Rabbi or to a distinguished group of rabbis (or granting judges powers
to protect individual rights) is incompatible with the foundational premises of liberal
ism. The argument is only that granting such powers to them simply because they are
better at making them is incompatible with liberal values. The mere superiority in one’s
competence/ability to make certain types of decisions is not in itself an argument which
can justify the authority to make such decisions.
Ironically the meritocratic/instrumentalist argument is shared by both proponents
and opponents of judicial review. Both proponents and opponents share the conviction
that the only normative basis that can justify judicial review is the superior ability of
judges to make the right decisions in specific areas such as individual rights, the protec
tion of minorities and the protection of democracy. But, as we have shown, it is not only
that there is little basis for the conviction that courts are in fact better than legislatures,
but it is also the case that even if it could be shown they are better no conclusions could
follow from it.
Despite the failure of the instrumentalist argument I believe that judicial review is a
fundamental component of any rights-based society. But the justification of judicial
review is not an instrumental one and it has nothing to do with the prospects of reaching
better decisions. The real justification of judicial review is grounded in the right to a
hearing. Judicial deliberation concerning rights is in itself a realization of a distinctive
privilege of right-holders: the privilege to challenge collective decisions reached by the
polity, demand an explanation for these decisions and compel the government to rethink
and reconsider its decisions. I will defend this view in Part III.
41
See, eg the symposium on Waldron’s ‘Law and Disagreement’ which was published in (2006) 39 Israel Law
Review 13.
III. JUDICIAL REVIEW AND THE RIGHT TO A HEARING
A. Introduction
This section is divided into two parts. First I defend the right to a hearing as a basic right
which ought to be respected. Second I argue that, as a conceptual matter, judicial review
is the only way of honouring the right to a hearing. Judicial review is not therefore an
instrument or a means to realise the right to a hearing; it is in itself the (only conceptu
ally possible) realization of the right to a hearing.
B. The Right to a Hearing
Judicial review is designed to facilitate the raising of grievances by defending the right to
a hearing. The right to a hearing consists of three distinct components: the opportunity
to raise a grievance against what is perceived by an individual as a violation of his right,
the duty on the part of the entity which is perceived (by the right-holder justifiably or
unjustifiably) to be the duty-holder to provide an explanation/justification and the duty
on the part of that entity to reconsider the decision which gave rise to the grievance in
the first place. Note that I shall argue that the right to a hearing is intrinsically valuable;
it is not designed to improve the quality of decisions rendered by the State.
When and why do individuals have a right to a hearing? The right to a hearing presup
poses a moral dispute concerning the existence of a right. One can identify two types of
moral disputes. The first one is a dispute concerning the relative weight of the right, namely
a dispute as to whether the right is overridden by conflicting considerations. In such a case
the individual raising the grievance maintains that the violation of his right is unjustified
given the circumstances and the entity against which the challenge is raised maintains that
the circumstances justify such an infringement. The shared premise of both the entity
which raises the grievance, and the entity against which the grievance is raised, is that the
former has a prima facie right and the right to a hearing is designed to facilitate the right-
holder an opportunity to establish that the infringement of the right is unjustified. The
second type of moral dispute is the case where there is a genuine dispute concerning the
existence of a prima facie right. The individual argues that there is a right that is being
violated by a decision to act or to refrain from acting in a certain way. The right to a hear
ing is designed in such a case to establish the existence of such a right. In both cases I will
argue that the right to a hearing does not depend on the justifiability of the grievance. Even
if the grievance is unjustified, the person raising the grievance has a right to a hearing.
The dispute concerning the relative weight of the right involves a dispute as to whether
there is a sufficient justification for the infringement of a right. In such a case both the
entity which raises the grievance, and the entity against which the grievance is being
raised, agree that the former has a right that was infringed. But the entity which raises
the grievance thinks that the infringement is unjustified (and is therefore a violation)
while the entity against which the grievance was raised thinks it is a justified infringe
ment. Thus if, on my way to an appointment, I stop to save a child and, as a result, I am
late to a meeting, the right of the person with whom I made an appointment is being
(justifiably) infringed.
34 Alon Harel
A careful investigation suggests that the person who raises the grievance in such cases
may raise two distinct types of grievances. The first type is based on the claim that the
infringement is an unjustified infringement, that is, a violation. The second type is a pro
cedural complaint. When a person infringes a right, the victim may resent not the
infringement itself but the fact that irrespective of whether the infringement is justified,
the decision to infringe ought to be made in cooperation with the victim of the infringe
ment. The victim of the infringement may therefore protest and say for instance: ‘you
have no right to infringe my right without discussing or consulting me first’. The use of
the term ‘right’ here supports the intuition that the victim of any (justified or unjustified)
infringement of a right is entitled that the entity which makes the decision to infringe
will give him the opportunity to raise a grievance, will explain its decision and will
reconsider it on the basis of the grievance. This is not because the right to a hearing guar
antees or even increases the prospects of a better decision. It is possible even that the
hearing increases the chances that eventually a wrong decision will be made. Its justifica
tion does not hinge on instrumental considerations.
The right to a hearing in cases of infringement of a right presupposes the existence of
a prima facie right when the debate is whether the right is overridden by conflicting con
siderations. The right to a hearing is an indication that the powers of the right-holder do
not disappear even when the right is being overridden. The right-holder who is provided
with such a right is a partner in the making of the decision whether the prima facie right
was overridden. The fact that the infringement is justified does not annul the participa
tory privileges of the right-holder. The status of the right-holder as a participant in the
deliberation is protected even when the right is overridden and, consequently, infringing
the right to a hearing is wrong even if the right which the right-holder demands is being
overridden.
The right to a hearing consists of three components: an opportunity to raise the right-
holder’s grievance; the duty of the entity against which this grievance is raised to provide
an explanation and the principled willingness of that entity to honour the right if it tran
spires that the infringement is unjustified.42
To establish the significance of these components think of the following example.
Assume that Gideon promises Jeremy to meet him for lunch. Prior to the meeting Gideon
asked Jeremy to cancel the meeting because of a memorial that takes place at the same
time. Assume also that Jeremy believes that memorials do not justify the cancellations of
lunch appointments. After all it could be argued that attending to the needs/interests of
living people is more important than honouring the dead.
It seems that even if Jeremy is wrong and memorials justify the infringement of prom
ises, Gideon owes Jeremy ‘a right to a hearing’. His duty is not to apologise but a duty to
hear patiently the grievance of Jeremy, to justify his decision to Jeremy, and finally to
reconsider his decision given the moral deliberation. This right is not grounded in the
fact that the hearing is more likely to bring about a better or a more just decision. The
real justification for the right to a hearing is that Jeremy being a right-holder (of a right
that may eventually turn out to be a prima facie right that is overridden) has to be a full
partner in the deliberation of Gideon whether to infringe the right even when the deci-
sion to infringe the right is justified.
42
See Harel and Eylon (n 10) 1002 and Harel and Kahana (n 10) 238–39.
Let us examine more closely the components of the right to a hearing in such a case.
The first component – the opportunity to raise the grievance – is self-explanatory. The
second and the third components of the right require some attention. To understand the
nature of Gideon’s duty assume that Gideon announces to Jeremy that in the past (after
long deliberation) he came to the conclusion that he ought always to follow the rule that
in a case of a conflict between a lunch and a memorial he ought to go to the memorial.
When Jeremy requires an explanation he simply reiterates the arguments leading him to
adopt such a rule in the first place without examining the relevance and the applicability
of these arguments to the present case. Such behaviour violates the right to a hearing
and, especially, the second component of this right – the right of Jeremy that Gideon
provides an explanation for the infringement. This right requires a concrete examina
tion of the reasons underlying the decision. This is not because the original decision to
adopt the rule is wrong or unjustified. It is possible that the considerations which led
eventually to the adoption of the rule are impeccable and, it is possible that the best way
to make a decision under these circumstances is indeed to blindly follow the rule. The
duty to provide a hearing is not an instrumental duty designed to guarantee the quality
of the decision or to increase the probability that the decision is correct, just, or
appropriate.
Last consider the third component – the willingness to reconsider the initial decision
giving rise to the grievance. Assume that Gideon is willing to allow Jeremy to raise his
grievance, and is also willing to explain his decision, but he announces in advance (or,
even worse, decides without announcing) that the decision is final and will not be
changed. It is evident that this is a violation of the right to a hearing. A real hearing
requires willingness to reconsider the decision; it requires willingness to change it if it
transpires that the decision is wrong and in particular it requires a willingness to act on
the basis of the deliberation.
Let us examine the second case mentioned above – the case where the dispute is not
over the weight of the right, namely whether the infringement of the right is justified or
not, but over the existence of the prima facie right in the first place. Assume that Gideon
promised Jeremy that in the absence of special unexpected reasons, he will pick him up
from the airport. Assume that a few hours before the flight Gideon calls Jeremy and says
that due to a sore throat he cannot honour his promise. Given the qualification ‘in the
absence of special unexpected reasons’ Gideon believes that Jeremy has no right (even
not a prima facie right) to be picked up at the airport.
Unlike the previous case, the debate between Gideon and Jeremy is not over the ques
tion of whether conflicting considerations override the duty of Gideon, but over the
question whether the phrase ‘in the absence of special unexpected reasons’ applies to
this case or not. Gideon believes that a sore throat is a ‘special unexpected reason’ and,
therefore, he believes that Jeremy has no right (not even a prima facie right) to be picked
up from the airport. Jeremy disputes this claim and believes that a sore throat is not a
special reason and therefore he believes that he has a right to be picked up from the air
port. It seems that irrespective of who is right in this debate, Jeremy has a right to a hear
ing, and it is wrong to violate this right irrespective of who is right in the substantive
debate concerning the duty. Furthermore, Gideon’s duty to honour the right to a hearing
does not depend on whether the hearing is conducive to reaching the right or correct
decision as to whether Jeremy has (or does not have) a right to be picked up from the
airport.
36 Alon Harel
The structure of the right to a hearing in that case is similar to the structure of that
right in the case where the dispute is over the justifiability of the infringement of a right.
The right to a hearing in such a case consists of three components: first Gideon has to
provide an opportunity for Jeremy to raise his grievance; second he ought to be willing
to explain to Jeremy why he made the decision. Furthermore, it would be inappropriate
to simply rely on a general principle under which any health concern (irrespective of
how trivial it is) constitutes a ‘special reason’ which exempts Gideon of his duty without
a concrete examination of the applicability of this principle to the circumstances of the
dispute. Finally, Gideon ought not merely hear the grievance and provide reasons for his
decision, but also reconsider his decision in light of this deliberative process.
This example supports intuitively the claim that the right to a hearing is relevant, not
only to cases involving the justifiability of an infringement of a right, but also to cases
where the debate is whether there is a prima facie right in the first place. But it seems
more difficult to justify the right to a hearing in such a case. In the case where the dispute
is over the justifiability of the infringement we relied on the fact that the person who
raises the grievance has a prima facie right. How can we establish the right to a hearing
when there is a dispute as to whether there exists a prima facie right? What is the theor
etical foundation which justifies the right to a hearing in such a case?
If there is a right to a hearing in such a case it is grounded in the special status of right-
holders, that is, in the fact that the entity which raises the grievance is a right-holder
(even if not necessarily of the particular right that is the object of the dispute). Under this
view entities which possess rights are entitled to have an opportunity to establish the
justifiability of their grievances. Depriving them of such a right – the right to trigger a
deliberative process – is unjust because depriving them of such a right does not honour
their status as right-holders. A right-holder ought to be participating in the deliberation
concerning the scope and weight of her rights. Thus, precisely as a prima facie right
(even if it is overridden in a particular case) leaves a ‘normative fingerprint’ in the form
of a right to a hearing, so a dispute concerning the existence of a prima facie right leaves
‘a normative fingerprint’ in the form of a right to a hearing even if, eventually, the ‘right’
at stake is ultimately found to be an imaginary one.
If we apply our discussion to the constitutional context we may say that there are two
cases which justify judicial review of legislation. The first case is when a person has a
prima facie right and this right is (justifiably or unjustifiably) infringed by the legislature.
The debate in this case is over the weight of the right and namely over whether the prima
facie right is overridden or not. The second case is the case in which there is a debate as
to whether there is a prima facie right in the first place. In both cases the right to a hear
ing is composed of three distinct components. First, the State has a duty to provide an
opportunity for the (purported) right-holder to raise his grievance, to explain his view
and to justify it. Second, the State ought to provide an explanation why the grievance is
flawed, that is, why the State’s decision is not a violation of a right. Third, the State
ought to reconsider the decision in good faith on the basis of the deliberative exchange.
Judicial review is not designed to improve the quality of the decision. It is unclear
whether indeed it serves this function at all. The fact that this justification is a non-
instrumentalist one immunises it from the objections raised against the instrumentalist
approach discussed in Part II. But this does not imply that there is no link between the
right to a hearing and the quality of decision-making. The right to a hearing presupposes
that grievances concerning the violation of rights are taken seriously and that the
relevant institutions examine these grievances in good faith. Furthermore, in examining

the judicial procedures and the structuring of the relevant institutions the State ought to
take into account instrumental considerations. The mode and the institutional mechan
isms which realise the right to a hearing should be structured in a way which guarantees
(as much as possible) the protection of rights. Instrumental reasons are not irrelevant in
the design of relevant institutions.
C. The Right to a Hearing and the Adjudicative Process
So far we have defended the position that individuals have a right to a hearing. It is time
now to explore the relations between the right to a hearing and judicial review. In what
way can the right to a hearing justify judicial review? Can we substitute legislative review
or other forms of non-judicial review for judicial review? This possibility challenges the
theoretical distinction drawn between instrumental and non-instrumental considera
tions. This is because the attempt to replace the conventional instrumentalist arguments
(which are based on the degree to which judicial review is effective in protecting rights
or democracy) with non-instrumental arguments (the right to a hearing) is based on the
view that the right to a hearing is not an external goal or contingent by-product of judi
cial review. Hence, under this view, it is impossible (as a conceptual matter) to realise
the right to a hearing without guaranteeing judicial review. If it is possible (at least con
ceptually) to replace judicial review with legislative review without affecting the right to
a hearing, one could question why defend judicial review, as the right to a hearing could
be protected by other means. And if the proponents of the right to a hearing defend judi-
cial review merely on the grounds that courts protect (or are more likely to protect) the
right to a hearing better than other institutions, the right to a hearing argument is as
instrumental as any of the arguments discussed in Part II (and, consequently, it is vulner
able to the objections raised there).
In order to establish our argument that the right to a hearing is not justified on instru
mental grounds one ought to establish that courts or, more precisely, adjudication is the
only process that can realise the right to a hearing. Judicial review is not a better means
to realise the right to a hearing; it is in itself the only realization of the right to a hearing.
To establish this claim, I will argue that the judicial process is in fact at essence a process
of a hearing. Of course institutions other than the court can grant a hearing but, if they
do it well, they adopt in reality the basic components of the judicial process; they reason
like courts. In other words, if they do it well, they thereby become judicial institutions.
The more the realization of the right to a hearing is better, the more the process resem
bles a judicial process (irrespective of what institution performs it).
Think of the procedures used in courts. It is uncontroversial that courts (in contrast to
legislatures) examine individual grievances.43 Examining such grievances involves three
components which are known to us from the discussion concerning the right to a hear
ing. First, the judicial process gives voice to the citizens’ grievances.44 Second, it imposes
43
A Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, Yale
University Press, 1962) 173; D Horowitz, ‘The Judiciary: Umpire or Empire?’ (1982) 6 Law and Human Behaviour
129, 131; RH Fallon, ‘Reflections on the Hart and Wechsler Paradigm’ (1994) 47 Vanderbilt Law Review 953, 958.
44
See Mullane v Hanover Central Bank & Trust Co 339 US 306, 313 (1950); Boddie v Connecticut 401 US
371, 377 (1971).
38 Alon Harel
a duty on the State or other entities to provide a justification for the decision which
eventually gave rise to the grievance.45 Third, it also requires reconsideration of the deci
sion.46 These are precisely the basic three components of the right to a hearing.
The strong link between courts and the right to a hearing can be illustrated by examin
ing the status quo of a court which fails to protect the right to a hearing. Such a failure is
fundamentally different than the failure of a court to decide correctly. A failure of the
second type does not undermine the status of the court as an adjudicative body. Judges,
like any other institution, may make mistakes and still perform an adjudicative role. In
contrast, judges who do not honour the right to a hearing do not function as judges. They
do not act judicially because, after all, the essence of the judicial procedure is to provide
an opportunity for parties to raise arguments, listen to the arguments, weigh them and
decide in a way that reflects the relative weight and significance of the arguments.
A sceptic may question at this point and ask whether it is not enough for the sake of
realizing the right to a hearing to discuss the pros and cons of the decision in the legisla
tive body. After all, our legislatures are asked again and again to justify their decisions.
In addition to its legislative activity the Knesset (Israeli Parliament) is also an exciting
debating society and the debates conducted there provide an opportunity for individuals
whose rights are affected to voice grievances.
This objection is misleading. Even if the Knesset examined grievances in an effective
way this would not be sufficient to protect the right to a hearing. The distinctive feature
of courts is not merely the facilitation of a hearing but the facilitation of particularised
hearings – the right given to real as well as imaginary right-holders to raise their particu
lar grievances. Gideon will not honour the right to a hearing of Jeremy if he merely
asserts that he follows the rule that in every conflict between lunch and a memorial he
chose to go to the memorial. Gideon has to hear the particular grievance of Jeremy and
make a decision informed by the deliberative exchange with Jeremy. This cannot be the
task of a legislature.
It is true however, that courts are not necessary for protecting the right to a hearing; it
is the adjudicative process rather than courts that is necessary. The right to a hearing
requires the existence of an institution which conducts a hearing. It seems as if there is
no reason to believe that the court is the only institution that can conduct a hearing.
There is nothing in principle which prevents the legislature (namely the body which is
responsible for the decision giving rise to the constitutional grievance) to conduct a hear
ing and to allow a citizen to raise its particular grievance against the law, to listen to it
attentively, to reason and to reconsider the decision giving rise to the grievance.
The title or identity of the body which conducts a hearing is unimportant. The pri
mary point is procedures conducted by this body and not the question of what body
performs the hearings. The body which performs the hearing (irrespective of whether it
is a legislature or a new body which is neither the court nor the legislature) ought to
conduct procedures which are identical to those characterizing courts. In other words,
such a body will have to provide an opportunity for individuals to raise their grievances,
to address these grievances and to reconsider the decision giving rise to the grievance.
‘Non-judicial bodies’ such as the executive which provide for a hearing will mimic there
45
See, eg DL Shapiro, ‘In Defense of Judicial Candor’ (1987) 100 Harvard Law Review 731, 737; SC Idleman,
‘A Prudential Theory of Judicial Candor’ (1995) 73 Texas Law Review 1307, 1309.
46
See H Wechsler, ‘Toward Neutral Principles of Constitutional Law’ (1959) 73 Harvard Law Review 1, 19;
SJ Burton, Judging in Good Faith (Cambridge, Cambridge University Press, 1992) 36–37.
fore the procedures of the courts (and thereby lose their ‘democratic’ or ‘representative’
characteristics). The more these bodies are effective in performing a hearing the more
they resemble the courts. They resemble courts so much that one can simply say that the
right to a hearing requires the establishment of courts. After all a bird that looks like a
duck, walks like a duck, and behaves like a duck is nothing but . . . a duck. An institution
that is in charge of hearing grievances, providing a reasoned explanation and reconsider
ing the decisions giving rise to the grievance is nothing but . . . a court.
Assume that you adopt the explanation based on the right to a hearing. Can the right
to a hearing justify judicial review? It seems that the review necessary to facilitate the
right to a hearing is a minimalist review or more precisely a case by case review. The
right to a hearing dictates that the individuals whose rights are violated or who claim
that their rights are violated could raise their grievance, get an explanation and benefit
from a reconsideration of the decision that gave rise to the grievance. But why should
this decision oblige future cases? Why not have (as the Roman system had47) a case by
case review which protects only the individual who raises the grievance without extend
ing it to other individuals? Why should we extend the protection to other individuals
who did not engage in the deliberative process (by striking down the statute)?
It seems to me that there are compelling reasons why courts’ decisions ought to have
implications which extend beyond the grievance of the specific petitioner. Considerations
of certainty, predictability, and coordination provide general reasons why judicial deci
sions ought to have a precedential value.48 The right to a hearing is just the beginning of
an argument which justifies a case by case review. But a case by case review is incompat
ible with other values of the legal system.
Some may argue that the right to a hearing is incompatible with the practices charac
terizing the Israeli legal system and, in particular, with the weakening of the requirement
of standing and the rise in the activity of NGOs. The right to a hearing is the right of the
person who maintains that his right was violated and not the right of human rights orga
nizations representing the victim. But, as anybody who follows the practice of human
rights litigation in Israel knows, this paradigm is very remote from the actual practice of
the courts.49 The ‘public petitioner’ – the petitioner whose main concern is not the par
ticularised violation of the rights of an individual but whose concern is a principled or
ideological concern, namely to protect rights per se – is now a dominant feature of the
Israeli legal system.
My answer to this challenge has two parts. First, I am not committed to defend in this
chapter each one of the doctrinal aspects of the Israeli legal system. It is possible that the
right to a hearing cannot justify the institution of the ‘public petitioner’. Finally, I will
argue that a possible defence of the public petitioner in terms of the right to a hearing
47
HF Jolowicz and B Nicholas, Historical Introduction to the Study of Roman Law, 3rd edn (Cambridge,
Cambridge University Press, 1972) 12, 14.
48
GJ Postema, ‘Some Roots of Our Notion of Precedent’ in L Goldstein (ed), Precedent in Law (Oxford,
Oxford University Press, 1987) 9, 15 (describing the rationales underlying the following of precedents in terms
of ‘certainty and predictability of decisions . . . and in terms of utilitarian benefits of coordination of social
interaction and respect for established expectations’).
49
See, eg HCJ 651/03 Association for Civil Rights in Israel v Chairman of the Central Elections Committee
for the Sixteenth Knesset 57(2) PD 62 [2003] (in Hebrew) where Procaccia J writes: ‘The court expanded in its
past decisions the standing of the “public petitioner” (NGOs). It did so in cases in which the issue at stake has
a public character . . . Extending the status is part of a broad view that regards courts not merely as deciding
over a conflict between parties but as being in charge of protecting the rule of law, even when this role does not
involve resolving a conflict between two parties’ (para 7).
40 Alon Harel
can be based on pragmatic considerations, in particular, the difficulty of access of ordin

ary individuals to the legal system. These difficulties require the establishment of alter
native mechanisms which facilitate human rights litigation.
The conclusion of this part is therefore that individuals have a right to a hearing
against the State and that the institutional embodiment of this right is judicial review.
The only way to protect the right to a hearing is to establish adjudicative institutions
designed to attend to grievances. Adjudication and the right to a hearing are conceptu
ally interrelated. The link between the right to a hearing and the judicial process is not
an instrumental link, but a conceptual one.
IV. AND WHAT IF I AM A FANATIC INSTRUMENTALIST?
Judicial review is a way of facilitating a hearing to the (real or imaginary) victims of

legislation. Such a hearing requires genuine willingness to reconsider the decision giving
rise to the grievance and change it if necessary. Furthermore I argued that only adjudica
tive process can (as a conceptual matter) protect the right to a hearing. The adjudicative
process is not an instrument to maximise the realization of the right to a hearing; it is as
a conceptual matter the only way the right to a hearing could be realised.
My view deviates from the conventional defence of judicial review. It is often assumed
that the opponents of judicial review have a non-instrumentalist argument against judi
cial review based on the right to political participation while the proponents of judicial
review must rely on instrumentalist concerns based typically on the superior quality of
the decision-making of the courts. The argument based on the right to a hearing is a
non-instrumentalist argument favouring judicial review and, in this respect, it deviates
from standard arguments in favour of judicial review.
But, for the sake of devoted proponents of instrumentalism, let me add that the voic
ing of grievances may contribute greatly to the quality of decision-making, not because
of the great wisdom of judges or the superior institutional structure of courts, but for the
reason that the voicing of grievances may contribute to the quality of legislation. It is
often too easy for the legislature to forget those whose life and rights are affected by the
legislation. Judicial review provides an opportunity for the legislature as well as for the
public to meet in the halls of the court the real worldly consequences of incompetent and
unjust legislation. There is not a single enlightened legislative body that will not wish to
encounter these implications in person. Such an encounter between the legislature and
the citizens in the court is essential for the quality of decision-making not of judges but
of legislators. Instrumental considerations touching upon the quality of the legislative
decisions, and not those of judicial decisions, establish another compelling justification
for judicial review.
4
The Purpose of the Israeli Constitution
ARIEL L BENDOR
I. INTRODUCTION
T
HIS CHAPTER DISCUSSES the role of Israel’s Constitution – today, the Basic
Laws – and the relationship between this role and judicial review.
Constitutional law deals with the fundamental principles of the legal system,
and in particular with the basic arrangements relating to the principal governmental
branches and human rights. It is difficult to imagine a legal system which does not have
basic principles, and consequently it is difficult to imagine a legal system without consti-
tutional law. By contrast, it is not essential for constitutional law to be entrenched in a
written constitution. There are countries, such as Great Britain, which do not have a
written constitution, and the constitutional law of which is anchored in other legal
sources, including common law and parliamentary statutes.
Israel, like all other countries, has constitutional law. However, most Israelis, if ques-
tioned about the existence of a constitution, would deny it, and, apparently, so would
most Israeli jurists. Certainly it is true that Israel does not possess a document that bears
the title ‘Constitution’. At the same time, in practice, the Israeli Basic Laws form a con-
stitution, even without being collated into a unified written document.1 This, in effect,
has been the position held by the Israeli Supreme Court since its decision in the United
Mizrahi Bank case of November 1995.2
Whatever the correct theory regarding the legal status of the Basic Laws is, the
approach accepted in practice, not only by the Supreme Court but also by the Knesset –
the ‘House of Representatives of the State’3 – is that the ranking of the Basic Laws in the
hierarchy of Israeli legal rules is superior, from a functional and not only from a sym-
bolic point of view, to that of ordinary parliamentary statutes.4 Accordingly, inter alia,
first, a statute cannot annul or amend a Basic Law.5 Secondly, a statute cannot infringe a
provision of a Basic Law or deviate from the contents thereof, unless authorised by a
1
See, eg AL Bendor, ‘Is It a Duck? On the Israeli Written Constitution’ (2005) 6 Yale Israel Journal 53.
2
CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 49(4) PD 221 [1995] (in Hebrew). In
that case, the Supreme Court determined for the first time that the Knesset possesses constituent authority, and
that Basic Laws enacted by the Knesset under this authority enjoy supra-legislative status. English translation
available at: www.elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.htm.
3
As defined in Basic Law: The Knesset, s 1: ‘The Knesset is the house of representatives of the State’.
4
See, eg A Rubinstein, ‘The Knesset and the Human Rights Basic Laws’ (2000) 5 Law and Government 339,
351 (in Hebrew).
5
United Mizrahi Bank (n 2) paras 59–61 of Court President Barak’s opinion.
42 Ariel L Bendor
Basic Law.6 Thirdly, a Basic Law can impose a duty on the Knesset to enact statutes.7
Fourthly, a statement in a statute, to the effect that the statute is valid notwithstanding
the provisions of a Basic Law, cannot vest the statute with such validity. The only way
to annul a right that is defined in a Basic Law is by changing the Basic Law itself.8 Fifthly,
a Basic Law cannot be interpreted in light of the provisions of a statute.9 Sixthly, even
though in practice the procedure for enacting a Basic Law is identical to that for enacting
statutes, the Knesset is only empowered to entrench Basic Laws and cannot entrench
ordinary statutes.10
In view of that set forth above, there is something tricky about the question as to
whether Israel needs a constitution. This is because the question assumes, or at least
hints, that Israel does not have a constitution. Indeed, some leading Israeli scholars have
criticised the approach which holds that the Basic Laws have the status of a constitu-
tion.11 Nonetheless, today, about 17 years after the United Mizrahi Bank decision, the
likelihood that the common approach will change seems small, in view of the fact that
the Knesset itself enacts its legislation on the premise that it has the powers of a constitu-
tive assembly and that the normative status of the Basic Laws is higher than that of
ordinary statutes.12
In part II I will present the common attitudes – primarily as reflected in the Israeli
Supreme Court case law – concerning the roles of the Basic Laws. These attitudes
emphasize judicial review. The Israeli Constitution is not primarily perceived as guiding
the branches of government, especially the legislative branch; rather, to a great degree, it
is viewed as a basis for the criticism of the other branches by the judicial branch. This
concept does not only reflect the intermixture of substantial constitutional law with the
Court’s judicial review policy. It is also expressed in the unique Israeli phenomenon
referred to in Israel as ‘rolling procedures’, which is characterised mainly by the fact
that, in many cases, the Court does not issue its ruling in accordance with the existing
legal and factual infrastructure, but rather, attempts to guide the state toward making
required changes by way of a procedure which resembles negotiations and is likely to
continue for years.
In part III I will discuss the weaknesses of this conventionally common attitude,
which, to a great degree, undermines the nature of constitutional law, and perhaps even
that of law in general, as a sphere of knowledge, rather than a political arena; and which,
6
HCJ 212/03 Herut v Chairman of the Central Elections Committee 57(1) PD 750 [2003] para 4 of Court
President Barak’s opinion (in Hebrew). English translation available at: www.elyon1.court.gov.il/files_
eng/03/120/002/A04/03002120.a04.htm.
7
HCJ 8300/02 Nasser v Government of Israel (22 May 2012), Nevo Legal Database (by subscription) paras
54–63 of former Court President Beinisch’s opinion (in Hebrew).
8
HCJ 4676/94 Mitral v Knesset 50(5) PD 15, 25 [1996] (in Hebrew).
9
HCJ 1384/98 Avni v Prime Minister 52(5) PD 206, 210–11 [1998] (in Hebrew).
10
HCJ 4124/00 Yekutieli v Minister of Religious Affairs (14 June 2010), Nevo Legal Database (by subscrip-
tion) para 25 of Court President Beinisch’s opinion (in Hebrew). English translation available at: www.elyon1.
court.gov.il/files_eng/00/240/041/n43/00041240.n43.htm.
11
See, eg R Gavison, ‘Constitutions and Political Reconstruction? Israel’s Quest for a Constitution’ (2003)
18 International Sociology 53, 62–67. Gavison claims that although the enactment of the Basic Laws relating to
human rights was declared a ‘Constitutional Revolution’ by some, Israel’s constitutional history shows that
such a declaration is mistaken; in the 1980s and 1990s attempts to enact a constitution were defeated because
of the lack of broad social legitimacy, and this alone was the background for enacting the Basic Laws.
12
Rubinstein (n 4) 353–57. See also S 2 of Bill Memorandum of Basic Law: The Legislation, 2012, published
by the Ministry of Justice: www.tazkirim.gov.il/Tazkirim_Attachments/41283_x_AttachFile.doc (in Hebrew).
The Purpose of the Israeli Constitution 43
in any event, also undermines a central justification of judicial review itself – its essenti-
ality in maintaining the rule of law, including the rule of the constitution.
In part IV I will discuss the role of the constitution as determining the legal rules
which should not be subject to decision by a random political majority. These rules
include the principles of the system of government, human rights and especially minority
rights, and in Israel also basic values resulting from the basic reason for its existence – as
a nation-state which expresses the right of self-determination of the Jewish people.
Finally, in part V I will suggest that the purposes of the constitution require that the
authority which will ensure that all of the branches of government act according to the
Basic Laws shall be a professional entity, which does not depend upon majority repre-
sentation. That authority is the Court.
A vast body of literature, all over the world, focuses on the broad normative and
theoretical aspects covered by this chapter. The chapter will accordingly concentrate on
the Israeli discourse, and even in that sphere will seek to present only initial comments,
each one of which is worthy of separate, detailed discussion.
II. THE COMMON ATTITUDE – CENTRALITY OF JUDICIAL REVIEW
The jurisprudence of the Supreme Court in Israel, as in other countries, emphasises the
role of judicial review in constitutional law. This is expressed in two principal ways.
First, the rulings in constitutional matters are often based on institutional considera-
tions, which deviate from the interpretation of the Basic Laws. Secondly, protracted
handling of some of the constitutional decisions, in a manner known in Israel as ‘rolling
procedures’, with a view to finding a solution for the dispute by amending legislation or
enabling the accumulation of information on the practical impact of the disputed law. I
will present these two aspects in the order listed above.
A. The Integration of Institutional Considerations into Judicial Review
The Israeli Supreme Court’s decisions indicate that judicial review is not only an instru-
ment for resolving disputes with regard to the question of whether a statute enacted by
the Knesset is consistent with the provisions of the Basic Laws. Rather, the settling of the
differences is justified on the basis of considerations, some of which are of an inter-
institutional nature, which concern the relationship between the non-elected judicial
branch and the elected legislative branch.13 This attitude, which attributes significant
weight to the status of the judicial branch and is not based solely on the interpretation of
substantive constitutional rules set forth in the Basic Laws, is not limited to economic or
social policies. The attitude also applies in additional contexts, such as legislation which
is intended to promote the objectives of state security.14
13
See, eg United Mizrahi Bank (n 2) para 69 of former Court President Shamgar’s opinion and para 79 of
Court President Barak’s opinions; HCJ 6304/09 Lahav v Attorney General (2 September 2010), Nevo Legal
Database (by subscription) paras 62–63 of Justice Procaccia’s opinion (in Hebrew).
14
See, eg HCJ 7052/03 Adalah v Minister of Interior 61(2) PD 202 [2006] para 132 of Court Vice President
Cheshin’s opinion (in Hebrew). English translation available at: www.elyon1.court.gov.il/files_eng/03/520/070/
a47/03070520.a47.htm.
44 Ariel L Bendor
The emphasis on the role of the judicial branch is not only in the context of reserva-
tions against that role. At times, the role of the Court is presented in positive contexts, of
special contribution to the protection of human rights.15
At the same time, in many cases, the Court does not distinguish between the question
of the interpretation of substantive constitutional law and its own considerations in
exercising judicial review.16
Indeed, the Court demonstrates theoretical ambivalence with regard to its role. If the
tool is to preserve the criteria for the constitutionality of the statute, which are set forth
in the Basic Laws and to prevent any transgression beyond their boundaries, why does
it sentence itself to ‘restraint’ and ‘moderation’? What is the relationship between the
policy of judicial moderation and the role of the Court which requires it to hand down
decisions according to the rules set forth in the Basic Laws? The answer to this question,
as the Court sees it, may apparently be found in the following sentences by Court
President Dorit Beinisch:
[T]he Court should carry out the role given to it in our constitutional system and examine the
constitutionality of the legislation enacted by the legislative branch. This examination should
be made by striking a delicate balance between the principles of majority rule and the separa-
tion of powers, on the one hand, and the protection of human rights and the basic values
underlying the system of government in Israel, on the other.17
The meaning of the above statement is that the Court takes interest not only in the bal-
ance between human rights and the purposes of the violation thereto, as is prima facie
required by the Basic Law on human rights, which state that: ‘there shall be no violation
of rights . . . except by a law befitting the values of the State of Israel, enacted for a
proper purpose, and to an extent no greater than is required’.18 In addition, the Court
also refers to the balance between the need to protect human rights and the remaining
basic substantive values of Israeli society, on the one hand, and, on the other, the princi-
ples which concern the relationship between the non-elected judicial branch – that is, the
principles of majority rule and the separation of powers.
That is likely to imply that constitutional judicial review is operated according to
principles which are not identical to those which apply to the Knesset as the legislative
branch. Whereas the Knesset, when operating as the legislative branch, is required to
uphold the Basic Laws, and only those laws, the Court, while taking into account the
substantive constitutional law set forth in the Basic Laws, also takes into consideration
15
See, eg HCJ 8192/04 Movement for Quality Government v Prime Minister 59(3) PD 145 [2004] para 8 of
Justice Rivlin’s opinion (in Hebrew). The question in front of the Court was whether a criminal interrogation
of the Minister of the Interior, obligates not only his suspension, but also his dismissal. In his opinion, Justice
Rivlin declared that even if it were determined that there is no need for the Court intervention in this case, ‘The
judicial review which intends to protect human rights will be as comprehensive as ever’.
16
See, eg HCJ 1715/97 Investment Managers Bureau v Minister of Finance 51(4) PD 367 [1997] para 20 of
Court President Barak’s opinion (in Hebrew). The case dealt with the constitutionality of the Regularization
of Occupation in Investment Consulting Law, 5755-1995. Court President Barak declared that the Court must
restrain its judicial review and not put its judgment in place of that of the legislature; however, restraint does
not mean stagnation, and if the legislature violates a protected constitutional right the Court shall take a clear
position.
17
HCJ 2605/05 Academic Center of Law and Business v Minister of Finance (19 November 2009), Nevo
Legal Database (by subscription) para 14 of Court President Beinisch’s opinion (in Hebrew).
18
Basic Law: Human Dignity and Liberty, s 8. English translation available at: www.knesset.gov.il/laws/
special/eng/basic3_eng.htm. See also Basic Law: Freedom of Occupation, s 4. English translation available at:
www.knesset.gov.il/laws/special/eng/basic4_eng.htm.
principles which are external to the substantive constitutional rules set forth in the Basic
Laws.
Nonetheless, in certain case law, there is a tendency to combine – at least rhetorically
– considerations of substantive law with considerations of separation of powers and
majority rule, which are external to them. Thus, for example, Court President Barak
wrote:
In cases where a range of means exists, it is necessary to recognise the maneuvering power and
the sphere of discretion of the legislators . . . The determination of social policy belongs to the
legislators, and its implementation belongs to the Government, to both of which room for leg-
islative maneuvering has been given.19
But these statements, which prima facie reflect interpretation of the Basic Laws as pro-
viding the elected branches with room for legislative manoeuvring, are justified by
addressing the relationship between the roles of the legislative branch and those of the
judicial branch, while ascertaining the need for special care and restraint on the part of
the Court.
Emphasis on the institutional aspect of judicial review – at times, in a way which does
not indicate awareness of the substantive legal basis of the judicial review – is also char-
acteristic of the public and media discourse on the activity of the Supreme Court. One
example of this are the various proposals for constitutional changes, which were submit-
ted in recent years pursuant to decisions of the Israeli Supreme Court, and which focus
on defining the authority of the Court, rather than the content of the Basic Laws which
the Court interpreted. Thus, for example, it was proposed to amend the Basic Law: The
Judiciary, so as to include a provision that ‘the Supreme Court . . . shall not issue orders
in security matters which are directly related to human life’20 it was also proposed to
amend The Courts Law (Consolidated Version), 5744-1984, so as to increase the number
of Supreme Court Justices, with a view to enabling ‘the appointment of Justices with a
variety of backgrounds and positions, in such a way as to faithfully reflect the various
world-views which prevail among the Israeli public’.21
A large proportion of academic writing in the constitutional sphere is also focused on
‘judicial review’, in such a way as to play down the professional legal aspects of consti-
tutional law and to focus on the role of the judiciary. Thus, for example, in his recent
book Gideon Sapir discusses a number of alternative constitutional models, the choice
between which is presently to be made in accordance with considerations related to judi-
cial review;22 and Eyal Benvenisti discusses judicial review policy, almost without
addressing the Basic Laws on which it is founded.23 In an older article, Ruth Gavison
calls for refraining from anchoring value-laden decisions in binding legal rules in
19
Israel Investment Managers Association (n 16) para 19 of Court President Barak’s opinion.
20
Draft Bill Amending Basic Law: The Judiciary (Powers of the High Court of Justice), 2010, P/18/2018
(laid before the Knesset on 25 January 2010, and denied by the Ministerial Committee for Legislative Affairs on
30 May 2010).
21
Draft Bill Amending the Courts Law (Number of Justices in the Supreme Court), 2009, P/18/1760 (laid
before the Knesset on 16 November 2009, and denied by the Ministerial Committee for Legislative Affairs on
3 January 2010).
22
G Sapir, The Constitutional Revolution – Past, Present and Future (Tel-Aviv, Haifa University Press, 2010)
(in Hebrew).
23
E Benvenisti, ‘Judicial Review and Democratic Failures: Minimizing Asymmetric Information through
Adjudication’ (2010) 32 Tel-Aviv University Law Review 277 (in Hebrew).
46 Ariel L Bendor
general, and Basic Laws in particular, principally so as not to transfer the decision in
these matters to the Court and thereby to violate its status.24
B. Rolling Procedures: Monitoring by the Court of Amendment or Application of Laws
The special Israeli phenomenon of rolling procedures – which, in one study, was referred
to as ‘law as dialogue’25 – reflects an understanding of the role of the Court as transcend-
ing the mere examination of the compliance of a law with the requirements set forth in
the Basic Laws. It should be noted that rolling procedures do not take place exclusively
with regard to petitions directed against the constitutionality of statutes, but also with
regard to petitions directed against decisions by the executive branch – whereby some of
these petitions are based on constitutional arguments and others come from the realm of
administrative law.
One type of rolling procedures is that in which the Supreme Court, in cases where
there is a prima facie problem with the constitutionality of a statute and the state
expresses its willingness to examine the possibility of amending it, enables the state to
make its examination while guiding it as to the amendments required and monitoring its
progress on an ongoing basis, at times while waiting for the issuance of other rulings
which have an affinity to the subject of the petition. Following, there is an example
which, although extreme from the standpoint of the length of time during which the
procedures kept rolling, are not unique or exceptional in nature.
In the Yekutieli case,26 a petition was filed in 2000 against a section of the annual
Budget Statute – which had been included in the Statute each year for a number of
decades – which provided an income assurance allowance to Yeshiva27 students who
devote their lives to religious study, although such an allowance is not paid to other stu-
dents, such as college and university students. The argument advanced by the petitioners
was that paying the allowance to Yeshiva students alone violates the principle of equal-
ity. The petition was granted, and the Court ruled that the payment of the allowance
was not legal. The judgment, however, was issued in 2010, about 10 years after the peti-
tion was filed.28 After providing a detailed explanation of the chain of events over the
years, and declaring that the complexity of the issues led to the lengthy examination of
the factual and legal framework, the Supreme Court judgment, written by Court
President Beinisch, stated as follows:
Sometimes issues reach the court, the decisions for which require preparations that are differ-
ent from the ordinary, inter alia, by giving the opportunity to the various entities, including the
executive authority and the legislative authority, to examine the extent of their involvement in
the matter and render the judicial decision superfluous. In the petition before us, the first years
were devoted to clarifying the factual framework and determining the conditions for eligibility
for the income support benefits, assuming that the benefits are, indeed, paid. Afterwards, adju-
24
R Gavison, ‘A Jewish and Democratic State: Political Identity, Ideology and Law’ (1995) 19 Tel-Aviv
University Law Review 631, 661 (in Hebrew).
25
D Scharia, The Pure Sound of the Piccolo: The Supreme Court of Israel, Dialogue and the Fight Against
Terrorism (Srigim-Li’on, Nevo Publishing, 2012) 201–10 (in Hebrew).
26
n 10.
27
‘Yeshiva’ is a Jewish educational institution for learning traditional religious Jewish texts, primarily the
Talmud and the Torah.
28
Yekutieli (n 10).
dication of the petition was delayed until the decisions were rendered in various petitions in the
matter of deferral of military service.29
This dynamic attitude of the Supreme Court – which discloses interest in organizational
and social developments which concern the implementation of a statute, the constitution-
ality of which is under examination, and attributes significance to those developments –
also transcends the understanding of the role of the judicial branch as the examiner of the
compliance of laws with constitutional rules, which, in Israel, are anchored in the Basic
Laws.
III. WEAKNESSES OF THE COMMON ATTITUDE
Notwithstanding the importance of judicial review, a constitution and Basic Laws, like
most other legal rules, are not directed at the courts. Rather, they are primarily directed
at the elected branches of government and at the individuals – the citizens and residents
of the state. The unique aspect of the Israeli Basic Laws as legal rules which are superior
to other laws lies in the fact that they are also primarily directed at the legislature: they
prevent the Knesset from enacting certain statutes, or require it to enact others. As in the
United States and Canada, the power to engage in judicial review in Israel is derived
from the very jurisdiction of the courts – which is generally a mandatory jurisdiction –
to decide legal disputes.
One can argue that all these assertions are formal and technical, and that in fact both
the Basic Laws and the theory regarding their supremacy over other laws are intended to
enable judicial review of parliamentary statutes. Thus, judicial review was not intended
to give effect to the Basic Laws. Rather, the Basic Laws were intended to enable judicial
review.
Nonetheless, for the time being, the principal practical impact of the Basic Laws
which embody the ‘Constitutional Revolution’30 – that is, the two Basic Laws which
relate to human rights – has been on Knesset legislation and not on judgments which
have exercised judicial review of the constitutionality of statutes. Since the outbreak of
the Constitutional Revolution the Supreme Court has only invalidated 10 statutory pro-
visions. In contrast, since the United Mizrahi Bank decision, the constitutionality of all
legislative bills has been meticulously examined by the legal advisors to the Knesset and
Government and by the Knesset Members themselves. Bills which raise doubt as to their
compliance with constitutional requirements are normally cancelled, delayed or
redrafted.31
Moreover, certainly as a result of the influence of the Basic Laws, the Knesset has
enacted a series of new statutes, in relation to which an effort has been made to respect
29
ibid para 9 of Court President Beinisch’s opinion.
30
See, eg YM Edrey, ‘The Israeli Constitutional Revolution: Evolution, Models of Constitutions, and a
Lesson from Mistakes and Achievements’ (2005) 53 American Journal of Comparative Law 77, 85. Edrey
writes that ‘The phrase [Constitutional Revolution] was intended to indicate that those Basic Laws introduced
into Israeli constitutional law, both the Israeli Bill of Rights and the Concept of Judicial Review, granted the
courts the authority to declare “ordinary laws” unconstitutional and null and void’.
31
See, eg ‘The Knesset Annual Report of 2011 according to “The Freedom of Information Law, 1998”’
(Jerusalem, June, 2012) (in Hebrew) main.knesset.gov.il/Activity/Info/Documents/report_2011.pdf, which
describes the work of the legal department of the Knesset and states that one of its responsibilities is to exam-
ine whether bills that are brought to the Knesset table are in compliance with constitutional principles.
48 Ariel L Bendor
human rights.32 These laws replace previous laws which disproportionately violated
human rights. In cases where the Court invalidated Knesset statutes by virtue of the
Basic Laws, the Knesset amended the statute in accordance with the guidance given in
the judgment.
At the same time, it is preferable to focus on the substance of the constitutional con-
straints on the legislature and the executive, not only from a practical point of view but
also in terms of the strategy for determining the content and the interpretation of the
Basic Laws and, in the future, of the Israeli Constitution.
Systematic discrepancies between the rules of judicial review and the principles set
forth in the Basic Laws are likely to give rise to various problems. This applies a fortiori
with regard to the replacement of the constitutional rules by the rules of judicial review,
or the obscuring of the distinction between the constitutional rules and the policy of
judicial review, as happens more than occasionally in Israel and other countries, and as
was illustrated in the previous part of this chapter.
Thus, the common approach is likely to lead to a lack of clarity with regard to the
nature of the limitations and duties which are imposed upon the legislative and execu-
tive branches. The starting point should be that these branches are interested in operat-
ing in a manner reconcilable with the constitution. The Court shall exercise the judicial
review power by adopting an interpretation of the Basic Laws which focuses on the
nature of the rules which apply to the elected branches, and not on the nature of the
rules which apply to the Court itself. Such interpretation will enable the other branches,
provided that they desire to do so, to operate according to law.
First, it is quite possible, that the correct interpretation of the Basic Laws will allow
the elected branches a broader range of discretion in matters which concern economic or
security-related policy than in other matters. Accordingly, it is quite possible that the
range of discretion which is given to the legislature and the executive, in matters related
to human rights, is more restricted than the range of discretion given to them in other
matters. At the same time, the interpretation of the Basic Laws should not be derived
from considerations which concern the judiciary or its relationship with the other
branches. Even if in the opinion of the Court there is justification, in certain cases, for
not basing its decisions exclusively on the interpretation of the Basic Laws and their
application to the facts of the case before it; even if it is appropriate for the Court to take
constraints of the judicial branch into account as well, it must make a clear separation
between the various aspects, in order to enable the elected branches and their legal advi-
sors to know which constitutional limitations and duties are incumbent upon those
branches.
Secondly, a separation between the interpretation of the constitution and judicial
review policies is required in order to enable a critique of the Court’s decisions in a man-
ner which distinguishes between constitutional interpretation and considerations which
concern the policy of judicial review. Thus, it is difficult to justify judicial review which
is broader than required by substantive constitutional law, as the invalidation of a stat-
ute which does not run counter to a Basic Law is devoid of any legal basis and cannot be
reconciled with the rule of law. It is also difficult for considerations of separation of
powers to constitute a sufficient basis for requiring the judiciary to refrain from consti-
tutional interpretation and from deciding whether the other branches have deviated
32
See, eg Criminal Procedure Law (Enforcement Powers – Detentions), 5756-1996.
from the constitutional rules which apply to them. The power to decide legal questions,
which concern the interpretation of existing law, clearly belongs to the judicial branch
according to the separation of powers. On the other hand, the conclusion as to the legit
imacy of the Court’s decisions may be different if the minimalism and restraint adopted
by the Court are not derived from considerations which concern the relationship of the
powers to each other, but rather, result from an interpretation of various constitutional
limitations as minimal limitations. At the same time, procedural and evidential con-
straints, which are not parts of substantive constitutional law, as well as the recognition
of the advantage which the legislature and the executive may have over the judiciary in
clarifying facts and adjudging policy in complex situations, may justify the Court’s rec-
ognition of presumptions in favour of the constitutionality of legislative or executive
decisions. This may be correct, provided that it has been proved that the legislative and
the executive branches actually based their decisions on a sufficiently in-depth proce-
dure, founded on the intention of respecting the rules of substantive constitutional law.
Thirdly, mixing considerations of constitutional interpretation with judicial review
policies is likely to give rise to errors in the Court’s decisions. These errors, in turn, are
likely to have an undesirable impact on the method according to which the principle of
binding precedent behaves. Thus, judges who hold before their eyes inter-institutional
considerations, which are likely to justify the restraint of judicial review in the context of
a certain right, are likely to formulate their rulings in such a way as to imply that the
weight of that right is materially less. Moreover, judges might not carry out their exami-
nations with the requisite degree of stringency if there really is sufficient justification for
the outcome of the decision, not to comply with substantive constitutional law, but
rather, to be biased by considerations or constraints of the judicial branch itself.
Fourthly, and ironically: it is precisely the stressing of considerations which concern the
policy of judicial review, without distinguishing between these considerations and sub-
stantive constitutional law – not to mention the replacement of substantive constitutional
law by the policy of judicial review – which can prejudice the public status of the judicial
branch. The public belief that the judiciary operates according to professional legal con-
siderations and not according to the judges’ own political agenda may be prejudiced by a
declared practice of underestimating the weight of substantive constitutional law.
The phenomenon of rolling procedures is likely to empower the perception that the
Court does not focus on the interpretation and application of substantive law, but
rather, that judicial procedure is a blood-relative of political proceedings. Admittedly,
one cannot rule out the possibility that the Court, in the appropriate cases, will encour-
age the parties to settle the dispute between themselves with no need for detailed judicial
intervention – whether the respondents agree to grant the relief sought in the petition, or
the petitioners agree to strike it out. There are also cases in which there is reason for the
Court to ask the parties to clarify the factual or legal aspects of this or the other matter
and to delay the continuation of the hearing until the results of the clarification have
been obtained. In the appropriate cases, there is also nothing wrong with the Court,
even if it has found that a statute is not constitutional, not to grant the extreme relief of
retroactive invalidation of the statute, but rather, for example, to rule that the invalida-
tion will apply prospectively or, in the case of a temporary statute, to deny the petition
while giving the Knesset the possibility of correcting the flaws.
At the same time, the monitoring of governmental procedures by the Court over
a period of years is not in line with the essential role of the judiciary, which is to settle
50 Ariel L Bendor
differences according to existing law. It contributes to the feeling that the judicial pro-
cess is part of the procedure of the legislative or the executive branches, and that it
entails an aspect of negotiation, in which the Court finds itself involved. This, in turn,
gives rise to the possibility of an impediment to the internalization of the understanding
that judgments of the Court reflect existing law, and that the duty of acting in accord
ance with the law is not subject to negotiation or discretion – not even judicial
discretion.
Furthermore: protracted procedures which involve monitoring by the Supreme Court
are likely to detract from the clarity, or even the legality, of legal doctrine. This is because
the Court may not substantiate its proposals on an in-depth analysis of the law. The
extent to which the arrangement which was eventually achieved corresponds to existing
law is not always clear. Dragging out Court procedures over a period of years, with no
interim order, is likely to give rise to a protracted breach of the law, which, on more
than one occasion, has turned out to be irreversible, even if, at the end of the procedure,
the Court allows the petition. This also applies to cases in which it was obvious, from
the very beginning of the procedure, that the conduct of the governmental authority in
question was unlawful.
Thus, in the Nasser case,33 in which the Supreme Court kept the procedure ongoing
for 10 years with a view to bringing about the amendment of a statute (although even the
Attorney General was of the opinion that the statute was unconstitutional) it would
have been proper for the Attorney General to instruct the authorities not to act accord-
ing to the statute in question, or to ask the Court to declare the statute in question
invalid. In any event, once the matter had been brought before the Court, it should have
ruled on the question of constitutionality as quickly as possible.
The Court, generally speaking, should rule according to the law even when the major-
ity of the public will not favour the outcome or the grounds of the ruling. This holds true
particularly in constitutional matters, in which the assumption is that the law whose
constitutionality is under attack, reflects the wishes and interests of the majority of the
public. The principal problem, then, is the very dominance, in judicial policy, of consid-
erations which do not reflect an interpretation of substantive constitutional law.
IV. THE PURPOSE OF THE ISRAELI CONSTITUTION
A. Three Models for a Constitution According to Gideon Sapir
In his seminal book34 Gideon Sapir presents three possible models for a constitution,
variants of each of which are implemented in various countries throughout the world.
These models are referred to by Sapir as the ‘protection of basic values by the constitu-
tion and the Court’ model, the ‘constitution as a dialogue’ model and the ‘constitution
as a silencing agent’ model. Sapir did not invent these models. His writing is based on an
in-depth study of the constitutional law of many countries and much literature on polit
ical theory. Nonetheless, his analysis will provide me with a useful starting point for
discussion.
Nasser (n 7).
33
Sapir (n 22). Sapir also discusses the three models in G Sapir, ‘Three Models of Constitutionalism’ (2007)
34
37 Mishpatim 349 (in Hebrew) and in his chapter in this volume.

The first model is the most common one. According to this model, the purpose of the
constitution is to protect basic values against infringement. The constitutional fettering
is required, notwithstanding the agreed nature of these values, in order to cope with
‘states of intoxication’, in which the public would lose control of the requisite
discretion.
The second model is based on the fact that the last word in constitutional questions
belongs to the public, through its elected representatives. However, the judiciary is
provided with tools which enable it to urge the legislature to discuss and settle these
questions seriously.
The third model is based on the anchoring in the constitution of detailed compro-
mises, which do not necessarily reflect agreed basic values. According to this model the
purpose of a constitution is to remove from the day-to-day agenda certain disputes, the
discussion of which constitutes a threat to social stability.
B. Israel and the Three Models
Generally speaking, the prevailing model in Israel today is the first model – the protec-
tion of basic values by the Basic Laws and the Court. Admittedly, most of the Basic Laws
are not rigid; a special majority of the Knesset Members is not required in order to
amend or even repeal them. Even when a special majority is required, it is a majority of
the Members of the Knesset, which the Government – the executive branch – can prima
facie summon up. However, there is a political difficulty in amending Basic Laws, since,
for many years, the coalition agreements have specified that no Basic Law can be enacted
or amended without the consent of all of the member parties in the coalition.35
Furthermore, there is an understanding to the effect that the incorporation of the Basic
Laws into a complete constitution will take place pursuant to a broad (even if not an
absolute) consensus. The Basic Laws, even though they have not yet been incorporated
into a constitution, include fundamental principles of governance and some of the major
human rights, and are perceived by the Supreme Court as superior to ‘ordinary’ statutes.
The Knesset and the Government recognise this perception. There is judicial review of
the congruence between the rules set forth in statutes and the rules set forth in Basic
Laws. In the event of a contradiction between a Basic Law and a statute, the Court may
invalidate the statute.
A similarity between Israeli law and the ‘constitution as a dialogue’ model36 is found
in section 8 of Basic Law: Freedom of Occupation, which enables the Knesset to enact
statutes which detract from freedom of occupation without complying with the condi-
tions set forth in the Basic Law for justified violation of the right, if the statute was
adopted by a majority of the Knesset Members – the same majority that is required in
35
One interesting example is that of a statute, which states that any withdrawal from territories to which the
law and administration of Israel apply may take place, as a general rule, only if supported by the majority in a
referendum. See, Law and Administration Law (Cancellation of Application of Law, Jurisdiction and
Administration) (Amendment), 5771-2010, SH No 2263, p 58. An attempt to establish an identical arrange-
ment in a Basic Law did not succeed for many years.
36
Another dialogue-type aspect, which Sapir does not mention, is the rolling procedures described above,
which, in fact, constitute a dialogue between the Court and the elected branches. At the same time, by contrast
to the ‘constitution as a dialogue’ model, the last word regarding the constitutionality of a statute, when the
procedure finally stops rolling, belongs to the Court and not to the elected branches.
52 Ariel L Bendor
order to amend or repeal the Basic Law itself – and if the statute expressly states that it
is valid notwithstanding that set forth in the Basic Law. The validity of such a statute
may not exceed four years – one ‘political generation’.37
C. Difficulties with Sapir’s Approach
As to the first model, although there are various interpretation theories which are
intended to guide the judges in interpreting the constitution,38 Sapir insists that the adop-
tion of these theories depends upon the good will of the judges themselves. Moreover,
the other solutions proposed are not effective, or else they ‘throw out the baby with the
bathwater’ – miss the target of constitutional protection of basic values.
Sapir accordingly prefers a combination of the ‘constitution as a dialogue’ model, in
which the last word will be left to the elected branches, with the ‘constitution as a silenc-
ing agent’ model, which anchors in the constitution a number of detailed compromise
arrangements regarding issues which divide the public.39
A definite empirical difficulty in Sapir’s approach towards the first model is reflected
in his argument to the effect that, in a pluralistic society such as that which characterises
all of the Western countries, it is not possible to reach a consensus in determining the
basic values to be anchored in the constitution, and that, in any event, it is ‘not clear how
it is possible to overcome the barrier of non-consensus and to adopt a constitution’.40
And yet, the first model is the most common model in the Western world.41 Moreover,
even though the Israeli Basic Laws have not yet been incorporated into a constitution,
this model, or at least the essence thereof, is in force in Israel as well. As Sapir himself
admits, precisely the feasibility of adopting the other two models, which he supports, is
not high.42
However, the fundamental difficulty with all the three models which Sapir presents
does not lie in the feasibility of the models. The most problematic aspect has to do with
two assumptions. The first assumption is that the basic values actually constitute an
empty idea, and that, as Sapir himself puts it, ‘even if we agree that there are values of
supreme importance’,43 it is not possible to reach a consensus as to the nature of those
values. In any event, in the absence of a consensus as to which values are deserving of
constitutional protection, and certainly as to the manner in which they are to be pro-
tected under given circumstances, judicial review is left as an empty vessel, which fills up
with the political and ideological views held by the judges themselves (according to the
first model) or by the elected representatives of the public (according to the other two
models). The second assumption, which is also common to all three models, is that the
values of the constitution in general, and their implementation under given circum-
stances in particular, must be consensual. Both of these assumptions are problematic.
The first assumption underlies the criticism of the first model, according to which this
model involves democratic difficulty in detail in empowering non-elected judges to make
37
In Israel elections are held every four years.
38
Sapir (n 22) 190–96.
39
ibid 254–61.
40
ibid 174.
41
ibid 172.
42
ibid 262–63.
43
ibid 174.
political decisions, including invalidating the decisions of the people’s elected represen-
tatives. Within the framework of this model, and in order to cope with his difficulty,
John Hart Ely developed his famous theory whereby judicial review is only justified for
the purpose of safeguarding the democratic character of the political process.44 Likewise,
the minimalist approach, whereby the courts can only intervene in the decisions of the
other governmental branches in extreme cases, focuses on the function of the Court and
not on the determination of the constitutional constraints on the legislature and the
executive.
The focus on this assumption, to the effect that constitutional law is devoid of any
substantial content, and that it principally serves to provide power for judicial review,
also underlies the other two constitutional models of which Sapir writes. This is true of
the ‘constitution as a dialogue’ model. Here, the purpose of judicial review is to ensure a
dialogue between the various governmental branches and consequently provide a cata-
lyst for profound debate on constitutional questions. This also applies to the ‘constitu-
tion as a silencing agent’ model, the primary purpose of which is to prevent the Court
from interfering in areas where the silencing of acute public disputes is sought.
This line of thought, however, encompasses a double failure. First, it is itself based on
the values of democracy. But if there is no objective essence to basic values, reliance on
democratic arguments also becomes meaningless. Secondly, the assumption that values
are devoid of any objective content, and that the significance of the constitution is
approval for the authorities authorised to settle constitutional differences to dictate their
own values, undermines the rule of law in its entirety. In addition, it is not in line with
reality, in which great influence, which transcends decisions made by judges is attributed
to legal rules, including the rules of constitutional law. Indeed, legal rules in general, and
constitutional rules in particular, do not always have an agreed meaning, and disputes are
especially likely to arise with regard to the outcome of their application under specific
given circumstances. At times, a decision which concerns interpretation or application
entails a decision which has to do with values. No one can deny that such a decision is
likely to be affected, deliberately or unintentionally, by the values or even the personal
interests of those empowered to decide. This, however, does not mean that constitutional
law, or law in general, is not a substantial professional sphere, or that the application of
the constitution is always tantamount to the application of the individual wishes of the
holders of judicial authority – with no affinity whatsoever to substantive legal criteria.
Also problematic is the second assumption which is embodied in the three models
discussed by Sapir and the criticism thereof, according to which the consensus of at least
a large majority is an essential part of the nature of the constitution, and of the nature of
decisions on the constitutionality of specific legal rules. In this context as well, the very
fact of reliance on democratic values – which does not result from the consensual nature
of those values – makes it obvious that at least those values can, and even should, be
anchored in the constitution even without a consensus. In fact, in Israel it cannot be
assumed that an entire constitution would be accepted without a broad consensus, nor
should it be. At the same time, most of the existing Basic Laws were adopted with a clear
majority, and in any event, as set forth above, there is currently no impediment to find-
ing a majority in order to repeal them.
44
JH Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Harvard University Press,
1980).
54 Ariel L Bendor
Whichever way, the absence of a consensus, in principle, does not apply to the provi-
sions set forth in the Basic Laws, but rather, to the manner in which they are imple-
mented. This, though, is the entire essence of a constitution by the first model – to
protect the stability of the foundations of government and human rights against the will
and the interests of the majority, and especially against the will and the interests of a
fleeting majority. The absence of a consensus with regard to the implementation of the
constitution – and, more precisely, situations in which the will of the majority is over-
come by constitutional rules – does not constitute a constraint. They are the principal
reason, if not the entire reason, for a constitution.
The argument which holds that the purpose of the constitution and judicial review
pursuant to it is to cope with ‘states of intoxication’ is an arrogant one. It is rooted in the
assumption, the basis of which is unclear, that the elected representatives of the public
do not know what is good for the public or for most of it, and that the judges know bet-
ter (according to the first model), or that the judges should act as a catalyst – a sort of
whip – for more serious and profound discussion than the elected representatives would
hold (according to the second model).
D. The Suggested Approach
My approach is that the purpose of Israel’s constitution – and this is also the purpose of
most of the existing Basic Laws – is to confer a lofty normative status, which is not easily
vulnerable to harm by the majority, upon the basic values of Israel. These are its values
as a Jewish and democratic state, values which are rooted in Israel’s Declaration of
Independence.45 The fact that Israel is a national home for the Jewish people, its demo-
cratic regime and the ambition to achieve a stable system of government must constitute
the very centre of the Constitution of Israel. The existing Basic Laws do not completely
define those values. Nonetheless, the Basic Laws can – and were intended to – constitute
a basis for an entire constitution. The rules which are currently set forth in Basic Laws,
and, as we may reasonably expect, those which will be set forth in the future in a com-
plete constitution, have substantive content which enables both the branches of govern-
ment and the citizens and residents of the state to act ab initio in accordance with them,
at least on the assumption that they receive legal guidance, and settlement of differences
as to their application even after the fact.
I shall illustrate this by means of a few cases in which the Supreme Court invalidated
statutes by virtue of Basic Laws.
In four cases, the Supreme Court has invalidated statutes which governed the Knesset
elections, because these statutes were in contravention of the principal of equality in the
elections, as set forth in section 4 of Basic Law: The Knesset, and were not enacted with
the majority required by that section. In the Bergman decision46 a statute which con-
ferred financing by the state (for the purposes of the elections) only upon parties which
were represented in the Knesset at the time of enactment of the statute, and not to new
parties which were proposing candidates for the first time, was invalidated as not egali-
tarian. In the Agudat Derekh Eretz decision47 a statute was invalidated because it dis-
45
46
HCJ 98/69 Bergman v Minister of Finance 23(1) PD 693 [1969] (in Hebrew).
47
HCJ 246/81 Agudat Derekh Eretz v Broadcasting Authority 35(4) PD 1 [1981] (in Hebrew).
criminated against new lists and small lists of Knesset candidates, in favour of large lists,
in allocating time for radio and TV election propaganda broadcasts. In the Rubinstein v
Chairman of the Knesset decision48 a statute which retroactively applied new arrange-
ments concerning sanctions imposed upon Knesset lists which exceeded the maximum
permitted amount of expenses, so as to benefit lists which had exceeded the maximum
permitted amount in elections which preceded the enactment of the statute over lists
which had taken pains to act lawfully, was invalidated as not egalitarian. And in the
Laor decision49 a statute which had not been adopted by a majority of Knesset Members,
and which raised the amount of financing for the Knesset elections after the elections
had already taken place, was invalidated as not egalitarian.
In none of the above cases did the decision entail a substantive value component
which involved the identification of basic values. Basic Law: The Knesset determined
that Knesset elections must be egalitarian. This provision has a rather clear substantive
content, the interpretation of which does not embody any special difference of opinion
with regard to values. In light of the fact that ordinary statutes, which did not comply
with the requirement of equality, had not been enacted with the majority required in the
Basic Law, the statutes in question deserved to be invalidated.
In 10 cases the Court has invalidated statutes pursuant to Basic Law: Human Dignity
and Liberty or Basic Law: Freedom of Occupation. In the majority of those cases as well,
the decision did not necessitate any significant consideration of values. Thus, in the
Investment Managers Bureau decision50 the Supreme Court invalidated as unconstitu-
tional a section of a statute which governed the profession of investment consultancy
because the section in question imposed – as a prerequisite for continuing to practice the
profession – a sweeping obligation to examinations, which had not previously existed,
with regard to professionals who were already proficient in that field (unless they had
worked in it for more than seven years), who had acquired experience in it and had come
to rely on the fact that they could continue practicing their profession. The Court found
that the imposition of such a sweeping duty is disproportionately prejudicial to freedom
of occupation and is therefore in contravention of the Basic Law: Freedom of Occupation.
In the Zemach decision51 the Supreme Court invalidated as unconstitutional a section
of a statute which enabled soldiers suspected of having committed an offence to be
detained for four days before being brought before a judge. The Court ruled that a
detention period of four days exceeded the amount of time necessary to bring a detainee
before a judge, and that, accordingly, the restriction of the right of freedom from deten-
tion, as set forth in section 5 of the Basic Law: Human Dignity and Liberty, was in con-
travention of section 9 of the Basic Law, which stated that
[t]here shall be no restriction of rights under this Basic Law held by persons serving in the Israel
Defence Forces . . . nor shall such rights be subject to conditions, except by virtue of a statute
. . . and to an extent no greater than is required by the nature and character of the service.
The factual conclusion reached by the Supreme Court – that four days exceeded the
amount of time necessary to bring a detainee, even if that detainee is a soldier, before a
judge – did not necessitate any significant consideration of values.
48
HCJ 141/82 Rubinstein v Chairman of the Knesset 37(3) PD 141 [1983] (in Hebrew).
49
HCJ 142/89 Laor Movement v Speaker of the Knesset 44(3) PD 529 [1990] (in Hebrew).
50
Israel Investment Managers Association (n 16).
51
HCJ 6055/95 Zemach v Minister of Defence 53(5) PD 241 [1999] (in Hebrew).
56 Ariel L Bendor
Indeed, there can be no doubt that cases are possible in which a constitutional deci-
sion requires judgment with characteristics which are related to values, to which the
Basic Laws do not provide a response. An example of such a case is provided by the
Academic Center of Law and Business decision.52 In that case, the Supreme Court invali-
dated in a majority ruling a statute which enabled the operation of a prison by a private
concessionaire on a for-profit basis. The Court ruled that the granting of powers of
incarceration to business persons violated the inmates’ constitutional rights of human
dignity and liberty, in a manner which could not be justified, even if it were proved that
the statute would give rise to an improvement in the well-being of inmates who were
incarcerated in a private prison, relative to the well-being of inmates incarcerated in
public prisons.53 This decision, the grounds for which included considerations and con-
templations from the realm of political philosophy, is not self-evident and certainly does
not necessarily result from that set forth in Basic Law: Human Dignity and Liberty. In
fact, the minority judge, Justice Edmond Levy, believed that it was appropriate to allow
the operation of the private prison for a number of years, in order to determine whether
it would actually lead to an improvement in the well-being of its inmates.54
At the same time, the fact that the constitution, by its very nature, is characterised by
a certain degree of vagueness does not and cannot render it meaningless or valueless, and
does not and cannot justify denying the very existence of constitutional law as a realm of
legal knowledge. In fact, the Knesset, in its role as a constitutional assembly, can con-
sider whether it is indeed appropriate to determine different criteria for restrictions of
different constitutional rights, as in the German Constitution. Nonetheless, the possibil-
ity and the necessity of improving the wording of the Basic Laws – and this will probably
be done when the time comes for them to be incorporated into a complete constitution
– does not and cannot rule out the very value of the constitution, and of constitutional
law, in preserving the basic values of society.
When the Basic Laws are interpreted – whether by the Court or by any other legal
advisors or commentators – special attention must be paid to the fact that legal limita-
tions restrain the elected branches of government, including the legislative branch.
Accordingly, in cases of doubt, the question is whether it is justified for a certain matter
not to be subject to regulation within the framework of the ordinary political process.
Such a justification exists only when the imposition of constitutional limitations is
required in order to preserve the existence of Israel as a Jewish and democratic state, or
to preserve a stable system of government. This is true of the interpretation of the Basic
Laws and should also apply to the wording of a complete constitution.
There is also a doubt as to whether the constitution should properly include ‘silencing
rules’, as Sapir suggests. It is highly problematic to establish such rules within a rigid
constitution, insofar as they do not reflect the fundamental basic values of society. This
is because, notwithstanding the advantages pointed out by Sapir, it is difficult to find any
democratic justification for preventing the elected branches of government from freely
deliberating and deciding on matters which are not essentially constitutional by nature.
Indeed, excessive rigidity, including that of constitutional laws, is hazardous. It is
likely to immortalise errors which may occur in formulating the constitution, to lead to
the eternal imposition of archaic values, and even to enable arbitrariness on the part of
52
Academic Center of Law and Business (n 17).
53
ibid paras 33–54 of Court President Beinisch’s opinion.
54
ibid para 11 of Justice Levy’s opinion.
the entity in charge of interpreting, implementing and enforcing the constitution –

whether that entity is the Court or any other authority. Accordingly, favourable consid-
eration should be given to the possibility that, at least in the first years after the
establishment of the constitution, excessively burdensome requirements should not be
imposed on its amendment, and that it should include an ‘override clause’, in the spirit
of the existing section 8 of Basic Law: Freedom of Occupation, which will enable the
branch which will be authorised to amend the constitution, by means of the same proce-
dures and with at least the same majority as that which will be necessary for the approval
of an amendment, also to allow a temporary, local deviation from the provisions of the
constitution.55
V. INSTEAD OF A SUMMARY – A RETURN TO JUDICIAL REVIEW
In this chapter, I have criticised the replacement, which is frequent in judicial and aca-
demic discourse – in Israel and many other countries – of substantive constitutional law
by judicial review. Indeed, Thomas More’s Utopia56 is the only place which, although it
has legal rules, has no judges or other persons competent to settle disputes concerning
rights and duties. Israel is not Utopia. With no judges, there can be no law. In the absence
of constitutional judging, it is doubtful whether substantive constitutional law will be
upheld.
To whom should the task of judging be assigned? Constitutional law, perhaps more
than other branches of law, is directly concerned with ideology. The normative superi-
ority of the constitutional rules over other legal rules, including statutes which, as a
general rule, cannot deviate from the constitutional rules as interpreted and implemented
by the competent authority, gives rise to the suspicion that those in authority – deliber-
ately or unintentionally – will mix their own beliefs, and even their own personal or
status-related interests, into their rulings, with no simple possibility of correcting their
errors.
This is the source of the proposal for the democratization of constitutional law –
whether by giving the power to decide on constitutional questions to the legislative
branch itself – or by democratic election of the judges and restriction of their terms in
office. Nonetheless, the disadvantages of such a system outweigh the advantages,
because the essence of constitutional law is the imposition of restrictions on the exercise
of the majority’s desires and interests. Giving jurisdiction in constitutional matters to
the representatives of the majority, precisely because they represent the majority, will
frustrate the reason for the existence of constitutional law.
Indeed, judicial review exercised by professional judges who are not elected demo-
cratically, but rather, selected on the basis of their skills, qualifications and professional
experience, has its own disadvantages. At the same time, the fear that there will be cases
in which such judges administer justice according to their private values cannot compare
to the certainty that constitutional law, in its entirety, will be frustrated if jurisdiction in
constitutional matters is given to the elected representatives of the majority. The way of
55
To date, the authority to deviate from the provisions of Basic Law: Freedom of Occupation has been used
only once since 1994. See Meat and Meat Products Law, 5754-1994. Furthermore, in Canada – which, as set
forth above, has a similar provision – the provision in question has been used since 1985 only a few times.
56
T More, Utopia (New York, Norton Critical Edition, 1992).
58 Ariel L Bendor
coping with the certain amount of fear aroused by professional constitutional judging is
by establishing an override clause, similar to the clause which currently appears in
Israel’s Basic Law: Freedom of Occupation, which will enable the same majority as that
required for an amendment of the constitution to deliberately deviate from it for a single
political generation – the ordinary term in office of the Knesset. True, this solution is not
perfect. Nonetheless, it is the least of all evils. Only professional judicial review is capa-
ble of promoting – though perhaps not of accomplishing in their entirety – the purpose
of the Israeli Constitution.
5
Consensus, Dissensus, and
Constitutionalism
SANFORD LEVINSON*
I. THE CIRCUMSTANCES OF CONSTITUTIONAL FORMATION
O
N 23 DECEMBER 2012, a New York Times story reported on the significant
discontent in Egypt regarding the approval in a national referendum of a new
constitution for that country.1 One objection involved the relatively low turnout
of approximately 30 per cent of the electorate – though a significant majority of those
who voted supported the document – and the diminished legitimacy thought to attach to
the failure of a substantial majority even to participate. Far more important, for pur-
poses of this comment, is a statement by Hamdeen Sabahi, described as ‘a leftist and
former presidential candidate’. Describing the Constitution as illegitimate and calling on
people to organise in order to prevent its implementation, Mr Sabahi said, ‘This is a
Constitution that lacks the most important prerequisite for a constitution: consensus.
This means we can’t build our future based on this text at all’.
Why do I begin my own commentary on three essays on Israeli constitutionalism with
a reference to what is occurring in Israel’s neighbour? The answer lies not in any direct
comparison between the socio-political realities of Egypt and Israel, even as that might
be an interesting exercise in some respects, but, rather, in the weight given by Mr Sabahi
to the importance of ‘consensus’ and the suggestion that any constitution drafted in such
a way as to limit attainment of a consensus is necessarily doomed to fail. Indeed, he
seems to suggest that such a constitution deserves to fail. There is little doubt that the
Egyptian Constitution was drafted by persons beholden to the Muslim Brotherhood,
with relatively little attention being paid to those who do not share its convictions,
whether secularists, Christians, or more moderate Muslims. No doubt there are many
things to object to in the new document; it is important, though, that Mr Sabahi’s cri-
tique, at least as described in the New York Times article is directed less at its specific
deficiencies than at the fact that it manifests a lack of consensus. He does not address the
obvious point that a more secular liberal constitution (which I would greatly prefer)
* I am very grateful for the opportunity to have participated in the conference at which these papers were
initially delivered and for the hospitality provided by the organizers of the conference.
1
See D Kirkpatrick and M El Sheikh, ‘Egypt Opposition Gears Up After Constitution Passes’ New York
Times, 23 December 2012 www.nytimes.com/2012/12/24/world/middleeast/as-egypt-constitution-passes-new-
fights-lie-ahead.html?_r=0. For the Constitution see Constitution of the Arab Republic of Egypt, 26 December
2012.
60 Sanford Levinson
would almost certainly have not received the support of the Brotherhood and, therefore,
been just as lacking in whatever attributes define ‘consensus’ as the one they drafted.
One can well wonder how likely it is, as a matter of empirical fact, that constitutions
usually meet these attributes, at least if one rejects the circular proposition that ‘consen-
sus’ exists whenever disparate groups agree, for whatever reasons, to agreement to any
particular bargain, whether a constitution, peace treaty, or more mundane proposal.
After all, many such agreements reflect only the belief that acceptance of the deal, with
whatever anguish, is better than rejecting it. Beyond that, it may be very hard to discern
any real ‘consensus’ about the desirability of specific terms. Constitutions frequently
reflect the often dramatic circumstances – defeat in a catastrophic war, the end of a civil
war, the dissolution of empire, or, as in Egypt, the overthrow of a long-established
authoritarian ruler – that trigger a new play of political forces determined to create a
new order that conforms to their own visions of a desirable polity. The phenomenon of
‘imposed’ constitutions is scarcely unknown; that term could easily be used to describe
the two major constitutions that followed defeat in World War II of Germany and
Japan, both of which have, by most ordinary terms, been quite successful, especially if
one realises that most constitutions have a life span of less than 20 years.2 Less happily,
that term can also be applied, as Noah Feldman has argued, to the Iraqi Constitution.3
As I argue in my recent book Framed: America’s 51 Constitutions and the Crisis of
Governance,4 constitution-drafting is never truly a ‘Rawlsian process’, where authors
self-consciously sit behind a ‘veil of ignorance’ and purposely become ignorant of the
identity of actual winners and losers in any given decision about institutional structures,
assignments of rights, or the like, in order to draft a maximally ‘fair’ constitution. Nor is
a constitution the result of a seminar-like exercise in ‘deliberative democracy’ where
individuals respectfully engage one another as they express different points of view and
find themselves changing their minds in response to what they now see are ‘better’ argu-
ments and ultimately converge in consensual agreement. Instead, politically engaged
persons, very much embedded within one or another group within the wider society,
contend in a process of self-interested bargaining over the design of the system that they
will have to live with if the drafting process is successful. Indeed, if one looks at the
constitutional history of the country that I know best, the United States, one sees little
evidence of genuine ‘consensus’ in 1787 (and such ‘consensus’ as existed was no doubt
helped along by the fact that the losers in the great struggle over American secession
from the British Empire had fled to Canada, England, the Caribbean, or even India and,
therefore, did not have to be placated).
There was, of course, significant agreement, at least on the part of the elites who con-
vened in Philadelphia, that America’s ‘first Constitution’, the Articles of Confederation,
had created, in the memorable term of Alexander Hamilton, the ‘imbecility’ of American
government at the time, which lacked basic authority to tax, among many other notable
deficiencies.5 But there was scarcely broad agreement on the specifics of the system that
2
See T Ginsburg, Z Elkins, and J Melton, The Endurance of National Constitutions (Cambridge,
Cambridge University Press, 2009).
3
N Feldman, ‘Imposed Constitutionalism’ (2005) 37 Connecticut Law Review 857. My own comments on
Feldman’s essay, with which I am in substantial agreement, can be found in S Levinson, ‘“Imposed
Constitutionalism”: Some Reflections’ (2005) 37 Connecticut Law Review 921.
4
S Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance (Oxford, Oxford University
Press, 2012).
5
A Hamilton, ‘Federalist No 78’ in The Federalist Papers 86 (Cosimo Inc, 2006).
Consensus, Dissensus, and Constitutionalism 61
should replace it. This was seen in the closeness of the vote in several states – the most
dramatic being the 30–27 majority by which the Constitution was ratified in the New
York State Convention – and the fact that two states, North Carolina and Rhode Island,
had not yet ratified the Constitution when George Washington took office on 30 April
1789. We will never know, of course, whether the Constitution would have survived had
it been subjected, as in Egypt and most modern countries, to popular ratification instead
of the decidedly ‘filtered’ representative process of special conventions, as required by
Article VII of the Constitution; given the widespread perception in both Virginia and
New York that the delegates, at least at the time of election, were likely to be opposed to
ratification, one might surmise that a popular vote would have doomed the enterprise.
This, of course, was the fate of the initial draft of the treaty that many viewed as a de
facto constitution for the European Union, when popular referenda in France and the
Netherlands rejected the proposal. For whatever reason, its drafters required unanimous
consent of all of the Members of the European Union instead of mimicking what in some
ways was perhaps the most important single decision in Philadelphia, the stipulation in
Article VII that the new Constitution would become effective with the ratification by
only 9 of the 13 states. This provision unceremoniously rejected Article XIII of the
Articles of Confederation, which had required unanimous assent of all state legislatures
for any amendment and, therefore, one might argue, required a genuine ‘consensus’
before the Articles could be changed. This ‘anti-consensus’ Article VII not only elimi-
nated the veto that Rhode Island would almost certainly have exercised had unanimity
been required, but also rendered irrelevant the fact that North Carolina and Rhode
Island were missing from the United States when Washington took the helm.
II. COMPROMISES AS ANTECEDENTS TO CONSTITUTIONALISM
One must also attend to the fact that such agreement as existed regarding the text of the
Constitution that emerged from Philadelphia was purchased by several compromises,
two of which were absolutely crucial. The first was acquiescence by the larger states to
equal voting power of states in the United States Senate. Delaware, with roughly one-
seventeenth the population of Virginia, had, like Virginia, two senators. This was bit-
terly opposed by Virginia’s James Madison, among others. Though he is often called
‘the father of the Constitution’, he was decidedly unhappy with several features of his
ostensible child. Madison would go on to be one of the two principal authors of The
Federalist,6 the most important systematic defence of the Constitution, written precisely
to encourage uncertain delegates to support it. Yet, when writing of equal voting power,
in ‘Federalist 62’,7 Madison simply described it as a ‘lesser evil’, the greater evil being no
Constitution at all because of the opposition of small states. It was simply a price that
had to be paid. Not for one moment had Madison changed his mind about the basic
injustice of equal voting power in the Senate.
Partisans of the Constitution – and of the presumptive virtues of ‘compromise’ in poli-
tics – sometimes refer to the decision about equal representation as the Great Compromise.
No one uses capital letters, however, to refer to the second all-important compromise that
The Federalist Papers (Cosimo Inc, 2006).

6
J Madison, ‘Federalist No 62’ in The Federalist Papers 400 (Cosimo Inc, 2006).
7
62 Sanford Levinson
purchased the Constitution, which involved various accommodations with chattel slavery;
most important by far was the so-called three-fifths compromise. Although no one could
seriously claim that slaves participated in the system or that their masters were genuinely
committed to protecting the slaves’ interests – an argument that was often made with
regard to other excluded participants like women or children, thought to be ‘virtually rep-
resented’ by their fathers or husbands – the states nonetheless got to include slaves as part
of the basis for determining their representation in the House of Representatives, even if
each slave only counted as three-fifths of a whole person. (It should be clear, incidentally,
that the slave-owners would have been delighted to count each slave as the equivalent of
two whole persons, so long as they had no vote. It was the anti-slavery north that insisted
on limiting the ‘slavery bonus’ to three-fifths of a state’s slave population.) In any event,
this bonus enhanced the power of slave-holding states not only in the United States House
of Representatives, but also in the Electoral College mechanism that ultimately dictates
who shall become President of the United States. Each state, after all, receives a number of
electoral votes equal to the sum of its representatives plus the two senators. Were it not for
the bonus, for example, John Adams almost certainly would have received a second term
in 1800 instead of being defeated by the Virginian (and slave-owning) Thomas Jefferson.
Moreover, among the powers presidents receive is to nominate persons to serve on the
federal judiciary. Because of these basic structures established by the Philadelphia
Convention, the Supreme Court was resolutely pro-slavery until the Civil War.
Israeli philosopher Avishai Margalit has written an important book tellingly titled On
Compromise and Rotten Compromises,8 which describes the accommodations with
slavery as an example of the latter; it is defensible, if at all, only if the alternative were
truly some version of the heavens falling. Although Margalit, a notable member of the
‘peace camp’ within Israel, is a proponent of compromise, he does draw the line at ‘rot-
ten compromises’ that inflict inhumane treatment upon the losers. Whether the failure of
the United States to achieve unity behind a constitution, instead of fragmenting, for
example, into two or three separate countries, would constitute the heavens falling is
certainly open to doubt. Moreover, for what it is worth, the compromises ultimately did
not work: The United States was rent by a savage war between 1861–65 that killed
approximately 750,000 people, well more than two per cent of the total population at
the time. As American constitutional historian Mark Graber has demonstrated, the war
in many ways was caused not only by the fundamental cultural divide between ‘slave’
and ‘free’ states, but also by the constitutional structures that were established in 1787
ostensibly to control the divide.9
III. CONSTITUTIONS AND ‘PEOPLE OF FUNDAMENTALLY DIFFERING VIEWS’
Abraham Lincoln, quoting the Gospel of St Matthew, famously proclaimed that a ‘house
divided against itself cannot stand’. And, ironically or not, it was his election only sev-
eral years later that triggered secession and war. But what lesson do we learn from this
capsule history? Is it that successful constitutions do in fact require consensus or only
that there may be limits to the amount, and kinds, of disagreement that can be handled
8
A Margalit, On Compromise and Rotten Compromises (Princeton, Princeton University Press, 2009).
9
See, M Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge, Cambridge University
Press, 2006).
by constitutional mechanisms? Consider the famous statement of Justice Oliver Wendell

Holmes in his canonical dissent in Lochner v New York: ‘a constitution is not intended
to embody a particular economic theory, whether of paternalism and the organic rela-
tion of the citizen to the State or of laissez faire. It is made for people of fundamentally
differing views’ (emphasis added).10 One might well generalise beyond the issue of
economics. Holmes could presumably have written the same comment had the topic
been, for example, religion or practically any other important aspect of statecraft. Thus
anyone sympathetic to Holmes’s understanding of constitutional reality must be scepti-
cal about proclamations, like those of Mr Sabahi, that a necessary condition of an
acceptable constitution is that it instantiates a genuine consensus existing within the pol-
ity that it purports to structure. To be sure, one can be grateful if that is the case, but one
might also well believe that it will in fact rarely exist. Because many, perhaps even most,
constitutions are drafted within decidedly divided political orders, the aim of constitu-
tional drafters must therefore be to achieve a modus vivendi whereby conflicting groups,
who may with good reason barely trust one another with regard to some fundamental
issues, can live in some degree of genuine civil peace. To be sure, the drafters may also
aspire to creating a structure that will, over time, generate genuine loyalty to the new
political order and something that one can describe as a consensus about its central
values and purposes. But their first duty is to achieve some degree of civil peace.
It is readily understandable, therefore, that one finds an outstanding collection of
essays entitled Constitutional Design for Divided Societies11 or, to bring the discussion
even closer to home – and to the three essays under review – Israeli political scientist
Hanna Lerner’s extremely illuminating book Making Constitutions in Deeply Divided
Societies,12 which focused on India, Ireland, and Israel. Needless to say, there is a vital
difference between the first two and Israel inasmuch as India and Ireland both do have
canonical written constitutions, whereas Israel is one of almost literally a handful of
countries in the modern world lacking such a document, and it is the only country estab-
lished since World War II in that category. Thus, whatever explains Israel’s outlier sta-
tus, it cannot be merely the fact that there is insufficient ‘consensus’ within the country.
One might well expect somewhat different kinds of constitutions in more rather than
less homogeneous politics, but this is quite different from believing that pluralism
condemns the constitutionalist project at the outset or even that it dictates particular
behaviour by judges who may have a duty to enforce a constitution.
IV. CAN JUDGES AND COURTS NECESSARILY SERVE AS GUARDIANS

OF A CONSTITUTIONAL ORDER?
Perhaps the key question both for the constitution-drafter and outside analysts is decid-
ing what one regards as the central function(s) of a constitution and the circumstances
under which one can achieve at least some element of the goods attached to possessing a
written constitution. So, turning to the essays under review, I want to suggest that it may
be a fundamental error to assume that the most important function of a constitution is
Lochner v New York 198 US 45, 75–76 (1905).

10
S Choudhry (ed), Constitutional Design for Divided Societies (Oxford, Oxford University Press, 2008).
11
12
H Lerner, Making Constitutions in Deeply Divided Societies (Cambridge, Cambridge University Press,
2011).
64 Sanford Levinson
to announce (and to protect) some set of substantive values that ostensibly define the
polity. Especially in ‘divided societies’ the task is to construct a set of political inst
itutions – sometimes called ‘frameworks of governance’ – that are empowered to make
necessary decisions capable of meeting the pressing needs of the moment and, one hopes,
thereafter. Quite often, as was the case in the United States in 1787 and in Israel through-
out its six-decade history, these exigencies will involve various forms of ‘national secur
ity’. One cannot, for example, read The Federalist without realizing that the proponents
of the new Constitution feared a variety of threats to the fragile new nation, some ema-
nating from European powers, some from American Indian tribes, many of whom had,
with good reason, supported the British in their attempt to prevent American secession
from His Majesty’s empire. It is only a slight exaggeration to suggest that behind many
of the arguments for adoption of the new Constitution was the Hobbesian command
that government exists primarily to provide security, with all else being secondary.
But, of course, especially since World War II and the justified fear of claims to unlim-
ited power by the state, notions of constitutionalism have emphasised ever more the
protection of various rights; these are often proclaimed, in universalistic language, to be
‘human rights’ and not, for example, simply the set of rights protections adopted, per-
haps for idiosyncratic reasons, by a particular polity. To focus on ‘national security’ as
the basic aim of government is, almost necessarily, to privilege governmental power
against the rights of its citizens (and, even more, those who are outside, for whatever
reason, the official political community). For good reason, this monotonic conception of
a constitution is rejected by almost all modern commentators; instead, as already sug-
gested, emphasis is placed instead on the role of constitutions in protecting ‘basic values’
against governmental overreach.13 These values may be immanent within a given society
or ‘universal’, thought to define the predicates of just rule in all times and places. But,
from this perspective, constitutions are devices for instantiating values, whether imma-
nent within a given society or ‘universal’, establishing the predicates of just rule in all
times and places, and all institutions and the particular decisions they make are to be
judged by reference to the degree that they effectively protect the values to which the
polity is deemed committed.
Almost inevitably, as revealed in all three of the papers by Gideon Sapir,14 Ariel
Bendor,15 and Alon Harel,16 discussions of value protection lead quickly to discussions of
the specific role of courts in protecting those values against incursions by the legislature/
parliament when passing statutes or by the executive branch when implementing them.
After all, one of the most stunning results of World War II, in effect, was the rejection by
European countries of the norm, going back to the French Revolution, against ‘judicial
review’ of the legitimacy of legislation. Instead, partly under the influence of Hans
Kelsen, partly, no doubt, because of the model provided by the American system of con-
stitutionalism, the countries of Europe – and almost all of the rest of the world as well
– have accepted the legitimacy of both national and transnational courts that have often
proved more than willing to exercise such powers. One can, for example, scarcely speak
any longer of ‘parliamentary sovereignty’ as the central feature of British government
13
See, eg the first of three rationales for constitutions discussed by Gideon Sapir in his interesting chapter in
this volume.
14
ibid.
15
A Bendor’s chapter in this volume.
16
A Harel’s chapter in this volume.
given the embeddedness of Great Britain within the various European treaties and, per-
haps most importantly, the European Convention on Human Rights,17 not to mention
more recent domestic legislation empowering British courts to enforce European law
directly. There is, of course, genuine debate about the specific roles of the judiciary, but
some degree of ‘rule by judges’ seems to be widely accepted. Critics of judicial review,
such as Jeremy Waldron, are distinct outliers. It may be relevant that Waldron is origi-
nally from New Zealand, perhaps the one remaining country in the world that lacks not
only a canonical constitution but has also, in its ‘constitution-like’ New Zealand Bill of
Rights Act of 1990, explicitly rejected the notion of judicial enforcement against Acts of
Parliament that arguably contravene the Act.
Still, it is obvious that the role of the judiciary continues to be a topic of sharp, often
acrimonious, controversy within Israel. Perhaps this can simply be explained by the
notorious proclivities for intellectual conflict often attributed to Jews in general. It is,
however, difficult to ignore the relevance of the remarkable career and influence of for-
mer Israeli Supreme Court President Aharon Barak regarding the Court over which he
presided. Though he was building on practices and precedents established by his
predecessors,18 it was Barak who announced, wisely or not, that the passage of certain
Basic Laws in the early 1990s, and their subsequent implementation by the Court,
affected nothing less than a ‘constitutional revolution’, the safeguarding of which was
the special responsibility of the Court. Part of the way it exercised this responsibility was
to establish among the world’s most liberal ‘standing’ laws. Whether or not, as is said to
be the case in India, a suit can be initiated simply by a disgruntled citizen’s sending in a
postcard claiming that government is violating legal norms, it is clear that the Israeli
High Court is stunningly more accepting of jurisdiction and willing to assert justiciabil-
ity than are, say, national courts within the United States, which often seem far more
eager to find ways to prevent access to courts than to enforce legal duties against the
state.
Barak may well have been the most widely known – and, by many, admired – judge in
the entire world because of the mixture of his judicial opinions, his extra-judicial writ-
ings defending his strong view of the judiciary and of purposive interpretation, and his
attendance at gatherings of judges throughout the world, such as the annual conference
sponsored by the Yale Law School, where he has taught for many years. But as we know
from another Gospel passage, this one from Mark, ‘prophets’ are often ‘without hon-
our’ in their own countries, and an enduring memory of the initial conference at which
these papers were presented was watching Barak, who loyally attended all sessions, lis-
ten to what was often scathing criticism of his work and legacy. An important question
is whether Barak merits criticism in terms of his legal philosophy, a necessarily abstract
question, or, instead, whether one can simply believe that he was sometimes unwise,
pragmatically speaking, in choosing to exercise judicial power on certain occasions. My
own mentor, Robert McCloskey, who published in 1960 a famous short book, The
American Supreme Court,19 emphasised not only that one cannot understand American
political history without paying some attention to the roles played by judicial decisions
17
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on
Human Rights, as amended) (ECHR).
18
See, eg P Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (California,
University of California Press, 1997).
19
R McCloskey, The American Supreme Court 5th edn (Chicago, University of Chicago Press, 1960, 2010).
66 Sanford Levinson
and, therefore, the judges who made them, but also that the Court was effective only if
it remained reasonably close to the centre of American politics. It could gently prod the
country toward its preferred vision or just as gently push back against what it deemed
overreaching, but if it deviated too far from mainstream opinion or, more to the point,
the views of political elites exercising power, then the Court itself would be threatened
in one way or another.
Almost necessarily, an emphasis on the judiciary – especially, as in most places
throughout the world, where the judiciary is substantially ‘independent’ from ordinary
political mechanisms of accountability20 – highlights the question of whether sufficient
support exists within a specific society for given ‘basic values’ that are thought to under-
lie a constitution and that in turn provide the basis for a judicial decision. It should be
clear, incidentally, that ‘sufficient support’ is quite different from ‘consensus’, inasmuch
as it certainly allows the possibility that significant parts of the population, perhaps on
occasion even a majority, will be sceptical of these values or, as likely, of the specific
interpretations offered by the judiciary. In any event, all three of the essays seem to agree
that Israel is so ‘pluralistic’ with regard to ‘basic values’ that the role played by the con-
temporary Israeli Supreme Court is problematic.
Nor is it enough to embrace a notion of a constitution as encouraging ‘dialogue’ about
‘basic values’, because one must still suggest ways by which a given dialogue will come
to an end, given the necessity to render a decision in real time. Who, practically speak-
ing, and not only in terms of legal theory, will have the last word in any given dialogue?
Sapir notes the dialogical potential of the ‘Notwithstanding Clause’ within the Canadian
Charter of Rights and Freedoms, but he notes as well its practical failure. The reason is
that popular culture views a decision by Parliament taking issue with a judicial decision
not as the assertion of a legitimate, albeit conflicting, point of view, but rather as the
‘overriding’ of the constitution by politicians whose views are not to be accorded the
same respect as judges.
Sapir is scarcely a champion of the judicial vision articulated by Justice Barak, which
he ultimately views as paying insufficient attention to the pluralism of Israeli society,
which means that ‘Even if we agree that there are values of supreme importance, in a
pluralistic society a consensus does not exist on the identity of those values’. Bendor,
who champions ‘professional’ over ‘political’ judgment, nonetheless is extremely wary
of judges who, according to him, rule on the basis of ideology rather than the strict con-
fines of the law. Thus he also endorses the ability of the Knesset (Israeli Parliament) to
‘override’ judicial decisions, though, interestingly enough, only for the life of the Knesset
itself.
Harel, interestingly, even while defending judicial review as intrinsically necessary to
protect the basic right of an individual to be heard when registering a complaint about
treatment by the government, resolutely refuses to privilege the substantive determina-
tions of the court. That is, he does not believe that the judges have any particular exper-
tise in discerning the basic values of the polity, assuming they exist at all, or that their
20
Interestingly enough, the principal exception is the United States, though at the level of state, rather than
national, government. Most judges in the United States are directly elected or subject to so-called ‘retention
elections’ several years after their initial appointments. As a result, some analysts of state judiciaries reject the
practical importance of the so-called ‘counter-majoritarian difficulty’ in favour of a quite different ‘majoritar-
ian difficulty’ generated by over-acquiescence to majoritarian decisions by state legislatures or executives. For
further discussion of this point, see Levinson (n 4) chs 12 and 13.
interpretations of such values as may exist will necessarily be better than those of the
Knesset or administrators. Consequently, he must explain why a judicial hearing is nec-
essary instead of legislative ones when deciding whether or not to pass a statute in the
first place or, presumably, administrative ones when deciding on specific implementa-
tion schemes. I confess I am not convinced by his argument, though largely on the prag-
matic grounds that it is just too expensive and time-consuming to expect that the
judiciary will in fact be open to hear each and every complaint that disgruntled individu-
als might have about how the government is treating them.
After all, almost all legislation is necessarily both ‘under-’ and ‘over-inclusive’, which
means by definition that it is not ‘perfectly tailored’ to address only those particular
instances meriting regulation. To adopt the terms of American constitutional law, if the
regulation in question involves a ‘fundamental’ right or interest, one might well expect
more than a ‘minimal’ fit between means and ends and the inevitable spillovers that this
standard allows; otherwise, one must realise that legislation is often (usually?) going to
be somewhat sloppy and imprecise. One can argue whether or not dogs should be
allowed in restaurants, but it seems altogether implausible, in a society that does pro-
hibit dogs (save for ‘guide dogs’), to expect a judge to take scarce time and energy to
resolve a complaint that a particular dog is sufficiently gentle and quiet to pose no prob-
lem for other diners. Even with regard to ‘fundamental values’, though, we return to the
problem of selecting them out from among the far wider class of ‘values’ instantiated in
any social order and determining whether judges possess any special expertise of judges
either in defining or implementing them.
V. THE IMPORTANCE OF INSTITUTIONS AS WELL AS RIGHTS

(OR JUDGES ENFORCING RIGHTS)
My own view is that such discussions, however valuable, are extremely unlikely ever to
be resolved. Even if one agrees that it is a mistake to place excessive confidence in the
ability of judges to provide wise counsel, it is equally problematic to accept an under-
standing of ‘democracy’ that allows legislatures or administrative agencies to do just
whatever they want, especially with regard to the rights and interests of beleaguered
minority groups that can scarcely look to ordinary politics as the venue to vindicate their
claims to be treated with dignity and justice. I also increasingly believe that the almost
exclusive focus on the role of the judiciary in interpreting inevitably ambiguous aspects
of constitutions or ‘Basic Laws’ has led us to ignore the importance of a constitution’s
role in structuring basic political institutions. In my new book Framed,21 I sharply distin-
guish between what I term, referring to the United States Constitution, ‘the Constitution
of Settlement’ and the ‘Constitution of Conversation’. The latter is familiar to all law-
yers; it consists of the ambiguous or ‘indeterminate’ parts of the text – think, for exam-
ple, of the injunction that no state deny any person of ‘equal protection of the laws’ – that,
almost by definition, provides no clear answers and, instead, invites seemingly endless
conversation about the meaning or interpretation of the terms in question. These con-
versations are both ‘first order’ – what do the terms mean? – and ‘second order’ – which
institution, if any, should get the ‘last word’ in assigning meaning?
21
Above n 4.
68 Sanford Levinson
But all constitutions very much include ‘Constitutions of Settlement’, which can be
defined in large part by clauses using language that, practically speaking, does not per-
mit genuine debates over meaning even if one can certainly debate the wisdom of a par-
ticular constitutional text. These clauses answer absolutely essential questions such as
who is legally authorised to exercise powers, how such power-holders are selected, how
many are there, and for how long they serve their terms. To take an American example,
there is a single president, who serves a fixed four-year term, with no eligibility for re-
election beyond a second term. There is, for example, no possibility of a ‘vote of no-
confidence’ to remove a (non-criminal) president from office, nor can an unusually gifted
chief executive be given a third term even if, for example, the United States is involved
in international conflicts whose resolution might be easier under the leadership of the
incumbent. There are, of course, many other examples that could be given of the
Constitution of Settlement.
My major point is that legal academics, whether in the United States or elsewhere,
rarely discuss these aspects of constitutions, largely, I suspect, because they do not
involve the skill-set that has become constitutive for most law professors. That is, our
forte is increasingly the development of ‘theories of legal interpretation’ and, concomi-
tantly, discussion of the particular role of judges and courts in giving meaning to the
‘Constitution of Conversation’. We are often very good at doing this, but the price we
have paid, I am afraid, is failing to pay adequate attention to the issues instantiated in
Constitutions of Settlement. Whatever the importance is of determining how to inter-
pret controversial aspects of the Basic Laws, one might well think, with regard to the
future of Israel, that the organization of the Knesset is at least as important. To offer
only one, but vital, example, the Israeli system of proportional representation, with its
extraordinarily low threshold for representation in the Knesset, has notoriously contrib-
uted to the fragmentation of Israeli politics and the ability of very small parties, in effect,
to extort special treatment in return for providing key votes to maintain a given coali-
tion in power. As a matter of raw fact, it is this feature of Israeli constitutionalism,
rather than any ‘constitutional’ or ‘quasi-constitutional’ language in statutes, that
assures that ultra-Orthodox Jewish political parties exercise remarkable influence over
Israeli politics. One of the central lessons taught by James Madison is that constitutional
provisions ostensibly promising the protection of certain rights are often mere ‘parch-
ment barriers’, in contrast to hard-and-fast institutional features (such as the three-fifths
compromise or equal voting power in the Senate) that will determine, as a practical mat-
ter, who can exercise decisive control in reacting to divisive political questions.
I am, of course, well aware that many distinguished Israelis, including law professors,
have concerned themselves with redesigning the ‘Basic Laws’ of Israeli political institu-
tions, but I fear that, overall, these proposals get far less attention than do the latest
attacks on ‘judicial overreaching’ or the merits of adopting an ‘override proposal’ within
the Israeli legal system. Perhaps institutional design is thought to be less interesting than
conversations about ‘basic rights’, even though any given institutional design will neces-
sarily instantiate various normative views about governance. Or, as is certainly the case
in the United States, perhaps it is simply that institutional reform appears to be a hope-
less project, so that offering or discussing specific proposals is thought to be a simply
quixotic enterprise. In the United States, this can be readily justified by reference to what
is probably the worst single feature of the United States Constitution, the ‘Amending
Clause’ of Article V, which in effect makes the United States Constitution the most dif-
ficult to amend of all constitutions in the world today. But, of course, Israelis can offer
no such excuse, inasmuch as I assume the Knesset retains great power to redesign basic
institutions if only it has the political will to do so.
Indeed, even with regard to the issue of the judiciary and its role, it is obvious that one
important power that the Knesset has exercised, entirely independent of any ‘override’
powers, is simply to increase the membership of the Court and therefore allow a certain
degree of ‘court-packing’ through the appointment of judges deemed more compatible
to the views of those doing the appointment. And this also necessarily involves diminish-
ing the remarkable past influence enjoyed by the sitting members of the Court, particu-
larly Justice Barak, in selecting newcomers to the Court. To be sure, Israel was in no
way unique in privileging a genuine degree of institutional autonomy by the Court not
only when issuing its decisions, but also in choosing its members. The Indian Supreme
Court is said to exercise similar autonomy with regard to selection of judges, and this
may be true in Denmark as well.
Moreover, it is worth noting that Justice Barak was in effect forced off the bench by
the simple fact that Israel, like almost all countries around the world – the United States
is the most glaring exception – has rejected what might be called ‘full-life tenure’ of
appointment. Most countries place stringent term limits of somewhere between 10 and
15 years; others, like Israel, require retirement at 70. I personally think that either is pref-
erable to the American national practice, which allowed, for example, Justice John Paul
Stevens to serve for 34 years, retiring only after he turned 90. An interesting question
facing any constitutional designer is whether answers to these questions should them-
selves be ‘constitutionalised’ or whether it should be left up to the ordinary political
institutions to change their minds. The United States Constitution, for example, is
widely interpreted as requiring life tenure, but it in no way indicates exactly how many
justices there shall be in the Supreme Court. Over American history, the number has
ranged from 6 to 10, though for the past 150 years or so it has been 9, and one suspects
that most Americans believe this is part of our ‘unwritten constitution’.
In any event, for all of the genuine stimulation and illumination provided by the con-
ference on Israeli constitutionalism, including these three papers, I was disappointed by
the relative lack of explicitly institutional discussion, including, of course, the ways that
given institutional designs inevitably reflect various normative views. One of the unfor-
tunate similarities between contemporary American and Israeli politics is the widespread
view that the political systems of both countries are dysfunctional. Thomas L Friedman
described the American system (and would, no doubt, describe the Israeli system as well)
as ‘pathological’.22 Whatever one thinks of the United States or Israeli Supreme Courts,
or of their current or past judges, I strongly suspect that they have relatively little to do
with the pathologies inflicting both countries. In both countries, the dilemma is whether
the operating political systems can respond adequately to the challenges facing them.
Perhaps this is not a conventional ‘legal’ question. But it should be of immense interest
to anyone interested in the capacity of a constitutional order to function effectively and
to generate the genuine loyalty (and affection) of its citizenry, especially if one cannot
rely on an underlying ‘consensus’ that might otherwise bind a country together.
22
See, eg the discussion in Levinson (n 4) 8–9.
Part 2
Models of Judicial Review in

6
Majestic Constitutionalism?
The Notwithstanding Mechanism in Israel
TSVI KAHANA
I. INTRODUCTION: THE CHICKEN AND THE KITCHEN
I
N 1916, SHOLEM Aleichem, a famous Yiddish writer, published a book called
Motl, the Cantor’s Son. In that book, he adopted the perspective of a young boy in
order to describe the individual and collective story of the massive Jewish migration
from Eastern Europe to America in the nineteenth and early twentieth centuries. A major
theme in the family’s absorption into America is being exposed to English and learning
to speak it. The character who has the hardest time adjusting to the new world and to
New York City is Motl’s mother, who misses her dead husband, her friends in the vil-
lage, and the vanishing Eastern European Jewish existence. As time goes on, however,
she begins to adjust. Motl tells us: ‘Half of what she says is in American by now. She just
gets everything backwards. Instead of cooking a tshikn in the kitshn, she cooks the kit-
shn in the tshikn’.1
In this chapter, I argue that Motl’s mother is not alone; the State of Israel is travelling
with her. As it has been learning to speak the language of America – the language of
constitutional rights – Israel has mixed the chicken and the kitchen. This began in 1994,
when it experienced a constitutional crisis concerning one dish – a frozen meat dish –
and instead of dealing with that dish alone, it imported into its constitutional structure a
whole kitchen – a mechanism to allow for deviations from constitutional rights.
Specifically, the Government wanted to ensure that the legislation banning the importa-
tion of non-kosher frozen meat would remain in force notwithstanding its potential vio-
lation of the right to freedom of occupation, guaranteed in Basic Law: Freedom of
Occupation (BLO).2 However, instead of amending the BLO to create an exception for
frozen meat importation, Israel created a mechanism which allows the Knesset (Israeli
Parliament) to declare that any act of their choosing shall apply notwithstanding the
BLO. I refer to this mechanism, created by section 8 of the BLO, the ‘Notwithstanding
Mechanism’ (NM), and I refer to its use as a ‘constitutional deviation’.3
1
S Aleichem, The Letters of Menakhem-Mendl and Sheyne-Sheyndl and Motl, The Contor’s Son (H Halkin
tr, New Haven, Yale University Press, 2002) 310.
2
Basic Law: Freedom of Occupation, 5752-1992, SH No 1387, p 114, repealed and replaced by Basic Law:
Freedom of Occupation, 5754-1994, SH No 1454, p 90.
3
The headline of s 8 reads ‘The Validity of a Deviating Statute’ (my translation, TK).
74 Tsvi Kahana
Since 1994, there has been some ‘kitchen’ talk in Israel; that is, talk about the idea of
including an NM in a prospective Israeli Constitution. My main goal in this chapter is to
advocate for focusing on the chickens as they come. In other words, I argue that as long
as Israel’s Constitution – the Basic Laws – can be amended without a super-majority,
deviations from them should be effected via constitutional amendment, not through an
NM.
In addition to this substantive argument, I advance a methodological point concern-
ing comparitivism. I suggest that in the matter of an Israeli NM, the exercises of consti-
tutional comparison and borrowing has had constraining, rather than enriching, effects.
The adoption of the NM in Israel was inspired by the existence of an NM in Canada.4
Since 1994, the debate about the NM in Israel has been focused on whether Israel should
follow the Canadian route in a future Israeli constitutional Bill of Rights. Little consid-
eration has been given to the route of a constitutional amendment, an option not avail-
able in Canada. In Canada, the NM is based on what I called ‘the empowered legislature’
model. The Charter empowers legislatures to have the final word on constitutional
issues, in order to avoid the familiar problems associated with judicial hegemony
brought about by traditional Constitutions. But Israel does not have a traditional
Constitution to start with. It has non-entrenched Basic Laws, most of which can be
amended by an ordinary majority vote of the Knesset. In other words, the Knesset is
already empowered to respond to or to pre-empt problematic judicial decisions.5 I dem-
onstrate that the NM was introduced in Israel not in order to empower the Knesset, but
in order to avoid addressing in the Basic Laws the matter of kashrut (the requirement
that food be kosher), which seemed an ‘inappropriate’ subject matter for the Constitution
to address. I therefore believe that the Israeli NM is based on ‘the majestic Constitution’
model. Under this model, even when an institution is empowered to amend the
Constitution, it should not do so with regard to matters which are too specific or which
do not befit the grandeur of the Constitution. The NM allows the Knesset to amend the
BLO without reference to specific, non-majestic, matters.6
In part II of this chapter, I introduce the familiar story of the Canadian NM and the
less familiar story of the Israeli NM. In part III, I argue that even if Constitutions should
speak in general terms as a general matter, when a specific issue is of significance to the
polity, the polity should not shy away from including this issue in the Constitution. In
part IV, I ask whether, in addition to the notion of the majestic Constitution, there may
be other reasons to deviate from constitutional rights through an NM rather than a
constitutional amendment. I conclude that, quite to the contrary, there are additional
reasons to prefer constitutional amendment as the method of deviation.
4
Canadian Charter of Rights and Freedoms, s 33.
5
The fact that the Knesset may do this under its constituent power, and not under its legislative power, is
important in theory but irrelevant to the question of the division of power between the Knesset and the
Supreme Court.
6
The expression ‘majestic Constitution’ is inspired by Robert Jackson J of the US Supreme Court who talks of
‘the majestic generalities of Fourteenth Amendment’ in Fay v New York 332 US 261, 282 (1947). In this chapter, I
assume that a provision is majestic when it is general and is not majestic when it is not general. There may be
theories about other ‘majestic’ requirements of the Constitution beyond generality, but they are beyond my inter-
est here.
The Notwithstanding Mechanism in Israel 75
II. THE NOTWITHSTANDING MECHANISM: CANADA AND ISRAEL
A. The Empowered Legislature Model
Section 33 of the Charter gives Canadian legislatures the power to make laws notwith-
standing most Charter rights. This provision was added to the Charter in order to break
a deadlock in difficult federal–provincial negotiations surrounding the Patriation of the
Constitution in Canada in 1982. While the Federal Government and two provinces were
interested in a Bill of Rights that would provide for judicial supremacy, eight provinces
objected to such a Bill altogether, fearing it would curtail provincial power too greatly.7
The compromise was a Bill of Rights with an NM.8
As the years went by a growing number of scholars, in Canada and worldwide, began to
view the Charter not as a second-best solution, but as quite optimal. Their argument is
that a constitutional Bill of Rights with an NM was preferable to either no Bill of Rights at
all or an American-style, judicial supremacy-based Bill of Rights. An NM-bearing Bill of
Rights would allow for a constitutional partnership between courts and legislatures, which
would benefit the polity in two ways. First, it would allow for more constitutional dia-
logue – popular and institutional – than either having a Bill of Rights or having a tradi-
tional Bill of Rights, due to the fact that it would allow both courts and legislatures to have
their separate views on constitutional matters aired in the public sphere.9 Second, it would
allow the polity to benefit from the unique institutional capacities of both the courts and
the legislatures, courts being the experts on rights issues and individual claims, and legisla-
tures being the experts on policy issues.10
In Israel, the story is a bit more complicated. To begin with, we must distinguish
between discussions about the desirability of including a hypothetical NM in a
Constitution, if and when Israel chooses to adopt one, and discussions about the NM that
was adopted in Israel in 1994. The former are very similar to the Canadian discussions;
unfortunately, there simply appear to have been very little discussions of the latter
variety.
Proposals for the inclusion of an NM in a future Israeli Constitution (or Constitution
equivalent, namely, entrenched Basic Laws) were made before and after the ‘Constitutional
Revolution’ of 199211 and increasingly in the last decade. The discussion surrounding these
proposals followed the contours of the Canadian discussion, with reference being made to
both the compromise argument and the partnership argument.
In the Israeli context, the compromise argument was that the adoption of an NM in
Israel could serve to break the deadlock in constitution-making that has been present
since the birth of the State. The deadlock is partially caused by disagreement between
7
See R Romanow, J Whyte and H Leeson, Canada . . . Notwithstanding: The Making of the Constitution,
1976–82 (Toronto, Carswell/Methuen, 1984).
8
See H Leeson, ‘Section 33, The Notwithstanding Clause: A Paper Tiger’ (2000) 6 IRPP Choices: Courts and
Legislatures 3, 6–14.
9
See, eg S Gardbaum, ‘The New Commonwealth Constitutionalism’ (2001) 49 American Journal of
Comparative Law 707, 747; M Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights
in Comparative Constitutional Law (Princeton, Princeton University Press, 2008).
10
See, eg CP Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism,
2nd edn (Oxford, Oxford University Press, 2001) 194–95.
11
See n 20 below.
76 Tsvi Kahana
supporters of American-style constitutionalism with judicial supremacy and those who

object to any type of constitutional judicial review. Assuming that both camps wish to
put the discussion behind them and agree on a Constitution, an NM-bearing Bill of
Rights is a compromise that each party would be able to live with.12
The partnership argument also closely followed the Canadian arguments, with an
Israeli addition: in Israel, society is divided and there is no consensus either on the
importance of constitutional rights or on their content. Therefore, it is even more appro-
priate in Israel to allow for institutional partnership and popular dialogue concerning
constitutional values.13
Opposition for the NM was also cast in comparative terms. An obvious risk of leav-
ing the last word on constitutional rights to the legislature is the spectre of tyranny of the
majority (or, to use the popular euphemism, legislative blind spots). In Canada, so far,
the NM has not been used to inflict abhorrent rights violations.14 However, some Israelis
worry that ‘It is not Canada here’15 and that given the Knesset’s record on treatment of
minorities, it should not be trusted with the last word on constitutional rights.
The discussion about an NM for Israel assumes that Israel will eventually have a consti-
tutional Bill of Rights, which would be accomplished either by adopting such a Bill or by
entrenching the existing Basic Laws. While a discussion of a future Israeli Bill of Rights is
important and interesting, a proper analysis of constitutional design must pay heed not
only to ideal design, but also to current, idiosyncratic, non-ideal constitutional appara-
tuses, such as Israel’s. In this chapter, I focus on the particular NM that was adopted in
Israel. As I shall explain, this mechanism is based not on the empowered legislative model
reflected in the Canadian experience, but on a majestic Constitution model.
B. Israel: The Majestic Constitution Model
i. The ‘Constitutional Revolution’ of 1992

Like many developments in the world of Constitutions, the introduction of the NM to
Israel was based not on thorough discussion and analysis, but on political expediencies
and creative draftsmanship.
Until 1992, Israel did not have a constitutional document for rights protection. While
it did have several Basic Laws in place, these deal not with rights but with governmental
structure16 and are not entrenched – they can be amended or repealed by legislative
majorities.17 In fact, most of the Basic Laws do not even require an absolute majority in
12
See, eg F Raday, ‘The Notwithstanding Clause as a Substitute for a Complete Lack of Judicial Review’
(2005) HEMDAT – Council for Freedom of Science, Religion and Culture in Israel huka.gov.il/wiki/material/
data/H14-12-2005_10-35-30_piskat.doc (in Hebrew).
13
See, eg G Sapir, Constitutional Revolution in Israel – Past, Present and Future (University of Haifa Press
& Yearbooks, 2010) 212–19.
14
See T Kahana, ‘What Makes For a Good Use of the Notwithstanding Mechanism’ (2004) 23 Supreme
Court Law Review (2d) 191, 210.
15
See E Gross, ‘It’s Not Canada Here’, Haaretz, 28 February 2007 www.haaretz.com/print-edition/opinion/
it-s-not-canada-here-1.214222.
16
S 4 of Basic Law: The Knesset is the single exception to this rule, since it prescribes an equality provision
in the specific field of elections.
17
The only two exceptions are the provisions providing that the legislature must be re-elected every four
years and that the provisions of Basic Law: The Knesset cannot be changed by emergency regulations (ss 8, 44
and 45).
the 120-seat Knesset for amendment or repeal. Since the Knesset has no quorum require-
ment, a 2: 1 vote in the plenum is sufficient.18
In March 1992, the Knesset created the two new Basic Laws, the BLO and Basic Law:
Human Dignity and Liberty (BLH), in what was later termed the ‘Constitutional
Revolution’.19 The BLO protects the right to freedom of occupation; the BLH enumer-
ates several rights including the right to ‘human dignity’, which has later been inter-
preted by the Israeli Supreme Court as encompassing several additional political and
social rights.20
Both of the new Basic Laws adopt the Canadian structure of rights protection: they
include limitation clauses that permit the rights to be infringed under certain condi-
tions.21 Unlike the Canadian Charter however, neither Basic Law is entrenched. The
BLO requires only an absolute majority of Knesset Members (ie 61 Members) for its
amendment, while the BLH does not even require that, being subject to amendment or
repeal by an ordinary vote in the legislature (ie a majority of the deputies present at the
time of voting, which may be fewer than 61). Even with the introduction of the new
Basic Laws, then, majority rule still reigns in Israel in the field of rights. Originally, nei-
ther Basic Law included an NM. However, as I explain in the next section, in 1994, a
constitutional problem concerning the importation of non-kosher meat into Israel
prompted the addition of an NM to the BLO.
ii. The Addition of the NM to the BLO in 1994

Prior to 1994 the importation of frozen meat into Israel was undertaken almost solely by
the State. The rationale for this restriction was that private entities should not be
entrusted with the performance of essential services. Since Israel had to maintain a con-
stant state of readiness for war, its designation of essential services was unusually broad
and came to encompass many activities, such as the importation of frozen meat.22 While
this near-monopoly by the State was not based on religious grounds, it yielded a situa-
tion where most of the imported meat was kosher.23 In 1992, the Government decided to
privatise the meat market and declared its intention to change the governing regulations
accordingly.24 Some religious communities in Israel, including the religious political par-
ties, opposed this change, which they feared would result in non-kosher meat flooding
into the country.25 The Government of Prime Minister Yitzhak Rabin, eager to retain
18
Until 2003, the Basic Laws were ruled by the Supreme Court to not have constitutional supremacy. That is,
any future Act that was inconsistent with them would be deemed to have implicitly amended them, and hence
would always be constitutional (provided that it met the absolute majority requirement if the relevant Basic
Law required that). In 2003 the Supreme Court ruled that Basic Laws do enjoy constitutional supremacy. See
HC 212/03 Herut v Chairman of the Central Elections Committee 57(1) PD 750 [2003] (in Hebrew).
19
See A Barak, ‘The Constitutional Revolution: Protected Human Rights’ (1992–93) 1 Law and Government
9 (in Hebrew).
20
Among these are, most notably, freedom of expression (CA 105/92 Reem Engineers Contractors v Nazareth-
Illit 47(5) PD 189, 201 [1993] (in Hebrew)) and equality (HCJ 5394/92 Hupert v Yad Vashem 48(3) PD 353, 362
[1994] (in Hebrew).
21
S 8 of the BLH and s 4 of the BLO.
22
See HCJ 3872/93 Mitral v Prime Minister and Minister of Religious Affairs 47(5) PD 485, 492 [1993] (in
Hebrew).
23
The Government did allow private entities to import non-kosher meat under a quota regime, but most of
the imported meat was kosher.
24
ibid.
25
ibid 495.
78 Tsvi Kahana
the support of religious political parties while pursuing the peace process (leading to and
following the Oslo Accord), abandoned its plan to privatise the industry. However,
following a petition by Mitral Inc, a meat importer, the Supreme Court ordered the
Government to proceed with the privatization plan and to enact the relevant regulation
within four months.26 In response, the Government decided to postpone the privatiza-
tion indefinitely and explained that it planned to settle the issue at a later point in time
through legislation (the original plan had been to implement the plan by regulation).27
This move provoked another petition by Mitral, which prompted the Supreme Court
to nullify the Government’s decision to postpone privatization of the meat importation
on the grounds that it was ‘unreasonable’ since it was based on the desire to impose
kashrut on those who did not observe it.28 Concerning the Government’s plan to deal
with the issue by way of legislation, the Court added in obiter that even primary legisla-
tion imposing kashrut on those who did not observe it would be unconstitutional if
enacted. The Court reasoned that limits on importation are an infringement on the free-
dom of occupation, and limiting this freedom for the sake of religious coercion did not
constitute a ‘proper purpose’, as required by the limitation clause of the BLO.
This is the point where the Canadian and Israeli stories diverge. In Canada, no legis-
lature alone can amend the Charter.29 If a court renders a statute unconstitutional due to
a Charter violation, legislatures would have no recourse but for the NM, which empow-
ers legislatures to act upon their constitutional disagreements with the courts. In
contrast, in Israel the Knesset is already empowered to do this: even if the Court strikes
down a piece of legislation because it is inconsistent with a Basic Law, the Knesset may
amend the Basic Law.
Despite this difference, the Government did not choose to amend the Basic Law to
implement its plan; rather, it chose to add an NM to the Basic Law in order to secure the
validity of legislation that would result in limiting the importation of non-kosher meat
to Israel. On 9 March 1994, the Knesset passed this new version of the BLO including
section 8, which created the NM.30 Six days later, it passed the Meat and Meat Products
Law (hereinafter: Meat Law),31 a law that prohibited the importation of non-kosher
meat into Israel. As required by the BLO, the Meat Law stated that it was valid notwith-
standing it.
Why was the NM chosen as the best way to deal with the meat importation issue,
rather than a specific constitutional amendment? There is no explicit answer to this
question in the debates of the Knesset’s plenum prior to the passing of the new version of
the BLO. A hint appears in the explanatory notes to the Bill, which states that sometimes
there is a need to address ‘a unique matter which does not necessarily belong in a Basic
Law’ (emphasis added).32 The Minister of Justice used the same terminology again while
26
HCJ 2015/91, 1775/93 (unpublished). Cited in Mitral (n 22) 493.
27
Mitral (n 22) 497.
28
ibid 500, 504, 506–09, 515.
29
The general amending formula requires resolution by the Federal Parliament as well as seven provinces in
which at least 50% of the population reside. See the Constitution Act 1982, Sch B to the Canada Act 1982 (UK),
1982, Pt V (Can).
30
BLO. The need for a new version of the BLO was unrelated to the matter of the NM. It was mostly due to
the fact that both the BLO and the BLH were tasked as private bills and did not undergo the usual process and
analysis in the Ministry of Justice and other relevant ministries.
31
Meat and Meat Products Law, 5752-1994 (in Hebrew).
32
Draft Bill Amending Basic Law: Freedom of Occupation, 1993, HH 128.
introducing the Bill.33 In committee, government lawyers reiterated this view, explaining
that the addition of the NM to the BLO was ‘the only way’ to deal with the non-kosher
meat issue.34
These statements by officials are the first indication that the Israeli NM is based on
the majestic Constitution model, namely on a desire to ensure that the emerging Israeli
Constitution had a certain grandeur and dignity. The second indication can be found in
an important difference between the Canadian and Israeli NMs. Throughout the legisla-
tive process of the BLO amendment that created the NM, it was the Canadian precedent
that endowed the idea of an NM with credibility. Reference to Canada was made by
government lawyers, by the Minister of Justice, by other Knesset Members who spoke
on the Bill, and by legal experts appearing before the Knesset’s Constitution, Law, and
Justice Committee.35 Given that, one would expect the Israeli and the Canadian NMs to
be similar. They are indeed similar in two important respects: each of them allows for:
(1) a temporary deviation from a constitutional right; (2) via express declaration of the
legislature. However, as the chart below demonstrates, the two mechanisms differ on
perhaps the most crucial feature of an NM – the type of majority required for its
invocation.
Amending the
Enacting ordinary
constitutional Invoking the NM
legislation
document
Very difficult (Super-
Easy Easy
Canada majority as per
(Ordinary majority) (Ordinary majority)
amending formulas)
Somewhat difficult Somewhat difficult Easy
Israel
(Absolute majority)† (Absolute majority) (Ordinary majority)
Table: Invoking the NM versus amending the Constitutional Document in Canada and in Israel
†
This pertains only to the BLO. As mentioned above, the BLH does not require even that for its
change, which can be done by an ordinary majority of the Knesset Members.
In Canada, it is very difficult to amend the Constitution. However, invoking the NM

is easy and such invocations are akin to ordinary legislation. By contrast, in Israel invok-
ing the NM is somewhat difficult; indeed, it is just as difficult as it is to amend the
Constitution. If the point of the Israeli NM was to empower the Knesset to deviate from
constitutional rights, why make invoking it as difficult as making a constitutional
amendment? Invoking the NM under such a regime takes on more of the hue and gravi-
tas of a constitutional amendment than of a legislative deviation. This notion sits better
with the majestic Constitution model than with the empowered legislature model.
33
DK 133 (1994) 4329 (in Hebrew).
34
Protocol No 161 of the Constitution, Law and Justice Committee, 13th Knesset, 3rd Sess, 39–49 (28
February 1994) (in Hebrew). This statement was made by the Vice Attorney General (Legislation), Shlomo
Guberman, who was in charge of drafting the new version of the BLO. In conversation with the author (on 21
December 1994) Guberman reiterated this view and added that ‘It is not nice to write in a Basic Law: “The leg
is kosher and the tail is not kosher”’.
35
See, eg the speech of the Minister of Justice, n 33 above.
80 Tsvi Kahana
iii. The 1998 Amendments to the BLO

It may be objected that since constitutional amendments do not normally expire,
whereas the NM limits the duration of any invocation of it, the Israeli NM, like its
Canadian inspiration, is about empowering legislatures and not about creating specific
constitutional amendments.
The response to this objection is that the temporary nature of the Meat Law turned
out to be a sham. Under section 8 of the BLO, NM invocations were to expire four years
after their commencement, so the Meat Law, enacted in 1994, was set to expire in 1998.
However, before it expired, section 8 was amended to exempt from expiry any Acts that
had been passed in the first year after the commencement of the BLO. Since the Meat
Law was passed a few hours after the BLO, the exemption applied to it, and the Meat
Law ceased to be temporary.
Looking back at this story now, we can confidently say that what happened was not
that the Knesset temporarily deviated from the BLO in order to temporarily ensure that
the Meat Law was constitutional. Rather, what happened is that an amendment to the
BLO took place, which made the Meat Law constitutional permanently. It happened in
two stages: initially, the Meat Law was enacted as a temporary deviation from the BLO;
then, the temporary became permanent. The BLO was thus effectively amended to allow
the ban on the importation of non-kosher meat to Israel.
Most strikingly, all this was done without using the words ‘kosher’ or ‘meat’ in the
text of the BLO at any point. Consider the wording of section 8(b) of the BLO, added in
1998 to make the Meat Law permanent:
(a) A provision of a law that violates freedom of occupation shall be of effect, even though not
in accordance with Section 4, if it has been included in a law passed by a majority of the
Members of the Knesset, which expressly states that it shall be of effect, notwithstanding
the provisions of this Basic Law; such law shall expire four years from its commencement
unless a shorter duration has been stated therein;
(b) The stipulation concerning expiry, as per sub-Section (a), shall not apply to a Law passed
within one year from the commencement of this Law.
The wording of sub-section (b) is, for a lack of a better word, comical. It reads like a
general provision referring to ‘a Law’ passed within the first year; yet, whoever drafted
that provision knew that there was only one Law passed within that year – the Meat
Law. The legal consequences of sub-section (b) would have been exactly identical if
instead of one year, it referred to one week, one month, or indeed any time period longer
than six days, given that only one piece of legislation has invoked the NM. Furthermore,
sub-section (b) was enacted in 1998, but since the new version of the BLO was enacted in
1994, the sub-section referred to the period of March 1994 to March 1995. Unless we
find a way to go back in time, it was (and is) obviously impossible that another Act
would be captured by the exception. But if the only point of the amendment was to
make the Meat Law permanent, why, again, was it not explicitly mentioned by name?
There is no answer to this question in the Knesset debates or in the debates of the
Constitution, Law, and Justice Committee. A more honest drafting would simply state
that the expiry stipulation did not apply to the Meat Law, but the drafters of the Basic
Law apparently wished to avoid referring to the Meat Law or to kashrut in the
Constitution, probably thinking that such reference would be unrefined and improper in
the constitutional text. If you read the text of section 8(b) on its face, a nice and neat
language of principle is apparent: there is a general rule, and a general exception, phrased
in general terms. Only if you study it more carefully will you discover that this general
provision has the very specific purpose of invalidating the expiry of only the Meat Law.
The 1994 choice to introduce a whole NM instead of simply addressing the matter of
kosher meat in the text of the Basic Law may be understandable given that theoretically,
other matters may necessitate the NM as well. However, the 1998 amendment’s use of
the euphemism ‘a Law passed within one year from the commencement of this Law’ as
opposed to simply mentioning the Meat Law could have no other explanation but a
desire to avoid mentioning the words ‘kosher’ or ‘meat’ or ‘Meat Law’ in the Basic Law.
The emphasis, then, was not on the temporary nature of the deviation – which did not
persist. The emphasis was on avoiding calling a spade a spade and creating a constitu-
tional amendment concerning meat importation, without subtracting from the grand
language of the Constitution. This is the majestic Constitution model.
Is there something to the notion of the majestic Constitution beyond niceties and cer-
emonial language? I turn to this question in the next section.
III. THE MAJESTIC CONSTITUTION
What would have been wrong with mentioning ‘kosher meat’ in a constitutional docu-
ment? The problem with a specific amendment could not be that kashrut issues were of
little significance, given that the very justification given by the supporters of the Meat
Law for its enactment was its importance to a Jewish State. To be sure, the issue of
kashrut in the life of Israel is no less important than the issue of the minimum age of the
US President, which is inscribed in the US Constitution and in the lives of the American
people.36 Why not include a matter of such importance to the Israeli polity in the nation’s
constitutional documents? In this part, I consider two possible reasons for keeping the
Constitution majestic and general: to allow the Constitution to survive over time and
generations, and to gain from the discursive and educational effects of constitutional
cleanliness. Ultimately, I find them both unconvincing.
A. Stability
Constitutions are made to be stable, and thus should reflect a broad consensus within
the polity. The more specific a Constitution is, the less likely it reflects broad consensus.
If a Constitution does not maintain consensus, it will not maintain stability as various
societal forces will attempt to erode it. Therefore, prudent constitution-making requires
generalities.
The response to this argument is that while it is true that all other things being equal,
a general provision is more likely to attract consensus than a specific provision, other
factors affect consensus as well. Two such factors are the intensity of the sentiment felt
by a certain segment of the polity about a certain specific issue, and the way in which this
intensity affects the polity generally. When a certain segment of the polity feels strongly
about a specific constitutional matter and the rest of the polity is interested in appeasing
that segment, that matter should be included in the Constitution.
36
See the US Constitution, art II, §1.
82 Tsvi Kahana
The Meat Law story exemplifies this notion. Let us consider this story from the per-
spective of consensus, and contrast what happened in the first stage of the story with
what happened in the second stage. In the first stage, in 1994, there was consensus both
about the importance of freedom of occupation generally and about the need to ensure
that most meat imported into Israel was kosher. However, the lawmakers presumably
assumed that by a later point in time, say in 2004, only the consensus about the general
and hence majestic issue (freedom of occupation) would remain whereas the consensus
about the specific issue (importance of kashrut) might dissolve. Given such a possibility,
had the matter of kosher meat been included in the Basic Law, by 2004 one of its provi-
sions could have become obsolete. The better choice was therefore to create an NM and
leave the topic of kosher meat out of the Constitution, so that in 2004 all of its provisions
would still reflect public consensus. In the second stage, however, it turned out that
nothing had changed. There was still consensus about the importance of the specific
detail of kashrut, and consequently, in 1998, as we saw above, the Knesset made the
Meat Law permanent. But this is not surprising since in 1994, there was actually no rea-
son to assume that the portion of Israelis who cared about kashrut as a symbol of Jewish
identity would decrease, that the intensity of their sentiment would decrease, or that
their relative power in society would decrease. In other words, there was no reason to
assume that the consensus about the matter of kashrut would change after 1994.37
B. Discourse and Education
Arguably, there is nothing wrong with ceremonial, subtle, and clean language. In fact, is
it not better that the Israeli political actors – or legal political actors – are at least
ashamed of admitting that they are manipulating the Constitution for the sake of spe-
cific issues? Is it not sometimes okay to ‘fake it until you make it’? Initially, the Israeli
Constitution may only speak in a clean language and hide the stains: the Constitution
would only mention the majestic idea of freedom of occupation, keeping the Meat Law
within the parallel (and concealed) constitutional order created by the NM. However,
eventually, after generations of Israelis discuss the Constitution, immerse in its ceremo-
nial language, and internalise its ideas, everyone will understand that freedom of occu-
pation is more important than the matter of meat importation, and the need for the
latter will disappear altogether. This didactic and educational process will not occur if
the meat issue is included in the text of the Constitution and the practice of deviating
from the Constitution will continue.
Moreover, Constitutions are internationally visible. A country eager to be a member
of the liberal democratic family wants its Constitution to look ‘normal’ and maximally
respectful of rights. If such a country seeks to make a policy that is potentially antitheti-
cal to rights, it would be wiser not to declare that policy explicitly in the Constitution.
37
As a matter of fact, if any consensus has changed at all since then, it is the consensus regarding the consti-
tutional right to freedom of occupation. In the summer of 2011, many Israelis took to the streets to express
their dismay with the Government’s economic policy and called for an increased Government role in social
justice. Freedom of occupation has been traditionally viewed as an impediment to regulation and, as such, it
may not currently reflect significant consensus in Israel. For an empirical argument that constitutions actually
should be specific in order to be stable see Tom Ginsburg, ‘Constitutional Specificity, Unwritten Understandings
and Constitutional Agreement’ in A Sajo and R Uitz (eds) Constitutional Topography: Values and Constitutions
(The Hague, Eleven International Publishing, 2010) 69.
I offer two responses to this argument. First, while there are obvious advantages to
pretending, the strategy also has drawbacks. The message parlayed by the constitutional
array created by the BLO and the Meat Law is this:
Indeed, we deviate from your constitutional rights. However, you cannot see it in the
Constitution, which is ‘nice’, general, majestic. You have to delve into the nitty-gritty of legis-
lation. You have to look not only at the Basic Law itself, but at its annex, its back yard, its
hidden allies.
Put differently, the master, the BLO, is dignified and respectful; the servant, legislation
created by the NM, does the dirty work. Such a message threatens to foster a cynical atti-
tude about the Constitution, and in the long run may work to alienate and disconnect the
polity from the idea of constitutional rights, and to contribute to an overall distrust in and
apathy about politics and political participation.
Second, many of the Knesset Members who supported the Meat Law were proud of it,
and were adamant that the law did not violate the BLO. They believed that they were
not overriding the BLO itself, but instead overriding the Supreme Court’s interpretation
of the Basic Law. For them, rather than imposing the eating of kosher food on those who
do not observe kashrut, the Meat Law worked to declare and celebrate the Jewish iden-
tity of the State of Israel by declaring the importance of kashrut.38 One may not share
this perspective, but if a legislator did indeed believe that the court misinterpreted the
Basic Law and that a correction to the mistake was needed, why would that legislator
view the correction as a deviation from the Basic Law? On the contrary, such a legislator
would instead insist that this correction should find its place in the text of the Basic Law,
as the Basic Law’s true meaning. The educational message that this legislator would
want to send is not that the Constitution is ‘majestic’, but to the contrary that it proudly
protects the Jewish identity of the State through promoting kashrut. For this legislator,
the didactic and educational consideration favours specific amendments, not majestic
generalities.
IV. THE NOTWITHSTANDING MECHANISM AND

CONSTITUTIONAL AMENDMENT
A. Introduction
In the previous part I argued that the majestic Constitution ideal is not a reason to prefer
specific constitutional amendment to the employment of the NM. In this section I argue
that there are good reasons to prefer constitutional amendment as the appropriate
Knesset response to judicial decisions that the Knesset does not agree with.
Consider this scenario, the first part of which has actually taken place. In February
2012, the Supreme Court ruled that exempting ultra-Orthodox Jews from military ser-
vice is unconstitutional.39 It held that this exemption infringed upon the BLH-protected
equality rights of Israelis who must serve in the army, and that this infringement could
38
See, eg the speech of MK Itzhak Levi in Protocol No 161 of the Constitution, Law and Justice Committee,
13th Knesset, 3rd Sess, 17 (28 February 1994) (in Hebrew): ‘We are allowed to disagree with the Court . . . we
believe that [kashrut] is a proper purpose’ (my translation, TK).
39
HCJ 6298/07 Ressler v Knesset (21 February 2012), Nevo Legal Database (by subscription) (in Hebrew).
84 Tsvi Kahana
not be saved under the limitation clause. While it is acceptable that some religious indi-
viduals may be exempted from service in order to allow them to fulfill their religious
duty to study the Torah, exempting all of them is disproportionate and therefore uncon-
stitutional. The Court gave the Knesset until 1 August 2012 to come up with an alter
native arrangement that would respect the religious needs of ultra-Orthodox Jews
while not disproportionately infringing the equality rights of others. As of October 2012,
lawmakers were not able to arrive at an agreement concerning an alternative policy.
Now we arrive at the hypothetical part. Suppose that while the Knesset cannot arrive
at an alternative formula, its Members believe that the arrangement struck down by the
court is actually a sound arrangement and there is a consensus among them to override
the Court decision. Two options are available: the first is to amend the BLH to explicitly
state that it does not apply to the exemption of religious individuals from the military
service. The second is to deal with this crisis in the exact same way that the Knesset dealt
with the meat importation crises: to amend the BLH in order to add an NM to it, and
then to re-enact the exemption via the new NM. Which route should the Knesset take in
this situation?
I proceed on the assumption that there is a general commitment within the Israeli pol-
ity to rights protection. The specific definition of rights and the appropriate limits on
them may be a subject of fierce disagreement, but if a system does not have a basic com-
mitment to human rights as a general ideal, it ceases to be a democracy and is therefore
beyond my analysis. One of the disagreements in Israel about the matter of rights regards
the appropriate division of labour between courts and legislatures. On one end of the
spectrum are those who object to any type of constitutional entrenchment of rights. For
them, the democratic process in Israel can be trusted to produce an appropriate balance
between the rights of individuals and minorities and those of the majority.40 On the
other end of the spectrum are those who support judicial supremacy. According to their
view, in order to effectively protect rights in Israel, a final decision concerning these
rights should reside with judges and be beyond the reach of the majority.41 Along this
spectrum are various forms of what Mark Tushnet has called ‘weak-form judicial
review’42 that advocate the incorporation, in varying measure, of both the legislature and
the courts in protecting the supremacy of rights vis-à-vis legislation.43
If one believes that legislatures alone ought to be responsible for rights protection in
Israel, then the question whether to amend the BLH or use an NM in order to effect
constitutional deviations is a question of choosing the lesser of two evils. For them, leg-
islatures should address the merits of rights and should not worry about constitutional
texts or the Supreme Court. Given that, they would probably prefer to allow legislatures
to deviate from rights in legislation, since such an option brings the system closer to a
regime of parliamentary sovereignty. However, if one subscribes to one of the other
approaches, namely supporting either judicial supremacy or constitutional supremacy
enforced by legislatures, by courts, or some partnership thereof, then the question
becomes slightly more complex. In the paragraphs that follow I argue that according to
these approaches there are two reasons to prefer constitutional amendments as the mode
40
See, eg R Gavizon, The Constitutional Revolution – Reality or a Self-Fulfilling Prophecy? (Jerusalem, The
Israel Democracy Institute, 1998) (in Hebrew).
41
See, eg Raday (n 12).
42
See Tushnet (n 9).
43
See, eg Sapir (n 13) 265.
of constitutional deviation: the nature of constitutional deviation (section B), and the
desire to reduce the number of deviations (section C). I also explain why we need not be
concerned with the risk of increasing the number of constitutional amendments (section
D), and conclude by arguing that constitutional deviations should not necessarily be
temporary (section E).
B. The Nature of Constitutional Deviation
Constitutional deviations are more properly carried out by the constituent assembly
than by the legislative assembly. Therefore, it is more appropriate for them to be effected
in a Basic Law, thus expressing the will of the Knesset as a constituent assembly, than by
a statute, invoking the NM, which expresses the will of the Knesset as a legislative
assembly.
My starting point is again a commitment to rights. This commitment does not depend
upon any institutional setting. Different types of constitutional systems execute this
commitment through different types of institutions. However, the actual right – includ-
ing the right to only be deprived of a right based on certain types of considerations –
must remain intact if we are to be seriously committed to rights. The deviation that is
possible through the NM cannot therefore be a deviation from the right itself. Rather, it
can only be a deviation from the right’s being a constitutional right – that is, a deviation
from the specific way in which a particular constitutional structure secures the right.
Part of what the constitutional structure in Israel provides for is judicial protection of
rights. That protection, and only that protection, may be taken away via the NM.44
To clarify, my argument is not that rights are absolute. There may be some circum-
stances under which the State will not be obliged to respect rights.45 However, those
reasons and circumstances are not dependent on the views of the constituent assembly or
the legislature, but rather on principles of political morality. There is a range of legit
imate options within political morality for the protection of rights, and the Constitution’s
formula may be one of them. A legislature may deviate from the specific way in which
the Constitution protects rights, but the policy created by the constitutional deviation
must still be within the limits of what is allowed by political morality.
It follows that when the deviating institution decides to deviate from the right in order
to either prevent judicial review or override it, the deviator must do so on the basis of
one of three reasons:
1. The deviator believes that the prescription of the text of the Constitution is not appro-
priate with regards to a certain statute. It wishes to replace that prescription with
another prescription, which would still be respectful of rights but based on a different
formula than the Constitution’s. Since the court interprets the Constitution, its inter-
pretation ceases to be relevant.
44
In previous work, Alon Harel and I argued that judicial review is based on a right to a hearing and thus
should not be deviated from. See A Harel and T Kahana, ‘The Easy Core Case for Judicial Review’ (2010)
2 Journal of Legal Analysis 227, 238–52. I leave for another day the question of whether it is legitimate for the
State to deviate from this right in some circumstances.
45
According to some theorists of rights, the State must always protect rights. When there is a good reason to
violate a right it means that the interest we thought was a right is not actually a right. These theorists would
word the above proposition as follows: ‘there may be some circumstances under which the State will not be
obliged to respect important individual interests, often protected in a constitutional Bill of Rights’.
86 Tsvi Kahana
2. The deviator keeps the prescription of the Constitution intact, but is so certain about
its interpretation of the Constitution that it is comfortable substituting it for the
court’s interpretation (actual interpretation in case of a responsive deviation, pre-
dicted interpretation in the case of a pre-emptive deviation).
3. The deviator keeps the prescription of the Constitution intact, but believes that the
question of whether the relevant statute is constitutional is not justiciable; that is, it is
not a question the court can answer.
Option three is actually not independent, as it only tells us that the matter cannot be
resolved (by judicial review). It does not tell us how the issue is to be resolved. To com-
plete option three, we have to ask what happens due to the non-justiciability. The devia-
tor then has two options. First, it could decide that it wishes to answer the question
based on its own, non-judicial interpretation of the Constitution. In that case, we are
back at option two. Alternatively, the deviator could decide to replace the regular con-
stitutional prescription with a different prescription, in which case we are back at option
one. Options one and two are therefore the only ones we need to address.
If the deviation is carried out based on option one, then the decision to deviate resem-
bles a constitutional amendment. Before the deviation, the constitutional prescription
was applicable in every case; the deviation makes the constitutional text inapplicable to
a certain case. Under option one, the deviation occurs on the same normative level of the
constitutional document, and therefore should be done by the institution that created
that document – the constituent assembly.
If the deviation is based on option two, in that the deviating institution rather than the
court interprets the Constitution, then the deviation could be effected by the legislature.
While the court is more experienced in interpretation, constitutional matters are often
less technical and more ambiguous than other matters of legal interpretation, and an
informed Knesset Member may be just as capable of interpreting the Constitution as a
Supreme Court judge. However, constitutional interpretation by legislatures raises an
array of theoretical and practical problems, the most obvious of which is that legislators
have a greater incentive to cater to the political preferences of their constituents than to
engage in an intellectual process of interpretation. In other words, while deviation by the
legislature is conceivable under option two, deviation by the constituent assembly is still
preferable here.
Of course, it is possible for the constituent assembly to delegate the power to deviate
from the Constitution to the legislature. It could do so, for example, when it is not read-
ily available, as is the case in Canada. There, the constituent assembly comprises various
arrangements of various legislatures, according to the different formulas. In such a sys-
tem, if we were to require constitutional deviations to originate from the constituent
assembly they would never occur. But the fact that Canada opted for this less-than-ideal
possibility, having no other choice, does not mean that Israel should also opt for this
second-best option. As long as Israel does not have an amending formula that makes it
more difficult for the constituent assembly to amend Basic Laws by requiring super-
majority for their amendment, there is no reason why Israel should have an NM.
C. The Desire to Keep the Number of Deviations Down
Requiring a constitutional amendment when the Knesset wishes to deviate from a con-
stitutional right may decrease the number of deviations. The reason for this is the addi-
tional visibility that a deviation from a right has, if included in the constitutional text.
While the Israeli public probably does not distinguish between amending the BLH and
invoking the NM, it is likely that opposition parties, the media, foreign observers, and
civil society groups will make rhetorical use of the fact that the deviation was done in the
Basic Law itself. It is of course hard to quantify how much of the political cost will be
created by the policy itself, how much will be created because of the overriding (or pre-
empting) of a Supreme Court decision, and how much will be created because of the
symbolic act of amending the BLH. However, it seems to me that at least some of the
cost is due to the last reason.46
D. Too Many Constitutional Amendments?
It might be objected that amending the BLH when a deviation is necessary would, over
time, unnecessarily increase the number of BLH amendments. If the Knesset chooses to
make the amendment temporary, then each time the Knesset renews the amendment, it
would become yet another amendment. A multitude of amendments, or frequent amend-
ments, would – so the argument goes – trivialise the Basic Laws. That trivialization, in
turn, would have two implications. First, the political cost of amending a Basic Law
would decrease. An erosion of the cost would in turn bring about more amendments,
and so on. The second implication of the trivialization of the Basic Laws concerns the
public. If the public views the Basic Laws as just as impermanent and amendable as
ordinary legislation, it will feel less attached to the Basic Laws and thus in the long run
develop apathy towards the idea of Israel’s (written or unwritten) Constitution.
There are three responses to this argument. First the number of situations, such as the
one arising in my hypothetical scenario, will not be large. Second, this argument assumes
that the number of cases in which the Knesset will respond to Supreme Court decisions
by either an amendment or the use of the NM remains constant, and the only relevant
question is which method of response should be used. However, as I have argued, requir-
ing a constitutional amendment in order to create a deviation would make deviations
more costly. Thus, there would be at least some cases in which the Knesset would not
deviate if that required a constitutional amendment. The case of the exemption from
military service for the ultra-Orthodox discussed above47 is a case in point. As of October
2012, no politician in Israel has proposed to amend the BLH to allow for this exemption.
Arguably, had an NM mechanism existed in the BLH, a proposal would have been made
to use it. Third, the argument concerning public attachment assumes that the public
46
This argument is valid if someone believes, as I do, that in Israel the risk of overuse of the NM outweighs
the risk of underuse of the mechanism, that is, the risk of an overly confident Knesset outweighs the risk of an
overly activist Supreme Court. If one is more concerned about the latter, then one would want to ensure that
constitutional deviations are not too difficult to execute, and therefore may prefer that they are done via an
NM and not via constitutional amendment.
47
See n 39 above and accompanying text.
88 Tsvi Kahana
actually distinguishes between Basic Laws and ordinary legislation so that its attach-
ment to and respect for the Basic Law would decrease in the face of an excessive number
of amendments. However, this assumption is unsubstantiated. My own impression is
that when the public is interested in a constitutional issue, it is because of the subject
matter or because of the clashes between the various branches of government. It is not
the normative level of instrument involved that interests the public. Indeed, it is not clear
that the Israeli public is attached to the Basic Laws to the same degree that either the
American public is attached to the US Constitution, or the Canadian public to the
Charter.48
This point requires clarification vis-à-vis the earlier point concerning the cost of
amending a Basic Law. If the public does not distinguish between Basic Laws and ordin
ary legislation, why is it more costly for the Knesset to amend Basic Laws? There are two
answers to this question. First, the reason why it may be more politically costly to amend
the Basic Law than to use the NM is not based only on polity sentiment. While legisla-
tors’ main incentive is to be re-elected, other factors may affect the cost of their deci-
sions. Among those are media coverage, international responses, the view of scholars in
the fields, the view of fellow legislators, and so on. Second, there is a difference between
the concrete notion of objecting to the amendment of a Basic Law and the more abstract
notion of ‘attachment’ to the Constitution. In the short term, the public may view devia-
tion from a Basic Law in a more negative light than deviation via the NM. In the long
term, the attachment of the public to the Constitution may depend upon many factors,
and it is not clear that the number of amendments to Basic Laws is one of them.
E. The Temporary Nature of the Deviation
Both in Canada and in Israel, constitutional deviations are (at least formally) tempor
ary.49 The common view is that this is not a merely formal feature of the deviations, but
is rather a way to ensure that the deviation does not stay in force due to mere inertia. If
the deviation is renewed, a fresh public discussion would ensue and the deviator would
have to bear the political cost that may be associated with the deviation.50 However, the
temporary nature of the deviation lends itself to legislation rather than to constitutional
instruments.
The first response to this argument is that sometimes Constitutions do include tem-
porary provisions. They are common in transitional situations.51 As this chapter
shows, the story of the Meat Law is a story of constitutional transition.52 Initially the
NM was used to allow for a ban on meat importation for four years, but then the ban
48
To the best of my knowledge, there is no study about the attitudes of Israelis towards the Basic Laws, or
towards the BLH. My uneducated guess is that most Israelis are not informed about the Basic Laws. This may
have many causes, but one of them may be that the term ‘Constitution’ (either in Hebrew or in English) con-
notes something grand and dignified, whereas the term ‘Basic Law’ does not.
49
It is true that in the specific story of the BLO and the Meat Law, the stipulation that deviations are
temporary turned out to be a sham, but one should not jump to conclusions based on one case.
50
See, eg L Weinrib, ‘Learning to Live with the Override’ (1990) 35 McGill Law Journal 541, 561–62.
51
Eg, s 10 of the BLO states that laws passed before its commencement will remain in force until March
2002. After that date, this provision had no legal effect. Adopted in 1998, it had a life span of four years.
52
It is possible, of course, to view the story of the BLO and the Meat Law as a complex transition from
legislative supremacy, (before the BLO) to traditional constitutionalism, (after the BLO) to weak-form consti-
tutionalism (after the addition of the NM).
became permanent. However, even if the NM is used in a non-transitional fashion, the

same rationale for using a temporary amendment in a transitional context may apply
to NM invocations. In both types of situations, there is a deadlock in constitutional
discussions, both parties are interested in resolving the issue, and the compromise is
an agreement on future revision. Of course, the desire to avoid temporary provisions
may also originate from an attempt to have a majestic Constitution, but that argument
is invalid with regard to temporary constitutional provisions for the same reasons it is
invalid with regards to specific constitutional provisions.
The more fundamental answer is that the temporary nature of the deviation is only a
defining feature of the NM under the empowered legislature model. In Canada, where this
model reigns, the time limit on the deviation ensures that the legislature will not be too
empowered vis-à-vis the Constitution. However, in Israel, where deviations are to be done
by the constituent assembly, it should be able to choose to either make them permanent or
temporary. In some cases, when a compromise is necessary between supporters of the
deviation and its opponents, the compromise may be a temporary deviation. When there is
an agreement in the constituent assembly about the need to make the deviation permanent,
as was the case with the Meat Law, it would be a permanent deviation. The Meat Law
story exemplifies this point as well. Initially, it was created as a temporary deviation, but
then it became permanent.
That a deviation may be either temporary or permanent, like any other constitutional
amendment, brings the argument full circle. Once we conceptualise the deviation as a
constitutional amendment, there is no need to classify it as a deviation anymore. This
has been my point throughout the chapter: in Israel, there is no need for a mechanism for
legislative deviations, given that the Knesset may easily create constitutional deviations.
V. CONCLUSION
One day Israel may have a constitutional Bill of Rights, which would make it impossible
for the Knesset to amend Basic Laws with ease. Until then, the fact that in Israel no spe-
cial majority is required to amend the rights-protecting provisions of the Constitution is
no mere detail. Even if one laments the lack of entrenchment of Israeli Basic Laws (I do)
and even if one predicts that it will be remedied soon (I do not), one must analyze consti-
tutional settings and institutional designs as they are, with all their peculiarities and
shortcomings. The ease with which the Knesset may amend Basic Laws should be ana-
lyzed, not ignored. The way I analyzed it in this chapter was to say that deviation from
constitutional rights should be done directly within the Basic Laws.
There is an irony about the importation of the NM from Canada to Israel. Its initial
adoption in Canada, and certainly some of its uses, came to symbolise ugly constitu-
tional politics, so much so that a Canadian Prime Minister pledged to bring about a
constitutional amendment that will abolish the Federal Government’s power to invoke
it.53 That mechanism, understood in Canada as the sign of constitutional ugliness, was
imported to Israel to facilitate constitutional niceness.
53
See CBC News Canada, ‘Martin Wraps Campaign in Constitutional Pledge’, 10 January 2006 www.cbc.
ca/story/canadavotes2006/national/2006/01/09/elxn-debates-look.html.
90 Tsvi Kahana
It may be that the deeper explanation of the ‘niceness’ approach – the one that prefers
the general kitchen discourse over the specific chicken discourse, and does not want to
use the word kashrut in the Constitution – goes back to the other thing Motl tells us
about his mother – that ‘half of what she says is in American’.54 A lot has been written
about the language of America being a language of constitutional rights. Some say that
this is good, some say that this is bad, but all agree that this is the language. Now, there
is nothing wrong with speaking half of the American language. The Canadian adoption
of the NM did exactly that. The NM was understood at the time of its adoption in
Canada as a compromise between the British idea of parliamentary supremacy and the
American idea of judicial supremacy. It becomes wrong, though, when this half is merely
the ‘speaking’, and the emphasis is put not on the content but on the language.
Finally, the real language of Canada – its real constitutional culture – is not only the
NM. It is of a legal system which designed a mechanism that would befit its special
needs. If Israel needs to address non-typical topics in its Constitution, it should do so
directly. In Israel, a reference to kashrut in the Constitution should be kosher.
54
See n 1 above and the accompanying text.
7
Constitutional Adjudication and
Political Accountability: Comparative
Analysis and the Peculiarity of Israel
YOAV DOTAN
T
HE ASPIRATION TO protect basic human rights against majoritarian tyranny
forms the most fundamental justification for judicial review in modern demo
cracy. On the other hand, the aspiration to guarantee that judicial supervision
over majoritarian decision-making would not, by itself, create a tyrannical judiciary, is one
of the most fundamental concerns regarding the institution of judicial review. The need to
balance these two competing goals serves as one of the principal interests that shape the
structure of constitutional judicial review.
The present chapter discusses, from a comparative perspective, different models of
constitutional adjudication in several national systems. Each system has found its own
way to deal with the above dilemma of who will guard the guardians. Special attention
is paid to the Israeli system, in which current constitutional institutions are yet to pro
vide a stable and acceptable solution for this fundamental dilemma.
I. INTRODUCTION: THE DILEMMA OF JUDICIAL ACCOUNTABILITY
Judicial review is a political institution by which unelected officials (judges) retain power
to second-guess decisions made by the elected branches of governments. While the
democratic legitimacy of judicial review has raised various objections in academic
scholarship,1 it is now a commonplace in most modern constitutional systems. The most
powerful justifications for judicial review from the democratic point of view are the need
to defend fundamental human rights, and the assumption that unelected judges would
use their constitutional authority to counterbalance majoritarian tendencies to infringe
1
See, eg J Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346
(arguing that in reasonably democratic societies there is no reason to assume that courts would do a better job
to protect fundamental rights than legislators); RH Fallon, ‘The Core of an Uneasy Case for Judicial Review’
(2008) 121 Harvard Law Review 1693 (arguing that even if courts are not better overall at identifying rights
violations than are legislatures, courts have a distinctive perspective that makes them more likely than legisla
tures to apprehend serious risks of rights violations in some kinds of cases).
92 Yoav Dotan
on the rights of minorities, particularly at periods of national crisis.2 In recent years, the
question whether – and if so, to what extent – courts are in fact fulfilling their counter-
majoritarian role has been much debated by lawyers and social scientists.3 It is, however,
beyond question that judges, as unelected officials, carry the power to reverse decisions
and policies made by the elected branches. Accordingly, the very existence of such power
raises the question as to how it should be constrained. Without suitable democratic con
straints, the judicial power to offset majoritarian whims arguably has a serious inherent
danger to democratic accountability. The question of the democratic legitimacy of judi
cial review is therefore intertwined with the question of who will guard the guardians.
We want to give judges power to constrain majoritarian whims and defend fundamental
human rights, but we must cope with the danger that judicial power itself may become
the tyranny of the minority. Constitutional systems thus face the need to create mechan
isms to deal with the democratic accountability of their constitutional judges.
The discussion proceeds as follows: in part II of this chapter I discuss the various
mechanisms by which constitutional systems deal with the above dilemma. I distinguish
in this respect between the vehicle of the constitutional text on the one hand, and mecha
nisms relating to the appointment process and tenure of constitutional judges, on the
other hand. In part III, I review three models of constitutional review: the United States
model, the European continental model and the common law model. I argue that each of
these models strikes somewhat differently the balance between counter-majoritarianism
and democratic accountability of constitutional courts. In part IV, I discuss the case of
Israel. I argue that the Israeli system corresponds with the common law model of consti
tutional review and that the ‘Constitutional Revolution’ has not changed this state of
affairs. Accordingly, I argue that any proposal to reform judicial review in Israel should
bring into consideration the need to preserve the balance between the competing values
of counter-majoritarianism and democratic accountability.
II. CONSTITUTIONAL MECHANISMS OF JUDICIAL ACCOUNTABILITY
The first and obvious vehicle to deal with political accountability of judicial review is the
constitutional text. Arguably, judicial review is a process by which judges apply consti
tutional commands to cases brought before them. Therefore, presumably, the question
of the political accountability is trivial. All judges are doing is to simply apply pre-
existing provisions made by the constitutional assembly (or any other body that formed
2
See, eg AM Bickel, The Least Dangerous Branch: The Supreme Court and the Bar of Politics (Indianapolis,
Bobbs-Merrill, 1962); JH Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Harvard
University Press, 1980) 43–72.
3
See, eg B Friedman, ‘The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial
Supremacy’ (1998) 73 New York University Law Review 333 (arguing that the counter-majoritarian difficulty is
chiefly ‘an academic obsession’ since in reality judicial review tends to ratify popular preferences); B Friedman,
‘The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship’ (2001) 95 North
Western Law Review 933 (same); GA Caldeira and JL Gibson, ‘The Etiology of Public Support for the Supreme
Court’ (1992) 36 American Journal of Political Science 635 (arguing that courts can occasionally stand against
the winds of public opinion but still maintain a high level of ‘diffuse’ public support); W Mishler and
RS Sheehan, ‘The Supreme Court as a Counter-Majoritarian Institution? The Impact of Public Opinion on
Supreme Court Decisions’ (1993) 87 American Political Science Review 87, 96 (arguing that public opinion
influences Supreme Court decisions but its impact occurs at a moderate lag).
Constitutional Courts and Political Accountability 93
the constitution) and thus, their political accountability is based on the fact that they do
not impose their own values and preferences on the polity, but rather they effectuate, by
means of legal interpretation, decisions and policies made by other (presumably account
able) constitutional organs.
While this argument is ostensibly alluring, textual constraints can hardly provide an
effective answer to the question of judicial accountability. Constitutions are usually
formed for the purpose of serving the relevant communities for many years to come, and
to accommodate various changes in political policies, cultural preferences and social
values. Accordingly the constitutional text is often broad and vague. It refers to general
terms such as ‘liberty’, ‘equality’, or ‘dignity’ without specifying the accurate, practical
meaning of such general concepts. It is designated to leave ample latitude for those who
read and apply it (ie judges) to answer changing needs, interests and ideologies through
out the long life of the constitution. It thus leaves judges with substantial liberty to
express their own views, preferences and even ideology with regard to the process of
applying social values into the written text. At one historical period, the term ‘equal
protection of the laws’ could be read as legitimizing policies of racial segregation, while
at a later period the reading of the term was radically changed to denounce such policies
as both immoral and unconstitutional.4 And, as empirical works on constitutional
interpretation suggest, constitutional text is usually regarded by judges as a vehicle to
empower judicial capacity, rather than to constrain such powers.5 Therefore, the consti
tutional text itself can hardly serve as a meaningful constraint on judicial discretion in a
way that would give an adequate answer to the problem of judicial accountability.
More effective vehicles to increase political accountability in judicial review refer to
the procedures of appointing constitutional judges. Judges are usually not directly
elected by the public (except in some US states),6 because electing judges seems to con
tradict the fundamental idea of their counter-majoritarian role. In many jurisdictions,
however, the political branches are involved in the process of judicial selection. Federal
judges in the United States, for example, are appointed by the President and their
appointment is subject to confirmation by the Senate, by a process which is political in
nature.7 In Europe, members of constitutional courts are often elected by Parliament,
either exclusively or with some involvement on behalf of the executive.8
An additional accepted set of political constraints on constitutional judges refers to
the judicial tenure. While in some systems (such as the federal judiciary in the US and in
some common law jurisdictions) there are no mandatory limitations regarding judicial
tenure, in various European countries constitutional judges are elected for fixed (and
limited) periods. Thus, the political branches that control the appointment process also
retain the power to make changes in the composition of the judiciary, to enhance the
level of its political accountability.
The combination of these institutional constraints serve in almost all constitutional
jurisdictions to deal with the tension between the need for effective counter-majoritarian
review in democracy, and the wish to retain some political accountability on behalf of
4
See the US Constitution, amend XIV, §1; Plessey v Ferguson 163 US 537 (1896); Brown v Board of Education
347 US 483, 493–95 (1954).
5
Y Dotan, ‘The Spillover Effect of Bills of Rights’ (2005) 53 American Journal of Comparative Law 293, 340.
6
See below, at section IIIA and accompanying notes.
7
ibid.
8
See below, at section IIIB and accompanying notes.
94 Yoav Dotan
the constitutional judges. I now review in some detail three typical models of constitu
tional adjudication in this respect: the United States model; the continental European
model; and the common law model.
III. THREE MODELS OF CONSTITUTIONAL ADJUDICATION
There are three main models of judicial review adopted by most legal systems around
the world:9 the American model, the continental European model, and the common law
model. I now briefly review the main characteristics of each one, focusing on the rela
tions between constitutional adjudication and democratic accountability.
A. The United States Model
The United States model of constitutional judicial review is the most established and
well-known. This model has different variants that exist at the federal level and in the
various state systems. All these systems, however, share some general characteristics.
Constitutional adjudication in the US is performed in the regular courts (either federal
or state courts) and by regular ‘Article III judges’ (that is, judges at all levels, not only
judges of the highest echelons). Ever since the famous Marbury v Madison decision10
was handed down, it has been established that the US judiciary holds the power to strike
down laws that are unconstitutional. This power of the judiciary is vast, and subject
only to the possibility of reversal by an amendment to the Constitution (in itself an
extremely onerous procedure that very rarely occurs).11 The power vested in the judi
ciary is considered to be a paramount pillar of the ‘checks and balances’ concept which
is central to the American system of government.
The immense power held by the regular judiciary in the United States to review and
strike down legislation as unconstitutional is subject, however, to considerable political
constraints at the appointment level. The constraints are designed to ensure the political
accountability of those who hold immense judicial powers. While judges in the US are
appointed for life (or at least for very long tenures) the appointment procedure itself enjoys
a very high level of political accountability. In some states judges are directly elected either
in partisan or non-partisan elections by the public, like other officials (or legislators).12 In
other states (such as California) judges are appointed but their appointment is subject to
approval by various procedures of referenda (retention election).13 The most common
9
A Mavcic, ‘Constitutional Courts: Historical Steps in the Developments of Systems of Constitutional
Review and Particularities of their Basic Models’ in The Constitutional Review (The Netherlands, Book World
Publications, 2001) 18.
10
Marbury v Madison 5 US 137 (1803).
11
Amendments to the US Constitution require a two-thirds majority in both Houses of Congress as well as
ratification by the legislatures of three-quarters of all states, see the US Constitution, Art V. During the history
of over 200 years the Constitution was amended 27 times.
12
See RA Karp and R Stidham, Judicial Process in America, 7th edn (Washington DC, CQ Press, 2007)
102–03; L Baum, The Supreme Court, 6th edn (Washington DC, CQ Press, 1998) 43; SP Croley, ‘The
Majoritarian Difficulty: Elective Judiciaries and the Rule of Law’ (1995) 62 University of Chicago Law Review
689, 725–26.
13
See BM Dann and RM Hansen, ‘Judicial Retention Election’ (2001) 34 Loyola of Los Angelese Law Review
1429.
procedure of judicial selection, however, is a procedure resembling the one accepted at the
federal level. It is based on appointment by the head of the executive (ie the President of the
US or the Governor of the state) often after a hearing and a vote of approval by the legisla
ture (or some of its organs, such as the Senate, in the federal system).14 This procedure of
appointment is considered political in nature. Candidates for judicial posts are selected by
the head of the executive on the basis of their known ideology and value preferences.
Within the selection process, the candidates’ political affiliation is deemed a perfectly legit
imate consideration. Confirmation by the legislature (ie the Senate on the federal level) is
performed in public, with extensive media coverage. Candidates are asked questions
regarding their political convictions and ideological preferences, as well as their profes
sional and personal background. The confirmation vote (at least at the federal level) is
often – though not always – dominated by partisan division, and the name of the nominat
ing President as well as the political affiliation follow the appointed justice as a natural
‘mark’ near his name in any constitutional law book published after the appointment.15
Thus, the highly political nature of the appointment procedure is designed to ensure the
judges’ political accountability and to solve the dilemma of democratic accountability,
given the vast constitutional powers conferred on such judges.
B. The Continental European Model
The institute of judicial review is relatively new to the European constitutional culture.
It was adopted in most European systems only after World War II (or with the Iron
Curtain’s descent across Eastern Europe) as a direct response to the failure of those des
potic regimes to protect fundamental human liberties, and as an acknowledgment of the
importance of judicial review in this respect.16
The question that modern constitutional designers in Europe faced, however, was in
which judges the constitutional power of judicial review should be vested. Unlike in the
United States, appointments for the regular judiciary in continental Europe are bureau
cratic in nature. Candidates are selected to serve in the judiciary at a very early stage of
their professional career (usually after graduating law school and receiving special train
ing to serve in the judiciary). Their service is a lifetime career during which candidates
are promoted according to their professional credentials and on the basis of professional
exams.17
14
See Karp and Stidham (n 12) 104–05.
15
See, eg DS Law and LB Solum, ‘Positive Political Theory and the Law: Judicial Selection, Appointments
Gridlock and the Nuclear Option’ (2006) 15 Journal of Contemporary Legal Issues 51, 57; G Gunther and
KM Sullivan, Constitutional Law, 13th edn (New York, Foundation Press, 1997) app 3.
16
The first European country to adopt the institution of constitutional judicial review was Austria which
adopted the constitutional model introduced by Hans Kelsen in 1929 (see Mavcic (n 9)). In Germany and Italy
judicial review has been adopted as a constitutional institution after the fall of the fascist regimes after the War
(see ibid 21), while in France judicial review was only adopted in the Constitution of the Fourth Republic in 1958
(Mavcic (n 9)). In Spain, Portugal and Greece judicial review was adopted after the fall of the fascist regimes in the
1970s and in Eastern European countries such as Poland, the Czech Republic, Hungary, Slovakia and Russia
judicial review was part of the liberal constitutional reforms during the 1990s (ibid and see also J Ferejohn, and
P Pasquino, ‘Constitutional Adjudication: Lessons from Europe’ (2004) 82 Texas Law Review 1671, 1675).
17
See DP Currie, The Constitution of the Federal Republic of Germany (Chicago, University of Chicago
Press, 1994) 156–57; M Tushnet and V Jackson, Comparative Constitutional Law, 2nd edn (New York,
Foundation Press, 2006) 470–71; GF De Andrade, ‘Comparative Constitutional Law: Judicial Review’ (2001) 3
University of Pennsylvania Journal of Constitutional Law 977, 984.
96 Yoav Dotan
Therefore, when the framers of European constitutions after World War II dealt with
the need to adopt the institution of judicial review, they all rejected the idea of bestow
ing the constitutional authority of judicial review on their regular judiciary, due to its
low level of democratic accountability. Instead, they created special judicial institutions
separated from the regular judicial system to perform the mission of constitutional
review. Constitutional review in most European systems is thus conducted by special
constitutional courts which enjoy exclusive power to review the constitutionality of leg
islation and which operate as judicial tribunals, discrete from the regular judiciary.18
Unlike the general judiciary, constitutional courts in Europe enjoy a high level of
political accountability which is ensured by various constitutional measures. Most
importantly, the appointment of constitutional judges is political in nature and is done
by election of the judges by Parliament (exclusively, or with some involvement of the
heads of the executive). In Germany, for example, half the members of the Constitutional
Court are elected by the Upper House of Parliament (the Bundesrat) and half by the
Lower House (the Bundestag) in a process which is political in nature.19 In France, three
of the nine members of the Conseil Constitutionnel are appointed by the President of the
Republic, three are elected by the Chairman of the National Assembly, and three by the
Chairman of the Senate. Likewise, in Italy and Spain most constitutional judges are
elected by Parliament, while others are appointed by the government or the judiciary.20
In addition, unlike the case of the regular judiciary, constitutional judges are elected for
fixed and limited tenure, and thus the political branches retain some influence on the
ideology of the court by changing their composition.21 Last, candidates for constitu
tional tribunals do not normally come from the ranks of the regular judiciary but are
rather legal academics, or even professional politicians.22
C. The Common Law Model
The third and last model of judicial review is the one found in the United Kingdom and
its progenies (ie systems that follow the common law model, such as Canada, Australia,
New Zealand, India and Pakistan).23 Unlike the case in continental Europe, there are
no special constitutional courts in common law jurisdictions. Rather, judicial review is
18
See Tushnet and Jackson (n 17) 467–68; M Cappelletti, Judicial Review in the Contemporary World
(Indianapolis, Bobbs-Merrill, 1971) 68–75.
19
Grundgesetz für die Bundesrepublik Deutschland (Grundgesetz) (GG) (Basic Law), 23 May 1949, BGBl I,
Art 94(1) (Ger); see Currie (n 17) 155–56.
20
See references below (n 21).
21
Supreme Court tenures are for 9 years in France, Italy, Spain, Portugal and Hungary, 10 years in the Czech
Republic and 12 years in Germany. See N Dorsen and others, Comparative Constitutionalism: Cases and
Materials (St Paul, Thomson West, 2003) 132; Ferejohn and Pasquale, ‘Constitutional Adjudication’ (2004)
(n 16) 1681–82.
22
See Currie (n 17) 194. This, however, does not mean that the considerations for appointing judges are
exclusively or even primarily political. In reality, judicial appointments are often made on the basis of profes
sional expertise and are not partisan. See Ferejohn and Pasquino (n 16) 1681–82.
23
For an extensive discussion of this model of constitutionalism, see S Gardbaum, ‘The New Commonwealth
Model of Constitutionalism’ (2001) 49 American Journal of Comparative Law 707, 739; PJ Yap, ‘Rethinking
Constitutional Review in America and the Commonwealth: Judicial Protection of Human Rights in the Common
Law World’ (2006–07) 35 Georgia Journal of International and Comparative Law 99, 107–25; M Tushnet, ‘New
Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries’ (2003) 38 Wake Forest
Law Review 813.
conducted by the regular courts as in the United States. Unlike in the United States, how
ever, judges in these systems are nominated in a process that is not considered to be
political in its nature. In the United Kingdom, judges are presently appointed by the
Minister of Justice, following recommendations made by the Judicial Appointment
Commission (whose members belong in part to the judiciary, the legal professions, or
other representatives of the public). Judicial appointments in Canada are made by the
Prime Minister or the Minister of Justice;24 in Australia judicial appointments are made
by the Cabinet (on the recommendation of the Attorney General);25 in New Zealand,
judicial appointments are made by the Governor-General26 and in India they are made
by the President after consultation with the justices of the Supreme Court.27 Although in
all those systems it is officially the head of the executive who holds the power of appoint
ment, in practice the process is based largely on the candidates’ professional expertise,
and the nominating executive is largely bound by the recommendations made by the
recommending authorities (such as the Appointment Commission in the UK). In other
words, unlike the case of the US, the appointment of judges in common law systems is
regarded as an apolitical process, at least in the sense that the ideological (let alone polit
ical) affiliations of the candidates are officially regarded as irrelevant to the process.
How then do common law systems retain political accountability in judicial review?
The answer seems to be straightforward. These systems put significant limitations on
the very constitutional power bestowed on the judiciary in the first place. This means
that, unlike in the case of the US and Europe, the judiciary in common law systems does
not possess full power to review the constitutionality of legislation. Rather, they hold
some powers that are much more limited, and which allow the political branches lati
tude to constitutionally respond to, and potentially nullify, any decision in judicial
review.
The first significant element that limits the power of judicial review in common law
jurisdictions is the fact that some of these jurisdictions are yet to adopt a formal compre
hensive constitution; the principle of parliamentary sovereignty is still the paramount
pillar of the constitutional system. Thus, even today there is no constitution at all in the
UK and New Zealand. In Australia the Federal Constitution does not include a Bill of
Rights (thus limiting judicial review to rare cases of structural conflicts between the
Territories).28 Likewise, in Canada, the Federal Constitution did not contain a Bill of
Rights until the adoption of the Canadian Charter of Human Rights and Freedoms in
1982. Accordingly, in all the above-mentioned jurisdictions, the judiciary does not have
the power to review and strike down statutes made by Parliament, as in the case of the
24
PW Hogg, Constitutional Law of Canada, 5th edn (Scarborough, Thomson Carswell, 2007) 245;
MC Miller, ‘A Comparison of the Judicial Role in the United States and in Canada’ (1998) 22 Suffolk
Transnational Law Review 1, 17–18.
25
M Bhattacharya and R Smyth, ‘The Determinations of Judicial Prestige and Influence: Some Empirical
Evidence from the High Court of Australia’ (2001) 30 Journal of Legislative Studies 223, 229; DAR Williams,
‘The Judicial Appointment Process’ (2004) New Zealand Law Review 39, 65.
26
See the official New Zealand Government website at: www.courtsofnz.govt.nz/about/judges/appointments.
27
MP Singh, ‘Securing Independence of the Judiciary – The Indian Experience’ (2005) 10 Indian
International and Comparative Law Review 245, 252. High Court appointments are also made by the President
(ibid 254) while subordinate courts appointments are made by the Governors of the states (ibid 255).
28
Some Australian Territories, however, adopted Bills of Rights, see, eg the Victorian Charter of Human
Rights and Responsibilities Act 2006 and see R Masterman, ‘Interpretations, Declarations and Dialogue:
Rights Protection under the Human Rights Act and Victorian Charter of Human Rights and Responsibilities’
(2009) PL 111.
98 Yoav Dotan
US or Europe.29 Instead, in some of those systems, relatively recent constitutional devel

opments bestowed some partial powers of judicial review on the general courts. In New
Zealand, under the Bill of Rights Act of 1990 (which is a regular statute by itself) state
agencies (including the courts) are under a duty to interpret the law in accordance with
the Bill. In the UK today, under the Human Rights Act 1998 (HRA) all government
authorities are bound to respect the fundamental rights that are entrenched in the
European Convention on Human Rights.30 Accordingly, UK courts have the power,
under the HRA, to review Acts of Parliament and to declare them incompatible with
those fundamental rights in the proper cases. Such a declaration of incompatibility does
not invalidate the infringing statute, however, and it is up to Parliament to decide
whether or not it wants to vacate the statute or amend it in accordance with the judicial
declaration.31 In Canada, under the Charter, the framers bestowed even wider powers on
the judiciary. The Charter expressly provides that Canadian courts hold the power to
strike down legislation which is incompatible with the rights and freedoms enlisted by
the Charter. This judicial power is, however, subject to the possibility of reversal by the
legislature under the notwithstanding provisions of section 33.
To sum up, common law systems do not entrench strong mechanisms to hold their
constitutional judges under strict demands of political accountability. Rather, they limit
the power of judicial review bestowed on the judiciary and subject judicial decisions to
the possibility of reversal by the legislature.
* * *
We can now summarise in the following table the various solutions for achieving a bal
ance between democratic counter-majoritarian aspirations and the judiciary’s political
accountability:
Model US Europe CL
Judicial Appointments Political Political Bureaucratic/

professional
Tenure Unlimited Limited Unlimited
JR Power Full Full Limited
Table: Mechanisms of Political Accountability
29
India serves as a notable exception in this respect. The Federal Constitution of India bestows full judicial
review power on the judiciary. See Indian Constitution, Art 13, §2; see also SP Sathe, ‘Judicial Activism: The
Indian Experience’ (2001) 6 Washington University Journal of Law and Policy 29, 38–40 .
30
31
In reality however, almost in all cases in which the UK courts made such declarations, Parliament was
quick to follow suit, see R Clayton, ‘The Human Rights Act Six Years Later: Where Are We Now?’ (2007)
European Human Rights Law Review 11, 13. This is by no means a surprise since, according to the ECHR, the
relevant parties are entitled to challenge the statute before the European Court of Human Rights whose deci
sions are binding on UK authorities according to the Convention. See ECHR, Arts 32–35.
On the basis of the above conceptual framework, I now examine the case of judicial
review in Israel.
IV. THE CASE OF ISRAEL
A. The Early Days
Similarly to the United Kingdom and New Zealand, Israel is one of the few countries in
the world that is yet to adopt a formal, complete, unified constitution. Rather, the Israeli
‘constitution’ has been developed by a series of partial moves that are yet to be com
pleted. After the establishment of the State of Israel, all formal constitutional ties with
Great Britain were abolished. Nevertheless, for many years after statehood, the Israeli
judicial system continued to be heavily influenced by the British legal order. While
British rule ended immediately with the declaration of statehood, Israel preserved 99 per
cent of the elements of the former system created by the British authorities before state
hood (with the exception of some statutes that inhibited Jewish immigration to Palestine,
or that in any other way conflicted with the interests of the new Zionist Government).
The implication is that the structure of the court system established under the British
Mandate remained largely intact. Apart from preserving the material body of law, the
Israeli legal system also retained its professional affiliation with the English legal tradi
tion. Therefore, English common law continued to be an important legal source for
Israeli judges long after independence, and British court decisions were often the main
source of reference for judges in the newborn state.32
The influence of the common law tradition has also been paramount with regard to
judicial appointments in Israel. As in the case of the UK, judicial appointments in Israel
are made by the Minister of Justice, acting upon mandatory recommendations by a spe
cial committee. According to a statute enacted shortly after establishment, the commit
tee is composed of nine members, of whom three are Supreme Court justices, two are
ministers (one of whom is the Minister of Justice herself), two Knesset (Israeli Parliament)
Members (one of whom is traditionally a member of the opposition) and two represen
tatives of the Israeli Bar.33 The committee convenes behind closed doors and neither the
political branches nor the general public are directly involved in the process. This com
position of the committee as well as the procedures of appointment are designed to
ensure that the process is based exclusively on considerations of professional expertise,
and is detached from any reference to the candidates’ political affiliations or ideological
preferences.34
The lack of a comprehensive constitutional document and the strong influence of the
British common law tradition have also shaped the development of judicial review.35 The
process of judicial review of governmental action was developed within a constitutional
32
A Zysblat, ‘Introduction: The System of Government’, in I Zamir and A Zysblat (eds), Public Law in
Israel (Oxford, Oxford University Press, 1996) l, 4–5.
33
Basic Law: The Judiciary, s 4(b); the Courts Law (Consolidated Version), 5744-1984, c 1, pt 3.
34
See Zysblat (n 32) 14–15; Y Dotan, ‘Does Israel Need a Constitutional Court’ (1999) 5 Law and Government
117, 137–40 (in Hebrew).
35
See D Barak-Erez, ‘From an Unwritten to a Written Constitution: The Israeli Challenge in American
Perspective’ (1995) 26 Columbia Human Rights Law Review 309, 317; A Rubinstein and B Medina, The
Constitutional Law of Israel, 5th edn (Tel-Aviv, Schocken, 1996) 367 et seq (in Hebrew).
100 Yoav Dotan
framework which was partial, without a comprehensive and clear mandate for the judi
ciary to second-guess majoritarian decisions, and under the strong influence of the English
tradition of the supremacy of Parliament. Israel’s ‘partial constitution’ began with the
Declaration of Independence of 194836 that specifically stipulated the formation of a consti
tutional assembly which would form a constitution. When the assembly was elected it
decided to turn itself into the First Knesset and began to discuss several issues concerning
the constitution. The political debates, however, soon revealed deep divisions on central
issues, and the decision was taken – in the famous ‘Harari Decision’ of 1950 – to postpone
the adoption of a constitution as one document and to prepare it piecemeal – chapter by
chapter – in a series of Basic Laws that would eventually be brought together to form the
constitution.37 Over the years that followed, the Knesset gradually adopted some Basic
Laws, but they dealt mostly with formal and structural aspects of the governmental system
rather than with issues of citizens’ rights.38 The Israeli Supreme Court – also faithful to the
premises of parliamentary supremacy – was willing to acknowledge the constitutional
supremacy of these Basic Laws only on rare occasions and on narrow grounds. It did so in
a series of cases during the 1970s and 1980s where it acknowledged the power of the
Knesset to entrench certain clauses in Basic Laws by which any legislation deviating from
these clauses should meet the requirements for a special majority specified in the entrenched
clauses.39 In the meantime, however, and despite the lack of a formal Constitution and a
Bill of Rights, Israeli courts have been active in developing a rich jurisprudence of human
rights. Accordingly, on many occasions the Supreme Court has raised the concept of an
‘unwritten’ Bill of Rights. While the concept was not cited as a justification to invalidate
primary legislation, it allowed the courts to adopt a vigorous interpretative doctrine in
favour of human rights, and served as a strong vehicle for controlling administrative
actions infringing on human rights.40 Within this framework, the Supreme Court acknow
ledged the special status of fundamental freedoms such as freedom of speech and press,
freedom of association, and freedom of demonstration and procession.41
B. The ‘Constitutional Revolution’
Since the early 1980s, there has been a major shift in the policies and practices of the
Israeli Supreme Court regarding judicial review of governmental action. The Court
36
37
See R Rubinstein, ‘The Controversy over Israel’s Bill of Rights’ (1985) 15 Israeli Year Book of Human
Rights 113, 147–49; I Zamir, ‘Rule of Law and Civil Liberties in Israel’ (1987) 6 Civil Justice Quarterly 64, 66;
Zysblat (n 32) 3–4.
38
See, eg Basic Law: The Knesset; Basic Law: The President of the State; Basic Law: The Government.
39
HCJ 98/69 Bergman v Minister of Finance 23(1) PD 693 [1969] (in Hebrew); HCJ 148/73 Kaniel v Minister
of Justice 27 (1) PD 794 [1973] (in Hebrew) (for the English version see I Zamir and A Zysblat (eds), Public
Law in Israel (Oxford, Oxford University Press, 1996) 310, 312; HCJ 246/81 Agudat Derekh Eretz v Broadcasting
Authority 35(4) PD 1 [1981] (in Hebrew); HCJ 141/82 Rubinstein v Chairman of the Knesset 37(3) PD 141
[1983] (in Hebrew).
40
See Barak-Erez (n 35) 315–17.
41
See, eg HCJ 73/53 Kol Ha’am v Minister of Interior 7 PD 871 [1953] (in Hebrew) (for the English version
see Zamir and Zysblat (eds) (n 39) 55, 68) (acknowledging the right of free speech as a fundamental right that
cannot be infringed upon unless the danger to public order is ‘nearly certain’); FH 16/61 Company Register v
Kardosh 16 PD 1209 [1962] (in Hebrew) (acknowledging the right of association as a fundamental right);
HCJ 148/79 Saar v Minister of Interior and Police 34 PD 169 [1979] (in Hebrew); HCJ 153/83 Levi v Police
Commissioner for the Southern District 38(2) PD 393 [1984] (in Hebrew) (acknowledging the fundamental
right for demonstration and procession).
significantly expanded the access of NGOs, political parties and politicians to use judi
cial review to challenge government policies by reforming its doctrine of standing and
acknowledging the concept of ‘public law petitioner’.42 It also changed its position with
regard to the doctrine of justiciability (political question) to allow petitioners to chal
lenge in judicial review almost any governmental decision regardless of its political
nature or implications.43 At the same time, the Court also significantly expanded the
scope of judicial review in areas such as military actions, national security, foreign
relations, and prosecutorial discretion.44
In 1992 the Knesset passed two new Basic Laws. The first, and most important of the
two, was Basic Law: Human Dignity and Liberty.45 Contrary to the Basic Laws previ
ously enacted by the Knesset, this one deals with human rights, though the list of rights
it includes is partial. It grants constitutional protection to some fundamental freedoms
such as human dignity, freedom of movement, privacy, and property rights. It fails,
however, to refer to some of the most fundamental political freedoms such as freedom of
expression, association, procession, freedom of religion and the basic right to equality.
The omission was by no means a coincidence. Rather, this fragmented Bill of Rights was
the result of a political compromise between the liberal forces in the Knesset that push
for the adoption of a comprehensive Bill of Rights, and the opposition to this idea
(formed mainly by the religious parties) that opposed the idea of the Bill altogether.46
The outcome of this struggle is a Bill of Rights that is not only partial, but in addition its
constitutional status and superiority over regular legislation was not clearly provided by
the text of the Basic Law itself. The text does require any future legislation to conform
with the requirements of the Basic Law and to respect the fundamental rights listed
therein. It also provides the judiciary with the power to review the compatibility of such
legislation with the Basic Law. It does not, however, expressly entrench the provisions of
the Basic Law from the possibility of being overridden by regular acts of the Knesset.
Despite the limited scope of the text of Basic Law: Human Dignity and Liberty, and its
unclear constitutional status, the Israeli judiciary was quick to use it as leverage to expand
judicial review and to develop an ambitious concept of constitutional judicial review. In
the most celebrated case of United Mizrahi Bank47 the Supreme Court declared that the
adoption of the new Basic Law amounts to the transformation of Israel into a constitu
tional democracy48 and that the new Basic Laws should be regarded as a constitutional Bill
42
See HCJ 910/86 Ressler v Minister of Defence 42(2) PD 441 [1988] (in Hebrew) (for the English version see
Zamir and Zysblat (eds) (n 39) 275, 286–88; Y Dotan and M Hufnung, ‘Interest Groups in the High Court of
Justice: Measuring Success in Litigation and in Out-of-Court Settlements’ (2001) 23 Law and Policy 1, 7–11.
43
Ressler v Minister of Defence (n 42), Dotan and Hofnung (n 42) (discussing the rise in the number of peti
tions by NGOs after the decision).
44
For an overview of the phenomenon of judicial activism in Israel see, eg Y Dotan, ‘Judicial Accountability
in Israel: The High Court of Justice and the Phenomena of Judicial Hyperactivism’ (2002) 8 Israeli Affairs 87;
R Hirschl, ‘The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four
Constitutional Revolutions’ (2000) 25 Law and Social Inquiry 91, 98–101; GI Seidman and EA Nun, ‘Women,
the Military and the Court: Israel at 2001’ (2001) 11 Southern California Review of Law and Women’s Studies
91, 101–09; G Dor, ‘Governmental Avoidance Versus Judicial Review: A Comparative Perspective in Israeli
Decision-Making Strategies in Response to Constitutional Adjudication’ (1999) 13 Temple International and
Comparative Law Journal 231, 232.
45
The second Basic Law is the Basic Law: Freedom of Occupation.
46
See J Karp, ‘Basic Law: Human Dignity and Liberty – A Biography of Power Struggles’ (1992) 1 Law and
Government – Law and Government in Israel 323, 326–28, 339 (in Hebrew); Dotan, ‘The Spillover Effect’ (n 5)
302–03.
47
See CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 149(4) PD 221 [1995] (in Hebrew).
48
ibid para 1 of Court President Barak’s opinion.
102 Yoav Dotan
of Rights. Accordingly, the Court ascertained the duty of the Knesset (as the legislature) to
abide by the newly adopted constitutional framework and established the power of the
courts to exercise judicial review over such legislation.49 During the past two decades, the
Court took various steps to develop the constitutional scope of the new Basic Laws in
order to expand judicial review over legislation. Originally, in United Mizrahi Bank, the
Court refrained from providing that any Basic Law, as such, enjoys full constitutional
superiority over future legislation (since most Basic Laws do not include any formal
entrenchment). A few years later, however, the Court reversed its position and ruled that
regular legislation of the Knesset cannot be incompatible with any provision included in
any Basic Law.50 The Court also significantly expanded, by interpretation, the list of con
stitutionally protected rights. Despite the fact that the new Basic Laws did not refer to
fundamental political rights (such as expression) or to the right to equality, the Court ruled
that flagrant infringements of political rights or equality amounts to a violation of human
dignity, and thus broadened the scope of protected rights.51 The Court also used its consti
tutional authority to strike down various laws passed by the Knesset as failing to meet the
constitutional requirements of the Basic Laws.52
C. Democratic Deficit?
The above described developments pose interesting questions with regard to the demo
cratic legitimacy of constitutional judicial review in Israel. As I suggested in part III
above, different constitutional systems find ways to balance counter-majoritarian aspi
rations with the need to ensure democratic accountability in judicial review. Both the
historic developments as well as the structural characteristics of the Israeli system clearly
suggest that it belongs to the third model of common law systems. It is also clear that as
far as political accountability of the judiciary is concerned Israel is located well within
the boundaries of this model even after the ‘Constitutional Revolution’. Judicial review
is conducted by regular judges (not by a special constitutional court) who are appointed
for lifetime tenure (with a mandatory retirement age of 70) in a process that is bureau
cratic and apolitical in nature, with very limited influence on the part of the political
branches.53 Therefore, the comparative framework presented above suggests that Israel
49
United Mizrahi Bank (n 47), and see references at n 44.
50
HCJ 1384/98 Avni v Prime Minister 52(5) PD 206, 209 [1998] (in Hebrew); HCJ 212/03 Herut v Chairman
of the Central Elections Committee 57(1) PD 750 [2003] (in Hebrew); A Bendor, ‘Four Constitutional
Revolutions?’ (2003) 6 Law and Government 305, 307 (in Hebrew).
51
See eg HCJ 453/94 Israel Women’s Network v Government of Israel 48(5) PD 510 [1994] (in Hebrew);
HCJ 5394/92 Hupert v Yad Vashem 48(3) PD 353 [1994] (in Hebrew).
52
See, eg HCJ 1715/97 Investment Managers Bureau v Minister of Finance 51(4) PD 367 [1997] (in Hebrew);
HCJ 6055/95 Zemach v Minister of Defence 53(5) PD 241 [1999] (in Hebrew); HCJ 1030/99 Oron v Speaker of
the Knesset 56(3) PD 540 [2002] (in Hebrew); HCJ 6427/02 Movement for Quality Government v Knesset 61(1)
PD 619 [2006] (in Hebrew); HCJ 1661/05 Hof Aza Regional Council v Knesset 59(2) PD 481 [2005] (in
Hebrew); HCJ 2605/05 Academic Center of Law and Business v Minister of Finance (19 November 2009),
Nevo Legal Database (by subscription) (in Hebrew).
53
Recently, some Knesset Members from right-wing coalition parties proposed a Bill under which judicial
appointments would be subject to public hearing and confirmation in the Constitution, Law and Justice
Committee of the Knesset. See: Draft Bill Amending the Courts Law (Transparency of Procedures to Appoint
Supreme Court Justices and the President and Deputy President of the Supreme Court), 2011, P/18/3423.
English translation available at: www.acri.org.il/en/wp-content/uploads/2011/11/Hearings-for-Justices-Bill-
ENG.pdf. The proposal raised strong opposition from legal circles and the Attorney General expressed his
must stick to the common law framework of limited power of judicial review in order to
remain within the boundaries of this model.
From the purely formal point of view, it seems that Israel still keeps within these
boundaries today. This is because the Knesset is still formally free to amend (or even
repeal) the Basic Laws or to change the constitutional framework in a way that would
constrain the constitutional powers of the courts (setting aside the question whether
such a move would be possible at the political level). Recent developments in case law
(as well as some statements by prominent judicial figures) suggest, however, that the
Israeli judiciary is nearing the adoption of jurisprudence that will deny the Knesset’s
very power to initiate any changes in the constitutional framework.54 The question
whether or not further expansion of judicial review is needed, is beyond the scope of this
chapter. However, the comparative framework presented here indicates that any move
in this direction requires an answer to the question of political accountability of judicial
review. Otherwise the Israeli system might face a serious problem of democratic
deficit.55
doubts regarding its constitutionality. As a result, the proposal was removed after Prime Minister Netanyahu
backed off from his previous endorsement of the Bill, see Y Lis and T Zarchin, ‘A Bill: Hearing in the Knesset
for Judicial Candidates’, Haaretz, Tel-Aviv, 10 November 2011; Y Lis and T Zarchin, ‘Netanyahu Ordered to
Drop the Bill for Hearing to Judicial Candidates’, Haaretz, Tel-Aviv, 16 November 2011.
54
Thus, eg in 2008 the former Court President Aharon Barak accused the then Minister of Justice Daniel
Friedmann with intentions to ‘destroy’ the ‘judicial project’ after the latter raised proposals to initiate reforms
that would extend to some extent the political accountability of the judiciary. See A Shavit, ‘Aharon Barak:
A Worried Citizen’, Haaretz, 9 April 2008, and see n 55.
55
In April 2012 the Ministry of Justice introduced a draft for Basic Law: Legislation. The draft officially
acknowledges the power of the Supreme Court – sitting as a constitutional court – to strike down any legisla
tion that it finds incompatible with any Basic Law. See Bill Memorandum of Basic Law: The Legislation, 2012,
published by the Ministry of Justice: www.tazkirim.gov.il/Tazkirim_Attachments/41283_x_AttachFile.doc (in
Hebrew). On the other hand, the draft bestows on the Knesset the power to re-legislate any statute struck down
by the Court provided that the legislation would be supported by 65 (out of 120) Members. It also provides that
the overriding statute would be valid for five years unless the Knesset extends its validity for additional periods
of five years. The draft encountered ample opposition from all sides of the political map, as well as from the
bench, and its chances of passing into legislation seem unclear at best. See, eg Y Yoaz, ‘Grunis: Fix the Bill for
Basic Law: Legislation so that We Shall not Regret It’, Globes, Rishon Letzion, 17 April 2012.
8
Justifying Judicial Review:
The Changing Methodology of the
Israeli Supreme Court
JOSHUA SEGEV
I. INTRODUCTION
T
HIS CHAPTER EXAMINES the developments in jurisprudence of the Israeli
Supreme Court regarding its authority to review the Knesset’s (Israeli Parliament)
legislation (hereinafter: judicial review). These developments were the subject of
an extensive academic examination and also triggered a hot public debate about the
proper scope of the Israeli Supreme Court’s constitutional powers. Quite naturally, most
of the legal writings centred on the question of legitimacy, namely, whether judicial
review was justified under Israel’s constitutional circumstances. However, only in rare
cases did the writers conduct their examination with full awareness of the method used
by the Israeli Supreme Court, and in fact the method they themselves have used in their
writings, in order to provide the answer to the question of legitimacy.
This chapter tries to fill this void. This chapter is not aimed at answering the impor-
tant (and done to death) question of whether the adoption of judicial review by the
Israeli Supreme Court was justified. Similarly, this chapter should not be viewed as an
additional (futile) attempt to convert1 the faith of supporters of judicial review, nor is it
intended to defend a specific model of judicial review (activist, restraint, centralised or
dispersed). This chapter examines the constitutional methodology of the Israeli Supreme
Court regarding the proper way to justify judicial review. This view point will reveal
three methodological phases of the legitimacy of judicial review: the pragmatic phase,
the radical phase and the conservative phase. This distinction, this chapter contests, pro-
vides a deeper and accurate understanding not only of developments of the jurispru-
dence but also about the premises and boundaries of present constitutional discourses
regarding the legitimacy of judicial review and the proper model of judicial review.
The discussion proceeds as follows: first, it describes the developments and contro-
versy about judicial review in Israel (part II). Second, it analyzes the nature and essence
of the search for the constitutional legitimacy of judicial review (part III). Based on this
discussion, the chapter identifies three key methods of justifying judicial review (parts
IV, V and VI). This distinction will show how the Israeli Supreme Court has changed
S Levinson, ‘The Constitution in American Civil Religion’ (1979) Supreme Court Review 123, 150.
1
106 Joshua Segev
time and again the methodology, that is, the rules and nature of the ‘justification game’
in order to establish judicial review in Israel, and it will alert us to the danger of method-
ological manipulation. The danger of methodological manipulation is still looming over
Israel’s constitutional future as Israel encounters old (activist versus restraint) and new
(centralised versus dispersed) fronts of constitutional designs and options.
II. HISTORICAL BACKGROUND: THE ADOPTION OF JUDICIAL REVIEW IN ISRAEL
The question of whether the Israeli Supreme Court should be trusted with the authority
to review Knesset legislation was under intense controversy as part of the overall consti-
tutional circumstances, which have prevented the adoption of a constitution in the form-
ative era.2 The opponents of judicial review feared that entrusting the Court with the
authority to review primary legislation would introduce a hindering force that would
prevent progress and justice.3 Others, however, favoured judicial review and viewed it as
a reasonable mechanism to guarantee human rights and civil liberties from the encroach-
ment of the Government.4
These disagreements, however, were not confined to the normative propriety of
judicial review. Disagreements regarding the authority of the Supreme Court to review
primary legislation have often been intertwined with disagreements regarding the nor-
mative basis for such a review – namely, disagreements over the legal norms and princi-
ples that are considered superior to norms laid down in legislation, and that provide the
basis for claims of unconstitutionality. Recognizing the power of the Court to review
primary legislation, without resolving the disputes about the proper normative basis for
such review, was unacceptable not only to those who opposed judicial review altogether
but also to many of its supporters.
Unable to adopt a constitution, the political parties devised a political compromise,
later to be known as the ‘Harari Decision’.5 According to the Harari Decision, the
Knesset would enact the Constitution gradually in incremental steps that would eventu-
ally be harmonised to form a complete constitution. However, the Decision did not
address the normative status of Basic Laws vis-à-vis ordinary legislation,6 nor their
potential enforceability.
Nevertheless, as known to all, these circumstances did not bring an end to the adop-
tion of judicial review or the controversies accompanying it. A short time after the estab-
lishment of the State of Israel, the newly constituted Supreme Court rejected attempts
made in several cases – Leon v Acting District Commissioner of Tel Aviv (Gubernik),7
2
On Israel’s failure to adopt a constitution in the early years of the state, see J Segev, ‘Who Needs a
Constitution? In Defense of the Non-decision Constitution-making Tactic in Israel’ (2007) 70 Albany Law
Review 409, 412–40; R Gavison, ‘The Controversy Over Israel’s Bill of Rights’ (1985) 15 Israeli Year Book of
Human Rights 113, 135; A Shapira, ‘Why Israel has No Constitution’ (1993) 37 St Louis University Law
Review 283, 285.
3
Among the opponents of judicial review was Ben-Gurion, Israel’s first Prime Minister. See DK 4 (1950)
816; S Aronson, ‘David Ben-Gurion and the British Constitutional Model’ (1998) 3 Israel Studies 193.
4
DK 4 (1950) 717. See also Segev (n 2) 422–23.
5
DK 5 (1950) 1743.
6
A Shapira, ‘Judicial Review without a Constitution: The Israeli Paradox’ (1983) 56 Temple Law Quarterly
405, 410.
7
HCJ 5/48 Leon v Acting District Commissioner of Tel Aviv (Gubernik) 1(1) PD 58 [1948] (in Hebrew).
English translation available at: elyon1.court.gov.il/files_eng/48/050/000/Z01/48000050.z01.htm.
Justifying Judicial Review 107
Zeev v Acting District Commissioner of the Urban Area of Tel Aviv (Gubernik),8 and
Al-Karabutli v Minister of Defence9 – to assume the authority to review primary legisla-
tion. Many scholars10 have criticised the Court’s decisions in Leon, Zeev and
Al-Karabutli, arguing that the Court had missed an historic opportunity to constitute a
fully-fledged judicial review according to the principles set by the Declaration of
Independence.11 In the late 1960s the Supreme Court assumed de facto the authority to
review the Knesset legislation based on Basic Laws in Bergman v Minister of Finance.12
This and other subsequent decisions of the Supreme Court,13 also received harsh criti-
cism on various grounds by the academic community.14 There is no doubt that the most
important decision regarding judicial review of recent years is the 1995 United Mizrahi
Bank Ltd v Migdal Cooperative Village.15 In the United Mizrahi Bank decision, the
Israeli Supreme Court followed the steps of its American counterpart and assumed an
unrestricted authority to review primary legislation notwithstanding the absence of a
constitution in the conventional sense.16 This and other subsequent decisions of the
Supreme Court17 have also aroused political and academic disapproval.18 In recent years
a number of legislative Bills were presented before the Knesset seeking to nullify,19 or at
8
HCJ 10/48 Zeev v Acting District Commissioner of the Urban Area of Tel Aviv (Gubernik) 1(1) PD 85
[1948] (in Hebrew). English translation available at: elyon1.court.gov.il/files_eng/48/100/000/Z01/48000100.
z01.htm.
9
HCJ 7/48 Al-Karabutli v Minister of Defence 2(1) PD 5 [1949] (in Hebrew).
10
See, eg P Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (California,
University of California Press, 1997) 92; E Salzberger, ‘The Emergency Regulations of the British Mandatory
Government – Leon v Gubernik and Zeev v Gubernik’ in D Barak-Erez (ed), Reflections upon Decisions of the
Israeli Supreme Court During the First Year of Israel’s Independence (Bnei-Brak, Hakibbutz Hameuchad, 1999)
41, 45–47 (in Hebrew); D Kretzmer, ‘Judicial Review of Knesset Decisions’ (1988) 8 Tel Aviv Studies in Law 95,
97–98.
11
Declaration of the Establishment of the State of Israel, 1 LSI 7 (1948). The petitions attacked the emer-
gency regulations of the British Mandatory Government, enacted to suppress the Jewish community in
Palestine, which were used by the new Israeli Government to confiscate apartments in Tel Aviv for the private
use of public officials. One of the major arguments, presented before the Supreme Court to persuade it that it
possessed the authority to invalidate these regulations, was that the emergency regulations were inconsistent
with the principles of ‘freedom, justice, and peace as envisaged by the prophets of Israel’, included in the
Declaration of Independence and intended to guarantee personal freedom (Zeev (n 8) 88; Al-Karabutli (n 9)
13). The Supreme Court rejected this argument stating that while the Declaration of Independence defines the
basic credo of the state, it is not constitutional law and does not determine whether ordinance and laws are
valid or invalid (Zeev (n 8) 88–89).
12
HCJ 98/69 Bergman v Minister of Finance 23(1) PD 693 [1969] (in Hebrew).
13
HCJ 141/82 Rubinstein v Chairman of the Knesset 37(3) PD 141 [1983] (in Hebrew); HCJ 246/81 Agudat
Derekh Eretz v Broadcasting Authority 35(4) PD 1 [1981] (in Hebrew); HCJ 60/77 Ressler v Chairman of the
Elections commission 31(2) PD 556 [1977] (in Hebrew); HCJ 148/73 Kaniel v Minister of Justice 27(1) PD 794
[1973] (in Hebrew).
14
For representative critical writings, see C Klein, ‘A New Era in Israel’s Constitutional Law’ (1971) 6 Israel
Law Review 376; MB Nimmer, ‘The Uses of Judicial Review in Israel’s Quest for a Constitution’ (1970) 70
Columbia Law Review 1217, 1222; RA Burt, ‘Inventing Judicial Review: Israel and America’ (1989) 10 Cardozo
Law Review 2013.
15
CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 49 (4) PD 221 [1995] (in Hebrew).
16
See Gavison, ‘The Controversy’ (n 2) 128; H Sommer, ‘Richard Posner on Aharon Barak: The View from
Abroad’ (2007) 49 The Lawyer 523, 529–30 (in Hebrew).
17
HCJ 1715/97 Investment Managers Bureau v Minister of Finance 51(4) PD 367 [1997] (in Hebrew); HCJ
6055/95 Zemach v Minister of Defence 53(5) PD 241 [1999] (in Hebrew); HCJ 212/03 Herut v Chairman of the
Central Elections Committee 57(1) PD 750 [2003] (in Hebrew).
18
See Sommer (n 16) 529–30; Segev (n 2) 468–73. Although see G Sapir, Constitutional Revolution in Israel:
Past Present and Future (Haifa, University of Haifa Press, 2010) 132–34 (in Hebrew) arguing that the academic
community in general did not criticize the Court’s Constitutional Revolution.
19
See Draft Bill Amending Basic Law: The Judiciary (Judicial Review of Legislation), 2007, P/17/1975; Draft
Bill Basic Law: Judicial Review, 2006, P/17/1864.
108 Joshua Segev
least to regulate and to limit, the scope of the Court’s authority to review the Knesset’s
legislation.20 Thus, it seems that as far as it concerns the adoption of judicial review the
Israeli Supreme Court has always been in a situation of: ‘Damned if you do; damned if
you don’t’.
As aforesaid, the centre of this chapter is the methodological question of the justifica-
tion of judicial review and not its legitimacy or whether its adoption was proper.
However, since talks of ‘the legitimacy of judicial review’ or ‘justifying judicial review’
are deplorably vague and ambiguous, some explanation regarding the legitimacy of judi-
cial review is necessary before one can explain the methods used by the Supreme Court
to establish it.
III. LEGITIMACY AND JUDICIAL REVIEW
The concept of legitimacy has at least three different meanings.21 The first understands
the legitimacy in terms of ‘legality’, namely, whether the court was empowered or author-
ised by law to assume the authority to review the Knesset’s legislation. On this under-
standing, the Supreme Court would be considered legitimate in assuming judicial review
if the materials of legal analysis – the accepted sources of law (such as the Basic Laws and
constitutional principles) and the accepted methods of working with those sources (such
as deduction and analogy) – are sufficient to conclude that the Court was authorised to
assume this new role. The second way to understand legitimacy is in sociological terms.22
Namely, the legitimacy or illegitimacy of a given institution is contingent upon social
norms and public attitudes toward this institution.23 Accordingly, the Supreme Court
would be considered legitimate in assuming judicial review if it gained support and
approval by the Israeli public. Concerns about the legitimacy crisis24 of the Supreme
Court25 is often understood in this way – that is, in terms of the unique difficulties faced
by the Supreme Court in preserving and maintaining public trust and confidence. The
third way to understand legitimacy is in moral or political terms. Constitutional scholars
and lawyers often associate the problem of the legitimacy of judicial review with the
‘counter-majoritarian difficulty’, noted by Bickel, according to which the ‘root difficulty
is that judicial review is a counter-majoritarian force’,26 which needs to be reconciled with
20
Draft Bill Amending Basic Law: The Judiciary (Judicial Review of Legislation), 2010, P/18/2056.
21
See also RH Fallon, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1787, 1794–801.
22
AJ Simmons, ‘Justification and Legitimacy’ in Justification and Legitimacy: Essays on Rights and
Obligations (Cambridge, Cambridge University Press, 2001) 122, 131–35.
23
M Weber, The Theory of Social and Economic Organization (New York, Free Press, 1947) 114; SM Lipset,
Political Man: The Social Bases of Politics (New York, Doubleday, 1960) 77; TR Tyler, ‘Procedural Justice,
Legitimacy, and the Effective Rule of Law’ (2003) 30 Crime and Justice 283, 307.
24
On the legitimacy crisis characterizing modern states, see C Taylor, ‘Legitimacy Crisis?’ in C Taylor (ed),
Philosophy and the Human Science, Philosophical Papers, vol 2 (Cambridge, Cambridge University Press,
1985) 248.
25
For concerns regarding the sociological legitimacy of the Israeli Supreme Court, following the adoption
of fully-fledged judicial review, see E Yuchtman-Yaar and Y Peres, Between Consent and Dissent: Democracy
and Peace in the Israeli Mind (Lanham, Rowman & Littlefield Publishers, 2000) 58; compare G Barzilia,
E Yuchtman-Yaar and Z Segal, The Israeli Supreme Court and the Israeli Public (Tel-Aviv, Tel-Aviv University
Press, 1994).
26
AM Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, Yale
University Press, 1986) 16.
representative democracy.27 Political philosophers will probably associate the problem of

legitimacy with the problem of adopting criteria by which one can judge social institu-
tions.28 According to this account of legitimacy, the Supreme Court acted legitimately in
assuming judicial review if there were grounds by which one could reconcile the new role
and the scheme of representative democracy in Israel or if there were grounds for finding
a moral requirement for the Supreme Court to take on this role.
The moral and political concept of legitimacy is connected to the problem of adopting
criteria by which one can judge social institutions (what makes an institution ‘good’,
‘right’, ‘just’, ‘authoritative’ or ‘legitimate’)29 – it asks us to come up with standards and
principles for judging judicial review. Political philosophy has been debating the issue,
that is, the proper criteria for the assessment of social institutions, almost from the dawn
of humanity with no solution in sight.30 The question has always been not so much what
these standards and principles are, as how do we defend these standards and principles,
since the ‘criterion requires a criterion’.31 While the problem of adopting criteria for
judging social institutions is well known in political philosophy, the same is true about
legal philosophy (since any legal criterion requires a criterion) and sociology (since any
social criterion requires a criterion).
Thus any attempt to justify (legally, sociologically or politically) judicial review rests
on a two-phase process. First we must adopt criteria to judge judicial review and justify
them rebutting objections made by possible sceptics arguing against the validity or
propriety of these criteria. Second we must show that the criteria adopted support the
adoption and preservation of judicial review. Showing that often requires us to meet or
rebut certain kinds of fundamental objections (based on the standards adopted) to the
institution of judicial review:32 either ‘comparative’ objections that alternative arrange-
ments are legally, socially or morally preferable, or ‘non-comparative objections’ that the
27
J Waldron, ‘Book Review: We the People’ (1993) 90 Journal of Philosophy 149, 151. Among the recent
well-known attempts to legitimize judicial review one may find: JH Ely, Democracy and Distrust: A Theory of
Judicial Review (Cambridge, Harvard University Press, 1980) 87–104; BA Ackerman, We the People:
Foundations (Cambridge, Harvard University Press, 1991) 16–24; S Freeman, ‘Constitutional Democracy and
the Legitimacy of Judicial Review’ (1990) 9 Law and Philosophy 327. For critiques of these attempts, see
R Dworkin, ‘The Forum of Principle’ (1981) 56 New York University Law Review 469; Waldron, ‘Book Review’
(n 27) 149, 151.
28
Either way, the legitimacy in the third sense is independent of any legal or social legitimacy that exists, or
does not exist, in regard to the new role assumed by the Israeli Supreme Court to review the Knesset’s legislation.
The existence of a legal justification, or a social requirement, never establishes (by itself) a moral requirement,
although the existence of such a legal justification may be relevant to a moral justification. See AJ Simmons,
Moral Principle and Political Obligation (Princeton, Princeton University Press, 1979) 21.
29
While some philosophers have used some of these terms interchangeably, others have often distinguished
between these different concepts.
30
For a fundamental discussion, see J Rawls, A Theory of Justice, revised edn (Cambridge, Harvard
University Press, 1999) 3–4 which defines ‘justice’ as the first virtue of social institution. See Sandel for a cri-
tique of Rawls and on the problems that accompany any philosophical efforts to come up with standards for
the assessment of social institution: MJ Sandel, Liberalism and the Limits of Justice, 2nd edn (Cambridge,
Cambridge University Press, 1998) 15–65.
31
Y Agassi, Letters to My Sister (Tel-Aviv, YBooks, 2000) 151 (in Hebrew); Rawls, A Theory of Justice
(n 30); B Barry, Justice as Impartiality (Oxford, Oxford University Press, 1995) 160–88; Sandel (n 30); Taylor
(n 24) 15–90; J Rawls, Political Liberalism (New York, Columbia University Press, 2005) 54–58; J Waldron,
Law and Disagreement (Oxford, Clarendon Press, 1999); R Unger, Knowledge and Politics (New York, Free
Press, 1975) 241.
32
AJ Simmons, ‘Original-Acquisitions: Justification of Private Property’ in AJ Simmons (ed), Justification and
Legitimacy: Essays on Rights and Obligations (Cambridge, Cambridge University Press, 2001) 197, 200–04.
110 Joshua Segev
institution of judicial review breaches the criteria adopted (ie rights, self-government,
representative government, public trust or other values we hold dear).
Four conclusions follow this analysis regarding the nature of the search for judicial
review’s legitimacy. The first is that locating the legitimacy of judicial review does not
equal an attempt to justify all kinds of judicial review and or every decision made by a
court implementing judicial review. As far as I know, no one argues that courts perform-
ing judicial review are free to act as they please arbitrarily or subjectively motivated by
narrow or self-interests.33 Hence, justifying judicial review is an attempt to justify a cer-
tain type (a general type or a particular type) of judicial review. Very often the search for
the legitimacy of judicial review is conducted in very narrow borders, where scholars
and judges try to justify a ‘local type’ of judicial review as it is practiced in the United
States34 or in Israel.35 In other words, the supporters of judicial review argue that at least
some kind of judicial review, ideal (ie liberal, republican, restraint, activist, centralist or
dispersed) or local (American, Canadian, Israeli or European) are preferable to other
arrangements or institutions, or permissible because of qualities, advantages and bene-
fits it possesses to a given society.
The second conclusion is that the search for the legitimacy of judicial review is inde-
pendent of concrete or specific legal, social or moral judgments which favour a specific
decision made by a court practicing judicial review. Accordingly, justifying judicial
review is content-independent since it is not based directly on the specific value judge-
ment in a specific case.36 Hence, the legitimacy of the American institution of judicial
review is independent of landmark cases such as Brown v Board of Education.37 Racial
segregation is a legal, social and moral wrong, and should be nullified regardless of the
question of the legitimacy of judicial review. The obsession of American theories38 of
judicial review trying to explain and justify Brown or trying to justify judicial review by
appealing to Brown is understandable. However, the Brown decision should be followed
33
Of course more than one of the opponents of judicial review tried to depict judicial review along the lines
of a court acting arbitrarily to glorify its powers and prestige. See, eg in the American context: RH Bork, ‘Our
Judicial Oligarchy’ (1996) 67 First Things 21. However, the attempts to justify judicial review are not aimed at
justifying judicial dictatorship, but rather at rebutting the analogy between judicial review and Plato’s ‘philos-
opher-king’. See, eg A Harel, ‘Rights-Based Judicial Review: A Democratic Justification’ (2003) 22 Law and
Philosophy 247. Obviously, the supporters of judicial review cannot simply allow judges to rely upon their
unconstrained moral views in providing justification on principled grounds. Instead, their moral views have to
be embedded in a legal and political theory that indicates when they may be invoked by the judge practicing
judicial review. See, eg R Dworkin, ‘The Judge’s New Role: Should Personal Convictions Count?’ (2003)
1 Journal of the International Court of Justice 4.
34
See, eg Ackerman, We the People (n 27) 296; JM Farber, ‘Justifying Judicial Review: Liberalism and
Popular Sovereignty’ (2003) 32 Capital University Law Review 65. For arguments questioning the legitimacy of
judicial review as it is practiced in the United States, see RH Bork, The Tempting of America (New York, Free
Press, 1990) 139–41, 153–55, 251–59; Waldron, Law and Disagreement (n 31) 287–88.
35
See A Barak, ‘A Judge on Judging: The Role of the Supreme Court in a Democracy’ (2002) 116 Harvard
Law Review 19, 24.
36
In regard to general accounts for the duty to obey the law, see P Soper, ‘Legal Theory and the Claim of
Authority’ in WA Edmundson (ed), The Duty to Obey the Law: Selected Philosophical Readings (Lanham,
Rowman & Littlefield Publishers, 1999) 213, 221–22; HLA Hart, Essays on Bentham (Oxford, Clarendon
Press, 1982) 254–55; J Raz, The Morality of Freedom (Oxford, Oxford University Press, 1986) 35. In regard to
judicial review see J Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal
1346.
37
Brown v Board of Education 347 US 483 (1954).
38
See, eg the three leading theories of Ely, Ackerman and Dworkin, all seeking to explain and justify Brown
along the fault line of their model of judicial review: Ely (n 27) 65–66, 119–20; Ackerman, We the People (n 27)
133–40; R Dworkin, Law’s Empire (Cambridge, Harvard University Press, 1986) 131.
because of its independent judgment and not just because the United States Supreme
Court ordered the desegregation of schools. The legitimacy of judicial review is a negli-
gible legal, social or moral addition to the requirement to avoid racial discrimination.
The third conclusion derived from the analysis above, is that the legitimacy of judicial
review is in large measure a ‘defensive project’, in that we ask for the justification of
judicial review against a background presumption of possible objections: either com-
parative or non-comparative objections. Hence theories of judicial review are in nature
apologetic,39 since they are required to provide a defence against the background of pos-
sible objections undermining its legitimacy. Thus we justify judicial review against
objections arguing that it is undemocratic,40 counter-majoritarian,41 unjust,42 breaching
the right of equal political participation,43 based on extra-constitutional standards (non-
interpretivism),44 and the like.
The fourth conclusion is about the ‘level’ of the justification of judicial review that is
at issue. Theories concerning the legitimacy of judicial review may appear in two ver-
sions. The first is optimal theories attempting to defend the comparative judgement that
judicial review is superior to alternative constitutional arrangements. Ronald Dworkin’s
claim in his book Law’s Empire – that ‘the United States is a more just society than it
would have been had its constitutional rights been left to the conscience of majoritarian
institutions’45 – is an optimal claim and has to be supported by an optimal theory of
39
The claim about the apologetic nature of judicial review was made in the past by Professor Eisgruber,
arguing that most theories of judicial review apologize for the constitution, and the only controversy is about
what kind of an apology (activist or restraint). CL Eisgruber, ‘Justice and the Text: Rethinking the
Constitutional Relation Between Principle and Prudence’ (1993) 43 Duke Law Journal 1, 3; and compare
S Levinson, ‘Judicial Review and the Problem of the Comprehensible Constitution’ (1981) 59 Texas Law
Review 395. However, Eisgruber argued that constitutional theory is on the verge of abandoning its apologetic
nature since a growing number of scholars are trying to explain the authority of the constitution itself as an
ultimate criteria for judging American politics. See also J Rubenfeld, Freedom and Time: A Theory of
Constitutional Self-Government (New Haven, Yale University Press, 2001). In light of the analysis above, con-
stitutional theories (and theories of judicial review as one kind of constitutional theory) cannot escape the
apologetic nature, since justification always involves rebutting a presumption of possible objections. Hence,
since even ‘new’ theories of judicial review, which take the constitution to be the ultimate criteria to judge poli-
tics, need to provide a defence (apology) why should we take the constitution as a normative standard to judge
politics?
40
JB Thayer, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard
Law Review 129, 154–55; EV Rostow, ‘The Democratic Character of Judicial Review’ (1952) 66 Harvard Law
Review 193, 193–94; C McClesky, ‘Judicial Review in a Democracy: A Dissenting Opinion’ (1966) 3 Houston
Law Review 354, 357–64.
41
Bickel, The Least Dangerous Branch (n 26). The counter-majoritarian difficulty gave birth to two kinds
of theories of judicial review: 1) majoritarian theories rebutting the claim that judicial review is counter-
majoritarian in any meaningful sense (RA Dahl, ‘Decision-Making in a Democracy: The Supreme Court as a
National Policy-Maker’ (1957) 6 Journal of Public Law 279, 285; MJ Klarman, ‘Rethinking the Civil Rights
and Civil Liberties Revolutions’ (1996) 82 Virginia Law Review 1; MJ Klarman, ‘Majoritarian Judicial Review:
The Entrenchment Problem’ (1997) 85 Georgia Law Journal 491). 2) Anti-majoritarian theories which acknow
ledge the counter-majoritarian nature of judicial review, but justify it on the ground of basic values and rights
we hold dear. Accordingly judicial review is aimed at preventing the ‘tyranny of the majority’. (See A de
Tocqueville, Democracy in America (HC Mansfield & D Winthrop trs, Chicago, University of Chicago Press,
2000) 239–42; R Dworkin, Taking Rights Seriously (Cambridge, Harvard University Press, 1977) 184–86;
R Dworkin, ‘Rights as Trumps’ in J Waldron (ed), Theories of Rights (Oxford, Oxford University Press, 1984)
153, 163–64).
42
R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, Harvard
University Press, 1996) 1–38; L Sager, Justice in Plainclothes: A Theory of American Constitutional Practice
(New Haven, Yale University Press, 2004) 70–83.
43
Harel (n 33) 247; Y Eylon and A Harel, ‘The Right to Judicial Review’ (2006) 92 Virginia Law Review 991.
44
Ely (n 27) 1; Dworkin, Taking Rights Seriously (n 41) 131–49.
45
Dworkin, Law’s Empire (n 38) 356.
112 Joshua Segev
judicial review.46 At least part of the controversy surrounding the legitimacy of judicial
review is in the field of optimal theories of judicial review, where supporters argue for
the superiority of some kind of judicial review over non-judicial review or other kinds of
judicial review constitutional arrangements.47 The second is permissible theories
attempting to defend the legitimacy of judicial review on its ability to satisfy some legal,
social or moral requirements and thresholds. Accordingly, judicial review is defensible
(and thus it is permissible for adoption) by its ability to answer some legal, social or
moral threshold even if it is not legally, socially or morally optimal or clearly superior to
all constitutional alternatives. Dworkin’s claim in his book Freedom’s Law – that
‘Democracy does not insist on judges having the last word, but it does not insist that
they must not have it’48 – is a permissible claim and may be supported by a (weak) per-
missible theory of judicial review. While permissible theories of judicial review often
scrutinise other constitutional arrangements, it is not aimed to rank the different
arrangements within which only the top score passes, but rather to shape and constitute
the legal, social or political thresholds which judicial review is required to maintain.
After analyzing the nature and essence of the quest for the legitimacy of judicial review
let me now turn to the developments in jurisprudence of the Israeli Supreme Court
regarding its authority to review the Knesset’s legislation. My aim is to track the consti-
tutional methodology of the Israeli Supreme Court regarding the proper way to justify
judicial review by clearing the fog surrounding talks about the legitimacy of judicial
review. This view point will reveal three methodological phases of the legitimacy of
judicial review: the pragmatic phase, the radical phase and the conservative phase.
IV. THE PRAGMATIC PHASE: THE BERGMAN PERIOD
The pragmatist49 methodology, as I define it,50 is characterised by antagonism or at least

indifference to the question of the justification of judicial review. The pragmatist judge
seeks to resolve the dispute at hand and to avoid deep theoretical questions concerning
the justification and legitimacy of legal institutions such as judicial review.51
The leading precedent for a broad-based judicial review, which mandates the over-
sight of primary legislation, is the Bergman decision,52 which has been cited often as the
46
For a critique of Dworkin’s claim see Waldron, Law and Disagreement (n 31) 287–88.
47
See, eg Freeman (n 27) 327.
48
Dworkin, Freedom’s Law (n 42) 7.
49
The concept of legal pragmatism has been invoked by many scholars: for an elaborated discussion, see
RA Posner, Law, Pragmatism, and Democracy (Cambridge, Harvard University Press, 2003).
50
For a similar definition to pragmatism, see DA Farber, ‘Legal Pragmatism and the Constitution’ (1988) 72
Minnesota Law Review 1331.
51
See also RA Posner, ‘Against Constitutional Theory’ in N Dorsen (ed), The Unpredictable Constitution
(New York, New York University Press, 2002) 217; CR Sunstein, One Case at a Time: Judicial Minimalism on
the Supreme Court (Cambridge, Harvard University Press, 1999).
52
Bergman (n 12). In 1969, the Knesset enacted the Knesset Elections Law and Local Authorities (Funding,
Limits on Expenditure and Control), 5729-1969 (hereinafter: Financing Law), which provided for governmental
financing of political parties in election campaigns. Dr Aharon Bergman, a lawyer, brought an action, appar-
ently in his capacity as an individual elector, before the Israeli Supreme Court, seeking to restrain the Minister
of Finance from paying any expenses under the Financing Law. Dr Bergman’s argument was that the Financing
Law was not duly enacted, since it contradicted the principle of electoral equality entrenched in s 4 of the Basic
Law: The Knesset, according to which: ‘The Knesset shall be elected by general, national, direct, equal, secret
and proportional elections, in accordance with the Knesset Election Law; this section shall not be varied save
by a majority of the members of the Knesset’. Dr Bergman’s complaint was that the Financing Law unlawfully
Israeli Marbury v Madison.53 However, Bergman is far from being Marbury54 as one
examines it in regard to the legitimacy of judicial review.
In fact, the question regarding the court’s authority to review Knesset legislation
based on the Basic Laws was not raised explicitly in Bergman. Rather Justice Landau in
that case, treated the question of justiciability and of the Court’s authority to review
primary legislation, as interchangeable, and referred to the Attorney General’s position
that it was unnecessary to decide the question of justiciability, since even if the matter
was held to be justiciable, the petitioner would nevertheless lose on the merits. Justice
Landau took advantage of this position,55 left this issue as ‘requiring further consider-
ation’, and proceeded to resolve the dispute on the merits without expressing any opin-
ion on the underlying constitutional questions.56 Deciding in favour of the petitioner on
the merits, Justice Landau ordered the Minister of Finance not to enforce the Financing
Law and hence, invalidated it de facto without (again) addressing its authority to invali-
date Knesset legislation. In this way, Justice Landau avoided the highly divisive question
of whether the Israeli Supreme Court was justified in assuming judicial review.
Of course, Justice Landau’s decision, which de facto invalidated the Financing Law
without resolving the fundamental questions of justiciability and judicial review, was
criticised by many scholars. Robert A Burt even argued that ‘Bergman is actually the
least important basis for the Israeli Supreme Court’s contemporary claims for increased
judicial authority’.57 The Bergman decision did not offer any (legal, sociological or polit-
ical) justification to the Court’s authority to review the Knesset’s legislation. Justice
Landau did not impose his vision of the proper constitutional framework upon the
Government and the Knesset.
discriminated against new political parties since it provided public financing only for those parties that were
represented in the outgoing Knesset. According to Dr Bergman, such inequality was unlawful mainly since the
Financing Law was enacted by the Knesset by less than the required absolute majority of its total members, as
is established by s 4 of the Basic Law: The Knesset. In other words, the petition maintained that the last clause
of s 4 gives the section its entrenched feature, distinguishes it from ordinary legislation, and authorizes the
Supreme Court to invalidate the Financing Law, which contradicts the prescription of equal election declared
by this section.
53
Marbury v Madison 5 US 137 (1803). See, eg Justice Zamir in United Mizrahi Bank (n 15) para 1. See also
GJ Jacobsohn, Apple of Gold: Constitutionalism in Israel and the United States (Princeton, Princeton
University Press, 1993) 124; A Barak, ‘Freedom of Speech in Israel: The Impact of the American Constitution’
(1988) 8 Tel Aviv Studies in Law 241, 243: ‘Our Marbury v Madison is about to be pronounced – or maybe it
was several years ago’. But see M Shamgar, ‘On the Written Constitution’ (1974) 9 Isrraeli Law Review 467,
474: ‘Bergman did not pretend to be an Israeli Marbury v Madison but after it, the idea of further development
of judicial review of legislation could not be regarded as entirely unexpected’.
54
On the academic value of Marbury, in the teaching and enquiring about the legitimacy of judicial review,
see S Levinson, ‘Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn’t Either’
(2003) 38 Wake Forest Law Review 553; EJ Segall, ‘Why I Still Teach Marbury (And So Should You):
A Response to Professor Levinson’ (2004) 6 University of Pennsylvania Journal of Constitutional Law 573;
S Levinson, ‘Reply: Why I Still Won’t Teach Marbury (Except in a Seminar)’ (2004) 6 University of Pennsylvania
Journal of Constitutional Law 588.
55
When the Attorney General was asked by the court what his position would be in the event that the Court
determined that there was a violation of s 4 of the Basic Law: The Knesset, the Attorney General responded
that ‘in such event, he was ready to be at the disposal of the Court and express his opinion on the question of
justiciability’. Bergman (n 12) 696. From this exchange, the court decided to leave the question of justiciability
for further consideration, since ‘for obvious reasons, the material problems facing us in these hearings call for
speedy resolution, and consideration of the preliminary constitutional questions would necessitate a lengthy
hearing on its own’. ibid.
56
ibid.
57
Burt (n 14) 2043. See also Y Zemach, ‘How was Judicial Review in Constitutional Matters Established?’
(1975) 29 The Lawyer 515 (in Hebrew).
114 Joshua Segev
The tactic of leaving the question of judicial review open, continued in subsequent
decisions. In Kaniel v Minister of Justice,58 the Court rejected the petitioner’s claim that
an amendment to a Basic Law should have been enacted by a subsequent Basic Law. In
light of this result, the Court, again, found no need to consider the preliminary questions
regarding the justiciability of the issue or the authority of the Supreme Court to review
Knesset decisions.59 In Agudat Derekh Eretz v Broadcasting Authority,60 in which new
parties challenged an amendment to the Financing Law, the Court, once again, alluded
to the Attorney General’s consent not to raise the issue of justiciability since he sought
the advice of the Supreme Court on the substantive controversy. In Rubinstein v
Chairman of the Knesset,61 however, the Attorney General asked for a decision on the
merits, avoiding fundamental questions over the jurisdiction of the Court, but the Court
took a slightly different position. Justice Levin noted:
As the number of petitions concerning constitutional matters, with which the Court agrees to
deal increases, the less chance there is that the Court will refrain from dealing with such cases
in the future, even if the Attorney General raises these questions and questions similar to
these.62
Many scholars believed that Justice Levin’s remark recognised that the point of no
return had been reached on the ability of the Supreme Court to review Knesset legisla-
tion. By deciding this series of cases, the court has pragmatically assumed authority to
review primary legislation according to entrenched provisions included in Basic Laws
and made disputes over this question moot.63 It did so, however, not by providing a
convincing political, sociological or legal justification: that judicial review makes the
Israeli polity a more just society (optimal justification), that it is in accordance with the
principles and essence of a democratic regime (permissible justification), that it is legally
essential (optimal justification), or that it maintains public trust (permissible justifica-
tion). Rather, the issue of the Court’s authority became a moot question by deciding the
constitutionality of Knesset legislation on a case by case basis.
V. THE RADICAL PHASE: THE MIGDAL DECISION
The radical methodology,64 as I define it, is characterised by a belief in the Court’s abili-
ties to engage in supplying reasons that ‘answer the question of legitimacy’65 in a very
broad sense. Moreover, the radical methodology requires us to reveal the ‘genetic code’
of the justification of judicial review by appealing – not to traditions and long standing
practices – but to abstract legal, social and political reasons and principles. Thus, the
role of the Court is far beyond resolving a specific dispute. In fact, its role is even beyond
the ‘merely defensive’,66 and is not confined to the invalidation of a particular statute or
58
Kaniel v Minister of Justice (n 13).
59
ibid 798.
60
Agudat Derekh Eretz (n 13).
61
Rubinstein v Chairman of the Knesset (n 13).
62
ibid 148.
63
Kretzmer (n 10) 117.
64
For a basic discussion of radicalism and its elements in philosophy, see Y Agassi, The History of Modern
Philosophy: From Bacon to Kant (1600–1800) (Tel-Aviv, Ramot, 1993) 35–56 (in Hebrew).
65
BA Ackerman, Social Justice in the Liberal State (New Haven, Yale University Press, 1980) 311.
66
Rawls (n 31) 235.
regulation. It is, in a sense, an exemplar of public reason,67 as it is assigned the role of

articulating a theory of state (legal, sociological or political), part of which is a theory
justifying judicial review.68
In 1995, following the enactment of the two new Basic Laws, the Court was called
upon to decide the United Mizrahi Bank case.69 Many fundamental constitutional ques-
tions were raised, discussed, and determined, necessarily and unnecessarily, by a bench
of nine Supreme Court Justices. This was a lengthy discussion, consisting of about 360
pages of legal analysis. Court President Barak, joined by a majority of the Court,70 out-
lined his theory that Israel had achieved since 1992 fully-fledged judicial review, and that
Basic Law: Human Dignity and Liberty enjoyed normative superiority; hence new legis-
lation that infringes rights protected by the Basic Law must satisfy the requirement of
section 8 – also known as the limitation provision.
As aforesaid, one of the fundamental issues discussed in the United Mizrahi Bank
decision was the propriety of judicial review. The new Basic Laws do not include an
explicit provision regarding the remedies available in cases of a violation of enshrined
human rights, which fails to satisfy the limitation provisions.
Court President Barak in United Mizrahi Bank presents a four-fold argument in
favour of judicial review over primary legislation. The first proposition adopted by
Barak is that the basis for judicial review of the constitutionality of primary legislation is
the principle of the rule of law.71 The central role of the court in a democratic society is
the duty to maintain the rule of law, which includes guarding the law from governmen-
tal transgressions. In countries that have a constitution, the rule of law mandates the
protection of the constitution. ‘The constitution and the Basic Law themselves’, Barak
67
ibid.
68
R Dworkin, ‘In Praise of Theory’ (1997) 29 Arizona State Law Journal 353, 375.
69
United Mizrahi Bank (n 15). The United Mizrahi Bank decision was given by the Supreme Court presiding
as an appellate court on civil matters. Among the decisions appealed in United Mizrahi Bank was an appeal of
a District Court decision invalidating a law because it was unconstitutional under the new Basic Laws. The
District Court judge had decided that an amendment to the Family Agriculture Arrangements Law, 5752-1992,
(more commonly known as the ‘Gal Law’, named after the Knesset Member who promoted it, Gedalya Gal) is
void since it transgresses the right of property included in s 3 of the Basic Law: Human Dignity and Liberty.
The Gal Law was enacted to relieve the economic crisis of the agricultural sector. It was enacted in 1992, prior
to the enactment of Basic Law: Human Dignity and Liberty; hence it was protected from judicial review by
s 10, the immunity provision, which states that the validity of legislation enacted before the Basic Law came
into force will not be affected. The Gal Law stipulated that a trustee should oversee the restoration efforts of
agricultural organizations, and established restrictions on the collection of debts from agricultural organiza-
tions and associations as well as other proceedings of a similar economic nature which were meant to relieve
the pressures of creditors. Although the Gal Law itself was immune from judicial review, its amendment, the
Family Agriculture Arrangements Law (Amendment), 5753-1993, was enacted after Basic Law: Human Dignity
and Liberty came into effect, and therefore was exposed to constitutional review in light of the new Basic Law.
The amendment to the Gal Law contained two major changes: extension of the period in which debts could be
created, which debts were to be handled by the trustee, as well as changes in the definition of debts and their
assessment. Among the decisions appealed to the Supreme Court, was the decision that the amendment to the
Gal Law transgressed the creditors’ property rights enshrined in s 3 of the Basic Law: Human Dignity and
liberty. Since the transgression, according to the District Court judge, did not satisfy the requirement of the
limitation provision, the amendment to the Gal Law was declared void by the District Court judge. To make a
300 page story short, the Supreme Court determined that although the amendment to the Gal Law did, in fact,
transgress the property rights of creditors and hence violated s 3 of the Basic Law, this transgression was
allowed since it satisfied the standards of the limitation provision. The petitions could have been decided on
fairly narrow grounds – that the Gal Law did not clash with the Basic Law – which would have made the con-
stitutional deliberation of the United Mizrahi Bank decision unnecessary. The justices, however, were eager to
express their opinions on the so-called Constitutional Revolution, its sources, its meaning, and its scope.
70
Justice Cheshin was the only justice who dissented.
71
United Mizrahi Bank (n 15) para 78 of Court President Barak’s opinion.
116 Joshua Segev
writes, ‘legitimise the judicial review of constitutionality’.72 The second proposition

introduced by Barak is that judicial review is derived from the principle of separation of
powers.73 The role of the legislator is to legislate, while the responsibility of the court is
to interpret the constitution when a dispute arises as to the proper interpretation of the
constitution. Hence, according to Barak, when a court declares a law unconstitutional
and thus void, it implements the principle of separation of powers rather than violating
it. The third proposition is that judicial review over legislation is an ‘integral element of
the essence of democracy’,74 since democracy is a delicate balance between majority rule
and fundamental values (among them protecting minority rights). The fourth proposi-
tion, argued by Barak, is that judicial review is an expression of constitutional values.
Judicial review, according to Barak, is not a manifestation of the judges’ subjective will,
but rather a reflection of fundamental social perceptions provided by the mechanism of
judicial objectivity.75
As striking as it may seem, the bench of nine Supreme Court Justices unanimously
agreed that the Supreme Court itself possesses the power of judicial review over primary
legislation even though the Basic Laws did not explicitly empower it to do so. We have
seen in the previous chapter that up until the 1980s the Supreme Court avoided, as much
as possible, the question of the legitimacy of judicial review. Although the prevailing
view among the academic community was that the decisions from Bergman to Rubinstein
v Chairman of the Knesset assumed the authority to review primary legislation, under
entrenched provisions in the Basic Laws, the Court has not offered explicitly or unequiv-
ocally a theory asserting and legitimizing such authority. Thus the United Mizrahi Bank
decision indeed signifies a revolution – a methodological revolution – since the Supreme
Court has changed its approach to the way by which questions of judicial review of pri-
mary legislation should be answered. Questions about the legitimacy of judicial review
should be directly confronted and deliberated upon systematically and profoundly. This
has led not only to the expansion of judicial review over primary legislation (which is the
direct result of the Constitutional Revolution), but also to the creation of a radical con-
stitutional theory. This theory developed independently of past traditions and practices
and conflated the question of judicial review with ideas such as democracy, the protec-
tion of human rights, and justice.76
As explained above, this chapter is not meant to examine the strength of the argu-
ments77 put forward by the court to justify judicial review, but rather to draw our atten-
tion to the fact that the methodology in justifying judicial review has changed, and alert
us to the danger of methodology manipulation. One should notice the following two
insights regarding Court President Barak’s methodology. First, Court President Barak
confronts the question of the legitimacy of judicial review very broadly, namely, in all
the three major fronts: legal legitimacy, moral legitimacy and social legitimacy.
Accordingly, the first two arguments should be interpreted in legal terms, that is, that
72
ibid.
73
ibid para 79.
74
ibid para 80.
75
ibid para 81.
76
As Professor Gavison correctly points out, the mere fact that some democracies exist without the institution
of judicial review suggests that nothing in the idea of democracy itself requires such a review. See R Gavison, ‘The
Role of Courts in Rifted Democracies’ (1999) 33 Israeli Law Review 216, 221.
77
For a critical analysis of these and other arguments in favour of judicial review see ibid 221–25; Waldron,
Law and Disagreement (n 31) 282–312.
the legality of the Basic Laws provides the legality of judicial review and that the legal
principle of separation of powers provides the adoption of judicial review. Hence, he
mounts a legal defence against those who question the claim that judicial review is
legally required or derived from accepted legal materials.78 The third argument should
be understood in moral and political terms, that is, that judicial review is part and
essence of the attractive moral ideal of a democratic regime. The fourth argument should
be viewed as answering the question of social legitimacy, namely, rebutting the objec-
tion that judicial review is a manifestation of the judge’s own subjective perception and
is not supported by social and public perceptions.
Second, Court President Barak’s arguments are not clear in regard to their level of
justification: whether the defence of judicial review in the United Mizrahi Bank decision
is an optimal defence or only a permissible defence. This ambiguity is not accidental. It
enables Court President Barak to use the radical methodology without confronting
head-on the burning legal, social and political questions that arise from the Supreme
Court’s shift in deciding to assume a fully-fledged judicial review. The first two argu-
ments and the fourth argument seem to defend judicial review on its ability to satisfy the
principles and requirements of the rule of law, the separation of powers and fundamen-
tal social perceptions. The third argument seems to aim much higher, since the claim is
that judicial review is part and parcel of a true democracy, establishing, arguably, its
superiority over non-judicial review constitutional arrangements. Is judicial review
‘good enough’ or ‘the best’ constitutional arrangement according to Court President
Barak? One explanation of Court President Barak’s approach is that optimal arguments
are much harder to prove than permissible arguments (all things being equal).79 Thus
while Court President Barak initially attempted to show that judicial review is the best
possible democratic institution, he is pushed to make a much weaker permissible argu-
ment in favour of judicial review based on the virtue that it possesses – the rule of law or
separation of powers.
The second explanation for the ambiguity of Court President Barak’s level of justifica-
tion is much more sophisticated and attributes to him the motivation (even if it is on a
subconscious level) to avoid really hard questions of the legitimacy of judicial review
under Israel’s constitutional circumstances. I will explain: while Court President Barak
is far from being clear about the ties that link the different arguments together it is
important to see that the fact that judicial review has virtues, benefits and advantages
will probably provide comfort to free-will participants in the enterprise of judicial
review: judges, lawyers and petitioners to the Israeli Supreme Court. Their choice to
participate and take part in this enterprise was no thoughtless choice nor was it a choice
to participate in an immoral or illegal arrangement. However, Court President Barak’s
78
A second way to understand Court President Barak’s first argument is by interpreting legitimacy in moral
and political terms. However, this interpretation is open to serious objections, related to the circumstances of
judicial review in Israel. According to the moral interpretation, the moral and political propriety of Basic Laws
provides the moral and political propriety of judicial review. First, some scholars and public representatives
believe that the process by which Basic Laws have been enacted is not legitimate. See, eg M Tushnet, ‘Book
Review: The Universal and the Particular in Constitutional Law: An Israeli Case Study’ (2000) 100 Columbia
Law Review 1327. Second, it has also been argued that the new Basic Laws were not meant to endow the
Supreme Court, as currently composed, with the full power of judicial review. Third, the overall justness or
moral propriety of the new Basic Laws themselves has been attacked. Fourth, it has been argued that justice, as
such, does not require the establishment of judicial review. See Waldron, Law and Disagreement (n 31)
287–89.
79
Simmons, ‘Justification and Legitimacy’ (n 22) 124.
118 Joshua Segev
argument is not aimed only at wilful participators, but also at legislators, public repre-
sentatives and ordinary citizens, who consist also of judicial review’s sceptics, that is,
those who questioned the legitimacy of judicial review; did not choose it and are subject
to it against their free will. A permissible level of justification to judicial review, com-
bined with a radical methodology, seems a complete non sequitur. Showing that it is
permissible to adopt judicial review is very different from showing that Israel’s citizenry
did adopt judicial review. Showing the last proposition must include some kind of his-
torical data and propositions that would support the conclusion that judicial review, is
not only permitted for adoption, but also was in fact (as a matter of real history legal,
political or social) adopted by the Israeli citizenry. For example, that the adoption of
judicial review is the result of a (real) political compromise, process or transaction.
Without that, Justice Barak’s abstract arguments, which are not based on concrete his-
tory and long-standing practices, simply beg the question: why should Court President
Barak (joined by a bench of eight justices) have the right or authority to decide about the
adoption of judicial review for us all? In order to bypass this objection Court President
Barak’s theory of legitimacy must move from the permissible level to the optimal level.
The optimal level of justification asks us to adopt the best feasible constitutional arrange-
ment: if judicial review is the ‘best’ constitutional arrangement, Israel’s citizenry
must choose it even if as a matter of historic fact they did not choose it. Hence, the ambi-
guity of Court President Barak’s level of justification: a permissible level of justification
combined with a radical methodology do not do the job of legitimizing judicial review
under Israel’s circumstances; an optimal level of justification combined with a radical
methodology can do the job (since it is not contingent upon Israel’s unique constitu-
tional history), but is highly questionable and divisive theoretically.80
VI. THE CONSERVATIVE PHASE
The conservative81 methodology, as I define it, is characterised by scepticism about our

ability to base the legitimacy of judicial review on a limited number of goals, patterns
and principles. Social institutions – and judicial review is no exception in this regard –
are too complicated and unique to be reduced to a theory consisting of few principles
and rules. The conservative methodology does not question the legitimacy of judicial
review, but rather the human ability to grasp this legitimacy isolated from the social his-
tory of a given society. Accordingly, the conservative thought bases the legitimacy of
judicial review upon social relationships, norms and conventions which are formed by
an historic genealogy of precedents, traditions and shared conventions. Our current con-
stitutional arrangement is rational although its rationality cannot be grasped in isolation
from its concrete historic development, facts and circumstances.
80
See Waldron, Law and Disagreement (n 31); Gavison, ‘The Role of Courts’ (n 76).
81
On constitutional conservatism, see and compare: M Tushnet, ‘Conservative Constitutional Theory’ (1985)
59 Tulane Law Review 910; R West, ‘Progressive and Conservative Constitutionalism’ (1990) 88 Michigan Law
Review 641; G Lawson, ‘Conservative or Constitutionalist?’ (2002) 1 Georgetown Journal of Law and Public
Policy 81; AM Bickel, The Morality of Consent (New Haven, Yale University Press, 1975) 3–30; DA Strauss,
‘Constitutions, Written and Otherwise’ (2000) 19 Law and Philosophy 451; CR Sunstein, ‘Burkean Minimalism’
(2006) Chicago Public Law and Legal Theory Working Paper No 116: www.law.uchicago.edu/files/files/116-crs-
burke.pdf; E Young, ‘Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation’
(1994) 72 North Carolina Law Review 619; TW Merrill, ‘Bork v Burke’ (1996) 19 Harvard Journal of Law and
Public Policy 509.
In 2003 the Supreme Court was called to decide Bank Leumi v Hazan.82 The Hazan
decision dealt with another amendment to the Family Agriculture Arrangements Law,
5752-1992.83 The Law’s previous amendment was at the centre of the United Mizrahi
Bank decision. Hence, the Hazan decision possessed the potential of a re-examination
(or at least a further evaluation) of the Constitutional Revolution – its benefits and costs,
including the costs and benefits of adopting judicial review. Not only that this potential
was not fulfilled, but rather we witness a conservative revolution in the Court’s method-
ology. Justice Ayala Procaccia (joined by Justices Mazza and Englard) opened her con-
stitutional analysis by declaring that Basic Law: Human Dignity and Liberty establishes
the protection of the right to property and presupposes the prohibition of infringement
upon this right without satisfying the Limitation Clause. The conservative reasoning
quickly follows this announcement:
The Basic Law, according to its simple linguistic meaning, and according to its interpretation
which has put down roots in Supreme Court’s jurisprudence and precedents, establishes its
superiority not only over secondary legislation but over primary legislation as well.84
And she continues:

The Limitation Clause in the Basic Law establishes the superior status of the Basic Law . . .
This ruling was established by Court President Barak in the United Mizrahi Bank precedent
. . . a failure to satisfy the constitutional requirements turns the law to be unconstitutional . . .
The court may declare its nullification.85
Notice the significance of precedents in Justice Procaccia’s reasoning for establishing the
Court’s authority to review the Knesset legislation.
Furthermore, the conservative methodology can be identified in Justice Barak’s own
judicial reasoning post the Constitutional Revolution. In the Movement for Quality
Government in Israel v Knesset86 the petitioners sought the drafting for the military of
students of religious institutions called Yeshivot by the nullification of the Knesset’s leg-
islation exempting Yeshiva students from enlistment to the military. Justice Asher
Grunis argued in favour of adopting the theory of judicial review presented by John
Hart Ely in his book Democracy and Distrust.87 According to Ely’s theory, Grunis
explained, the role of the court in performing judicial review is to keep the democratic
channels open and protect weak and isolated minorities. A statute which privileges the
religious minority on behalf of the secular majority should not be nullified.88 Court
President Barak responded by arguing that Ely’s theory cannot explain Israel’s constitu-
tional history:
In my opinion, Ely’s theory is wrong from within; it is based on a narrow and improper
conception of democracy; it has not been accepted in the United States where it was conceived,
and was not adopted by other countries that practice judicial review. It is foreign to our consti-
tutional structure and it contradicts all our constitutional decisions.
82
LCA 3145/99 Bank Leumi v Hazan 57(5) PD 385 [2003] (in Hebrew).
83
See n 69 above.
84
Hazan (n 82) 397.
85
ibid.
86
HCJ 6427/02 Movement for Quality Government v Knesset 61(1) PD 619 [2005] (in Hebrew).
87
Ely (n 27).
88
Movement for Quality Government (n 86) para 9 of Grunis J’s opinion.
120 Joshua Segev
. . . Ely’s approach . . . asked to explain the interpretation of the American constitution . . .

Harsh criticism was leveled against it even in the USA . . . the accepted opinion is that it is not
a proper explanation to the status of the American constitution. The American Supreme Court,
through all its generation, did not accept it . . .
Be Ely’s approach as it may, it could not be anchored in Israel’s constitutional structure. My
friend Justice A. Grunis did not explain at all, how can Ely’s approach be adopted in Israel?
There is no explanation at all how it could fit this court’s rulings since the Migdal decision.
Was the Bank . . . a minority group worthy of protection? Was this the reasoning upon which
rest the judgments in that decision?89
In his response to Justice Grunis, President Barak continued to review other court deci-
sions post the Constitutional Revolution arguing that Grunis’s theory cannot explain
these decisions.90
VII. CONCLUSION
Former US Vice President Spiro Agnew, complained bitterly after the Watergate scandal
blew up: ‘Suddenly the rules are changed in the middle of the game’.91 It is a well-known
proposition that the Constitutional Revolution signified a departure from Israel’s past
constitutional practices, rules and decisions – and hence the rules of Israel’s constitu-
tional arrangements have changed. However, this chapter comes to the conclusion that
some of Israel’s constitutional rules have changed again after the Constitutional
Revolution. This chapter examined the constitutional methodology of the Israeli
Supreme Court regarding the proper way to justify judicial review. This view point
revealed three methodological phases of the legitimacy of judicial review: the pragmatic
phase (prior to the Constitutional Revolution), the radical phase (the Constitutional
Revolution) and the conservative phase (post Constitutional Revolution). This distinc-
tion showed how the Israeli Supreme Court has changed its methodology, that is, the
rules and nature of the ‘justification game’ in order to establish judicial review in Israel.
It would not be a huge leap to assume that the last change was not a coincidence as well:
it was meant to preserve the achievements of the Constitutional Revolution. However,
the preservation of these achievements was made at the expense of changing the rules in
the middle of the game, which goes against the fundamental concept of constitutional
fairness.
89
ibid paras 75, 78 and 79 of Court President Barak’s opinion.
90
ibid para 79 of Court President Barak’s opinion. Another example of the conservative shift in Court
President Barak’s methodology could by identified in his position regarding the model of judicial review that
should be adopted: centralized or dispersed review. In early cases and writings Justice Barak wrote in favour of
a dispersed form of judicial review, but in recent articles he has argued that the centralized version of judicial
review better fits our legal tradition A Barak, ‘Judicial Review of the Constitutionality of Statutes: Centralism
v Decentralism’ (2005) 8 Law and Government 13, 21–22 (in Hebrew). Accordingly it would be a sharp turn
from a parliamentary democracy to a constitutional democracy if every court could review Knesset legislation.
As long as public perception is not used to the idea of judicial review it would be better to concentrate the
authority to review Knesset legislation in the hands of the Supreme Court alone.
91
S Alsop, ‘President Agnew: It has Serious Sound?’, Newsweek, New York, 29 July 1973.
9
The Democratic Case for Diffuse
Judicial Review in Israel
ORI ARONSON*
I. INTRODUCTION
T
HE DESIGN OF a legal system that includes an element of judicial review of
the constitutionality of legislation entails a choice of constitutional jurisdiction.
Two general models are most common in the world’s constitutional demo
cracies: a diffuse model of judicial review, in which all courts within the judiciary are
empowered to hold a statute unconstitutional, and a concentrated model of judicial
review, in which the power to strike down legislation is entrusted with a single central
ised forum.
In Israel, the institutional vehicles for exercising the power of judicial review are yet to
be settled in an authoritative way, and are therefore subject to countervailing ideologi
cal, intellectual, and jurisprudential currents. In the jurisdictional context, which is the
focus of this chapter, Israel has so far avoided making a choice. Its system of judicial
review contains elements of both the diffuse and the concentrated models, in formations
that are sometimes complementary and at other times contradictory. I will define this
condition as the ‘double hybridity’ of Israeli constitutional jurisdiction.
As public debate continues over Israel’s evolving constitutional order, the normative
discussion as to the ultimate choice between the diffuse and concentrated models of judi
cial review has plotted an exceptionally consensual trajectory towards the concentrated
end of the jurisdictional spectrum: commentators and stakeholders of different convic
tions find themselves in a curious coalition that favours concentrated judicial review for
Israel. While actual reform along these lines is yet to happen, the emerging preference of
a concentrated system of judicial review warrants attention and critique.
In this chapter I offer an analysis of the current jurisdictional state of affairs in the
field of judicial review, as well as an evaluation of the political and intellectual discourse
that has been reimagining it for the past two decades. These lead to a critique of what I
find to be a prevalent capture with a Supreme Court dominated understanding of consti
tutional adjudication. This reality, I argue, overlooks the redeeming potential of trial
court adjudication for a deliberative, participatory, and pluralistic process of creating
* I am grateful to Menny Mautner and Dori Spivak for helpful comments and insights, and to Dana Cohen
for research assistance.
122 Ori Aronson
constitutional norms and understandings; that is, for a profoundly democratic kind of
constitutionalism. Because Israel did not experience a popularly engaging ‘constitutional
moment’, and because it is replete with cultural and ideological divisions, the need for
democratizing its processes of constitutional lawmaking is especially pronounced.
Therefore, as Israel proceeds in its journey towards a fully established constitutional
order, I hope to show that the democratic promise of the diffuse model of judicial review
should not be missed.
I begin, in part II, with some definitions of the main concepts used throughout the
chapter. Part III examines the jurisdictional state of judicial review in Israel, describing
it as a complex hybrid of diffuse and concentrated elements. Part IV tracks and critiques
the ongoing debates in Israeli politics and academe over the future of judicial review. It
identifies the curious coalition that has converged in support of a concentrated model of
judicial review for Israel. Part V presents a normative intervention in the discourse,
which stresses the unique characteristics of trial court adjudication and the democratiz
ing potential they might entail for Israeli constitutionalism. The implication is that the
diffuse model of judicial review holds a promise that ought not to be neglected. Part VI
concludes.
II. DEFINING THE CONCEPTS
Following are brief introductory definitions of the central concepts of the discussion that
follows. These are not definitive framings, rather generalizations that seem to capture
prevailing understandings and usages.
Judicial review. ‘Judicial review’ is the act of a court, which strikes down a piece of
legislation, having found that the legislative content violates a superior constitutional
norm. The definition as I use it here is limited, therefore, to the review of legislative acts
alone, and not other governmental acts (eg executive or administrative). The purpose
here is to limit the discussion to those judicial acts, which are explicitly ‘counter-
majoritarian’ in Bickelian terms.1 Further, the definition concerns only review of legisla
tive content – I leave aside challenges to legislative validity that are based on the various
(constitutional and other) norms regulating the legislative process. Such claims raise
arguably distinct jurisprudential questions that this chapter does not treat.
The power of judicial review can emanate from a constitutional text, as it does in
many of the world’s current constitutions;2 or it can result from a judicial interpretive
act, backed by some social-political mechanism of legitimation, as has been the case in
the United States.3 Be that as it may, the notion of judicial review assumes a normative
system that subjects regular legislative acts to a higher constitutional order, and hands
judges the authority to enforce this hierarchy. It seems beyond dispute that the constitu
tional system in Israel today includes at least some version of judicial review.
1
AM Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, Yale
University Press, 1962).
2
See, eg Grundgesetz für die Bundesrepublik Deutschland (Grundgesetz) (GG) (Basic Law), 23 May 1949,
BGBl I, art 93 (Ger); Canadian Charter of Rights and Freedoms, 17 April 1982, s 24; S African Constitution, 1996,
s 167.
3
Diffuse Judicial Review 123
Diffuse judicial review. In a diffuse system of judicial review all courts within the sys
tem are in principle authorised to review legislation for constitutionality.4 Just like other
commonplace acts of legal interpretation, findings of constitutionality and, more con
sequentially, of unconstitutionality are made initially by a trial court of original juris
diction, and may then proceed up the judicial hierarchy by way of appellate review.
Like other legal determinations made by lower courts, a finding of unconstitutionality
entered by a trial court applies only to the parties involved in the given case; the reviewed
statute, if somewhat wounded, retains in principle its force in all other cases.5
The diffuse system of judicial review accepts, therefore, at least temporary phases of
incoherence, uncertainty, and even contradiction in the constitutional order: while one
trial court may invalidate a law, another may find it constitutional. These phases are
likely to end as cases reach the higher courts of the system and ultimately the Supreme
Court, which provides an authoritative resolution to the constitutional question, bind
ing all other courts through the power of precedent. The United States and Canada are
familiar examples of diffuse systems of judicial review.
Concentrated judicial review. Concentrated, or centralised, systems, locate the power
of judicial review with a single tribunal, often a separate specialised constitutional
court.6 The concentrated system denies inferior (and sometimes supreme) courts the
jurisdiction over matters of constitutional interpretation and application, and instead
institutes mechanisms for channelling all constitutional challenges directly to the single
body charged with the power of judicial review.7 These may include direct petitions to
the constitutional tribunal, as well as certification of questions of constitutional validity
that arise during the processes of legislation or litigation to the centralised forum.8
Concentrated judicial review works in a once-and-for-all fashion: a constitutional chal
lenge arrives, in principle, only once before the constitutional court, and its determina
tion is final and binding, in the sense that no other court (nor, arguably, any governmental
body) can subsequently revisit the same question.9
Because constitutional courts in a concentrated system of judicial review are often
specialised tribunals whose specialization treads the explicitly political, their personal
makeup and appointment procedures may (and often do) vary from those of regular
courts, and sometimes incorporate more openly political and less legal-professional ele
ments.10 Concentrated judicial review is the more prevalent model in the world’s consti
tutional jurisdictions. Notable examples are Germany, South Africa, France, and Italy.
Types of constitutional challenges notwithstanding. The distinction between diffuse
and concentrated judicial review is often comingled with the types of constitutional chal
lenges presented to the court: the centralised model is often linked to direct challenges of
4
See generally AR Brewer-Carías, Judicial Review in Comparative Law (Cambridge, Cambridge University
Press, 1989) 127–35; M Cappelletti, The Judicial Process in Comparative Perspective (Oxford, Clarendon Press,
1989) 133–35; A Stone Sweet, ‘Why Europe Rejected American Judicial Review and Why it May Not Matter’
(2003) 101 Michigan Law Review 2744, 2770–71.
5
This account is complicated by the remedy of injunction, which may be worded in comprehensive terms,
and is assumed to apply to a whole industry or to a governmental body. Class actions in constitutional contexts
can also have a similar effect.
6
Brewer-Carías (n 4) 185–94; Cappelletti (n 4) 136–46.
7
VF Comella, Constitutional Courts and Democratic Values: A European Perspective (New Haven, Yale
8
ibid 7–8.
9
ibid 9.
10
ibid 39–45.
124 Ori Aronson
unconstitutionality (ie processes in which the remedy sought is the annulment of the stat
ute) as well as to abstract challenges (challenges to the statute as a whole, regardless of
how it would be interpreted and enforced); while the diffuse model is often attached to
indirect challenges (raised primarily as a defence in the context of a proceeding in which
the statute is invoked) and to as-applied challenges (in which a certain effect or application
of the statute is put under review). While these correlations are often accurate, they are not
necessary and counter-cases can arise: consider for example a diffuse–direct suit for declar
atory or injunctive relief; or a concentrated-as-applied petition seeking to limit the scope of
a statute even before its entry into force.
The implication is that the choice between diffuse and concentrated judicial review –
or some combination of the models – cannot be derived from prior jurisprudential or
procedural assumptions. Rather it has to rely on our understanding of institutional com
petence and political preference.
III. JUDICIAL REVIEW IN ISRAEL: A STATE OF DOUBLE HYBRIDITY
Absent deliberate design, the institutional formation of the practice of judicial review in
Israel has evolved haphazardly into an intriguing combination of diffuse and concen
trated elements, constituting what may be termed ‘double hybridity’. In order to evalu
ate this institutional state of affairs, a brief primer on the jurisdictional framework of
the Israeli Supreme Court is necessary. I will follow with a separate examination of the
diffuse and the concentrated aspects of the Israeli system of judicial review, and then
reflect more comprehensively on the overall jurisdictional design that emerges.
A. The Israeli Supreme Court: A Case of Mixed Jurisdiction
The Israeli Supreme Court consists (currently) of 15 justices, who normally adjudicate
cases in mostly random panels of 3. The Court President can decide to enlarge the panel
when a uniquely important issue is under consideration, and such enlargements – some
times even to panels of 9 or 11 justices – have become more common in the past two
decades, along with the deepening role of the Court in deciding politically contested
matters and the introduction of judicial review during the same period.11
The Court’s panels sit interchangeably in two kinds of jurisdictional capacities:
1. High Court of Appeals. The Supreme Court is Israel’s court of last resort for all
appeals from the civilian court system, which consists broadly of two lower levels of
trial and mid-appellate jurisdiction. Depending on subject matter and procedural his
tory, the Court hears some of the appeals as a matter of right, while exercising discre
tionary jurisdiction over the rest. Supreme Court decisions carry a precedential effect
that binds all lower courts,12 such that the Court is the final settler of civil, criminal,
and administrative law through its appellate jurisdiction.
2. High Court of Justice. The Supreme Court is also a court of original, non-discretionary,
jurisdiction for petitions for writs of mandamus against the state and its organs. Through
11
See S Navot, The Constitutional Law of Israel (Hague, Kluwer Law International, 2007) 139.
12
Basic Law: The Judiciary, s 20(b).
its jurisdiction as High Court of Justice, the Court has over the past six decades devel
oped a rich body of constitutional and administrative law, sometimes backed by legisla
tion but often through its original creation by way of common law. Since the late 1980s,
the justices have lifted most of the standing and justiciability barriers that have tradi
tionally checked the flow of direct petitions to the Court. Consequently, the Court cur
rently considers about 2,000 HCJ petitions every year, filed by individuals, public
interest organizations, and public officials, challenging the full variety of governmental
action (legislative, executive, administrative, religious and military), both in the abstract
and in the context of specific violations. Each of these petitions is disposed of by a panel
of at least three justices.
While each of the Supreme Court’s two jurisdictional purviews involves a different set
of procedures – notably, appeals are decided based on records developed by inferior
courts; while petitions are premised on parties’ submitted (and rarely challenged) affida
vits – the practical distinctions between them are not highly significant. Thus, a Court’s
panel will regularly hear both sorts of cases during a single sitting, depending on mere
scheduling factors; cases of both kinds which deal with similar issues are often joined
and heard in tandem; and, as a matter of public perception, the Court’s two functions
are often mixed, with the epithet ‘Bagatz’ – signifying the Hebrew acronym for High
Court of Justice (HCJ) – used as a general reference for the Supreme Court.
B. Israel’s Diffuse System of Judicial Review
As a formal jurisdictional matter, Israel currently upholds a diffuse system of judicial

review. In the absence of a written constitutional framework constructing the practice of
judicial review and defining its jurisdictional boundaries, the power of judicial review
has been recognised by the Israeli Supreme Court in a ‘Marburian’ moment in the
famous United Mizrahi Bank case of 1995, as the power of any court to consider the
constitutionality of a statute it is about to apply.13 Indeed, the very historic case of United
Mizrahi Bank – heralding what is known as Israel’s ‘Constitutional Revolution’14 –
arrived at the Supreme Court in its capacity as a High Court of Civil Appeals, following
the decisions of two lower courts to strike down a statute due to its violation of a consti
tutionally guaranteed right to property.15
In United Mizrahi Bank, the Supreme Court classified the newly recognised con
stitutional texts – the 1992 rights-protecting Basic Laws – as higher laws; that is, as
valid instances of the legislature’s constitutional lawmaking authority.16 Although of a
constitutional level, the Basic Laws were understood as pieces of legal matter that were
13
CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 49(4) PD 221, 418 [1995] para 77 of
Court President Barak’s opinion (in Hebrew).
14
See, eg R Hirschl, ‘Israel’s “Constitutional Revolution”: The Legal Interpretation of Entrenched Civil
Liberties in an Emerging Neo-Liberal Economic Order’ (1998) 46 American Journal of Comparative Law 427,
428–31.
15
A right to personal property was included in Basic Law: Human Dignity and Liberty. The Basic Law was
determined by the Supreme Court in the United Mizrahi Bank case to constitute an initial Bill of Rights and to
empower courts to review the constitutionality of ‘regular laws’ against its rights-guarantees.
16
This of course closely echoes Marshall CJ’s reasoning in Marbury (n 3) 177, which itself drew on
Alexander Hamilton’s similar arguments in A Hamilton, ‘Federalist No 78’ in The Federalist Papers 465 (New
York, NAL Penguin, 1961).
126 Ori Aronson
part of the prevailing legal order, applicable (like all other laws) to any legal dispute,
regardless of the forum in which they are invoked. Reflecting this understanding, the
Supreme Court in several subsequent cases has sent parties to raise indirect constitu
tional challenges in the context of ongoing litigations in inferior courts rather than pres
ent a direct and abstract challenge to the High Court of Justice;17 and in a single instance
so far it has struck down a law in its capacity as a High Court of Appeals.18
In the absence of any further legislative action in the constitutional field, therefore, the
Israeli judicial system has been functioning under the assumption that any and all courts
are in principle empowered to strike down statutes due to a violation of constitutional
rights-guarantees. The Supreme Court, in this picture, is a mere appellate instance that
gets a chance to review constitutionality only pursuant to lower court decisions.
Realizing the availability of a new field of legal claims, litigants and attorneys have
been regularly arguing the unconstitutionality of various statutes in mostly indirect
challenges within criminal, civil, and administrative procedures in the multiple levels of
trial and appellate jurisdiction. The various inferior courts have been duly considering
the merits of these claims (with jurisdiction normally uncontested) and, as a tentative
canvassing of the case law reveals, rejecting their vast majority, save very few instan
ces.19 Hence the characterization of the Israeli system of judicial review as only formally
diffuse: despite its uncontested legality, diffuse judicial review has been scarcely
employed in Israel and has had practically no effect on the validity of any law. Israel’s
trial courts retain the jurisdiction to strike down statutes, and have incorporated the
relevant discourse in their judicial vocabulary, but so far have shied away from putting
their newly discovered power to actual and resonating use.
Of the few cases in which trial courts did declare a law unconstitutional, only one
made it to public consciousness, and is therefore worth reflecting on in a little detail, as
an exhibit of how judicial review by a lower court has been perceived and rewarded. In
the 2003 criminal case of Handelman, a magistrate court, which is the lowest of the three
main instances in Israel, held unconstitutional a provision of the Income Tax Ordinance
(New Version).20 The defendant was acquitted from the relevant charge, and the
Government, likely for strategic reasons, did not appeal the constitutional determina
tion, effectively limiting its impact to that single individual.
Nonetheless, in deciding the defendant’s appeal from his conviction of several other
charges, the District Court, sitting as a mid-appellate level, chose to reprimand the magis
trate judge for ‘hasting’ to strike down the provision, instead of working harder to reach a
17
See, eg HCJ 8424/01 Handelman v Income Tax Commissioner (30 September 2002), Nevo Legal Database
(by subscription) (in Hebrew); HCJ 2055/02 Oubeid v Minister of Defence (12 December 2002), Nevo Legal
Database (by subscription) (in Hebrew); HCJ 7190/05 Lobel v Government of Israel (18 January 2006), Nevo
Legal Database (by subscription) (in Hebrew). The Court stated in these cases the discretionary nature of its
power to grant a remedy when an alternative venue exists for presenting the constitutional claim. In many other
cases it has, nonetheless, agreed to consider direct constitutional challenges – these will be described in the fol
lowing section. See below, text accompanying nn 23–24.
18
CHR 8823/07 John Doe (Anon) v State of Israel (11 February 2010), Nevo Legal Database (by subscrip
tion) (in Hebrew).
19
I am currently aware of only four cases in which an Israeli trial court has effectively struck down inter
partes, a statutory provision. See CrC 4696/01 State of Israel v Handelman (14 April 2003), Nevo Legal
Database (by subscription) (in Hebrew); SC (PT) 940/07 Taruf v Iberia (8 July 2007), Nevo Legal Database (by
subscription) (in Hebrew); SC (Ac) 1457/07 Inbar v Iberia (20 November 2007), Nevo Legal Database (by sub
scription) (in Hebrew); NI (Naz) 1822/09 Yedinek v National Insurance Institute (7 January 2010), Nevo Legal
Database (by subscription) (in Hebrew). A full empirical survey is still ongoing, however.
20
State of Israel v Handelman (n 19).
constitutionally sustainable interpretation.21 In addition, despite the decision’s extremely

limited application and its conformity with the diffuse logic of Israeli constitutional juris
diction, the fact that a low-level court was allowed to review the validity of a piece of pri
mary legislation was greeted with much alarm by prominent politicians, signalling this
case as an example of the unchecked judicial power unleashed by the ‘Constitutional
Revolution’.22 Although its place in Israeli tax law, or in Israeli constitutional law, was
wholly negligible, Handelman turned out to be a telling case of constitutional politics: it
revealed some of the mechanisms that may work to dispirit trial-level constitutional activ
ism, as well as the processes of education and acculturation that would be required in
order to turn the Israeli system of judicial review from formally to genuinely diffuse.
C. Israel’s Concentrated System of Judicial Review
Stemming from the dual jurisdiction of its Supreme Court, Israel currently upholds a
concentrated system of judicial review alongside its diffuse design. When it presides as a
High Court of Justice – a court of original (first and last) jurisdiction – the Court regularly
considers direct constitutional challenges to the validity of legislation, often (but not neces
sarily and not always) brought by public interest organizations and argued in the abstract.
Because its jurisdiction is defined in extremely broad terms, including the authority to ‘give
relief for the furtherance of justice’ and to order any governmental organ to ‘act or to cease
from acting’,23 and because it has historically enjoyed the legitimacy to review the full vari
ety of governmental action, the High Court of Justice is assumed to have the power to
entertain and to decide direct petitions for judicial review. In this capacity, the Court func
tions much like the centralised constitutional courts prevalent in other systems.
Thus, of the 10 instances in which the Supreme Court has so far explicitly invalidated
a statute on rights-based constitutional grounds since 1995, nine have been under its
HCJ jurisdiction. In all nine cases the Court had accepted wholly abstract direct chal
lenges to the constitutionality of statutes or provisions therein, and held them invalid
erga omnes.24 These nine cases are a mere fraction of the petitions filed with the Court
calling it to exercise its power of judicial review. As in the diffuse context of trial
21
CrimA (TA) 70597/04 Handelman v State of Israel (1 December 2005), Nevo Legal Database (by subscrip
tion) para 17 (in Hebrew).
22
See, eg Z Lavie, ‘The Citizens of Israel May Have Judges But They Have No Law’, Globes, 24 April 2003:
www.globes.co.il/news/article.aspx?did=683107 (in Hebrew) (interview with Knesset Member Michael Eitan);
Hadas Magen and Itamar Levin, ‘Rivlin: Aharon Barak’s “Constitutional Revolution” Has Turned Into a
Governmental Coup’, Globes, 22 May 2003: www.globes.co.il/news/article.aspx?did=690837 (in Hebrew)
(reporting comments by Knesset Speaker Reuven Rivlin).
23
Basic Law: The Judiciary, 5744-1984, ss 15(c), 15(d)(2).
24
HCJ 1715/97 Investment Managers Bureau v Minister of Finance 51(4) PD 367 [1997] (in Hebrew); HCJ
6055/95 Zemach v Minister of Defence 53(5) PD 241 [1999] (in Hebrew); HCJ 1030/99 Oron v Speaker of the
Knesset 56(3) PD 640 [2002] (in Hebrew); HCJ 1661/05 Hof Aza Regional Council v Knesset 59(2) PD 481
[2002] (in Hebrew); HCJ 8276/05 Adalah v Minister of Defence 62(1) PD 1 [2006] (in Hebrew); HCJ 2605/05
Academic Center of Law and Business v Minister of Finance (19 November 2009), Nevo Legal Database (by
subscription) (in Hebrew); HCJ 6298/07 Ressler v Knesset (21 February 2012), Nevo Legal Database (by sub
scription) (in Hebrew); HCJ 10662/04 Hassan v National Insurance Institute (28 February 2012), Nevo Legal
Database (by subscription) (in Hebrew); HCJ 8300/02 Nasser v Government of Israel (22 May 2012), Nevo
Legal Database (by subscription) (in Hebrew). The Zemach case is somewhat unique, in that it included a peti
tion of a detained soldier to invalidate the statute that authorized the period of his detention. By the time the
case was heard, however, the petitioner’s personal interest had become moot, and the case turned into an
abstract challenge.
128 Ori Aronson
court adjudication, attorneys, public interest groups, and political activists (including
Parliament Members) have recognised the newly available avenue for raising legal
claims, and have used it profusely. The Court, in turn, rejects most of these petitions,
but not for want of jurisdiction.
In contrast to the diffuse avenue of judicial review, direct petitions to the Supreme
Court for judicial review are of unique magnitude. The stakes in each case are immea
surably higher, since the result of the Court’s decision as to the validity or invalidity of
the challenged statute is final, supreme, and binds all courts and other branches of
government. The concentrated system of judicial review is premised on a one-shot, win-
or-lose, model for challenging the constitutionality of legislation, and so each case is of
critical significance to those implicated by the law under review. In concentrated judicial
review the potential counter-majoritarian impact of the Court’s decision is at its extreme,
and at the same time so are the agency and visibility of the petitioners who bring the
constitutional claims. The incentive to pursue constitutional claims by direct petition to
the Supreme Court is therefore significant, as are the risks embedded in this strategy.
D. Synthesis: The Double Hybridity of Judicial Review in Israel
In this formative period of its constitutional life, Israel has two concurrent jurisdictional
structures for the exercise of judicial review. It is therefore best described, at least for
mally, as a hybrid system, which combines elements of diffuse and concentrated judicial
review: constitutional challenges can be pressed and decided either in the context of trial
court litigation or in a direct petition to the Supreme Court, and multiple outcomes can
potentially ensue in terms of the breadth of decisions’ application and the consequent
institutional possibilities for litigants, judges, and legislators.
However, as we have seen, the concentrated elements of the Israeli system of judicial
review are much more pronounced than its diffuse elements. While inferior courts are in
principle authorised to strike down legislation, they seem to have internalised a norm
discouraging them from doing so. At the same time, the systems of public and profes
sional discourse are all geared towards directly and immediately engaging the Supreme
Court in questions of constitutional validity. And indeed, although constitutional chal
lenges are regularly brought in both avenues, it is the Supreme Court, sitting as a High
Court of Justice, that has been effectively exercising the power of judicial review in
almost all such cases.
But Israel’s High Court of Justice is a relatively unique institution in the comparative
variety of concentrated structures of judicial review. Because it convenes as a mere ses
sion of the ‘regular’ Supreme Court, the lion’s share of whose docket is dedicated to
appellate jurisdiction, its justices are appointed by the same appointment procedures as
all other judges in the civilian court system,25 and are mostly picked from within the
cadre of lower court judges.26 Their professional expertise is primarily legalistic, and the
politics of their selection are tamed by the significant professional and bi-partisan ele
25
With a slight difference: the nomination of a Supreme Court justice requires the support of a special
majority of seven out of a nine-member appointment commission, while the nomination of all other judges
requires a simple majority of five. See the Courts Law (Consolidated Vesrion), 5744-1984, s 7(c)(2).
26
Of the 15 currently serving Supreme Court justices, 12 have served previously as judges in inferior courts
(10 were elevated directly from a lower bench).
ments that are involved in the appointment process.27 Israel’s High Court of Justice,
therefore, is not a specialised constitutional court. It was not established in order to
distinguish constitutional adjudication from the regular business of the judiciary, and its
personal makeup does not involve distinctly political elements, or an exceptional com
petence in constitutional doctrine. Israel’s High Court of Justice, title aside, is primarily
a court.
At the same time, Israel’s High Court of Justice is not a regular ‘supreme’ Court. Its
original jurisdiction, which combines broadly-worded legislative authorization, very lib
eral doctrines of standing and justiciability, and the absence of an effective discretionary
mechanism for sorting petitions, renders it to a great extent a trial court of sorts: enter
taining some 2,000 petitions a year,28 many of which entail courtroom hearings, the
Court offers a degree of intensity and accessibility that is usually lacking from the more
solemn and aloof conditions of other high courts, in both diffuse and concentrated sys
tems. This is the second kind of hybridity apparent in the Israeli constitutional system:
its High Court is perhaps best described as a ‘supreme trial court’, in which constitu
tional litigation takes place on a constant and recurrent basis.
The state of double hybridity in Israeli constitutional adjudication – jurisdiction that
is both diffuse and concentrated, a High Court that is both trial and supreme – has char
acterised Israel’s legal system since its inception, and has intensified during the past two
decades, when judicial review was thrown into the fray as an added element in the dual
function of the Supreme Court. The institutional forces of path dependency and a con
sistently gridlocked political system have worked to leave this curious jurisdictional
structure in place. Calls for reform, however, have been raised. I turn to those now.
IV. THINKING ABOUT REFORM: THE STATE OF THE DISCOURSE
A. In Search of Institutional Possibilities
Some two decades after the landmark case of United Mizrahi Bank, it seems that the
legitimacy of some form of judicial review is now fairly settled in Israel. There is a legal,
political, and intellectual recognition of the idea of a hierarchy of norms as an organiz
ing principle of Israeli law, and an acceptance of an essential role of a court-like tribunal
in enforcing the constitutional order.
Therefore, while some participants in the discourse still question the validity of the
introduction of judicial review in Israel by way of a judicial interpretive act, much of the
focus has now turned to weighing the various institutional and jurisdictional alterna
tives for the exercise of judicial review. As examples below will show, these are invoked
and considered both as possibilities of reform within the current evolving constitutional
structure, and as parts of comprehensive projects of drafting a new Constitution, or a
new Bill of Rights, for the State of Israel – if and when one is finally adopted. While such
activities have been quite prolific, involving prominent political, academic, and public
27
The appointment of all civilian judges and justices in Israel is controlled by a single nine-member com
mission, comprised of three Supreme Court justices, two Cabinet Ministers, two Knesset Members (usually
one representing the opposition parties), and two representatives of the Bar. See Basic Law: The Judiciary,
s 4(b).
28
On top of some 10,000 other cases – appeals and various motions.
130 Ori Aronson
interest leaders, the bottom line so far is of very limited consequence; for the past two
decades, the law of judicial review has been consistently controlled and steadily devel
oped through the Supreme Court’s case law based on the existing jurisdictional state of
double hybridity, with little actual impact drawn from the surrounding (often critical)
discourse.
Still it is worth reflecting on the character of the ongoing discourse on the institutional
modalities of judicial review in Israel. They reflect prevailing understandings of the
political stakes implicated by judicial review, as well as the possibilities of reform, if and
when it comes.
B. A Concentration Bias
Most of the normative contributions to the discussion on the institutional arrangement

of judicial review in Israel, as well as most of the proposals for new constitutional texts,
have tended toward the concentrated end of the jurisdictional spectrum. This general
tendency towards concentration of judicial review is noteworthy, because it joins in
general agreement some of the harshest detractors of the Supreme Court’s current ver
sion of judicial review, along with some of its greatest champions. Two main institu
tional variations on the concentrated theme are offered by these groups: the first
variation, proffered by many of the critics of the current hybrid form of judicial review,
calls for the establishment of a separate constitutional court, in the fashion of some
European tribunals, whose makeup and appointment procedures would be to varying
degrees controlled by, and reflective of, the shifting realities of partisan politics.29
These proposals, not surprisingly, have originated mostly from legislators concerned
with the shifting balance of power between the Knesset (Israeli Parliament) and the pro
fessional judiciary in the era of judicial review. But they reflect more than mere institu
tional self-aggrandisement; they seek to express in jurisdictional terms the understanding
that constitutional adjudication, and above all rights-based judicial review, is a practice
infused with politically-laden value judgements, in a way that is arguably qualitatively
different than all other fields of legal ordering.30 The calls for distinguishing judicial
review into a separate forum therefore attempt to make the political stakes of the prac
tice more visible and transparent, and at the same time to insulate ‘regular’ adjudication
from being ‘contaminated’ by the political.
The second variation, endorsed most notably by the central figure in the introduction
of judicial review to the Israeli constitutional system, former Court President Aharon
Barak, calls for concentrating the power of judicial review in the hands of the Supreme
Court, in essence maintaining the concentrated elements of the current system while
doing away with its diffuse component. In his writings on the topic, Barak has endorsed
the concentrated model due to his concern for the fledgling status of judicial review in
Israel – a practice that is still in the process of substantiation and legitimation. In these
circumstances, Barak posited, the power of judicial review is best restricted for now to
29
See, eg Draft Bill Basic Law: Constitutional Court, 2009, P/4/18.
30
cf M Tushnet, ‘Popular Constitutionalism as Political Law’ (2006) 81 Chicago-Kent Law Review 991, 993
(stressing ‘The inevitable fuzziness of the distinction between the legal and political components of constitu
tional law’). See also Comella (n 7) 45–50 (exploring the ‘autonomy of constitutional discourse’ and its institu
tional implications).
the visible and familiar purview of the Supreme Court, which enjoys the high esteem of
the Israeli constituency.31 Barak, however, rejects the idea of a separate constitutional
court: he has derided such calls as attempts at politicizing constitutional adjudication,
which ought to remain a legal enterprise above all;32 and has sought to distinguish the
Israeli case from those of Italy, Germany, or South Africa, in which the regular judiciary
was tainted by the totalitarian and discriminatory commitments of previous regimes.33
Other jurists who were supportive of the 1995 ‘Constitutional Revolution’ have also
argued in favour of the concentrated model of judicial review for Israel, in various
formations along the constitutional court–supreme court axis. Generally, they have
cautioned against the constitutional uncertainty that would result in a diffuse system
from contradictory decisions of lower courts until their resolution by the Supreme Court
sitting in appeal, and have warned against the wasted costs of multiple constitutional
litigations that could be saved in the one-shot structure of the concentrated model.
Further, they have sounded the concern that lower court judges would be over-hesitant
in exercising the power of judicial review, due to the political sensitivity of such deci
sions (a prediction that seems to have materialised); and, conversely, the risk of runaway
constitutional activism by judges on outlier tribunals such as Israel’s multiple religious
courts, who do not necessarily share the ideological commitments of the main organs of
the judiciary (a warning that thus far has not proven accurate). Finally, supporters of the
centralised model have stressed the political and social gravity associated with the prac
tice of judicial review – characteristics that are presumably best contained by the stature
and expertise of Supreme Court justices.34
Embracing these kinds of arguments, three noteworthy projects of constitutional
drafting by public institutions from the past decade have also opted for the concentrated
version of judicial review. Two institutions – the Knesset’s Constitution, Law, and
Justice Committee, led by mostly anti-judicial review parliamentarians, and the Israel
Democracy Institute, known as a mostly pro-Court think tank – have produced two
separate drafts of complete new constitutions for the State of Israel. Both drafts explic
itly endorse judicial review, set within a concentrated structure in which the Supreme
Court is the only forum authorised to strike down laws.35 Another significant piece of
constitutional legislation was proposed by the Ministry of Justice in 2012. The Ministry’s
Bill Memorandum proposing the enactment of Basic Law: The Legislation36 sought to
entrench the constitutional structure that has evolved in the past two decades, including
an explicit embrace of the authority of judicial review – but again, only in its highly con
31
See A Barak, ‘Judicial Review of the Constitutionality of the Law: Centralized or De-Centralized’ (2005)
8 Law and Government 13, 21–22 (in Hebrew); A Barak, The Judge in a Democracy (Princeton, Princeton
32
See, eg A Barak, ‘The Supreme Court as a Constitutional Court’ (2003) 6 Law and Government 315,
318–23 (in Hebrew).
33
See Barak, The Judge in a Democracy (n 31) 334.
34
For such arguments see, eg, Y Zamir, ‘Judicial Review of the Constitutionality of Statutes’ (1993) 1 Law
and Government 395, 409–10 (in Hebrew); Z Segal, ‘The Way to Judicial Review of the Constitutionality of
Laws – The Authority to Declare the Unconstitutionality of Legislation – to Whom?’ (1997) 28 Mishpatim 239,
247–56 (in Hebrew); C Klein, ‘A Constitutional Tribunal – Not as Bad as It Sounds!’ (2003) 19 Bar-Ilan Legal
Studies 497, 506–13 (in Hebrew).
35
See ‘Constitution by Broad Agreement’, Proposal of the Knesset’s Constitution, Law, and Justice
Committee, 2006, ch VI, s 13: www.tinyurl.com/2w8yvbs (in Hebrew); Constitution by Consensus (Jerusalem,
The Israel Democracy Institute, 2007) s 163: www.tinyurl.com/na7ccp7.
36
Bill Memorandum of Basic Law: The Legislation, 2012, s 24, published by the Ministry of Justice: www.
tazkirim.gov.il/Tazkirim_Attachments/41283_x_AttachFile.doc (in Hebrew).
132 Ori Aronson
centrated form as the power of a nine-justice panel of the Supreme Court. The multiple
authors of these three documents are not partners in a joint partisan endeavour and
are actually known for their conflicting constitutional visions. Nevertheless, they all
converged on the question of the jurisdictional model of judicial review, opting for the
concentrated alternative. So far, none of these drafts have come to legislative fruition.
The examination of the discourse reveals, therefore, a peculiar coalition between indi
viduals and groups that originally hold distinctly contrasting views on the legitimate role
of the judiciary in enforcing the constitution. A preference for a concentrated system of
judicial review seems to have brought together those who would like to limit judicial
power and tighten political supervision and control over the practice of judicial review
and the identity of the officials who exercise it; those who want to further entrench and
embolden the power of judicial review within the judiciary by empowering its salient
institutional pinnacle; and those who seek to form a comprehensive constitutional deal
that would be palatable to constituents and parties from multiple sides of the political
divide. Out of competing political interests and conflicting juridical visions emerged a
surprising normative consensus – a view of institutional hegemony that would concen
trate the power of judicial review in the hands of a small group of High Court justices;
the remaining disagreement concerns only the degree of institutional independence this
centralised forum would enjoy from the rest of the judiciary and from direct political
influence. This result can be seen as a fortunate coalescence of mutual interests and com
patible theories, a rare glimmer of hope in Israel’s fractured constitutional landscape. In
the following part, however, I will attempt to destabilise this understanding by offering
some insights into the redeeming potential the diffuse model of judicial review may hold
for Israel’s constitutional future, after all.
V. THE DEMOCRATIC PROMISE OF DIFFUSE JUDICIAL REVIEW
A. The Democratizing Potential of Trial Court Adjudication
To sum things up: Israel’s constitutional system upholds, at its core, a diffuse system of
judicial review. But this underlying structure is subject to the countervailing institutional
force of a hybrid reality, in which the influential High Court of Justice functions as a
‘supreme trial court’, exercising original jurisdiction over constitutional matters and
incentivizing parties to petition it directly. At the same time, the diffuse logic of the sys
tem is subject to an intellectual and political thrust toward the formal concentration of
judicial review, in one pattern or another. The apparent result is a retraction of inferior
courts from any measure of activism in the field of judicial review, and a de facto con
centration of much of Israel’s constitutional attention and constitutional stakes in its
Supreme Court.37
37
Indeed, even the few noteworthy jurists that have declined to join the bandwagon, embracing instead a
critical stance towards the concentrated discourse, have mostly done so with a continuing focus on the consti
tutional role of the Supreme Court as a High Court of Appeals. See Y Dotan, ‘Does Israel Need a Constitutional
Court?’ (2000) 5 Law and Government 117 (in Hebrew); G Sapir, Constitutional Revolution in Israel: Past,
Present, and Future (Tel-Aviv, Yedi’ot Aharonot, 2010) 142–47 (in Hebrew).
I would like to suggest that in the long run, the judicial, political, and intellectual cap
ture with a Supreme Court centered version of judicial review is a cause for concern. The
reason for the concern is that a concentrated perception of judicial review overlooks,
and therefore neglects, the independent potential for advancing democratic values that
exists in constitutional adjudication by lower courts. The shift that is called for is pri
marily conceptual: once we stop thinking about trial courts as mere feeders of constitu
tional questions to a high, centralised forum (either by way of appeal in the diffuse
system or by way of abstention or certification in the concentrated system), and once we
start investigating the unique institutional realities that characterise trial court litigation
and that cannot be replicated in high court adjudication, we might come up with novel
insights as to how judicial power can be employed in the furtherance of democratic
values.
As I have argued extensively elsewhere,38 the regularities of trial court adjudication in
systems based on the common law tradition (such as Israel) exhibit certain institutional
characteristics that may render it uniquely supportive of deliberative, participatory, and
pluralist elements in the processes of creating constitutional meanings.
Thus, trial courts present a unique structural combination of professional govern
mental discretion and constant, direct interaction with real-life constituents. The combi
nation of official discretion and face-to-face interaction that characterises street level
bureaucracies39 in the administrative state in general is inherent to trial adjudication as
well: a social forum in which state power meets individual agency on a recurrent basis,
and in which legal order is formed in practice through the discursive dynamics that take
place between the judge (and other state officials) and the court’s constituents, as well as
the multiple unreviewable heuristics employed by the judge in managing daily court
room dynamics. These institutional realities can be understood as fostering a popularly
participatory potential for the processes of democratic deliberation; a potential that
becomes less and less available as one climbs up the hierarchical ladder of the judiciary,
where fewer cases are heard, where the discussion is governed by seasoned (elitist?)
attorneys and judges, and where the main focus is with settling constitutional doctrine in
general, rather than arguing about it in context.
Furthermore, the trial court level is institutionally proliferated and dispersed through
out the country. It comprises multiple units of adjudication, which deal with vast
amounts of cases, often without the guiding hand or supervising eye of the appellate
levels. This sheer numerosity element in trial court adjudication, which is coupled with
a sensitivity to localised variations, can serve to generate a pluralistic assemblage of
voices, visions, and values regarding possible constitutional meanings – a pluralism that
a strongly centralised system of judicial review might stifle. The multiple trial courts
employ diverse judges that espouse diverging theories, methodologies, and ideologies of
constitutional interpretation. These judges try scores of cases, which involve diverse
parties, varying narratives and claims, and invoke distinct solutions, often tailored to
specific constituencies and differing circumstances. All these products of trial court liti
gation should be perceived as resources for further deliberation – in and out of courts –
on the content of the constitutional order.
38
See O Aronson, ‘Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts’ (2010) 43
University of Michigan Journal of Law Reform 971, 994–1005.
39
See M Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York, Russell
Sage Foundation, 1980) 3–12.
134 Ori Aronson
The institutional idiosyncrasies of trial level dynamics seem, therefore, to hold the
potential for providing a unique environment for the flourishing of several democratic
values: public and communal deliberation on matters of social import; civic participa
tion in the processes of designing the legal order; and pluralism in the expression and
accommodation of multiple visions of individual and social welfare. This potential is,
arguably, especially significant in the processes of generating constitutional meaning,
because it is there that the constituency gets to engage in political self-definition and
in the expression and evolution of its moral commitments. Trial courts, by virtue of
their direct and recurrent interaction between state and individual and their structural
localism and multiplicity, are revealed as forums for a democratic mode of creating
constitutional meanings, forums that are already up and running and are popularly
accessible.
To the extent that constitution-making is understood as a continuous process that
ought to regularly underlie the political life of a community, and that this process ought
to maintain a participatory, deliberative, and pluralist character, then trial courts can
provide a useful institutional role in facilitating this process. They may do so as mere
collectors of cases and arguments and feeders of the variety of constitutional informa
tion to a centralised constitutional court; but they are more likely to fully fulfill their
potential if they take full part in the process of constitutional adjudication, including the
exercise of judicial review. Trials that could lead to the striking down of legislation
demand a unique awareness of the stakes involved; they also provide the constituency
with unique information as to the outcomes of judicial review in diverse cases of limited
scope. Ultimate resolution of the constitutional question can therefore benefit from the
experience collected from lower court decisions and their aftermaths.
The implication is that the diffuse model of judicial review, which relies on trial court
contribution as an essential element in the interpretation and enforcement of the consti
tution, holds a democratic promise that is lacking from its concentrated alternative.
How should this finding play out in the unique context of Israel’s constitutional law? To
that I turn next.
B. A Diffuse Model for Israel
Israel’s constitutional condition is noteworthy in (at least) two respects. First, although
it has a set of constitutional statutes and an established practice of judicial review, Israel
never experienced a significant ‘constitutional moment’ that would engage the polity in
an exercise of formulating a normative vision for generations to come.40 The Basic Laws
that comprise its present constitutional framework have been enacted intermittently
over the course of the state’s existence through the Knesset’s regular legislation proce
dures, with conspicuously little deliberative rigour, and sometimes in the furtherance of
40
The nearest such episode – the very establishment of the State of Israel in 1948 – produced a value-laden
Declaration of Independence (Declaration of the Establishment of the State of Israel, 1 LSI 7 (1948)) which to
this day serves as a source of moral reflection and interpretive inspiration in Israeli constitutional discourse, but
has been decidedly excluded from the country’s formally binding constitutional texts. See HCJ 10/48 Zeev v
Acting District Commissioner of the Urban Area of Tel Aviv (Gubernik) 1(1) PD 85, 89 [1948] (in Hebrew).
English translation available at: elyon1.court.gov.il/files_eng/48/100/000/Z01/48000100.z01.htm.
short-term considerations of political expediency.41 However, for its constitutional order

to thrive – for its moral promise as a liberal democracy to remain viable and sustainable
– Israel must seek avenues through which to engage its polity with the content and mean
ing of its constitution. As efforts to draft a wholly new Constitution and to form a popu
larly engaging process for deliberating and ratifying it continue, we are in need of forums
in which constituents could formulate, argue, and weigh constitutional ideas already
now.
Second, Israel is a highly divided political community. Its population is profoundly
split along national, religious, ethnic, and cultural lines. It includes a large Arab-
Palestinian minority, a significant ultra-Orthodox Jewish community, and a growing
migrant worker class, as well as a myriad other cultural groups (within both the Arab
and the Jewish communities) that are divided by countries of origin, degrees of religios
ity or secularity, and other cultural and ideological markers. These divisions, often relat
ing to matters of general welfare, have repeatedly brought political tensions to a boil,
with sometimes violent repercussions. These recurring events have exemplified the need
for institutional structures that would accommodate diverse understandings of constitu
tional principles, and through such pluralistic treatment enable interaction, exchange,
and deliberation among groups and individuals. While, clearly, not all constitutional
visions can be upheld simultaneously, accessible avenues of voice and participation can
defuse at least some of the tensions, and, more importantly, generate information, ideas,
and perspectives that would be instructive in the process of settling on one constitutional
direction or another.
Both these concerns – the lack of popular engagement in Israel’s constitutional devel
opment, and the divided nature of its constituency – may find some (not complete, to be
sure) resolution, through the activation of Israel’s trial courts as central institutional
agents in the process of designing the constitutional order. Surely, legal discourse is not
the best possible medium for engaging in mutually respectful negotiation over the moral
character of a political community; courts, as Robert Cover has noted, are jurispathic
institutional entities, in that they employ violence in order to suppress certain legal
visions in the preference of others.42 But courts are still forums that regularly consider
the meaning and validity of public values43 and in which multiple voices are heard, with
structural assurances for such hearing that rarely exist in other institutions of public
discourse. At the same time, the multiple trial courts accommodate significantly more
voices than higher levels of adjudication.
If one accepts, therefore, that vibrant constitutional litigation in lower courts offers a
uniquely democratic quality to the constitutional process, then the general jurisdictional
trajectory of the Israeli system should arguably be heading towards the diffuse model of
judicial review, rather than away from it, as it currently seems to be going.
Such a trajectory shift is, of course, a matter of degree, and requires a process of institu
tional, political, and intellectual acculturation. An immediate and complete elimination of
the concentrated elements of judicial review in Israel – revoking the constitutional jurisdic
tion of the High Court of Justice – will likely not be possible. In a system that has been
41
Basic Law: Human Dignity and Liberty – the centrepiece of Israel’s ‘Constitutional Revolution’ – was
enacted by a vote of 32 against 21 Knesset Members, out of a 120-member chamber (DK (1992) 3973); the
enactment garnered practically no special attention by the press at the time.
42
RM Cover, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4, 40.
43
See O Fiss, The Law as it Could Be (New York, NYU Press, 2003) 50–55.
136 Ori Aronson
practically overwhelmed by the centralizing force of the Supreme Court’s constitutional

dominance, a sudden move to a completely diffuse model would likely leave many claim
ants and many judges at a loss, resulting in a weakening of the enforcement of Israel’s
fledgling constitutional rights-guarantees. More measured moves are therefore required.
The Supreme Court itself could, for example, choose to decline original HCJ jurisdic
tion over at least some (less urgent?) constitutional petitions, sending the claimants to
the ordinary processes of litigation instead.44 The Knesset could engage in jurisdictional
experimentalism of its own, delimiting the comparative purviews of supreme and lower
courts over different classes of constitutional claims. And trial court judges would be
encouraged (for example through promotion rewards) to take greater risks and venture
more actively into the realm of constitutional interpretation, cognizant that the effects
of their decisions are, after all, limited in scope and application. Whatever the mechan
ism might be, the purpose is to involve, rather than deter, trial courts and their multiple
participants and stakeholders in Israel’s emerging constitutional discourse.
Israel lacks a formal organ or a structured procedure for constitution-making. In face
of this void it has turned to its available, functioning institutions of legal and moral
reflection – Knesset, Supreme Court, academia. But all these institutions share an essen
tial elitism and a detachment from the real-life experiences of actual constituents and the
practical realities of constitutional rights-violations. The trial courts, in which scores of
individuals of all walks of life get to regularly debate the meaning of legal and moral
norms, are too much of a trove of narratives, arguments, and solutions to be overlooked
in Israel’s continuing process of establishing a constitutional order. The diffuse system
of judicial review is, therefore, more than a mere mechanism for expressing and enforc
ing a constitutional regime. It is an institutional basis for a democratic mode of creating
and recreating that regime. It would be unfortunate to give it up.
VI. CONCLUSION
The choice between the diffuse and the concentrated models of judicial review (and,
within the concentrated family of systems, between the Supreme Court version and the
Constitutional Court version) is often understood to reflect a divide between two com
peting theories of constitutional law. One theory perceives constitutional law as, first
and foremost, a field of law, to which regular adjudicatory method is applicable, along
with its assumptions of professionalism, objectivism, and interpretivism. This theory
aligns with the diffuse model of judicial review, since it leaves constitutional jurisdiction
in the hands of the professional judiciary. A contrasting theory posits constitutional law
as a unique field of normative ordering, which is political in its essence because it calls
for recurrent value judgements concerning the moral vision of the political community.
This theory fits more easily with the concentrated model of judicial review, because it
expresses in jurisdictional terms the special institutional treatment awarded to constitu
tional questions.45
44
As I mentioned above, the Court has done this on a few occasions, but it has intimated no principled
explanation as to how it had been making its choice in such matters. See n 17.
45
The concentrated model also accommodates, by virtue of the individuation of constitutional adjudication,
more room for divergent institutional design – such as including non-lawyers in the judicial panel, as well as
employing openly political methods of appointment, decision-making, and reasoning. See Comella (n 7) 36–50.
Israel’s double-hybrid system of judicial review has, in a sense, avoided the choice
between the two theories. This is not surprising: in the absence of a written constitution
or even an agreed-upon process for drafting and enacting such a constitution, Israeli
constitutional law has been the result of the ongoing interaction between the clearly
juridical and the clearly political. It is in the metaphorical zone that lies between these
two spheres of social action that Israel’s constitutional law has emerged; and the
‘supreme trial court’ embodied in the High Court of Justice’s constitutional jurisdiction
is one of the institutional expressions of this interim state of affairs.
The lack of a foundational constitutional theory has led, therefore, to a lack of insti
tutional choice. What we have instead is a complex combination of diffuse and concen
trated elements. But this is not necessarily a bad thing. The jurisdictional ambiguity of
Israel’s system of judicial review has maintained and reflected (without deliberate inten
tion, but nonetheless with effective force) a blurring of the legal/political distinction in
constitutional adjudication. Thus, Israel has a High Court that is essentially a court of
appeals, which also upholds a set of unique procedures for reviewing the variety of polit
ical transgressions. It shifts between both functions fluidly, often with little consequence
to either substance or procedure. It does both ‘legal law’ (appellate review) and ‘political
law’ (constitutional review) continuously and contemporaneously.
Indeed, the Israeli experience may serve to undermine the prevalent distinction
between what ‘courts’ do and what other organs of government do. Keeping judicial
review within the courts, as the diffuse model urges, will not turn the interpretation
and application of the constitution into an objective endeavour, free from moral, ideo
logical, or theoretical commitments or from class, culture, and other group influences.
Similarly, placing the Constitution away from the regular judiciary, as the concentrated
model urges, will not relieve ‘legal’ adjudication from the political stakes that are
involved in any exercise of judicial power, constitutional or other. Classifying constitu
tional law as more or less ‘political’, therefore, offers no real guidance as to the optimal
jurisdictional arrangement for the exercise of judicial review; Israel has effectively
defied this assumption.
We are returned, therefore, to the fundamental questions of institutional design for a
thriving constitutional democracy, in which adjudication is understood to always tread
the political. Within this context I have presented an argument for fostering the diffuse
option of judicial review for the future of Israeli constitutional law. While a concen
trated model might be more easily attainable – as the prevailing political/intellectual
consensus seems to instruct – I have tried to show that it misses the already available
institutional resource for democratizing our ongoing processes of constitution-making:
the recurrent, accessible, and relatively low-stake event of the trial. The diffuse system
of judicial review treats this very event as the nuclear unit in the production of constitu
tional meanings.
Israel’s constitutional history is devoid of a ‘constitutional moment’ of serious partici
patory magnitude, and its ‘Constitutional Revolution’ is consistently criticised for hav
ing lacked a democratically robust deliberative dynamic. In these circumstances, a turn
to the trial courts as full institutional partners in the constitutional endeavour seems
plausible. Rather than retracting toward a concentrated design, where the Israeli system
seems to be heading, reimagining the diffuse possibilities of judicial review may hold a
key for making the yet unborn, though already vital, Israeli Constitution an actuality for
Israelis to engage with, negotiate over, and thus promote.
10
Constitutional Adjudication in Israel:
Some Comments
VÍCTOR FERRERES COMELLA
I
T IS A great pleasure to offer some comments on the chapters written by Professors
Yoav Dotan,1 Joshua Segev2 and Ori Aronson.3 The chapters are similar in spirit:
they use comparative law to shed light on the basic features of the Israeli system of
judicial review. Their goal is to better understand the logic of this system, in order to
identify the conditions that need to be preserved for it to retain its democratic legitimacy
(Dotan), to evaluate the Supreme Court’s discourse on the justification of judicial review
(Segev), and to explore the advantages and disadvantages of various reforms that have
been proposed (Aronson).
For those of us who are not experts on Israeli constitutional law, these chapters
supply the necessary information to start a fruitful conversation – and they do so very
effectively. The comparative law analysis they engage in, moreover, is illuminating.
They set up a useful scaffolding for an external observer like me to dare make some
comments.
The papers address problems that, though interrelated, are different. So I will com-
ment on them separately. It is important to stress, however, that they all focus on the
institution of judicial review of legislation. This is an important restriction. Judicial
review may be applied to many different types of legal rules, issued by different institu-
tions within the governmental structure. Actually, judicial review can also extend to pri-
vate actions (such as contracts). There is a certain tendency to believe, however, that
judicial review is particularly problematic when the legal rule, whose validity is at stake,
is a piece of legislation that has been enacted by a popularly elected parliament. The
objection against judges having the power to annul the decisions of the political branches
seems to acquire special force when the decision under review is a parliamentary enact-
ment. Statutes appear to have a special dignity because of their deeper democratic source.
The various systems of judicial review that we find in the contemporary world are
more or less sensitive to this background intuition. The so-called centralised model of
constitutional review can be understood to be strongly tied to the idea that legislation is
special, because of its democratic pedigree. Under that model, statutes can only be
checked for their validity by a special tribunal that is separate and different from ordinary
1
Chapter 7 in this volume.
2
3
140 Víctor Ferreres Comella
courts.4 If we allow ourselves to play with words, we might say that, within the set of
legal norms that are located under the constitution, statutes form an ‘aristocracy’ in the
context of the centralised model. As a result of their nobility, statutes cannot be judged by
ordinary courts. Only a special tribunal can be asked to intervene. The centralised model
is ‘aristocratic’ in this peculiar sense. In contrast, the decentralised model of judicial
review puts all legal rules in the same basket: their conformity with the constitution is to
be assessed by ordinary courts. Statutes are afforded no special treatment. The decentral-
ised model is ‘democratic’ in the sense that it creates no privilege for statutes: all legal
norms are treated the same. Maybe this has the effect of emphasizing that the really privi-
leged norm is the constitution: no aristocracy is allowed within the ordinary legal system,
we might say, in order to make the King shine with all his majesty.
Even in countries that have adopted a decentralised system, however, there is a certain
consensus that judicial review of legislation is particularly problematic from a demo-
cratic perspective. Maybe the institutional arrangement is not built around this intu-
ition, but the practice of courts – and the attitudes of politicians and citizens – is usually
sensitive to it. Courts are expected to be more ‘deferential’ when reviewing a statute
than when reviewing an administrative regulation, for example. And the debates about
the power of courts in a democracy get more passionate when the fate of legislation
issued by a parliamentary assembly is at stake.
So it is not surprising that our three panelists have also focused their attention on
judicial review of legislation. This is the practice that raises most concerns.
I. YOAV DOTAN ON COURTS AND POLITICAL ACCOUNTABILITY
Let me start with Yoav Dotan’s chapter, which explores the different ways in which
judicial review of legislation can be checked by the political branches. He claims that a
balance needs to be struck: on the one hand, we wish to protect human rights against
‘majoritarian tyranny’. Judicial review is set up to serve this goal. On the other hand, we
do not want courts to act in an abusive manner. In order to protect ourselves against
‘judicial tyranny’, we have to establish mechanisms to constrain judges.
Judicial review, of course, does not take place in a vacuum. Courts have to measure
the validity of laws against the constitution. It is the norms included in that document
that may be employed by judges to determine the validity of laws. Dotan believes, how-
ever, that this constraint is insufficient to allay fears about judges having too much
power. The constitutional text is framed in very abstract terms that give interpreters
much room for manoeuvre. This is particularly true of the Bill of Rights.
So we need to look elsewhere to find ways to limit courts. Dotan asserts that account-
ability is increased if the political branches are involved in the process of selecting judges.
The length of judicial tenure is also relevant in this regard: tenure for a limited period
allows the political branches to have more opportunities to contribute their inputs.
With this background in mind, Dotan proceeds to distinguish three basic models: the
United States model, the continental European model, and the common law model.
Each of them follows its own distinctive strategy to achieve a certain level of political
4
I have explored the rationale of the centralized model of judicial review in V Ferreres Comella,
Constitutional Courts and Democratic Values: A European Perspective (New Haven, Yale University Press,
2009). Some of the points I will offer in this chapter derive from ideas I have developed in that book.
Constitutional Adjudication in Israel 141
accountability. In the United States, the appointing process is the key piece. The consti-
tution is very hard to amend, and federal and state judges have tenure for life (or for very
long periods).5 What permits the political branches to inject some doses of democratic
accountability into the system is the fact that federal and state judges are appointed
through procedures that are highly political in nature. The continental European model,
in contrast, attacks the problem through a dualist structure. A constitutional tribunal is
established with the exclusive power to review the constitutionality of legislation. While
judges on ordinary courts are appointed through relatively non-political procedures, the
members of the constitutional tribunal are instead chosen by the political branches. The
tenure of constitutional judges is limited to a certain period of time, moreover, which
helps enhance their democratic accountability. The common law model, in turn, is simi-
lar to the United States model in that judicial review is placed in the hands of regular
courts. What is different, however, is that judges are selected through procedures that
are basically non-political. Because of this feature, judges are only granted a limited
power of constitutional review. Their power is limited in the following sense: Parliament
can easily override, through legislative means, a judicial determination that a statute is
incompatible with the relevant body of constitutional norms.
This tripartite classification is useful, for it allows us to better understand the logic of
the Israeli system. Dotan claims that Israel follows the third model, as a result of the
English common law traditions that were so influential in the formation of the State of
Israel. Indeed, judicial review is performed by ordinary courts – not by a separate consti-
tutional tribunal – and judges enjoy lifetime tenure, after being appointed through a
process that is non-political in nature. This being so, accountability can only be main-
tained if the Knesset (Israeli Parliament) retains its power to freely amend or repeal the
Basic Laws that courts are expected to protect against offensive legislation. Dotan’s
main conclusion, therefore, is that the Israeli system might face a serious problem of
democratic deficit if the Knesset lost its current power to easily override judicial pro-
nouncements through the repeal or amendment of the Basic Laws.
I think Dotan’s argumentative strategy is attractive. It is certainly useful to distinguish
three different models to answer the accountability problem, in order to see what condi-
tions need to be preserved for the Israeli system, in particular to exhibit a sufficient
measure of democratic accountability. I have three comments, however.
First, there are some important variations within each model, and it is important to be
aware of them when mapping out the different institutional possibilities a country may
choose from. It is true, for example, as Dotan explains, that the separation between a
constitutional tribunal and regular courts makes it possible, under the continental
European model, for a political procedure to be followed to appoint the members of the
constitutional tribunal, while a more bureaucratic or professional method is employed
to pick ordinary judges. But this possibility is rejected in some countries (such as
Luxembourg, for example), which have preferred to use non-political methods to select
all judges, including those that serve on the Constitutional Court. Similarly, it is true
that the distinction between constitutional courts and regular courts makes it possible to
establish two different legal regimes with respect to judicial tenure. But some European
countries have chosen to establish a unified regime: tenure until retirement age applies to
5
It is important to note, however, that in a significant number of states in the United States judges serve for
rather limited periods. Life tenure or something close to it is not the prevailing rule. See S Levinson, Framed:
America’s 51 Constitutions and the Crisis of Governance (Oxford, Oxford University Press, 2012) 258.
all judges. This is the case in Luxembourg and Belgium and, more importantly, in the
country that is usually associated with the birth of the continental European model of
judicial review: Austria.
Second, if, under the common law model, accountability is achieved through the
availability of legislative overrides, it is important to study the actual workings of the
political system. As Dotan acknowledges, even if Parliament is formally authorised to
modify the Basic Laws, it may be too difficult for it to do so in practice, for political
reasons. We should certainly include the political factor into the equation. When we try
to measure how hard it is to amend a given constitution, we cannot stop the analysis
once we know what kind of parliamentary majority is required. We have to ask our-
selves how tough it is to get that majority – given the number of political parties there
are, for example, and how much internal discipline they exhibit. It may well happen that
getting a simple majority to change the Basic Law in one country is actually more diffi-
cult than getting a super-majority in another country. Changing a Basic Law in Israel, in
particular, may turn out to be harder than reforming the ‘technically more rigid’ Austrian
Constitution, for example, which requires a two-thirds parliamentary super-majority
for its amendment, but which can be easily reformed in practice as a result of the fre-
quent coalition agreements reached by the two largest political parties.6
My third point relates to the set of criteria we would like a system of judicial review to
satisfy. Dotan thinks, quite rightly, that we should avoid two tyrannies: the tyranny of
parliamentary majorities, and the tyranny of courts. Put differently, we wish to ensure
both that human rights are protected, and that the institutions in charge of such protec-
tion do not abuse their powers. But we need to be clear on two things. First: why do we
believe courts are likely to improve the overall level of rights protection if we empower
them to scrutinise laws for their constitutionality? What institutional theory do we rely
upon, to predict that judicial review will be better than parliamentary sovereignty, when
it comes to rights? Second, once we have constructed such a theory, what space should we
create for the political branches to activate checks on courts? Arguably, the goal of pro-
tecting rights should be given priority over the goal of ensuring democratic accountabil-
ity. If the institution of judicial review of legislation is instrumentally sound in terms of
rights protection (and this is a big ‘if’, of course), then the political checks we design
should not undermine the independence that courts need to enjoy in order to perform
their functions in the right way. I cannot develop my own thoughts on this problem here,
but it seems to me that we cannot detach our theory of ‘accountability’ from our founda-
tional theory of judicial review. The answers to the questions why, and under what con-
ditions, courts are well equipped to interpret and enforce human rights clauses, will tell
us some interesting things about what forms of political accountability we should accept.
II. JOSHUA SEGEV ON THE JUSTIFICATION OF JUDICIAL REVIEW
Yoav Dotan’s chapter fits nicely with Joshua Segev’s, in that the latter takes us to the
foundational questions about the justification of judicial review and thus serves as a
necessary complement to the former.
6
On the easy amendability of the Austrian Constitution, given the system of political parties, see M Stelzer,
The Constitution of the Republic of Austria: A Contextual Analysis (Oxford, Hart Publishing, 2011).
Segev’s contribution is twofold. First, it usefully characterises the different kinds of

theories of judicial review one can construct. Second, it portrays the evolution of the
Supreme Court of Israel’s discourse on the justification of judicial review.
Segev begins by distinguishing three concepts of ‘legitimacy’: legal, social and moral.
When we ask whether judicial review of legislation is a legitimate institution, we may be
asking different questions. We may be interested in the legal aspect of legitimacy –
whether the right interpretation of the relevant legal sources supports the proposition
that courts have the authority to test legislation under the constitution. We may instead
want to know whether citizens believe the institution is acceptable and worthy of
respect. This would be the problem of social legitimacy. Finally, the moral question
would be whether the institution is justified under a sound theory of political morality
– quite apart from what the law provides, or what the public expects.
Segev is right that we need to draw these distinctions in order not to be confused as to
the nature of the different debates that the institution of judicial review has generated at
various levels. This does not mean, of course, that there are no connections between the
three dimensions of legitimacy. I do not take Segev to deny this. A legal argument in
favour of judicial review may have to rely, in part, on some normative theory of judicial
review. The text of the constitution, for example, may be open to rival interpretations as
to the existence and scope of the power of judicial review, and the choice between them
may be guided by ideas drawn from the moral debate. Also, whether judicial review is
acceptable from a normative point of view may depend on certain conditions that may
or may not be met in practice. If, for example, a certain level of public support is thought
to be one of the conditions that need to be fulfilled for judicial review to be legitimate
from a normative point of view, then we are forced to learn something about social
legitimacy before we conclude that the establishment of judicial review in a given polity
is ultimately justified.
Segev is also insightful when he asserts that the objections that judicial review faces
may be of a ‘comparative nature’ (when the objections assert that alternative arrange-
ments are better) or of a ‘non-comparative nature’ (when the objections hold that judi-
cial review breaches certain principles). Consequently, as he explains, theories of judicial
review may be of two kinds: ‘optimal’ theories defend judicial review on the comparative
ground that it is superior to alternative constitutional arrangements, while ‘permissible’
theories merely claim that judicial review passes certain thresholds (derived from moral
principles), even if it is no better than alternative institutions.
This classification helps us clarify the nature of the dispute. If we get into the merits of
the dispute, however, it would be fruitful to investigate whether a merely ‘permissible’
theory of judicial review is ultimately tenable. Let me very briefly explain the kind of
concern I have in mind. Suppose we face a choice between two institutional alternatives
in a particular country: a regime of parliamentary sovereignty (with no judicial review of
legislation), and a regime of constitutional democracy (with judicial review of legisla-
tion). Suppose someone prefers the first alternative, on the grounds that judicial review
is not democratic.7 A ‘permissible’ theory is then advanced to respond to the objection.
The theory argues that the kinds of rights courts are expected to safeguard are part and
parcel of genuine democracy, and that the role of judges is actually constrained through
7
Jeremy Waldron is one of the most well-known champions of this view. See J Waldron, ‘The Core of the Case
Against Judicial Review’ (2006) 115 Yale Law Journal 1346.
various mechanisms.8 Suppose the objector replies that courts are fallible, and that, as a
matter of fact, rights will be better protected if Parliament has the last word, with no
judicial review. If the ‘permissible’ theorist were to concede this latter point, but insisted
that judicial review is nevertheless democratic, the opponent would not be impressed.
Only an ‘optimal’ theory – one that would take judges to better protect rights than an
unconstrained parliament – would seem to provide a satisfactory justification of the
institution of judicial review. However democratically accountable courts may be, a
popularly elected parliament seems to have stronger democratic credentials. If judicial
review does not protect rights better than an unconstrained parliament, there is then a
strong democratic case in favour of parliamentary sovereignty.9
This connects with another point that Segev makes, when he asserts that the justifica-
tion of judicial review is ‘content-independent’: it cannot depend on the specific outcome
that is reached by courts in a given controversy. I completely agree with this. The case
for or against the institution of judicial review cannot be a function of the performance
of parliaments and courts with regard to a particular controversy. This does not mean,
however, that the justification of judicial review can be completely detached from the
content of the decisions by parliaments and courts when viewed as a whole, over a rela-
tively long period of time. There is no escaping the instrumental question, it seems to
me, as to which institutional arrangement is better equipped to protect rights. The case
for judicial review would be defeated by the democratic argument, if courts were not
instrumentally better. Of course, it is very hard to make these overall assessments. We
need to rely on an institutional theory that connects, ex ante, certain institutional fea-
tures to likely outcomes, and that then tests those connections on the ground, ex post, as
experience is gathered. And, obviously, we need a substantive moral theory to discrimi-
nate between ‘good’ and ‘bad’ results. But unless we have some faith in the instrumental
advantages of judicial review, the democratic objection cannot be properly answered.
Segev devotes the second part of his chapter to reconstruct the evolution of the
Supreme Court of Israel’s discourse on the justification of constitutional review of legis-
lation. Interestingly, he explains that the Court was first ‘pragmatic’ – it abstained from
offering an explicit affirmation and justification of the power of legislative review. From
1995 onwards, the Court developed a very detailed and theoretical defence of the institu-
tion – one which Segev finds unpersuasive in many respects. Court President Aharon
Barak’s opinion in the United Mizrahi Bank case10 was the crucial event here. After this
‘radical’ period, as Segev calls it, the Court has entered a ‘conservative’ phase, where it
appears to be sceptical of grand theories. This is a fascinating account of the Court’s
struggle with the foundations of constitutional review. Segev’s criticisms of the Court’s
theory during the ‘radical’ period are interesting, though underdeveloped in the chapter.
I would like to hear more, for example, about his criticism of the ‘rule of law’ justifica-
tion of judicial review – which I take to be similar in nature to Marshall J’s reasoning in
8
This is, in a nutshell, Ronald Dworkin’s position in R Dworkin, Freedom’s Law: The Moral Reading of
the American Constitution (Cambridge, Harvard University Press, 1997).
9
Things get more complex, however, if we take into account the democratic virtues that judicial review
may exhibit (in terms of the participation and deliberation by citizens who are not powerful enough to have
their interests and views taken seriously in electoral politics), quite apart from the substantive outcomes
produced by courts. On the intrinsic democratic advantages of courts, see L Sager, Justice in Plainclothes: A
Theory of American Constitutional Practice (New Haven, Yale University Press, 2006).
10
CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 149(4) PD 221 [1995] (in Hebrew).
Marbury v Madison.11 The idea that, if you have a constitution that is part of the law,
and if that constitution is superior to ordinary laws, then judges have the power of
constitutional review when deciding cases, unless otherwise explicitly provided in the
constitution, is a pretty plausible legal argument. Whether such conditions obtain in
Israel is part of the controversy, as I understand it. Maybe Barak did not have the neces-
sary legal pieces on the table – whereas Marshall did have them – to construct a plausi-
ble argument in favour of judicial review along those lines.
III. ORI ARONSON ON ISRAELI HYBRIDITY
The third paper, by Ori Aronson, focuses on the particular way judicial review of legis-
lation has been organised in Israel. As is true in other countries (in Latin America, for
example),12 Israel combines features of both the centralised (‘concentrated’) and the
decentralised (‘diffuse’) models of constitutional review of legislation. There have been
proposals to introduce a more centralised system in Israel, but Aronson claims, quite
interestingly, that important things would be lost if such proposals were implemented.
The Israeli system is ‘hybrid’, Aronson explains, in two senses. First, the Supreme
Court acts in two kinds of jurisdictional capacities. As a ‘High Court of Appeals’, it is
the tribunal of last resort for cases litigated within the civilian adjudicatory system. This
allows the Court to lay down precedents that fix the meaning of civil, criminal and
administrative law for all judges to follow. In addition, as a ‘High Court of Justice’, it
has original jurisdiction for writs of mandamus brought against the state, as well as par-
ticular governmental organs and officeholders. In this capacity, the Court has consid-
ered petitions by both private and public actors, challenging various types of
governmental actions, both in the abstract and in the context of specific violations. The
Court looks very much like a constitutional tribunal when it rules upon such challenges.
But it is not really such a tribunal, of course, to the extent that it is also in charge of
interpreting ordinary law – as an ordinary Supreme Court.
The second sense in which the Israeli system is hybrid is that lower courts are formally
empowered to check legislation for its constitutionality, but judges are reluctant in prac-
tice to exercise this authority. To a large extent, this reluctance springs from the criti-
cisms that were visited on the few judges who decided to set aside statutes on
constitutional grounds in some cases. So, in practice, most of the legislative checking is
done by the Supreme Court.
Various proposals have been advanced, Aronson explains, to reform this hybrid sys-
tem. Most of them have exhibited a preference for the concentrated model. Some voices
have suggested the establishment of a separate Constitutional Court, following the con-
tinental European model. Others prefer a system where the power of legislative review is
concentrated in the Supreme Court. Aharon Barak, for example, favours this latter ver-
sion of the centralised model, in order to better protect judicial independence and reduce
the risk of politicization. Barak celebrates the fact that, in Israel, judges that serve on the
Supreme Court are appointed in a non-political way. If the members of a new constitu-
tional tribunal were to be selected by the political branches, as is the case in many
11
See, JO Frosini and L Pegoraro, ‘Constitutional Courts in Latin America: A Testing Ground for New
12
Parameters of Classification?’ (2008) 3 Journal of Comparative Law 39, 39–63.

European countries, adjudication would be too politicised. This worry is to be taken

seriously, it seems to me. The Spanish experience, for example, suggests that there is
indeed a risk of politicization of the Constitutional Court if political parties are allowed
to be the key players throughout the appointment process. The risk is especially serious
in Spain as a result of the fact that the judges of the Constitutional Court do not serve for
life or until retirement age, but for short periods of time (nine years). Most constitu-
tional judges cannot help thinking what opportunities will be open to them once they
step down from the Court – depending, of course, on how they have ‘behaved’.
Ori Aronson claims, quite importantly, that the centralizing proposals that have been
articulated in Israel neglect a significant strength of the diffuse model: constitutional
adjudication by lower courts has an enormous potential in terms of advancing demo-
cratic values. He gives us several reasons to believe that legislative review at the trial
level better serves democratic deliberation and participation. Those reasons can be sum-
marised as follows. First, trial courts are not worried, as the highest courts are, about
fixing general doctrines: they reason on the law in the context of cases. Second, judges in
lower courts are less seasoned – less elitist. There is also more ideological diversity
among them. Third, trial courts decide many more cases than the highest courts. This
exposes them to a wider variety of situations, and makes them sensitive to the rich plu-
rality of opinions that emerge in a highly divided Israeli society.
These are extremely interesting points. I would like to obtain more details about the
judicial system in Israel, to assess how many democratic benefits can be reaped if trial
courts are encouraged to exercise the power of legislative review. Just to play the devil’s
advocate (in this case, the advocate of the continental European model of judicial
review), let me suggest a few points that may be made in favour of some type of
centralization.
First of all, it is certainly important for citizens to have access to courts, to allow them
to advance legal claims in the context of particular controversies. There is a deep demo-
cratic value to the fact that the doors of trial courts are open to citizens. Because the
judicial system has the form of a pyramid, letting lower courts intervene in constitu-
tional matters means that larger numbers of constitutional cases can get litigated. When
a statute is challenged on constitutional grounds, however, it may be reasonable to send
the issue to a special forum – to a body whose members can devote their full time and
energy to the task of legislative review. Trial courts may be overwhelmed with too many
ordinary cases. Centralizing legislative review in a constitutional tribunal, or in the
Supreme Court, may be better. Note that lower judges can still perform a crucial func-
tion within a centralised system: they can trigger the jurisdiction of the central court
through a ‘constitutional question’ mechanism. When they do so, they can offer their
reasons why they think the statute that is applicable to the case is at odds with (or may
be at odds with) the constitution. But the final decision is made by a tribunal that has
more time to think deeply about the problem that the statute poses. In this regard, of
course, a Constitutional Court that does not have to worry about laying down prece-
dents on ordinary legal matters may be in a better position than a Supreme Court that
has a dual function to perform.
Aronson worries, quite rightly, about ideological diversity. But it is not so difficult, it
seems to me, to construct a system that ensures that the members of the Constitutional
Court – or of the Supreme Court – mirror the diversity of beliefs that emerges within the
judiciary as a whole. Actually, a constitutional tribunal may have an advantage in this
regard: the viewpoints and professional experiences of its members may be more varied
than those of regular judges.
As far as seniority is concerned, I do not think we should be worried either, if we opt
for a centralised system. In general, we should prefer statutes to be reviewed by senior
jurists, rather than by less experienced ones. One of the reasons for the creation of con-
stitutional courts in Europe has to do with the extreme youth of trial court judges.
Legislative review is too grave a matter to be placed in such inexperienced hands.
Of course, we need to be concerned if the senior judges at the very top of the hierarchy
are very old. If the judges on the Supreme Court are too old, we have a good reason not
to centralise legislative review there. But, in such circumstances, the diffuse system that
Aronson favours does not fare much better. For, even if the trial court judges in charge
of constitutional review are quite young, the doctrines they are required to apply when
engaging in that task are those that are generated by the Supreme Court. Under the dif-
fuse model, it is ultimately the judges on the Supreme Court that drive the machinery of
constitutional adjudication.
A constitutional tribunal, in contrast, has a potential advantage in this regard. A bet-
ter balance can be achieved, by way of the separation between the Supreme Court and
the constitutional tribunal. While the judges on the Supreme Court are usually at the end
of their judicial careers, the members of the constitutional tribunal tend to be younger. It
is not necessary for them to be picked from the top of the judiciary. Nor is it necessary
for them to be judges: they may be professors, lawyers or governmental officials, all of
whom need not be at the very last stages of their respective careers. The members of the
Constitutional Court are thus ‘senior’ when compared to trial court judges, but rather
‘junior’ when compared with the judges on the Supreme Court. So when it comes to
striking the right balance with respect to the age of judges, there is something to be said
in favour of constitutional tribunals.
I offer these remarks, not as criticisms of Aronson’s interesting proposal in favour of
a diffuse system in Israel, but merely as a counterpoint, to emphasise the potential
strengths of the centralization of legislative review in a special Constitutional Court. It
goes without saying that every system has its own problems. In the case of the ‘European
model’, one of the most serious problems concerns the potential tensions between the
constitutional tribunal and the regular Supreme Court. Before Israel decides to erect
such a special body, it is important to make sure that a smooth relationship will develop
at the top of the judicial pyramid. Unfortunately, there is no easy recipe to guarantee
institutional harmony at that level.
Part 3
Global Impacts on Israeli Constitutional Law

11
The Use of Foreign Law in Israeli
Constitutional Adjudication
IDDO PORAT*
I. INTRODUCTION
R
ECENT YEARS HAVE seen a fierce debate in the United States over the use of
foreign law in American constitutional law decisions.1 In Israel, however, the
use of foreign law in constitutional decisions is a longstanding practice which
seems to raise much less concern among judges and academics.2 Nevertheless, such prac-
tice has its flaws and deserves consideration.
This chapter will attempt to explain the reasons for the prevalence of the use of for-
eign law in Israeli constitutional decisions, canvas the different parameters that shape it,
and assess several objections that have been raised against it. The conclusion would be
that Israeli constitutional culture is traditionally receptive to the use of foreign law, and
there are good reasons for it to keep using it. However, regarded as part of a global trend
in which constitutional courts compete over leadership and innovation in rights protec-
tion, and taking into account Israel’s shaky ground for its ‘Constitutional Revolution’,
the use of foreign law may raise some valid concerns.
The chapter will begin in Part II by presenting evidence for the extensive use of foreign
law in Israeli law. It will then put forward seven explanations for this practice in Part III.
The first four pertain to the nature and history of Israel’s constitutional law. They are:
(1) non-textualism and the fact that Israel has no written constitution; (2) the effects of
* I would like to thank Moshe Cohen-Eliya, Binyamin Blum and Michael Ramsey for their helpful comments
and suggestions.
1
See, eg M Tushnet, ‘When is Knowing Less Better than Knowing More? Unpacking the Controversy Over
Supreme Court Reference to Non-US Law’ (2006) 90 Minnesota Law Review 1275; VC Jackson, ‘Constitutional
Comparisons: Convergence, Resistance, Engagement’ (2005) 119 Harvard Law Review 109; R Posner, ‘No
Thanks, We Already Have Our Own Laws’ (July–August 2004) Legal Affairs 40; J Waldron, ‘Foreign Law and the
Modern Ius Gentium’ (2005) 119 Harvard Law Review 129; RP Alford, ‘Four Mistakes in the Debate on
“Outsourcing Authority”’ (2006) 69 Alberta Law Review 653; O Benvenuto, ‘Re-evaluating the Debate
Surrounding the Supreme Court Use of Foreign Precedent’ 74 Fordham Law Review 2695; D Farber, ‘The Supreme
Court, the Law of Nations and Citations of Foreign Law: The Lessons of History’ (2007) 95 Commonwealth Law
Reports 1335.
2
For a recent exception, see B Blum, ‘Doctrines Without Borders: The “New” Israeli Exclusionary Rule and
the Dangers of Legal Transplantation’ (2008) 60 Stanford Law Review 2131 (criticizing the use of foreign law
by the Israeli Supreme Court in the context of evidence law and defendants’ rights). Other examples include
H Sandberg, ‘Cultural Colonialism – the Americanization of Legal Education in Israel’ (2009) 27 Hamishpat
52 (in Hebrew) (criticizing the extensive reliance on American law in Israeli legal education).
152 Iddo Porat
the Israeli ‘Constitutional Revolution’ on the use of foreign law; (3) the recent adoption
of a European-based mode of constitutional adjudication, and (4) the anti-formalism of
Israeli constitutional law. The other three explanations pertain to general characteristics
of Israeli law, which also affect the use of foreign law in constitutional law. They are:
(1) the fact that Israel is a young legal system; (2) Israel’s geopolitical isolation and fas
cination with the West, and (3) the strong professional and academic ties that Israeli
lawyers have with other legal systems.
As regards the appropriateness of the use of foreign law in Israeli decision-making,
Part IV of the chapter will document several general objections to the use of foreign law
in constitutional law, and assess their applicability to the Israeli system. It will start with
a substantive objection based on local sovereignty and on original intent, and will move
on to discuss methodological objections according to which citing foreign law is undis-
ciplined, and amounts to cherry picking, and comparison is often inaccurate and dis-
torted due to the multiplicity of factors that need to be integrated into the comparison.
While these objections are not without merit, they do not present strong enough reasons
to object to the use of foreign law. The final objection may raise more concerns, and it is
based on the pitfalls of global constitutionalism.
II. DOCUMENTING THE PREVALENCE OF THE USES OF FOREIGN LAW IN ISRAEL
Two preliminary remarks are in order. First, throughout this chapter, and unless other-
wise noted, I will use the term ‘foreign constitutional law’ to indicate both internal con-
stitutional law of other countries and international law. Although, as Vicky Jackson has
shown, there are important differences between foreign constitutional law and inter
national law,3 both represent foreign legal materials pertaining to human rights and
constitutional rights, and may reasonably be coupled together for the purpose of this
study. Moreover, the border lines between constitutional law and international law have
become blurred over time – a process termed as the ‘internationalization of constitu-
tional law’, and the ‘constitutionalization of international law’,4 and this is another rea-
son for coupling the two together. I should note however, that I do not include in my
review international law that is binding on the State, but only the use of international
law as suggestive authority.
My second remark is that whenever I speak of the use of foreign law in Israel, this
always applies to the jurisprudence of the Israeli Supreme Court, because Israeli consti-
tutional jurisprudence takes place almost exclusively within the bounds of Israeli
Supreme Court adjudication.5
3
See, eg V Jackson, ‘Constitutional Law and Transnational Comparisons: The Youngstown Decision and
American Exceptionalism’ (2006) 30 Harvard Journal of Law and Public Policy 191, 204–14 (documenting five
differences between citing foreign law and citing international law).
4
See J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (Oxford, Oxford
University Press, 2009) and compare M Tushnet, ‘The Inevitable Globalization of Constitutional Law’ (2009)
49 Virginia Journal of International Law 985.
5
The Israeli Supreme Court, sitting as High Court of Justice, used to handle all petitions against the State
as a first and last instance. Since the enactment of the Administrative Affairs Courts Law, 5760-2000, some
petitions are brought to the District Courts, sitting as Administrative Courts and may be appealed to the
Supreme Court.
The Use of Foreign Law 153
Taking these remarks into consideration, the first thing to note is that the use of for-
eign law in Israeli constitutional law is extensive. Several indications attest to it, begin-
ning with a study conducted in the mid-1990s which documented citation practices in
the jurisprudence of the Israeli Supreme Court.6 This study applies to all cases and not
only to constitutional ones, but it is the only study that is comprehensive for that period,
and it is reasonable to assume that some of the general trends apply to constitutional
cases as well.
The first finding of the study is that an average of 21 per cent of the total number of
citations in all7 Supreme Court decisions (including citations of cases, statutes, and aca-
demic or literary sources) published between the formation of Israel in 1948 and 1994
were foreign citations (I shall refer to this as the ‘citation ratio’).8 Generally speaking, in
the earlier years of Israeli law there were more foreign citations, as there were fewer local
sources to draw on, and as there still existed formal and cultural ties with English law as
a result of the British Mandate over Palestine before the creation of Israel.9 The bulk of
foreign citations from the early years of Israeli law were therefore from English law.10 As
the ties with British law weakened, and the formal tie abolished, and as there took place
a natural process of building up a local reservoir of precedents, the citation ratio levelled
down to around 10 per cent towards the last decade of the study.11 The study has further
found that this percentage applied equally to citations from academic or literary sources
and citations from law cases: 10 per cent of all law review and book citations come from
foreign sources, and 10 per cent of all case citations come from foreign law sources.
Although considerably smaller than in the early years this is still a substantial citation
ratio taking into consideration comparative data to be discussed below.12
The figure of 10 per cent may be somewhat misleading, however, for two reasons. First,
it does not reflect the increase in terms of the number of foreign law citations per case (the
‘per case number’). One should note that in the later years of the study the average per case
number of total citations (both local and foreign) rose dramatically, in accordance with
the rise in the average length of Supreme Court cases. In 1955, for example, the per case
number of all citations (both foreign and local) was 5, whereas in 1993 it rose to 15.7.13
This means that in 1993, the per case number of foreign citations was 1.8, which means
that, on average, every Supreme Court decision had 1.8 foreign citations in it.
In addition, both the 10 per cent citation ratio and the 1.8 average per case number are
misleading since they refer to all published Supreme Court cases some of which carry
6
See M Gross, R Haris and Y Schachar, ‘References Patterns of the Supreme Court in Israel-Quantitative
Analysis’ (1996) 27 Mishpatim 119 (in Hebrew).
7
The study built a data base comprised of 7,146 court decisions which is 40%, and a representative sample,
of the total 18,000 cases that were published in the official PD publication of Supreme Court decisions during
these years. See ibid 126.
8
See ibid 152 (last row, column 3, of the table there).
9
Formal ties to English law existed in s 46 of the King’s Order in Council 1922, which remained in effect
until 1980, and determined that in cases in which analogy, statute or case law provide no clear rule of decision,
the courts shall decide based upon ‘the substance of the common law, and the doctrines of equity in force in
England’. The provision was later replaced by the Foundations of Law Law, 5740-1980, which in s 2 replaced
the common law with ‘the principles of freedom, justice, equity and peace of Israel’s heritage’.
10
At the highest point, in 1952, English law comprised of 37% of all citations – foreign and local. Gross,
Harris and Schachar (n 6) (row 5 in the table there).
11
See ibid (average of the years 1984–94, in the table there).
12
See ibid 141.
13
See ibid 140.
154 Iddo Porat
little precedential weight.14 If we turn our gaze to the leading and precedential cases, the
results in terms of the use of foreign law are much more dramatic. A study that looked
for citations practices in the 100 most cited cases in Israeli law between 1948 and 2000
found that the per case number on that list was 7.8, that is 8.7 times more than in the
regular cases.15 That study does not calculate the citation ratio in these cases, but it does
indicate that it is higher than in the regular cases.16
A third type of indicator for the use of foreign law is the percentage of cases citing any
foreign law out of the total number of cases in a given year (the ‘cases ratio’). Two rudi-
mentary studies, that I conducted, indicated a very high cases ratio in Israeli constitutional
law. I conducted the first on the 100 most cited cases and it showed that the cases ratio
was 75 per cent: 75 out of the 100 most cited cases cited foreign law. Among the 50 cases
of the 100 most cited cases that were constitutional cases, the ratio was 100 per cent.17 In
another rudimentary study that I conducted I looked for citations of foreign law in the
cases appearing in my syllabus for the first year course of constitutional law, as a very
rough estimate of leading constitutional cases. The results here were also very distinct.
The cases ratio was 61 per cent: out of the 77 cases on my syllabus, 47 cited foreign law.18
These findings were supported by a more extensive study, still in its early stages,
which for the first time checked cases ratios in all Israeli Supreme Court constitutional
decisions. In a study conducted by Professor Suzie Navot it was found that between the
years 1985 and 1994 the foreign law cases ratio in all Israeli Supreme Court constitu-
tional decisions was 31 per cent.19 The same study also separated between ‘institutional’
constitutional decisions and ‘human rights’ constitutional decisions and found out that
70 per cent of the cases citing foreign law were human rights cases and only 30 per cent
were institutional cases. Combining these facts with the fact that only 40 per cent of the
constitutional cases were human rights cases, we arrive at the conclusion that within the
human rights cases, the cases ratio is a high 53 per cent.20
A fourth type of indicator attests to the breakdown of foreign law sources according
to different countries. The 1994 study, which checked all types of cases, and not only
constitutional ones, found that in the last 12 years of the study (1982–94) the two main
sources of foreign law citations were English and Commonwealth cases and American
cases comprising each of almost 50 per cent of all foreign law citations in all Supreme
Court cases. Continental and international sources were very few.21 In the Navot study
14
The published cases are comprised of the more important ones, however, and even among those many are
of limited precedential weight, as that number amounts to several hundred cases a year.
15
C Goldschmit, M Gross and Y Shachar, ‘100 Leading Precedents of the Supreme Court – A Quantitative
Analysis’ (2004) 7 Law and Government 243, 267 (in Hebrew).
16
The indication for that comes from the fact that citations of Israeli cases in the 100 most cited cases
increases only 6.6 times compared to regular cases, while citations of foreign law increases 8.7 times compared
to regular cases, ibid 267.
17
Study results available with author.
18
Study results available with author. I thank Avichai Shalom, for excellent research assistance in producing
this study and the study in the previous footnote.
19
S Navot, ‘The Use of Foreign Precedents by Constitutional Judges Israeli Report (draft)’ table 13, p 7 (on
file with author).
20
ibid 4.The calculation is as follows: 40% of all constitutional cases are human rights cases; 31% of all
constitutional cases cite foreign law and within those 70% are human rights cases – so 31%*0.7=21.2% of all
constitutional cases are human rights cases that cite foreign law. So we divide 40% by 21.2% and we get 53%.
21
But see E Salzberger and F Oz-Salzberger, ‘The German Heritage of the Israeli Supreme Court’ (1998) 21
Tel-Aviv University Law Review 259 (in Hebrew) (arguing that the influence of continental law, and especially
of German law, on Israeli law is profound but hidden, due to anti-German sentiments after the Holocaust).
which surveyed only constitutional law between the years 1985 and 1994 the results were
very different. Her study found that 65 per cent of all foreign law citations in constitu-
tional cases (both institutional and human rights) were from American cases, 16 per cent
from Canadian, 8 per cent from English and 7 per cent from German cases.22
Data regarding the use of foreign law in more recent years is not available yet, but an
example from a recent leading case could give us some indication. Adalah v Minister of
Interior23 involved the controversial issue of whether residents of the Palestinian
Authority who marry Israeli citizens may move to Israel and become residents and even-
tually citizens of Israel. Indeed, such a case lends itself to comparative perspectives
regarding immigration and residency policies, however the extent of foreign law cita-
tions in that case is very impressive. The citation ratio of foreign law in this case is 24 per
cent: out of a total of 243 cases cited in the Court’s decision 60 are foreign law cases. The
breakdown between different countries is also interesting and seems to correspond to
the Navot study finding regarding the lower share of English citations. The wide range
of countries cited is also remarkable: 30 cases from the United States, 9 from Canada,
8 from the European Court of Human Rights (ECtHR), 6 from England, 3 from
Germany, 3 from South Africa, 1 from Ireland and 1 from Australia.
How extensive is the use of foreign law in Israel in comparison to other countries?
Comparative perspectives are tricky, but it seems that Israel can be situated among the
countries that tend to cite foreign law extensively. The US Supreme Court is obviously
on the lower side of the scale in terms of foreign law citations. It cites much less than the
Israeli Supreme Court, or any other court in the Western world for that matter.24 In
Australia, a study that checked for foreign citations in State Supreme Courts, found that,
setting English citations aside (Australia being subject to the English Privy Council, and
hence tied formally to English law), 3.65 per cent of the total number of citations in 1995
came from foreign sources, and in 2005 – 2.14 per cent.25 By comparison, the use of for-
eign sources in Israeli constitutional law is indeed extensive.
Frequent use of foreign law can also be found in several other countries. Thus, in the
first decade of the Canadian Supreme Court (after the Canadian Charter in 1984) the
citation ratio of foreign and international citations amounted to nearly 10 per cent of
the total number of citations – the same as the citation ratio in all (not only constitu-
tional) Israeli Supreme Court cases in roughly the same years.26 The cases ratio (ratio of
cases citing any foreign law) reached a high of 32 per cent in 1995,27 which is roughly the
same as the average in Israeli constitutional jurisprudence between 1984 and 1995. The
per case ratio reached a high of 1.61 in the Canadian Supreme Court in 1990 (compared
22
Navot (n 19) 8.
23
HCJ 7052/03 Adalah v Minister of Interior 61(2) PD 202 [2006] (in Hebrew).
24
As an illustration of this point, when Steven Calabresi and Stephanie Zimdahl reviewed the major US
Supreme Court decisions that used foreign law between the years 1940 and 2005, they mentioned only 14 cases.
See SG Calabresi and SD Zimdahl, ‘The Supreme Court and Foreign Sources of Law: Two Hundred Years of
Practice and the Juvenile Death Penalty Decision’ (2005) 47 William and Mary Law Review 743, 838–83.
25
R Smyth, ‘Citations of Foreign Decisions in Australian State Supreme Courts Over the Course of the
Twentieth Century: An Empirical Analysis’ (SelectedWorks, 2008) 29: www.works.bepress.com/russell_smyth/1.
26
P McCormick, ‘The Supreme Court of Canada and American Citations 1945–94: A Statistical Overview’
(1997) 8 Supreme Court Law Review 527, 533.
27
DM London, ‘Cites Unseen: The Canadian Supreme Court and Comparative Constitutionalism’
(Philadelphia, Annual Conference of the American Political Science Association, 31 August 2006) 17, available
at: www.allacademic.com/meta/p152935_index.html.
156 Iddo Porat
to 1.8 in all Israeli Supreme Court cases between 1982–94).28 However, studies surveying
later years of Canadian jurisprudence show a dramatic decline in the use of foreign law
suggesting that the extensive use of foreign law was due to the fact that these were for-
mative years in which the Court lacked any jurisprudence of its own. As for the citation
ratio in Canada it dropped from 10 per cent down to 6 per cent in 2000, and to 3 per cent
in 2005.29 The cases ratio declined from 32 per cent in 1995 to 14 per cent in 2005,30 and
the per case number reached a level of just 0.34 foreign citations per case in 2005.31
In South Africa numbers are even higher, owing partly to the fact that the South
African Constitution requires reference to foreign and international law. Between the
years 1995 and 2009 the cases ratio was a high 50 per cent. Israel can therefore be situ-
ated in a category somewhat similar to that of the Canadian early Charter jurisprudence
but well above later Canadian jurisprudence and somewhat below South African consti-
tutional jurisprudence.
The purpose of the following parts will be to explain the reasons for this phenomenon
and describe the factors that shape it. I will begin with a discussion of the special fea-
tures of Israeli constitutional law, and then proceed with an analysis of several general
factors that may provide an explanation for this extensive use of foreign law.
III. EXPLAINING THE PREVALENCE OF THE USE OF FOREIGN LAW IN

ISRAELI CONSTITUTIONAL JURISPRUDENCE
A. Israeli Constitutional Law and the Use of Foreign Law
Four major features of Israeli constitutional law shape the use of foreign law in Israeli
jurisprudence and can explain its pervasiveness: (1) its non-textual nature; (2) the
‘Constitutional Revolution’ of 1992; (3) the adoption of a European based and universalis-
tic model of constitutional adjudication, and (4) its non-formalistic nature, especially since
the 1980s.
i. Non-Textualism before 1992

An historical overview is necessary in order to understand Israeli constitutional law in
general and its non-textual nature in particular.32 The history of Israel’s constitutional law
is usually divided into two stages: from the establishment of the State in 1948 until 1992,
and from 1992 onwards. As will be shown, both stages are marked by non-textualism.
Israel was established in 1948 after a period of 30 years of British colonial rule
over Mandated Palestine. Although in its defining document – the Declaration of
28
ibid 16.
29
ibid 18.
30
ibid 17.
31
ibid 16.
32
For a general review of the constitutional history of early Israel, sympathetic to the review here, see
R Gavison, ‘The Constitutional Revolution, Description of Reality or a Self-Fulfilling Prophecy?’ (1997) 28
Mishpatim 21, 75–95 (in Hebrew). See also G Sapir, Constitutional Revolution in Israel (Tel-Aviv, Ybook,
2010) 31–41 (in Hebrew).
Independence33 – Israel’s early leadership vowed to adopt a Constitution, this commit-

ment was made without any public debate since the UN Resolution that provided the
legitimacy to the State of Israel, demanded a Constitution as a condition for gaining
international recognition of the State.34 However, once the international community rec-
ognised the State of Israel even without a formal Constitution, the need for a Constitution
was again questioned, and the Israeli Parliament (the Knesset) decided, in a decision
called the ‘Harari Decision’, not to adopt a Constitution.35 Instead, the form of govern-
ment that was adopted was a Westminster-like form of Parliament –sovereignty without
a formal Constitution.
However, the Harari Decision not to adopt a Constitution did not close the door on a
Constitution but took the form of a compromise: the Constitution would be drafted in
stages, chapter by chapter, each chapter to be called a Basic Law. These Basic Laws,
promulgated by the Knesset in ordinary acts of legislation, would then be compiled into
a formal Constitution. This compromise decision, devised to avoid a Constitution at
that stage but also to remain faithful to the internal and international commitment to
have one, intentionally left vague both the status of these Basic Laws during the interim
period, and the deadline by which they should be compiled into a Constitution. The
political and legal community consequently interpreted it as a decision to defer the ques-
tion of a Constitution to a later stage. The 9 Basic Laws that were enacted intermittently
until 1992 (including Basic Law: The Knesset, Basic Law: The Government and Basic
Law: The Military) were therefore treated as regular laws, albeit important in view of
the fact that they included some of the basic rules of government. No Basic Laws con-
taining a Bill of Rights were enacted.
To conclude, the entire first stage of Israeli constitutional law, from its formation in
1948 until 1992, was completely devoid of any textual components, and Israel was cate-
gorised as a system without a formal Constitution. The Court did develop an impressive
set of civil rights, including the rights to freedom of speech, equality, freedom of con-
sciousness, freedom of religion and from religion, freedom of occupation, liberty from
arrest, due process of law and the right to a fair trial, but all these rights were made
judicially, without a textual basis, and also could not be used to defy a formal manifesta-
tion of legislative will (ie no judicial review over primary legislation).36
The most salient feature of Israeli constitutional law is therefore its non-textual nature
and the fact that Israel has no formal Constitution.37 This non-textual nature substantially
facilitates the use of foreign law in Israeli constitutional law in two major respects. First, it
sets aside one of the main objections to the use of foreign law in constitutional interpreta-
tion – loyalty to the text and original intent. As will be discussed more extensively in Part
33
Declaration of the Establishment of the State of Israel, 1 LSI 7 (1948). The Declaration refers to ‘the estab-
lishment of the elected, regular authorities of the State in accordance with the Constitution, which shall be
adopted by the Elected Constituent Assembly not later than the 1 October 1948’, ibid.
34
GA Res 181 (II) (A+B), UN Doc A/RES/181(II) (29 November 1947).
35
The Resolution states: ‘The first Knesset directs the Constitutional, Legislative and Judicial Committee to
prepare a draft Constitution for the State. The Constitution shall be composed of separate chapters so that
each chapter will constitute a Basic Law by itself. Each chapter will be submitted to the Knesset as the
Committee completes its work, and all the chapters together shall be the State’s constitution’ DK 5 (1950) 1743
(in Hebrew).
36
See generally, D Kretzmer, ‘Fifty Years of Supreme Court Jurisprudence in Human Rights’ (1999) 5 Law
and Government 297, 298–300 (in Hebrew).
37
As described in Part IIIAii, the non-textualism continues to be a salient feature of Israeli constitutional
law also after 1992.
158 Iddo Porat
III, constitutional interpretation methods based on textualism or on original intent are

antithetical to some uses of foreign law, since the way other nations interpret and apply
their own Constitutions is generally considered irrelevant to the question of the textual
content of one’s own Constitution or of the original intent of its drafters. Therefore, a
constitutional jurisprudence which is not based on text, but only on case law, is not prone
to this particular objection. Indeed, as Jamal Greene has well shown, even constitutional
systems with a formal Constitution do not usually adopt an originalist interpretation,
unless, as in the American case, their Constitution has achieved a canonical or a sacred text
status, and unless the drafters of the Constitution have achieved the status of cultural
giants and bigger-than-life figures.38 This is all the more so when it comes to systems that
have no constitutional text whatsoever, as in the Israeli case before 1992. This is not to say
that non-textualism necessarily means extensive use of comparative law, just as textualism
does not necessarily deny the use of foreign law. It only means that it makes such use easier
by lifting the obstacle of the text.
Secondly, the entire project of building up a corpus of constitutional rights from
scratch, as it were, by judicial means, lends itself to comparative use and to drawing on
the experience of other countries. Foreign law, especially when originating in countries
with a developed and longstanding jurisprudence of constitutional rights, is a natural
source of reference for such a project.
Accordingly, some of the early decisions that built the impressive corpus of judge-made
constitutional rights used foreign law materials extensively. A striking example is the lead-
ing and breakthrough case of Kol Ha’am.39 The Kol Ha’am case of 1953, which for the first
time recognised the right to free speech in Israeli law, without any textual anchoring, was
replete with foreign law citations. The decision struck down an administrative decision by
the Minister of Interior to temporarily close down two newspapers because of ‘seditious’
op-eds run by their editors. Written by Agranat J – himself legally trained in the United
States – the decision included citations from such classic free speech American cases as
Abrams v United States (1919)40 (citing the famous paragraph regarding the ‘free market of
opinions’), Whitney v California (1926)41 (citing Brandies J on the quality of free speech ‘to
make men free to develop their faculties’), Schenck v United States (1918)42 (citing Holmes
J on the special conditions of free speech in times of war) Gitlow v New York (1924),43 as
well as from cases and books that were more recent to the case, such as Cantwell v
Connecticut (1939),44 United States v Associated Press (1943),45 Zecharia Chaffee’s Free
Speech in the United States (1948),46 and Dennis v United States (1951)47 – a case on which
Agranat J based the particular balancing test that has become the standard free speech test
in Israeli law ever since. The case also included citations from Milton, Blackstone, Mill,
Lord Scrutton and Lord Sumner. All in all the case included citation of nine American
cases, eight English cases, and only three Israeli cases.
38
J Greene, ‘On the Origins of Originalism’ (2009) 88 Texas Law Review 1, 63–66.
39
HCJ 73/53 Kol Ha’am v Minister of Interior 7(2) PD 871 [1953] (in Hebrew).
40
Abrams v US 40 250 US 616 (1919).
41
Whitney v California 274 US 357 (1926).
42
Schenck v US 249 US 47 (1918).
43
Gitlow v NY 268 US 652 (1924).
44
Cantwell v Connecticut 310 US 296 (1939).
45
United States v Associated Press, 52 F supp 362, 372 (1943) (Hand J).
46
Z Chaffee, Free Speech in the United States (Cambridge, Harvard University Press, 1948).
47
Dennis v US 341 US 494 (1951).
Many later leading cases that established newly created rights or shaped and enlarged
their contours followed suit. This is especially true with regard to precedential cases
involving doctrines of free speech, such as a right of free speech against film censorship,48
the right to protest49 free speech versus racist incitement,50 censorship of pornography,51
but also with regard to other rights such as equal rights for women52 and gay rights.53
ii. Non-Textualism after 1992 and the ‘Constitutional Revolution’

The second stage of Israeli constitutional law begins in 1992. At that time two new Basic
Laws were adopted by the Knesset (Israeli Parliament) – Basic Law: Freedom of
Occupation54 (protecting the freedom of occupation), and Basic Law: Human Dignity
and Liberty55 (protecting the rights to life, bodily integrity, dignity, property, freedom
from arrest and extradition, the right to move in and out of the country, and the right to
privacy). These two Basic Laws included, for the first time, civil rights protections that
could be seen as the first stage of a full Bill of Rights.
The Court interpreted the 1992 Basic Laws very broadly, and regarded them, in the
leading 1995 United Mizrahi Bank56 case as a ‘Constitutional Revolution’. First, in
United Mizrahi Bank, it considered them as conferring on the Court the authority to
impose judicial review over primary legislation, despite the fact that there was no direct
legal provision to that effect. Secondly, in a series of later cases it read into Basic Law:
Human Dignity and Liberty almost an entire Bill of Rights, including rights which were
not written into it, such as the right to equality, freedom of conscience, freedom of reli-
gion, the right to a family, the right to have access to the courts, the right to freedom of
speech, the right for minimal living conditions, the right to education, and what may
appear to be a right of a new type – a right against privatization. Thirdly, the Court used
these two laws to read back the status of the previous 9 Basic Laws, giving them superi-
ority over regular laws, so as to create a quasi-constitutional regime, based on the 11
existing Basic Laws.57
The second stage of Israeli constitutional law does, therefore, have a textual basis, in the
form of the two new Basic Laws and the reinterpretation of the 10 older ones. However, at
48
HCJ 243/62 Ulpanei Hasrata v Gery 16 PD 2407 [1962] (in Hebrew) (citing 5 American cases).
49
HCJ 153/83 Levi v Police Commissioner for the Southern District 38(2) PD 393 [1984] (in Hebrew) (citing
7 American cases, 2 English cases, and 1 Irish case) (a list of citations, sorted by country, appears at the top of
every court decision in the PD publication); HCJ 2481/93 Dayan v Wilk 48(2) PD 456 [1994] (in Hebrew)
(including citations from 12 American cases, 2 English cases, 2 Canadian cases, 1 German case, 1 Indian case,
and 1 Australian case).
50
HCJ 399/85 Kahana v Broadcasting Authority Management Board 41(3) PD 255 [1987] (in Hebrew) (cit-
ing 8 American cases, 1 Canadian case, and 1 case of the ECtHR).
51
HCJ 4804/94 Station Film v Council of Film Supervision 50(5) PD 661 [1996] (in Hebrew) (citing 10
American cases, 3 Canadian cases, 3 English cases, and 1 Irish case); HCJ 5432/02 SIN v Council for Cable and
Satellite Broadcasting 58(3) PD 65 [2004] (in Hebrew) (including citations from 3 American cases, 2 Canadian
cases, and 4 American law review articles).
52
HCJ 104/87 Nevo v National Labour Court 44(4) PD 749 [1990] (in Hebrew) (citing 2 English cases, and
2 cases of the ECtHR).
53
HCJ 721/94 El-Al v Daniloviz 48(5) PD 749 [1994] (in Hebrew) (citing 8 American cases, 7 Canadian
cases, 2 cases of the ECtHR, and 1 English case).
54
Basic Law: Freedom of Occupation originally enacted in 1992, replaced in 1994.
55
This Basic Law protects, on top of the right to human dignity, also the rights to property, movement, and
privacy.
56
CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 49(4) PD 221, 353 [1995] (in Hebrew).
57
See Sapir (n 32) 89–95.
160 Iddo Porat
least in terms of a Bill of Rights, this basis is very incomplete and idiosyncratic. The gap
between the limited set of rights given by the text, and a more complete set of rights, was
breached by the Court itself, in the form of the very broad reading of these Basic Laws. In
many respects, therefore, after 1992 Israeli constitutional law continued the tradition of
building up constitutional rights by judicially made law, rather than by basing them on
text. Consequently, non-textualism remains to a large extent a valid explanation for the
use of foreign law.
Indeed, the ‘Constitutional Revolution’ provided an additional reason for relying on
foreign law, since it was seen as an opportunity to revamp and revisit the existing set of
judicially made rights. The period following the United Mizrahi Bank case was charac-
terised by enthusiastic and hectic judicial work, aimed at making use of the newly
acknowledged constitutional framework in order to enlarge the scope of constitutional
rights, and revisit those rights that were already established, based on the new Basic
Laws. As was the case in the first (and more limited) wave of constitutional creativity,
this project could find considerable support, both in content and in legitimacy, by refer-
ring to other Constitutions and other constitutional courts which have a larger and more
established set of constitutional rights.
Accordingly, in many of the decisions in which as part of the ‘Constitutional
Revolution’ new rights were acknowledged through interpretation, or old rights were
revisited in view of the new Basic Laws, one can find extensive recourse to foreign law.
These decisions include the cases in which the right to human dignity was extended so as
to also include the right to equality, the right to family, the right to education, the right
to free speech and the right to minimal living conditions.58
In addition, one may regard the entire thrust for a ‘Constitutional Revolution’ as
based on a comparative claim, namely that Israel is amongst the few Western democra-
cies without a constitutional regime, and without judicial review, and that it should
‘catch up’ with other countries in terms of its constitutional law (this claim was raised in
the United Mizrahi Bank case). Even the way the Court legitimised its bold move of rec-
ognizing judicial review without clear textual authorization, was made by allusion to
comparative law. Court President Barak, referred to Marbury v Madison,59 where the
American Court also used judicial interpretation to claim its authority for judicial
review.
iii. European Law

A third factor that can explain the intensive use of foreign law in Israeli constitutional
law is the adoption of a European based model of constitutional adjudication in Israeli
constitutional law.
The two Basic Laws of 1992 have a limitation clause framed after the Canadian Charter
of Rights and Freedoms, which is based on a European model and a model that exists in
international human rights Conventions. Section 8 of Basic Law: Human Dignity and
Liberty reads:
58
HCJ 5578/02 Manor v Minister of Finance 59(1) PD 729 [2005] (in Hebrew) (citing two American cases,
three South African cases and six Canadian cases).
59
There shall be no violation of rights under this Basic Law except by a law befitting the values
of the State of Israel, enacted for a proper purpose and to an extent no greater than is required.
The wording resembles the wording of the general limitation clause in the Canadian
Charter.60 The latter part of the clause was interpreted as imposing a proportionality test.61
The adoption of a proportionality test and of the European-based limitation clause
model resulted in an increased willingness to look into models of countries that also use
proportionality and share this model, termed by Loraine Weinberg ‘the postwar consti-
tutional paradigm’.62 German constitutional law, for example, has been cited in several
key decisions developing the new tests for the application of the proportionality test, as
well as the Canadian constitutional law.63 By adopting the proportionality test, the
Israeli Supreme Court has entered the ever growing family of constitutional courts that
use proportionality, which has allowed it to borrow more easily from those systems and
create a dialogue with them.64 A similar phenomenon has been well documented with
regard to other constitutional courts adopting the European model, and many times this
came at the expense of citing American constitutional law, which has a substantially dif-
ferent doctrinal framework.65 There is no data regarding a decline in the use of American
constitutional law in Israel, but some of the examples cited above may indicate that
there is an increase in the use of foreign law from such countries as Canada, Germany
and South Africa.
Hand-in-hand with adopting the methodology of European constitutionalism, Israel
may have also gotten closer to the substantive commitment of the European model that
differs from the American one. As Jed Rubenfeld has argued, the European conception
of rights is universalistic and elitist, while the American one puts a high premium on
popular democracy and sovereignty.66 In addition, the European model is more expan-
sive in terms of the concept of rights, and allows for a positive rather than only negative
rights, and for rights to have effect in the private sphere and not only in the public one.67
These developments characterise Israeli constitutional law, and further promote and
ease the use of foreign law in it.
60
S 1 of the Canadian Charter of Rights and Freedoms maintains that the Charter ‘guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justi-
fied in a free and democratic society’.
61
See United Mizrahi Bank (n 56) 436.
62
LE Weinrib, ‘The Postwar Paradigm and American Exceptionalism’ in S Choudhry (ed), The Migration of
Constitutional Ideas (Cambridge, Cambridge University Press, 2007) 84, 84.
63
See, eg United Mizrahi Bank (n 56) 436–37 (citing German and Canadian authorities in the interpretation
of proportionality).
64
For the documentation of the spread of proportionality in different constitutional systems, and for the
dialogue it allows between them see, eg see A Barak, Proportionality: Constitutional Rights and their
Limitations (Cambridge, Cambridge University Press, 2012) 181–208; A Stone Sweet and J Mathews,
‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law
72, 74–75, 111–59; M Cohen-Eliya and I Porat, ‘The Hibidden Foreign Law Debate in Heller: Proportionality
Approach in American Constitutional Law’ (2009) 46 San Diego Law Review 367, 380–81.
65
M Waters, ‘Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and
Enforcing International Law’ (2005) 93 Georgetown Law Journal 487, 493 n 25 (describing the increase in cita-
tions of European countries, and countries such as Australia and Canada, at the expense of citations of
American cases). See also, A Liptak, ‘US Court is Now Guiding Fewer Nations’, New York Times, NY, 18
September 2008.
66
J Rubenfeld, ‘Commentary, Unilateralism and Constitutionalism’ (2004) 79 New York University Law
Review 1971, 1991–99.
67
See M Cohen-Eliya and I Porat, ‘The Culture of Justification’ (2010) American Journal of Comparative
Law 463, 474–81.
162 Iddo Porat
iv. The Non-Formalist Nature of Israeli Constitutional Law

The fourth central feature of Israeli constitutional law that explains the extensive use of
foreign law in Israel is its non-formalist and open-ended nature, especially since the
1980s. This feature is obviously related to the non-textual nature of Israeli constitutional
law, but it is not necessarily the product of it, and is related also to the general move in
Israeli law towards anti-formalism.
Since the late 1970s or early 1980s the Court has been on a continuous move towards
an open-ended mode of interpretation, higher involvement in public life, and greater
supervision over administrative and legislative actions. In short, since the late 1970s the
Court has been showing clear signs of judicial non-formalism and activism. Although it
has not exerted judicial review over primary legislation made until the ‘Constitutional
Revolution’ of 1992, it has dramatically upgraded its ability to supervise administrative
decisions, and even internal decisions, of the Parliament by loosening up entry barriers
such as standing and justifiability, and by adopting a ‘purposivist’ and non-formalist
mode of interpretation. There are also several empirical pieces of evidence for the
increase in anti-formalism in the Court’s jurisprudence; these include the on-average
lengthening of court decisions, and the increase in the relative part of academic and liter-
ary citations at the expense of statutory citations. It is interesting to note that the length
of court decisions was relatively high also in the earlier and formative years of Israeli
jurisprudence, in which canonical cases such as Kol Ha’am paved the way for later cases,
and set up the foundations for the Israeli legal system.68
Professor Mautner reviews several reasons that explain why the court became more
anti-formalist in the 1980s. These reasons are: (1) the shift within Israel from a society
that was more collectivist, socialist and State-centred to one that is more individualistic,
capitalistic and more suspicious of the State. This shift has accorded the courts a greater
role in Israeli society, and has shifted to them more decision power. This is manifested in
the fact that the Court has been assuming a less formalistic role, and adopting a broader
conception of its function; (2) the weakening of the Israeli political system, due to the
fracturing of major parties to smaller ones, and due to unstable coalitions, which again
channelled power to the Court, and encouraged non-formalism and a larger conception
of its role; and (3) the loss of political hegemony of the liberal leftist party to the rightist
party and to the religious parties, and the use of the Court by the liberal left to rebalance
its loss of political power, given its liberal inclinations.69
Whatever the reason, the dramatic move of the Court towards activism and anti-
formalism since the early 1980s can also explain its extensive use of foreign law in at
least three ways. First, anti-formalism represents an expansion of the notion of legality
and of interpretation, and therefore allows and even encourages the use of non-formal
legal sources. The more the judiciary steers away from seeing its own function as apply-
ing mechanically pre-existing law, and moves towards the role of shaping the law
according to considerations of policy and justice, the more it becomes relevant for the
judge to look into a variety of sources that deal with similar policy or moral questions,
regardless of their formal pedigree.
68
See generally, M Mautner, Law and Culture in Israel (Oxford, Oxford University Press, 2011) ch 4 (origi-
nally published as M Mautner, ‘The Decline of Formalism and the Rise of Values in Israeli Law’ (1993) 17
Tel-Aviv University Law Review 503 (in Hebrew)).
69
ibid.
Secondly, anti-formalism in judicial writing has also resulted in a judicial style that is
similar to an academic style. This is particularly characteristic of former Supreme Court
Justice Aharon Barak’s style, himself a former law professor and Dean of the Faculty of
Law at the Hebrew University. Academic style includes citations from a variety of
sources, including comparative law and foreign law review articles. As in a law review
article, an ‘academic-style’ court decision would not restrict itself to the solution of the
particular legal dispute, but attempt to encapsulate the general parameters of a particu-
lar legal question, including history, statutes, case law, policy questions, academic litera-
ture and comparative law. A survey of comparative law is considered to be part of the
‘due diligence’ standard of Israeli academic writing. For example, in some Israeli law
schools, an Israeli law student who writes a research paper on a general legal question is
required to survey comparative law in her paper, and her grade would be affected if she
did not do so.
Thirdly, one of the important implications of anti-formalism in the field of constitu-
tional law is the lowering of procedural barriers of entry to the Court. During the 1980s
the doctrines of standing and of political question loosened up considerably.70 This
resulted, among other things, in the ability of civil society organizations and human
rights groups to petition directly to the Court. Among these organizations are: the Israeli
Association of Civil Rights, Adala (the Legal Centre for Arab Minority Rights in Israel),
the Israeli branches of the International Red Cross and of ‘Doctors without Borders’, as
well as many other groups. With almost no formal requirement of standing and a loose
requirement of political question, such groups can petition the Court not only as repre-
senting claimants that were particularly harmed by governmental action, but also on
their own initiative addressing general matters pertaining to the rule of law. The role of
human rights organizations in Supreme Court petitions and the number of petitions
originated by such groups have therefore increased substantially. Such organizations
specialise more than other petitioners in international and comparative law, as they con-
sider themselves part of an international community of civil society and human rights
organizations, and as they often try to import what they would consider to be more
advanced notions of human rights into the local system. These petitions contribute
therefore to the more frequent use of foreign law and international law in legal briefs
and consequently in Supreme Court decisions.71
B. Israeli Law Generally and the Use of Foreign Law
i. A Young Legal System

In its first stage, as a young legal system, Israel had no prior case law of its own to draw
on. The next best thing was Mandatory case law, which was heavily influenced by
English law. Early Court decisions cited mainly Mandatory as well as English cases,
which were both formal sources of law at the time (the tie to English cases as a formal
See D Barak-Erez, ‘The Justiciabltiy Revolution Revisited’ (2008) 40 The Lawyer 3, 3–4.
70
Compare, Y Elbashan, ‘Aharon Barak – the Juridication of Protest’ in C Fassberg B Medina and E Zamir
71
(eds), The Judicial Legacy of Aharon Barak (Jerusalem, Mishpatim, 2009) 139, 141–42 (in Hebrew) (arguing
that Aharon Barak J was respectful towards human rights organizations, and raised their status in Supreme
Court litigation to that of central players in the shaping of law, rather than marginal players).
164 Iddo Porat
source of law was abolished only in 1984).72 The use of non-Israeli materials in the early
years was therefore common and natural, and partly formalised. This was true of all
legal decisions, including decisions on constitutional matters.
ii. Geopolitical Isolation

Since Israel is a democracy, surrounded mostly by hostile and non-democratic countries,
it has always sought legitimacy and acceptance from the West – from Europe and North
America in particular, and wished to be integrated in Western culture. The use of
American and European legal materials is one way of such a cultural exchange and inte-
gration. Israel is also relatively isolated in terms of the extent of relevant legal materials
that can be used to expand its legal horizon and imagination. The United States, for
example, has a large repository of legal materials to draw on from the legal systems of
the 50 States and of the federal system. This is also so with Europe, which, especially
since the formation of the European Union, has very important legal interactions
between the different countries and can also draw on the jurisprudence of the European
Court of Justice, and the ECtHR. In Israel, however, there is no such regional or internal
large repository of legal materials, so that in order to go beyond its relatively limited
scope of legal materials it must draw generally on foreign materials.
Some view the fascination with the West as part of a post-colonial syndrome, shared
by other former British colonies, in which the newly created State attempts to mimic the
former colonial ruler, and looks for it as a role model.73 Others find its reasons in the
ever increasing importance of American culture, including its legal culture.74 What might
be one of the distinct signs of the attempt at cultural assimilation or mimicry is the use of
legal icons, legal epitaphs and legal quotations from foreign rather than only local
sources. An Israeli justice wishing to spice up her free speech decision with famous quo-
tations, for example, would turn to Holmes J, and Brandeis J, almost as naturally as she
would turn to Agranat J. Leading American academics such as Ronald Dworkin,
Lawrence Tribe, and Alexander Bickel also appear regularly in the repertoire of Israeli
court decisions.75
One should note again that, given the young age of the Israeli judicial system, not
many of its justices have attained the stature of canonical figures, legal icons, or larger
than life figures, so that sometimes Israeli justices look for them outside the borders of
Israel. Jewish giants of Hebrew law are apparently too remote in time, in professional
affinity and in worldview to effectively fill this niche.
iii. Professional and Academic Ties

The third factor that shapes the use of foreign law in Israel is the close ties of Israeli legal
professionals with foreign legal systems. Israeli lawyers, judges and law professors have
72
See nn 8–10 above and accompanying text.
73
According to Binyamin Blum, ‘Israel looks to England and other nations for parental approval of its juris-
prudence. In this regard Israel can be viewed as experiencing a broader postcolonial syndrome, residual of the
Mandate’, Blum (n 2) 2161.
74
See Sandberg (n 2) 54 (text accompanying nn 18–20 above).
75
See, eg recently, CA 751/10 John Doe v Dayan-Urbach (8 February 2012), Nevo Legal Database (by sub-
scription) para 64 of Court Vice President Rivlin’s opinion (in Hebrew) (quoting Holmes, and citing Tribe, in a
free speech opinion).
always had close ties with other countries, and many of them acquired their legal train-
ing abroad. This is definitely the case with the first generation of law professionals, in
the first two decades since independence, most of whom were born and trained abroad
in a large variety of countries from Russia and Poland in the East to Germany, Italy and
England in Central and Western Europe and up to the United States.76 These lawyers,
judges and academics possessed, therefore, a wealth of knowledge on a wide array of
legal systems and had easy access to them. These assets were naturally integrated into
their legal products – in court decisions, legal briefs and legislation.
Most of the lawyers, judges and professors of the following generations were already
born in Israel and had their basic legal training in that country. However, higher legal
education, especially for those wishing to follow an academic career, continued to be
carried out predominantly abroad, especially in the US. According to a 2009 survey, 65
per cent of Israeli law professors received their graduate and postgraduate education in
North America.77 Consequently, over time, the former close acquaintance with the laws
of European countries has dwindled, and on the other hand US influence has grown con-
siderably. Furthermore, in the Israeli legal profession academic prestige is highly depen-
dent on publications abroad, especially in US law reviews. In consequence, academic
research and writing in Israel is oriented towards such areas of law that would be palat-
able to an American legal audience, and a large number of Israeli academics write more
on US law than on Israeli law.
As regards judicial ties with foreign legal systems, several justices (especially those
who followed an academic career prior to their appointment to the Court such as Barak
and Zamir JJ) earned advanced degrees in the US and England, and have integrated their
knowledge into their judicial products.78 In addition, many Supreme Court justices over
the last two decades have had foreign law clerks in their chambers, a practice that is now
almost standard in the Israeli Supreme Court. Many of these clerks are second or third
year law students coming from top US law schools, such as Yale and Harvard, but oth-
ers come also from Germany, Canada, and other countries. These law clerks provide
important information and easy access to foreign law, and are one more indication of
the demand for foreign law resources by Israeli Supreme Court justices.
IV. NORMATIVE ASSESSMENT
The preceding review was descriptive in nature, and aimed at mapping the main factors
that affected the use of foreign law in Israeli constitutional law. The next part will deal
with its normative aspects. It will attempt to assess the use of foreign law in Israeli con-
stitutional decisions by discussing the different points of criticism addressed against
such use.79 The most comprehensive set of attacks on the use of foreign law can be found
in the burgeoning discussion over the use of foreign law in US constitutional law. I will
thus rely on this discussion in order to map the different types of criticism and then turn
to their application to the Israeli case.
76
E Salzberger, ‘The Supreme Court of Israel at 50 Years – Between a Hedgehog and a Fox’ (2000) 16
Bar-Ilan Legal Studies 141 (2000) (in Hebrew); see also Salzberger and Oz-Salzberger (n 21).
77
See Sandberg (n 2) 52.
78
See ibid 53.
79
Arguments in favour of using foreign law are not reviewed separately but as part of the discussion on the
critique of such use, as, in most countries, using foreign law citation is the norm.
166 Iddo Porat
A. Substantive Objection – Originalism
The one major substantive objection to the use of foreign law in constitutional adjudica-
tion is that it undermines the democratic choice of the local population, and subjects its
own conceptions of rights and of their proper scope to the notions of other peoples and
international bodies.80
In the United States, in particular, this objection is tied to the originalist movement,
which contends that the Constitution should be interpreted according to the meaning
assigned to it originally, when it was drafted, since this meaning only reflects the will of
the people.81 Foreign law is immaterial to the task of expounding the will of the people
who drafted the Constitution, and therefore should not be used in interpreting the
Constitution.82 Originalism bases the legitimacy of constitutionalism and of judicial
review on democracy – the Constitution reflects the higher will of the people, and the
Court only imposes the people’s higher will on the people’s ‘regular will’ as expressed by
regular laws.
However, as noted earlier, originalism does not travel well outside the United States.
The legal and constitutional cultures of most other nations are different and do not put
such an emphasis on sovereignty and on original intent.83 Moreover, an originalist inter-
pretation of the Israeli quasi-Constitution may show that the meaning intended by it at
the time of the drafting was not so alien to the use of foreign law in its interpretation and
application. Other recent Bills of Rights, that of South Africa for example, make the use
of foreign sources a formal requirement, and other ones, such as the New Zealand Bill of
Rights, allude to them in the Preamble and in the travaux perperatoires of their draft-
ers.84 In the Israeli case the evidence is less clear, but the fact that the Israeli Knesset has
chosen consciously to draw on an existing model from a foreign country – Canada –
could be taken to mean that the Knesset expected the Court to draw on the Canadian
experience, and maybe also on the experience of other countries with a similar model of
constitutionalism, such as Germany.
Israeli constitutional culture and the circumstances under which the Basic Laws were
enacted do not support, therefore, a strong objection to the use of foreign law, based on
original intent. However, the democratic problem seems to lurk in the background of
some more nuanced problems that may arise because of the use of foreign law, and these
will be discussed later on with regard to global constitutionalism.
80
See Scalia J’s position in the Scalia–Breyer debate set out in N Dorsen, ‘The Relevance of Foreign Legal
Materials in United States Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice
Stephen Breyer’ (2005) 3 International Journal of Constitutional Law 519, 521–22, 524–25.
81
See generally, RH Bork, The Tempting of America (New York, The Free Press, 1990) 143–53; A Scalia,
‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849, 863–64.
82
See, eg Roper v Simmons 543 US 551, 622–28 (2005) (Scalia J, dissenting).
83
See J Allan and G Huscroft, ‘Constitutional Rights Coming Home to Roost? Rights Internationalism in
American Courts’ (2006) 43 San Diego Law Review 1, 32–33.
84
The Preamble to the New Zealand Bill of Rights Act 1990, states that one of the purposes of the Act is to
affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights (adopted 16
December 1966, entered into force 23 March 1976) 999 UNTS 171. Moreover, the White Paper to that Act made
clear that the use of comparative law was contemplated by the Government that proposed the Bill of Rights.
J Allan, G Huscroft and N Lynch, ‘The Citation of Overseas Authority in Rights Litigation in New Zealand:
How Much Bark? How Much Bite?’ (2007) 11 Otago Law Review 433, 445: www.ssrn.com/abstract=1095541.
B. Methodological Objections – Cherry Picking and Bad Comparisons
There are two major methodological objections to the use of foreign law in constitu-
tional adjudication. The first is that it is undisciplined. Since not all foreign law decisions
can be taken into account in each decision, and as there is no rule regarding which for-
eign law a judge should use, the choice, so it is argued, is necessarily arbitrary and boils
down to ‘cherry picking’, that is to choosing such foreign law material which is support-
ive of the judge’s preferred legal outcome. According to Scalia J, for example, a particu-
lar foreign doctrine is either authoritative, in which case its use is mandatory, or not
authoritative, in which case its use is completely undisciplined and open to judicial
manipulation.85 Cherry picking is manifested not only in decisions on which foreign law
to turn to in a particular legal issue, but in the first place in the very selection of the cases
in which one turns to foreign law. Some US justices, for example, choose to turn to for-
eign law to support their views on homosexual rights and on the death penalty, but not
on abortions nor on criminal defendants’ rights.86
The second criticism is based on the impossibility of comparison and of migration of
legal concepts. It claims that the use of foreign law is misleading because any compari-
son would have to take into account so many factors that it would be hard to draw any
conclusions from it. Since any statutory provision or court decision is so deeply embed-
ded in the particular legal culture it belongs to, as well as in the general culture, history,
political climate and particular circumstances of the case, the use of it out of its specific
context would teach us nothing. The same reasons would also make any attempt at legal
transplantation almost impossible.87
Unlike objections based on originalism, objections based on cherry picking and bad
comparisons, definitely have a hold in the context of Israeli constitutional law. To illus-
trate this point one can go back to the ‘father’ of all foreign law citations in Israeli con-
stitutional law, the Kol Ha’am case.88 In Kol Ha’am, Agranat J cited the Dennis case in
order to transplant the American free speech balancing test into Israeli constitutional
law. As described earlier, this was no less than a revolutionary moment that helped
establish and protect the right to free speech in the years to come. However, Agranat J
completely disregarded the role of the balancing test in American free speech law, which
was the inverse of the role it played in the Kol Ha’am case. As lamented by the dissenting
justice in the Dennis case, the balancing test diluted the previous clear and present dan-
ger test, and amounted to a judicial admonition of the Congress’s sense of when hurting
free speech would be reasonable.89 The crucial comparative difference is that the United
85
See Dorsen (n 80) 522 (Scalia J: ‘What’s going on here? Do you want it to be authoritative? I doubt whether
anybody would say, “Yes, we want to be governed by the views of foreigners”. Well if you don’t want it to be
authoritative, then what is the criterion for citing it? That it agrees with you? I don’t know any other criterion
to bring forward’).
86
See Roper (n 82) 622–28 and the examples there in Scalia J’s dissent.
87
See P Legrand, ‘The Impossibility of “Legal Transplants” ’ (1997) 4 Maastricht Journal of European
and Comparative Law 111 (arguing that the cultural barrier makes legal transplants virtually impossible);
MD Ramsey, ‘International Materials and Domestic Rights: Reflections on Atkins and Lawrence’ (2004) 98
American Journal of International Law 69, 73–74 (arguing against the comparison drawn in the Lawrence case
between American constitutional law and the European legal context, since the legal tests diverge substantially).
88
Kol Ha’am (n 39).
89
Dennis (n 47) 579–81 (Black J dissenting).
168 Iddo Porat
States had a formal Constitution with a formal and absolute protection of free speech,90
so that a balancing test in effect diluted the absoluteness of the free speech precept that
‘Congress shall make no law abridging the freedom of speech’. In Israel, which has no
formal Constitution and no textual protection of free speech, the balancing test was
used to create the right to free speech by reading the balancing test into the law that
authorised censorship. What was balanced was the administrative unlimited discretion
to censor speech, rather than the right to free speech itself. This was an ingenious move,
but one that disregarded the comparative difference between the two constitutional
cultures.
The second example is taken from the second wave of constitutional creativity. In the
United Mizrahi Bank case of 1995 Court President Barak relied partly on the Marbury
case to legitimise a judicially acknowledged right to judicial review.91 The comparative
difficulty here is the fact that Marbury found this right in a full blown formal Constitution
that was ratified in a long, demanding and comprehensive process, while the Court in
United Mizrahi Bank relied on two Basic Laws that were ratified in a regular act of
legislation, without much public attention, and with a low participation of Knesset
Members. What can be derived from the former process of Constitution-making cannot
be derived from the latter. Marbury itself, of course, is accused of cherry picking and
bad comparison, by arguing that judicial review logically follows from the superiority of
the Constitution and disregarding comparative counter examples in Europe at the time.92
The citation of Marbury amounts therefore to a ‘double’ bad comparison.
There are many other examples of course including: the transplantation of the exclu-
sionary rule while disregarding the difference between a bifurcated jury system and a
unitary judiciary,93 turning to comparative law to establish a consensus around gay
rights while diminishing the role of countries that do not follow that move,94 doing the
same with regard to establishing a right to affirmative action,95 and other cases.
However, while cherry picking, bad comparisons are real problems for Israeli constitu-
tional law, they do not seem to be problems which apply only to Israeli law, or only to
constitutional law, or even only to the citation of foreign law. Professor Tushnet, for
example, argued that the cherry picking objection, ‘could be made . . . about nearly every
approach to constitutional interpretation’, including about the selection of historical data
for originalist-based interpretation, and judges often rely on hosts of non-authoritative
sources, that similarly may raise the problem of cherry picking and bad comparisons, such
as lower courts’ decisions, law review articles, public policy memoranda and the like.
One may argue that the use of foreign law is more prone to the problems of cherry
picking and to bad comparisons than the use of other non-authoritative materials. This
is so since foreign law provides an especially large reservoir of examples, and thus ampli-
fies the possibilities of manipulation, and that comparisons are especially hard to make
90
See the First Amendment to the United States Constitution providing in absolute terms that ‘Congress
shall make no law . . . abridging the freedom of speech’, US Constitution, amend I.
91
United Mizrahi Bank (n 56) paras 75–76 of Court President Barak’s opinion.
92
See, eg M Troper, ‘Marshall, Kelsen, Barak and the Constitutionalist Fallacy’ (2005) 3 International
Journal of Constitutional Law 24.
93
CA 5121/98 Yissacharov v Chief Military Prosecutor 61(1) PD 461 [2006] (in Hebrew).
94
See Dorner J’s opinion in Daniloviz (n 52) and the comparative examples she cites there, all of which sup-
port the expansion of gay rights.
95
See HCJ 453/94 Israel Women’s Network v Government of Israel 48(5) PD 510 [1994] Cheshin J’s opinion
(in Hebrew).
between different cultures. Constitutional law is sometimes believed to be especially

imbedded in the culture of a nation because it represents its raison d’être, and therefore
it may be harder to draw comparisons in this particular area of law. However, the differ-
ence between the dangers of foreign law manipulation and those of other types of
manipulation appears to be a difference of degree rather than of kind, and the danger in
using foreign law can sometimes be exaggerated. It seems, therefore, that we should
look elsewhere if we wish to find a more principled objection to the use of foreign law.
C. The Pitfalls of Global Constitutionalism
After having shown that the originalist objection does not apply so much to Israel and
that the methodological problems of the use of foreign law do not present a unique or
particularly worrying problem, I would now like to point out several aspects in which
the use of foreign law could be genuinely troublesome.
i. Ratcheting Up, Race to the Top and Human Rights Organizations
While cherry picking is not unique to the use of foreign law, it seems that a particular
kind of cherry picking, related to the effects of globalism, is unique to the use of foreign
law, and might present special problems. A New Zealand survey has found that the use
of foreign law in interpreting the New Zealand Bill of Rights Act has been substantially
biased in favour of expanding notions of rights, rather than diminishing them.96 Although
New Zealand judges could find outside their own system examples of both diminished
and enlarged scopes of rights, and of different ways of line drawing between rights and
public interests, they tended to cite mostly those that expanded notions of rights and
drew the line closer to rights, and tended to disregard those systems in which rights had
a more diminished scope. The use of foreign law there had a ratcheting up effect on the
scope of rights, at the expense of other considerations.
David Law identified a similar phenomenon regarding the interrelations between dif-
ferent countries and different constitutional courts, and called it a ‘race to the top’.97
Using empirical data, Law found that countries and constitutional courts around the
world look at each other’s jurisprudence and compete amongst themselves over who
would be more ‘advanced’ or expansive in terms of rights protection. Law bases his find-
ing on an economic explanation,98 but it is confirmed also by common wisdom. It would
seldom be the case that a court would be proud of itself for being the least protective of
rights, and more often one could find a court lamenting the fact that one’s own system
‘lags behind’ or does not ‘catch up’ with other systems in terms of rights protection.
A ratcheting up effect may occur also as a result of the role human rights organiza-
tions play in initiating and participating in petitions. As argued earlier,99 human rights
organizations are central players in the promotion of the use of foreign law in judicial
96
Allen, Huscroft and Lynch (n 84) 10.
97
DS Law, ‘Globalization and the Future of Constitutional Rights’ (2008) 102 Northwestern University
Law Review 1277.
98
David Law argues that ‘As capital and skilled labor become increasingly mobile, countries will face a
growing incentive to compete for both by offering bundles of human and economic rights that are attractive to
investors and elite workers’, ibid 1282.
99
170 Iddo Porat
opinions, and such organizations have an inherent bias in favour of expanding the
notion of rights, and citing those foreign opinions that are the most expansive in terms
of rights.
There is no survey similar to the New Zealand one with regard to Israeli constitu-
tional law, but a quick review of many of the cases mentioned above for selective use of
foreign law would show that many of them were selective in one way only – by citing
only those authorities that expand local notions of rights. This is true with regard to the
issue of affirmative action,100 of gay rights,101 of the exclusionary rule,102 and of social and
economic rights such as the right to minimal existence and the right to education.
Binyamin Blum103 has shown nicely the way the Israeli Supreme Court made an effort to
portray its ruling on evidentiary law as adopting the most ‘advanced’ standard in the
global market – the exclusionary rule – participating, as it were, in the race to the top of
rights protection in this field. This, despite the fact that the ruling itself did not diverge
dramatically from previous precedent, and its portrayal as adopting the exclusionary
rule subsequently caused much confusion in the lower courts’ jurisprudence. There are
also counter examples, notably not choosing the American position regarding the legal-
ity of racism and other forms of incitement or of hurting public feelings, but here too the
Israeli Supreme Court relies on a wide consensus among European countries, and can-
not be regarded as diverging from a high standard of rights protection.
ii. Writing to a Global Audience: Transjudicialism, the Global Community of Judges,

and the Court as an Ambassador
Constitutional judges see themselves more and more as part of a global community of
judges104 and as participating in what Ann Marie Slaughter called transjudicial commu-
nication.105 Slaughter has documented the way constitutional judges around the world
participate in international conferences, meet each other, and correspond with each
other over the pages of their court decisions. Since rights jurisprudence is a global lan-
guage, much of this communication is concerned with rights, and rights adjudication
may become the lingua franca of transnational law. Today many courts make a con-
scious effort to transmit their decisions to other courts, and to expand their global influ-
ence, and this is aided by technological advancements that make such transmission easy
and quick.
The German Federal Constitutional Court, for example, issues English press releases
and sends them to its counterpart courts in other countries.106 The Supreme Court of
Canada sends automated messages to subscribers, giving them one week’s notice of
impending decisions, along with brief summaries of the relevant history of a case.107 The
Israeli Court is no exception. Its leading decisions are translated and put on the website
100
Israel Women’s Network (n 95).
101
Daniloviz (n 53).
102
Yissacharov (n 93).
103
Blum (n 2) 2169–71.
104
A Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191.
105
A Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law
Review 99; see also, A Slaughter, ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 1103.
106
See www.bundesverfassungsgericht.de/links.html. This link opens a website in German, which lists the
German Government institutions and links to other courts.
107
See Allan and Huscroft (n 95) 11.
of the Court sometimes a short span of time after they are published in Hebrew. Israeli
judges are sought after participants in international conferences, and global meetings of
constitutional judges, because of the interest Israeli law promotes around the world, and
they promote their decisions in those venues as well.
The result of this is that constitutional judges are writing their decisions knowing that
they would be read by a global community; they therefore inevitably write also to the
global audience, and may try to ‘sell’ their decision to that audience, present it in a way
that would be palatable to that audience, or even in a way that would distinguish it and
portray it as innovative, or advanced. One may talk in this respect about judges getting
‘compensation’ in terms of international recognition, and participation in international
conferences and events. This phenomenon exceeds the mere citation of foreign law, but
should be regarded as part of it, since it addresses the more general phenomenon of the
global influences on local constitutional law.
Several Israeli decisions portray this transjudicial dialogue, or a possible attempt to
address the palate of the international audience. Leading cases in terms of the protection
of rights versus threats to State security, such as the precedential case banning torture,108
and to a lesser extent, the decision limiting ‘targeted killing’,109 were very well received
abroad, and presented by Israeli justices as attesting to the way Israel is leading among
democracies in rights protection. In another decision, pertaining to the holding of
Lebanese Hizballa militants as bargaining chips for the release of an Israeli captive
soldier, the Court changed its mind in a second hearing of the case, following strong
internal, as well as international and academic criticism of the first decision.110 While
obviously these decisions are led by other considerations as well, the effect they have in
the global community of judges and lawyers cannot be overlooked. Another example
that shows a more direct dialogue between the Israeli Court and the international com-
munity pertains to the ruling regarding the security fence erected between Israel and the
Palestinian territories.111 The timing of the decision was very telling; it was given a short
time before an expected decision of the International Court of Justice on the legality of
the fence. It cannot be interpreted other than as partaking in a dialogue with that other
court, showing, as it were, that Israel does stand to international standards of human
rights protection, with regard to the fence. Other courts also act similarly. The
Lithuanian Constitutional Court, for example, issued a ruling in 1998 banning the death
penalty in the State, despite an overwhelming objection in the populace.112 This could be
interpreted as a move calculated to please the audience of the European Union, and ease
HCJ 5100/94 Public Committee against Torture in Israel v State of Israel 53(4) PD 817 [1999] (in Hebrew).
108
HCJ 769/02 Public Committee against Torture in Israel v Government of Israel 62(1) PD 507 [2006] (in
109
Hebrew).
110
CrimFH 7048/97 John Does v Ministry of Defence 54(1) PD 721 [2000] (in Hebrew) (Barak J changing his
opinion in the previous round).
111
HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807 [2004] (in Hebrew) )trs in
(2005) 38 Israeli Law Review 83(.
112
The Constitutional Court of the Republic of Lithuania, ruling ‘On the compliance of the death penalty
provided for by the sanction of Article 105 of the Republic of Lithuania Criminal Code with the Constitution
of the Republic of Lithuania’ Vilnius, 9 December 1998 (official website of the Lithuanian Constitutional
Court, www.lrkt.lt/dokumentai/1998/n8a1209a.htm). The Court based its decision on Art 19 of the
Constitution, protecting the right to life, and on Art 21, providing that it shall be prohibited to torture, injure,
degrade, or maltreat a person, as well as to establish such punishments. A November 1998 survey showed that
78% of Lithuanians were against and 10% for the abolition of the death penalty. V Gaibidys, ‘Attitudes
Towards the European Union in Lithuania: 1997–2002’ (IES Proceedings 1.1, November 2002) www.ies.ee/iesp/
gaidys.pdf.
172 Iddo Porat
the acceptance of Lithuania into the EU, the Court acting as an ambassador of sorts, in
selling Lithuania as a rights protective State.
iii. The ‘Constitutional Revolution’ and a False Sense of Consensus

One may view the ratcheting up and the race to the top effects as positive develop-
ments.113 After all, they drive courts towards greater protection of human rights.
However, they also hold obvious problems of legitimacy. In addition, there is another
danger in such use of foreign law. Judges, who rely extensively on foreign law in inter-
preting rights, may find in it a false sense of consensus and agreement, which does not
exist in their local community. Such judges may be reassured by the fact that their rul-
ings are well accepted abroad, or by the fact that other nations seem to adopt similar
interpretations, and disregard strong internal opposition to their rulings. This is often
aided by sympathetic reaction from academia, cultural elites, and civil society organiza-
tions, all of which are also players in the global arena, and find their legitimacy and
‘compensation’ in that arena as well as in the local one.
In a small State, such as Israel, which has a very strong need for international acceptance
and legitimacy because of its geopolitical situation, in which the legal and judicial com-
munity has strong international ties, in which the judiciary has adopted an anti-formalist
and activist jurisprudence, this danger is enhanced.
The danger of losing touch with the local community is exacerbated by the shaky
grounds on which the Israeli ‘Constitutional Revolution’ was founded. The Court is
moving forward in great leaps constantly adding new rights to the set of constitutional
protected rights, basing this move on two Basic Laws, which, as described earlier, pro-
vide very little textual support for such a move, and which were not meant to create a
revolution. The comparative constitutional perspective functions both as a fuel to con-
tinue the ‘Constitutional Revolution’ and as a sedative to the danger of losing legitimacy
for it within Israeli society.
V. CONCLUSION
Israel has many good reasons to use foreign law in its constitutional law. It has a long
tradition of using foreign law, it has relied on foreign law to create an impressive judi-
cially made set of constitutional rights, and its constitutional culture is receptive to the
comparative perspective. The use of foreign law has therefore many advantages for
Israeli constitutional law, and is not expected to go away. However, seen in a more gen-
eral perspective of a constant move of ratcheting up the set of rights in Israel, without
textual anchoring or strong public support, and as a way of participating in a similar
global move in other constitutional courts, the use of foreign law may raise important
concerns, and should be evaluated more sceptically.
113
See E Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National
Courts’ (2008) 102 American Journal of International Law 241.
12
The Israeli Case of a
Transformative Constitutionalism
MOSHE COHEN-ELIYA
I. INTRODUCTION
T
HE NOTION OF a transformative constitutionalism is an exciting one: it
invites lawyers and judges to engage in the stimulating and ambitious task of
effecting a fundamental change to the code of values and attitudes of the entire
nation. Constitutions that require judges to perform this job are post-traumatic; they
signal a clear departure from the horrors of the past, as in the case of the Constitutions
of post-Nazi Germany and post-apartheid South Africa.
By its very nature, a transformative constitutionalism presumes an active role for the
court that is delegated with its implementation. The jurisprudences of the German
Federal Constitutional Court and the South African Supreme Court illuminate what it
means in doctrinal terms to implement such a Constitution. First, there is extensive rhe-
torical resort to fundamental values, which imply very broad notions of constitutional
rights and, hence, greater latitude for judicial review. Second, constitutional rights and
values are interpreted as positive rights, imposing an active duty on the government to
implement them. Third, the constitutional provisions are broadly formulated, applying
not only to the government but also to individuals (Drittwirkung). And finally, the com-
prehensive and transformative mission of the Constitution is fulfilled by a judicially-
active court that extensively employs balancing or proportionality procedures, deemed
as necessary due to the Constitution’s broad scope and the need to contend with conflict-
ing rights, values, and interests.
In the context of Israeli law, these characteristics seem to be the most essential fea-
tures of the Israeli Supreme Court’s constitutional jurisprudence. Over the past three
decades, the Court has made significant reference to fundamental values, expanded its
conception of rights and the scope of judicial review, and developed the notion of posi-
tive rights. It has signalled its willingness to make individuals subject to the duty to
respect constitutional rights and has designated proportionality as the reigning analyt
ical doctrine in constitutional law. The idea of turning Israel into a more enlightened,
liberal and humanistic society has been a recurring theme in the judgments, scholarship,
and lectures of Aharon Barak, the highly influential former Court President of the Israeli
Supreme Court. This ideal is the legacy of the Barak Court.
174 Moshe Cohen-Eliya
However, in at least one respect, there is an important difference between Israeli

constitutional law and that of post-war Germany and post-apartheid South Africa,
which derives not from the jurisprudence but is rooted in the constitutional text itself
and intentions of the framers. While the framers of the South African and German
Constitutions clearly intended to signal an unequivocal departure from the past (ie to
transform the values and attitudes of the citizens and decisionmakers), this was not the
case in Israel. From both the text and stated intentions of the drafters of the Israeli set of
Basic Laws it emerges that the Israeli constitutional legislation corresponds more closely
with what Lessig has termed with regard to the American Constitution – ‘a preservative
constitution’, that is to say, one that seeks to maintain existing practices, to ensure that
things do not get worse.1 The Basic Laws were not created in Israel following a dramatic
turning point in the nation’s history, certainly not on the scale of post-Nazism or post-
apartheid. Rather, these laws were enacted incrementally, delaying to the very end the
enactment of Basic Laws on fundamental rights. Though the liberal Members of the
Knesset (Israeli Parliament) had intended to improve human rights protection, the Basic
Laws’ texts do not imply a radical break with the past. Rather, they make broad refer-
ence to the same core Jewish and democratic values of the State of Israel that were first
laid out in the 1948 Israeli Declaration of Independence.2
The Israeli case is thus a unique instance of a transformative constitutionalism, in that
the ambitious project is undertaken by the Supreme Court in the absence of a nationally
defining moment and without legitimacy from the constitutional text. Rather than
implementing the agreed-upon fundamental values, the Israeli Supreme Court justices
are sometimes perceived as rolling up their sleeves and climbing into the political arena
as participants in the cultural battle being waged. There have been clear ramifications:
significant backlash from politicians, with an unprecedented number of proposed Bills
seeking to limit the Court’s power and, even more worrying, a dramatic decline in public
trust in the Supreme Court, which cannot be explained simply as a manifestation of
Israelis’ general scepticism towards the authorities.
This chapter seeks to describe and evaluate the Israeli transformative constitutional-
ism and proceeds as follows. After describing the concept of such a constitutionalism in
Part II, I present in Part III the transformative features of Israeli constitutional jurispru-
dence, including value-rhetoric, positive rights, Drittwirkung, and proportionality. To
this end, the transformative German and South African constitutional jurisprudences
are contrasted with the non-transformative features of American constitutional juris-
prudence, with Israel then situated between the two. I briefly consider the weaknesses of
the judicially transformative project in Israel due to the heterogeneity of its society and
the significant lack of consensus over values. I conclude in Part IV by proposing what I
take to be a more promising alternative for Israel: a democracy-reinforcing approach in
judicial review.
1
CR Sunstein, Designing Democracy: What Constitutions Do (New York, Oxford University Press, 2001)
67–69; see also L Lessig, Code and Other Laws of Cyberspace (New York, Basic Books, 1999) 214.
2
Transformative Constitutionalism 175
II. SOME PRELIMINARY NOTES ON TRANSFORMATIVE CONSTITUTIONALISM?
Although the notion transformative constitutionalism often connotes post-liberalism

and is associated with a progressive agenda,3 this chapter refers to a more morally-
neutral conception of transformation. This follows Lawrence Lessig’s definition of a
transformative constitutionalism as laying out ‘certain aspirations that are emphatically
understood as a challenge to longstanding practices; they are defined in opposition to
those practices’.4 The idea of transformation was captured well in a South African
Supreme Court post-apartheid decision:
The South African Constitution . . . represents a decisive break from, and a ringing rejection of,
that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a
vigorous identification of and commitment to a democratic, universalistic, caring and aspiration-
ally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past
which it repudiates and the future to which it seeks to commit the nation is stark and dramatic.5
From a theoretical perspective, a constitutional transformation can also be under-

stood as a shift from authoritarianism to State-neutrality. Such a transformation, how-
ever, is almost impossible to attain without certain active measures from the State, at
least during the first stages of the process. For example, should post-war Germany – in
light of the traumatic outcomes of Nazism – have been transformed into a neutral liberal
democracy (as Krieger famously argued in The German Idea of Freedom),6 or should it
have maintained its traditional organic and communitarian conception of the State,
which assumed a meaningful and active role for the State in securing the common telos
of the German people? The German Federal Constitutional Court opted for the latter
approach, ruling that the German Basic Law is constructed on a Wertrangordnung
(a hierarchal value-order) in whose implementation the State must take an active role.
Underlying this choice was the understanding that adopting State neutrality in post-war
Germany would have run the risk of maintaining the racist and totalitarian attitudes
that were prevalent there.7 Only once the project of transformation had been generally
3
See generally, KE Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African
Journal on Human Rights 146.
4
Sunstein (n 1) 224. A related concept is that of transitional justice. See RG Teitel, ‘Transitional
Jurisprudence: The Role of Law in Political Transformation’ (1997) 106 Yale Law Journal 209. Theories of
transitional justice are concerned with maintaining social stability while facing up to the horrors of the past.
They often confine their discussions to ‘bounded periods, spanning two regimes’ (RG Teitel, Transitional
Justice (Oxford, Oxford University Press, 2000) 5) and to changes or to transitions toward more liberal regimes.
For a critic, see A Gross, ‘The Constitution, Reconciliation, and Transitional Justice: Lessons from South
Africa and Israel’ (2004) 40 Stanford Journal of International Law 47, 51–52.
5
S v Makwanyane 1995 (3) SA 391 (CC) para 261 (S Afr) (abolishing capital punishment). On the trans-
formative character of the South African Constitution, see Klare (n 3).
6
L Krieger, The German Idea of Freedom: History of a Political Tradition (Boston, Beacon Press, 1957) 121,
470 (arguing that in light of the moral bankruptcy of nationalism, Germany should depart from its communi-
tarian understanding of the rule of law and adhere instead to an American-style neutral Constitution, one that
guarantees negative liberties).
7
DP Kommers, ‘German Constitutionalism: A Prolegomenon’ (1991) 40 Emory Law Journal 837, 852
(arguing that ‘the Basic Law marks a radical break with the past. In broadest outline, the gulf between Weimar
and Bonn represents a major shift from constitutional democracy to constitutional democracy, emphasizing
both the permanence and enforceability of certain limits on majority rule’); C Jabloner, ‘Hans Kelsen:
Introduction’ in AJ Jacobson and B Schlink (eds), Weimar – A Jurisprudence of Crisis (Berkeley, University of
California Press, 2000) 67, 73 (criticizing the arguments that the concepts of formal democracy and neutrality
that guided the Weimar Republic were conceived of as one of the reasons for its constitutional collapse).
achieved could Germany allow the transformative measures to be relaxed and shift
towards a more neutral conception of the State.8
There are certain similarities between supporters of constitutional transformation
(transformatists) and advocates of moral perfectionism (perfectionists). Like transfor-
matists, perfectionists reject State-neutrality and ‘favor political institutions and state
policies that do the best job of promoting good human lives’.9 Both have an ideal in
mind, which they seek to perfect. They differ, however, in one critical aspect: while
transformatists universally seek a radical departure from the past, this is not necessarily
the case for perfectionists. For perfectionists can also be conservatives and thus strive to
preserve traditional practices by way of active State intervention.10
III. THE TRANSFORMATIVE DOCTRINES
In this part, I present post-war Germany and post-apartheid South Africa as proto
typical of transformative constitutionalism. Both experienced a clear departure from a
traumatic past, and in both, a rich and sophisticated body of case law evolved following
this transformation. Drawing from both the constitutional text and from their jurispru-
dence, I will identify some of the essential doctrinal features of transformative constitu-
tionalism and then consider for each of the features whether Israeli constitutional
jurisprudence can be deemed transformative.
A. The Rhetoric of Values
Transformative Constitutions are aspirational and tend to make numerous references to

values, while indicating a sharp shift away from the past. Values have rhetorical power.
They speak to the general public, and not only to sophisticated institutional players, which
is necessary for effecting a change in the values of the entire nation. The Constitutions of
Germany and South Africa abound with value rhetoric. The drafters of the post-war
German Basic Law decided to begin the constitutional text with absolute protection of
human dignity alongside several provisions that define the core values of the new Germany:
substantive democracy, social justice, and federalism.11 Similarly, the Preamble to the
South African Constitution proclaims the aspiration to ‘heal the divisions of the past and
establish a society based on democratic values, social justice and fundamental human
8
See, eg the second abortion decision of the German Federal Constitutional Court (88 BVerfGE 203 (1993)
(Ger)) (the Constitution does not require the criminalization of abortion, but imposes other limits on it), in
which it retreated from its 1975 ruling that the State is under a constitutional obligation to criminalize abor-
tion. See 39 BVerfGE 1 (1975) (Ger).
9
‘Perfectionism in Moral and Political Philosophy’, Stanford Encyclopedia of Philosophy, 13 February
2007: www.lato.stanford.edu/entries/perfectionism-moral/#PerPol. Perfectionism is contrasted with anti-
perfectionism – a strand of political moral philosophy that insists on neutrality – and is associated with Rawls,
Ackerman, and Dworkin. See J Rawls, A Theory of Justice (Cambridge, Harvard University Press, 1971);
R Dworkin, Taking Rights Seriously (Cambridge, Harvard University Press, 1977); B Ackerman, Social Justice
in the Liberal State (New Heaven, Yale University Press, 1981).
10
Thus, perfectionism can couple both progressive liberals such as J Raz, The Morality of Freedom (Oxford,
Oxford University Press, 1986), who hold sacred individual autonomy, with conservatives such as G Sher,
Beyond Neutrality: Perfectionism and Politics (Cambridge, Cambridge University Press, 1997).
11
Grundgesetz für die Bundesrepublik Deutschland (Grundgesetz) (GG) (Basic Law), 23 May 1949, BGBl I,
art 1 (Ger).
rights’.12 Moreover, Article 1 of the Constitution states that South Africa is a democratic
State founded on the values of human dignity, equality, human rights and freedoms, and
non-racialism and non-sexism.13 In both Germany and South Africa, then, the constitu-
tional values are defined in contrast to the past.
Israeli constitutional laws have not been codified into one formal document. Instead,
in accordance with its 1950 ‘Harari Decision’,14 the Israeli Parliament has adopted 11
Basic Laws, each designed and intended to be a chapter in a future Israeli Constitution.
These laws have established the democratic institutions of the State of Israel on the prin-
ciple of separation of powers and make scarce reference to fundamental values. Two
Basic Laws adopted in 1992, Basic Law: Human Dignity and Freedom and Basic Law:
Freedom of Occupation, were the first to constitutionally protect fundamental rights,
with frequent mention of values and fundamental principles in both. For example, sec-
tion 1 of Basic Law: Human Dignity and Freedom reads as follows:
Fundamental human rights in Israel are founded upon recognition of the value of the human
being, the sanctity of human life, and the principle that all persons are free; these rights shall be
upheld in the spirit of the principles set forth in the Declaration of the Establishment of the
State of Israel.
Section 1A continues,
[t]he purpose of this Basic Law is to protect human dignity and liberty, in order to establish in
a Basic Law the values of the State of Israel as a Jewish and democratic state.
Additionally, section 8, which sets the terms for the restriction of the rights protected
under the Law, provides that one of the necessary conditions for the constitutionality of
a law limiting those rights is that it corresponds with ‘the values of the State of Israel’.
Although this Israeli constitutional text is aspirational and value-oriented, it can
hardly be considered transformative. The 1992 Basic Laws were enacted after continu-
ous failure in Parliament to enact a full and comprehensive constitutional Bill of Rights.
In order to overcome the fierce opposition of the religious political parties to such a
document, Israeli liberal lawmakers made substantial concessions, in terms of both the
number of constitutional rights protected and the scope of that protection.15 Another
major concession was that whereas the original draft of the 1992 Basic Law defined
Israel as a ‘democratic’ State, the final draft had the added feature of ‘Jewish’. This defi-
nition of Israel as a ‘Jewish and democratic State’ reverts back to the core definition of
the State in the 1948 Declaration of Independence.16 So, although aimed at bolstering
human rights protection, the Basic Law does so within the confines of an institutional
structure taken from the past rather than adopting a radically transformed structure.
If the 1992 Basic Laws were not intended to be transformative, what can account for
the many invocations of principles, aspirations, and values in the texts? Given the deep
rifts that exist in Israeli society across ethnic and religious lines, the use of abstract and
open-textured ‘values’ serves to cover up the profound dissent over their supposedly
shared contents. The effect of values-talk is the substantial delegation of power to the
12
Sout African Constitution 1996, Preamble.
13
ibid s 1.
14
DK 5 (1950) 1743.
15
G Sapir, The Constitutional Revolution: Past, Present and Future (Tel Aviv, Haifa University Press, 2010)
(in Hebrew).
16
n 2.
Supreme Court to define the meaning of those values. The Court has generally used this
interpretive authority to emphasise the democratic values of Israel and narrowly
construct the Jewish values. For example, when it nullified the Jewish Agency’s policy
not to lease lands it administers to non-Jews, the Court was promoting Israel’s demo-
cratic values and narrowly construing its Jewish values:
The Jewish State having been established, it treats all its citizens equally. The State of Israel is
a Jewish state in which various minorities, including the Arab minority, live. Each of the
minorities living in Israel enjoys complete equality of rights. It is true, members of the Jewish
nation were granted a special key to enter (see the Law of Return, 5710-1950), but once a per-
son has lawfully entered the home, he enjoys equal rights with all other household members.17
The Supreme Court has always been the flag-bearer of liberal, democratic, and
humanistic values. But the enactment of the 1992 Basic Laws served to legitimise and
accelerate the move towards humanism. Soon after their adoption, Aharon Barak pub-
lished several articles in which he labelled this development nothing less than a
‘Constitutional Revolution’:18 first, because the Court could now strike down any stat-
ute violating human rights (despite the fact that this power was not explicitly granted in
the Basic Law) and, second, because the Israeli Parliament had expressed the centrality
of core humanistic values, such as human dignity, in Israeli constitutional law. The
Supreme Court relied on its new authority to overrule some of its earlier decisions and to
better protect fundamental rights in cases in which the rights infringement was not
framed in a statute.19
Barak’s choice of the term ‘Revolution’ is no accident. Indeed, it is a powerful rhetori-
cal tool that generated much public attention and was intended to accelerate the trans-
formation of Israeli society into a more tolerant, liberal, and humanistic one. The need
to strengthen democracy and humanism in Israel is a constant theme in Barak’s public
talks, writings, and judicial decisions.20 His repeated reference to the 1992 Basic Laws as
a revolution and to ‘values’ has created a critical mass of rhetoric aimed at making poli-
cymakers, legislators, judges, teachers, the media, and individuals internalise the fact
that something dramatic has happened: that Israel has taken an important step toward a
humanistic democracy that respects human rights. This rhetoric is catchy, exciting, and
powerful – an inevitable trigger of media attention and a tool for reshaping public
discourse.
As noted in Part II, value-based judicial review does not necessarily imply transforma-
tive constitutionalism. Indeed, the invocation of ‘traditional’ values can serve precisely
the opposite end, for it can operate as a mechanism for preserving the existing political
structure. The US solution for the problem of misusing values was to generally refrain
from referring in its constitutional text and jurisprudence to values and to suffice in
protecting rights, which are relatively more concrete. What may account for this is the
traditional American suspicion of the judiciary, particularly the idea of judges’ interpret-
17
HCJ 6698/95 Ka’adan v Israel Land Administration 54(1) PD 258 [2000] (in Hebrew). English translation
available at: www.elyon1.court.gov.il/files_eng/95/980/066/a14/95066980.a14.pdf.
18
A Barak, ‘A Constitutional Revolution: Israel’s Basic Laws’ (1993) 4 Constitutional Forum 83; A Barak,
‘The Constitutional Revolution: Protected Basic Rights’ (1992) 1 Law and Government 9 (in Hebrew). This
view is not shared by all. See, eg R Gavison, ‘The Constitutional Revolution: A Reality or a Self-Fulfilling
Prophecy’ (1997) 28 Mishpatim 21, 32, 73, 95–97 (in Hebrew).
19
See, eg HCJ 2316/95 Ganimat v State of Israel 49(4) PD 589 [1995] (in Hebrew).
20
Gavison (n 18) 95–97.
ing vague ‘values’ subjectively and thereby undermining democracy.21 It is thus not sur
prising that the transformative strand in American constitutionalism has met with very
limited success.22
Consequently, basing judicial review on values is a gamble. In several Israeli cases, the
reference to values in fact served to justify a severe limitation of human rights. For exam-
ple, in the 1960 Yardor case, the Israeli Supreme Court relied on Israel’s ‘Jewish’ values as
they appear in the Declaration of Independence to disqualify an Arab political party that
opposed the definition of ‘Jewish’ as an essential characteristic of the State.23 Similarly, in
the 2006 Adalah v Minister of Interior ruling, Cheshin J, writing for the narrow majority,
justified a near absolute ban on family reunification in Israel between Israeli Arabs and
their Palestinian spouses, on the basis of a ‘value-based balance’ that gives priority to the
value of life (and security) over the rights to equality and family life.24
B. Positive Rights
While in theory, the notion of a transformative Constitution does not exclude transi-
tioning from an active State to a neutral one, the post-war Germany case is illustrative of
how such a transition cannot succeed without the State and courts taking some active
measures to uproot totalitarian and anti-democratic attitudes in society. It is quite clear
from judicial legal doctrines in transformative societies that the courts assume such an
exceptionally active role and their readiness to impose active duties on the State to
ensure meaningful realization of the new constitutional values.
In Germany, the Federal Constitutional Court has ruled that the Wertrangordnung
(hierarchal value order) on which the Constitution is constructed is an objective one, with
one of its central aspects being the requirement that the State take action to meaningfully
realise constitutional values and rights (positive rights).25 The Court interpreted some
seemingly negative rights to also include certain positive obligations. For example, it ruled
that the constitutional freedom of choice of professional training imposes a duty on the
State to subsidise professional training.26 Likewise, in its landmark abortions decisions, the
21
This approach is manifested in the persistence of legal originalism in American constitutional law. Legal
originalism is the classical formulation of the importance of text for the legitimacy of judicial review. See gen-
erally, RH Bork, The Tempting of America (New York, The Free Press, 1990) 143–53; A Scalia, ‘Originalism:
The Lesser Evil’ (1989) 57 University of Cincinatti Law Review 849, 863–64.
22
Clearly, there are some elements of transformative constitutionalism in the US, especially in the judgments
of Marshall and Brennan JJ. The Warren Court can be regarded as the most transformative in the history of
the US; see Lessig (n 1) 215 (referring to such a view expressed by many). Yet the persistence of originalism and
the process-based theory of judicial review in US constitutional law are indicative of the significant controversy
that this concept still stirs in the US relative to Germany and South Africa.
23
EA 1/65 Yardor v Chairman of the Central Elections Committee to the Sixth Knesset 19(3) PD 365 [1965]
(in Hebrew).
24
HCJ 7052/03 Adalah v Minister of Interior Affairs 61(2) PD 202 [2006] para 107 of Cheshin J’s opinion (in
Hebrew). English translation available at: www.elyon1.court.gov.il/files_eng/03/520/070/a47/03070520.a47.
htm. (PSS (proportionality in the strict sense) is a value based test). For the same see also para 75 of Court
President Barak’s opinion.
25
D Currie, ‘Positive and Negative Constitutional Rights’ (1986) 53 University of Chicago Law Review 864,
867–73. On the notion of positive and negative rights in American constitutional law, see S Bandes, ‘The Negative
Constitution: A Critique’ (1990) 88 Michigan Law Review 2271; CR Sunstein, ‘Lochner’s Legacy’ (1987) 87
Columbia Law Review 873, 888–90.
26
33 BVerfGE 303 (1972) (Ger).
Court ruled that the State has an active duty to protect a foetus’ constitutional right either
by criminalizing abortions (1975)27 or by ensuring the economic wellbeing of women who
seek not to have an abortion (1993).28 The South African Supreme Court often expresses
pride in its protection of social and economic rights in its constitutional jurisprudence. In a
series of judgments, the Court was willing to impose unprecedented obligations on the
State to ensure social rights.29 For South Africans, the transformative mission is not only
about antidiscrimination laws and equal political rights, but also about altering the eco-
nomic institutions through redistribution and positive social rights.
The rejection of the concept of positive rights in the American Constitution is in
fact a rejection of transformative constitutionalism.30 In stark contrast to the German
abortion decisions, the US Supreme Court has ruled that, although the Government is pre-
cluded from banning abortions under the Fourteenth Amendment due process rights31 it is
under no obligation to subsidise abortions for poor women.32 Progressive liberal justices
who have expressed certain transformative aspirations for the US Constitution, such as
Brennan and Marshall, have made some efforts at developing the positive dimensions of
constitutional rights, particularly in the framework of the equal protection clause.33
However, this has always been a controversial strand in US constitutionalism and far
more limited in scope than, for example, in German and South African constitutional
jurisprudence.34
Regarding this feature, Israeli constitutionalism can be situated between the two
poles, with a gradual shift over the past two decades from strictly American in orienta-
tion towards the German or South African model. The unwritten Bill of Rights that the
Israeli Supreme Court had developed from the early years of the State’s establishment
was purely negative.35 This approach began to alter with the enactment of the 1992 Basic
Laws. To the provision in section 2 of the Basic Law: Human Dignity and Freedom,
‘There shall be no violation of the life, body or dignity of any person as such’, section 4
adds an important layer of protection: ‘All persons are entitled to protection of their life,
27
39 BVerfGE 1 (1975) (n 8).
28
88 BVerfGE 203 (1993) (n 8).
29
See, eg Soobramoney v Minister of Healt Kwazulu Natal 1998 (1) SA 765 (CC) para 8 (S Afr) (the huge
economic disparities ‘already existed when the Constitution was adopted and a commitment to address them,
and to transform our society into one in which there will be human dignity, freedom and equality lies at the
heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have
a hollow ring’); Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) (S Afr). But see
DM Davis, ‘Socio-Economic Rights: The Promise and Limitation: The South Africa Experience’ in D Barak-
Erez and A Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart Publishing, 2007)
193 (arguing that the South African Government adheres to capitalism and the Court’s protection of social
rights is limited). For social rights and transformation on the global level, see K Rittich, ‘Social Rights and
Social Policy: Transformations on the International Landscape’, ibid Exploring Social Rights 107.
30
Bowers v DeVito 686 F 2d 616, 618 (1982); DeShaney v Winnebago County 489 US 189, 195–96 (1989);
Jackson v City of Joliet 465 US 1049 (1984).
31
Roe v Wade 410 US 113 (1973). Note that the constitutional rights in the American Constitution are
drafted in the Constitution as negative and not positive rights.
32
Harris v MacRea 448 US 297, 316 (1980) (‘although government may not place obstacles in the path of a
woman’s exercise of her freedom of choice, it need not remove those not of its own creation’).
33
C Jolls, ‘Accommodation Mandates’ (2000) 53 Stanford Law Review 223; FI Michelman, Brennan and
Democracy (Princeton, Princeton University Press, 2005) 130.
34
Michelman ibid.
35
D Barak-Erez, ‘From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective’
(1995) 26 Columbia Human Rights Law Review 309.
body and dignity’.36 These articles served to induce the Israeli Supreme Court to con-
struct a more positive conception of rights.
This transformation has been particularly prominent in the jurisprudence of the
Israeli Supreme Court in the context of the right to equality. In the Women’s Network
case, the Supreme Court ruled that a positive requirement for affirmative action is innate
to the constitutional right to equality.37 In Botzer, the Court declared that the require-
ment to accommodate a disabled pupil in an elementary school is ‘a right and not a
grace’.38 Similarly, in Miller, in compelling the air force to open up its pilot training
courses to women, the Court referred to Aharon Barak’s statement, ‘The protection of
human rights costs money, and a society that respects human rights must be prepared to
bear the financial burden’.39
The concept of positive rights was also introduced in the context of such classic polit
ical rights as freedom of expression. In its 2006 Majority Camp decision,40 the Supreme
Court ruled that the police cannot make permission to demonstrate contingent on the
willingness of the demonstrators to bear the weighty cost of police protection. Writing
the unanimous judgment, Barak J elaborated on the dual dimension of rights:
The duty of the state to protect the constitutional right to freedom of expression and demonstra-
tion has two facets. First, the state is under obligation not to infringe a person’s freedom of
expression and demonstration, by banning her ability to exercise her right. This is the ‘negative’
aspect of the right (status negatives). Second, the state is under obligation to defend freedom of
expression and demonstration. This is the ‘positive’ aspect of the right (status positives).41
Moreover, despite the lack of explicit protection of social rights in the Basic Law:
Human Dignity and Freedom, the Court has been willing to protect some core aspects of
such rights through its interpretation of the constitutional right to human dignity. Such
was the case in its 2005 decision in Commitment to Peace,42 pertaining to the constitu-
tionality of drastic budget cuts in State income allowances. The Court drew on the Basic
Law to find a State duty to maintain a system guaranteeing a safety net for the socially
disadvantaged that protects them from existential shortages. The State, the Court ruled,
must guarantee all people sufficient sustenance, a place of residence where they can
realise privacy and family life, adequate sanitation conditions, and health services that
allow them access to modern medicine.43 This noble rhetoric notwithstanding, however,
the Court rejected the petition on the ground that the petitioners had failed to prove
that the new State allowances were insufficient to meet their minimum basic needs. In
later cases, pertaining to the right to education, the Court was more willing to impose
36
This provision was added to the Basic Law during the course of the deliberations in the parliamentary
constitutional committee prior to the enactment of the Basic Laws in 1992, despite the objections of the liberal
Minister of Justice, Dan Meridor, who feared that it would excessively burden the Government and police. See
DK 124 (1992) 1531.
37
HCJ 2671/98 Israel Women’s Network v Minister of Labour and Social Affairs 52(3) PD 630 [1998] (in
Hebrew).
38
HCJ 7081/93 Botzer v Municipal Council of Maccabim-Reut 50(1) PD 19 [1996] (in Hebrew).
39
HCJ 4541/94 Miller v Minister of Defence 49(4) PD 94, 113 [1994] (in Hebrew).
40
HCJ 2557/05 Majority Camp v Israel Police 62(1) PD 200 [2006] (in Hebrew).
41
ibid para 14 of Court President Barak’s opinion (my translation, MCE).
42
HCJ 366/03 Commitment to Peace and Social Justice Association v Minister of Finance 60(3) PD 464
[2005] (in Hebrew).
43
substantial costs on the State. In Marciano,44 for example, the Court invoked the right to
education, which is not explicitly set forth in any of the Basic Laws, to require the State
to allocate sufficient funds (estimated at no less than $40 million by the Education
Ministry) for implementing an amendment to the Special Education Law 5748-1988.
The Supreme Court has also shown a similar tendency in cases more loosely related to
constitutional rights. For example, it ruled in Wasser that the existing system of protect-
ing school pupils in the town of Sderot (a town located near the Gaza border constantly
targeted by Hamas rockets) is inadequate.45 In Academic Center of Law and Business,
the Court struck down legislation authorizing the privatization of prisons in Israel, forc-
ing the Government to pay millions of dollars in compensation to the company that had
won the franchise rights.46 A research study conducted by a libertarian think tank in
Israel estimated the costs of implementing the Court’s rulings in recent years at no less
than $4 billion.47
C. Drittwirkung
Transformationists are well aware of the fact that in order to successfully effect a funda-
mental change, not only the State, but also individuals, must be bound by the new set of
constitutional values. Accordingly, the post-war German Federal Constitutional Court
ruled that constitutional values indirectly impact private law, thereby setting the
Drittwirkung – ‘impact on third parties’ – doctrine.48 In its landmark Lüth case, the
Court found that the call to boycott a film made by a director who had been a Nazi sym-
pathiser does not constitute a violation of section 826 of the German Civil Code (BGB),
which provides,
[a] person who intentionally inflicts harm on another in a manner which offends against good
morals is obliged to make compensation to the other for the harm.
The Court’s interpretation of the term ‘good morals’ took into account the boycotter’s
constitutional right to free speech, which is closely related to the paramount constitutional
value of human dignity.49 Likewise, South African private law has been dramatically trans-
formed by the mandates of the new constitutional values.50
44
HCJFH 247/04 Minister of Finance v Marciano (10 May 2004), Nevo Legal Database (by subscription) (in
Hebrew).
45
HCJ 8397/06 Wasser v Minister of Defence 62(2) PD 198 [2007] (in Hebrew).
46
Legal Database (by subscription) (in Hebrew). English translation available at: www.elyon1.court.gov.il/files_
eng/05/050/026/n39/05026050.n39.htm.
47
B Arad, The Cost of Judicial Activism (Jerusalem, Jerusalem Institute for Market Studies, 2010) www.
jims-israel.org/pdf/ppcourts.pdf.
48
S Gardbaum, ‘The “Horizontal Effect” of Constitutional Rights’ (2003) 102 Michigan Law Review 387,
403. Gardbaum himself offers a different interpretation of the American model (‘although private actors are
not bound by individual constitutional rights in the United States, they are indirectly subject to (and may be
adversely affected by) them because such rights govern the laws that private actors invoke and rely on against
each other . . . The extent of this reach of individual rights into the private sphere defies the standard under-
standing of the United States as creating a rigid public-private distinction in constitutional law’) ibid 458.
49
7 BVerfGE 198 (1958) (Ger).
50
F Du Toit, ‘The “Constitutionalisation” of South African Private Law: Teaching Challenges and Solutions’
(2007) 5 Journal of Commonwealth Law and Legal Education 111, 111 (‘The South African Constitution has a
determining effect on South African private law in that all private law legislation is testable against the fundamen-
tal rights enshrined in the Constitution’s Bill of Rights, and South African courts have an essential development
By contrast, most of the provisions of the US Constitution are not transformative in

this respect, as they have been consistently interpreted to apply only to State action (ie to
State and local government and not to private entities).51 The Thirteenth Amendment is
the only provision to impose restrictions on private action, in prohibiting all types of
slavery. This constitutional clause can truly be deemed transformative in the context of
US history.
In Israel, the German Drittwirkung model has flourished. This notwithstanding sec-
tion 11 of the Basic Law: Human Dignity and Freedom which provides,
[a]ll governmental authorities are bound to respect the rights under this Basic Law.
In an influential article published in 1993, Aharon Barak argued that, given the import
ance of constitutional rights and the purpose of the Basic Law, this provision should not
be interpreted as narrowing the scope of rights. Rather, it should be construed as empha-
sizing the application of the constitutional norms vis-à-vis the State, while not excluding
its application to private action.52 Thus, Barak opted for the Drittwirkung approach:
indirect application of constitutional rights through interpretation of open-textured pri-
vate law provisions, such as good faith and public policy.53
The Israeli Supreme Court had addressed this issue only in dicta, in its 1991 Kestenbaum
decision.54 This case related to the right of a deceased’s family to use Gregorian calendar
dates and non-Hebrew letter notations on his tombstone in a Jewish cemetery. Barak
declared in dicta,
[i]t should seem clear and obvious that the basic principles of the legal system in general, and
basic human rights in particular, are not limited to public law. Indeed, the true question is
not whether the basic principles of public law apply within private law. The answer to this
question is clear and simple: Yes. The true questions concern how these basic principles of
public law flow into the confines of private law, and what are the conduits through which these
principles are transferred to the behavior of an individual in his interactions with others.55
These signals from Barak’s judgments and academic writings have had a profound
impact on lower court jurisprudence. In Na’amne,56 the Jerusalem Magistrate Court
ruled that the enactment of the Basic Law: Human Dignity and Freedom had impacted
on private law. The Court found that a racially-based denial of entry into a privately-
owned water park had violated tort law (‘a breach of a statutory duty’),57 whose inter-
pretation was strongly influenced by constitutional rights. The Haifa Magistrate Court
ruled in Matzkin that individuals cannot be required to disclose their sexual orientation
task in respect of the common law principles of South African private law. In consequence, South African private
law has undergone significant change under the influence of constitutional imperatives, which change will con-
tinue in future. I call this the “constitutionalisation” of South African private law’).
51
Lugar v Edmondson Oil Co 457 US 922 (1982); but see Shelley v Kraemer 334 US 1 (1948).
52
Interestingly, a similar provision in the Canadian Charter of Rights and Freedoms was interpreted to
exclude the application of the constitutional rights on private action. See RWDSU v Dolphin Delivery Ltd
[1986] 2 SCR 573 (Can).
53
A Barak, ‘Constitutional Human Rights and Private Law’ in D Friedmann and D Barak-Erez (eds), Human
Rights in Private Law (Oxford, Hart Publishing, 2001) 13.
54
CA 294/91 Jerusalem Community Burial Society v Kestenbaum 46(2) PD 464 [1992] (in Hebrew).
55
ibid para 20. English translation available at: www.utexas.edu/law/academics/centers/transnational/
work_new/israeli/case.php?id=1391.
56
CC (Jm) 11258/93 Na’amne v Kibbutz Kalia (1 September 1996), Nevo Legal Database (by subscription)
(in Hebrew).
57
Tort Ordinance (New Version), 5728-1968, s 63.
when seeking to rent an apartment or office space.58 Finally, in its Samshiyan decision,59
the Tel-Aviv Magistrate Court held that intentional discrimination against a person
with a disability regarding entry into a ‘singles club’ constituted a breach of good faith in
contractual negotiations.
The rise of the Drittwirkung doctrine in Israel is not surprising given the limited
amount of antidiscrimination laws passed in the early 1990s. In the US, prior to the civil
rights legislation in the 1960s, the Supreme Court ruled in Shelly v Kramer60 that, despite
the fact that the Constitution applies only to State actions, an individual cannot expect
the Court, which is an organ of the State, to issue judgments that violated the
Constitution. Yet what is striking in Israel is that even after the enactment of antidis-
crimination laws, courts have continued to apply the constitutional norms to individuals
as a means of bypassing specific exemptions in those laws. For example, in Applebaum,61
the National Labour Court ruled that despite the explicit exemption from the Equal
Opportunity in Employment Law’s requirement not to discriminate granted to entities
employing less than six people, the constitutional duty not to discriminate (on the basis
of pregnancy) applied indirectly to them. The Court used section 39 of the Contracts
Law (General Part), 5733-1973, which lays down the general principle of good faith in
contracts, to apply indirectly the constitutional norm of equality to private employers.
D. Proportionality
Transformation is essentially a political action, for it involves a restructuring of society

and its institutions by way of an active judiciary that leaves, to use Barak’s term, no
‘black holes’.62 Since transformative Constitutions tend to be total in their scope, there is
a structural need for a doctrine that allows the courts to be involved in policymaking
yet, at the same time, maintain the ‘objectivity’ of the law.63 The three-pronged doctrine
of proportionality, assists the courts in this respect: there must be a rational connection
between the means and ends (rationality); the least restrictive means must be used when
limiting constitutional rights (necessity); and a proper balance must be attained between
the benefit from the restriction of the given right and the harm to that right (proportion-
ality in its strict sense).64 These prongs seem objective and outcome-neutral,65 yet at the
58
CC (Ha) 4583/96 Association for the Protection of the Rights of Individuals v Matzkin [1996]
(unpublished).
59
CC (TA) 15/97 Shamsiyan v Rosemary Garden Rest (12 January 1999), Nevo Legal Database (by subscrip-
tion) (in Hebrew) (on file with author).
60
Shelley (n 51).
61
LA 1353/02 Applebaum v Holtzman 39 PDA 495 [2003] (in Hebrew).
62
A Barak, A Judge in a Democracy (Princeton, Princeton University Press, 2006) 194, 298 (arguing that
there are no black holes where there is judicial review).
63
See M Cohen-Eliya and I Porat, ‘The Hidden Foreign Law Debate in Heller: Proportionality Approach in
American Constitutional Law’ (2010) 46 San Diego Law Review 367, 405–09.
64
65
DM Beatty, The Ultimate Rule of Law (Oxford, Oxford University Press, 2004) 166–69 (praising such
proportionality virtues as value-neutrality, objectivity, and focus on facts rather on values); J Rivers,
‘Proportionality and Variable Intensity of Review’ (2006) 65 CLJ 174 (highlighting the structured character of
proportionality); A Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge,
Cambridge University Press, 2012) 460–65 (pointing to the transparent, structured, and dialogical character of
proportionality); P Craig, Administrative Law, 6th edn (Oxford, Oxford University Press, 2008) 637 (‘The pro-
portionality test provides a structured form of inquiry. The three-part inquiry focuses the attention of both the
agency being reviewed, and the court undertaking the review’); A Barak, ‘Proportionality and Principled
same time allow courts the broad latitude necessary for executing the ambitious task of
social transformation. The American approach of categorization and line-drawing, that
hostile to judicial balancing in constitutional law, is by no means sufficient to facilitate
such transformation.
It therefore should come as no surprise that the proportionality doctrine gained prom-
inence in post-war Germany. In the 1950s, the Federal Constitutional Court resorted
extensively to values and natural law theories. This was followed in the late 1950s and
early 1960s by the emergence of the more sophisticated version of proportionality, with
its three-pronged test. Ever since, the Court has systematically applied the three para
meters in almost all of its judgments.66 While many other constitutional jurisdictions
subsequently adopted the principle of proportionality as their central analytical frame-
work, Germany has been unique in its clear emphasis of the third requirement: balanc-
ing.67 Commonwealth constitutional jurisdictions such as Canada and New Zealand,
and, recently, Great Britain, place greater emphasis on necessity, the second prong.68
For Germans, balancing, an essentially political action, seems a legitimate and necessary
element of the transformative Constitution.69
The Israeli Supreme Court, for its part, has followed the ‘German’ approach and has
developed a relatively sophisticated form of proportionality, insisting on maintaining
the internal logic of the structure of the analysis and almost religiously applying each
and every subtest. This version of the doctrine places greater emphasis on balancing
than does Commonwealth proportionality. In some of its major decisions, the Israeli
Supreme Court has struck down laws and policies solely because they failed to properly
balance between the competing rights and interests.70 In this respect, Israeli constitution-
alism is closer to the German model, allowing the Court greater leeway in facilitating
the political mission of transformation.
Interestingly, the term ‘proportional’ has gradually infiltrated the public discourse.
Politicians, journalists, academics, and others make frequent use of the term to justify
or criticise government actions encumbering human rights.71 The infiltration of this
Balancing’ (2010) 4 Law and Ethics of Human Rights 1 (from the abstract: ‘The advantages of proportionality
stricto sensu with its three levels of abstraction are several. It stresses the need to always look for a justification
of a limit on human rights; it structures the mind of the balancer; it is transparent; it creates a proper dialogue
between the political branches and the judiciary, and it adds to the objectivity of judicial discretion’).
66
Cohen-Eliya and Porat (n 63) 388–96.
67
D Grimm, ‘Proportionality in Canadian and German Constitutional Law Jurisprudence’ (2007) 57
University of Toronto Law Journal 383, 393 (‘The most striking difference between [Canada and Germany] is
the high relevance of the third step of the proportionality test in Germany and its more residual function in
Canada’).
68
See, eg G Davidov, ‘Separating Minimal Impairment from Balancing: A Comment on R v Sharpe (BCCA)’
(2000) 5 Review of Constitutional Studies 195 (criticizing the Canadian constitutional jurisprudence that
focuses on the necessity test).
69
Generally speaking, the European constitutional courts assume for themselves a political role in imple-
menting constitutional values, therefore their application of a balancing, or a proportionality, approach enjoys
a greater legitimacy. See AS Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford
University Press, 2000) 31, 40 (arguing that European constitutional courts do not conduct judicial review in
the antimajoritarian sense but rather as political organs).
70
A Barak, ‘Proportional Effect: The Israeli Experience’ (2007) 57 University of Toronto Law Journal 369
(describing the cases in which the Israeli Supreme Court applied proportionality in the strict sense). For an
example see HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807 [2004] paras 59–85
of Court President Barak’s opinion (in Hebrew). English translation available at: www.elyon1.court.gov.il/
files_eng/04/560/020/A28/04020560.a28.htm.
71
The Israeli version of the word ‘proportional’ (Midati in Hebrew) is a judicially-invented word, that did
not exist in the Hebrew language prior to the Supreme Court Rulings setting this doctrine.
somewhat technical-sounding legal doctrine into the public discourse serves the trans-
formatist mission, for it helps citizens better internalise the meaning of the trans
formation: any action restricting human rights must be restrained and conscious of the
new set of humanistic values.
IV. AN ALTERNATIVE: CAROLENE PRODUCTS ABROAD?
The judiciary faces a far more demanding task when acting to realise transformative
constitutionalism as opposed to a preservative one. As Lessig has noted, ‘Constitutional
moments die, and when they do, the institutions charged with enforcing their com-
mands, such as courts, face increasing political resistance’.72 The Israeli Supreme Court
has faced political backlash for its judicial activism. It has been rigorously attacked for
allegedly promoting a leftist agenda under the guise of legal doctrine, disregarding the
constitutional text and circumventing the framers’ intentions, and serving the interests
of the hegemonic elites that, it is claimed, no longer dominate the political process and
have redirected their efforts to the Court.73 The upshot of this assault has been a barrage
of proposed Bills in the Israeli Parliament in recent years seeking to limit the Supreme
Court’s power in this respect.74 Yet more worrying has been the dramatic decline in pub-
lic trust in the Supreme Court,75 which cannot be explained away as Israelis’ general
tendency to be suspicious of the authorities.
Preservative constitutionalism, however, would not be a better alternative for Israel.
Given the tensions and contradictions inherent in Israel’s self-definition as both Jewish
and democratic, such an approach would lead to nothing less than a social and legal
stalemate in Israel. Due to the heterogeneity and dynamics of Israeli society, the
very worst scenario would be a freezing of the current balance of powers by entrenching
‘values’ and thereby blocking any possibility of political change.
A more promising alternative to either transformative or preservative constitutional-
ism is, I believe, democracy-reinforcing constitutionalism. A few months before Barak J
retired from the Supreme Court, Grunis J, newly appointed to the Court, built on foot-
note four of Carolene Products76 and Ely’s process-based theory77 of judicial review to
offer an alternative to Barak’s notion of a transformative judicial mission approach.
Ruling on a petition filed by the Movement for Quality Government that challenged the
exemption of ultra-Orthodox Jews from serving in the Israeli army,78 Grunis (following
Ely) equated the role of the judge to that of a referee in sports,79 whose decisions should
be procedurally fair and not outcome-oriented. The referee’s main objective is to enforce
72
Lessig (n 1) 214.
73
For an overview of the critique, see Sapir (n 15).
74
S Nave, ‘Law Proposals as Strategic Tool in the Discourse on the Independence of the Judiciary’ (2011) 33
Tel-Aviv University Law Review 631 (in Hebrew) (documenting the dramatic rise in the number of proposed
Bills aimed at limiting the power of the judiciary. The majority of these Bills were not passed and rather served
as a political ‘threat’ and a ‘signaling’ mechanism vis-à-vis the Israeli Supreme Court).
75
A Ratner, The Culture of Law, the Judiciary and the Legal System in the Mirror of the Israeli Society:
2000–09 (Jerusalem, Hebrew University, 2010) 6–10 (executive summary) (in Hebrew).
76
United States v Carolene Products Co 304 US 144 (1938).
77
1980).
78
79
ibid para 7 of Grunis J’s opinion, referring to Ely, above (n 77) 72–171.
the rules of the game. Likewise, the Supreme Court should intervene only where the
democratic process has failed (for example, where political participation has been
impaired or discrete and insular minorities are discriminated against). Grunis argued
that since, in this instance, the majority of the legislature had decided to grant the ultra-
Orthodox minority this privilege, the democratic process was not flawed and the Court
should not intervene.80
Barak regarded Grunis’s approach as a threat to his value-based transformative leg-
acy and attacked Ely’s process-based model. Essentially, he contended in his judgment in
the same case, that Ely’s theory
is internally flawed and is based on a narrow and inappropriate conception of democracy; it is
not accepted in the United States, where it emerged, and in other countries that have judicial
review; and it is foreign to our constitutional structure and contradicts our constitutional
judgments.81
Barak was correct in suggesting that Ely had failed to construct a purely procedural
theory of judicial review. As many critics have justifiably argued, there is a certain level
of indeterminacy as to what counts as a failure in the democratic process.82 Furthermore,
Ely’s democracy-facilitating theory is an interpretive theory for the US Constitution. It
would be quite difficult to show either that the drafters of the 1992 Israeli Basic Laws
had this theory in mind or that they had grounded it in the text they formulated.
All that said, the democracy-facilitating approach offers promise for constitutional-
ism in deeply-divided societies such as Israel, for it opens up channels through which
citizens can decide for themselves whether a transformation is necessary and, if so,
which path that transformation should take. This approach is built on the appropriate
division of powers, where non-accountable and non-elected judges deal with facts and
procedures while democratically-elected representatives deal with policies, values, and
aspirations. It guarantees that the decision on value-transformation will be inclusive, by
rigorously protecting political and participatory rights and by ensuring that margin-
alised ‘discrete and insular minorities’ are not stigmatised or demonised. As recently
demonstrated by Eskridge, the democracy-reinforcing approach can help maintain
social stability in pluralistic societies by lowering the stakes of politics.83
Prior to the enactment of the Basic Laws in 1992, the Israeli Supreme Court had struck
down several statutes violating equality in general elections.84 These rulings did not
80
ibid para 8.
Court President Barak writing for the Court, ibid para 75 (my translation, MCE). Grunis was far from being
81
consistent in his Carolene Products approach in subsequent cases. For example, in the Adalah v Minister of
Interior case, pertaining to the near-absolute ban on family reunification, he was unwilling to rigorously scruti-
nize the law that discriminated against the Arab minority in Israel – a clear example of ‘a discrete and insular
minority’ – and voted to deny the petition. See Grunis J’s opinion in Adalah v Minister of Interior (n 24).
82
Even one of the supporters of Ely’s process-based theory, MJ Klarman, ‘The Puzzling Resistance to
Political Process Theory’ (1991) 77 Virginia Law Review 747 admits that ‘Ely’s critics have, in my view, been
devastatingly successful in demonstrating that Ely’s “procedural” theory of prejudice is riven with substantive
judgments’ (p 785). See also, LH Tribe, ‘The Puzzling Persistence of Process-Based Constitutional Theory’
(1980) 89 Yale Law Journal 1063, 1069–71; RA Posner, ‘Democracy and Distrust Revisited’ (1991) 77 Virginia
Law Review 641; Bork (n 20) 194–99.
83
WJ Eskridge, ‘Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of
Politics’ (2005) 114 Yale Law Journal 1279; WJ Eskridge, ‘Foreword: The Marriage Cases – Reversing the
Burden of Inertia in a Pluralist Constitutional Democracy’ (2009) 97 California Law Review 1785.
84
See, eg HCJ 98/69 Bergman v Minister of Finance 23(1) PD 693 [1969] (in Hebrew); HCJ 142/89 Laor
Movement v Speaker of the Knesset 44(3) PD 529 [1990] (in Hebrew).
undermine the public trust in the Court, but, rather, bolstered its legitimacy as a neutral
arbiter between competing political camps. Today, things have changed considerably.
All too often, the justices are seen as eagerly jumping into the muddy political fray as
participants in the cultural war being waged. Transformative constitutionalism is thus a
double-edged sword for courts: on the one hand, it assigns them a central role in bring-
ing to fruition the ‘new’ values, yet on the other hand, it runs the risk of a loss of public
trust in the judiciary and, consequently, diminished chances of the transformation
succeeding.
For every political action, there is a reaction. There is often public backlash against
judicially transformative constitutionalism, which might ultimately lead to its failure
and a rocking of the social boat. As a society with wide chasms and a constant security
threat, Israel cannot afford for this to happen. My suggestion here is that judges should
resist the temptation to get involved in the exciting project of transformation and instead
divert their energies to facilitating the democratic channels by which the people decide
whether and how to transform their society.
13
Proportionality in Israel and Beyond:
Four Aspects
MARGIT COHN*
I. INTRODUCTION
T
HE SPREAD OF proportionality (Verhältnismäßigkeit) across the Western
world has, in the words of Stone-Sweet and Mathews, attained a ‘viral quality’,1
but it might be better depicted as yet another brand name that has gained global
reputation. Originating in Prussian case law, the post-World War II German jurispru-
dence granted it a central place in its constitutional law.2 As one commentator of German
law submits, the principle is now applied ‘as an independent and perhaps the most
important and extensive umbrella ground for examining the validity of administrative
actions’.3 This, then, is one of the few public law doctrines that have attained virtual
universality.4 The principle is just as prominent in Israel: it is now part of its public law,
* The author thanks the Israel Science Foundation for its (Grant No 160/09) funding that supported the
research, and the editors and Neta Shapira and Avi Vaknin for their comments and meticulous work on the
draft chapter.
1
AS Sweet and J Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia
Journal of Transnational Law 72, 74, 112. On the principle see, eg DM Beatty, The Ultimate Rule of Law
(Oxford, Oxford University Press, 2004) ch 5; V Jackson, ‘Being Proportional about Proportionality’ (2004) 21
Constitutional Commentary 803; Sweet and Mathews, ibid; M Cohen-Eliya and I Porat, ‘American Balancing
and German Proportionality: The Historical Origins’ (2010) 8 International Journal of Constitutional Law
263, 263–64; M Cohen-Eliya and I Porat, ‘Proportionality and the Culture of Justification’ (2011) 59 American
Journal of Comparative Law 463; A Barak, Proportionality: Constitutional Rights and Their Limitations
(Srigim-Li’on, Nevo, 2010) (in Hebrew) (hereinafter: Barak, Proportionality); G Webber, ‘Proportionality
Balancing and the Cult of Constitutional Rights Scholarship’ (2010) 23 Canadian Journal of Law and
Jurisprudence 179; A Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge,
Cambridge University Press, 2012); a debate over proportionality, balancing and their impact on human rights,
published in 7 and 8 International Journal of Constitutional Law (2009 and 2010); and two dedicated issues
(4(1) and 4(2)) of Law and Ethics of Human Rights (2010). For a general analysis of the principle in the admin-
istrative law of European Member States, see J Schwarze, European Administrative Law (London, Office for
Official Publications of the European Communities, 2006) 680–702.
2
For recent overviews in English of the ‘German genealogy’ see D Grimm, ‘Proportionality in Canadian
and German Constitutional Law’ 57 University of Toronto Law Journal 383, 384–87; Sweet and Mathews (n 1)
97–111; I Zamir, ‘Israeli Administrative Law as Compared with German Administrative Law’ (1994) 2 Law and
Government 109 (in Hebrew); Cohen-Eliya and Porat, ‘American Balancing’ (n 1) 271–75; Barak, Proportionality
(n 1) 228–31.
3
MP Singh, German Administrative Law in Common Law Perspective, 2nd edn (Berlin, Springer, 2001) 160.
4
For a comparative analysis that reaches to South Korea, South America and Eastern Europe, in addition to
most Western states, see Barak, Proportionality (n 1) 232–61; see also n 1 above. For proportionality in interna-
tional law see, eg Y Shany and A Cohen, ‘A Development of Modest Proportions’ (2007) 5 Journal of
190 Proportionality in Israel and Beyond: Four Aspects
has been analyzed in a multitude of judicial decisions and is treated extensively in the
literature. Professor Aharon Barak’s recently published tome on proportionality is likely
to become, now that it has been translated, the definitive work on the doctrine in its
constitutional context, and enrich the already abundant literature.5
No analysis of constitutional law can marginalise the role of proportionality as a deci-
sion-making tool. Rather than dwell in detail on the substantive effect of the adoption of
the principle in Israel, address the endemic weakness and cyclical nature of the doctrine,
or normatively argue for or against the rise of proportionality and its potential for the
enhancement of judicial participation in the public decision-making process, I have cho-
sen to treat other conceptual and comparative issues. This chapter addresses four aspects
of the concept of proportionality. My emphasis on the Israeli experience is supplemented
by references to the status of the proportionality doctrine in Germany, two European
courts (the European Court of Justice (ECJ) and the European Court of Human Rights
(ECtHR)), Canada, Zimbabwe and the UK, all of which have adopted proportionality
as a central review mechanism. First, I offer a distinction between proportionality as an
overarching principle, typical to European and continental law, and proportionality as a
tool for the application of constitutional protection of human rights, a specific context
usually applied in common law systems. The second distinction offered in this chapter
focuses on the difference between a concept, or doctrine, and a formula. Most systems
that have adopted the proportionality principle/concept have also adopted the German
three-pronged formula, although the transplant of the first does not necessarily require
the transplant of the second. In this context, I touch upon the strategic elements of the
choice of formulae. In part IV, I analyze the migration of the three-pronged formula, the
most prevalent proportionality formula, and identify and provisionally explain different
forms of discrete, undisclosed adoptions of foreign formulae. Finally, I touch upon the
nature of proportionality as a reasoning device, challenging the universal depiction of
proportionality analysis as one that requires balancing, and offering a version of the
principle as consequence-oriented.
II. PROPORTIONALITY: AN OVERARCHING PRINCIPLE OR A

RIGHTS-PROTECTION DEVICE?
Proportionality can be an overarching principle, which operates as a guiding light of

a legal system. More concretely, an overarching principle may operate as a rule of
interpretation and a value of best practice. It is thereby an element of rule-making and
International Criminal Justice 310, 311–12; Y Shany, The Principle of Proportionality under International
Law, Policy Paper (Jerusalem, The Israel Democracy Institute, 2009) (in Hebrew); see also Court President
Barak’s analysis in HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807, 836–38
[2004] (in Hebrew); Barak, Proportionality (n 1) 250–56. It would seem that only the United States remains reti-
cent to adopt the doctrine as a distinct form of reasoning, but see studies of the United States which focus on
proportionality decision-making; eg ET Sullivan and RS Frase, Proportionality Principles in American Law:
Controlling Excessive Government Actions (Oxford, Oxford University Press, 2009).
5
The research in the Israeli context includes Zamir (n 2); D Dorner, ‘Proportionality’ in A Barak and
C Berenson (eds), Berenson Book, vol 2, 2nd edn (Tel-Aviv, Nevo, 2000) 281 (in Hebrew); G Sapir,
‘Proportionality and Compromise’ in S Almog, D Beinisch and Y Rotem (eds), Dalia Dorner Book (Srigim-
Li’on, Nevo, 2009) 397 (in Hebrew); Barak, Proportionality (n 1); Cohen-Eliya and Porat, ‘American Balancing’
(n 1); Cohen-Eliya and Porat, ‘Proportionality and Justification’ (n 1); D Barak-Erez, Administrative Law (Tel-
Aviv, The Israel Bar Publishing House, 2010) 771–92 (in Hebrew).
Margit Cohn 191
rule-review in all fields of law. Beyond German law, European Union law offers a strong
example. Now that the Treaty of Lisbon has been ratified, the principle of proportional-
ity is proclaimed one of the central principles of European law, established not only in a
new Article on these principles but also in a designated Protocol treating the principles
of conferral, subsidiarity, and proportionality.6 The review powers granted by the trea-
ties to the ECJ7 thus require judicial consideration of whether the necessity condition
was met. But the Court’s recognition of the principle of proportionality has not been
based solely on textual reasoning. The principle was recognised early on as one of the
‘general principles of law deriving from the rule of law’, which directs the Union and its
Member States in the making and application of European law – long before the entry
into force of the Treaty of Lisbon.8
Alternatively, proportionality may operate as a tool in rights-protection issues. The
most typical expression can be found in many Bills of Rights, including the European
Convention on Human Rights (ECHR). The Convention recognises and protects a series
of human rights and creates an institutional structure for their protection. Several
6
Under Art 3b(1) of the Treaty of Lisbon amending the Treaty on European Union (Maastricht Treaty) and
the EC Treaty, ‘The use of Union competences is governed by the principles of subsidiarity and proportional-
ity’; Art 3b(4) proclaims that ‘the content and form of Union action shall not exceed what is necessary to
achieve the objectives of the Treaties’; and the Protocol on the application of the principles of subsidiarity and
proportionality, requiring national and European legislatures to consider both principles in the process of leg-
islation. Proportionality was central even prior to the Lisbon Treaty. The European Union Founding Treaties
(the EC Treaty (Treaty of Rome) and the Treaty on European Union (Maastricht Treaty)), were interpreted as
subjecting Member States and Community institutions to the rules of necessity and proportionality. Provisions
in the Treaty of Rome include Art 42 (empowering the Council to adopt measures in the field of social security
‘as are necessary to provide freedom of movement for workers’); Art 120 (empowering Member States to take,
in case of a sudden crisis in the balance of payments, take precautionary necessary protective measures that
‘must cause the least possible disturbance in the functioning of the common market and must not be wider in
scope than is strictly necessary to remedy the sudden difficulties’). Under Art 5, Member States were required
to ‘take all general or particular measures which are appropriate for ensuring the carrying out of the obliga-
tions arising out of this Treaty or resulting from the acts of the institutions of the Community’, but this version
is not considered as embodying the principle. Since 1993, upon entry into force of the Maastricht amendments,
Art 5 of the Treaty of Rome requires that ‘Any action by the Community shall not go beyond what is necessary
to achieve the objectives of this Treaty’. See, eg FG Jacobs, ‘Recent Developments in the Principle of
Proportionality in European Community Law’ in E Ellis (ed), The Principle of Proportionality in the Laws of
Europe (Oxford, Hart Publishing, 1999) 1, 2 (at the early stage of the Treaties, this could not have been more
than a perfunctory acknowledgement of existing case law). Other provisions in the Maastricht Treaty include
Art 13(3) (empowering the Council to ‘take the decisions necessary for defining and implementing the common
foreign and security policy’); and Art 14(6) (empowering Member States to take ‘the necessary measures’ when
joint actions are not deemed suitable to changing conditions and in the absence of a Council decision on the
matter, ‘in cases of imperative needs’).
7
These include the power to review the legality of acts made by Community institutions, to decide upon one
Member State’s challenge against another Member State, to decide upon Member State’s challenge to inaction
of Community institutions, and to give preliminary rulings regarding the interpretation of all types of legal
measures made by the Community (usually required when such a measure is challenged or relied upon in a
domestic court).
8
See, eg Case 8/55 Federation Charbonniere de Belgique v High Authority of the European Coal and Steel
Community [1954–56] ECR 292, 299 (‘in accordance with a generally-accepted rule of law . . . [a measure]
must be in proportion to the scale of that action’); Case 4/73 Nold v Commission of the European Communities
[1974] ECJ 491, 512–13; Case 107/63 Toepfer v Commission of the European Economic Community [1965]
ECR 405, 427; Case 11/70 Internationale Handelsgesellschaft MBH v Einfuhr- und Vorratsstelle fur Getreide
und Futtermittel [1970] ECR 1125. For literature, see Schwarze (n 1) 708–26; Gráinne de Búrca, ‘The Principle
of Proportionality and its Application in EC Law’ (1993) 13 Year Book of European Law 105; T Tridimas,
‘Proportionality in Community Law: Searching for the Appropriate Standard of Scrutiny’ in Ellis (n 6) 65;
Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006) chs 3–5; P Craig
and G De Búrca, EU Law: Text, Cases, and Materials, 3rd edn (Oxford, Oxford University Press, 2002) 178–
229; Sweet and Mathews (n 1) 139–45.
Convention Articles require, among other conditions allowing interference with a right,
that the interference be ‘necessary in a democratic society’ and be applied for the promo-
tion of defined interests.9 Other provisions in the Convention subject state action to gen-
eral necessity conditions, sometimes under a stricter requirement such as ‘absolutely
necessary’.10 The ECtHR has interpreted all such provisions as embodying a proportion-
ality requirement.11 Other limitation clauses, such as section 1 of the Canadian Charter
of Rights and Freedoms, offer similar requirements,12 but I focus here on Israel.
Israel’s development of the proportionality principle is a clear example of the exten-
sion of the principle beyond the protection of human rights. This is so, despite the fact
that its formal origin is found in constitutional-type statutes designed to apply in human
rights contexts only. In 1992, the Israeli legislature appended limitation clauses to two
Basic Laws that defined and protected certain human rights. The Basic Law: Human
Dignity and Liberty and the Basic Law: Freedom of Occupation contain a Limitation
Clause, not dissimilar from such clauses in other human rights legal documents, that
was interpreted as including a proportionality test:
The rights under this Basic Law may only be violated by a law that befits the values of the State
of Israel, is intended for a proper purpose, and to an extent that is not excessive, or under a law
as stated by virtue of an express authorization therein.13
Some have argued that the Israeli Supreme Court had used proportionality reasoning
in pre-1992 decisions.14 Some of these decisions relied on legislative arrangements
which included a weighting requirement; in these cases, a simple balancing between the
9
The first is Art 8(2) (interference with the right to respect for private and family life must, inter alia, be
‘necessary in a democratic society in the interests of national security, public safety or the economic well‑being
of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protec-
tion of the rights and freedoms of others’). Others follow a similar formula, matching the necessity requirement
with different defined interests: Art 9(2) (freedom of thought, conscience and religion); Art 10(2) (freedom of
expression); Art 11(2) (freedom of assembly and association); Protocol IV, Art 2(3) (freedom of movement).
10
Art 2 (right to life: use of force which is absolutely necessary in a list of defined cases); Art 5(1)(b) (right
to liberty and security: arrest or detention of suspect when reasonably considered necessary to prevent his
committing an offence or fleeing); Art 6(1) (right to a fair trial: exclusion of the press or the public, inter alia,
to the extent strictly necessary in special circumstances where publicity would prejudice the interests of just
ice); Art 15(1) (derogation in times of emergency may be made, inter alia, to the extent strictly required by the
exigencies of the situation); Protocol I, Art 1 (protection of property: states not impaired from enforcing laws
necessary to control the use of property in accordance with the general interest or to secure the payment of
taxes or other contributions or penalties).
11
For early decisions relying on textual reasoning, see Handyside v United Kingdom (1979) 1 EHRR 737,
754 (‘necessary’ implied the existence of ‘a pressing social need’; it meant that every restriction imposed was
‘proportionate to the legitimate aim pursued’); Sunday Times v United Kingdom (1979) 2 EHRR 245, 275–78
(following Handyside). Later recognition of proportionality as a general principle can be found in Velaers J’s
concurring opinion in Conka v Belgium (2002) 11 EHRR 555; it is applied in a wide range of cases by the court
in its case law (particularly in its case law on para 2 of Arts 8–11, and Art 14) and may be regarded as part of
the Art 5 requirement that persons are only to be deprived of their liberty ‘in accordance with the procedure
prescribed by law’). See also Erkalo v Netherlands (1998) 28 EHRR 509, para 2 of Levits J’s dissenting
opinion.
12
Under s 1, ‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in
it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and demo-
cratic society’. See, eg PW Hogg, Constitutional Law of Canada, vol II (Toronto, Thomson/Carswell, 2007)
38-18–38-44.2.
13
Basic Law: Human Dignity and Liberty, s 8. An identical provision appears in the Basic Law: Freedom of
Occupation, s 4.
14
For the most prominent argument in this vein see Z Segal, ‘The Ground of Disproportionality in
Administrative Law’ (1991) 39 The Lawyer 507 (in Hebrew); Z Segal, ‘Security Measures, Administrative
Proportionality and Judicial Review’ 1 Law and Government 477 (in Hebrew).
Margit Cohn 193
impairment and the benefit was applied, rather than a developed proportionality doc-
trine.15 A few cases were later interpreted as relying on a proportionality-type reasoning,
but at best, references to proportionality were discursive and no independent ground
was established.16 The term ‘proportionality’ (midatiut) was first used in a decision
delivered in March 1992, just one day after the Basic Law: Freedom of Occupation was
passed by the Knesset (Israeli Parliament).17
By birth, then, the ground was inalienably connected to the protection of human
rights, and has since been applied and reapplied in dozens of decisions.18
However, the Supreme Court has also applied the ground in several cases in which the
human rights aspect was rather weak, and at best could be found in applicants’ argu-
ments of alleged unfair treatment. I will discuss two examples.
Ben-Atiyah (1995) was concerned with the Minister of Education’s policy to desig-
nate, by lot, one of the compulsory national matriculation subjects, thereby allowing
high school pupils to receive their internal mark rather than sit the examination. This
exemption was denied to pupils in several institutions, in which a high level of unethical
practices in examinations was found in previous years. Applicants argued that the denial
of exemption was unreasonable and discriminatory.19
The Supreme Court President Barak, with the other Justices on the Bench, found the
denial of the exemption unreasonable, but used the decision to further develop the
ground of proportionality. The analysis was not based on a human rights rationale;
rather, it dwelt on the place of this ground in many legal systems and on its occurrence
in earlier Israeli jurisprudence. The challenged administrative decision was quashed; dis-
proportionately harmful to the pupils, it did not even pass the first proportionality sub-
test: no rational connection between the purpose (ensuring ethical examination practice)
and the means (denying the exemption) could be found. The decision fared no better
under the other two subtests.20
Similarly, and still in the field of education, Moustaki (2003) was concerned with Civil
Service policy regarding accreditation of foreign academic institutions.21 Once accred-
ited, degrees granted by these institutions were considered equivalent to Israeli degrees
15
See, eg HCJ 344/89 HSA International Commerce v Minister of Industry and Trade 44(1) PD 456 [1990]
(in Hebrew); HCJ 2994/90 Poraz v Government of Israel 44(3) PD 317 [1990] (in Hebrew).
16
See, eg HCJ 935/89 Ganor v Attorney General 44(2) PD 485 [1990] (in Hebrew) (unreasonableness of the
decision of GLA not to prosecute banks’ managers for the bank share scandal should be assessed by weighing
the public interest in prosecution against the harm to the managers).
17
HCJ 5667/91 Jabbarin v IDF Commander of Judea and Samaria 46(1) PD 858 [1992] (in Hebrew). This deci-
sion, and a second, delivered about a year later, were both concerned with demolition of houses in the occupied
territories; Basic Law: Dignity and Liberty was not cited either in HCJ 5510/92 Turkeman v Minister of Defence
48(1) PD 217 [1993] (in Hebrew). The third decision which used the term ‘proportionality’ cited the Basic Law:
Freedom of Occupation, HCJ 987/94 Euronet Golden Lines (1992) Ltd v Minister of Communications 48(5)
PD 412 [1994] (in Hebrew).
18
Some of the best-known decisions which have been translated into English and are available at: elyon1.
court.gov.il/verdictssearch/englishverdictssearch.aspx are: CA 6821/93 United Mizrahi Bank Ltd v Migdal
Cooperative Village 49 (4) PD 221 [1995] (proportionality in the context of the right to property); HCJ 5016/96
Horev v Minister of Transportation 51(4) PD 1 [1997] (freedom of movement and freedom of religion); HCJ
769/02 Public Committee Against Torture in Israel v Government of Israel 62(1) PD 507 [2006] (challenging the
2003 Citizenship and Entry into Israel (Temporary Provision) Law; Beit Sourik (n 4) (the ‘security fence’ deci-
sion); HCJ 2605/05 Academic Center of Law and Business v Minister of Finance (19 November 2009) (BOT
privatization of prison facility).
19
HCJ 3477/95 Ben-Atiyah v Minister of Education, Culture and Sports 49(5) PD 1 [1996] (in Hebrew).
20
ibid 9–16.
21
HCJ 3379/03 Moustaki v Attorney General 58(3) PD 865 [2004] (in Hebrew).
for salary purposes. Following criminal investigations of fraudulent grant of degrees

by a Latvian university, the accreditation of this institution was cancelled. Hundreds
of civil servant graduates, who were thereby denied earlier benefits, challenged the
decision. The proportionality of the cancellation of the accreditation was but one of
the flaws found by the Court. Applying the already well-established three subtests of
proportionality, Justice Or found that even though the decision met the first subtest –
the purpose to eradicate reliance on fraudulently achieved academic degrees was served
by the blanket revocation of the accreditation – the act of revocation failed the second
and third subtests, as it affected graduates who had not acted fraudulently.22
Here, too, the Court felt no need to embed its decision in a human rights context.
Rather, proportionality was considered yet another important requirement that must be
met in order to pass the test of good administration. In both cases, however, the Court
was concerned with unequal allocation of public assets.
Proportionality Israeli-style, then, has not achieved a continental-like status: it is not
considered an overarching principle such as the rule of law, legality and democracy.
However, its application in cases that have no direct link with a text that protects human
rights may be a step towards such a development.
III. PROPORTIONALITY FORMULAE AND THEIR STRATEGIC VALUE
Analyses of legal doctrines often neglect a basic distinction between the doctrines them-
selves, which tend to be open-ended and malleable, and formulae that flesh out these
concepts. A formula is distinct from the doctrine it serves; it operates as a template for
its application.23 By the term ‘formula’, I refer to a criterion or a set of criteria, designed
as an objective test, which is sufficiently established to be recognised as the basis for
regular assessment of the applicability of a legal concept or doctrine. Formulae achieve
their status through subsequent usage and consistent reliance. They need not be univer-
sally applied, but to retain the status of a formula, they should be generally recognised as
the accepted mechanism for the application of the concept they embody. The Baker v
Carr six criteria used for a decision over the justiciability of an application is one
example,24 as are the levels of scrutiny tests formed in Carolene Products.25 It would
seem that the proportionality doctrine is most afflicted by the insufficient attention to
this distinction; most, if not all, analyses of proportionality assume without question
that proportionality is identical to its ‘elements’, or its well-known stages or subtests.26
No student of constitutional law outside the United States can remain ignorant of
these subtests. In its current form, the formula created by German courts comprises
three subtests or limbs. First, the measure must be suitable for the achievement of the
aim pursued. Secondly, no other milder means could have been employed to achieve that
aim (a ‘necessity’ test). Finally, under a proportionality stricto sensu test, a type of cost-
22
ibid 907–11.
23
For the distinction and further analysis, see M Cohn, ‘Form, Formula and Constitutional Ethos: The
Political Question/Justiciability Doctrine in Three Common Law Systems’ (2011) 59 American Journal of
Comparative Law 675.
24
Baker v Carr 369 US 186 (1962).
25
United States v Carolene Products Co 304 US 144 (1938).
26
Eg Sources cited at n 5 above.
Margit Cohn 195
benefit analysis is required; for the measure to be upheld, the benefit at large must out-
weigh the injury to the implicated individual.27
Israel is one of many systems that have followed this formula when it began to apply
the clause ‘to an extent that is not excessive’.28 First adopting the three-pronged formula
in United Mizrahi Bank, the court openly acknowledged the sources of the formula and
cited German and Canadian sources.29 Since then, the Israeli Supreme Court applies
almost verbatim the Canadian three-pronged test of proportionality introduced in
Oakes, which in itself is very similar to the German formula. In its Hebrew version,
[t]he first subtest is that the objective must be related to the means . . . The means used by the
administrative body must rationally lead to the realization of the objective. This is the ‘appro-
priate means’ or ‘rational means’ test. According to the second subtest, the means used by the
administrative body must injure the individual to the least extent possible. In the spectrum of
means which can be used to achieve the objective, the least injurious means must be used. This
is the ‘least injurious means’ test. The third test requires that the damage caused to the indi-
vidual by the means used by the administrative body in order to achieve its objectives must be
of proper proportion to the gain brought about by that means. That is the ‘proportionate
means’ test (or proportionality ‘in the narrow sense’).30
Since its adoption, the three-pronged formula has become almost holy, an incantation
that appears in most, if not all, discussions of the proportionality principle. It is found in
countless decisions, in all studies of the principle, and is vigorously taught to students of
all disciplines concerned with judicial review.
However, this type of formula is not essential to the development of a robust propor-
tionality doctrine. Proportionality is also a tenet of European Union law, and a second
prototype of formula can be found here.
The two main European fora have developed distinct proportionality formulae. The
ECJ tends to apply two formulae, both similar to the three-pronged German test. The
first follows the German contours,31 the second is a two-pronged test, sometimes
described as one that emulates the first German subtest and combines the latter two.
Under this formula, the Court considers whether the challenged measure was appropri-
ate and necessary (the latter requires the Court to assess whether the measure did not
affect the interest at stake beyond what was necessary to achieve the objective).32
27
See, eg H Maurer, Allgemaines Verwaltungsrecht (Munich, Beck, 2006) 250–51; Schwarze (n 1) 685–92;
Singh (n 3) 165–67.
28
Similar tests exist inter alia in Canada, Zimbabwe, the United Kingdom (when applying the ECHR – but
see part IV below), Japan, Chile and Colombia.
29
United Mizrahi Bank (n 18) 343, 345, 412, 436–73, also emphasizing that the Knesset was aware of the
German and Canadian models and was especially influenced by the latter (ibid 299, 376). See also Ben-Atiyah
(n 19) (citing Canadian sources).
30
Beit Sourik (n 4) para 41. See also cases at n 18; R v Oakes [1986] 1 SCR 103 (Can).
31
See, eg Case C-331/88 R v Minister for Agriculture, Fisheries and Food, ex p Fedesa [1990] ECR I-4023,
para 13 (‘By virtue of [the principle of proportionality], the lawfulness of the prohibition of an economic
activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to
achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several
appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be
disproportionate to the aims pursued’).
32
See, eg Case 279-280/84 Rau v European Economic Community [1988] 2 CMLR 704, 750–51; Case C-426/93
Federal Republic of Germany v Council of the European Union [1995] ECR I-3723, para 42; Case C-84/94 United
Kingdom and Ireland v Council of the European Union [1996] ECR I-5755, para 57; Case C-434/02 Arnold André
v Landrat des Kreises Herford [2004] ECR I-11825, para 45. The very first decision that recognized and applied
the principle of proportionality may be cited as applying this test, but could also be read as applying no more than
a simple balancing test, with the German subtests relegated to the background (Internationale Handelsgesellschaft
Rather than adopt the three or two-pronged approach, the ECtHR has employed a
simple test. Often, the Court assesses the proportionality of a challenged measure by
balancing the means employed and the aims pursued, supplemented by a reference to the
margin of appreciation granted to Member States, which colours the final decision.33 As
a further development, the Court has introduced two additional conditions aimed at
protecting rights, the first requiring ‘a pressing social need’ (or a ‘compelling social inter-
est’) to justify interference with a protected right,34 the second subjecting challenged
action to ‘close scrutiny’, under which ‘very weighty reasons’ are needed to justify inter-
ference with a central human right.35
Why have these formulae emerged, and how can the amazing popularity of the
German formula be explained? Does the complexity of the test make a difference?
In a separate article, I have argued that the choice and development of a formula may
be driven by judicial appreciation of the values of systematization and clarification, or
simple human tendency to classify, but the use of formulae can also carry strategic bene
fits.36 Reliance on a formula carries a ‘distancing effect’. Judges who rely on established
seemingly objective tests find shelter from accusations of politicization, which are likely
to arise whenever the case before them is sensitive or politically laden, as cases involving
human rights may be. When they apply a formula to reject an application, they protect
themselves from accusations of weakness, subjection to political pressure, or partisan
support of the respondents’ substantive position. Likewise, when judges accept an appli-
cation, seemingly objective tests operate as a shield from anticipated criticism which
may originate from the challenged body or other actors in the social and political spheres
that are unsatisfied by the outcome. In both cases, strong levels of criticism may directly
endanger the social legitimacy of the judiciary. Thus, the more politically-laden the
issue, the greater the utility of formalization. And the more detailed and elaborate the
formula, the greater its distancing potential: a complex, highly structured formula
requires judges to go through several hoops, which serve as a signal of judicial commit-
ment to the application of complex, professional, even clinical processes that have noth-
ing much to do with the political.
How, then, to explain the near-universalization of the three-pronged test (excluding
the ECtHR)? Its dominance may be credited to the formula’s superior character as a
usable tool for application of an open-ended concept; however, under the strategic
model suggested above, its complexity may be one of its main attractions.
(n 8) 1134–35, paras 12, 14, 16). On the proportionality tests, see Schwarze (n 1) 854–60; Craig and De Búrca (n 8)
372–73; Tridimas, ‘Proportionality’ (n 8) 139 (different emphases on the prominence of the two and three-pronged
tests); Sweet and Mathews (n 1) 145–48; M Fordham and T de la Mare, ‘Identifying Principles of Proportionality’
in J Jowell and J Cooper (eds), Understanding Human Rights Principles (Oxford, Hart Publishing, 2001) 27,
37–49.
33
See, eg Sunday Times (n 11) 277–78; for examples of recent cases see, eg Dogru v France (2009) 49 EHRR
8; A v United Kingdom (2009) 49 EHRR 29 (detention of suspected terrorists). In both latter cases, the Court
did not overturn the decisions of the domestic courts. But see de Búrca (n 8) 113.
34
Handyside (n 11) 754 (‘pressing social need’ was implied by the term ‘necessary’ in the Convention);
Sunday Times (n 11) 277–78 (‘close scrutiny’ of arguments regarding the necessity of the interference, to be
justified only under a ‘pressing social need’); Lingens v Austria (1986) 8 EHRR 407 (conviction for defamation
in press article found in breach of freedom of speech (Art 10); pressing social need not found); Abdulaziz v
United Kingdom (1985) 7 EHRR 471, 501 (only ‘very weighty reasons’ could justify different treatment of sexes
under Immigration Rules).
35
See the cases ibid, which were mainly concerned with freedom of speech and sexual discrimination. See
also generally, Fordham and Thomas de la Mare (n 32) 49–60.
36
Cohn (n 23).
Margit Cohn 197
IV. THE MIGRATION OF THE PROPORTIONALITY THREE-PRONGED FORMULA
In this part I am concerned with the migration of the proportionality formula, as distinct
from the adoption of proportionality as an operable doctrine.
When the Israeli Supreme Court adopted the three-pronged formula, first in United
Mizrhahi Bank, the court openly acknowledged the sources of the formula and cited
German and Canadian sources.37 Since then, the court has remained faithful to the
Canadian tests, although Oakes is no longer the central precedent; for example, it
cannot be found at all in the Beit Sourik decision, arguably the Israeli Supreme Court’s
most famous and detailed decision on proportionality, which recognised the force of the
proportionality doctrine in both domestic and international law.38
But the transplant of a formula may be more discrete. The rest of this part is dedicated
to counter examples elsewhere. Migration is not always openly celebrated; doctrines
and formulae may be imported without open declaration. Alternatively, even when
foreign sources are cited to support a new doctrine or formula, it may be in fact trans-
formed without such transformation being acknowledged. Discrete transplants are
especially interesting; they seem to be the outcome of the tension between universaliza-
tion and exceptionalism, between the readiness, even need, to learn from other systems,
the possible risk to domestic integrity inherent in this type of learning, and special loy-
alty to systems belonging to the legal family of the importing systems. The following
analysis traces examples of such types of transplants.
I begin with Canada. In Oakes, the 1986 decision in which the proportionality
formula was adopted,39 the Canadian Supreme Court cited Big M Drug Mart, a Canadian
precedent, as the source for this formula, but this precedent only provides dicta regard-
ing the possible development of unreasonableness in the context of the Canadian Charter
to ‘a form of proportionality test’.40 Some ECtHR jurisprudence is cited in Oakes, but
only as part of a comparative survey of the protection of presumption of innocence, the
right impaired in this case, and the ‘rational connection’ test relies on US cases regarding
the presumption of innocence.41 Neither the German formula nor any reference to
German jurisprudence can be found. The decision also ignores the proportionality tests
developed by the European fora, discussed above.42 How can this be explained?
In their biography of Dickson J, who delivered the decision, Professors Sharpe and
Roach disclose that Dickson was aided by two law clerks, one of them, Joel Bakan,
‘fresh from graduate studies at Oxford’, who ‘immersed himself in the European human
rights jurisprudence under the principle of proportionality’.43 Whether this is the missing
link to the German formula remains a matter of speculation. What is clear, in any case,
is that the proportionality formula emerged in Canada as a fresh, if not original test,
attesting an emphasis on the force of domestic law. The link was recognised later on.
See n 29 above.
37
Beit Sourik (n 4) 836–40.

38
39
Oakes (n 30) para 70.
40
R v Big M Drug Mart Ltd [1985] 1 SCR 295, para 140 (Can).
41
Oakes (n 30) paras 50–55.
42
On this absence see Sweet and Mathews (n 1) 117.
43
RJ Sharpe and K Roach, Brian Dickson: A Judge’s Journey (Toronto, University of Toronto Press, 2003)
334. I thank Martin Friedland for directing me to this source.
The Zimbabwe Supreme Court, in comparison, openly relied on Oakes in Nyambirai,44

but not on German law. Being part of the Commonwealth world, reliance on Canadian
jurisprudence may have seemed more legitimate than foraging into the continent.
Further, the slight transformation of the formula may be the result of domestic ‘pride’,
an evidence of the ability of domestic judges to improve upon foreign solutions.
The British adoption of the proportionality formula is even more complex, and exem-
plifies the tension between the force of the domestic, the influence of common law sys-
tems and the British commitment to European law. The rest of this part is dedicated to a
review of this most tangled chapter in the tale of the adoption of a proportionality
formula.45
To begin with, arguments that in the British Isles, ‘Verhältnismäßigkeit’ should be
translated as ‘unreasonableness’ are unconvincing.46 As courts later admitted, proportion-
ality was to be considered a more powerful ground for review than unreasonableness,
despite potential overlap and possible similarity in outcomes.47
The traditional British reticence to adopt proportionality drew directly from the
Diceyan heritage and its impact on the notion of judicial review. However, being central
to European law, proportionality could not be ignored in areas in which European law
was formally incorporated into domestic British law.48 On joining the European
Community, the British Parliament enacted the European Communities Act 1972, under
which European law would be ‘recognised and available in law’. This implied, in a
rather convoluted way, that domestic law that squarely contradicted binding European
rules could no longer be applied.49 Thus, applicants could rely on proportionality when
the challenged measures were promulgated by European Community institutions and
directly binding, or when the application included a challenge to the legality of a domes-
tic measure due to its incompatibility with a binding European measure. Domestic
courts applied European Community law when correctly relied upon; this was done,
however, in conjunction with domestic grounds of review, including unreasonableness.50
Courts thus continued to emphasise the force of domestic law.
44
Nyambirai v National Social Security Authority [1996] 1 LRC 64, 1995 (9) BCLR 1221 (ZS).
45
The analysis of British law is based on M Cohn, ‘Legal Transplant Chronicles: The Evolution of
Unreasonableness and Proportionality Review of the Administration in the United Kingdom’ (2010) 58
American Journal of Comparative Law 583, 616–22.
46
Such an argument, seemingly offered by Singh (n 3), may have been advanced only to explain the nature of
the ground of proportionality to the (British) uninitiated reader. This chapter is based on Cohn ibid.
47
See, eg R v Chief Constable of Sussex, ex p International Trader’s Ferry [1997] 2 CMLR 164, 182 (CA) per
Kennedy LJ (‘Proportionality requires the Court to judge the necessity of the action taken as well as whether it
was within the range of courses of action that could reasonably be followed. Proportionality can therefore be a
more exacting test in some circumstances’); R (Daly) v Secretary of State for the Home Department [2001]
UKHL 26, [2001] 2 AC 532, 547 per Lord Steyn (‘the [proportionality] criteria are more precise and more
sophisticated than the traditional grounds of review . . . there is an overlap between the traditional grounds of
review and the approach of proportionality. Most cases would be decided in the same way whichever approach
is adopted. But the intensity of review is somewhat greater under the proportionality approach’); R (Begum) v
Headteacher and Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 [30]. But see Barak on
this issue, Barak, Proportionality (n 1) 455–65.
48
The United Kingdom follows a dualist approach: international conventions become part of domestic law
only by further legislative action. On the dualist and monist approaches, see I Bronwlie, Principles of Public
International Law (Oxford, Clarendon Press, 2008) 31–33.
49
European Communities Act 1972, s 2(1). This subjection was finally formally recognized in the courts
only in 1992, in R v Secretary of State for Transport, ex p Factortame (No 2) [1990] UKHL 13, [1991] 1 AC 603.
50
See, eg R v Chief Constable of Sussex, ex p International Trader’s Ferry [1998] UKHL 40, [1999] 1 CMLR
1320 (proportionality test applied with regard to arguments pertaining to the European Treaty, in conjunction
with unreasonableness). On the interface between unreasonableness and proportionality see below.
Margit Cohn 199
The European Convention of Human Rights51 presented a different challenge. The

United Kingdom was one of the first states that signed and ratified the Convention in the
early 1950s, but incorporating legislation was introduced only in 1998. Before the entry
into force of the Human Rights Act (HRA) in October 2000, the Convention had no
direct effect on British domestic law. The United Kingdom subjected itself to the review
of the ECtHR in 1966; being answerable to the Court on the European level, applications
to the Strasbourg Court were sometimes successful. While even failed applications served
to raise political and public consciousness of the United Kingdom’s subjection to the
European law of human rights, successful applications had, of course, a stronger impact.52
None of this, however, required direct application. Thus in GCHQ, Lord Diplock opined
that further development of administrative law might lead to the adoption of new grounds
of review, including proportionality, yet he found the existing grounds to be sufficient at
the time.53 A gradual recognition of the value of the proportionality doctrine was subse-
quently evident only in judicial dicta and academic literature.54
The field was transformed upon the entry into force of the Human Rights Act. Novel
review mechanisms were introduced, to be applied when breaches of the ECHR (more
precisely, the parts of the Convention that were formally adopted by the Act) were
found.55 Under section 2 of the Act, courts were required to take into account the juris-
prudence of the ECtHR and other bodies operating in the context of the Convention – a
statutory duty to at least consider European case law, which was more than an invita-
tion to incorporate it when suitable. Thus, proportionality could no longer be resisted.
The doctrine was indeed adopted by post-HRA courts, but the transplantation of the
proportionality formula was far from straightforward.
The multi-player nature of this transplantation process has been marginalised by
many commentators, who focus on the impact of European law on the law of the United
Kingdom. Yet, at least in rhetoric, courts were not ready to succumb easily to European
law. In the case of proportionality, rather than drawing on ECtHR jurisprudence, the
British courts were initially inspired by the Supreme Courts of Canada, Zimbabwe, and
South Africa – all of them members or past members of the Commonwealth. The tale
begins with De Freitas (1998), the first case in which British courts adopted the ground
of proportionality.56 The case originated in Antigua and Barbuda, an independent state
that retains the British Crown as its Head of State; therefore, the final judicial instance
remains the Privy Council, which decided upon the constitutionality of a statute legis-
lated in this territory. The Constitution of Antigua and Barbuda limits the freedom of
51
52
For a survey of Strasbourg decisions regarding the United Kingdom and the impact of the Convention on
domestic law in 1997, see AW Bradley and KD Ewing, Constitutional and Administrative Law, 12th edn
(Harlow, Pearson Longman, 1997) 470–76.
53
Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6, [1985] 1 AC 374, 410.
54
For an analysis of the pre-Human Rights Act judicial treatment of the proportionality doctrine see Cohn
(n 45) 617–19.
55
S 3 empowers courts to interpret domestic statutes in ways that contradict, to a certain extent, their tex-
tual meaning, to achieve compatibility with the Convention. Section 4 introduces the remedy of declaration of
incompatibility, which replaces the continental – and American – remedy of statute invalidation. Both are
prime examples of transformation, if not distortion, of the essence of constitutional judicial review recognized
in the ECHR. I do not elaborate on this point, since this chapter is concerned with proportionality as one of
the grounds of substantive review.
56
De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1998] UKPC
30, [1999] 1 AC 69 (adopting the test adopted in Nyambirai (n 44)).
speech of civil servants only as ‘reasonably required for the proper performance of their
functions’, a limitation similar to those found in other Commonwealth constitutions.
Defining the ground of proportionality implied in the reasonable requirement clause, the
Privy Council cited decisions from South Africa and Zimbabwe, mentioning the
Canadian source, and relied on the three-pronged test adopted by the latter.57
The next step was Daly, the first case in which proportionality was discussed in the
context of the Human Rights Act. Despite the reliance of the applicant on the ECHR
and the requirement in the Human Rights Act to ‘take into account’ European jurispru-
dence, the House of Lords cited de Freitas as precedent for their adoption of proportion-
ality.58 Noting that ‘the contours of the principle of proportionality are familiar’ – a
blatant overstatement of the state of British law at the time – Lord Steyn proceeded to
adopt the three-pronged test adopted in de Freitas.59
This emphasis on the status of the principle of proportionality as an existing part of
domestic law came at the price of a full recognition of its European origin in the context
at hand. One could justify de Freitas’ reliance on Commonwealth formulae, since, after
all, the decision required the interpretation and application of a Commonwealth consti-
tution. However, the absence of reliance on European doctrine in Daly is not self-
explanatory. In applying the Human Rights Act, judicial reference to the ECtHR ground
of proportionality, and, possibly, the formula it tends to use, would have been appropri-
ate, at least since section 2 of the Human Rights Act requires it. Furthermore, since the
three-pronged test is not dissimilar to the German and Canadian ones, this affinity could
have been recognised.
This chronicle does not end here. As a final twist (to date), the application of the pro-
portionality formula in British courts has since departed from the Commonwealth for-
mulae. Some recent decisions have not cited de Freitas and Daly’s three pronged test;
alongside such cases, others mention proportionality as a unitary concept, in a form
closer to the ECtHR’s simple test, relying on ECtHR jurisprudence.60 Even more telling
is the fact that in none of the cases applying British domestic law – Daly included – did
the court actually consider each of the subtests separately, as do German, Canadian and
Israeli courts, even the Privy Council in de Freitas. Rather, proportionality is decided by
a general assessment consisting of balancing the interests involved. In this respect, the
decisions resemble the ECtHR, rather than continental and Commonwealth decisions –
but the European source is often marginalised.
This is a clear example of a discrete transplant process: at the onset, British courts
linked their transplant with Commonwealth countries only, marginalizing European
57
De Freitas (n 56) 80.
58
ibid 547. In Daly (n 47), the House of Lords cited three decisions of the ECJ, including Smith and Grady v
United Kingdom (2000) 29 EHRR 493, but only in the context of the need to apply a stricter test than classic
unreasonableness (545–56, 547, 549).
59
Daly (n 47) 547.
60
For cases applying a simple test, or merely deciding without detailed proportionality analysis, see, eg
R (Alconbury Development Ltd) v Secretary of State for the Environment, Transport and the Regions [2001]
UKHL 23, [2003] 2 AC 295; Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465;
G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173 (HL); Attorney General’s Reference (No 3
of 1999) [2009] UKHL 34, [2009] 3 WLR 142; R v Waya [2013] 1 AC 294. Decisions in which the three-pronged
test is cited include A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68;
R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23, [2004] 1 AC 185, 253; Huang v
Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167; and AS (Somalia) v Secretary
of State for the Home Department [2009] UKHL 32, [2009] 1 WLR 1385.
Margit Cohn 201
sources, and its actual reliance on the ECtHR-type formula remains virtually undis-
closed. In this case, the courts have succeeded in presenting a process that is seemingly
common law based, in which common law formulae seem to have been injected into the
European measure. The more recent emphasis on ECtHR case-law has, again, been dis-
crete, with no explicit departure from former reliance modes.
V. PROPORTIONALITY REASONING: BALANCING AND CONSEQUENTIONALISM
The idea of balancing has become almost synonymous with the concept of proportional-
ity. Here, I do not refer to balancing in its US meaning,61 but to the law of balancing,
defined by Professor Alexy as follows: ‘The greater the degree of non-satisfaction of, or
detriment to, one principle, the greater must be the importance of satisfying the other’.62
Balancing is used as the main metaphor to explain what judges do when they rule
upon the proportionality of a contested act. This is evident in much of the literature.
Sufficient to mention Stone-Sweet and Mathews’ recent article, which carries the title
‘Proportionality Balancing and Global Constitutionalism’; a recent conference held in
the Ramat Gan Law College in Israel, under the title ‘Rights, Balancing and
Proportionality’; and Aharon Barak’s extensive treatment of balancing in his recent
book and elsewhere.63
Both Professors Alexy and Barak are careful to note that balancing is in fact linked,
even ‘identical’ (in Alexy’s words) with the third proportionality subtest, the so-called
proportionality stricto sensu test discussed below as part of the well-travelled three-
pronged proportionality formula.64 There is no denying that balancing, in the Alexian
sense, is required at that stage, but identifying proportionality with balancing carries
two difficulties.
The usual formula used for the application of the proportionality doctrine includes
several earlier steps, to be taken before the assessment of the benefits versus the impair-
ment of a right. First, the purpose or objective of the measure should be identified and a
decision should be made regarding whether a protected right was infringed. Then, the
first two subtests should be applied: the requirement for a rational connection and the
assessment of whether the least restrictive measure was chosen. None of these have
much to do with balancing. The decision on the legislative purpose may require statu-
tory interpretation or other modes of purposive reasoning; the attachment of the chal-
lenged measure to a distinct protected right has likewise no link to proportionality
reasoning; similarly, the finding over the existence of a rational link between the purpose
and the measure and the assessment of whether the least harmful measure had been cho-
sen require other forms of reasoning.
Of course, one may argue that all the stages preceding the third subtest are mere pre-
liminary steps required for the exercise of the ultimate balancing act. But another type of
61
Reliance on ‘balancing’ in this context is different from the ‘balancing’ tests used in constitutional adjudi-
cation in the United States, which is often posited as the alternative to proportionality reasoning. For a presen-
tation of the two as competing concepts see, eg Cohen-Eliya and Porat, ‘American Balancing’ (n 1); Barak,
Proportionality (n 1) 600–17 (juxtaposing ‘categorization’ as an alternative to proportionality reasoning).
62
R Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press) 102, 401.
63
ibid 401; Barak, Proportionality (n 1) 426–54; A Barak, ‘Proportionality and Principled Balancing’ (2010)
4 Law and Ethics of Human Rights 1.
64
ibid 7.
reasoning may stand behind proportionality decision-making (and, in fact, most other
types of review). Should not the consequential element of proportionality reasoning
receive further attention?
The consequential element of proportionality is not completely absent from the
debate: Professor Barak’s discussion of ‘principled balancing’, developed to fine-tune the
third subtext, is considered a ‘consequential’ test, but in spirit, the thesis remains focused
on the act of balancing.65
My tentative suggestion begins with some obvious observations. Under any classic
vision of judicial decision-making, courts are to decide disputes between parties, who
present a distinct set of legal arguments that support a distinct reality. For example, an
application against a statute that permits indefinite detention in certain cases is based on
the argument that the statute wrongfully impairs personal freedom; here, applicants
push for a reality in which no such incarceration may occur. The respondent, in arguing
that the statute passes all legal hurdles successfully (including, of course, proportional-
ity), requires the court to assert the legality of a reality in which such incarceration is a
viable possibility.
Thus, one may depict the decision over the proportionality of a challenged act as one
that is the product of a choice between two alternative realities. In this way, a judge may
be viewed as making a consequence-oriented decision; in the example above, this means
choosing between the existence of indefinite detention and its absence. The consider-
ation of the consequences of the choice to be made between these two realities seems
central to the application of proportionality reasoning. In fact, balancing seems no more
than a tool for the assessment of the propriety of the chosen consequence.
This type of reasoning is not limited to application of the proportionality principle; it
is part of judicial decision-making in most cases involving judicial review. Its recogni-
tion in the context of proportionality is an important element of an all-rounded vision of
judicial decision-making that embraces several reasoning methods that have little to do
with balancing.66
VI. CONCLUSION
This chapter considered four aspects of the proportionality principle. First, I addressed a
neglected distinction between proportionality as an overarching principle and proportion-
ality as a device for decisions involved in the limitation of a constitutionally protected
65
ibid 1, 10 and 12.
66
Two comments are needed here. First, courts may deny redress for a variety of reasons that have nothing
to do with a decision on the merits, or may decide without touching the substance of the arguments. For exam-
ple, an application filed after the period allowed for challenging a decision or one that does not pass the stand-
ing test, will be summarily rejected, and applications may succeed due to the finding of improper procedure, as
in the case of absence of hearing or consultation. In all of these cases, the court does not make any decision
regarding the substantive arguments of the parties. However, the immediate outcome will still be the establish-
ment of one of the two realities proposed by the applicants. My second comment refers to the fact that in some
cases, a compromise is struck. This may happen when courts act as brokers for settlement outside the court, or
inside the court, by granting the settlement the force of a judicial decision. In another type of case, courts may
grant only a partial remedy or one that is otherwise different from the remedies requested by the applicants. In
all such cases, the emerging reality will be different from the realities advanced by the parties. One may find
that the court is involved in balancing, but this balancing can be viewed as outcome oriented as in the former
cases.
Margit Cohn 203
human right. I showed that in Israel, proportionality essentially derives from its recogni-
tion in the human rights Basic Laws of 1992; it was applied also in cases involving unfair
allocation of sources or unfair treatment, but to date, only in cases which touch, if loosely,
on the idea of equality. Whether further development expands the remit of the principle is
a matter for the future. Following a second distinction between a concept (or doctrine) and
formulae developed to flesh out the concept, I studied the proportionality formula devel-
oped in Israel as one case of a cross-system preference for the three-pronged formula. I
then noted the strategic benefits of formula-making and the distancing effect of reliance on
complex, seemingly objective formula, which may explain the amazing popularity of the
three-pronged formula. In part IV I compared the readiness of courts, when importing
foreign formulae, to disclose the source of their transplant; I showed that different shades
of candour exist, and these may reflect system identities and patterns of self-inclusion on
the transnational level. I identified examples of discrete transplants, in which the true
sources of the formula are undisclosed, and assessed the benefits of such types of trans-
plants in settling tensions between universalization and exceptionalism. Finally, I
suggested that excessive attention has been granted to balancing in the context of propor-
tionality reasoning. While an important element, balancing is in fact supplemented by
other modes of reasoning; ignorance of these other aspects, inter alia consequential rea-
soning, may lead to a misunderstanding of the complex task judges take when applying
this ground of review.
14
Constitutional Law in an
Age of Globalization
VICKI C JACKSON*
I. INTRODUCTION
T
HE TITLE OF our panel was, ‘Constitutional Law in an Age of Globalization’.
How does globalization relate to constitutional law? Three fine papers (now
chapters of this book) grew out of this question. Before commenting on the
excellent chapters, let me say a few words about globalization and about constitutional
law.
Globalization is a term that is frequently used and contains multiple meanings. The
term may refer to the greater interaction among economies, persons, governments, and/
or legal systems, and it is in this sense that it was probably most germane to our confer-
ence. But it may also refer to the rapidity, ease, accessibility and coverage of communi-
cation and transmission and spread of information through global technologies; this
aspect of globalization is also germane to our enquiry. Globalization may include as well
the growth of transnational organizations that exercise power – governmental, or pri-
vate; lawful or unlawful. Or it may refer to the processes and institutions which promote
these phenomena, including cycles leading to cascades of greater degrees of global inter-
connection, as when global crime, global terrorism, or global environmental threats to
the Earth call for responses beyond those of a single national state; thus, globalization
may also refer to the pressures on national states as fundamental organizing units. In
this sense, as well, the multiple processes of globalization bear on domestic constitu-
tional law.
In addition to having multiple meanings, globalization’s impact is not likely to be
uniformly distributed across legal systems. For example, more powerful states and more
vulnerable states may have very different relationships with international law, or to the
views and practices of others. So one must be careful to avoid overgeneralizations and to
recognize the complexity and, I will suggest, multi-directionality of the influences of
globalization on constitutional law.
On constitutional law: all states have ‘constitutions’ in the sense of identifiable orga-
nizing principles for constituting the government of the state and norms for how that
power is exercised. But by ‘constitutional law’ one might mean something beyond the
* The author retains the copyright to this chapter. With thanks to Jason Lee and Aatif Iqbal for able research
assistance, and to Margit Cohn, Moshe Eliya-Cohen, and Iddo Porat for writing such interesting chapters.
206 Vicki C Jackson
fact of a politically identifiable and describable constitution, such as a basic law that
constrains government. Not all states have constitutions designed to limit the exercise of
government power, and not all have constitutional law in one of three important senses:
supremacy, entrenchment and judicial enforcement.
On the first, most constitutions assert the supremacy of constitutional over ordinary
law. Part of the ‘Constitutional Revolution’ in Israel in the early 1990s was the more
clearly developed assertion, in important part through the Israeli Supreme Court, of this
form of supremacy for the Basic Laws. Although most states have this feature, not all do
and not all do consistently. For example, in states with what Mark Tushnet has called
‘weak’ constitutional review,1 ordinary law may be made supreme over constitutional
law through constitutionally specified mechanisms. Moreover, increasingly, as a result
of globalization, there are questions about the priorities of international law and domes-
tic constitutional law, in situations where they are in conflict; significant scholarship
suggests that constitutional law is not ‘supreme’ over conflicting international rules.2
Second, for many jurists, a constitution is a form of law that is entrenched more
deeply than other forms of law, whether by legal rule or by convention. Yet not all states
have deeply entrenched constitutions. So while in the United States it is common for
scholars to assume that a constitution is necessarily more deeply entrenched than ordin
ary law, this may not necessarily be so and plainly may not be so to the same degree.
Whether a ‘Basic Law’ has to be adopted by a greater or different vote than regular leg-
islation, and whether it is ‘entrenched’ against future change by special voting rules,
seem to be somewhat unsettled questions in Israel. Yet entrenchment is not necessary for
a constitution to emerge. British scholars have long discussed and sought to define the
UK ‘constitution’, many years before the Human Rights Act 1998 (HRA) was passed.3
Twenty years ago, a debate was whether Israel had a constitution, a debate that contin-
ued into the 1990s. The debate in Israel now may have moved on to arguments about the
content of the existing norms, about the role of the Supreme Court in articulating and
enforcing those norms, and about prospects for change in those norms in the future.
Third, although the enforcement role of courts is widely associated with constitution-
alism, it has been questioned whether this is necessary and in particular, whether courts
in a constitutional system must have the power to declare enacted laws unconstitutional.
Plainly there are constitutional systems in Western democracies that have functioned
without this latter power (as in the case of Switzerland with respect to national laws).
In the United States there are scholars who argue that in order for a constitution to
function as ‘law’ it must be in substantial part capable of enforcement in judicial actions
with respect to questions arising under the constitution.4 Others disagree, arguing that
‘constitutional law’ is a special form of law that is based primarily on deep political
judgements and thus need not be enforced primarily by courts but could be enforced
concurrently, or primarily, by either legislatures or ‘the people’ through elections, refer-
1
See M Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative
Constitutional Law (Princeton, Princeton University Press, 2008).
2
See, eg M Kumm, ‘The Cosmopolitan Turn in Constitutionalism’ in JL Dunoff and JP Trachtman (eds),
Ruling The World? Constitutionalism, International Law, and Global Governance (Cambridge, Cambridge
3
See, eg SE Finer, V Bogdanor and B Rudden, Comparing Constitutions (New York, Oxford University
Press, 1995) 40.
4
See, eg C Vázquez, ‘Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of
Treaties’ (2008) 122 Harvard Law Review 599.
Constitutional Law in an Age of Globalization 207
enda and the like. 5 There is little doubt that the courts play a significant role in enforc-
ing constitutional norms in the United States and, increasingly in Israel. But given prior
Israeli experience, as well as British experience until the HRA, one can surely conceive of
and identify states which have had functioning constitutions that are in important
respects not subject to judicial enforcement.
These factors, as well, provide important differentiations among the countries of the
world with respect to what is described as a ‘constitution’ or as ‘constitutional law’. So
my first point is simply on the need to be quite careful about what it is we mean when we
refer to globalization and what it is we mean by constitutional law.
I will comment briefly on each of the three excellent papers (subsequently chapters)
that were prepared for the panel, and then develop an idea inspired in part by these
chapters about two different ways in which ‘proportionality’ is used in constitutional
law.
II. TRANSFORMATIVE CONSTITUTIONS AND

PROFESSOR MOSHE COHEN-ELIYA’S CHAPTER
Professor Cohen-Eliya offers a very helpful analytic for understanding transformative

constitutionalism which, he says, is characterized by five features: first, an active role of
the court; second a ‘value’ oriented discourse; third, the identification of ‘positive’ duties
on government; fourth, the extension of constitutional ‘values’ to the realm of private
relations; and fifth, the use of balancing or proportionality as the ‘reigning analytic’
designed to facilitate the advancement of constitutional ‘values’. I find this an illuminat-
ing account, but want to suggest that while these features are characteristic of some
recent ‘transformative’ constitutions, they may not be true of all imaginable constitu-
tional ‘transformations’, including the conservative or reactionary transformation that
some might see occurring in the United States. I will also question whether the judicial
challenges of a ‘transformative’ constitution are that different from the challenges of a
‘preservative’ one, and suggest that the degree of challenge depends on domestic politics
rather than the particular ambitions of a particular constitutional instrument.
First, the idea of a transformational constitution has a layer of ambiguity: is it the
constitution that is transformative, that is, does the constitution have some form of
agency in redirecting a society towards a new set of goals? Does the constitution simply
embody change that has already occurred on the ground? Or is it somewhere in between
with multi-directional influences running back and forth? How one answers this ques-
tion in any given situation may bear on the role of ‘values’ in constitutional adjudica-
tion. I agree that resort to values can be a powerful tool for change. If existing legal rules
are not operating satisfactorily, it is a classic legal move to articulate the purpose, or
value, behind a legal rule as a basis – in legal reasoning – to change the rule itself. But
this move can be deployed both for the kind of progressive transformational constitu-
tional change we saw in Germany and South Africa, or for the kind of incrementalist
‘updating’ of law to meet new social conditions, as in changes in the ‘private law’ of tort
with the recognition of duties unknown in prior decades. So while resort to ‘values’ may
be typical of legal change, the direction and scope of the change is uncertain and whether
5
See, eg LD Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York,
Oxford University Press, 1994).
208 Vicki C Jackson
the change is one in which law takes the lead in effecting social change or rather adjusts
itself to forms of change that are already occurring is another matter.
Second, on the idea of positive duties: both in Germany and South Africa the new
constitution imposes affirmative duties on government. This may indeed be necessary
for a transformational constitution; that is, if one wants to reject the status quo, requir-
ing the government to act positively in that direction this might be thought necessary.
On the other hand, can we conceive of a transformational constitution that empowers,
but does not require, the government to act? Might we in that case call the constitution
a democratically transformational instrument, to capture the element of democratically
exercised discretion over the pace of change?
Third, on the association of transformative constitutions with the imposition of con-
stitutional values on private persons, I wonder whether this can be properly associated
with a transformational constitution or is instead part of a more general phenomena in
the world of law, consisting of influences between the worlds of public law and private
law, and between domestic and international or foreign sources.6 Such seepages, or
influences, of public law on private law, or of the values of public law on the develop-
ment of private law, may reflect not only transformational aspirations (as, in the coun-
tries discussed in his chapter, they surely do), but also the growth of a kind of
anti-formalism in both law and society, what Mayo Moran calls a ‘move away from the
traditional account of legal authority’.7
Indeed, the United States might itself be regarded as home to some forms of ‘seepage’
between public ‘values’ and ‘private’ law.8 The ‘state action’ question in the United
States has been a difficult one, and the constitutional discourse is undoubtedly, in gen-
eral, hostile to the assertion that constitutional values influence the obligations of pri-
vate persons inter se.9 Nonetheless, constitutional influence on private obligations even
in the United States extends beyond the parameters of the Thirteenth Amendment and
the rule in Shelly v Kramer.10 The entire edifice of constitutional protection of the press
and other speakers from ordinary tort rules in libel and defamation has arisen in cases
involving what could be conceptualized as ‘private law’ disputes. While in its origins the
doctrine restricting common law defamation actions on behalf of freedom of expression
involved public officials as libel plaintiffs,11 the expansion of the doctrine to ‘public
figures’,12 and the extension of First Amendment protection in actions involving digni-
tary interests asserted by private persons against the behaviour of others,13 more clearly
6
See generally, M Moran, ‘Inimical to Constitutional Values: Complex Migration of Constitutional Rights’
in S Choudhry (ed), The Migration of Constitutional Ideas (Cambridge, Cambridge University Press, 2006) 233.
7
ibid 245.
8
Reflecting on whether the imposition of constitutional values on private relations is a hallmark of trans-
formational constitutions leads me to wonder whether constitutions that impose duties on private persons
vis-à-vis the polity have any connection with their status as transformational. There are constitutions that
impose duties on private persons vis-à-vis the polity – duties of military service, duties to vote, or in Germany,
a duty to resist change in its fundamental commitments. Is imposition of such duties ‘preservative’, ‘statist’or
‘transformative’? Could they be both part of a transformation and an effort to preserve that transformation, in
the German case?
9
See, eg United States v Morrison 529 US 598 (2000).
10
Shelly v Kramer 334 US 1 (1948); see also Hurd v Hodge 354 US 24 (1947).
11
New York Times Co v Sullivan 376 US 254 (1964).
12
Curtis Publishing v Butts 388 US 130 (1967); Hustler Magazine v Falwell 485 US 46 (1988).
13
Snyder v Phelps 131 S Ct 1207 (2011) (upholding a lower court opinion overturning a jury verdict for com-
mon law tortuous injury for a family of a deceased soldier against persons who protested in hateful ways at the
soldier’s funeral).
have moved the constitutionalized discourse into the ‘private realm’ on the basis of an
idea that application of common law rules by the courts would threaten constitutional
rights.14
Finally, on the use of proportionality analysis as a hallmark of transformational con-
stitutions: there is no doubt that as a matter of positive fact one can observe this doctrine
being used in Germany, South Africa, Canada, Israel and many other leading courts.
But, as Professor Cohen-Eliya notes in discussing the ‘gamble’ involved in reliance on
values (and their use in the Adalah v Minister of Interior ruling),15 balancing may be
associated with a distinctly statist, authoritarian or preservationist posture – as the
Dennis case,16 or recent debates in the United States over the use of torture, might be
thought to illustrate.
As a normative matter, Professor Cohen-Eliya argues that instead of a value-oriented
‘transformative’ constitutional undertaking, the Israeli Court should re-conceive of its
constitutional task as being to advance a ‘democracy-enhancing’ view of what constitu-
tional law is intended to advance. As the paper recognizes, John Hart Ely’s theory has
been subject to critique, even by those who are enthusiasts, in part because it itself
depends on a set of value judgements that are relevant to defining democracy and its
defects. In riven societies, where there are relatively stable majorities and minorities, it
can be a particular challenge to sort out ‘process failures’ from the products of ‘ordinary
democratic politics’ that should be respected. For example, in Professor Cohen-Eliya’s
illustration (involving a challenge to exemption from military service), does it matter if a
majority votes against its own seeming self-interest because it has made a judgement that
the minority group needs and deserves the benefit or exemptions being conferred, or is
instead doing so because of interest group bargains among coalitions, including that
minority, that may entail adverse consequences in other areas for other minority groups?
Second, there may be a tension between Ely’s theory and the rule of law in some
instances. For example, if the action of the majority in favour of the minority were to
contravene a clear written norm – if for example a legislature dominated by male mem-
bers were to confer a benefit only on women and not on men – would that end the need
for judicial enquiry of whether a legal norm requiring equality of the sexes had been
met? While this example might argue for a more deferential standard of review, surely
there is a rule of law basis for a court to determine whether the statute is consistent with
the constitutional norm, notwithstanding who approved it.
Let me close this discussion by emphasizing an important point on which I find
Professor Cohen-Eliya quite persuasive. To the extent that there is concern about
backlash and the perceived illegitimacy of the court, Ely’s approach can in some cir
cumstances have real advantages. When a court makes a move that is understood as
increasing democratic accountability and participation – as in the Baker v Carr line of
cases in the United States17 – its legitimacy may in the long run be strengthened by the
constituency that benefits from access to the polls. The law/politics connection is in this
sense arguably a self-reinforcing one.
14
Query whether seepages and influences may run in both directions – that is, whether private law develop-
ments (at least in theory) hold the potential to influence public law understandings as well.
15
HCJ 7052/03 Adalah v Minister of Interior Affairs 61(2) PD 202 [2006].
16
Dennis v United States 341 US 494 (1951).
17
Baker v Carr 369 US 186 (1962).
210 Vicki C Jackson
III. PROFESSOR IDDO PORAT AND THE USE OF FOREIGN LAW IN

ISRAELI CONSTITUTIONAL ADJUDICATION
Professor Porat’s chapter paints an interesting and complex picture of the role of foreign
and international precedent in the Israeli cases, and offers a thoughtful analysis of seven
factors that contribute to Israel’s use of such precedent. Due to limits of time and space,
I comment only on three aspects of the positive analysis in the chapter: the ratio between
the use of foreign law in rights cases as compared to others; the use of ‘proportionality’
analysis; and the role of geopolitical isolation. I will then briefly go on to consider the
normative concerns Professor Porat identifies with ‘global constitutionalism’.
As his chapter suggests, the ratio of foreign sources cited in Israeli Supreme Court
cases is considerably higher than one would find in the US Supreme Court. In significant
or highly contested cases it is even higher. According to Professor Susie Navot’s research,
which Professor Porat discusses, in 31 per cent of the High Court’s constitutional cases
between 1985 and 1994 there were citations to foreign law; and according to her study,
which separately analyzed references in constitutional case law involving institutional
issues and individual rights issues, in individual rights issues the percentage goes up
much higher, to close to 70 per cent, while in ‘institutional’ constitutional cases the
percentage is something around 30 per cent.18
This result is not surprising, and accords with theoretical work I and others have done
comparing the use of foreign or international law in institutional as compared to rights
cases. I have speculated, in other work, that on structural constitutional issues –
especially of federalism – foreign law is less likely to be useful because of: (1) the highly
distinctive and interconnected balance typically struck on federalism issues (and perhaps
to a lesser extent on separation of powers schemes); (2) the very historically specific,
compromised nature of those institutional arrangements, which can make analogies to
other systems difficult to develop; and (3) the absence of international archetypes on
which other constitutions are modelled and which courts both national and supra
national may base their own judicial judgments.19
Second, on proportionality: I suggested above that proportionality may not be as
endemically connected to transformational constitutionalism as Professor Cohen-Eliya
suggested. Here, I want to suggest that proportionality analysis may not be as endemi-
cally connected to foreign law’s influence as many assume. The German Constitutional
Court, for example, so far as I am aware does not typically cite foreign cases; I do not
know its rate but would not be surprised if it was closer to the United States than to
Israel. Yet its use of proportionality analysis is well known, indeed, it is one of the lead-
ing courts in developing proportionality analysis. While some of the enquiries of propor-
tionality analysis lend themselves to considering foreign experience, so too does any
constitutional approach open to considering the likely consequences of interpretive
choices, which do not necessarily involve the structured form of enquiry or even the
overt balancing called for by the proportionality doctrine; moreover, categorical inter-
pretive approaches may find useful the discussions or views of other constitutional
democracies on the meaning of categories such as ‘speech’, or ‘religion’, or ‘privacy’.
18
Ch 11, text accompanying nn 20 and 21.
19
See, eg VC Jackson, Constitutional Engagement in a Transnational Era (New York, Oxford University
Press, 2010) 228–32.
Third, on the significance of geopolitical isolation. This is a very interesting insight in

this chapter. For it suggests that it is very difficult to be a constitutional democracy by
oneself; that having other forms of the same basic governmental and constitutional
structure as models is helpful to the distinctively domestic project of bringing it to suc-
cess for one’s own people. In other words, Professor Porat is suggesting an interrelation-
ship, an interdependence among the democracies of the world. So, questions: Why is
this? Is it hard to be the only constitutional democracy, in a region, or in the world? Is
this just a matter of institutional isomorphism – that is, the tendency of a dominant form
of institutional organization to be imitated (even if it is not functional)? Is it because
constitutional democracies in some more positive sense reinforce one another’s values,
or progress? If so, by what mechanisms?20 Or is it because constitutional democracies
will be more likely to come to the aid of other constitutional democracies to which they
feel a sense of connection?
On the normative questions, I agree with much of Professor Porat’s evaluation of the
relative risks involved.21 He is completely correct to emphasize the risks of ‘getting it
wrong’, because law – including constitutional law – is, as he says, ‘deeply embedded’ in
a broader legal system and a particular socio-legal and political and cultural context. I
raise only a small caveat to his discussion criticizing the Israeli Supreme Court in Kol
Ha’am for referring to Dennis without taking into account important differences in the
two contexts. That a reference disregards distinctions between two constitutional cul-
tures may not entirely condemn it: courts do not always have the time and resources that
academics have fully to explore the comparative setting, and must often rely on the work
of academics to assist in this. If the claim were made that the two contexts were similar
and that accordingly the Dennis approach should apply, Professor Porat’s critique would
have much substance; yet exactly what role Dennis played in the Kol Ha’am opinion is
not entirely clear, but appears relatively small.22 And in any event, as Professor Porat
20
For a suggestion that democracies experience ‘co-evolution’ of ideas on fundamental rights or values as a
result of the effects of transnational social movements, see R Dixon, ‘A Democratic Theory of Constitutional
Comparison’ (2008) 56 American Journal of Comparative Law 947. Professor Dixon develops a theory
for constitutional courts’ considering the developments in other countries based on co-evolution and on the
notion that there may be blockages in particular systems that prevent ordinary democratic politics from giving
expression to emerging majorities’ views. But putting aside this theory for judicial decision-making, is it pos-
sible that the process of free interchange about ideas, including ideas of governance, that is characteristic of
constitutional democracies, itself improves the discourse in other democracies, by opening up and expanding
and subjecting to competing perspectives the debate over public issues?
21
For discussion of objections from interpretive theories grounded in originalism, contractarianism, popu-
lar sovereignty, majoritarianism or representation-reinforcement, see Jackson, Constitutional Engagement
(n 19) 20–23; of objections from jurisprudential ideas about constitutional law as an expression of self-identity
or of law as organic or autochthonous, ibid 18–19, 24–25, 31–32; and of objections grounded in judicial discre-
tion, ‘cherry picking’, expertise, and the challenge of comparisons, ibid 26–27, 183–91. Other objections,
based on cultural exceptionalism, political resistance, principled disagreements or fear of cultural elites are
also discussed. ibid 28–30.
22
From the English version of the Israeli case that I was able to find on line, HCJ 73/53 Kol Ha’am v Minister
of Interior 7 PD 871 [1953] (in Hebrew): www.cfisrael.org/a554.html?rsID=405, Dennis appeared to play a
relatively small role in the opinion, with considerable discussion of the Holmes and Brandeis pro-free speech
dissents in earlier cases. The conclusion of Justice Agranat that reliance on the mere possibility of a dangerous
tendency was not enough to support the censorship, but rather the words ‘likely to endanger’ required that
there be a probability that the publication would lead to the harm, was, in its context, plainly a speech protec-
tive conclusion. In explaining why it was not adopting the ‘clear and present danger’ test, the judgment seemed
to rely more on the dictionary definition of the statutory word being interpreted, ‘likely’; and the Court sug-
gested that where harm was not imminent, a greater degree of caution should be exercised before restricting
speech. I would have said the major thrust taken from the US cases in the opinion was the importance in a
democracy of adopting speech-protective rules, and that the Dennis decision, cited briefly with a ‘cf’ cite to the
212 Vicki C Jackson
notes, the use made of the idea of ‘balancing’ in the Israeli context was as a speech-
protecting move, rather than, as in Dennis, a speech-threatening departure from the
‘clear and present danger’ test. This reinforces the point (which I make later, in connec-
tion with proportionality) that an apparently similar doctrine can be applied in quite
different ways by different courts.
Professor Porat makes an important argument that, of the risks that have been identi-
fied, perhaps the greatest lies in what he calls ‘global constitutionalism’. Although his
discussion about judges writing for a transnational audience emphasizes more the risks
than the potential benefits (eg of considering outside perspectives in promoting impar-
tiality in judging), I want to focus on Professor Porat’s concern, which is one I share, and
that is the risk of failing to pay sufficient attention to the democratic roots of constitu-
tionalism. In a recent review essay, I argued that some theoretical work in global con
stitutionalism, designed to describe emerging relationships, or desirable directions for
relationships between domestic and international law, towards concepts of ‘cosmopoli-
tan constitutionalism’,23 paid insufficient attention to the importance of democratically
legitimated and legitimating domestic sources of law.24 This point is conditioned by
today’s political contexts, in which the national state or even smaller units are far more
plausible locations for the exercise of democratic decision-making than are supra
national or international organizations. A question here is why, as Professor Porat
suggests, such concerns (of failing to attend to internal democratic sentiment through a
‘false sense of consensus’)25 would be a particular risk or a special danger in a small
democracy? Why would it not be easier in a small, rather than a large, democracy for
judicial and legal elites to stay in touch with local democratic opinion at the same time
that they become familiar with global views?
One final thought about the risks of global constitutionalism, as Professor Porat
discusses it: one aspect of globalization that I noted at the outset was the increased acces-
sibility and availability of information about legal systems all over the world. The
increased information creates a situation in which comparisons – well-informed or not
– are increasingly inevitable. Most jurists in the United States probably think they know
something about other legal systems, and implicitly make comparisons on various issues
with that assumed knowledge. Yet ‘knowledge’ acquired thus implicitly and without
conscious study and reflection (to say nothing of adversarial briefing) may be in error.
This possibility was vividly illustrated by the assertion, in Bowers v Hardwick,26 by
Burger CJ that homosexual sodomy was condemned ‘throughout the history of Western
civilization’, at a time several years after the European Court of Human Rights (ECtHR)
had decided that an Irish prohibition of sodomy was invalid under the European
Convention.27 This mis-impression was later corrected by the Court in Lawrence v
‘new approach of the majority opinion’ and Frankfurter’s judgment (cited for a speech-protective quotation
from Sir William Haley, and for a collection of authorities on the clear and present danger test) played a smaller
role.
23
See, especially, the argument and analysis by Kumm (n 2) 262.
24
See VC Jackson, ‘Paradigms of Public law; A Review of Ruling the World?’ (2010) 8 International Journal
of Constitutional Law 517–62 (agreeing with other scholars that ‘distance matters’ in the degree to which
mechanisms of democratic participation or accountability can function well).
25
n 18, part IVCiii.
26
Bowers v Hardwick 478 US 186, 196 (1986) (Burger, CJ, concurring).
27
Dudgeon v United Kingdom (1982) 4 EHRR 149.
Texas.28 The sequence suggests the importance of encouraging candid discussion of com-
parative views that jurists are increasingly likely to have, in order to avoid such errors.
IV. PROFESSOR MARGIT COHN AND PROPORTIONALITY ANALYSIS
In her chapter, Professor Margit Cohn identifies several important sets of analytical
questions in discussions about proportionality related to the difference between pro
portionality as a concept and proportionality as a doctrinal formula; the unacknow
ledged and acknowledged migrations of particular formulae; the difference between
proportionality as a general overarching principle and proportionality as a principle for
resolving human rights cases; and the difference between proportionality (or balancing)
and consequentialism. She makes a number of telling points. For example, drawing in
part on her own earlier scholarship, she argues that the very complexity of the prevailing
doctrinal formulation can be understood as designed to give the appearance of a formal-
ist, scientific reasoning process that is remote from the political choices that its deploy-
ment is intended to obscure. A question this account raises is whether the particular
form of complexity matters, on this account, or only that the doctrinal formula has
several steps that are engaged with in their application.29
Professor Cohn also weaves an interesting narrative about the migration of the three
pronged formula from Germany and Canada, suggesting that Canada borrowed in an
unacknowledged way from Germany, possibly as a result of the influence of Joel Bakan
when he was a law clerk in the Canadian Supreme Court after having studied in Europe.30
She points out the silence in Britain about the German, or European, origins of the
proportionality analysis it now uses, noting in particular the British court’s reliance on
decisions of national courts of past or current members of the Commonwealth rather than
on decisions of the ECtHR. The symbolic significance of borrowing from other national
courts, rather than from Strasbourg or Germany, in the complex relations the UK has had
with the EU and the European Convention is worthy of the focus she brings to it.
There may be multiple factors behind this phenomenon. First, one should not neglect
the possibility that judges may be making these choices implicitly, without self-
awareness, that is, without consciously deciding not to cite ECtHR jurisprudence; yet
what ‘comes to mind’ may nonetheless be influenced by sets of strategic concerns.
Second, identification with other Commonwealth countries, as well as perhaps a greater
sense of familiarity with the style of opinion writing, may make those opinions feel eas-
ier to use than decisions of the German Constitutional Court or the ECtHR. Third,
some degree of resistance to the idea of the Europeanization of Britain, may be in play,
as in Judith Resnik’s idea of ‘law as affiliation’, which implies that what is cited may be
a form of ‘disaffiliation’ as well.31 Finally, in referring to other national courts, rather
28
Lawrence v Texas 539 US 558 (2003).
29
A further question might be to explain what differentiates the simpler from the more complex proportion-
ality formulae used by the European courts: are there different incentives to engage in greater or lesser degrees
of complexity in formulating doctrine?
30
Ch 13, text accompanying n 43. But cf D Grimm, ‘Proportionality in Canadian and German Constitutional
Jurisprudence’ (2007) 57 University of Toronto Law Journal 383, 384 (noting the possibility of influence from
a recent US Supreme Court decision on Canada’s initial formulation of the proportionality test, while empha-
sizing the possibility of German influence).
31
J Resnik,‘Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-
State’ (2008) 6 International Journal of Constitutional Law 33.
214 Vicki C Jackson
than to Strasbourg, there may be an implicit sense of greater control over one’s own
domestic law; one is not risking being read as acknowledging the binding force of inter-
national or supranational norms, as the Australian debate over the citation to inter
national law (which is controversial) as compared to foreign law (which is much less so)
suggests might be possible.32
But in the rest of this comment, I want to focus on the difference between proportion-
ality as an idea or concept, and proportionality as a particular doctrine, and its relation-
ship to the distinction between systems that use proportionality as a principle for
resolution of rights cases or as a more general principle, two of the very interesting
distinctions drawn in the Cohn paper. Her argument made me want to understand bet-
ter the significance of these distinctions for more general understanding of the role of
proportionality. Is ‘proportionality’ when used as a general principle of law similar to or
different from its use in resolving ‘rights’ cases?33 Very tentatively, I will suggest that
proportionality – though with the same name, or even the same doctrinal formulae –
may actually serve very different functions in these two areas, or in cases that align, to
some degree, with the distinction Professor Cohn suggests between these two areas.
My suggestion, albeit tentative, is that proportionality as a concept applied to rights
– or at least as applied to some rights – has the distinctive possibility of providing a doc-
trinal mechanism to bring law in books closer to a felt sense of justice. Many would
agree that the purpose of legal systems is to advance justice; yet many others share
the cynical or ‘realist’ view of Oliver Wendell Holmes, who insisted that talking about
‘justice’ means ‘shirking thinking in legal terms’.34 The insistence on a separation
between law and justice is a hallmark of most jurisprudential schools. And yet law that
strays too far from a widely held sense of justice can lose its socio-legal legitimacy,35 and
thereby its capacity to serve rule of law functions.
Thus, for example, in evaluating the constitutionality of punishment, many legal sys-
tems have adopted some form of proportionality review. The operation of this form of
review holds out the possibility of bringing the coercive force of law, as it metes out
punishment in the criminal justice system, closer to broader understandings of justice
and morality. True, there will often be contests about these issues, as divergent concep-
tions of justice exist.36 But there may be overlap between the results required by different
conceptions of justice, and to this extent application of legal standards of proportional-
ity may well move law closer to justice.
In the United States, proportionality is not regarded as a general tool of constitutional
analysis, at least not by a majority of the court. Yet traces of proportionality as a con-
cept can be found, especially in the court’s capital sentencing jurisprudence. Thus, in
32
See, eg Al-Kateb v Godwin [2004] HCA 37 (compare the opinions of McHugh and Kirby, respectively).
For discussion, see Jackson, Constitutional Engagement (n 19) 34, 300 fn 82, 362 fn 51.
33
While Professor Cohn’s discussion of proportionality as a ‘general principle’ focused primarily on its use
in administrative law settings, where claims of fairness in the administration of programmes vis-à-vis individu-
als were at stake, I focus on its use as a ‘general principle’ particularly in disputes over allocations of powers.
34
See letter from Oliver Wendell Holmes to Dr Wu, in OW Holmes and HC Shriver, Oliver Wendell Holmes:
His Book Notices and Uncollected Papers (New York, Da Capo Press, 1936) 201, quoted in R West, ‘Re-Imagining
Justice’ (2002) 14 Yale Journal of Law and Feminism 333 (‘I hate justice’, Holmes wrote. ‘I know that if a man
begins to talk about that, for one reason or another he is shirking thinking in legal terms’).
35
See RH Fallon Jr, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1787.
36
For thoughtful discussion of the competing conceptions of ‘proportionality’ that may exist even as to sen-
tencing for crime, see PS Karlan, ‘“Pricking the Lines”: The Due Process Clause, Punitive Damages, and Capital
Punishment’ (2004) 88 Minnesota Law Review 880.
Coker v Georgia37 the Court held (by a seven to two vote) that the death penalty could
not constitutionally be imposed for the crime of rape of an adult. For the plurality of
four, the death penalty was ‘excessive’ and ‘grossly disproportionate’ as a punishment
for rape of an adult person, based on both the actions of most state legislatures in reject-
ing the death penalty for rape and the Court’s own ‘independent’ judgment;38 for Powell
J, the death penalty was ‘ordinarily’ a disproportionate and hence unconstitutional pun-
ishment, but he would have distinguished cases of ‘aggravated rape’ in which ‘victims
are so grievously injured physically or psychologically that life is beyond repair’.39 Even
the two dissenters ‘accept that the Eighth Amendment’s concept of disproportionality
bars the death penalty for minor crimes’.40
Although there is some reason to think that on some kinds of matters there are close
to universal intuitions of morality, perhaps grounded in a universal ‘moral grammar’,
that are reflected in legal doctrines or provisions,41 there are many possible objections to
the claim that proportionality helps bring law closer to justice. It might be objected that
there is no sufficient agreement on what justice means to provide any form of constraint
on judicial decisions, or that justice is not connected to socio-legal perceptions of moral-
ity, or that there is too little overlap between competing and important and different
conceptions of justice.42 On any of these accounts, proportionality analysis cannot
achieve the effect of bringing law closer to justice; at best its ‘bridging’ possibilities are
between law and contestable views of public morality that contribute to socio-legal
legitimacy. This bridging effect, even if shorn of its claims to ‘justice’, may still be a rea-
son to think proportionality is a useful analytical approach if it provides for a structured
and more transparent way for courts to reason.
Moreover, even if proportionality review may provide a way of bringing law closer to
important conceptions of justice, proportionality review on ‘human rights’ or individual
constitutional rights may not always be the best tool. One might here want to distin-
guish between rights that are regarded as derogable, and rights that are regarded as non-
derogable. A non-derogable right requires categorical reasoning; if ‘torture’ is, in a legal
system, always prohibited,43 proportionality analysis will be an insufficient tool – not-
withstanding the strong pragmatic claims made by those who would defend torture in
some instances.
One might also want to consider whether there are differences in situations involving a
conflict between individual rights on the one side and general or collective public interests,
37
Coker v Georgia 433 US 584 (1977).
38
ibid 597 (plurality opinion). Justices Brennan and Marshall also concurred in the judgment. Ibid 600–01
(explaining their views that the death penalty is always prohibited by the Eighth Amendment).
39
ibid 603 (Powell J, concurring in the judgment and concurring and dissenting in part).
40
ibid 604 (Burger CJ, with Rehnquist J, dissenting).
41
See J Mikhail, ‘Is the Prohibition of Homicide Universal: Evidence from Comparative Criminal Law’
(2009) 75 Brook Law Review 497 (collecting sources in cognitive sciences, experimental ethics, and compara-
tive criminal law).
42
See, eg Robin West’s effort to describe three very different understandings of ‘legal justice’, which she
defines as meaning treating like cases alike. R West, ‘Is the Rule of Law Cosmopolitan?’ (2000) 19 Quinnipiac
Law Review 259 (arguing that there are three different models of legal justice, so defined; a tradition oriented
understanding of legal justice, which values stare decisis; a libertarian model of treating likes alike, which val-
ues contract and market relations; and an egalitarian or communitarian view, which values human equality not
based on national state lines).
43
See, eg Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention
on Human Rights, as amended), Art 3 (‘No one shall be subjected to torture or to inhuman or degrading treat-
ment or punishment’) and Art 15 (prohibiting derogations from Art 3 even in time of war or public emergency).
216 Vicki C Jackson
on the other, and situations in which rights of different individuals come into conflict, as
where road closures impair some citizens’ rights of mobility and freedom of movement but
at the same time, at least arguably, protect the rights of others to practice their religion.44
In these latter cases, one could imagine a decisional process in which the enquiries as to
‘minimal impairment’ and ‘proportionality as such’ may need to be doubled, or viewed
through the perspective of each affected party, and not merely the party who challenges
government action as burdening his or her rights.45 On the other hand, courts often apply
proportionality analysis only to examine infringement on the rights of those challenging
the regulation, incorporating the ‘interests’ of others in its analysis of the government’s
justifications for action. Whether the individual rights that are being protected or advanced
by government regulation in such cases should be addressed separately as ‘rights’ or con-
sidered only within the rubric of government justification may depend in part on whether
the state is conceived to have positive duties to protect such rights, or is only optionally
empowered to protect them.
Nonetheless, in many cases involving protected individual rights, proportionality as a
tool has benefits, in requiring governmental justifications for action, in encouraging the
protection of rights by limiting intrusions thereon, and in bringing the law close to
broader understandings of just government or right resolutions. But if proportionality
has utility with respect to a wide range of individual rights and assists in bringing the
law closer to public understandings of justice, with respect to other kinds of constitu-
tional issues – those going to structure and allocation of powers – proportionality as a
concept may have quite a different function. In earlier work, I suggested that propor-
tionality analysis has a more limited application to structural constitutional issues of
federalism, and other structural issues going to the allocation of powers vertically or
horizontally in a polity.46 Let me revisit this suggestion in the context of Professor Cohn’s
analytical distinction between proportionality as a general principle and proportionality
as it is used in human rights cases.
44
For a case involving such a conflict – at least of interests – see HCJ 5016/96 Horev v Minister of
Transportation 51(4) PD 1 [1997] (in Hebrew); cf Attorney General v Irwin Toy [1989] 1 SCR 927 (Can) (sug-
gesting that more deference is accorded, in applying proportionality review, to legislation that seeks to mediate
between the rights or interests of two groups in society than to legislation in which the government is the prin-
cipal opponent, as it were, of the individual challenger); ibid 993 (quoting Dickson CJ in R v Edwards Books
and Art Ltd [1986] 2 SCR 713, 779 (Can): ‘the courts must be cautious to ensure that [the Charter] does not
simply become an instrument of better situated individuals to roll back legislation which has as its object the
improvement of the condition of less advantaged persons’). But the more problematic question is whether one
can distinguish cases involving ‘rights’ on both sides from other rights cases; does the ‘public interest’ always
entail protection of the rights of some members of the public, or are there cases in which the public interest
advances merely ‘interests’ and not rights?
45
cf S de Vries, ‘Balancing Fundamental Rights with Economic Freedoms According to the European Court
of Justice’ (2013) 9 Utrecht Law Review 169, 190–91 (discussing ‘double proportionality test’, argued for in the
opinion of Trstenjak AG, delivered on 14 April 2010, in Case C-271/08 Commission v Germany [2010] ECR
I-07091, paras 189–91). De Vries characterizes ‘double proportionality’ as an analysis not ‘confined to an
assessment of the appropriateness and necessity of a restriction of a fundamental freedom for the benefit of
fundamental rights’ protection’ but also including ‘assessment of whether the restriction on a fundamental
right is appropriate and necessary in light of the fundamental freedom’ (ibid). For an arguably comparable
analysis focusing on the marginal intrusions on the physical security and livelihood rights of Israelis and
Palestinians, respectively, to different approaches to a national security problem, see HCJ 2056/04 Beit Sourik
Village Council v Government of Israel 58(5) PD 807 [2004] para 40 (in Hebrew).
46
VC Jackson, ‘Being Proportional about Proportionality: A Review of David Beatty’s The Ultimate Rule of
Law’ (2004) 21 Constitutional Comment 803. Portions of the several next paragraphs are drawn from this earlier
work.
Proportionality analysis is not uncommon in federal systems; it has been used in

Canada, and it has recently been developed in the United States as an aspect of Fourteenth
Amendment analysis of the scope of federal power. As David Beatty explained its use in
Canadian federalism decisions, ‘proportionality’ review entailed examining the reason-
ableness of federal legislation, for the purpose of sustaining as much as possible the
concurrent capacities of both levels of government, provincial and federal.47 In a recent
decision, McLachlin CJ wrote that in evaluating challenges to federal statutes as ultra
vires federal constitutional power, the Canadian Court has used
a rational, functional test to describe the required connection, with the caveat that a test of
necessity will apply where the encroachment on the jurisdiction of the other level of govern-
ment is substantial . . . The idea of proportionality underlies the idea of a rational and func-
tional standard for some cases and standard of necessity for others. The more an ancillary
provision intrudes on the competency of the other level of government, the higher the threshold
for upholding it on the basis of the ancillary powers doctrine.48
This doctrine, under which ‘ancillary provisions’ are subjected to a different required
level of justification depending on how much they are seen to intrude on the competency
of other levels, may be applied as well to the review of provincial legislation.49
In systems that do not have specific concurrent powers, proportionality may nonethe-
less be useful in analyzing federalism questions that turn on the plausibility of the con-
nection between a measure and an enumerated power, as in the United States’ Fourteenth
Amendment case law.50 Where the means chosen are grossly disproportionate to the
asserted goal, the disproportion may justify a finding that the measure is beyond the
scope of the enumerated power. But it is hard to say that proportionality in such cases
corresponds to a public sense of justice, or even views of good governance. In such cases
proportionality – or disproportionality – is being used in service of a certain kind of cat-
egorical rule of law goal, the categorical goal being to help sustain either exclusive or
concurrent powers in multiple branches or levels of government. These decisions are
not unconnected to human rights, equality and human liberty: for example, limiting
jurisdiction over certain kinds of prohibitory laws to subnational levels may enhance
liberty by creating the possibility of exit and options to live in states with different
regimes; upholding national power to protect minorities may enhance their equality to
a far greater extent than if legal protections are needed to be won state-by-state. But
these allocations are not systematically connected to the advancement of human rights
47
ibid 844 (citing Beatty, at 25–27).
48
Reference re Assisted Human Reproduction Act [2010] 3 SCR 457, para 148 (Can). The Chief Justice and
three others would have upheld all aspects of the federal statute, concluding that any intrusions on provincial
powers were relatively small and justified under the rational, functional connection test. Four other justices
found several provisions of the Act to exceed federal power, as did a fifth justice writing separately; the four-
justice opinion alluded to a similar idea, without using the language of proportionality. See ibid para 275
(Lebel and Deschamps JJ) (‘According to the General Motors test, the more serious the overflow [of ancillary
provisions in a federal statute], the closer the relationship between the impugned provisions and the otherwise
valid statute must be. In the instant case, our review of the effect of the impugned provisions has already shown
that, if those provisions are viewed in isolation, the overflow is serious. Given the extent of the overflow in this
case, we cannot find that an ancillary power has been validly exercised unless the impugned provisions have a
relationship of necessity with the rest of the statute’).
49
For application of the ‘ancillary’ doctrine, in its ‘most rigorous form’, to uphold as ‘necessarily inciden-
tal’, the validity of a provision in provincial legislation authorizing assisting foreign governments in investiga-
tions of securities fraud, see Global Securities Corp v British Columbia (Securities Commission) [2000] 1 SCR
494.
50
See City of Boerne v Flores 521 US 507 (1997); see Jackson, Being Proportional (n 46) 844.
218 Vicki C Jackson
relating either to liberty or equality.51 Perhaps, however, proportionality in these cases

could be understood to provide an appeal to juridical/governmental communities, an
effort to identify or draw on overlapping areas in the practical understandings of rele-
vant juridical communities.
Even if some kinds of allocation of powers decisions are well-served by ‘proportional-
ity’ concepts of ratcheted levels of increasing justification for more severe departures or
intrusions, there are other prototypical ‘federalism’ questions that are unlikely to be best
served by application of a generalized proportionality enquiry. First, aspects of most
federal systems may involve very specific compromises on which national commitments
to union are thought to rest.52 For example, in the United States the two Senators per
state rule reflects at once a wild deviation from more general constitutional requirements
of ‘one person one vote’, and a clear decision to impose a specific rule to protect the
powers of all of the states in the national government. Unless one is prepared to argue
that the clarity of the constitutional text must yield to later constitutional commitments,
it is difficult to see any role for proportionality in analyzing such a question, were it to
come before a court. 53 In Canada, the Supreme Court has similarly rejected a challenge,
on equality grounds, to the failure of Ontario to provide funding to Jewish religious
schools on the same terms as Catholic schools are funded, based on the founding com-
promises of the 1867 Constitution Act.54 Founding compromises of federal systems, to
the extent that they are clearly written in constitutional text and confirmed by decades
of practice, simply may not yield to any interpretive moves, including arguments based
on proportionality; amendment may be required.
A second possible limitation on the use of proportionality analysis in structural cases
has to do with the degree to which present occupants of public offices of the government
entities involved will be fully ‘representative’ of the interests of the office or level of gov-
ernment on the issues before the court. On some accounts of proportionality, such as
that of David Beatty, it is important to focus on ‘the perspectives of those who are most
affected by whatever law or government action is under review’ as parties before the
court.55 Concrete litigation over federalism issues may do less well in capturing the lon-
ger term structural interests that divisions of government powers are designed to advance
than individual parties do in capturing unfair burdens imposed on particular individuals
by government regulations claimed to intrude on individual rights. Individuals who
51
But cf PG Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97
American Journal of International Law 38. It might be suggested that, in general, liberty claims are advanced
by subsidiarity principles, keeping power at the lowest level, and equality claims conversely by keeping power at
the most central level. But these possibilities are contingent on the nature of the politics at each of these levels:
if the central government is dominated by a racist party, equality will be served by allowing the exercise of
power at decentralized levels and precluding it at national levels, etc. It is possible that allocative decisions
might have a systematic connection to values of democracy; participation is easiest in smaller units, generally;
but to the extent democracy embraces a right to participate in decisions that affect one, externalities in a glob-
ally connected world will often exceed the bounds of existing national states.
52
Some of the next few paragraphs are drawn from Jackson, Being Proportional (n 46) 842–51.
53
See VC Jackson, ‘Multi-Valenced Constitutional Interpretation and Constitutional Comparisons: An
Essay in Honor of Mark Tushnet’ (2008) 26 Quinnipiac Law Review 599, 658 (arguing that rule of law consid-
erations should preclude interpretive evolution that ignores such clear and central textual commitments).
54
See Adler v Ontario [1996] 3 SCR 609 (Can); but cf Waldman v Canada (1999) UN Doc CCPR/C/67/694/1996
(rejecting Canada’s reliance on s 93 of the 1867 Constitution Act as a defence when claiming violation of the
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171).
55
DM Beatty, The Ultimate Rule of Law (Oxford, Oxford University Press, 2004) 166.
challenge laws on structural grounds, as in cases such as United States v Lopez,56 or

United States v Morrison,57 do so opportunistically.58 And although governments may
participate in litigation, there are difficulties in relying on litigation positions – typically
under the control of a handful of executive branch lawyers – for a stable account of a
state government’s ‘interest’. The constitutional interests at stake in federalism ques-
tions may be thus, at least in some sense, not fully represented in litigation before a
court.
Likewise, on structural issues of separation of powers, proportionality analysis based
on the interests articulated by the parties before the court may also have a relatively
smaller role to play. And there are important distinctions between challenges to execu-
tive and challenges to legislative action that the concept of proportionality will not
adequately reflect. In some systems, at least on some issues, executive authorities or gov-
ernments may be found to lack constitutional authority to take action without legisla-
tive authorization; this is not a question of proportional intrusion or burden but a
question of authority. Both democratic and rule of law values are served by require-
ments of legislative authorization.59 Although courts may well be inclined to find execu-
tive action to be ultra vires when it appears to impose disproportionate or otherwise
suspect burdens, this does not reduce the requirement for legislative authorization to
simply an aspect of ‘proportionality’.60
The broader point I want to come to is this: not only does proportionality analysis not
fit, as well, with the range of constitutional problems that arise in vertical and horizontal
separation of powers issues as it does with individual rights issues, but the function of
proportionality analysis in these two kinds of cases seems different as well. In the indi-
vidual rights cases, proportionality can function to bring law closer to justice – or to
popular understandings of justice. But on structural issues as they arise in judicial deci-
sions the questions of justice are always at a certain remove from the issues before the
court. Applying proportionality to determine a federalist balance of power issue may or
56
United States v Lopez 514 US 549 (1995).
57
United States v Morrison 529 US 598 (2000).
58
As I have noted earlier, whether one’s conduct is being regulated by a state, or by the Federal Government
is not likely to make that much of a difference to the private entity or person who challenges the law; their liti-
gation interest is in defeating the claim to power of the government under whose criminal statute they are
prosecuted. Jackson, Being Proportional (n 46).
59
As Professor Lorraine Weinrib has argued her vision of post-World War II constitutionalism: ‘Postwar
rights-protecting constitutions do not . . . authorize the judiciary to treat rights as absolute negations of other-
wise plenary state authority. Nor do they simply transfer to the courts the political power or prerogatives of
elected representatives. They presuppose limited government with separation of powers that maximizes the
complementary institutional strengths of legislatures, the executive and the courts. Elected representative bod-
ies continue to act as responsible policy-makers, both empowered and disciplined by the constitutional instru-
ment. The executive acts in compliance with the rule of law’. L Weinrib, ‘Constitutional Conceptions and
Constitutional Comparativism’ in VC Jackson and M Tushnet (eds), Defining the Field of Comparative
Constitutional Law (Westport, Praeger, 2002) 16–27. Although it may be that issues of authority are dealt with
within formal proportionality doctrine, as part of the initial predicate, in Canada for example, of being
‘authorized by law’ as the first step in Section 1 analysis, the concept that is doing the work here is not the
concept of proportionality.
60
cf R Alexy, ‘Constitutional Rights, Balancing and Rationality’ (2003) 16 Ratio Juris 131, 131 (noting ‘two
classes’ of norms in modern constitutions, the first being those that ‘constitute and organize legislative, adjudi-
cative and administrative power, the central theme of which is ‘empowerment’, as distinct from the second class
of norms that ‘constrain and direct public power’, of which ‘constitutional rights are the most prominent’).
These classes are not quite so distinct, insofar as norms that empower might be understood at once also to
constrain. The constraint arising out of the limits of a granted power is what I refer to above as authority or
authorization.
220 Vicki C Jackson
may not advance ‘justice’, which is achieved through the actions of governments empow-
ered to act rather than in the determination of what power the government units have;
or to put it differently, the determination of which level of law controls is only con
tingently connected to questions of justice, and may vary from level to level with the
politics of the day. Proportionality analysis may achieve ‘balances’ between con
stitutional interests of executive and legislative, or between the centre and periphery,
but whether these correspond to a widely held sense of justice (or even of how good gov-
ernment operates) is a real question. If unanchored by ties to widely held conceptions of
justice, does application of proportionality in the context of allocation of powers offer
too broad a lever for judicial discretion?
If courts cannot be understood as bringing law closer to ‘justice’ in applying pro
portionality analysis to the resolution of power conflicts among levels or branches of
government, the question arises, how should we understand what this tool does? I sug-
gested earlier the possibility that instead of providing bridges to popular socio-legal
understandings of morality and fairness, proportionality in the setting of institutional
or power allocation questions may bring law into greater alignment with the more
governance-informed understandings of juridical communities. Some other alternatives:
can we think of proportionality – in its more complex doctrinal formulations – as a kind
of de-biasing tool, one designed to advance beyond the mere pragmatism of consequen-
tialism, to discipline a judge’s first intuitions about the best way to resolve intergovern-
mental power conflicts, by offering a structured set of enquiries? Can we think of it as a
good governance tool, designed to promote reasoned decision-making generally by all
levels and branches of government? To promote a ‘pro-constitutional’ or ‘pro-federal’
attitude among the different parts of governments with such enquiries?
And, to come back to Professor Cohn’s chapter, to what extent does the deployment
of proportionality as a general principle of analysis in public law impact its doctrinal
form, or its application, on the individual rights cases with which it may in other systems
be uniquely associated? Or do the courts, while deploying a common rhetorical rubric,
apply the doctrine with greater or lesser degrees of stringency based on the type of con-
stitutional issue and, as among rights, the perceived fundamentality of the rights?
As good scholarship does, these chapters provoke questions like this for further reflec-
tion and research. To circle back to my starting comments, it is important to recognize
the complexity of the very categories by which we demarcate our research agendas –
whether they be constitutional law, globalization, or proportionality. And in thinking
about these concepts, a couple of words of caution.
First, one must be careful not to assume that the adoption of the same doctrinal for-
mulations – as shown in Professor Cohn’s chapter – necessarily means that the doctrine
will operate in the same way, or that application of the doctrine will or should come to
the same result in different polities. As Dieter Grimm has shown, the Canadian and
German proportionality formulae are applied with emphasis on different parts of the
doctrinal test, with the Canadian Court focusing more on the ‘minimal impairment’ part
of the analysis and the German Court more on the third step of analyzing the propor-
tional benefits and burdens of the challenged law.61
As to differences in application, consider whether the reasoning of the ECtHR in the
Turkish veil ban case does not invite the possibility of a different result in another kind
61
See Grimm (n 30) 387–88.
of European state. In the course of its reasoning, the Court referred to the Turkish
Government’s concern about the presence in Turkey of ‘extremist political movements
. . . that seek to impose on society as a whole their religious symbols and conception’ as
a reason that helped justify Turkey’s very rigid insistence, at that time, on the secular
appearance of persons in university spaces.62 If other European states without such
extremist movements adopt veil bans, a different judgment might, in theory, follow.63
The second caution is a response to a question that may be implicitly running through
all of the chapters in this book, and that is the possibility of the comparative study of
constitutions and constitutional law yielding insights into what we might call trans
national constitutional principles, rules, or doctrine.64 Scholarly attention to the possibil-
ity of what David Law has called ‘generic constitutional law’65 has grown in recent years,
as has the interest more generally in claiming ‘constitutional’ status for international and
supranational legal regimes.66 The caution is this: constitutions draw much of their legit
imacy, their gravitas and their roots, from democratic acceptance. This is not the only
source of the legitimacy, or weight, of domestic constitutions; a triad of democratic con-
sent or acceptance, of good and/or just principles (which might be thought to include
equality and liberty, decision-making through fair procedures and public reason, and
independent courts), and of the rule of law, are at the heart of commitments to constitu-
tionalism. Transnational practice can be of real value in helping to understand the most
important values that should inform all constitutions, as well as those values or principles
62
Sahin v Turkey (2005) 44 EHRR 5, para 115 (Grand Chamber quoting from prior Chamber’s decision).
The ECtHR’s acceptance of this particular justification was subject to harsh critique, in the dissent, which sug-
gested that secularists in Turkey, including Sahin, support religious freedom to veil (Tulkens J, dissenting). For
subsequent developments in Turkey, see VK Vojdik, ‘Politics of the Headscarf in Turkey: Masculinities,
Feminism and the Construction of Collective Identities’ (2010) 33 Harvard Journal of Law and Gender 661
(citing and discussing 2008 Turkish Constitutional Court decision, E 2008/16, K 2008/116 (22 October 2008,
Official Gazette No 27032). The June 2008 decision of the Turkish Constitutional Court, holding unconstitu-
tional an amendment to the Constitution designed to allow women to wear veils in universities, did so under
Arts 4 and 2 of the Constitution, which together provide that the requirement that Turkey be a ‘democratic,
secular and social state’ is not subject to amendment. See AU Bali, ‘The Perils of Judicial Independence:
Constitutional Transition and the Turkish Example’ (2012) 52 Virginia Journal of International Law 235, 253–
54 and fns 59, 61 (also suggesting that the constitutional Court in effect reinterpreted the scope of its own
powers under Art 148 of the Constitution from procedural to substantive review of constitutional amend-
ments). Such a decision complicates the constitutional process of political response. Notwithstanding the
Constitutional Court’s 2008 decision, it was reported as of late 2010 that many universities have dropped the
ban; the government in power then opposed the ban, and took steps to add judges to the Constitutional Court
(presumably who would be more in sympathy with its views); and the opposition continue to disagree on
whether the ban should be maintained. See, eg J Head, ‘Quiet End to Turkey’s College Head Scarf Ban’ BBC
News, 31 December 2010: www.bbc.co.uk/news/world-europe-11880622; J Head, ‘Referendum Result Fails to
Mask Turkey’s Divisions’, BBC News, 13 September 2010: www.bbc.co.uk/news/world-europe-11288360.
However, the situation remained in flux as of early 2011. See, eg JN Couvas, ‘Headscarf Returns to Trouble
Turkey’, Inter Press Service, 31 January 2011: ipsnews.net/news.asp?idnews=54292 (stating that in January
2011, the Council of State ruled that women could not wear headscarves during university exams).
63
But cf Dogru v France (2009) 49 EHRR 8 (rejecting a challenge to a French school requiring a Muslim girl
to remove a headscarf for physical education classes).
64
I should make clear that none of these chapters argue for the adoption of any particular transnational
normative framework. Rather, it is an implicit question that might arise in response to these chapters: must a
‘transformative’ constitution include the normative elements identified in Professor Cohen-Eliya’s chapter? In
Professor Porat’s chapter, there is a sceptical normative question about the risks of ‘global constitutionalism’.
And readers of Professor Cohn’s chapter might well be inspired to ask whether ‘proportionality’ is a universal
approach, as a concept or in its particular doctrinal formulation?
65
D Law, ‘Generic Constitutional Law’ (2005) 89 Minnesota Law Review 652.
66
See, eg JL Dunoff and JP Trachtman (eds), Ruling the World? Constitutionalism, International Law, and
Global Governance (Cambridge, Cambridge University Press, 2009), reviewed in Jackson, ‘Paradigms’ (n 24).
222 Vicki C Jackson
that can but need not be pursued consistent with having a constitutional democratic state.
It can also offer insights on a range of doctrines or institutions, and their possible con
sequences. At the same time, transnational practice might have a ‘dark side’, as when
transnational consensus or rule develops that is nonetheless antithetical to other valuable
normative demands of domestic constitutions.67
To think of the lessons of transnational comparison as leading to transnational legal
doctrine in constitutional law – in the sense of a ‘generic’ set of analytical tools, or, more
ambitiously, a unified or harmonized body of legal rules, enforceable by courts – could
threaten the other parts of the constitutionalist triad – democratic consent, and the rule
of law. On proportionality, I have argued that as a structured set of questions, it is a
highly useful tool for constitutional analysis in some areas,68 across a wide range of con-
stitutions, but cannot supplant other kinds of questions, in particular, of democratic
legitimacy and legal authority. And, I suggest, it is premature at best, and possibly incon-
sistent with the democratic premises of constitutionalism, to try to develop definitive
normative frameworks for constitutional law at the transnational level; rather, the focus
should be on the explication of transnational constitutional values, recognizing a range
of approaches towards their achievement and a range of real differences in how those
concepts are applied, whether one is considering the value of independence in judging,
or how to accommodate tensions between values of liberty and of equality.
67
See, eg KL Scheppele, ‘Other People’s Patriot Acts: Europe’s Response to September 11’ (2004) 50 Loyola
Law Review 89 (raising concerns about UN Security Council Resolution 1373 for failing to comply with funda-
mental due process norms).
68
See Jackson, Being Proportional (n 46) 842–57.
Part 4
Balancing in Israeli Constitutional Law

15
Constitutional Proportionality:
(Appropriate) Guidelines*
MORDECHAI KREMNITZER
I. INTRODUCTION
P
ROPORTIONALITY IS PROBABLY the most important principle in Israeli
law in general and in public law in particular. The Israeli approach to proportion-
ality originated in administrative law. With the adoption of the Basic Laws
concerning human rights – Basic Law: Human Dignity and Liberty, and Basic Law:
Freedom of Occupation – the principle of proportionality, together with its subtests,
was ‘imported’ into Israeli constitutional law. Proportionality is currently applied in
many fields of law, and its development in the constitutional context has left its mark
upon those fields as well.1
As a central component of the Limitation Clause of the Basic Laws, proportionality
constitutes a normative framework for establishing the extent to which constitutional
rights can be limited by Knesset (Israeli Parliament) legislation and other governmental
actions.2 Constitutional proportionality is formally anchored in the Limitation Clause,
which provides that an infringement of a constitutional right can be justified only when
made
by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an
extent no greater than is required, or by regulation enacted by virtue of express authorization
in such law.3
The rules of proportionality define and give practical effect to the requirement that
the infringement be ‘to an extent no greater than is required’.
* This chapter is based on a more comprehensive article to be published in a book on proportionality by the
Israel Democracy Institute. I thank Roey Sasson for his dedicated assistance.
1
For a comprehensive survey of the history of proportionality in Israel and the world, see A Barak,
Proportionality – Constitutional Rights and their Limitations (Tel-Aviv, Nevo Publishing, 2010) 225–62 (in
Hebrew). Proportionality in Israel developed in a manner resembling its development in German Law, where it
developed out of the examination of acts pertaining to police activity. See L Hirschberg, Der Grundsatz der
Verhältnismäßigkeit (Göttingen, Schwartz, 1981) 2–3; see also, K Stern, Das Staatsrecht der Bundesrepublik
Deutschland Band III/2: Allgemeine Lehren der Grundrechte, 1st edn (Munich, CH Beck, 1994) 766–67.
2
See, eg HCJ 4330/93 Ganam v Israeli Bar Association 50(4) PD 221 [1996] para 10 of Court President
Barak’s opinion (in Hebrew): ‘Any governmental action must be proportionate. No administrative act may
infringe values worthy of protection in excess of what is necessary . . . these general principles – which apply to
all administrative acts – will naturally also apply to secondary legislation’ (emphasis added).
3
Basic Law: Human Dignity and Liberty, s 8; Basic Law: Freedom of Occupation, s 4.
226 Mordechai Kremnitzer
The prevailing view is that the proportionality principle is composed of three subtests,
developed to give concrete meaning to the vague phrasing of the Basic Law. The first is
the rational connection test (suitability test), according to which there must be a rational
connection of suitability between the proper purpose (the objective) and the arrange-
ments instituted for its realization (the means); the second is the test of the least restric-
tive means (necessity test), according to which the means chosen for realizing the purpose
may infringe a basic right only if they impair the right as little as possible; the third is the
test of proportionality stricto sensu, according to which there must be an appropriate
relationship between the benefit gained from realizing the objective and the effect caused
by the restriction of the constitutional right. These tests constitute a broadly accepted
general framework for examining proportionality. Nevertheless, it is questionable
whether this structure provides enough guidance to both decisionmakers and those who
check their decisions.4 In what follows, I will consider the problems attendant to the
application of proportionality in Israel, from the perspective of the rule of law as
opposed to the rule of men.
The central criticism directed at the rules of constitutional proportionality in Israel is
the absence of sufficient guidance. This problem is rooted in the broad discretion given
to the courts, especially in regard to the value-based nature of the third test.5 In fact, it
would seem that the entire edifice of proportionality rests on the shoulders of the third
test – proportionality stricto sensu – while diminishing the status of the two other tests,
which have come to be deemed ‘pro-forma’ preconditions. But are the shoulders of this
test broad enough to bear the weight of this heavy burden?
Furthermore, it is not without significance that the third test is applied only after the
law or governmental act have successfully passed the first two tests. It creates the
impression that most of the path to legitimizing the means has been successfully tra-
versed. In other words, the means already merit a considerable measure of legitimacy.
This problem is aggravated by the fact that the legitimacy of this final stage itself is
open to question. The third test requires difficult value-based decisions that are char-
acteristically subject to the influence of the personal perception of the judges. To be
more precise, we are not dealing with value judgements at a high level of abstraction
where the scope of disagreement typically narrows, but rather with value judgements
of a concrete character, where the potential for dispute increases. The judicial decision
therefore becomes largely dependent upon the specific panel of the court. It becomes,
‘rule of men’.
This stage (the third test) is especially exposed to the claim that it transfers power
from an elected body that better expresses the public’s preferences, to the judicial
4
See D Dorner, ‘Proportionality’ in A Barak and C Berenson (eds), Berenson Book, vol 2, 2nd edn (Tel-Aviv,
Nevo, 2000) 281, 283: ‘In my view, notwithstanding the sophistication and the complexity conferred by the
three aforementioned subtests to proportionality, the subtests are insufficient and additional refinements are
required’.
5
Not surprisingly, in HCJ 7052/03 Adalah v Minister of Interior 61(2) PD 202 [2006] (in Hebrew), para 107
of Justice Cheshin’s opinion, where he referred to this form of proportionality in the moral sense: ‘There are
three subtests in the test of proportionality, and for reasons that I do not understand the third subtest is termed
the test of proportionality “in the narrow sense”. This name is a mystery to me . . . the third subtest before us,
the test in which we place on each pan of the scales the values that conflict with one another, the benefit values
against the damage values, ought to be called the test of proportionality “in the moral sense”. This test is con-
cerned with values, and it should therefore be given that name’.
Constitutional Proportionality 227
branch, which does not reflect those choices.6 Indeed, the infinite flexibility of the third
test enables any legal conclusion to be reached, and then justified in terms of compliance
with the tests.
The greatest danger is that if a problematic measure passes the first two tests without
difficulty, it will also pass the third stage. The stamp of approval granted following the
constitutional examination confers ‘strong legitimacy’. When such approval is granted
to an improper measure, the normative distortion is conspicuous and grave. Injustice in
practice is preferable to an unjust practice that has been formally approved.7
In a post-modern era it is an illusion to assume that the institutional authority of the
court by itself is sufficient to grant the decisions of the court real legitimacy and
authority.
Moreover, very little attention was paid to the role of proportionality from the per-
spective of the decisionmakers themselves. It is obvious that in order to achieve compli-
ance with the requirements of proportionality, proportionality has to become a working
tool in the hands of decisionmakers. The existing format of the tests does not provide
sufficient guidance and clarity needed to make them useful devices for decision-making.
This study is a preliminary examination of various possibilities for a more nuanced,
application of the constitutional tests. It aims at ‘empowering’ (instilling more meaning)
in the tests that are ahead of proportionality stricto sensu (the third test). It aims also at
a more structured third test. The research method includes, inter alia, learning from the
experience of others, specifically from the development of proportionality in Canadian
and South African law, and the analysis of rulings from both ends of the spectrum – case
law that failed to protect human rights as well as case law that successfully completed
that task – with an eye towards drawing appropriate conclusions. The study focuses
specifically on the tension between security demands (particularly in the context of con-
fronting terrorism) and other human rights.
In part II I will begin with the requirement of an appropriate purpose. Then, in part
III, I will examine each of the subtests of proportionality. In part IV, I will discuss briefly
the relationship between the proportionality tests themselves. In part V, I will end the
chapter with concluding remarks.
6
Adalah v Minister of Interior (n 5) paras 107–15 of Court President Barak’s opinion; see also R Gavison,
‘The Constitutional Revolution: Reality of a Self-Fulfilling Prophecy?’ (1997) 28 Mishpatim 21, 64–68 (in
Hebrew); A Marmore, ‘Judicial Review in Israel’ (1997) 4 Law and Government 133, 142–44; B Pieroth and
B Schlink, Grundrechte Staatsrecht II, 25th edn (Heidelberg, Müller (CFJur), 2009) 71; N Siebrasse, ‘The Oakes
Test: An Old Ghost Impending Bold New Initiatives’ (1991) 23 Ottawa Law Review 99, 107: ‘This kind of cost-
benefit balancing is what would traditionally be described as a matter of policy, not law’.
7
Jackson J expressed this point eloquently in his minority opinion in the infamous Korematsu case:
Korematsu v United States 323 US 214, 245–46 (1944): ‘A military order, however unconstitutional, is not apt to
last longer than the military emergency. Even during that period, a succeeding commander may revoke it all.
But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather
rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has
validated the principle . . . The principle then lies about like a loaded weapon, ready for the hand of any
authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle
more deeply in our law and thinking and expands it to new purposes . . . A military commander may overstep
the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident
becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will
be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case’. The
majority opinion in this case demonstrates Jackson’s point. Even though Black J, who wrote the majority opin-
ion, used the most rigorous and meticulous approach in the American system, of ‘strict scrutiny’, he nonethe-
less concluded that the measure was constitutional.
II. THE APPROPRIATE PURPOSE TEST
Any infringement of a right must serve an appropriate purpose (also referred to as

‘sufficient objective’ or ‘legitimate purpose’). It is quite clear that a constitutional right
cannot be infringed in order to realise an illegitimate purpose, or even to realise a mar-
ginal or negligible objective.
As a matter of law, the requirement of an appropriate purpose also includes the condi-
tion of consistency with the values of the state, as a Jewish and democratic state.
Although the purpose is a threshold requirement in most legal systems,8 it does not
appear to constitute an important component of the constitutional examination.
The accepted view is that the appropriate purpose test requires, initially, the identifi-
cation of the purpose.9 The central question arising in this context is whether the stand
ard for identifying the purpose is an objective one or a subjective one, insofar as there
may be a discrepancy between the two criteria in a given case. Comparative law does not
offer a standard answer to this difficult question.10 Nevertheless, it would seem that the
prevailing view in Israel supports the objective approach.11 Professor Barak recently
suggested that a purpose should be considered appropriate only if, cumulatively, both
the objective and the subjective purposes are found to be appropriate.12 This presents a
reasonable and wise solution, especially – the inclusion of the subjective purpose.
The gist of the argument is this: identifying the subjective purpose is preferable to
identifying an imaginary purpose, that may serve the underlying goal of ‘purifying
the impure’, or of concealing the real purpose.13 The subjective purpose – being the real
8
For a survey of the purpose requirement in Canada, see PW Hogg, Constitutional Law of Canada, 5th
edn (Toronto, Carswell Legal Publishers, Student edn, 2009) chs 32–38; see also S Woolman and H Botha,
‘Limitations’ in S Woolman et al (eds), Constitutional Law of South Africa, 2nd ed (Juta, Cape Town, Pretoria
University Law Press, 2006) 73–79. On the position in Germany, see D Grimm, ‘Proportionality in Canadian
and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 383; and see Barak
(n 1) 317–19, 345–52.
9
Hogg (n 7) 19–22; Woolman and Botha (n 8) 73–75; Barak (n 1) 359–67.
10
For a comparative survey of this subject, see Barak (n 1) 359–67.
11
CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 49(4) PD 221 [1995] para 81 of former
Court President Shamgar’s opinion (in Hebrew). See also in the Menahem case, HCJ 4769/95 Menahem v
Minister of Transport 57(1) PD 235 [2002] para 16 of Justice Beinisch’s opinion (in Hebrew): ‘As a rule, the
examination of the purpose of a legislative act in accordance with the limitation clause does not focus on
examination of the legislature’s motives, even though prima facie there is a certain overlap between the purpose
of the law and its motive; rather, it focuses on the objective purpose of the law’ (emphasis added).
12
Barak (n 1) 368–69.
13
See, eg in Adalah v Minister of Interior (n 5) and the observations of some of the justices that the security
considerations of the state may have been intended as a front for the demographic consideration, which is
unacceptable. See, eg para 11 of Justice Procaccia’s opinion: ‘First, we must examine the degree of credibility
of the claim concerning “security needs”. We must ascertain whether the security considerations that have been
raised are not being used, in reality, as a cloak for other completely different purposes which are really the pur-
poses that underlie the legislation containing the violation of the right’. See also para 24 of Justice Joubran’s
opinion: ‘depriving the Minister of the Interior of discretion, ab initio, to examine the possibility whether citi-
zenship should be given to any of the residents of the territories in order to realize the right of an Israeli citizen
to family life, by ignoring the specific circumstances of the case, raises the concern whether the security consid-
eration is not the only consideration underlying the enactment of the law and it raises questions with regard to
the policy that this law wishes to achieve. This concern becomes even greater if we survey the legislative history
that led to the enactment of the law, which, whether in a concealed or express manner, associates the law with
the government’s demographic policy . . . Similarly, throughout the legislation process, it is possible to find
remarks made by Knesset members and members of various Knesset committees, from various parties, who
address the demographic policy that the law implements’.
purpose – is frequently, albeit not always, more accessible.14 The proposed amendment
to the Citizenship Law, 5712-1952 can serve as an example. The proposal is to add to the
existing statement of allegiance to the State of Israel and its laws, allegiance to the State
of Israel as a Jewish and democratic state. To disregard the patently real motivation
underlying the law – mainly, hostility towards Israel’s Arab population – falsifies reality
and transforms the Court into an instrument in the hands of other authorities, thus
undermining its status as the central, and perhaps the only, restraining force in the dem-
ocratic system for protecting minorities against the tyranny of the majority.15A similar
analysis is applicable to other recent laws directed against the Arab citizens of Israel.16
Special care is required to avoid a distorted reading of the purpose, intended to legit
imate improper means. For example, it is not difficult to discern that the real purpose of
demolishing houses is to punish the individual offender and his family (being a means
intentionally directed at causing suffering to the dwellers of the demolished house), and
as a by-product, also deterrence for the many, and that it is not intended solely as a
means of deterrence, as was determined by the Court, in order to legitimate the means.17
Even though the legislature has discretion in determining the degree of abstraction of
the purpose, the court should encourage legislation in which the legislative purpose is
expressed in as concrete terms as possible. Two reasons will be mentioned. First, open
ended terms, apart from being ‘lazy’ and vague,18 may also serve as a convenient means
for concealing a ‘covert’ and illegitimate purpose. Second, from the authorities’ (legisla-
tive and executive) perspective, the determination of a clear purpose is the necessary
starting point for establishing an appropriate norm and the adoption of an effective
measure. A more precisely defined purpose improves the decision-making process and
strengthens its rational basis.
14
One cannot ignore the practical difficulties that arise in the attempt to discern the subjective purpose,
particularly in a complex body such as the Knesset with its many members and opinions. Nevertheless, these
difficulties are not insurmountable. The subjective purpose can be identified in a number of ways, for example
the legislative history, including the explanatory notes of the law, the Knesset Proceedings and the debates in
the committees, a report of a professional committee when the law is the product of its work, and others. In
private draft proposals, special attention should be given to statements made by the initiators of the law. Nor
can one ignore the circumstances that gave rise to the enactment of a law or the implementation of the harmful
measure, and in certain cases it may also be appropriate to take affidavits from the serving holders of positions.
See also Barak (n 1) 369–71.
15
See HCJ 6427/02 Movement for Quality Government v Knesset 61(1) PD 619 [2005] para 15 of Justice
Grunis’s opinion (in Hebrew): ‘The principal justification for the existence of judicial review of legislation is
the need to protect the minority and individuals from the tyranny of the majority. The court is the last barrier
capable of preventing the majority harming individuals and minority groups’. Evidently, one of the courts into
which this approach has filtered deeply is the Constitutional Court of South Africa, see n 52 below.
16
M Kremnitzer and S Krebs, ‘From Illiberal Legislation to Intolerant Democracy’ (2011) 26 Israel Studies
Review 4.
17
See HCJ 9353/08 Abu Dheim v GOC Central Command, IDF (5 June 2009), Nevo Legal Database (by
subscription) para 8 of Justice Naor’s opinion (in Hebrew): ‘Over many years the court has recognized that the
use of this measure is intended for deterrence – to deter and not to punish or to avenge. In the past this court
has avoided disputing the evaluation of the security authorities with respect to the effectiveness of the deter-
rence’ (emphasis added). For a critique of this view, see M Kremnitzer and T Hoernle, ‘Human Dignity and the
Principle of Culpability’ (2011) 44 Israel Law Review 115, 128–31.
18
This is attested to by the divergent interpretations of the term ‘state security’ in the various cases, such as in
the further hearing in the matter of the Lebanese bargaining chips, see CrimFH 7048/97 John Does v Minister of
Defence 54(1) PD 721 [2000] (in Hebrew).
III. THE PROPORTIONALITY TEST (‘TO AN EXTENT NO

GREATER THAN IS REQUIRED’) AND ITS SUBTESTS
The requirement of ‘to an extent no greater than is required’19 diverts the examination
from the purpose to the means chosen by the state for realizing it.20 Three subtests are
recognised – as mentioned above.
A. Preliminary Remarks
Before considering the proportionality tests themselves, a question arises pertaining to

the factual and conjectural background that serves the court in applying the tests. If, in
practice, the court trusts the platform presented to it by the state blindly21 – and this
platform is quite frequently tainted by natural biases that will be discussed below – the
value of the constitutional examination is significantly reduced. Furthermore, if the
court is prepared to accept and rely upon unsubstantiated evaluations, and does not
order the submission of data in order to examine it, then why should the authority
bother to base its decision-making on data?22
The difference between the majority and minority opinion in the Korematsu23 case
demonstrates the difference between a blind faith approach and a critical approach.
If our concern is with incentives, then the judiciary can and should provide an incen-
tive for the legislature to act in an appropriate manner. As such, the preparatory work
that precedes legislation should be regarded as a crucial indicator of the quality of the
19
20
Adalah v Minister of Interior (n 5) para 64 of Court President Barak’s opinion: ‘The requirement that the
violation of the legislation be “to an extent that is not excessive” focuses on the means that the legislator chose.
A law that infringes a constitutional human right is proportionate only if it maintains a proper relationship
between the proper purpose that the law wishes to realize and the means that it adopts to realize that purpose
. . . a proper means is a proportionate means. A means is proportionate if the law’s violation of the protected
right is to an extent that is not excessive’.
21
See the comment of Supreme Court Justice (Ret) Itzhak Zamir in his article – I Zamir, ‘Human Rights and
State Security’ (1988) 19 Mishpatim 17, 36–37 (in Hebrew): ‘the statements made in judgments, and even more
so, the decisions given in judgments, lead to the conclusion that in practice the courts hesitate in intervening in
the discretion of the security authorities in security matters, more so than with respect to their discretion in
other matters . . . it could be said, by way of generalization, that the court tends to show a special measure of
consideration and a great degree of restraint with respect to the security authorities because of the heavy
responsibility, the gravity of the consequences, and the public sensitivity attaching to security matters’. This
position was actually expressed in many of the court’s rulings. See, eg HCJ 1661/05 Hof Aza Regional Council
v Knesset 59(2) PD 481 [2005] para 108 of the majority ruling (in Hebrew): ‘The position of this court since its
inception has been that a presumption operates in favor of reliance on the security experts on behalf of the
State. Weighty evidence is required in order to refute this presumption’. See also HCJ 6026/94 Nazal v IDF
Commander in Judea and Samaria 48(5) PD 338 [1994] (in Hebrew); HCJ 7473/02 Bahar v IDF Commander in
Judea and Samaria 56(6) PD 488 [2002] (in Hebrew). One of the more illuminating examples in this context is
the Abu Dheim ruling (n 17). In that case the Court accepted the position of the authorities regarding the
deterrent effect of the demolition of houses, without it having submitted any concrete evidence to that effect,
and despite the existence of a comprehensive, conflicting report. For a critique of the ruling, see M Kremnitzer,
‘The Legitimacy of Demolishing Terrorists Houses – Comment on Ruling, in the Wake of the Judgment in
the Matter of Hisham Abu Dheim v GOC Homefront Command’, Jerusalem, The Israel Democracy Institute,
24 February 2009: www.idi.org.il/breakingnews/pages/breaking_the_news_94.aspx.
22
It appears that the fundamentally weak claim that the High Court of Justice lacks the tools for confront-
ing a complex factual framework, almost entirely collapses when considering the importance that the law
attaches to disclosure of the truth in all matters relating to protection of human rights.
23
Korematsu (n 7).
legislative result. This preparatory stage includes the collection of relevant data, mean-
ingful procedures of examination and clarification, including the hearing of experts’
views and having a professional discussion, the presentation of alternatives, and a stage
of consideration leading to a reasoned choice of the preferred measure.24 As a general
rule, the more profound and transparent the internal proceedings of the authority, the
less suspicion and the greater respect will be shown towards the means adopted during
the judicial review. However, according to this same approach, decision-making that
snatches an opportunity or that lacks transparency – warrants suspicion regarding their
purpose and the means chosen for their realization.
Another preliminary subject – before proceeding to the subtests themselves and to the
concrete proposals – relates to the constitutionality of means that were found to be ille-
gal under international law or the laws of comparable nations. There is no justification
for a measure, found to be illegal in international law, to be subject to a fully-fledged
constitutional examination in Israel. When a measure is unusual from a comparative
perspective, and especially when it was declared unconstitutional in comparable legal
systems, it should be regarded as prima facie ‘suspect’ of being unconstitutional here as
well.25
In what follows, the subtests of proportionality will be briefly examined.
B. The Rational Connection Test (Suitability Test)
The rational connection test requires that the means chosen be capable of realizing the
underlying purpose of the law.26
An additional condition posited by the rational connection test and adopted in the
case law over the years is the prohibition against the use of a measure that is arbitrary,
unfair or illogical.27 Accordingly, for example, in the Morar case an order to prevent
access of Palestinian farmers to their agricultural plots in order to protect them and
ensure their security against attacks by Jewish-Israeli lawbreakers was overturned. The
24
It seems that this approach was correctly implemented in a recent judgment handed down by the Supreme
Court in which it partially cancelled a planning decision (the paving of a road) based on the failure to give suffi-
cient consideration to environmental factors and alternatives that would be commensurate with their appropriate
weight. The Court carefully examined the decision-making process and, inter alia, related to the duty to consider
alternatives as part of the desideratum of receiving the fullest possible factual picture (which was not fulfilled in
the particular case) as central components of its decision. Although the issue concerned an administrative deci-
sion as distinct from primary legislation, its internal logic is applicable for our purposes too. See HCJ 2920/94
Adam Teva Va Din v National Committee for Planning and Construction of National Infrastructures 50(3) PD
441[1996] (in Hebrew).
25
Eg in relation to the measure of collective punishment, expressed in the imposition of sanctions against
persons who are not offenders (such as demolition of houses). This measure contravenes the fundamental con-
ception of the rule of law, whereby the imposition of sanctions must be based on personal liability. The univer-
sal norm too, firmly rooted in international law, similarly prohibits collective punishment. See Geneva
Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention)
(adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287, Arts 27 and 33. Based on this it
can and should be argued that collective punishment is a fundamentally illegitimate measure which cannot be
suited to the realization of any purpose, even if appropriate.
26
See Barak (n 1) 373–74. See also references in fns 2–4 there.
27
See, eg Menahem (n 11) para 23 of Court President Beinisch’s opinion; HCJ 9593/04 Morar v IDF
Commander in Judea and Samaria 61(1) PD 844 [2006] para 25 of Justice Beinisch’s opinion (in Hebrew); HCJ
2887/04 Abu-Medigam v Israel Land Administration 62(2) PD 57 [2007] (in Hebrew).
measure was held to be fundamentally unfair and actually rewarding lawbreakers.28 In

Professor Barak’s view, the requirement concerning fairness does not belong to this
category, because the unfairness of a measure does not necessarily detract from the
rationality of its connection to the goal, and it is more reasonable to view it as detracting
from the requirement of an appropriate purpose or the third proportionality test.
Professor Barak expressed a similar position on the subject of an arbitrary measure,
which in his view would only be annulled if it impaired the effectiveness of realizing the
goal, and not by force of being arbitrary as such.29 It seems that this position overly lim-
its the scope of the test. Indeed, any effective measure, even if arbitrary or unfair, has a
connection to its goal, but this connection is not a rational connection, but rather a
distorted and irrational one. The effectiveness of the measure should not be the sole
parameter.30 Abolishing such measures, which should not have been adopted in the first
place, at the earliest stage possible, is also important from an educational perspective.
Furthermore, sometimes the more ‘outrageous’ the measure – the more effective it may
be in comparison to other more moderate means, and as such may also pass the least
restrictive means test, which requires that the alternative means realise the goal to an
identical extent. As mentioned earlier, passing these two tests is no trifling matter
because it confers a certain degree of legitimacy to the measure. It was for this reason
that this requirement formed an integral component of the rational connection test in
the Canadian Oakes case, which is the cornerstone of the development of the stages of
constitutional examination.31 Even if the Israeli Court overlooked this additional condi-
tion at first (either intentionally or unintentionally),32 its adoption is both necessary and
commendable.
As mentioned in the introduction to this chapter, there are profound reasons for sub-
stantively strengthening the rational connection test, instead of automatically transferring
all means to the next stage.33
What can be done in this respect?
First, it is important to describe accurately the means under discussion in the concrete
circumstances of the case. For example, the basic and logical foundation of administra-
tive detention is the prevention of future harm, and as such it relies upon a threat assess-
ment. In the case regarding the Lebanese detainees, the state itself conceded that they
posed no danger, but rather that they were being held for purposes of negotiations.34
28
Morar (n 27) para 25 of Court President Beinisch’s opinion: ‘In these circumstances, the closure of the
areas to the Palestinian farmers in order to contend with the aforesaid threat is not rational, since it is an
extremely unfair act that results in serious harm to basic rights while giving in to violence and criminal acts’.
29
Barak (n 1) 378–80.
30
Court President Beinisch’s comments on this point in Morar (n 27), are particularly germane: ‘The
rational connection test is not merely a technical causal connection test between means and end. Even when use
of a certain measure is likely to lead to realization of the desired purpose, this does not mean that there is a
rational connection between the means and the end and that the means is suited to achieving the end. The
emphasis in the rational connection test is whether the connection is rational. The meaning of this is, inter alia,
that an arbitrary, unfair or illogical measure should not be adopted’ (emphasis added).
31
See R v Oakes [1986] 1 SCR 103, 139 (Can): ‘The measures adopted must be carefully designed to achieve
the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short,
they must be rationally connected to the objective’ (emphasis added); see also Hogg (n 8) chs 32–38.
32
See, eg United Mizrahi Bank (n 11) para 95 of Court President Barak’s opinion; Adalah v Minister v Interior
(n 5) paras 66–67 of Court President Barak’s opinion; Hof Aza (n 22) para 67 of the majority opinion.
33
For a different view of this text, see Barak (n 1) 387–89; Hogg (n 8) 34; Grimm (n 8) 389.
34
See John Does (n 18) para 2 of Court President Barak’s opinion, where he presented the facts with the
observation that ‘There is no debate among the parties that the petitioners themselves do not pose a threat to
national security’.
Could it honestly be claimed that keeping them in administrative detention was ratio-
nally connected to the stated goal underlying this particular measure?
Second, the test should be interpreted as requiring consideration also of the ‘negative
effectiveness’ of the means. ‘Negative effectiveness’ refers to the undesirable results of
the means apart from the infringement of the right under discussion (which is taken into
account at the stage of examination of proportionality in the narrow sense).35 A mean-
ingful examination of the rationality of adopting a particular measure cannot be based
on the optimistic assumption that it has only positive effects (especially in the absence of
the requirement that the measure realise its goal in full, and accepting that the probabil-
ity of realization need not be high), nor can it rely on the naive disregard of the negative
aspects involved in its utilization. For example, it is reasonable to presume that the
demolition of houses or the use of torture as a means to reduce terrorist attacks may
actually increase motivation to commit additional acts of terrorism, due to the humilia-
tion and alienation experienced by the victims of such measures and those close to them,
thus hindering the purpose in a long-term perspective. Use of torture also generates false
information that is liable to mislead the system and thus prevent efficient prevention.36 A
full answer to the question of the rationality of resorting to the particular means must
include consideration of the negative effects as well.
As opposed to the first two tests, which involve utilitarian balancing, the third test is
seen as addressing values. From this perspective, too, it is essential that the negative fac-
tors be weighed as part of the first test. Ignoring the negative implications at this stage
creates the misleading impression that from an efficiency perspective, as opposed to a
value-based assessment, the measure passed the judicial critique. It should also be noted
that this approach is consistent with the logic that should guide rational governmental
decision-making within the authority itself. It is clear that a decisionmaker betrays her
duty if she examines only the positive aspects of the means while ignoring their negative
consequences.37 When the constitutional examination ignores the negative aspects at
precisely the stage that they should be examined, it encourages the same kind of disre-
gard by the legislature and the executive. Furthermore, such an approach produces a
substantive distortion, both in the decision-making process and in the process of consti-
tutional examination, by giving the advantages of the means a position of primacy over
its deficiencies.
35
See, eg HCJ 316/03 Bakri v Israel Film Council 58(1) PD 249 [2003] para 14 of Justice Dorner’s opinion (in
Hebrew). This judgment discussed the constitutionality of the Film Censorship Board’s decision to prohibit
the screening of Jenin, Jenin. Regarding the suitability test, the argument was that the prohibition of the film
would prevent the exposure of its contents and would reduce the danger to public peace and security. It should
be noted that in this case there was a dark side of censoring the film from the effectiveness perspective. It was
clear to both sides that the prohibition would trigger a media storm, turning the film into a ‘symbol’ and hence
actually increase its public exposure. The negative effectiveness of the measure also includes the probable crea-
tion of a ‘black market’ and an ‘incentive’ to illegally obtain the film via the Internet. On this matter in general,
see J Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’ (2005) 105 Columbia Law
Review 1681; see also J Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Journal of Political
Philosophy 191.
36
See M Kremnitzer, ‘Coercive Interrogation in Israel – The Process of Shaping the Norms’ in M Mahlmann
(ed), Gesellschaft und Gerechtigkeit: Festschrift für Hubert Rottleuthner (Baden-Baden, Nomos, 2011) 164,
177. Moreover, the positive effectiveness of these measures is similarly questionable and at the very least is not
necessarily self-evident, but the discussion of this topic exceeds the scope of this chapter.
37
In view of this analysis it should be remembered that there is no advantage in legislation ‘at any price’.
Under certain circumstances, when the negative effectiveness of the measure is extensive, the authority would
be well advised to avoid legislation altogether.
Third, it should be examined whether the means is aimed at promoting the core of the
goal or only its periphery.
Finally, the level of the efficiency of the measure should be examined in light of the
importance of the relevant aspects of the infringed right. One view that has been
expressed in the Israeli ruling was that there is no requirement for a definite contribution
to the promotion of the entire goal. Rather, a partial fulfillment of the goal is sufficient.38
According to this view, in order to pass the test, there is no need, at this stage, to take
into consideration the relevant aspects of the infringed right. This view is vague and
arguably overly lenient. A more dominant approach calls for a relationship between the
importance of the right and level of efficiency.39 This approach is preferable, provided
that what is considered is not the right in abstracto but the relevant aspect of the right
that is being infringed. If the level of efficiency is low and the aspect of right being
infringed is highly important – it is not obvious at all that the measure should pass the
test, and especially so if the measure is directed to the periphery of the goal.
C. The Least Restrictive Means Test (Necessity Test)
The least restrictive means test is based on a comparison of alternative measures. This
stage seeks to examine whether, from among the various measures rationally connected
to the (appropriate) goal, the measure chosen causes the least possible harm to human
rights.
It seems that the main problem of the necessity test stems from the requirement that
the purpose be realised by the less harmful measure in an identical manner. It should,
however, also be noted that on a number of occasions the case law has expressed a view
that differs from this approach. In the Academic Center of Law and Business case,40
addressing the constitutionality of a law authorizing the establishment of a private
prison, the Court required that the alternative measure realise the legislative purpose to
a ‘similar’ degree. In this spirit I suggest to substitute the requirement of an identical
degree of effectiveness with a requirement of a similar degree. It is almost impossible to
measure comparative effectiveness in exact terms. Requiring identity means requiring
the impossible. The practical meaning of insisting on identity is emptying the second test
from content.
On top of this, the Court’s approach indicates that even when less harmful means are
available, the legislature has broad discretion and is under no obligation to resort to
them even if they are expected to realise the purpose of the law to an identical degree.41
38
See HCJ 466/07 Gal-On v Attorney General (11 June 2012), Nevo Legal Database (by subscription) para
11 of Justice Joubran’s opinion (in Hebrew).
39
Barak (n 1) 627–28; HCJ 6298/07 Ressler v Knesset (21 February 2012), Nevo Legal Database (by subscrip-
tion) paras 51–53, 55 of Court President Beinisch’s opinion (in Hebrew); HCJ 1715/97 Investment Managers
Bureau v Minister of Finance 51(4) PD 367 [1997] paras 4 and 8 of Justice Dorner’s opinion (in Hebrew); see
also Dorner (n 4) 289: ‘it suffices that there is an appropriate degree of probability that the act that infringes a
protected right or interest makes a reasonable contribution to the attaining of the purpose’ (emphasis added).
40
Legal Database (by subscription) para 49 of Court President Beinisch’s opinion (in Hebrew): ‘requires us to
examine whether that less harmful measure realizes the legislative purpose to the same degree or to a similar
degree as the measure chosen by the legislature’ (emphasis added).
41
See, eg CrimA 6659/06 A v State of Israel 62(4) PD 329 [2008] para 31 of Justice Beinisch’s opinion (in
Hebrew): ‘Consequently this court has accorded recognition to “constitutional room for maneuver” which is
This approach should be rejected. Accepting the approach means that the second test is
not being considered seriously. Even when a measure does not stand up to the test – it
may still be constitutional. If so, what value has the test?
D. The Proportionality Test (Stricto Sensu)
The proportionality test in the narrow sense establishes a requirement for an appropri-
ate relationship between the expected benefit to be derived from the means chosen (the
degree of expected benefit multiplied by the degree of probability of its materialization)
and the damage caused by the limitation of the right. In contrast to the other tests based
on the fulfillment of a particular requirement or compliance with a specific condition,
this test calls for striking a balance among conflicting values.42 The infringement of the
right and the realization of the purpose are placed on opposite ends of the scale.
The balancing process must include the full gamut of relevant considerations. Not
surprisingly, in the Korematsu case, such a comprehensive analysis was only conducted
in the dissenting opinion. Considering the use of torture as a means – the overall impli-
cations of which are not limited to the grave consequences for its victims (which apart
from the physical harm also include long-term psychological consequences and a degrad-
ing component), but also include the impact of a license for extreme state arbitrariness
on the entire legal system and on society as a whole.43
The examination of proportionality should entail: the aspect (and sometimes aspects)
of the right that is being infringed – its importance; the nature of the infringement: its
level of severity and likelihood. Within this examination – attention should be paid,
inter alia – to the degree of discretion granted to the authorities in the implementation of
the law44 and to the impact of the victim’s identity or status on the severity of the
infringement.45 A similar analysis relates to the expected benefit – the exact nature of this
benefit, its importance, and the realistic likelihood of its occurrence.
also called the “zone of proportionality” . . . This court will not substitute its own discretion for the criteria
chosen by the legislature and will refrain from intervention as long as the measure chosen by the legislature falls
within the zone of proportionality. The court will only intervene when the chosen measure significantly departs
from the bounds of the constitutional room for maneuver and is clearly disproportionate’.
42
See, eg HCJ 10203/03 Hamifkad Haleumi v Attorney General 62(4) PD 715 [2008] para 55 of Justice
Naor’s opinion (in Hebrew); Movement for Quality Government v Knesset (n 15) para 60 of Court President
Barak’s opinion; Hof Aza (n 21) paras 67 and 114 of the majority judgment. In comparative law as well, the
accepted approach is that the test is one of balancing. See on this matter Barak (n 1) 424–25 and the citations
therewith.
43
See Waldron, ‘Torture and Positive Law’ (n 35) 1713–17, 1737–39.
44
In the Constitutional Court of South Africa this criterion merits serious consideration, eg in the Dawood
case, Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) paras 47–48 (S Afr), the Court annulled the
powers given to the immigration clerks (to refuse to extend temporary residence permits to foreign spouses of
South African residents) because they lacked sufficient adequate guidelines or the possibility of judicial review
of their decisions. On the other hand, in the Metcash case, Metcash Trading Limited v Commissioner for the
South African Revenue Service 2002 (4) SA 317 (CC) (S Afr), the appointee’s power to make exceptions in
certain cases made the infringement less abstract, subjected it to objective oversight, and moved the court to
dismiss the petition.
45
Consideration of the victim’s position in determining the severity of an infringement can lead to a real
change only if there is a sincere, genuine examination of the actual situation, with keen awareness to the
concrete reality. The South African Constitution related in a number of situations to the victim’s status as an
auxiliary indication. One of the most persuasive examples of this was in the Manamela case, S v Manamela
2000 (3) SA 1 (CC) (S Afr), in which the majority opinion, related to the practical implications of reverse-onus
Only an absolutely compelling expected benefit may justify a very severe infringement.
Only a clearly compelling expected benefit may justify a severe (but not very severe)
infringement.
For the sake of assisting the process of balancing, it may be helpful to differentiate
between different levels of the infringement caused by the measure and of the expected
benefit.
The theory of proportionality should be enriched through guiding considerations.
Three will be mentioned:
1. It would be shortsighted not to learn from past experience, both national and univer-
sal. Certain matters are accepted universally, or almost universally, as judicial traves-
ties, and as the beginning of the slippery slope from democracy to a totalitarian
regime.46 For instance, treating ‘unpatriotic’ ideological criminals differently than
patriotic ideological criminals as we witnessed recently in Israel.47 These must be
seen as warning signs, that proclaim: Beware! A slippery slope before you! No less
important is learning from commendable judgments, in which the courts stood up to
the challenge.48
2. It is particularly important to avoid bias in the choice and the implementation of the
measure. Here I refer primarily to the players who implement proportionality before
the court, namely the legislative and executive authorities, but also to the courts
themselves. It is essential that the actions of the authorities (and the evaluation of
these actions by the courts) be conducted with full awareness of natural biases that
may influence their actions.49 Particularly where it concerns actions against the
‘other’, it is important that the measure be generalised and examined from the per-
spective of it being wielded against ourselves. Additional natural biases which
provisions on the accused in cases concerning possession of stolen goods: ‘The practical implications of this
cannot be ignored. Many of these people are not likely to keep records of the wide variety of informal transac-
tions that they conclude daily. They, and not the professional receivers, are the persons least in a position to
discharge the onus and hence become the class most vulnerable to erroneous conviction precisely because of
their disadvantaged position in society. Furthermore, because of their inability to afford legal representation,
they will not be well prepared either to present their case to best advantage or to meet the cross-examination to
come. The risk of people being erroneously convicted, subjected to the social stigma of conviction and unjustly
sent to jail is unacceptably high’.
46
See, eg Korematsu (n 7) and the Hirabayashi case, Hirabayashi v United States 320 US 81 (1943), both
dealt with the United State’s policy regarding Japanese citizens. Over the years a consensus has emerged that
these rulings are particularly wrong. On collective sanctions, see n 6 above.
47
In examining legislation that distinguishes between those who are patriots and those who are not we
can learn from the experience of the Weimar Republic. See the criticism on the proposal to pardon Jewish riot-
ers in the context of the ‘Gaza disengagement plan’, and the difference in the treatment of Palestinian rioters,
Y Cohen ‘What Distinguishes between the Violence of the Left and the Violence of the Right, or How the State
Undermines its Authority’, Jerusalem, The Israel Democracy Institute, 15 February 2010: www.idi.org.il/
BreakingNews/Pages/171.aspx.
48
An instructive case in this context is that of Anon, CHR 8823/07 John Doe (Anon) v State of Israel (11
February 2010), Nevo Legal Database (by subscription) (in Hebrew); the Court ruling prohibiting the use of
torture in investigations is also worth mentioning – see HCJ 5100/94 Public Committee against Torture in
Israel v State of Israel 53(4) PD 817 [1999] (in Hebrew). Another important case in this context is A v Secretary
of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, where the House of Lords held that the
indefinite detention, without trial, of foreign prisoners, who cannot be deported, under s 23 of the Anti-
terrorism, Crime and Security Act 2001 was incompatible with the Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).
49
For elaboration on these biases and their influence, see M Kremnitzer, ‘Terrorism and Democracy – An
Israeli Perspective’ in T Wurtenberger et al (eds), Innere Sicherheit im Europaischen Vergleich (Berlin, LIT
Verlag Dr W Hopf, 2012) 203.
demand awareness and adjustment are the short-range perspective of the govern-
ment, its need for ongoing public support and its need to demonstrate strength and
confidence, the tendency to downplay the influence of our actions on opposing par-
ties (eg the subjective–motivational effect on the other party, such as ignoring the
danger of increasing terror as a result of implementing unjust measures such as
demolishing houses, torture, arbitrary detention, etc) and the mistaken approach of
aspiring to the impossible threshold of zero risk in the security realm. If the govern-
ment fails of its own initiative to avoid these biases, the Court will find itself as a
last-resort defender of human rights.
3. The central role – though not the sole role – of the Court in the constitutional realm
– the protection of the minorities, especially permanent minorities – should deserve
utmost attention. Protecting a permanent minority is tremendously important, since
the self-restraint that is usually practiced by a majority that expects to eventually
become a minority does not operate in the relationship between a majority and a
permanent minority. In such a situation, one cannot rely on the majority rule.50 A
minority can be politically extremely powerful (the religious sector in Israel) and it
may be devoid of real political power. It is the second type of minority that deserves
special protection. The Arab minority in Israel is both a permanent minority and a
minority with no political power. Therefore it deserves enhanced protection. As a
rule, a minority will suffer from feelings of insecurity, inferiority and even fear.
Discriminating or hostile legislation against a minority enhance these feelings. When
the state acts against a minority, anti-minority sentiments among members of the
majority flourish. It is for these reasons that the protection of the minority should be
a compass guiding the Court’s path.51
IV. THE RELATIONSHIP BETWEEN THE PROPORTIONALITY TESTS
The most important point in this context is the conception of proportionality as a

‘global’ balancing or assessment rather than as an independent examination of each one
of the subtests in a manner that is not contingent upon the results of the other subtests.
The stages are not distinct and alien to one another. There are different ways to pass a
test, from nearly failing to passing with flying colours. When difficulties, doubts or
uncertainties are encountered (including weaknesses in the process or in the evidence
forming the basis of the conclusions), they should be carried on to the next stages, other-
wise the bias (psychological and analytical) ‘in favour’ of the measure is liable to distort
the final result.
50
See, eg JH Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Harvard University
Press, 1980) chs 4 and 6. See also Movement for Quality Government v Knesset (n 15) para 15 of Justice
Grunis’s opinion: ‘The principal justification for the existence of judicial review of legislation is the need to
protect the minority and individuals from the tyranny of the majority. The court is the last barrier capable of
preventing the majority harming individuals and minority groups’.
51
A full internalization of this concept can be found, perhaps not surprisingly, in the Constitutional Court
of South Africa in the dissenting opinion in Prince v President of the Law Society of the Cape of Good Hope
2002 (2) SA 794 (CC) (S Afr), which adjudicated the constitutionality of applying the prohibition of cannabis
to Rastafarians. See para 157 of the judgment: ‘The hydraulic insistence on conformity could have a particu-
larly negative impact on the Rastafari, who are easily identifiable, subject to prejudice and politically powerless
. . . because they are politically powerless and unable to secure their position by means of a legislative exemp-
tion, the Rastafari are compelled to litigate to invoke their constitutional rights’ (emphasis added).
V. CONCLUDING REMARKS
Four tests are addressed by proportionality in the broad sense. One is the appropriate
purpose, the second is the rational connection, the third is the least restrictive means,
and the fourth is proportionality in the narrow sense. The proposals advanced above
seek to add substance to the rational connection test and the least restrictive means test,
so as to reduce the growing burden placed on the shoulders of the test of proportionality
in the narrow sense. In addition, they seek to structure the proportionality stricto sensu
test by presenting normative and practical considerations to be taken into account in
that framework.
The proposals were written to guide and structure the application of proportionality,
not only for the judicial authority, but for all ‘users’ of proportionality – the legislature,
which is obligated to choose only goals that are appropriate and means that are propor-
tionate, and the executive, which bears the duty of making proportionate use of the
means that it is authorised by law to exercise, while according for human rights.
My final statement: the commitment to take rights seriously cannot be accomplished
without taking proportionality seriously. In this respect, we have a long way before us.
16
The Deficiencies of Balancing: Restricting
Speech due to Offence to Feelings
YAACOV BEN-SHEMESH
I. INTRODUCTION
O
VER THE PAST few decades the balancing approach has risen to the status of
the leading, if not exclusive, method for resolving cases of conflicting interests
and rights in Israeli law.1 In this chapter I will argue that in addition to the well-
known flaws of balancing, in some cases it is simply counterproductive, and the very
willingness of the courts to balance leads to undesirable consequences. This is the case, I
will argue, with respect to the willingness of the courts to balance freedom of speech
with offence to public feelings. I will show that contrary to expectations, this willingness
may lead, among other undeniable consequences, to more, rather than less, offence to
feelings. I will conclude that in such cases, a categorical approach, that is, refusing to
balance, and simply rejecting offence to feelings as a legitimate reason for restricting
speech, is preferable. After describing the balancing approach in the remainder of the
introduction, I will follow, in part II, its rise in Israeli free speech jurisprudence. In part
III I will then examine its outcome in several cases, and offer an alternative approach.
The rise of balancing is part of a broader phenomenon in Israeli law, noticeable par-
ticularly in recent decades, of the decline of formalism and the rise of the jurisprudence
of values in Israeli law.2 According to the balancing approach, in a conflict between
rights or interests, the conflicting interests need to be identified, their importance evalu-
ated, the magnitude and probability of their violation estimated, and then a decision
made based on a ‘balance’ of all the above. For example, regarding the question of
whether to permit a demonstration outside the private house of an important public
figure, one must consider, amongst other things, the importance of the right to freedom
of speech as opposed to the right to privacy, the degree of violation of the respective
rights and its likelihood should the other right be preferred, and all other relevant
circumstances (such as whether the private house also serves for the public figure’s pub-
lic activities; the possibility of harming other tenants, and the hours requested for the
demonstration). All of these factors must then be appropriately balanced.3
1
For a general survey, see R Segev (under the guidance of M Kremnitzer), Weighing Values and Balancing
Interests (Jerusalem, The Israel Democracy Institute, 2008) ch 4.
2
See M Mautner, Law and the Culture of Israel (Oxford, Oxford Univeristy Press, 2011) ch 4.
3
See HCJ 2481/93 Dayan v Wilk 48(2) PD 456 [1994] (in Hebrew).
240 Yaacov Ben-Shemesh
An alternative to balancing is what I will refer to as the categorical approach.

According to the latter, there are cases in which no weight at all should be ascribed to
certain interests. For example, the position that in clarifying the property rights over a
certain asset, no consideration should be given to the relative wealth of the parties, or
their relative need for the property in question, is an example of the categorical approach:
in determining the question of ownership, certain considerations must be ignored. The
balancing approach on the other hand would claim that considerations of justice may be
relevant, but would most likely ascribe them relatively minimal weight.
The categorical approach is an application of Joseph Raz’s concept of ‘exclusionary
reasons’.4 An exclusionary reason negates consideration for particular factors in certain
contexts. In our previous example, the right of property is an exclusionary reason with
respect to certain considerations of justice or utility. Naturally, there are other contexts
in which considerations of justice will be relevant; the categorical approach is invariably
a relative one: concerning a certain right, X, certain considerations of category Y must
be disregarded.
Clearly, choosing to use the categorical approach in certain cases is in itself a result of
a value-based choice. Hence, the importance of the right of property, and the need to
ensure stability and legal certainty as well as other considerations of social policy are
the factors that underlie the categorical position outlined above. In other words, the
categorical approach likewise reflects a value decision. But once the decision to use the
categorical approach is made in a certain context, the resolution of future cases becomes
more technical and much less value-laden. And this indeed is the strongest advantage of
the categorical approach.
The advantages of the balancing approach are well known, focusing mainly on its
tremendous flexibility and its ability to factor in many relevant considerations, deriving
a conclusion adjusted to the specific circumstances of a given case. Its shortcomings are
also well recognised. Most important is the absence of clear criteria for the balancing
‘itself’, for deciding between the conflicting interests, notwithstanding the seemingly sci-
entific format in which the balancing approach is worded.5 Certain critics have indeed
concluded, based on the absence of criteria, that the balancing approach is actually
devoid of any substantive content and hence useless.6 Even if we reject the radical claim,
it seems undeniable that the balancing approach involves a definite dimension of subjec-
tivity and judicial caprice, insofar as the ‘appropriate balance’ between the conflicting
values differs from one judge to the next in accordance with the specific world views and
personal values of the judges. The inexorable result is that it also detracts from legal
certainty and may thus impair the protection of certain rights. For example, a categori-
cal rule stating that freedom of speech may not be abridged based on claims relating to
the truth of the expression, which is the current guiding principle in Israeli law,7 would
4
See J Raz, Practical Reason and Norms (Oxford, Oxford University Press, 1975); and see RH Pildes,
‘Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law’ (1994) 45 Hastings Law Journal
711.
5
See M Birnhack, ‘Constitutional Geometry: The Constitutional Methodology of the Supreme Court’
(2003) 19 Bar-Ilan Legal Studies 593 (in Hebrew).
6
For an incisive critique on the absence of any rational criteria in the balancing of values, and the law’s
despairing attempts to conceal that fact using a variety of rhetorical tools, see P Schlag, The Enchantment of
Reason (Durham, Duke University Press, 1998).
7
‘[R]egarding the freedom of expression, we do not concern ourselves with the truth of the expression’,
HCJ 806/88 Universal City Studios Inc v Film and Play Review Board 43(2) PD 22, 33 [1989] (in Hebrew).
The Deficiences of Balancing 241
provide a better protection of freedom of speech than a rule stating that freedom of
speech should be preferred unless the expression under discussion is blatantly and dam-
agingly false. The reason is that the term ‘blatantly and damagingly’ invites a resort to
balancing, which may result in the depletion of the protection conferred on freedom of
speech.
Despite its striking defects, the balancing approach has one decisive advantage, namely
the absence of any reasonable alternative in a wide variety of cases.8 As Cheshin J noted,
‘the concept of balancing rules us and all that surrounds us’.9 Nonetheless, this does not
mean that there is absolutely no alternative to the balancing approach and that it must be
used in every case. In this chapter I explore certain contexts in which the harms of the bal-
ancing method outweigh its advantages, and therefore the categorical approach should be
preferred. In a sense, the current chapter is part of a larger trend that can be identified in
Israeli law, according to which the value-based balancing approach has gone too far, and
a partial restoration of the formalistic dimensions of the law are needed.10
My test case is the conflict between the right to freedom of speech and the offence to
the feelings of the public. In the following pages I will show how Israeli law initially
refused to recognise the notion of a violation of public sensitivities as legitimate grounds
for restricting freedom of speech. Using current terms, Israeli law used to invoke a cate-
gorical approach – considerations of public feeling are irrelevant when deciding issues of
free speech. The rise of the balancing discourse changed this. Public feelings merited
gradually growing importance as an interest deserving of protection, and in respect of
which the balancing approach should be applied. This was the case regarding freedom
of speech and demonstration, the laws of defamation, and the legitimate limits of elec-
tions broadcasts. Simultaneously, accepting public feelings as a legitimate consideration
to be factored in triggered the ascent of the ‘feelings discourse’ in the judgments, con-
cerned with the feelings that certain forms of speech evoked, according to the judges.
The feelings of the judges started occupying an increasingly large place in the judgments.
Nowadays it is common to see judges intentionally projecting us into the world of their
inner feelings, pouring out their hearts, and applying emotional and even sentimental
rhetoric to describe the offensiveness of certain expressions.
My claim is that this phenomenon in both of its aspects is undesirable, portending an
unwarranted risk to freedom of speech. In the context of the offence to feelings, I argue
that the categorical approach – opposing any limitation on free speech based on claims
of offence to public feelings – should be preferred and in fact restored. I will argue that
using the balancing approach not only unjustifiably depletes free speech, given the prob-
lematic nature of the offence to public feelings claim, but also, in certain cases, actually
magnifies the offence to the very feelings it purports to protect. I will show that the
Israeli Supreme Court’s readiness to restrict freedom of speech on the grounds of offence
to feelings, as expressed in its application of the balancing approach, will in certain cases
8
For a discussion of the various attempts to offer alternatives to the balancing approach, which have been
at the most only partially successful, see Segev (n 1) 89–91 (mostly discussing the attempt to distinguish first-
order reasons from second-order reasons, and restricting balancing only for reasons of the same order).
9
CrimA 537/95 Ganimat v State of Israel 49(3) PD 365, 397 [1995] (in Hebrew).
10
This trend has been gaining increasing currency in other fields of Israeli law. See, for an example from
contract law, the discourse in the wake of the Apropim case (CA 4628/93 State of Israel v Apropim Housing
and Promotions 49(2) PD 265 [1995] (in Hebrew)). See, eg G Shalev, ‘Who Governs the Contract? Another
Look at the Aproprim Case’ in A Barak, Y Zamir and Y Merzel (eds), Mishael Cheshin Book (Tel-Aviv, Israel
Bar Publishing, 2009) 645 (in Hebrew).
render freedom of speech the prisoner not of a hostile audience but rather of a sensitive
audience. Now, more than ever before, the question of whether a certain expression will
be prohibited is dependent on the magnitude of the anticipated harm and the degree of
sensitivity of the public that responds to the expression. If the offence to feelings is suf-
ficiently powerful, it may justify the imposition of limitations on the freedom of speech.
The problem is that this approach supplies an incentive for those interested in the stifling
of the expression to attempt to ‘manufacture’ a stormy environment of inflamed pas-
sions and feelings and to intentionally aggravate the offence to feelings in the hope of
persuading the court to restrict the speech. The paradoxical result is that the court’s
willingness to restrict the freedom of speech in order to protect against the offence to
feelings actually magnifies its scope. Based on these and other considerations I argue that
the protection of public feelings should be categorically rejected as an illegitimate con-
sideration for restricting freedom of speech.
The rise of the ‘feelings rhetoric’ deserves special attention and research which I will
not attempt here. I will mention, however, that there are reasons to believe this develop-
ment impairs the quality of the judgments. First, it increases the subjective dimension of
the ruling and detracts from legal certainty. What one judge finds offensive may not
necessarily appear that way to another judge. The ascent of the feelings discourse there-
fore makes the legal result dependent not only upon the sensitivity of the public but also
upon that of the judges. Furthermore, as we shall see, when a judge writes from the
depth of her heart her vision narrows; the breadth of her perspective is impaired, and she
becomes less receptive to the possibility of understanding the expression in other, less
offensive, manners. These are undesirable consequence on their own, but they also add
to the diminishment of the protection of free speech.
In part I, I describe the rise of the balancing approach and the rhetoric of feelings in
the Supreme Court case law. In part II, I demonstrate the undesirable dynamic created
by the balancing approach in churning up public feelings with reference to two events:
the dispute concerning the Pride parade in Jerusalem, and the dispute over the publica-
tion of caricatures of Mohammed in Europe. Finally, I will clarify why the use of the
balancing approach should be limited, as should be the attendant discourse of feelings in
case law concerning freedom of speech.
II. THE RISE OF THE OFFENCE TO FEELINGS ARGUMENT
During the first three decades of the State’s existence, the Supreme Court did not recog-
nise a general claim of ‘offence to public feelings’ as a reason for restricting freedom of
speech.11 A restriction of freedom of speech was legitimate when the expression had the
11
In this chapter I have focused on the offence to feelings in the context of freedom of speech, although it
bears mention that in other contexts too there is a growing tendency to ascribe importance to offence to feel-
ings. Indeed, during the first few decades, in matters unrelated to freedom of speech too, the Supreme Court
was generally unwilling to ascribe significant weight to the claim of offence to feelings. See, eg HCJ 357/61
Tatlees v Mayor of Herzliya 16(2) PD 902 [1961] (in Hebrew) (rejecting the argument that a licence should not
be granted because it gave offence to feelings); HCJ 124/70 Cochavei Shemesh v Registrar of Companies 25(1)
PD 505 [1971] (in Hebrew) (acceptance of a petition against the Companies Registrar, who refused to register
a film titled Sirtei Kotel Ltd, on grounds of its giving offence to feelings; HCJ 230/73 STM Ltd v Mayor of
Jerusalem 28(2) PD 113 [1974] (in Hebrew) (annulment of Mayor’s decision not to grant a business licence to a
shop for sexual accessories because of its offence to feelings).
potential to cause real physical damage to public order, or peace, or to the life, person or
property of another person.12 In addition the Court was prepared to consider an offence
to feelings only in two specific contexts: an affront to religious feelings and a violation of
public morality attendant to pornographic publications.13 Even this, however, was not
the product of a general willingness to balance freedom of speech and offence to feel-
ings, but rather was anchored in the provisions of the criminal law, which prohibited the
publication of obscene publications14 and matter that may have outraged religious feel-
ings.15 For example, in the Keinan16 case the Court confirmed the decision of the Films
and Plays Censorship Board (hereinafter the Board) not to permit the presentation of the
play Friends of Jesus written by Amos Keinan, on the grounds that it was offensive to
the religious feelings of Christians. The Court explicitly related to the criminal prohibi-
tion, determining that the Board was entitled to prohibit the showing of a play that
involved a violation of the criminal law. All the same, and notably, already in that judg-
ment the Court questioned whether an offence to religious feelings in the generic sense,
that is where not involving a breach of criminal prohibitions, provided sufficient grounds
for the curbing of free speech. In its decision the Board also referred to additional
offences to public feelings, apart from an offence to religious feelings, but in respect of
the additional offences, Justice Landau wrote the following:
There can be no doubt that offending the feelings of mourning of the individual as well as of
the public attests to unheard of callousness and vulgarity. Even so, despite our revulsion, we
would have hesitated in confirming the prohibition of the presentation were this the sole
grounds, given our concern for a violation of freedom of expression. We can however leave this
matter pending because for purposes of our decision the grounds of offense to religious feelings
sufficed to justify the Board’s negative decision.17
In a gradual process however, the concept of an offence to feelings was severed from
its criminal origins and religious, moral roots. Gradually, it became recognised as an
independent claim concerning a general offence to public feelings. The first key judg-
ment in which offence to public feelings merited independent status was the decision of
Justice Barak in the Laor case.18 In that case the Board prohibited the staging of the play
Ephraim Returns to the Army, arguing that comparing IDF (Israel Defence Forces) sol-
diers and the military administration in the Territories, to the Nazi occupation, was
grossly offensive to the feelings of the entire Jewish public. The Court accepted the claim
in principle that an offence to feelings may justify the restriction of freedom of speech,
and made it clear that the Board’s authority to prohibit a play was not limited to plays
12
See HCJ 73/53 Kol Ha’am v Minister of Interior 7 PD 871, 876, 879 [1953] (in Hebrew).
13
ibid 879.
14
See Penal Law, 5737-1977, s 214(a) (original version in Criminal Code Ordinance, 5696-1936, s 179).
15
Penal Law (n 14) s 173 (which replaced s 149 of the Ordinance). The question of whether offending of
religious feelings should be criminalized, and whether religious feelings merit protection as opposed to other
kinds of feelings, has been extensively discussed. For a survey and argument in favour of abolishing these pro-
hibitions, see M Kremnitzer, S Goldman and E Tamir, Religious Feelings, Freedom of Speech, and the Criminal
Law: Proposal to Abolish the Criminal Prohibition of Expressions that Offend Religious Feelings (Jerusalem,
The Israel Democracy Institute, 2003). On the question of whether religious feelings deserve special protection,
see D Statman, ‘Hurting Religious Feelings’ in M Mautner, A Sagi and R Shamir (eds), Multiculturalism in a
Democratic and Jewish State (Tel Aviv, Ramot, 1998) 133–88.
16
HCJ 351/72 Keinan v Film and Play Review Board 26(2) PD 811 [1972] (in Hebrew).
17
ibid 816.
18
HCJ 14/86 Laor v Film and Play Review Board 41(1) PD 421 [1987] (in Hebrew).
which if presented would constitute a criminal offence.19 On the other hand, along with
this principled recognition, the Supreme Court expressed its clear reservations regarding
the curbing of freedom of speech exclusively by reason of an offence to public feelings.
The judgment ascribes minimal weight to the claim of offence to public feelings and in
contrast elaborates on the claim that the proper response to a publication that offends
public feelings is by articulating opposition to its message: ‘In a democratic regime, the
confrontation with this kind of work should not be by way of governmental power but
rather by way of education and persuasion; it must fail because of its exposure and not
its suppression’.20 Specifically addressing the comparison between the IDF soldiers and
the Nazi soldiers, Justice Barak ruled that the offence was not sufficiently severe to jus-
tify the restriction of expression:
I myself was a child during the Holocaust, and I crossed fences and borders guarded by the
German Army smuggling objects on my body. The parallel between the German soldier arrest-
ing a child and the Israeli soldier arresting an Arab youngster breaks my heart. Nonetheless, we
live in a democratic state, in which this heartbreak is the very heart of democracy. Its strength
lies not in its recognition of my right to hear pleasant matters that are music to my ears. Its
strength lies in its recognition of a person’s right to express matters that are grating to my ears
and which break my heart.21
The Laor judgment thus includes both the principled recognition of an offence to the
feelings of the general public as a claim that may justify a restriction of freedom of
speech, and reluctance to invoke those grounds on a practical level.
A few years later, in the Universal case,22 the metamorphosis of the offence to feelings
to the status of an independent claim moved an important step forward. The context
was the Board’s decision to prohibit the screening of The Last Temptation of Christ on
the grounds that it would gravely offend the religious feelings of Christians in Israel. The
issue concerned religious feelings, thereby relieving the Court of the need to rule on the
status of the more general offence to feelings claim; indeed, for the length of his judg-
ment Justice Shamgar was careful to refer exclusively to an offence to religious feelings
as grounds for placing restrictions on expression.23 Justice Barak on the other hand,
viewed offence to religious feelings as a specific instance of offence to public feelings,
which he regards as a central reason that may justify a limitation on freedom of expres-
sion.24 In his judgment Justice Barak related for the first time to the difficulty in principle
of recognizing an affront to feelings as a ground for curbing expression, insofar as it
gives rise to the concern that ‘every expression might harm some sentiment and recogni-
tion of harm to sentiments as a basis for restricting freedom of expression – without
drawing any distinction between religious sentiments and other sentiments – could
devoid the freedom of speech of any content’.25 Justice Barak’s solution to this problem
consisted on the one hand of reaffirming the holding that in principle the consideration
is a legitimate one, but at the same time he nearly empties it of practical significance by
19
ibid para 12.
20
ibid para 14.
21
ibid para 24.
22
Universal (n 7).
23
See, eg ibid paras 7 and 10 of Justice Shamgar’s opinion.
24
ibid para 10.
25
ibid para 9.
requiring that the offence be ‘harsh, serious, and severe . . . that exceeds the “tolerance
threshold” of a democratic society’.26
Justice Barak’s position was subsequently adopted as the settled case law of the
Supreme Court, in a number of judgments handed down from the middle of the 1990s,
and until about six years ago.27 The position can be summarised as follows: accepting
offence to feelings as a legitimate, independent reason for curbing free speech, even if no
physical harm or danger is expected, combined with the practical negation of the possi-
bility of actually restricting speech for this reason by establishing a particularly demand-
ing balancing formula requiring that the injury be harsh, serious, and severe to the extent
of shaking the foundations of democracy and mutual tolerance.
The Supreme Court’s willingness to grant legitimacy in principle to the claim of
offence to feelings precipitated a wave of similarly motivated petitions, beginning from
the early 1990s and until today. Indeed, during the first decade of this period (1993–
2004), in a relatively long series of judgments the Court consistently refused to give prac-
tical expression to its principled recognition, ruling time and again that the offence to
feelings had not reached the high level of gravity required to justify a restriction of free-
dom of speech.28 However, the stream of petitions did not stop until the dam burst, and
having burst, it remains open.
The first time the Court imposed restrictions on free speech based on an offence to feel-
ings was in the Shinui case, delivered in 2006.29 It concerned a petition of the Shinui party
against a decision of the Chairman of the Central Elections Committee to disqualify a
campaign clip that Shinui asked to broadcast during the elections to the Seventeenth
Knesset (Israeli Parliament). The Court rejected the petition, leaving the disqualification
intact and ruling that the broadcast was vilely reminiscent of anti-semitic propaganda,
in which the ultra-Orthodox Jew becomes a faceless person, a ‘non-human’ who crawls on the
floor and clings to the secular person as if he was a leech . . . this depiction is degrading and
humiliating, and violates human dignity in general and specifically the dignity of the ultra-
Orthodox Jew, stripping him of his image and dignity as a human being.30
The Court’s conclusion was that the offence to feelings exceeded the level of tolerance
required in a democratic society, and that the Chairman of the Central Elections
Committee was therefore entitled to prohibit its broadcast.31
26
ibid para 11.
27
See, eg HCJ 6126/94 Senesh v Broadcasting Authority 53(3) PD 817 [1999] (in Hebrew); HCJ 316/03 Bakri
v Israel Film Council 58(1) PD 249 [2003] (in Hebrew).
28
HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v Broadcasting Authority 48(2) PD 1
[1994] (in Hebrew) (confirmation of the broadcast of a radio advertisement containing the expression ‘leh
titztayen’ (literally – go and excel, but written in Hebrew the expression resembles a four letter expletive));
Senesh (n 27); (see English translation in: [1998–89] Isr LR 339) (confirming the television broadcast of a pro-
gramme offending the character of Hana Szenes); HCJ 2888/97 Novick v Second Television and Radio
Authority 51(5) PD 193 [1997] (in Hebrew) (see English translation in: [1998–89] Isr LR 362) (confirming
broadcast of television programme concerning the Rabin assassination, linking the incitement that preceded
the assassination to the assassination itself); HCJ 1514/01 Gur Aryeh v Second Television and Radio Authority
55(4) PD 267 [2001] (in Hebrew) (confirming broadcast of television programme on Shabbat, featuring the
petitioner, who are religious people); Bakri (n 27) (see English translation in: [2002–03] Isr LR 487 (confirming
the screening of the film Jenin Jenin); HCJ 5432/03 SIN v Council for Cable and Satellite Broadcasting 58(3)
PD 65 [2004] (in Hebrew) (confirming the broadcast of Playboy and other pornographic channels in the frame-
work of the cables and satellites broadcasts).
29
HCJ 2194/06 Shinui Party v Chairman of the Central Elections Committee (21 June 2006), Nevo Legal
Database (by subscription) (in Hebrew).
30
31
ibid.
It is doubtful whether the broadcast of the clip would really have shaken the founda-
tions of mutual tolerance. It is also doubtful whether Justice Barak’s description of the
clip is the sole way of viewing and understanding it. A similar tone is evidenced in Justice
Rivlin’s opinion on the matter, who concurred, albeit not without reservation, with
Justice Barak’s view. He added that the decision was ‘borderline’ and that the clip could
have been left untouched, but that the decision to disqualify it could not be considered
unreasonable to a degree that warranted the Court intervention.32 It is important to add
however, that the restriction on freedom of speech was nonetheless subjected to an addi-
tional condition that must obtain in order to restrict speech based on the claim of offence
to feelings: the requirement that the expression be one that humiliates, degrades and
offends the dignity of a group of people. In the words of Court President Barak:
We are persuaded that the case before us falls into the category of exceptional cases in which
the damage to emotions amounts to humiliation and degradation and an infringement on the
right to human dignity so severe that it should not be protected.33
Justice Rivlin too addressed this aspect:

In this case there is not only an offense to the public. The advertisement conveys a message that
offends the dignity of a specific group, on the basis of belonging to that group. The petitioner
is attempting to pave its way to the Knesset by way of its degrading presentation of the ultra-
Orthodox public. The question of the manner in which one should treat an expression deemed
as gravely offending a minority group, or any other group of diminished power, has and con-
tinues to occupy numerous systems of law.34
However, only a short time passed before the Court waived this requirement. This
development was reflected in a series of judgments given between 2006–08 on petitions
filed against the decisions of the police to permit the LGBT Pride parade in Jerusalem.35
As outlined below, over the years the intention to conduct the Pride parade has encoun-
tered fierce opposition on the part of religious groups in the city. Despite the opposition,
each of the annual parades received police approval, subject to restrictions on the route
and proceedings. In each of the years a petition was filed against the police, claiming that
the licence should be cancelled because the parade would endanger the public peace and
offend the public’s feelings. In each of the petitions the claim of endangering public
peace was rejected both because the Court saw no grounds for interfering with the police
decision on the matter, and because of its principled reservations regarding claims of this
nature when raised by the opponents of the parade. Here, the Court trod the path of
established case law, which ruled that when the danger to public safety originated not
from the demonstrators, but rather from a ‘hostile audience’ the police are required to
adopt all possible measures to ensure the safety of the demonstrators, and not to surren-
der to threats and prevent the demonstration.36
32
ibid para 8 of Justice Rivlin’s opinion.
33
34
ibid para 5 of Justice Rivlin’s opinion.
35
HCJ 8988/06 Meshi Zahav v Police Commissioner for the Jerusalem District (27 December 2006), Nevo
Legal Database (by subscription) (in Hebrew); HCJ 5277/07 Marzel v Police Commissioner for the Jerusalem
District (20 June 2007), Nevo Legal Database (by subscription) (in Hebrew); HCJ 5317/08 Marzel v Police
Commissioner for the Jerusalem District (21 July 2008), Nevo Legal Database (by subscription) (in Hebrew).
36
HCJ 153/83 Levi v Police Commissioner for the Southern District 38(2) PD 393 [1984] para 9 of Justice
Barak’s opinion (in Hebrew) (see English translation in: Isr SC 7, 38): ‘A person’s freedom is not to be infringed
merely because of violent objection to its exercise . . . It is the task of the police, in this situation, to keep the
In contrast, the claim regarding offence to feelings merited a far more attentive ear. In
all of the petitions the Court rejected the demand to cancel the parade because of the
offence to public feelings, but its reasoning was that the restrictions imposed on the
route and conduct of the parade created an appropriate balance between the right to
freedom of speech and the need to prevent offence to public feelings. In 2006 and 2007
this position was only alluded to, but in the decision on the 2008 petition the claim of
offence to feelings received significant weight as a factor that justified the imposition of
significant limitations on the parade. In the words of Justice Procaccia:
On the one hand, the Pride Parade should not be prevented, but on the other hand, consider-
ation should be had for public feelings and all possible measures taken to mitigate the offense
in various relevant aspects, including in terms of timing, location, the length of the route, the
duration of the event, the substantive format of the event itself, and the anticipated general
conduct and behavior of those participating in it.37
This completed the process whereby the Supreme Court accepted the claim that the
offence to feelings should be ascribed significant weight in determining the limits of
the freedom of speech, even where it concerned a patently political expression of an
oppressed minority group, and even where it is clear that the expression is not targeting,
humiliating or degrading any groups or individuals, but rather it aims to promote the
rights of the LGBT community and its struggle for equality. In the words of Justice
Procaccia:
This gathering of the gay and lesbian community and their participation in an event in a central
part of the city is intended to impart the community’s message to the public at large, and to
bring itself closer to them. They are intended to further the general public’s familiarity with the
community, and its own familiarity with the public, and to establish the community’s right
to blend into the overall social fabric of the city and its populace. The gathering of all the
members of the community for purposes of the event is instrumental in strengthening the inter-
connectedness of its members and crystallizing the social robustness of the group as a whole.38
In fact, in all of these cases it was the petitioners themselves whose speech and con-
duct were intended to humiliate and degrade.39 The necessary conclusion is that the law
today permits the imposition of significant restrictions on the freedom of speech if it
prevents a serious offence to public feelings, irrespective of the nature and motivations
of the speech and the motivations of those opposing it.
crowd from disturbing demonstrators, and not to prevent the demonstrators from exercising their right . . .
Showing deference to crowd hostility is like entrusting the key to exercise of the right of demonstration and
procession to those who oppose it. This has to be avoided and the mob is not to be given a power of veto, nor
violence a reward’.
37
HCJ 5317/08 Marzel (n 35) para 7 of Justice Procaccia’s opinion.
38
ibid para 5 of Justice Procaccia’s opinion.
39
I will not repeat the numerous homophobic and offensive expressions of the petitioners against the LGBT
community, and will suffice with saying that following the dismissal of one of the petitions, some of the peti-
tioners (Baruch Marzel and Itamar Ben-Gvir) organized a ‘beast parade’ that was conducted in parallel to the
Pride parade (see Ari Galhar and Ronen Medzini, ‘Donkeys at the Parade in Jerusalem; 3 Teenage Girls With
Eggs Arrested’, Ynet, 29 July 2010: www.ynet.co.il/articles/0,7340,L-3926962,00.html (in Hebrew)).
III. A CRITICAL EVALUATION: THE REASONS FOR NOT RECOGNIZING AN

OFFENCE TO FEELINGS AND WHY THE ATTEMPT TO PROTECT FEELINGS
ACTUALLY AGGRAVATES THE OFFENCE
My view, shared by many, is that freedom of speech should not be curbed on the grounds
of its being hurtful to feelings, religious or otherwise.40 An offence to feelings and values
is part of the reality of life in a pluralistic and multicultural society. In that reality, a
person must anticipate and accept the possibility of his or her feelings hurt by conduct,
values or beliefs of others who differ from him or her. The hurting of feelings is an
inseparable part of life in a pluralistic society, and an inevitable and often desirable
result of the exposure to a world of diverse values and customs.
Furthermore, since offence to values and feelings is both inevitable and ubiquitous,
the willingness to recognise it as legitimate grounds for restricting speech leads inelucta-
bly to limiting the speech of those who are weak and lacking in political power. Limiting
all offensive speech amounts to silencing almost anything controversial, and is therefore
inconceivable. The result is that the offence argument is most likely to be used by those
who have political power, and against those who lack it. It is no accident, for example,
that in a city where there is no shortage of events that can be described as offensive to
religious feelings, the Pride parade, of all things, was chosen as a target, and not, say, the
mosques on Temple Mount, or the growing number of restaurants open on the Sabbath.
Battles over those issues pose an overly formidable challenge for the ultra-Orthodox
community. The LGBT community of Jerusalem, on the other hand, seemed a relatively
convenient victim, against which part of the secular community may similarly be mobil-
ised, and against which an inter-religious coalition can be formed.41 The danger of the
selective use is then another reason for the categorical rejection of offence to feelings as
grounds for limitation of free speech.
Apart from all these general arguments, I believe that close examination of the offence
to feeling claim reveals that often it is nothing more than an attempt to demonstrate
political power and influence, and where this is the case, the hurting of feelings claim is
just one more manipulative tool wielded in a power struggle. This becomes evident if we
bear in mind that often the best way of diminishing the offence to feelings occasioned by
certain expressions is to simply ignore them. The attempt to stifle them may spark off a
societal struggle that leads to a far greater dissemination of the offending expression,
and hence a graver, more widespread outrage of public sentiments. Despite the simple,
practical logic of this claim, there are numerous cases in which an attempt is made to
curb particular expressions based on their offensive nature, even though the parties
40
For an excellent review and summary, see D Statman and G Sapir, ‘Freedom of Religion, Freedom from
Religion, and Protecting Religious Feelings’ (2004) 21 Bar-Ilan Legal Studies 5 (in Hebrew).
41
Eg in the context of the caricatures, the human rights activist Maryam Namazie wondered why no
apology was demanded from the leaders of the Muslim religion: ‘I’d like the offended Islamists – from the
Islamic Republic of Iran to Islamic Jihad to the Saudi government . . . – to apologise; not for their backward
and medieval superstitions and religious mumbo jumbo but for their imposition of these beliefs in the form of
states, Islamic laws and the political Islamic movement. If any of them want to apologise for the mass murder
of countless human beings in Iran and the Middle East, and more recently in Europe, for veiling and sexual
apartheid, for stoning, amputations, decapitations, Islamic terrorism and for the recent brutal attack on
Tehran bus workers and so on and so forth, just email me direct’ (Maryam Namazie, ‘Apologise for what?
On Caricatures of Mohammad’, Namazie’s blog, 1 February 2006: maryamnamazie.blogspot.com/2006/02/
apologise-for-what-on-caricatures-of.html).
attempting to stifle the expression are well aware of the inevitable consequences of their
battle. I will demonstrate this argument having resort to two events from recent years:
the dispute over the publications of caricatures of Mohammed in Europe in 2006 and the
dispute over the Pride parade in Jerusalem in the years 2005–07. I will begin with a brief
description of the unfolding of the events in each of the cases.
A. The Caricatures Case
In September 2005 the Danish newspaper Jyllands-Posten featured caricatures mocking

Mohammed and linking Islam to terror and violence. For example, one of the carica-
tures displayed Mohammed with a bomb concealed under his turban. The publications
triggered strident protests on the part of the Muslim factions in Denmark and demands
for an official apology and the adoption of measures against the publishers; the claim
being that the publication severely offended the religious feelings of Muslims. A number
of weeks passed, and after the caricatures were disseminated by religious Muslim figures
in other Muslim states, the protest began to make increasingly large waves. On the other
hand, newspapers from all over Europe responded to the calls for censorship by publish-
ing the caricatures, in support of freedom of speech and in a show of solidarity with the
Danish newspaper, and as part of their coverage of an event that had cascaded into an
event of international proportions. In the months of February and March 2006 mass
demonstrations were held in many Muslim states, some of them violent, against
European targets. The entire event received extensive coverage in all of the media for a
protracted period, naturally leading to unprecedented dissemination of the offending
caricatures. Caricatures initially viewed by a few hundred thousand readers of a Danish
paper were ultimately viewed by hundreds of millions of people all over the world. The
storm gradually abated, inter alia, because of a partial apology published by the paper.
B. The Jerusalem Pride Parade Case
The first LGBT Pride parade in Jerusalem was held in 2002, and subsequently in 2003
and 2004. The first parades were relatively quiet affairs, with a modest turnout at most
(from a few hundred up to about three thousand), and passed without incident. This
was mainly due to the decision of the Jerusalem ultra-Orthodox leadership to ignore the
parade, refusing to confer it the legitimacy and recognition of existence implied by
actively opposing it. It was also due to a silent agreement between certain rabbis of the
ultra-Orthodox community and the heads of the Open House, the organization that
initiated and organised the parades.42 During these years no legal issues arose that neces-
sitated judicial intervention.
This situation changed dramatically in 2005. Due to the confluence of a number of
events, some of which I discuss below, and the decision of the Jerusalem Open House to
conduct the International Pride Parade in Jerusalem (an intention which did not ulti-
mately materialise due to the political circumstances in Israel that summer, concerning
42
During the years 2004–06 the author of this chapter was a member of the Board of the Jerusalem Open
House, and many of the matters described here are based on first-hand experiences.
the ‘Gaza disengagement plan’ which was carried out at that time) the 2005 parade
became the focus of a fierce, acerbic intercommunal battle. In a rare show of unity, vari-
ous religioius leaders, headed by the ultra-Orthodox rabbis, initiated a broadly based
campaign aimed at exerting intense pressure upon the police and the Court which would
culminate in the cancellation of the parade in Jerusalem. Leaders of other religious com-
munities in Israel, such as the Latin Patriarch, the Vatican’s Israeli ambassador, and the
heads of the Sharia courts, joined in. This surprising show of interfaith solidarity pre-
cipitated extensive reporting of the event both in Israel and all over the world.43 The
Mayor, Knesset Members, and other public leaders also added their voices in calling for
the cancellation of the parade, and the whole affair dominated media reports for a num-
ber of weeks thereafter. However, stiff opposition notwithstanding, the police granted
the permit for the parade. The parade did not end peacefully. The marchers encountered
verbal and physical violence, climaxing in an assault by a young ultra-Orthodox man
who burst into the ranks of the marchers, stabbed three of the participants, causing
them serious injuries. He was arrested, charged, and sentenced to 10 years in prison.
These grave events substantively altered the attitude of the Israeli police. In 2006
there was a repetition of the opposition to the event on the part of religious and ultra-
Orthodox sectors, and as a result, the Israeli police refused to issue the permit, fearing
for the safety of the marchers and public order. Following a petition to the Supreme
Court filed by the Open House, the permit was granted, but subject to numerous restric-
tions with respect to the route of the parade, which was significantly changed and
abridged.44 Petitions filed against granting the permit were dismissed,45 but ultimately
the parade was cancelled due to other security related reasons. Instead there was an
assembly in the Givat Ram stadium. This pattern repeated itself in 2007. After much
hesitation and delay, the Jerusalem police gave a permit for the parade, once again sub-
ject to significant restrictions regarding the route and its conduct (by this stage, the total
length of the parade had been whittled down to just a few hundred meters). Opponents’
petitions calling for the cancellation of the parade were dismissed with the Court once
again establishing severe limitations intended to strike ‘an appropriate balance’ between
freedom of speech and the protection of public feelings.46 In 2008 matters returned to
what they had been between the years 2002–04, and municipal calm was preserved,
mostly due to the conclusion reached by the leaders of the religious communities that the
damage of the opposition exceeded its benefits.
Focusing now on the Supreme Court proceedings and decisions during these years,
we can see the rise of the offence to feelings claim in action. Interestingly, when the
worry of the personal safety of the public was raised, the Court was quick and decisive
in rejecting it. The Court consistently reiterated the entrenched principles of Israeli
constitutional law, according to which it is unacceptable to limit speech due to threats
to safety caused by a ‘hostile crowd’. This, the Court repeatedly and rightly stated,
43
See, eg Meirav Levi, ‘Leaders of the Three Religions Protest the International Gay Pride Parade in
Jerusalem’, News 1, 30 May 2009 available at: www.news1.co.il/Archive/001-D-67546-00.html (in Hebrew); see
also the New York Times report of the same event: Laurie Goodstein, ‘Clerics Fighting a Gay Festival for
Jerusalem’, New York Times, 31 March 2005: www.nytimes.com/2005/03/31/international/worldspecial/31gay.
html.
44
HCJ 7348/06 Jerusalem Open House for Pride and Tolerance v Police Commissioner for the Jerusalem
District (19 June 2006), Nevo Legal Database (by subscription) (in Hebrew).
45
Meshi Zahav (n 35).
46
HCJ 5317/08 Marzel (n 35).
would be tantamount to encouraging and even rewarding violence. Regarding the

offence to feelings argument, however, the Court adopted a different approach.
Whereas the restriction on the freedom of speech by reason of concern for a disruption
of public order was regarded as ‘a prize for violence’ and an incentive to violent con-
duct, the restriction of freedom of speech by reason of offence to feelings was viewed as
an expression of a reasonable balance between two competing social considerations.
Closer examination on the other hand reveals that both cases are substantively similar.
The Court’s willingness to restrict offensive speech provided an incentive for a hostile
crowd to ‘drum up’ a conflict, to inflame emotions, and deliberately intensify the
offence to feelings so as to subsequently demand the restriction of the speech. In other
words, the willingness of the Court to consider the offence argument, and to balance it
against the right to free speech, led to two undesirable outcomes: first, it contributed to
the creation of more hurt feelings, as I explain below. Second, freedom of speech is now
hostage not of a violent crowd, but of a ‘sensitive’ crowd, depositing the keys for the
realization of freedom of speech in its hands. Should it so deign, it will keep the peace
and enable the speech. Alternatively it may choose to precipitate a public storm, galva-
nizing opposition and stirring up emotions, and then, when passions are sufficiently
inflamed, it will demand the restriction of free speech ostensibly to protect against giv-
ing offence to feelings.
This is precisely the conclusion that must be drawn from the unfolding of events in the
cases of caricatures, and the Pride parade. An examination of these cases forces the con-
clusion that those demanding to prohibit publication of the caricatures or to prevent the
Pride parade were not really seeking to protect the feelings of religious believers. In both
cases it was well known and anticipated that the attempt to suppress the speech would
fuel the unprecedented dissemination of the offending speech, in dimensions that would
have been unimaginable if not for the attempt to suppress it.
For example, the immediate consequence of the campaign to censor the caricatures
was the publication of the offensive caricatures all over Europe, and all over the world.
The hostile response to the publication of the caricatures and the demand for their cen-
sorship prompted dozens of newspapers all over Europe to publish the offending carica-
tures in an expression of their solidarity with the Danish paper and as a protest against
the attempts to silence it. Hundreds of other media outlets all over the world reported
the ensuing riots, and brought the caricatures to the knowledge of millions of others,
both Muslim and others, thereby compounding and intensifying both the offence to
Islam and the offence to the feelings of Muslim believers all over the world.
The same is true of the Pride parade. The ultra-Orthodox opposition lead to unprec-
edented enlistment both on the part of the parade’s supporters and on the part of those
who would not, initially, have supported it, but who felt obliged to support it as an
expression of their commitment to the freedom of speech, once the ultra-Orthodox had
demanded to prevent it. Here too the burgeoning conflict received unprecedented press
coverage so that at the end of the day there was not a single ultra-Orthodox in Jerusalem
who had not heard about the Pride parade. Ultimately, the event was attended by 10,000
people, the highest turnout in the parade’s history.
We therefore see that the calls to protect feelings are actually accompanied by the
opposite result – dissemination of the offending speech in unprecedented dimensions,
whipping up feelings, intensifying the conflict with a clear and inevitable result – an
offence to feelings of incomparably larger dimensions than would have been if not for
the attempt to stifle the expression based on the claim of offence to feelings. This ironic
and paradoxical result is neither incidental nor surprising, it is in fact inevitable if the
balancing approach is adopted, for the two reasons already mentioned.
First, given the balancing formula, requiring a severe, profound and broad offence in
order to justify limitation of speech, the need therefore arises to create and intensify that
kind of offence, even if it did not exist initially, by disseminating the offending speech in
unprecedented dimensions, by directing the attention of the believers to it, by churning
up public furore and by creating a conflict. Only after the atmosphere has been suffi-
ciently inflamed and the emotions sufficiently whipped up, can one come and demand a
limitation of the offending speech.
Second, the attempt to silence speech, which as mentioned also includes the staging of
inflamed emotions, naturally prompts a response from the supporters of freedom of
speech, including those who initially felt that the offending speech was superfluous, in
bad taste, or insensitive. Many of these who would not initially have seen the need to
support such speech will nonetheless support it when its suppression is perceived as an
offence to human rights and democracy. The offending speech attains formidable dimen-
sions, far in excess of its original import, becoming a symbol and component in a culture
war. This happened in Europe, when the issue of the caricatures was enlisted into a cul-
ture war that focused on the increased Muslim immigration to the European states; and
it happened in Jerusalem too, when the issue of the Pride parade was enlisted into the
broader culture war between the religious and the secular. Like any war, a culture war is
an attractive media item, and the conflict merits unprecedented media coverage, with
news items, photos, interviews, op-eds both for and against. Once again the result is the
unparalleled amplification of the offence to feelings which, prima facie, we initially
aimed to protect.
We can now see that in many cases, those who claim that an offence to feeling must be
prevented, are in fact motivated by totally different reasons. If protecting emotions was
truly their motive, the best strategy would be to simply ignore the offensive speech, thus
minimizing its harmful effects. Since they do not do that, we must conclude that they are
in fact trying to promote other societal and political interests, that have very little to do
with defending emotions. I will enumerate some of these interests without presuming to
exhaust the many and varied possibilities.
The conflict as a unifying event. Often a conflict becomes a focus around which the
community can be rallied and unified to fortify its self-definition and identity, by con-
trasting it with the values and culture of ‘the other’. It becomes one of those unifying
events that are so important for the internal cohesion of every community. Indeed, as
exemplified by the cases of the caricatures and the Pride parade, events of this kind are
particularly important to traditional minority groups battling to preserve their identity
and uniqueness in the framework of the secular and liberal state. Both cases provide the
opportunity for the minority communities to once again trumpet the shortcomings of
the liberal, secular, degenerate and godless West that sanctifies human rights and indi-
vidualism in contrast with their own traditional and religious values.
The conflict as a show of strength. The conflict may serve to show both the internal
and external strength of the group. Thus the Pride parade conflict in Jerusalem was
intended, inter alia, to give expression to the power of the ultra-Orthodox community,
enabling them to show ‘who is in charge’ in Jerusalem. And as I explained above, the
target – the LGBT community – was carefully selected in accordance with that goal.
The conflict as a tool in internal struggles. There are times when the creation of a
conflict regarding a certain form of speech becomes a tool wielded in internal commu-
nity struggles. For example, in the framework of struggles between ultra-Orthodox
groups in Jerusalem, criticism was levelled against the ex-Mayor of Jerusalem, the ultra-
Orthodox Uri Lupolianski who allegedly was not doing enough to prevent the abomi-
nable parade. In response the Mayor was compelled to be more abrasive and militant in
his opposition to the parade. He even went so far as to compare the Pride parade to
placing the head of a pig inside the Al-Aqsa Mosque.47 Other people, who had been
anonymous when the dispute broke out, became particularly vocal in the inflaming of
passions, giving rise to suspicion that they were motivated not so much by their desire to
protect religious sentiments as by the desire to promote their own names and actions
(such as Rabbi Yehuda Levin and the councilwoman Mina Fenton).
In the cases of the caricatures too one discerns the influence of power struggles on the
conduct of those involved. In the beginning of February 2006 two stormy demonstra-
tions were conducted in opposition to the publication of the cartoons, one in Syria and
the other in Lebanon. Both demonstrations ended with the Danish embassies being set
on fire. In Lebanon a church too was set on fire. In the context of these demonstrations
the jurist Zaid Al-Ali said the following:
Very few people in Lebanon seem to believe that this weekend’s violence was a true and spon-
taneous reaction to the Danish caricatures. By and large, the Lebanese interpreted the Damascus
protest as a message from the Ba’athist leadership to the outside world: if you topple our gov-
ernment, these are the people that will take our place, so tread carefully. For many Lebanese,
the Beirut protest on the following day was another message from Damascus: without Syrian
oversight, Lebanon is chaotic and simmers with sectarian hatred.48
The conflict as an economic resource. Finally, the conflict may carry economic divi-
dends. A political storm and inflamed feelings are of tremendous value not only for clos-
ing ranks and enlisting supporters, but also, and for the same reasons, for raising
financial resources. For example, in the book Perfect Enemies: The Battle Between the
Religious Right and the Gay Movement,49 authors John Gallagher and Chris Bull
describe how the two political movements exploited local ‘burning issues’ and political
storms in order to augment their financial support.50 Here too I can personally attest that
during the weeks before the Pride parade in Jerusalem in 2006, there was unprecedented
willingness on the part of the donators to the Open House to provide economic support
for the battle being waged at that time.
These four factors can certainly be supplemented by others, such as the conflict as a
tool for ‘letting off steam’, the conflict as a building block of communal identity, and
others. At times, the conflict will simultaneously fill all of these roles. The entire phe-
nomenon was articulately depicted in the razor sharp language of the Orthodox journal-
ist B Michael, who related to the claim that the Pride parade would offend the feelings of
the religious:
See an interview with the Jerusalem weekly Kol Ha’Ir, 20 May 2005.
47
Zaid Al-Ali, ‘The Lebanese Reaction’, openDemocracy, 6 February 2006: www.opendemocracy.net/conflict-

48
europe_islam/muslim_cartoons_3244.jsp#three.
49
J Gallagher and C Bull, Perfect Enemies: The Battle Between the Religious Right and the Gay Movement
(Darby PA, Diane Publishing, 1996).
50
As the saying goes: ‘the shriller you are, the easier it is to raise money’.
The whole myth of the delicate feelings of the Haredim [ultra-Orthodox] is nothing but a
uniquely effective stunt to justify demonstrations of strength, for raising clerical and budgetary
demands, and occasionally for providing vital release of the billows of frustrations that pile up
in the belly of a pressured populace. For fifteen years I lived on the outskirts of Mea Shearim in
the thick of the Haredim. I learnt to respect and admire them, but I also became familiar with
‘their tricks and their shticks’. Everybody who is worried about the feelings of the Haredim
should come just once and see the joyful glee that engulfs the Haredi community in anticipa-
tion of each of these carefully orchestrated storms, to understand the degree to which this
entire business is more for entertainment than for the sake of heaven. The children whoop it
up. The young boys quiver in anticipation. The Yeshiva [institution for religious studies] drop-
outs eagerly seize the opportunity to prove their piety, and the shepherds of the community
know that they have supplied their flock with healthy exercise and myths of bravery for future
generations.51
IV. CONCLUSION
Summing up, a harsh and extensive offence to religious or other feelings is not, for the
most part, a direct result of offensive speech in and of itself. Rather, it is intentionally
‘produced’ for societal, strategic, political, and other reasons. These are all of course
legitimate forms of social mobilization and community building, but they have nothing
to do with protecting feelings, and everything to do with the typical dynamics of culture
wars. When the courts become involved in events of this kind they do not protect feel-
ings; rather, they are dragged into the culture war itself. This, I believe, adds weight to
the already strong case for declaring offence to feelings as a categorically illegitimate
consideration when deciding issues of free speech in a pluralistic society.
51
M Brizon, ‘The Parade of Hysteria’, Yedi’ot Aharonot, Tel-Aviv, 3 November 2006.
17
Proportionality: Comparative Perspectives
on Israeli Debates
SUJIT CHOUDHRY*
I. INTRODUCTION
P
ROPORTIONALITY IS A pervasive feature of contemporary constitutional
practice under most systems of rights-protection. Although its textual underpin-
nings are diverse, this diversity in constitutional forms has been overwhelmed by
the emergence of a doctrine of proportionality with a common legal structure. After
decades of doctrinal development marked by self-conscious and deliberate constitu-
tional convergence, we are now witnessing the rise of a scholarly literature on propor-
tionality that is genuinely comparative, and which is trying to catch up with constitutional
practice. Its centre of gravity is proportionality in the strict sense. This may reflect the
fact that it is at this stage where the bulk of legal analysis tends to take place in the juris-
dictions that command central academic attention, notably Israel and Germany (and
now perhaps even Canada).1
Proportionality in the strict sense has generated intense academic controversy on a
range of issues. There have been questions over the exact methodology of balancing,
with Robert Alexy and Aharon Barak setting out proposals that reconstruct and sys-
tematise German and Israeli constitutional doctrine.2 This, in turn, has raised the issue
of whether this methodology is rational and hence qualifies as a form of legal reasoning,
or whether it is a form of intuitionist ad hocery. These debates are analytically distinct
from, but closely related to, a set of institutional concerns regarding the capacity of
courts to apply proportionality in a manner that is consistent and predictable across
judges and cases and is appropriately shielded from the corrupting influence of judicial
preference, questions regarding comparative institutional competence, and the difficul-
ties in adducing and assessing the evidentiary materials seemingly required by the
demands of justification. These institutional concerns have spawned a series of doctrinal
* I thank Aharon Barak, Daphne Barak-Erez, and Gideon Sapir for their kind invitation to speak at ‘Israeli
Constitutional Law in the Making – Comparative and Global Perspectives’. All remaining errors are mine.
1
A Barak, ‘Proportional Effect: The Israeli Experience’ (2007) 57 University of Toronto Law Journal 369;
D Grimm, ‘Proportionality in Canadian and German Constitutional Law’ (2007) 57 University of Toronto
Law Journal 383; Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567 (Can).
2
R Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press); A Barak, Proportionality:
Constitutional Rights and Their Limitations (Cambridge, Cambridge University Press, 2012).
256 Sujit Choudhry
proposals that systematically under-enforce proportionality, in Larry Sager’s sense of

that term.3
Yet another set of debates concerns whether proportionality undercuts the very idea
of rights themselves. Habermas tells us that rights are ‘firewalls’, and draws a sharp dis-
tinction between ‘law defined through a system of rights’ that ‘domesticates, as it were,
the policy goals and value orientations of the legislator through the strict priority of
normative points of view’, and a proportionality analysis under which rights are merely
‘goods and values’ which ‘must compete with the others at the same level for priority’.4
To these critics, proportionality in the strict sense embodies everything that is wrong
with the very idea of permitting proportional limits on constitutional rights.
By contrast, the question of legitimate objectives has suffered from relative neglect in
the literature. This too may reflect constitutional practice, because laws easily clear this
step, and judicial scrutiny is relatively minimal. Indeed, courts have sometimes said that
legislative objectives are off-limits, and will therefore accept any plausible objective
offered by the government without gazing behind it. Why is this the case? David Beatty
has offered the most well-developed answer, and argues that proportionality sets up an
institutional division of labour between legislatures and courts, where legislatures can
pursue whatever policy they want, and courts confine their role to policing legislative
means.5 The policy of near complete judicial non-intervention on legislative purposes is
accordingly a response to the counter-majoritarian dilemma. Closely related is the idea
– set out by Grégoire Webber among others – that proportionality is a strategy to
depoliticise judicial review by bracketing deep disagreement over fundamental questions
of political principle.6 It purports to lower the stakes of these disagreements by refusing
to set boundaries on the acceptable modes of argument in politics, and channelling dis-
agreement into a highly contextualised enquiry rooted in the particularities of an indi-
vidual case, often turning on questions of instrument choice and empirical evidence. On
this view, it is important that there be few if any limits set on the range of permissible
legislative objectives, and that statutes whose purposes appear to be unconstitutional be
given a sympathetic reconstruction in order to permit the proportionality analysis to
occur.
But the difficulty is that these goals contradict the very terms of the proportionality
test itself. There is an important distinction between the different elements of a propor-
tionality analysis. Steps one and two accept the legitimacy of the objective, and scruti-
nise the instrumental relationship of means to ends. By contrast, proportionality in the
strict sense re-engages the objective itself, and, inter alia, assesses its relative importance
in relation to the limitation of rights. Now there is an intramural debate over the extent
of the analytical overlap between the initial search for a legitimate objective and the final
prong of proportionality.7 But if we put that debate to one side and concede that these
two enquiries are not coextensive, it is nonetheless true that they raise similar questions,
3
LG Sager, Justice in Plainclothes: A Theory of American Constitutional Practice (New Haven, Yale University
Press, 2004).
4
J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy
(Cambridge, MIT Press, 1998) 259.
5
DM Beatty, The Ultimate Rule of Law (Oxford, Oxford University Press, 2004).
6
GCN Webber, The Negotiable Constitution: On the Limitation of Rights (Cambridge, Cambridge
7
For competing views, see Barak, ‘Proportional Effect’ (n 1); PW Hogg, Constitutional Law of Canada
(Toronto, Thomson/Carswell, 2007).
Proportionality: Comparative Perspectives 257
and do similar work. So the choice is not whether to bracket the scrutiny of legislative
objectives entirely, but whether to front end or back end their consideration.
What unites the chapters by Ben-Shemesh8 and Kremnitzer9 is that they make the case
for front-ending the examination of legitimate objectives, prior to engaging in propor-
tionality analysis. Ben-Shemesh terms this the rejection of balancing in favour of cate-
gorical answers at the legitimate objective stage, and trains his sights on the Israeli
jurisprudence on offensive expression to argue that the fact that speech causes offence to
feelings should not count at all as a legitimate reason for restricting expression.
Kremnitzer devotes considerable attention in his chapter to the idea of judicial scrutiny
of pretextual purposes that serve as cover for illegitimate objectives. The chapters raise
three questions:
1. What purposes are illegitimate, and hence terminate the limitations analysis before
one proceeds to proportionality?
2. Can we reinterpret those elements of proportionality that describe themselves as not
concerned with the scrutiny of ends and which take those ends as givens – suitability
and necessity – as tools to uncover illegitimate purposes?
3. When the state acts in response to the demands of some private parties to restrict the
rights of other private parties, how should a court characterise the purposes under
lying its actions?
II. ILLEGITIMATE REASONS
The chapters set out reasons for state action that are illegitimate and therefore cannot
serve as a basis for justifiably limiting constitutional rights. But the reasons offered vary
in where they lie on the continuum from the highly specific to the very abstract. Ben-
Shemesh focuses narrowly on why the protection of feelings should not count as a legiti-
mate reason to limit free speech – because such feelings are unavoidable in pluralist
democracies committed to freedom of expression; because regarding such feelings as
legitimate reasons to limit rights creates the perverse incentive to politically mobilise to
create these feelings, putting pressure on the state to limit expression and to provide a
constitutional case for these limitations; and because only politically powerful interests
will be able to conscript the state to limit expression. Kremnitzer is highly abstract. He
does not reason up from particulars, and instead starts at the other end from the consti-
tutional order itself, and posits that an illegitimate purpose is one that is inconsistent
with the values of the state.
The next step in this collective project among Israeli constitutional scholars is to fill
the gaps between these positions, and provide a general account of illegitimate reasons
that is both based in more abstract principles and explains, justifies and organises
answers in particular cases. This is not just an Israeli problem. The question of illegiti-
mate reasons, or unconstitutional motives, has arisen in India, South Africa, Germany,
Canada and the United States (and no doubt in other jurisdictions). Israeli constitutional
scholars might want to mine comparative constitutional experience for argumentative
strategies on how to frame this problem and approach this issue.
Ch 16 in this volume.
8
9
258 Sujit Choudhry
For example, one could take up Kremnitzer’s proposal and infer illegitimate purposes
from the very structure of the state – what Indian constitutional jurisprudence calls its
basic structure. For example, if the state’s basic structure encompasses a Bill of Rights
protected through judicial review, one can infer a commitment to the project of liberal
constitutionalism that underlies a Bill of Rights, and hence conditions its interpretation.
One could argue that judicial review and Bills of Rights institutionalise the Dworkinian
commitment to equal respect and concern, which forbids the state from acting on rea-
sons that evince such a lack of concern or respect – for example, on the basis of sexual
orientation, sex, religion or race.10 This kind of commitment underlies the jurisprudence
of the Supreme Court of Canada, which per se prohibits sectarian, sexist, homophobic
and racist preferences as reasons for the limitations of constitutional rights.11 Or one
could reason, as has the Constitutional Court of South Africa, that the very idea of a
constitution committed to the rule of law prohibits the enactment of laws for what Cass
Sunstein has termed naked preferences. Although Sunstein defines naked preferences
narrowly as the ‘distribution of resources or opportunities to one group over another
simply because they held and exercised the requisite raw political power’,12 which would
render constitutionally suspect any legislation that rewards groups engaging in rent-
seeking behaviour, the reach of the South African conception of naked preferences is
broader, and encompasses any legislative purpose that is arbitrary, capricious and does
not plausibly bear further any notion of the public good (and indeed, is a free-standing
ground of judicial review that need not be triggered by the infringement of a constitu-
tional right).13
The South African jurisprudence on unconstitutional motives illustrates another point
– the importance of history. The notion that the state should be prohibited from acting
on the basis of naked preferences is based on a barely concealed view that this is how the
South African State conducted itself under apartheid. And so the constitution can be
understood as a sort of remedial document, whose foundational premises involve a deci-
sive rejection of the constitutional order on whose ashes it sits – what can be termed the
‘never again’ principle. The idea of the past as a negative, anti-model of constitutional
experience, that defines a contemporary constitution by what it is not, is an under-
recognised and under-utilised resource that bridges the gap between universalistic prin-
ciples of political morality and particular national experiences. Another example of this
way of distilling illegitimate purposes emerges from Indian constitutional jurisprudence.
In Naz Foundation v Government of NCT of Delhi,14 the Delhi High Court has set out
the notion of a ‘constitutional morality’ which it derives from a reading of the history of
the framing of the Indian Constitution. One element of that history is the idea of the
constitution as an instrument of social revolution that obliges the state to dissolve exist-
ing social, political and economic hierarchies based on caste, especially with respect to
untouchables. Naz Foundation reasons from these premises to declare illegitimate any
10
R Dworkin, A Matter of Principle (Cambridge, Harvard University Press, 1985).
11
R v Big M Drug Mart Ltd [1985] 1 SCR 295 (Can).
12
CR Sunstein, ‘Naked Preferences and the Constitution’ (1984) 84 Columbia Law Review 1689.
13
Pharmaceutical Manufacturers Association of South Africa: Re ex p President of the Republic of South
Africa 2000 (2) SA 674 (CC) (S Afr).
14
Naz Foundation v Government of NCT of Delhi (2009) 160 DLT 277 (India). For a detailed discussion of
this point, see S Choudhry, ‘How to Do Comparative Constitutional Law in India: Naz Foundation, Same Sex
Rights and Dialogical Interpretation’ in S Khilnani, V Raghavan and AK Thiruvengadam (eds), Comparative
Constitutionalism in South Asia (Delhi, Oxford University Press, 2013) ch 2.
state action that is designed to reproduce a caste-like status for other social groups, such
as homosexuals.
A different approach would identify illegitimate purposes in connection with specific
rights. Each right has a point or basic purpose of what sort of interests it is meant to
protect. It is per se illegitimate for governments to act for the sole reason of deliberately
robbing people of that interest, as opposed to pursuing another social goal that has the
incidental effect of infringing the right. The comparative law of democracy furnishes a
useful illustration of this idea in practice. One basic goal of the right to vote is to create
a system of democratic accountability, whereby citizens choose their representatives
through elections. A particular danger faced by democracies is attempts by incumbents
to insulate themselves from democratic accountability through the manipulation of the
rules governing elections. And so in a series of decisions, the German Constitutional
Court has declared that laws enacted for this legislative purpose are unconstitutional,
because their very purpose is to subvert the basic objective of the right to vote.15
I conclude this part on a broader note. One of the main objections to proportionality
analysis is that it fails to acknowledge that rights-claims should have a special urgency
that requires that they be treated differently from the goods and values pursued by lib-
eral democracy. It is said that proportionality, especially proportionality in the strict
sense, fails to take seriously the categorical nature of rights claims. These debates have
been given renewed force by constitutional cases brought on the basis of the right to life,
and the right to not be subject to torture. The decisions of the German Constitutional
Court in the German Airplane case,16 and the Israeli Supreme Court in Public Committee
against Torture in Israel v State of Israel,17 suggest that some rights should not be subject
to proportionality because they are absolute. Arthur Ripstein, for example, has pro-
posed a hierarchy of rights, some of which are immune from proportionality (eg life,
bodily integrity), and the remainder that are not (eg property).18
But as these examples make clear, there is another way to structure constitutional
doctrine that takes seriously the categorical nature of rights-claims even for those rights
without a plausible claim to being absolute. Certain reasons for limiting constitutional
rights may be per se inadmissible, either because they contradict the basic structure, mis-
sion or premises of the constitutional order, or because they deliberately undermine the
very purpose of a particular right. This second kind of reason-based restraint emerging
from rights is interesting. As Jeremy Waldron and Richard Pildes have argued, it has
long been recognised that one dimension of rights is their reason-blocking function.19 An
emerging literature seeks to move this discussion forward, and develop a taxonomy of
those rights that connote excluded reasons, and those which do not.20
I cannot develop the point here, but my sense is that every right excludes certain rea-
sons to limit it. Moreover, while some rights may have excluded reasons in common, in
15
S Issacharoff and RH Pildes, ‘Politics as Markets: Partisan Lockups of the Democratic Process’ (1998) 50
Stanford Law Review 643, 690–99.
16
115 BVerfGE 118 (2006) (Ger).
17
18
A Ripstein, ‘Proportionality without Balancing’ (unpublished).
19
RH Pildes, ‘Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism’
(1998) 27 Journal of Legal Studies 725; J Waldron, ‘Pildes on Dworkin’s Theory of Rights’ (2000) Journal of
Legal Studies 301; RH Pildes, ‘Dworkin’s Two Conceptions of Rights’ (2000) 29 Journal of Legal Studies 309.
20
K Möller, ‘Two Conceptions of Positive Liberty: Towards an Autonomy-based Theory of Constitutional
Rights’ (2009) 29 OJLS 757.
260 Sujit Choudhry
many cases, those reasons will differ. The implications for proportionality analysis are
important. It is often claimed that there is a trend towards a generic proportionality
analysis in which rights have disappeared from the picture. This has been fuelled by the
proliferation of rights, the expansion of the scope of rights to encompass a broad right to
negative liberty, and the trend towards generic proportionality clauses. Bills of Rights,
in the view of David Beatty, Moshe Cohen-Eliya, Mattias Kumm, and Iddo Porat, create
a general right to justification.21 But there is another possibility, in which each right
steers the court and orients its proportionality analysis in a different direction that flows
from the very nature of that right itself. There may not be a generic proportionality
analysis, but rather a family of ‘proportionalities’, each with a subtly different character
shaped by the scope of permissible reasons permitted by the right in question.
III. REINTERPRETATION OF MEANS/ENDS ANALYSIS AS

THE SEARCH FOR OBJECTIVES
Steps two and three of proportionality proceed from the assumption of a legitimate
objective, and scrutinise the relationships of means to ends. Step two assesses the suita-
bility of the means to achieve the objective, whereas step three determines its necessity
through a search for other equally effective alternatives that meet the same aim.
Throughout this analysis, the objective is treated as unassailable. But can we reinterpret
these steps in a manner that treats the objective not as a given, but as provisional, and
which views the probing of the relationship between means and ends as a tool to uncover
illegitimate purposes?
The particular problem here is that of pretextualism, where the government publicly
offers as justification a legitimate objective for state action that merely serves to mask its
true purpose, which is illegitimate. This is a problem that Kremnitzer addresses in his
chapter. The most direct way for a court to flush out and expose illegitimate motives is
through a careful examination of the factual record, to see if the evidence adduced sup-
ports the existence of the problem the challenged measure purports to address, and the
claim that this problem was in fact the mischief that prompted the measure. The absence
of evidence for a legitimate objective would be sufficient grounds to hold for the rights-
claimant. But in the face of the suspicion that an illegitimate objective was really at
work, the absence of evidence may also provide grounds for a court to draw the infer-
ence that what really motivated the objective were illegitimate considerations.
But another technique to flush out illicit motives is to take an equally sceptical
approach to scrutinizing the relationship between means and ends. The failure of a mea-
sure to meet the demands of suitability or necessity does not merely indicate that the
government has chosen constitutionally prohibited means to pursue its stated goals.
Rather, it is evidence that casts doubt on the credibility of the government’s assertion of
its objective, and may point to a hidden agenda that is constitutionally illegitimate. The
21
Beatty (n 5); M Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the
Proportionality Requirement’ in S Paulson and G Pavlakos (eds), Law, Rights and Discourse: The Legal
Philosophy of Robert Alexy (Oxford, Hart Publishing, 2007) 131; M Kumm, ‘The Idea of Socratic Contestation
and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4 Law and Ethics of
Human Rightss 142; M Cohen-Eliya and I Porat, ‘Proportionality and the Culture of Justification’ (2011) 59
American Journal of Comparative Law 463.
idea that the lack of suitability between means and stated ends is a sign of constitutional
trouble for those ends is an old one. The complete ineffectiveness of means to fulfill
stated ends is one scenario in which this arises. Another is where those means produce
perverse effects – that is, effects precisely opposite to those intended. The inference is
that a government would have known in advance that measures were ineffectual or
counter-productive, and that if it nonetheless persisted in adopting them, its true moti-
vations must lie elsewhere.
Much less attention has been devoted to the power of the enquiry into necessity to do
the same work. This flows from the way in which courts approach this question –
through a static comparison of the comparative effectiveness of alternative means to
achieve the legitimate objective. This may be a highly artificial exercise, engaged in
strictly for the benefit of the court. But there is another way to conceptualise the judicial
enquiry into necessity. As Kremnitzer suggests, the prospect of judicial review should
create the incentive to address alternative means and their comparative effectiveness
during the policy process, including in legislative debates. If so, the judicial assessment
of necessity can be reframed as a probing enquiry into the executive and/or legislative
process, and to examine whether and how alternatives were considered. Following
David Dyzenhaus, we can think of this as a way of proceduralizing proportionality
analysis.22 Dyzenhaus’ principal example is the administrative decision at issue in the
House of Lords decision in Begum,23 and his target is not legitimate objectives, but the
question of necessity itself. But this method can be adapted to the legislative process and
reframed around whether the stated objective is pretextual. To be sure, the lack of a seri-
ous consideration of alternatives can mean different things. It may simply reveal one or
more of Rosalind Dixon’s legislative blind spots (of application, perspective, and/or
accommodation), and not impugn the credibility of the stated objective.24 But the failure
to seriously consider equally effective alternatives to achieving the stated objective may
raise the suspicion that this is not the true objective at all. Rather than a lack of fore-
sight, a limited world-view, or indifference to rights, the true problem may indeed be
bad faith.
IV. THE STATE AND THIRD PARTIES
Proportionality proceeds on the basis of an account of the state’s reasons for action. If
there are purposes that are illegitimate, their illegitimacy in many cases flows from the fact
that the state cannot act upon these considerations. However, the question of whether the
constitutional order permits private parties to act on the same sort of reasons is much
more complex. Where Bills of Rights are principally vertical in their application, parties
may often act on the basis of reasons off-limits to the state. Where Bills of Rights have
horizontal application, the scope for private actors to act on these grounds is narrower,
but still exists, especially if those actions fall within the ambit of a constitutional right.
Religion is a useful illustration. The state cannot act for sectarian reasons. However,
private parties can, and indeed, their right to do so is protected by freedom of religion.
D Dyzenhaus, ‘Proportionality and Deference in a Culture of Justification’ (unpublished).

22
R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100.
23
24
R Dixon, ‘Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial
Review Revisited’ (2007) 5 International Journal of Constitutional Law 391.
262 Sujit Choudhry
This raises interesting questions when the state acts on behalf of third parties, as it did
in the dispute underlying the Gay Pride Parade litigation (discussed by Ben-Shemesh).
When the state acts in response to the demands of one group of private individuals to
restrict the rights of another group of private individuals, because the first group objects
on religious grounds to the activities of the second group, how should a court character-
ise the purposes underlying the state’s actions? The answer to this question depends on
how the state describes its relationship to the private parties. There are two options. On
one account, the state stands above social divisions and adjudicates impartially among
them. When the state restricts one party’s rights at the other party’s behest, the state acts
for its own reasons and not those of any private party. But on a second account, the state
sides with one private party against another – it represents it, is a front for it, is captured
by it, and/or is beholden to it. By siding with one party, it adopts and acts for its
reasons.
Which of these two accounts are correct matters when the state acts in response to
religious objections raised by private parties, because religious reasons are illegitimate
objectives. From an outsider’s perspective, this is the issue at the heart of the Gay Pride
Parade litigation, not the somewhat different question of whether it is legitimate for the
state to regulate offensive speech. So the Court had to choose between two accounts of
the state’s objectives. The state’s version would be that it was not acting for religious
reasons, but in response to the consequences of other parties holding religious reasons
that the state was itself prohibited from holding. The counter-narrative would be that
this is precisely what the state was doing. This is the problem of pretextual purposes,
with a twist – the state’s constitutional case is dependent on the existence of private rea-
sons, yet would fail if those reasons were attributed to it. This is a delicate line to walk.
Ben-Shemesh’s arguments for why the state should be constitutionally prohibited
from regulating offensive speech provide the beginning of an answer as to how a court
should tackle the question of the state’s true motives. He writes that the regulation of
offensive speech ‘is most likely to be used by those who have political power, and against
those who lack it’. The question is how one determines who wields political influence. In
the liberal constitutional tradition, John Hart Ely provided a highly influential answer to
this question.25 For Ely, the central determinant of the intensity of judicial review was
the notion of a ‘discrete and insular minority’, which is permanently excluded from the
exercise of political power. In justifying restrictions on speech, the state may assert that
it is acting as a third party to protect a minority that lacks political power and cannot
commandeer the state to serve its ends. The state is acting as a mediator among the
interests of competing groups.
But a court should not accept the state’s bare assertion that a discrete minority is neces-
sarily a political minority. To do so would be to conflate a minority’s discreteness and
insularity – along the dimensions of race, ethnicity, religion or degree of religious obser-
vance – with a lack of political power. As Kremnitzer acutely observes, minorities that are
discrete and insular may nonetheless be ‘politically extremely powerful’. Although he
does not develop the point and explain why, the answer is clear to even a casual, outside
observer of Israeli politics. In a highly fractured polity such as Israel, discrete and insular
minorities may be indispensable coalition partners, which grants them real political
25
1980).
power. But the precise configuration of political power and influence is a complex empiri-
cal question, the answer to which varies across countries and within countries over time.
And so to determine the real purposes underlying the state’s actions, one would have to
engage in a detailed analysis of the political dynamics at play in each case.
Israeli constitutional scholars need to integrate this kind of fine-grained political
analysis into the application of the doctrine of proportionality. Indeed, the raw materi-
als of Israeli constitutional politics may provide them with a better opportunity to do so
than in perhaps any other rights-protecting liberal democracy. But Israel is not alone in
grappling with the issue of how to interpret a Bill of Rights in a divided society, and
more precisely, in calibrating the doctrine of proportionality to this kind of political
context. As this volume attests to, Israel is a constitutional laboratory in many areas of
constitutional law. If Israeli scholars and courts wrestle openly and courageously with
the problem of unconstitutional purposes in a fraught and fragmented political context,
they will have much to teach the world.
Part 5
‘Unenumerated Rights’ in
18
Human Dignity as a Central Pillar in
Constitutional Rights Jurisprudence in
Israel: Definitions and Parameters
TAMAR HOSTOVSKY BRANDES
I. INTRODUCTION
I
N 1992, THE Knesset (Israeli Parliament) enacted two Basic Laws, Basic Law:
Freedom of Occupation and Basic Law: Human Dignity and Liberty. The enactment
of the two laws was hailed as the first step in establishing an Israeli Bill of Rights and
was referred to by jurists as marking the beginning of a ‘Constitutional Revolution’ in
Israeli law.1
The two laws were enacted as part of an ongoing process rooted in a 1950 Knesset
decision known as the ‘Harari Decision’,2 according to which the Knesset would enact a
series of Basic Laws which, together, were intended to eventually form the Israeli
Constitution. The Harari Decision was a result of a political compromise which aimed
to resolve political disagreements regarding the desired content of the future Constitution.
The gradual process was thought to enable the Knesset to first address less controversial
rights while postponing discussion of rights perceived as more problematic to a later
stage.
Among the issues considered problematic were the right to equality, which some
members of the Knesset viewed as possibly conflicting with religious laws governing
matrimonial matters and with certain aspects of the character of Israel as a Jewish state,
and freedom of religion, which raised similar issues. However, more than 40 years after
the Harari Decision, no consensus was reached with regard to these rights, and they,
together with other rights, were thus intentionally left out of the two 1992 Basic Laws.
The 1992 Basic Laws were therefore not only born out of a political compromise, but
also shaped by this compromise.
Two main issues needed to be resolved by the courts after the enactment of the two
Basic Laws. The first was the scope of the Basic Laws; the second was their status within
Israeli law and in particular their implications for judicial review of primary Knesset
1
The term ‘Constitutional Revolution’ referred to the enactment of the laws and in particular to the
Supreme Court’s ruling in the case of United Mizrahi Bank which determined that the Court could declare as
void laws that were contrary to the Basic Laws. See: CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative
Village 49(4) PD 221 [1995] (in Hebrew).
2
DK 5 (1950) 1743 .
268 Tamar Hostovsky Brandes
legislation. The second question was resolved relatively shortly after the Laws’
enactment. In the 1995 decision of United Mizrahi Bank,3 the Israeli Supreme Court
determined that the Basic Laws had supra-legislative, constitutional status and, accord-
ingly, that the Court had the power to declare void primary legislation that contradicted
the Basic Laws. While the decision was initially criticised by many, it has since been reaf-
firmed on numerous occasions.4
The dispute with regard to the scope of the Basic Laws, however, and in particular the
scope of Basic Law: Human Dignity and Liberty (hereinafter: the Basic Law), is ongoing.
The Basic Law explicitly protects the right to life, body and dignity of the person (sec-
tions 2 and 4), the right to property (section 3), the right to personal liberty (section 5),
the right of all Israeli nationals to enter the country and the right of all people to leave it
(section 6), and the right to privacy (section 7). All of these rights had already been rec-
ognised by the Court prior to the enactment of the Basic Laws. With the Basic Law’s
enactment, however, and following the United Mizrahi Bank decision, these rights were
elevated to the status of constitutional rights.5
The enactment of the 1992 Basic Laws raised questions regarding the status of other
rights previously recognised in case law but not explicitly named in either of the two Basic
Laws. These included rights as important and central as the right to equality, freedom of
religion and freedom of expression. Such rights were referred to as the ‘unnamed’ or ‘une-
numerated’ rights.6 The dispute centred on the question whether the Court could interpret
the 1992 Basic Laws as awarding constitutional protection to such unenumerated rights.
The present chapter examines the manner by which the Court determines which
unnamed rights fall within the scope of the Basic Law. It examines the models of inter-
pretation applied by the Court when recognizing certain unnamed rights while refusing
to recognise others. The chapter argues that different approaches with regard to recog-
nition of particular rights are rooted in different value-based world-views regarding the
essence of human dignity, and argues that the lack of a clear test for the recognition of
unnamed rights results from the absence of a robust, well-developed notion of human
dignity in Israeli constitutional law. The chapter purports to demonstrate the import
ance of developing a concept of human dignity that encompasses the different values and
world-views that exist in Israeli society.
The chapter proceeds as follows: part II presents the controversy regarding deriving
unenumerated rights from the right to human dignity; part III examines various models
of interpretation of the right to human dignity; part IV proposes an understanding of the
concept of human dignity that is based on the protection of different world-views
regarding the unique worth of human life; and part V summarises the proposed concept
of human dignity and indicates the challenges the Court will face when interpreting this
concept.
3
United Mizrahi Bank (n 1) 352.
4
For general criticism, see M Landau, ‘Giving Israel a Constitution Through Supreme Court Rulings’ (1996)
3 Law and Government 697 (in Hebrew); R Gavison, ‘The Constitutional Revolution – a Description of Reality
or a Self-fulfilling Prophecy?’ (1997) 28 Mishpatim 21 (in Hebrew). A controversial Bill currently before the
Knesset proposes to confer the right to declare a law void upon a nine-justice panel of the Supreme Court.
According to the Bill, a majority of 65 Knesset Members would be able to reconstitute a Bill declared void by
the Supreme Court. See Bill Memorandum of Basic Law: The Legislation, 2012, published by the Ministry of
Justice: www.tazkirim.gov.il/Tazkirim_Attachments/41283_x_AttachFile.doc (in Hebrew).
5
United Mizrahi Bank (n 1).
6
The use of the term ‘unenumerated rights’ has been criticized. See, eg A Barak, Proportionality in Law:
The Constitutional Right and its Limitation (Tel-Aviv, Nevo, 2010) 78–80 (in Hebrew).
Human Dignity: Definitions and Parameters 269
II. ANCHORING UNNAMED RIGHTS IN THE RIGHT TO HUMAN DIGNITY
In an article written shortly after the enactment of the Basic Laws, Hillel Sommer out-
lined the different aspects of the debate spurred by the enactment of the Basic Laws.7
One aspect of the debate, explained Sommer, regarded the question whether unenumer-
ated rights could be at all derived from the Basic Law. Among those who believed that
unenumerated rights could, in general, be derived from the Basic Law, there were dis-
putes regarding the methods by which such rights could be recognised, as well as the
particular rights that should be recognised.8 Although a number of prominent jurists
argued, at the time, that the Court should exercise restraint in interpreting the scope of
the Basic Law,9 the position that the Basic Law could indeed be interpreted to include
additional rights eventually prevailed.
In the two decades that have passed since the establishment of the Basic Law, the main
basis for recognizing unenumerated rights under the Law has been the interpretation of
the right to human dignity, protected by section 2, which determines that ‘there shall be
no violation of the life, body or dignity of any person as such’ and section 4, which pro-
vides that ‘All persons are entitled to protection of their life, body and dignity’.
Considering that the language of the law provides for at least four other explicit rights,
it is surprising how little judicial deliberation there has been regarding the possibility of
deriving unenumerated rights from sources other than the right to human dignity.10 The
right to liberty, for example, has been interpreted as referring mainly to the loss of physi-
cal freedom. The right to privacy, explicitly protected by section 7 of the Basic Law,11
has also been interpreted rather conservatively, certainly in comparison to some inter-
pretations of privacy suggested in US constitutional law.
With few exceptions, then, the right to human dignity has served as the main source of
unenumerated rights.12 The right to human dignity has been argued to encompass,
among other rights, freedom of religion,13 freedom of expression,14 the right to equality15
and the right to a minimal standard of living.16 Some have argued that it includes the
7
H Sommer, ‘The Non-Enumerated Rights: On the Scope of the Constitutional Revolution’ (1997) 28
Mishpatim 257 (in Hebrew).
8
ibid 264–67.
9
Landau (n 4) and Gavison (n 4).
10
Sommer indicates that two other possible sources of unenumerated rights were noted by jurists, but
quickly rejected. The first was s 1A of the Law (the ‘purpose clause’), which states that ‘the purpose of this
Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of
Israel as a Jewish and democratic state’. The second was the right to liberty. See Sommer, ‘The Non-Enumerated
Rights’ (n 7) 281–87.
11
Art 7 of the Basic Law determines that: ‘(a) All persons have the right to privacy and to intimacy. (b) There
shall be no entry into the private premises of a person who has not consented thereto. (c) No search shall be
conducted on the private premises of a person, nor in the body or personal effects. (d) There shall be no viola-
tion of the confidentiality of conversation, or of the writings or records of a person’.
12
See HCJ 6427/02 Movement for Quality Government v Knesset 61(1) PD 619 [2005] paras 31 and 33–35 of
Court President Barak’s opinion (in Hebrew).
13
See A Barak, Interpretation in Law: Constitutional Interpretation, vol 3 (Jerusalem, Nevo, 1994) 225 (in
Hebrew); HCJ 10907/04 Solodoch v Municipality of Rehovot (1 August 2010), Nevo Legal Database (by sub-
scription) (in Hebrew).
14
See, eg HCJ 4804/94 Station Film v Council of Film Supervision 50(5) PD 661, 674–75 [1997] (in Hebrew);
HCJ 10203/03 Hamifkad Haleumi v Attorney General 62(4) PD 715 [2008] paras 21–27 (in Hebrew).
15
Movement for Quality Government v Knesset (n 12) paras 36–41.
16
HCJ 366/03 Commitment to Peace and Social Justice Association v Minister of Finance 60(3) PD 464, 481
[2005] (in Hebrew).
right to education,17 the right to an adequate standard of living,18 and the right to a clean
environment.19 The debates on the constitutional status of these rights produced an
extensive body of case law referring to the right to human dignity. The concept of human
dignity has thus become the central pillar of constitutional rights jurisprudence in Israeli
law.
Little research has been conducted on why the right to human dignity has obtained
such a prominent role in comparison to other rights explicitly protected by the Basic
Law. One possible explanation is that, in contrast to other sections of the Basic Law, the
sections pertaining to human dignity provide little guidance on the content of the right
to human dignity or the direction in which it should be understood, thus leaving it open
for interpretation. For example, section 7(a), establishing the right to privacy, states that
‘all persons have the right to privacy and to intimacy’, sections 7(b), 7(c), and 7(d) spec-
ify protections awarded against ‘entry and searches of private premises’ and the body, as
well as against violations of the privacy of conversations and records. Section 5, estab-
lishing the right to liberty, determines that ‘there shall be no deprivation or restriction of
the liberty of a person by imprisonment, arrest, extradition or otherwise’ (emphasis
added). While it is possible to interpret section 7(a) or the term ‘otherwise’ in section 5
elaborately, these sections do provide some indication of the types of protections they
guarantee. No similar specifications are offered for the right to human dignity, thus leav-
ing it completely open to judicial interpretation.
This explanation, however, is only partial, as there are other rights, most notably the
right to property, which are also phrased in general terms. The explanation for the fre-
quent turn to human dignity lies not in the generalness of the term human dignity but in
its vagueness, and in particular in the lack of agreement on what the ‘natural’ meaning
of the term human dignity is. While there appears to be general agreement on the core of
rights such as liberty and privacy, even if there are disputes regarding the inclusion of
certain peripheral issues, the cases discussed below demonstrate that there is little agree-
ment on the core of the right to human dignity. This entails, on the one hand, that judi-
cial interpretation of the right to human dignity will be more controversial, but, on the
other hand, that it is also inescapable. The main weakness of the term human dignity is
thus also its main strength.
III. NARROW VERSUS BROAD MODELS OF INTERPRETATION AND

DELIBERATE VAGUENESS IN CONSTITUTIONAL INTERPRETATION
The controversies regarding the recognition of both unenumerated rights in general and
specific rights thus revolved around the interpretation of the term human dignity in the
operative articles of the Basic Law. Early attempts of framing the debate portrayed it as
a dispute between narrow or broad methods of interpretation. In his 1994 book on inter-
17
See discussion in Y Rabin, The Right to Education (Tel-Aviv, Nevo, 2002) 381–87 (in Hebrew).
18
See discussion in A Gross and D Barak-Erez, ‘Social Citizenship: The Neglected Aspect of Israeli
Constitutional Law’ in D Barak-Erez and A Gross (eds), Exploring Social Rights: Theory and Practice (Oxford,
Hart Publishing, 2007) 243–61.
19
The claim that a right to a clean environment can be derived, in whole, from the right to human dignity
was rejected in HCJ 4128/02 Adam Teva Va Din v Prime Minister of Israel 58(3) PD 503, 518 [2002] (in
Hebrew).
pretation, Barak, for example, distinguished between a narrow model of interpretation,

under which the right to human dignity encompasses protection against violations he
viewed as ‘classic’ violations of human dignity such as humiliation, and a broad model,
according to which the term human dignity encompasses all human rights. Between
these two approaches, argued Barak, there was a third, intermediate approach. Under
this intermediate approach the notions of dignity and liberty in the Basic Law include
more than just protection against humiliation but do not include every right that can
philosophically be derived from them. According to the middle ground model, which
Barak viewed as the correct model, the right to human dignity includes those rights that
the enlightened public in Israel views as closely related to human dignity and liberty.
These included, for example, the right to equality, freedom of expression and freedom
of religion, but not the right to education.20
Yehudit Karp offered a similar model, based on three ‘circles of rights’.21 The first
circle, according to Karp, includes the immediate, ‘natural’ meaning of the term dignity,
which she viewed as the opposite of humiliation, embarrassment and disgrace. The sec-
ond circle included additional specific rights that derive from the principle of human
dignity, such as the right to personal freedom, the right to life, the right to property, the
right to privacy, and the right to enter and exit the country. The third circle included
freedom and autonomy in the more general, broad sense.22
Under both Karp’s model and Barak’s model the question becomes how far judicial
interpretation should venture beyond the ‘core’ right protected by the right to dignity in
protecting rights under the term human dignity. It would appear that under both Karp’s
and Barak’s models this ‘core’ right would encompass protection against humiliation,
which they perceived as the ‘plain’ meaning of the words of the Basic Law.
The interpretation models offered by Barak and Karp do not provide a satisfying
explanation for why protection against humiliation constitutes the core of the right to
human dignity and the nature of the conceptual linkage between the ‘core’ of the right to
human dignity and the rights protected under the broader models of interpretation.
There are two ways of understanding the proposition that protection against humili-
ation is the central protection granted by the right to human dignity. The first is that
protection against humiliation is the core of the right to human dignity. Under this inter-
pretation, the broader interpretations should somehow be linked to this core, meaning,
they should, in some sense, be an expansion of the right not to be subject to humiliation.
Neither Barak nor Karp seem to adopt this view, and as will be demonstrated below,
with the exception of a few justices, it has not been adopted by the Court. The second
way of understanding the centrality of the protection against humiliation is by defining
some other right or value as the core of the right to human dignity and then arguing that
protection against humiliation is closely linked to this right or value, that the rights
included in the second ‘circle’ under Karp’s model or the ‘intermediate’ approach under
Barak’s model are more remotely linked to it, and the rights included in the third ‘circle’
or the ‘broad’ approach are even further remote. Neither Barak nor Karp, however, pro-
vide an indication of what such right or value may be. The justification provided by
Barak, Interpretation in Law (n 13) 413–18.

20
Y Karp, ‘A Few Questions Regarding Human Dignity According to Basic Law: Human Dignity and
21
Liberty’ (1995) 25 Mishpatim 129 (in Hebrew). Karp’s analysis is also discussed by Barak, Interpretation in
Law (n 13) 418–19.
22
ibid 136–42.
Barak, in his early writings and ruling, for identifying the rights included within the right
to human dignity is that the ‘enlightened public’ viewed certain rights as ‘closely related’
to human dignity. A more accurate definition, perhaps, would be that the ‘enlightened
public’ views such rights as components of the right to human dignity.
The term ‘enlightened public’ has been criticised widely for implying that some sectors
of Israeli society were more ‘enlightened’ than others.23 It has also been argued that the
term disguises the fact that the Court is actually imposing its own values. In addition to
undermining the legitimacy of the Court’s interpretation of the concept of human dignity,
the ‘enlightened public’ test added little to the understanding of the nature of the notion of
human dignity or to explaining its prominent role in Israeli rights jurisprudence.
The lack of a substantive notion of human dignity is evident not only in scholarship
but also in case law. The earliest cases recognizing ‘unnamed’ rights were based, for the
most part, on the perception that the rights recognised were identifiable as falling within
the ‘natural’ meaning of the term human dignity, which encompassed the first and per-
haps second circles under Karp’s approach and fell within the ‘intermediate’ model
under Barak’s approach. In many of these cases, little or no explanation was offered for
why particular rights were perceived as ‘natural’ parts of the right to human dignity.
Differences between judges were described as differences in their willingness to interpret
‘broadly’.
In the 1994 judgment of Hupert v Yad Vashem, for example, Justice Or expressed the
view that ‘today the principle of equality can be anchored in Basic Law: Human Dignity
and Liberty’.24 He provides no explanation for this statement other than a reference to
Barak and Karp’s articles discussed above. In the judgment in El-Al v Daniloviz, also
from 1994, which concerned the right of a flight attendant’s same-sex partner to receive
spousal benefits, Justice Barak adopted Justice Or’s position in Hupert and expressed
the view that the ‘enactment of Basic Law Human Dignity and Liberty anchored equal-
ity as a constitutional right within the framework of human dignity’.25 Similarly, in the
1994 case of Dayan v Wilk, which revolved around the right to demonstrate outside the
private residence of a public figure, Justice Barak simply stated, with regard to the right
to freedom of expression that it
appears that now this right can be derived from the Basic Law: Human Dignity and Liberty,
which provides a statutory constitutional basis for the human right to dignity and liberty. The
freedom to express ones’ self – in words alone or by expressive actions – is a major expression
of human dignity and liberty.26
This lack of explanation for and analysis of why a particular right is ‘anchored’ in the
right to human dignity or is a ‘major expression’ of it is surprising considering the impli-
cations such recognition had on its status. It is especially surprising in the light of the
fact that the Court’s rulings were closely scrutinised by both the public and the Knesset
that was waiting to see how the enactment of the two Basic Laws played out, and the
fact that the question whether unnamed rights could even be derived from the Basic Law
23
See, eg R Shamir, ‘The Politics of Reasonableness: Reasonableness and Judicial Power in Israel’s Supreme
Court’ (1994) 5 Theory And Criticism 7, 13–14, 20–21 (in Hebrew). Barak himself expressed restrained regret
for using the term, claiming that it was misunderstood.
24
HCJ 5394/92 Hupert v Yad Vashem 48(3) PD 353, 362 [1994] (in Hebrew).
25
HCJ 721/94 El-Al v Daniloviz 48(5) PD 749, 760 [1994] (in Hebrew).
26
HCJ 2481/93 Dayan v Wilk 48(2) PD 456, 468 [1994] (in Hebrew).
was still disputed.27 In the sections below, I will try to examine the underlying con
siderations and justifications for which the Court recognised some rights but refused to
recognise others and the changes in the Court’s reasoning throughout the years.
A. The Relevance of the Legislator’s Intention
In evaluating the different models of interpretation, specific attention was given by

jurists to the question of the weight that should be accorded to legislative intent in inter-
preting the Basic Law. The debate was particularly heated with regard to recognition of
rights that were intentionally omitted from the text of the 1992 Basic Laws, the right to
equality being the paradigmatic example.
The legislative history of the two Basic Laws clearly indicates that the right to equality
was left out of the text of the Basic Law as part of the political compromise that enabled
its enactment. Amnon Rubinstein, who was actively involved, as a Knesset Member, in
the passing of the Law, explained that the Law included no general equality clause
because such a clause would have prevented its acceptance.28 The same applies to the
exclusion of the freedom of expression – in fact, separate Bills proposing to accord free-
dom of expression constitutional status were rejected by the Knesset – and freedom of
religion.29 Yet each of these rights has been determined by the Court to be protected by
the Basic Law.
The legal and political debate echoed, to some extent, the debate in the United States
between originalists and ‘living constitution’ advocates.30 Indeed, Barak referred to the
American example in his book mentioned above. Two things, however, distinguish the
Israeli discussion from the American debate. The first is the short time that has passed
since the passing of the Basic Law in comparison with the time that has passed since the
enactment of the US Constitution. One of the central claims made by proponents of the
‘living constitution’ approach was that, in order for the constitution to remain relevant
over time, constitutional interpretation must take into consideration the conditions,
norms and values of the time of interpretation. The relevance over time argument, how-
ever, loses much of its force in the Israeli case in light of the short time that has passed
since the enactment of the two Basic Laws. This is particularly true in light of the fact that
there is little indication that either the social understanding or the disagreements that
existed at the time of enactment have since changed. If anything, the contrary could be
argued. The relevance over time argument thus could not, on its own, justify interpreting
the right to human dignity, for example, contrary to legislative intent. Another argument
often made by non-originalists regards the difficulty of identifying the framers’ intention,
27
Justice Barak did indicate, in his scholarly writing, his position with regard to the centrality of the autonomy
of free will. See, eg A Barak, ‘Human Dignity as a Constitutional Right’ in H Cohen and I Zamir (eds), Selected
Writings (Tel-Aviv, Nevo, 2000) 417, 425–26 (in Hebrew). This was noted by Knesset Member Gafni, who was
quoted by Sommer saying that ‘the Supreme Court announces its opinions in lectures’, H Sommer, ‘From
Childhood to Maturity: Open Questions in the Execution of the Constitutional Revolution’ (2004) 1 Law and
Business 59 (in Hebrew).
28
A Rubinstein and B Medina, The Constitutional Law of the State of Israel, 5th ed (Tel-Aviv, Schocken,
1996) 956.
29
ibid 961.
30
See G Liu, PS Karlan and CH Schroeder, Keeping Faith with the Constitution (Oxford, Oxford University
Press, 2009) 25–26.
especially with the passing of time. Here, too, the Israeli situation differs, as the delibera-
tions of the Knesset are clearly documented and the Knesset has restated its position by
refusing, for example, to recognise freedom of expression as a constitutional right in a
separate law designated for that purpose.
The second important difference between the debate in Israel and in the United States
on this issue is the fact that the enactment of the 1992 Basic Laws was not intended to be
the last step of the Israeli constitutional enterprise. The plan and hope of the proposers and
drafters of the Basic Laws was that they will be followed by additional Laws addressing
rights that were not included in the two Basic Laws. Sommer expressed the concern, which
some may argue has materialised, that judicial interpretation of the Basic Law in a manner
that is clearly contrary to the legislator’s intention would cause the Knesset to refrain from
enacting additional Basic Laws and hinder the creation of an Israeli Constitution.31
While there is clear indication that some rights were intentionally left out of the Basic
Law, there is little indication of what protections the legislator had intended to include
in the term human dignity. This is probably due to the fact that no single understanding
of the term human dignity would be acceptable to all Knesset Members that voted in
favour of the Basic Law. The concept of human dignity is a vague, value-based term that
was used, to a large extent, precisely because no agreement could be reached on more
concrete principles. Legislative intention thus provides little guidance for positive inter-
pretation of the right to human dignity.
The position reflected in current case law with regard to the importance of the
Knesset’s intention has been somewhat inconsistent. The approach that attributed sig-
nificant weight to the intention of the Basic Laws’ drafters has, in general, been rejected
by the Court,32 and while there appears to be agreement that the legislator’s intent can-
not be ruled to be of no value at all as a source of interpretation, it is accorded, in most
cases, minimal value. With regards to the principle of equality, for example, while the
Court has acknowledged the fact that the principle of equality has intentionally been
omitted from the Basic Law, the dominant view within the Court is that it is nonetheless
protected by the Basic Law, at least to a certain extent.
However, the legislator’s intention, and in particular the fact that there was no polit
ical agreement which enabled the Knesset to explicitly recognise certain rights, was per-
ceived by the Court as relevant when examining whether, for example, social rights
could be derived from the Basic Law. In the Commitment to Peace and Social Association
judgment, for example, which will be discussed in length below, the petitioners argued
that reductions in income supplement benefit provided by the state violated the right to
human dignity, and were thus unconstitutional.33 Justice Barak indicated that ‘social
rights are not mentioned expressly in the Basic Laws’ and that ‘various legislative pro-
posals exist in this regard, but these have not yet matured’. In a striking distinction from
his position with regard to the protection of the principle of equality by the Basic Law,
this leads him to the conclusion that ‘In such a situation it cannot be said that the exist-
ing Basic Laws give full and complete protection to social rights’.34
31
Sommer, ‘The Non-Enumerated Rights’ (n 7) 333–34. It can be debated, of course, whether courts should
weigh such considerations at all.
32
This position was expressed in earlier decisions by, eg Justice Dorner in the Miller decision discussed
below, see HCJ 4541/94 Miller v Minister of Defence 49(4) PD 94 [1995] (in Hebrew).
33
See n 16 above, 475.
34
ibid.
In practice, thus, the Knesset’s intention when enacting the Law, while cited by the
Court when rejecting the recognition of certain rights, cannot explain the recognition of
unenumerated rights or the Court’s interpretation of the concept of human dignity.
B. Justifying the Recognition of Unnamed Rights and the ‘Partially Encompassed’
Doctrine
I argued above that early case law provides little insight on the basis for recognizing
some rights and refusing to recognise others. Later cases elaborate in somewhat greater
detail about the underlying justifications for recognizing certain rights. As will be dem-
onstrated below, the elaborative modes of judicial reasoning came alongside a narrow-
ing of the scope of the rights recognised.
Justice Dalia Dorner’s opinion in the case of Miller v Minister of Defence35 is the first
to utilise this approach. Though Justice Dorner’s opinion in this case has been widely
referenced in both judicial decision and in scholarship, it has influenced and shaped the
judicial discussion on unnamed rights in ways that are yet to be addressed.
Alice Miller, the petitioner, was an Israeli woman who challenged the Israeli Army’s
refusal to allow women to become combat pilots. The question that arose was whether
the Army’s refusal constituted prohibited discrimination.36 The discussion revolved, in
part, around the constitutional status of the principle of equality following the enact-
ment of the Basic Law. Justice Dorner argued that certain violations of equality, those
that were based on discrimination on the basis of group membership, were prohibited
under the Basic Law as they amounted to violation of human dignity. Such discrimina-
tion, argued Dorner, was based on perceiving members of certain groups, in this case
women, as inferior to other members of society, in this case men.37 Treating someone as
inferior amounted to humiliating treatment, which was prohibited by the protection
against violations of human dignity provided by the Basic Law. Quoting from the US
Supreme Court decision in Brown v Board of Education,38 Dorner explained that treat-
ing people differently based on group membership sends a message of inferiority to the
members of the group and therefore constitutes humiliation forbidden under the Basic
Law.39 It is interesting to note the different roles played by the principles of equality and
dignity in the two decisions, a difference that Dorner failed to note. In the United States,
the right to equality is constitutionally protected, and the notions of dignity and protec-
tion against humiliation were employed to interpret it. In Israel, it is the right to dignity
that enjoys constitutional status, and the question discussed was whether, and to what
extent, the right to equality was included in it. Both judgments, however, relied on the
crossroad between equality and dignity, determining that classifications which are
humiliating were unconstitutional.40
Miller (n 32) 131–35.

35
ibid. Justice Mazza thought the differences the military cited were not proven to be relevant, pp 109–16.
36
Justice Strasberg-Cohen thought they were relevant, but could be rectified, p 119. Justices Kedmi and Tal thought
the differences were relevant in the current situation, 117–18 and 126–27.
37
ibid 129–33.
38
Brown v Board of Education 347 US 483 (1954).
39
Miller (n 32) 132–33.
40
A similar approach was taken in the Canadian case of Law v Canada (Minister of Employment and
Immigration) [1999] 1 SCR 497 (Can).
Dorner’s analysis of the constitutional right to equality in Miller rests primarily on

two pillars. The first is her perception of the right to human dignity, which she under-
stands as protection against humiliation. Dorner’s position on this issue can thus be
classified as adopting the ‘narrow’ mode of constitutional interpretation. The second is
the position that in order for an unnamed right, in this case the right to equality, to be
protected under the Basic Law, it must be established that violations of the unnamed
right amount to violation of the protection against humiliation. Since only some
instances of violations of equality may be humiliating, the Basic Law protects only
against such instances.41 Dorner’s opinion thus offers a refined version of the question of
recognition of unnamed rights, according to which the relevant question is not only
which previously recognised rights came within the scope of the Basic Law, but also
which aspects of such rights enjoyed constitutional status. In many cases, only certain
aspects of unnamed rights will fall within the scope of the law. Dorner’s approach will
thus be referred to as the ‘partial protection’ approach, although entire unnamed rights
may also be recognised under this approach if each and every violation of such rights
would amount to humiliation.
The main innovation in Dorner’s approach was the argument that unnamed rights
may be only partially protected by the Basic Law. Dorner’s analysis was also different
from previous case law, however, in the fact that she clearly indicated her own percep-
tion of human dignity and emphasised the relationship between the core of the right to
human dignity according to this perception and the unnamed rights it gave rise to. The
main difference from previous case law, other than the possibility of partial protection,
was thus the extent and specificity of the legal reasoning offered for the recognition of
unnamed rights.
While not explicitly adopted, Dorner’s opinion in Miller has actually greatly influ-
enced the judicial rhetoric used with regard to recognition of unnamed rights. As indi-
cated above, in early decisions recognizing the right to equality such as the Hupert and
Daniloviz decisions the possibility that only some aspects of equality came within the
scope of the Basic Law was not discussed and no explanation was offered for why the
right to equality came within the scope of the right to human dignity.42 In later cases, a
more refined approach was offered. Thus, for example, in the Movement for Quality
Government v Knesset decision, discussed below, Justice Barak recognised that the right
to human dignity includes only some aspects of the right to equality.43 In Adalah v
Minister of Interior, Barak emphasised that
not all aspects of equality that would have been included, had it been recognised as an indepen-
dent right that stands on its own, are included within the framework of human dignity. Only
those aspects of equality that are closely and objectively connected to human dignity are
included within the framework of the right to human dignity.44
The need to examine which aspects were ‘objectively connected’ to the right to human
dignity led judges to deviate from previous practice and state explicitly their view with
regard to the content of the right to human dignity. Review of the case law reveals two
main approaches with regard to the nature of the right to human dignity. Under the first
41
ibid.
42
Hupert (n 25); Daniloviz (n 25).
43
Movement for Quality Government v Knesset (n 12) para 40.
44
approach, the right to human dignity is perceived primarily as protection against humili-
ation.45 Under the second approach, the right to human dignity is perceived primarily as
protecting the autonomy of free will.46
The relationship between the two interpretations is not always clear. In the case of the
Academic Center of Law and Business, which concerned the privatization of prisons in
Israel, Court President Beinisch determined that
a violation of human dignity may also exist as an ‘independent’ violation, when a certain act or
the establishment of a certain institution do not violate other human rights, but their existence
reflects, from a social perspective, disrespect to the individual and his value as a person.47
Beinisch’s opinion recites the Kantian notion of dignity by determining that transform-
ing the prisoners to a means of financial gain is incompatible with human dignity.48
While the Kantian notion of dignity is often argued to reflect the centrality of individual
autonomy, Beinisch’s opinion actually echoes the humiliation approach. The humilia-
tion approach is also reflected in Justice Levi’s minority opinion, which recognises the
humiliation embedded in the control of one person over another. Justice Naor, on the
other hand, determines that the primary violation in turning the prisoner to ‘a means of
gaining profit’ is due to the injury caused to ‘the autonomy of the individual’, and explic-
itly indicates that the ‘humiliation model’ is not necessary.49
The differences between different judges’ recognition of unnamed rights are thus
based on the underlying values they place at the core of the right to human dignity. Such
difference is not a difference between narrow and broad models of interpretation, but
between value-based world-views.
The adoption of the ‘partial recognition’ rhetoric had the potential of developing
clearer legal guidelines for the recognition of unnamed rights. In reality, this did not
happen, for two reasons. The first is that judges provided no explanation as to why they
chose a particular perception of the right to human dignity over another. But more
importantly, in many cases, they failed to apply the ‘closely linked’ test and made no
serious attempts to establish the necessary linkage to the core values. As a result, in some
cases the scope of the rights protected seems overly broad in relation to the core values
they purport to protect. In others, they seem too narrow. The sections below will dem-
onstrate these claims.
C. Protecting Societal Values as Part of Human Dignity
One case in which the recognition of an unnamed right appeared to go overbroad

was the case of the Movement for Quality Government v Knesset referred to above.50
The case examined the constitutionality of exemptions from military service granted to
45
See Justice Dorner’s opinion in Miller (n 32) and in CA 4463/94 Golan v Prisons Service 50(4) PD 136, 191
[1996] (in Hebrew).
46
See, eg Justice Barak’s approach in Movement for Quality Government v Knesset (n 12), Hamifkad
Haleumi (n 14) para 26 of Justice Naor’s opinion.
47
HCJ 2605/05 Academic Center of Law and Business v Minister of Finance (19 November 2009), Nevo Legal
Database (by subscription) para 38 (in Hebrew).
48
ibid para 39.
49
ibid 18.
50
Movement for Quality Government v Knesset (n 12).
ultra-Orthodox men in Israel. Both Justice Barak, writing the majority opinion, and
Justice Cheshin, writing the minority opinion, agreed that the current legislation under
which the exemption was granted violated equality. They differed, however, on whether
such violation of equality amounts to violation of human dignity. Justice Barak restated
his position that at the basis of the right to human dignity lay the autonomy of free will.
He then argued that requiring some members of society to risk their lives for the sake of
society while exempting others from the same duty violates the serving members’ ‘per-
sonal identity’ and amounts to violation of the right to human dignity as expressing the
autonomy of free will, freedom of choice and freedom of action.
Justice Cheshin argued in response that while the law exempting ultra-Orthodox men
indeed violated equality, he failed to see how either the autonomy of free will of those
drafted or their freedom of choice was violated simply by the fact that other candidates
for military service were granted unjustified exemptions. He also examined the linkage
between the violation of equality at stake and the value of protection against humilia-
tion, and determined that in contrast to the Miller case, in which the Army’s refusal to
consider the petitioner’s candidacy on the grounds that she was a woman was indeed
humiliating, granting exemptions from military service to certain sectors of the popula-
tion did not humiliate those who did serve. While they may perceive the granting of the
exemption as unjust, and, according to Cheshin, rightly so, neither of the values that
were viewed as protected by the right to human dignity were violated. Instead of basing
his opinion on the violation of human dignity, Cheshin thus based it on the principle of
equality as a foundational principle of the State of Israel.51
The Movement for Quality Government v Knesset decision is an example of a case in
which, despite using the ‘partial recognition’ model, the Court fails to convincingly
establish the ‘close link’ between the notion of human dignity, which is understood as
protection of personal autonomy, and the right recognised, which is equality in the duty
of military service.
D. Recognizing Social and Economic Rights
While the protection granted in the Movement for Quality Government v Knesset deci-
sion to the right of equality under human dignity seems to be too elaborate, the protec-
tion granted to other rights, and in particular social and economic rights, appears to be
too narrow. In the Commitment to Peace decision, for example, the petitioners argued
that reductions in income supplement benefits provided by the state violated the right to
human dignity.52 The decision thus revolved around the meaning of the right to human
dignity with regard to the standard of living. Justice Barak, in the majority opinion,
determined that, in this regard, ‘the right to live with dignity is the right that a person
should be guaranteed a minimum of material means, which will allow him to subsist in
the society where he lives’.53
Others have noted that a perception of human dignity that rests on the autonomy of
free will is more likely to lead to recognition of civil rights and freedoms than to social
51
The majority opinion actually rejected the petition on the grounds that the Government should be granted
additional time for the implementation of the law.
52
Commitment to Peace (n 16).
53
ibid 482.
rights.54 Yet even under such a perception, no explanation was provided for how and
whether the minimal subsistence standard was enough to fulfill the right to autonomy of
free will and to guarantee conditions in which it can be realised.
The minimal subsistence standard is even more problematic from the view point of the
‘protection against humiliation’ approach. The majority decision contains no discussion
and provides no guidelines for what amounts to humiliation in this regard. All parties
agree that the right to human dignity protects against degrading living conditions. Yet
despite recognition of the fact that ‘a state with the economic strength of a developed
nation cannot be compared to a state with a weak economy’,55 the decision contains no
guidelines for how the distinction is to be made in practice and no satisfying explanation
for why ‘degrading living conditions’ in Israel, taking into consideration the average stan-
dard of living in it, should be interpreted only as conditions worse than those needed for
minimal subsistence.56 It should be noted in this regard that Justice Dorner, who chaired
the original panel, ordered the state to determine a standard required for living in dignity.
The determination of such a standard would have likely led to it being challenged by the
petitioners and its being examined by the Court. In the process, the core questions raised
above would have, at the very least, been discussed. Dorner, however, retired during the
hearings and the order was not imposed on the state. The Court instead simply concluded
that ‘the human right to dignity is also the right to conduct one’s ordinary life as a human
being, without being overcome by economic distress and being reduced to an intolerable
poverty’.57 Justice Levy, writing the minority opinion, questioned whether it can indeed
be determined that ‘living conditions, which only permit a purposeless subsistence that
does not contain any potential for human achievement, do not violate the constitutional
human right to dignity’58 and doubted the determination that
living conditions, which do not allow even a minimal degree of correlation with the accepted
standard of living in society, or which prevent a person having an opportunity, no matter how
small, of developing himself, of defining his goals and ambitions and of acting in order to
achieve them, do not violate the constitutional right to dignity.59
According to Levy’s first argument, the standard set by the Court is inadequate under
the ‘personal autonomy’ approach. According to the second argument, it fails to guaran-
tee both the personal development and protection against humiliation.
IV. RETHINKING THE CONCEPT OF DIGNITY
I examined above the different approaches applied by Israeli Supreme Court justices in
their interpretation of the right to human dignity and the disputes regarding the meaning
54
Gross and Barak-Erez (n 18).
55
Commitment to Peace (n 16) 480.
56
The notion of humiliation is, at least under some theories, relational, that is, it only has meaning in the
context of human interaction (even if such interaction is imagined or theoretical) because it depends on the
relations between individuals. Under this theory, the notion of humiliation, as opposed to the notion of auto
nomy, has no meaning outside of a society (the feeling of humiliation assumes the existence of a viewer, if only
in thought). It could thus be argued that the humiliation-based perception of human dignity is more ‘com
munitarian’ than the autonomy-based perception of human dignity.
57
Commitment to Peace (n 16) 481.
58
ibid 496.
59
ibid.
of the notion of human dignity. Comparative research indicates that the concept of
human dignity is interpreted differently both across jurisdictions and by different judges
within the same jurisdiction, thus rendering it difficult to talk about a ‘natural’ meaning
of the term human dignity. In examining the use of the concept of human dignity in the
adjudication of human rights, Christopher McCrudden identifies the minimum content
of the term ‘human dignity’ that all who use the term seem to agree about as follows:
‘This basic minimum core’, explains McCrudden,
seems to have at least three elements. The first is that every human being possesses an intrinsic
worth, merely by being human. The second is that this intrinsic worth should be recognised
and respected by others, and that some forms of treatment by others are inconsistent with, or
required by, respect for this intrinsic worth.60
The third element, argues McCrudden, regards the relationship between the individ-
ual and the state. The human rights texts, he explains, reflect the principle that ‘recog-
nizing the intrinsic worth of the individual requires that the state should be seen to exist
for the sake of the individual human being, and not vice-versa’. While there is general
agreement with regard to this minimum core, explains McCrudden, there is little agree-
ment with regard to the nature of the intrinsic worth of the individual, the forms of
treatments that are inconsistent with it and the implication of these for the role of the
state.61
McCrudden argues that in international human rights documents such as the Universal
Declaration of Human Rights, the concept of human dignity is used as a placeholder
where a theory of human rights was needed but a consensus with regard to such theory
could not be reached.62 In adjudication of human rights issues in different countries, the
term human dignity serves as an open channel through which domestic values could be
applied. As a result, applying the concept of human dignity often leads to opposite
results in similar cases arising in different countries. The main value of the concept of
human dignity in the context of international human rights, concludes McCrudden, is in
providing a framework for talking about rights. He is pessimistic, however, about the
ability of the concept of human dignity to contribute to a common understanding of, or
agreement on, the substance of rights.
McCrudden’s observations are relevant to our analysis because the concept of human
dignity served a similar function in the Basic Law. As no political agreement could be
reached with regard to more specific rights, the general term human dignity was used as
a way to overcome, or, some may say, mask, disagreements regarding the underlying
values of the Basic Law. However, once disputes regarding the rights embedded in the
concept of human dignity started reaching the courts, questions regarding these under
lying values could no longer be avoided.
Comparative review reveals the difficulty in talking about a ‘natural’ meaning of the
concept of human dignity, the difficulty of reaching agreement regarding the nature of
the ‘intrinsic worth’ of the individual that stands at the centre of the concept of human
dignity and the extent to which the concept of human dignity is based on social, reli-
60
C McCrudden, ‘Human Dignity and the Judicial Interpretation of Human Rights’ (2008) 19 European
Journal of International Law 655, 679.
61
ibid 679–80.
62
ibid 722–23.
gious, and personal values.63 In a multicultural society such as Israel, such disagreements
can easily become a source of strife. A legal concept of human dignity, however, does
not necessarily require adopting one world-view of the nature of the ‘intrinsic worth’ of
individuals. An alternative notion of the right to human dignity is as a right that guaran-
tees protection of the various world-views that exist in society regarding the ‘intrinsic
worth’ of the individual and the nature of humanity. The right to human dignity, under
this approach, is comprised from the universal protections that are needed in order to
ensure respect of different social perceptions of the nature of human worth.64
At the core of the proposed model of the right to human dignity is the intrinsic worth
of every individual, the essence of his humanity, together with the recognition that there
is, and needs to be, no agreement on the nature of such essence. The premise this model
is based on is that agreement on such essence is not a necessary condition for identifying
rights and measures that are needed in order to protect different beliefs regarding its
nature. The model reflects a commitment to mutual respect between various social
groups in a multicultural society, and does not require the Court to adopt a single view
regarding the essence of human worth, which may undermine its legitimacy. The main
role of the Court in interpreting the right to human dignity is identifying those universal
protections that ensure respect of various notions of human worth and define the scope
and nature of such protections.
A. Universal Protections and Particular World-Views
I suggested above that both recognition of the importance of the ‘intrinsic worth’, or
‘essence of humanity’ and the recognition that there is more than one view or belief with
regard to such worth or essence lie at the core of the right to human dignity. I then sug-
gested that the test for determining whether a particular right falls within the scope of
the right to human dignity is whether such right is needed in order to ensure protection
of various notions of human worth. This claim is susceptible to at least three challenges.
The first challenge regards the protection of world-views according to which some peo-
ple are worth more than others. The second challenge is that the definition suggested
above adds little to the notion of autonomy and therefore is identical to the position that
views human dignity primarily as a protection of personal autonomy. The third chal-
lenge regards the over-expansion of the concept of human dignity.
The answer to the first challenge is relatively straightforward. While the model recog-
nised that there are different world-views regarding the essence of humanity, a key com-
ponent of it is that whatever such essence is, it is held universally. A belief that some
63
One of the interesting observations that can be drawn from the research is that the concept of human
dignity is understood differently even among countries that otherwise share many values in the sense that they
are perceived as liberal, Western countries.
64
This concept of human dignity draws on the ‘politics of dignity’ offered by philosopher Charles Taylor.
Taylor distinguishes between what he refers to as ‘the politics of universal dignity’ and the ‘politics of differ-
ence’. Traditional politics of universal dignity are based on the Kantian notion of universal human potential,
an abstract capacity that all humans share. Taylor advocates instead for a ‘politics of difference’, which is based
on what humans have made’ of their potential: ‘actually evolved cultures’. Taylor believes that cultural belong-
ing is an important component of personal identity and that since human beings’ self-perception is, at least in
part, formed by recognition, we have a duty to respect the cultural aspects of each other’s identity. See C Taylor,
Multiculturalism: Examining the Politics of Recognition (Princeton, Princeton University Press, 1994) 41–42.
human beings are unworthy will thus not be accommodated under this model, although
other aspects of cultures from which such beliefs stem may be protected under it, to the
extent that they can be applied universally and that the cultures do not revolve exclu-
sively around denying the worth of some people.
The answer to the second challenge, which claims that the protection of various
world-views is already protected under the notion of human dignity which revolves
around autonomy, is somewhat more complex. Indeed, certain notions of autonomy, in
particular those encompassing a robust right to privacy, protect the right to hold differ-
ent world-views on fundamental issues and act upon these views. The legal concept of
autonomy, however, in Israel as well as in other countries, emphasises the notion of free
choice. As a result, it is limited in its ability to recognise, in a meaningful manner, beliefs
and world-views which, according to their holders’ perception, are not based on indi-
vidual choice. It is important to distinguish, in this regard, between a view according to
which the ability to exercise autonomy is the essence of humanity or the nature of the
worth of the human being, and a view according to which autonomy is one of the means
of protecting different perceptions regarding such essence. Under the first view, the value
of autonomy is intrinsic. Under the second, it is instrumental. The belief that autonomy
lies at the core of human dignity is one of the various beliefs that are entitled protection,
but the primary justification for deriving the right to autonomy from the right to human
dignity is the instrumental value of autonomy.
The third challenge that may arise with regard to the proposed model is that it
expands the notion of human dignity to an extent that, effectively, includes every act and
world-view. It is important, in this regard, to stress that the extent of harm a particular
act causes is crucial to it constituting a violation of human dignity. Thus, not every act
of humiliation or every violation of autonomy will amount to a violation of human dig-
nity, but only those violations that are severe enough to constitute an attack on the
‘essence of humanity’ under different world-views.
B. The Protection against Humiliation and Protection of Autonomy under the
Proposed Model
The two protections that were intuitively identified by judges as deriving from the right
to human dignity, namely, the protection against humiliation and the protection of per-
sonal autonomy, are arguably indeed universal protections necessary to ensure respect
of various world-views regarding the essence of humanity. The experience of humilia-
tion is both a universal experience and a unique human experience. While different acts
constitute humiliation in different societies, some characteristics of the concept of
humiliation, for example, the notion that it involves the power relations between several
parties is common to many societies. The role of the Court in construing the constitu-
tional protection against humiliation involves identifying those acts that are socially per-
ceived as humiliation that is incompatible with respect to human worth, and extending
these protections to all members of society. The Court has identified such acts as includ-
ing discrimination on the basis of race,65 discrimination on the basis of sex,66 violations
65
HCJ 1067/08 Noar Kahalacha v Minister of Education (14 September 2010), Nevo Legal Database (by
subscription) (in Hebrew).
66
Miller (n 32).
of the right of an accused to due process,67 violation of the right to adequate incarnation
conditions,68 and abuse of authority in the workplace. According to certain views, pay-
ing less than the minimum wage, under certain conditions, may also amount to humilia-
tion, as may broadcasting of pornography.69
Protection of the autonomy of free will may also be necessary in order to protect dif-
ferent perceptions of the human worth. As indicated above, it is important, in this
regard, to distinguish between a justification under which autonomy is the essence of
humanity or human worth, and a justification for protection of personal autonomy
according to which autonomy should be protected because it ensures respect of personal
choices made under different world-views regarding human worth. Under the former
justification, autonomy has an intrinsic value and is the core of the right to human dig-
nity. This justification cannot accommodate those who believe the value of human life is
based, for example, on collective identity, social ties or the sense of one’s belonging to
the society within which she lives, all of which are not chosen, at least not entirely.
Under the second justification, the value of autonomy is instrumental, and its role is to
ensure respect of acts and practices of individuals holding different beliefs, where such
acts are perceived by the individuals to be required by their beliefs. In either case, the
constitutional protection only extends against violations that touch upon the very core
of the human experience. The Court has yet to clearly define the scope of the constitu-
tional protection of autonomy and, in particular, clarify the distinction between consti-
tutionally protected autonomy and non-constitutionally protected autonomy.
Another important issue, that has yet to be adequately addressed, is the conditions
under which autonomy can be exercised. The Court has identified specific instances in
which certain conditions must be met for a person to be able to exercise autonomy. It
determined, for example, that when a patient was not provided with all relevant informa-
tion, consent to medical treatment will not be valid,70 and that certain types of treatment
may negate the demand that a suspect’s confession is freely made. A more comprehensive
analysis of the conditions for exercising autonomy is, however, still warranted.
Other protections may be included in the right to human dignity, in addition to the
protection against humiliation and the protection of personal autonomy already recog-
nised by the Court. The process of identifying the protections needed in order to safe-
guard respect for different world-views and value systems is an ongoing and evolving
process.
V. CONCLUSION
Human dignity is, in many respects, the central pillar of constitutional rights jurispru-
dence in Israel. Like many constitutional concepts, the concept of human dignity is an
open-ended concept, which may lend itself to various interpretations. The central con-
troversy around the interpretation of the right to human dignity in Israel has revolved
around the ability of deriving from the right to human dignity additional, unenumerated
CA 5121/98 Yissacharov v Chief Military Prosecutor 61(1) PD 461 [2006] (in Hebrew).
67
HCJ 1163/98 Sadot v Prisons Service 55(4) PD 817 [2001] (in Hebrew).
68
69
HCJ 5432/03 SIN v Council for Cable and Satellite Broadcasting 58(3) PD 65 [2004] (in Hebrew), Justice
Dorner’s opinion.
70
CA 2781/93 Daaka v Carmel Hospital 53(4) PD 526 [1999] (in Hebrew).
rights. This chapter argues that closer attention should be given to understanding the
notion of human dignity itself.
The chapter argues that the notion of human dignity is based on the unique, intrinsic
value embedded in human life. The chapter further argues, however, that there is more
than one world-view with regard to the nature of such value, and that the right to human
dignity should be understood as ensuring respect for such various world-views.
The role of the Court in interpreting the right to human dignity includes identifying
the types of treatments that are incompatible with respect to different world-views
regarding the value of human life. The process of interpretation may include deriving
rights from the general right to human dignity, where such rights are needed as safe-
guards against such treatments. The Court is also entrusted with the task of specifying
the acts that amount to prohibited treatment. Thus, for example, if the right to human
dignity includes protection against humiliation, clearer guidelines should be offered for
what constitutes humiliation and whether the notion of humiliation is objective or sub-
jective, universal or culture dependant.71 If the right to human dignity protects the
autonomy of free will, indication must be given for the conditions that are required for a
person to be able to exercise such autonomy.72 Similar questions should be examined
with regard to other types of treatment determined to be incompatible with a commit-
ment to human dignity.
Constitutional interpretation is an ongoing process, and our understanding of con
stitutional rights and principles changes over time, reflecting changes in social values. At
the same time, in order for constitutional rights to serve as effective safeguards against
abuse, their meaning at a given time must be made clear and known. Despite the signific
ance of the right to human dignity in Israeli constitutional law, judicial interpretation of
the right to human dignity has failed to offer a clear indication of the protections it
accords. This chapter argues in favour of a notion of human dignity that accommodates
the different value systems and world-views prevalent in Israeli society, and claims that
the Court should focus less on the question of unenumerated rights and more on devel-
oping such a concept.
71
For scholarly work that addresses these issues see D Statman, ‘Humiliation, Dignity and Self Respect’ in
D Kretzmer and E Klein (eds), The Concept of Human Dignity in Human Rights Discourse (Hague, Kluwer
Law International, 2002) 209.
72
Jeremy Waldron, eg suggests a notion of dignity that is based on ‘ranking up’ and according all people
dignities once granted only to noblemen. See J Waldron, ‘Dignity, Rank and Rights: The 2009 Tanner Lectures
at UC Berkeley’ (2009) New York University Public Law and Legal Theory Working Papers, Paper No 151.
19
The Inherent Authority of Judges in a
Three-Track Democracy to Recognise
Unenumerated Constitutional Rights:
The Israeli Story of a Judicial Mission
with No Ammunition
SHARON WEINTAL
T
HIS CHAPTER IS the second part of my ongoing project,1 namely the quest for
an holistic constitutional system and theory – three-track democracy – suited to
Israeli society (as a divided one) and instrumental towards universally reconcil-
ing two seemingly rival aspirations of free women and men everywhere; the aspiration
for evolution and revolution in their collective project. Here, my focus is unenumerated
constitutional rights (UCRs)2 as essential judicial ammunition for taking both aspira-
tions seriously.
Considering the importance I attribute to holistic theories in constitutional law, it is
hardly surprising that I am proposing one for the Israeli Supreme Court in part II. After
establishing three-track democracy as an holistic constitutional system and theory in
part II, it is only natural that part III focuses in on the function of the UCRs doctrine as
a multifunctional bridge to the past, to the present and to the future in a nation’s life
cycle. Finally, part IV reviews the Israeli Movement for Quality Government v Knesset
case3 using an alternative constitutional source for deriving UCRs – a nation’s founding
formula for sustaining political unity.
1
For the first part, see S Weintal, ‘The Challenge of Reconciling Constitutional Eternity Clauses with
Popular Sovereignty: Toward Three-Track Democracy in Israel as a Universal Holistic Constitutional System
and Theory’ (2011) 44 Israel Law Review 449.
2
The term ‘unenumerated constitutional rights’ (UCRs) is somehow misleading since some of them can be
derived directly from a written constitutional concept; as such, they can actually be perceived as enumerated –
an implied constitutional provision presumably written between the lines with ‘invisible ink’ (A Barak,
‘Unconstitutional Constitutional Amendment’ (2011) 44 Israel Law Review 321, 337). Therefore, whenever I
use the term UCR I am referring to all constitutional rights, which are not explicitly mentioned in the text and
cannot be naturally derived from a written ‘mother right’.
3
286 Sharon Weintal
I. INTRODUCTION
From an Israeli perspective, the endless intellectual battle between textualists and non-
textualists could have been perceived for decades as a privilege for the rich. Starting
from scratch in a total textual void, from day one, Israeli judges had to sharpen their
skills at spinning gold out of straw.4 This early romantic era ended in 1992 with the
enactment of two (then) new Basic Laws: Basic Law: Human Dignity and Liberty and
Basic Law: Freedom of Occupation and the so-called ‘Constitutional Revolution’ identi-
fied with the United Mizrahi Bank case.5 Nevertheless, the tradition of non-textualism
has managed to keep its momentum as the Supreme Court was willing to expand the
scope of the new written constitutional concepts in order to host a large variety of seem-
ingly UCRs.6
In order to properly address a claim for an alleged UCR, judges need to consolidate
their constitutional theory and be open about it, without which it would be impossible
to apply any coherent body of constitutional law. In other words, I believe that the only
way constitutional law can evolve to the benefit of society is, in Posner J’s words, by
‘top-down reasoning’ and ‘top-down theories’7 – looking vertically from an holistic con-
stitutional theory8 defining the constitutional courts’ role in a free democratic society
down to the specific case or clause at stake – transparent for public scrutiny. It is pre-
cisely the fiction of ‘bottom-up reasoning’ (the imagined option of looking horizontally,
and eventually vertically from the bottom up, by addressing the ‘plain meaning’ of
the text or using ‘reasoning by analogy’ from case to case) that jeopardises the role of
constitutional adjudication – be it under a monist constitutional theory, a dualist one, or
under three-track democracy.
4
The first era in Israel’s constitutional evolution is typified by a one-level system of written norms (setting
aside regulations by the government) where Basic Laws are perceived as regular laws, alongside a judicial will-
ingness to recognize various unwritten rights and liberties. For famous examples: HCJ 1/49 Bejerano v Minister
of Police 2 PD 80 [1949] (in Hebrew) (freedom of occupation); HCJ 73/53 Kol Ha’am v Minister of Interior 7
PD 871 [1953] (in Hebrew) (freedom of speech); FH 10/69 Boronovski v Chief Rabbi of Israel 25(1) PD 7 [1971]
(in Hebrew) (right to equality); HCJ 355/79 Katalan v Prisons Service 34(3) PD 294 [1980] (in Hebrew) (right to
human dignity).
5
CA 6821/93 United Mizrahi Bank v Migdal Cooperative Village 49(4) PD 221 [1995] (in Hebrew). The case
is identified with the Israeli historic switch from a one-level system of written norms to a constitutional demo
cracy where Basic Laws are perceived as normatively superior.
6
One can argue that these rights are not actually UCRs since they can be derived from ‘human dignity’ and
thus should be perceived as enumerated (see n 2 above), however at least with regard to the first case cited here
(as discussed at section IVB) the argument seems unconvincing. For famous examples: Movement for Quality
Government v Knesset (n 3) paras 30–43 of Court President Barak’s opinion; HCJ 7052/03 Adalah v Minister
of Interior 61(2) PD 202 [2006], Court President Barak’s opinion (in Hebrew); CHR 8823/07 John Doe (Anon)
v State of Israel (11 February 2010), Nevo Legal Database (by subscription) paras 15–16 of Court Vice President
Rivlin’s opinion (in Hebrew).
7
RA Posner, ‘Legal Reasoning From the Top Down and From the Bottom Up: The Question of Unenumerated
Constitutional Rights’ in GR Stone, RA Epstein and CR Sunstein (eds), The Bill of Rights in the Modern State
(Chicago, University of Chicago Press, 1992) 433, 433–36. Posner seems to agree that bottom-up reasoning
merely purports to be reasoning (ibid 449–50).
8
Posner seems to favour clause-by-clause (‘modest’) theories – tracing the purpose of one clause – over
holistic (‘immodest’ or ‘ambitious’) top-down theories grappling with the purpose of the constitution as a
whole (ibid 439–50). It seems that any ‘modest’ theory (eg a theory of speech or equality) will have to eventu-
ally interconnect with a holistic ‘immodest’ one since only the latter – placing speech or equality in the context
of the role of constitutional courts – can face constitutionalism’s legitimacy challenges (discussed at section
IIA below).
Unenumerated Constitutional Rights in Israel 287
Monist theories perceive normal politics (legislation by the representative in

Parliament) as the ultimate expression of popular sovereignty; as such, any intervention
in its output suffers from the counter-majoritarian difficulty;9 nonetheless, some still
endorse constitutionalism for the sake of reinforcing the system. Process-based monism
perceives democracy as a procedural system for making political decisions as an aggre-
gation of private preferences, which unfortunately involves some inherent failures that
need to be addressed by constitutional judges;10 conversely, rights-based monism per-
ceives democracy as a substantial system committed to a moral imperative – to treat
people with ‘equal concern and respect’ – in which constitutional judges serve as a
morality oversight mechanism over the system’s output.11 Either way, a ‘bottom-up rea-
soning’ – avoiding an holistic top-down theory and obscuring the judgment – fails to
provide a normative basis for the counter-majoritarian act of overruling a political deci-
sion by the people’s representatives.
Where dualism is concerned, normal politics is only a limited expression of popular
sovereignty, while the higher lawmaking process – which involves the people directly in
unique constitutional moments – is a more authentic and superior one. Accordingly,
constitutional courts play the pivotal role of signalling to the people and other branches
of government that normal politics seem to trespass into the constitutional sphere and
that they better raise their level of political awareness accordingly.12 Obviously, an
obscure message would fail to facilitate the badly needed constitutional dialogue.
Finally, where three-track democracy is concerned,13 constitutional courts are equally
important since they signal to members of a nation that their trustee body appears to be
breaching its trusteeship duties.14 Such a breach of trust occurs whenever a nation’s
trustee seems to radically divert from its dynamic founding narrative as the ultimate
expression of popular sovereignty.15 The court’s judgment carries another important
message whereby if members of a nation actually find the course of their trustee body
acceptable, perhaps the time is ripe for a third track in order to collectively break out of
the founding narrative. Here again, a vague judicial message misses the whole point of
having a constitutional court.
The appeal for an holistic top-down theory in constitutional law goes far beyond the
subject of this chapter, namely as a legal basis for deriving UCRs; it actually covers the
full spectrum of constitutionalism. It seems that even where an enumerated right or an
9
AM Bickel, The Least Dangerous Branch: The Supreme Court and the Bar of Politics (Indianapolis, Bobbs-
Merrill, 1962) 16–23; J Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal
1346, 1348–53.
10
1980) 87–88, 102–03. Those failures encompass the tyranny of the majority syndrome (the tendency of the ins
to favour themselves at the expense of the outs) and the discrete and insular minority syndrome (the vulnerabil-
ity of certain minorities). For a critical approach of Ely’s theory, see L Tribe, ‘The Puzzling Persistence of
Process-Based Constitutional Theories’ (1980) 89 Yale Law Journal 1063, 1067–79.
11
R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, Harvard
12
B Ackerman, We the People: Foundations (Cambridge, Harvard University Press, 1991) 6–16, 266–94.
13
For further discussion of three-track democracy, see Weintal (n 1) 470–89; below, at section IIA.
14
For a similar insight on MPs’ status as public trustees, see S Navot, ‘Members of the Knesset as “Public
Trustees”’ (2000) 31 Mishpatim 433, 465–86, 518–25 (in Hebrew).
15
A nation’s dynamic founding narrative tells the unfolded story of free women and men joining forces to
organize society according to several founding formulas in order to secure their well-being and basic unity. The
dynamic nature of the story lies in the fact that those formulas are constantly being evaluated and reshaped in
the wake of every founding event – every new chapter written in the nation’s biography – whether the constitu-
tional text changes accordingly or not.
288 Sharon Weintal
implied right (derived from an enumerated ‘mother right’) is concerned, the broad lan-
guage of the Bill of Rights provides virtually no guidance for constitutional courts;
therefore, failing to connect with an holistic top-down theory regarding its role in a free
democratic society is liable to leave the audience with a bitter taste of legislation from
the bench that undermines the legitimacy of constitutional adjudication.
II. THREE-TRACK DEMOCRACY AS THE ULTIMATE TOP-DOWN

THEORY FOR THE ISRAELI SUPREME COURT
A. Three-Track Democracy in a Nutshell
Three-track democracy can be associated with an holistic constitutional system and the-
ory: as a constitutional system, it discriminates between evolutionary and revolutionary
decision-making and identifies the basic norm of the legal system with a nation’s collec-
tive will (or dynamic founding narrative). As a constitutional theory, it justifies constitu-
tionalism and judicial review mainly for the purpose of regulating a nation’s evolution
– protecting its evolved founding formulas for organizing society against harmful nor-
mative mutations – until a nation directly embraces a revolutionary leap under a special
third track.
Constitutional eternity clauses (non-amendable constitutional provisions)16 as well as
the unconstitutional constitutional amendment doctrine (the judicial power to strike
down amendments to the constitution on substantive grounds)17 seem to play a pivotal
role in three-track democracies by blocking the first two tracks in order to force revolu-
tionary movements to engage in the consensual third track and protect society from a
unilaterally-imposed revolution – an act liable to be detrimental to the delicate evolu-
tionary process. This can be achieved when a legal system distinguishes between three
decision-making tracks: two tracks for evolutionary decision-making (normal legisla-
tion and normal constitution-making) both in compliance with a nation’s dynamic
founding narrative, and a special third track for revolutionary decision-making in order
to break out of the current narrative.18
The idea is to regulate revolutionary decisions, design a special process to ensure that
a nation’s timeless achievements are embedded in the new emerging narrative and that
the basic interests of individuals invested in the former narrative are taken into consider-
ation. A successful third track – under the supervision of the constitutional court – is
based on an historic compromise within an extraordinary ad hoc body of representa-
tives (equal to the original constituent assembly), between the guardians of the current
founding narrative and their rival revolutionary political movements, later to be submit-
ted for ratification by the people directly. Thus, a new sustainable political unity will be
likely to emerge from the ruins of the dying one.
16
On constitutional eternity clauses and the challenge of integrating them in a democratic system adhering
to popular sovereignty, see Weintal (n 1) 456–63, 489–96.
17
Barak, ‘Unconstitutional Constitutional Amendment’ (n 2) 322–38.
18
Compare with Schmitt’s insight of the normally fading out sovereign (or nation) which makes a comeback
in rare historical times to form a cycle of full incarnations: C Schmitt, Constitutional Theory (Durham, Duke
University Press, 2008) 109–11, 126–28.
Such a scheme seems to be relatively successful when it comes to addressing constitu-

tionalism’s legitimacy problems: first, by placing narrative above text, three-track
democracy encourages evolution under the first two tracks, as long as the continuity and
inner logic of the narrative remain intact – thereby easing the tension with regard to the
precommitment19 and intertemporal precommitment problems20 and giving more leeway
to the current generation. Second, free members of a nation need not wait forever for the
slow evolutionary process and benefit from the option of breaking out of their narrative
in the here and now through the third track.
Three-track democracy faces another legitimacy challenge as to what makes constitu-
tional judges any better for the job, especially due to their counter-majoritarian nature.21
One response – the formal argument – would be that a nation gave them the job
described in the provisions of the constitution; however, this argument is more convinc-
ing in a system that has formal eternity clauses where the three-track scheme can be fig-
ured out intuitively from the basic structure of the document. Another response would
be that under the basic assumptions of three-track democracy (described below) other
branches wield limited governmental powers as a nation’s trustees; it follows that only
an unbiased arbitrator can effectively impose these boundaries according to the ultra
vires doctrine.22 Finally, the institutional edge argument is that the judiciary seems to be
a more trustworthy guardian of a nation’s will; it is precisely these independent, coun-
ter-majoritarian and unaccountable aspects that render the court competent to bravely
stand in the way of a majority illegitimately promoting a unilaterally-imposed revolu-
tion.23 Moreover, it seems that other branches – as serial elected bodies – are much more
likely to distort the narrative (as the collective DNA) at the first revolutionary challenge
in order to please their revolutionary voters. In contrast, a slight revolutionary wind
blowing from a temporary majority is probably not enough to divert the court from its
familiar trail; only strong indications coming from a third track can persuade judges that
the time has come to format their judicial hard drive, since a new constitutional order
has been legitimately applied in society.
19
S Holmes, ‘Precommitment and the Paradox of Democracy’ in J Elster and R Slagstad (eds), Constitutionalism
and Democracy (Cambridge, Cambridge University Press, 1988) 195, 199–205. The precommitment issue deals
with the tendency of constitutionalism to frustrate majority will.
20
E Parnes, ‘They the People: A Third-Party Beneficiary Approach to Constitutional Interpretation’ (2003)
43 Santa Clara Law Review 495, 500–02. The ‘intertemporal precommitment problem’ deals with the tendency
of constitutionalism to frustrate majority will not just for the sake of society’s current fundamental values, but
in order to express the will of past generations.
21
For the ‘counter-majoritarian difficulty’, see Bickel (n 9). For the argument whereby the legislature is up
for the job of protecting individual rights, see Waldron, ‘The Core’ (n 9) 1371–95. It seems as though at least
one of Waldron’s basic assumptions (ibid 1359–69) – a commitment to rights – is under serious doubt regard-
ing Israel. As a divided society – obtaining a large ultra-Orthodox community (placing God above rights) and
grappling with a long national conflict (placing minority rights at risk) – giving up on judicial review is not
something Israelis should seriously consider.
22
Compare with the classic ultra vires doctrine (W Wade and C Forsyth, Administrative Law, 9th edn
(Oxford, Oxford University Press, 2004) 33–37; D Barak-Erez, Administrative Law (Tel-Aviv, Israeli Bar
Publishing House, 2010) 97–98, 116–19 (in Hebrew)), which stresses that any governmental act falling outside
the boundaries of statutory governmental powers is subjected to the judiciary’s inherent authority of judicial
review.
23
For a different approach calling for further accountability of constitutional courts in direct proportion to
their judicial review powers, see Y Dotan, ‘Judicial Review and Accountability – A Comparative Analysis’
(2007) 10 Law and Government 489 (in Hebrew).
290 Sharon Weintal
B. Basic Assumptions of Three-Track Democracy
i. Nation’s Collective Will Serves as the ‘Basic Norm’ of a Legal System
I have previously defined and analyzed the relationships between the three legal entities
dominating the public sphere of a free society – individual, nation and state – placing
them in a pyramidal structure in the same order.24 In such a pyramidal structure, on the
one hand, a nation’s collective will serves as the ‘basic norm’ of the legal system, since
any other norm-producing entities in society (namely state organs) are lower in the
structure and thus subordinate to the upper entity’s will.25 On the other hand, a nation’s
free will is somehow limited: a nation cannot legitimately abolish the modern state or its
democratic regime, since they both serve as universal preconditions for securing the
well-being and the essence of freedom of the individual, which stands above the nation
in the structure. It is the individual’s free will that is associated with the origin of free
nations; it is its natural rights and well-being that serve as the ultimate test for the moral-
ity and legitimacy of any collective project in society.
Another implication of the pyramidal structure is that all branches of government
which function as institutions of the state – due to its lower position – are actually hybrid
entities serving a dual role in society of both an organ of the state and a trustee of the
nation. For instance, Parliament serves as an organ of the state – the legislative branch
– by introducing sovereign-made rules for the sake of peaceful coexistence between
members of society; it further serves as the nation’s trustee26 responsible for guarding its
collective will (or dynamic founding narrative) by capturing its essence in written legal
norms. Similarly, the judiciary serves as an organ of the state, delivering sovereign-made
justice and resolving conflicts which would otherwise be resolved vigilante style; and
here again, it serves as the nation’s trustee guarding its constitution as a manifestation of
its narrative against an unauthorised attempt to speak on its behalf.
ii. Nation’s Collective Will is Not Frozen in Time – the Emergence of a Dynamic
Founding Narrative
A nation is an evolving entity whose collective will and identity are constantly chang-
ing.27 Therefore, rigid written constitutions – regardless of the constitution-making pro-
cess – are liable to become a pale, sometimes unreliable, still image of a dynamic evolving
identity. As the gap between identity and text widens, the basic legitimacy problems of
constitutionalism – that is the precommitment problem, the intertemporal precommit-
24
Weintal (n 1) 464–66.
25
For the description of the ‘basic norm’, see H Kelsen, General Theory of Law and State (Cambridge,
Harvard University Press, 1945) 110–11; H Kelsen, Pure Theory of Law (Berkeley, University of California
Press, 1967) 193–95.
26
For the view whereby any authority holding ‘constituted power’ (embedded in the text) acts as trustee of
the ‘constituent power’ (embedded in the people’s hands), see UK Preuss, ‘Constitutional Powermaking for the
New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution’ in
M Rosenfeld (ed), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspective (Durham,
Duke University Press, 1994) 143, 155–58.
27
For the dynamic nature of a nation’s identity, perceptions and fundamental values, see HCJ 265/87
Beresford v Minister of Interior 43(4) PD 793 [1987] para 10 of Justice Barak’s opinion (in Hebrew); HCJ
2605/05 Academic Center of Law and Business v Minister of Finance (19 November 2009), Nevo Legal
Database (by subscription) paras 18–20 of Justice Levy’s opinion (in Hebrew).
ment problem and the counter-majoritarian difficulty – intensify. The amending process
is a limited tool for bridging the gap since its procedural requirements are sometimes too
hard to follow28 and it tends to suffer from the same failures facing normal politics.29
In order to effectively deal with the inherent gap of constitutionalism, one has to rule
out the option of counting oneself among the ‘originalist’ camp. Addressing the original
will of the founding fathers or their understanding of the nation’s founding formulas
for organizing society, frozen in time, means letting the ‘dead hand’ of the past govern
the living30 and ignoring the hierarchical structure described above by placing the pale
remnants of a dying nation above the free will of living individuals. On the other hand,
joining the ‘presentist’ camp is not an attractive option in its own right; adopting an
extreme version of the ‘living constitution’ approach, is actually giving up on the whole
idea of constitutionalism as we know it,31 letting a current accidental majority ignore
tremendous collective achievements of past generations and carelessly cutting off centu-
ries of delicate evolutionary process.
In contrast, three-track democracy urges the constitutional court to count itself among
the ‘traditionalist’ camp. Since it serves as a nation’s trustee entrusted with the role of
keeping its integrity – as a multi-generational political unity – intact, it should address
the constitution differently. Judges ought to accept that a written constitution is merely
an imperfect symbol of a supreme founding narrative that holds the cumulative wisdom
of all generations regarding a nation’s ideal formulas for organizing society. The found-
ing narrative forms a chain of continuity which binds the founding fathers and the cur-
rent generation into a single living, evolving nation.32
iii. Dichotomy between Universal and Particular Founding Formulas and Values
Three-track democracy assumes that there is a clear dichotomy between universal
founding formulas (and values)33 and particular founding formulas. The former repre-
sent timeless formulas for organizing society – identified with the last phase in any
nation’s evolution – thus, must be kept off the table for all decision-making tracks. Such
formulas encompass the modern state and democracy which act to ensure individuals’
well-being and basic freedom.
28
A fine example is the Via Dolorosa of the amending process in the US, see US Constitution, Art V.
29
The common super-majority requirement as part of an amending process suffers from the same failures as
normal politics (see n 10 above) although it tends to reduce some of the risks due to the extra power of
minorities.
30
For the ‘dead hand’ terminology, see MW McConnell, ‘Textualism and Democratic Legitimacy: Textualism
and the Dead Hand of the Past’ (1998) 66 George Washington Law Review 1127, 1127. For the natural right of
living generations to govern themselves, see T Jefferson, ‘Letter to James Madison’ (6 September 1789) in JP Boyd
(ed), The Papers of Thomas Jefferson, vol 15 (Princeton, Princeton University Press, 1958) 392, 392–97.
31
For the ‘living constitution’ approach as deception since a non-binding constitution implies giving up on
constitutionalism altogether, see McConnell (n 30) 1128–29.
32
For the adoption of the founding narrative metaphor in constitutional interpretation, see HCJ 466/07
Gal-On v Attorney General (11 January 2012), Nevo Legal Database (by subscription) paras 9–18 of Justice
Levy’s opinion (in Hebrew). For a similar view addressing ‘a nation’s aspirations throughout the course of his-
tory’, see Movement for Quality Government v Knesset (n 3) para 24 of Court President Barak’s opinion.
33
A nation’s founding values are derived directly from the dynamic founding narrative as their protection is
essential to preserving the narrative’s continuity and inner logic. For the adoption of the ‘founding values’ termi-
nology, see Academic Center of Law and Business (n 27) para 20 of Justice Levy’s opinion. For the ‘fundamental
values’ terminology, see United Mizrahi Bank (n 5) para 47 of Court President Barak’s opinion. For the ‘depth
values’ terminology, see Movement for Quality Government v Knesset (n 3) para 10 of Court Vice President
Cheshin’s opinion.
292 Sharon Weintal
Conversely, the latter represent imperfect formulas identified with a premature, or at

least questionable, phase in a nation’s evolution adopted in order to sustain political
unity. For instance, the Jewish state formula alienates Palestinian citizens of Israel and is
clearly far from perfect; the French civil republican model, denies the collective rights of
minorities and thus generates all sorts of identity problems; and the Turkish devotion to
Atatürk’s legacy appears to be the act of a zealous minority imposing modernism on a
traditional Muslim majority. Thus, founding formulas in this category must remain
open for discussion, at least for the political players who engage in the third track.34
iv. Parliament is Incompetent at Running the Third Track

I have addressed this assumption at length elsewhere – namely the incompetence of
Parliament at speaking on behalf of a nation where revolutionary decisions are con-
cerned (cutting off the continuity of a nation’s dynamic founding narrative or inflicting
harmful normative mutations onto its delicate founding formulas), as if it were an origi-
nal constituent assembly. Moreover, I have ruled out the option of super-majority in
Parliament to serve as a nation’s organ, and even raised some serious doubts about a
national referendum as the ultimate expression of a third track, especially in divided
societies.35
My conclusion was that Parliament can only serve as a nation’s trustee bound to its
dynamic founding narrative – a derivative constituent assembly – whereas a legitimate
revolutionary leap could only take place beyond its boundaries;36 therefore, if it purports
to wield the powers of an original constituent assembly – speaking directly on behalf of
a nation in revolutionary decisions – then its action exceeds its limited powers and courts
hold the inherent authority to declare it null and void.37
C. Indications for Counting Israel among Three-Track Democracies
i. The Inclusion of an Implied Eternity Clause – Section 7A of Basic Law: The Knesset
Constitutional eternity clauses and the unconstitutional constitutional amendment doc-
trine – due to their important function in the system mentioned above – serve as the
ultimate indication, the earmark, of any three-track democracy;38 however, only those
34
For extra elaboration on the dichotomy and its pivotal place in a three-track democracy, see Weintal (n 1)
473, 492–95. Compare with Grey’s insight on values that are perceived as ‘permanent and universal features of
human social arrangements’ and conversely ever-changing values ‘relative to our particular civilization’ (TC
Grey, ‘Do We Have an Unwritten Constitution’ (1975) 27 Stanford Law Review 703, 709).
35
Weintal (n 1) 486–89.
36
Compare with Schmitt’s assertion that both a super-majority in the Reichstag and a majority in the British
Parliament are similarly incompetent at eliminating ‘the constitution’ (as the fundamental decision of a politi-
cal unity). Only a separate constitution-making assembly can claim such a right (Schmitt (n 18) 79–80).
37
For the terminology of ‘original constituent power’ (or assembly) and ‘derivative constituent power’, see
C Klein, ‘After Bank Hamizrahi Case – The Constituent Power as Seen by the Supreme Court’ (1997) 28
Mishpatim 341, 355–58 (in Hebrew); AL Bendor, ‘The Legal Status of Basic Laws’ in A Barak and C Berenson
(eds), Berenson Book, vol 2 (Tel-Aviv, Nevo, 2000) 119, 132–36, 142–45 (in Hebrew).
38
Compare with Germany’s three-track democracy scheme. On the one hand, the eternity clause
(Grundgesetz für die Bundesrepublik Deutschland (Grundgesetz) (GG) (Basic Law), 23 May 1949, BGBl I, Art
79(3) (Ger)) blocks the first two tracks and protects the integrity of the Basic Law against a revolutionary
amendment. On the other hand, the Basic Law recognizes a third track for breaking out of its current basic
structure by freely expressing the German people’s new collective will (ibid 146).
protecting particular founding formulas (or values) can help us figure out the three-track
scheme. Where universal founding formulas (or values) are concerned (representing the
last phase in any nation’s evolution), eternity clauses can be interpreted as an absolute
collective commitment not to drift away from the path towards progress and thus the
recognition of a third track to accommodate a revolutionary aspiration seems unneces-
sary and even troubling. Conversely, where particular founding formulas (or values) are
concerned (representing a premature, or at least questionable, phase in a nation’s evolu-
tion), recognizing a third decision-making track – in order to facilitate the option to
rectify the imperfections embedded in the collective project through a revolutionary leap
– seems to be the only way to reconcile eternity clauses and popular sovereignty.39
Although Israel’s Basic Laws do not include formal (explicit) eternity clauses, its legal
system tends to limit the scope of amending power where the Zionist project is con-
cerned – thereby freezing the imperfect particular founding formula of the Jewish state
and seemingly desperate for the holistic three-track scheme. Israel’s Basic Laws actually
embody an implied eternity clause – section 7A of Basic Law: The Knesset – which
authorises the Elections Committee to ban a list of candidates (or only one) on the
grounds of having political goals or acting in a manner that negates the existence of
Israel as a Jewish and democratic state, inciting to racism, or supporting an armed strug-
gle against the state by an enemy state or terrorist organization. Such a clause sets the
barrier against a revolutionary amendment, not at the end of the road in order to strike
it down, but rather at the gates of the constituent assembly, thereby neutralizing its
potential initiators.
Section 7A sends a clear message throughout the Israeli legal system whereby any
revolutionary aspiration (regarding the particular founding formula of the Jewish state)
should find refuge outside the gates of Parliament since the Knesset (Israeli Parliament)
perceives itself – in correlation with the premises of three-track democracy – as the
nation’s trustee (rather than organ) loyal to its founding narrative. As a derivative con-
stituent power, it is unauthorised to speak for the nation where revolutionary decisions
are concerned; thus, it holds inherently limited amending power.40
ii. The Emergence of the Doctrine of Unwritten Fundamental Principles

Considering the various judicial eternity clauses41 stemming from the bench, especially the
doctrine of unwritten fundamental principles, the Israeli Supreme Court appears to be
very much on board with the Knesset’s self-perception of its inherently limited amending
powers.42
An initial indication was Court President Agranat’s opinion in the famous Yardor
decision.43 Although the ruling cannot be considered a typical judicial eternity clause
39
For a full discussion, see Weintal (n 1) 470–75, 489–96.
40
For a similar view: Barak, ‘Unconstitutional Constitutional Amendment’ (n 2) 338–41; Bendor (n 37)
135–36; Navot (n 14) 518–25. For another approach whereby the Knesset wields the powers of an original con-
stituent assembly: Klein (n 37) 355–57.
41
A judicial eternity clause can be defined as any judicial doctrine that tends to limit the scope of amending
power on substantive grounds as if the constitution embodied an explicit eternity clause. Weintal (n 1) 460–63.
42
See Barak’s clear statement whereby the Knesset was never authorized by the people to eliminate Israel’s
fundamental principles as a Jewish and democratic state (Movement for Quality Government v Knesset (n 3)
paras 73–74).
43
EA 1/65 Yardor v Chairman of the Central Elections Committee to the Sixth Knesset 19(3) PD 365, 384–
89 [1965] (in Hebrew).
294 Sharon Weintal
because it did not address a revolutionary amendment directly, it still has an indirect
effect on the amending power. Since the Court reaffirmed the Elections Committee’s44
unwritten power (20 years before the enactment of section 7A) to ban a list of candidates
from national elections, and since the Knesset is also the constituent assembly,45 closing
its gates to revolutionary political movements generates an indirect limitation to the
amending power. Agranat based his judgment on the interpretation of the Basic Law:
The Knesset whereby since the Knesset is ‘the representative assembly of the state’,46
potential MPs cannot turn against the deepest aspirations of the nation, which include
its Jewish identity – an observation which is perfectly in tune with the basic assumptions
of three-track democracy.
However, the most influential judicial eternity clause is the doctrine of unwritten fun-
damental principles, which perceives such principles as an integral part of a legal system
above any other written norms, and thus resembles the Indian Supreme Court’s basic
structure doctrine.47 Although it has yet to be applied,48 since it was first introduced by
Court President Barak in the Laor Movement case49 it has gained more and more
momentum as some of the Supreme Court judges seem to be convinced.50 Court President
Beinisch recently reaffirmed its pivotal role in the Israeli legal system and was prepared
to test an amendment to the Basic Laws postulating a unique two-year budget scheme in
light of Israel’s higher unwritten principles as part of an Israeli unconstitutional consti-
tutional amendment doctrine.51 Recognizing the fact that certain unwritten fundamental
principles are an integral part of the legal system, above and beyond the Basic Laws, is
like protecting them in a formal eternity clause, similarly to Norway’s general eternity
clause which addresses the spirit of the Constitution.52
iii. The Origin and Nature of the Basic Laws

Its seems as though the Israeli constitutional project of the Basic Laws fits a three-track
democracy like a glove. The Basic Laws enacted by the Knesset, which are entirely
declarative in nature, introduce a reliable copy of the already well-established dynamic
founding narrative; as such, they could be perceived as a nation’s Trustee Act applying
44
The Elections Committee in Israel serves as a regulative authority at times of elections.
45
United Mizrahi Bank (n 5) para 32 of former Court President Shamgar’s opinion, paras 10–17, 38–39 of
Court President Barak’s opinion. For a dissenting opinion limiting the Knesset’s powers to regular legislative
ones, see ibid paras 9–29, 33–34, 63–64 of Justice Cheshin’s opinion.
46
Basic Law: The Knesset, s 1.
47
For the basic structure doctrine, see M Abrahams, ‘Judicial Role in Constitutional Amendment in India:
The Basic Structure Doctrine’ in M Andenas (ed), The Creation and Amendment of Constitution Norm
(London, British Institute of International and Comparative Law, 2000) 195, 201–04. The doctrine follows
Schmitt’s footsteps (Schmitt (n 18) 74) by stressing that the concept of ‘amendment’ has inherently limited
scope and cannot be used to undermine the basic structure of the constitution.
48
Only one dissenting judgment suggested that the time to apply the doctrine had come, see n 88 below and
the accompanying text.
49
HCJ 142/89 Laor Movement v Speaker of the Knesset 44(3) PD 529 [1990] paras 25–30 of Court President
Barak’s opinion (in Hebrew).
50
For a few examples among others: CA 733/95 Arpal Aluminum Ltd v Klil Industries Ltd 51(3) PD 577
[1997] paras 31–32 of Justice Cheshin’s opinion (in Hebrew); Academic Center of Law and Business (n 27)
para 3 of Justice Hayut’s opinion. For a more sceptical approach: ibid paras 18–20 of Justice Levy’s opinion.
51
HCJ 4908/10 Bar-on v Knesset (7 April 2010), Nevo Legal Database (by subscription) paras 31–35 of
Court President Beinisch’s opinion (in Hebrew). For the option of applying an Israeli unconstitutional consti-
tutional amendment doctrine, see Barak, ‘Unconstitutional Constitutional Amendment’ (n 2) 338–41.
52
Kongeriget Norges Grundlov (Constitution) 17 May 1814, Art 112.
its inherent authority to capture the essence of a nation’s collective project in written
constitutional norms as a safeguard against unauthorised acts by actual members of the
trustee legislative body.
Considering the fact that Israel’s Basic Laws, at least until the so-called ‘Constitutional
Revolution’ identified with the 1995 United Mizrahi Bank case,53 were never perceived as
pivotal to the nation’s building process (a red alert of sorts that calls for higher levels of
political awareness and involvement in constitution-making)54 – be it by Knesset
Members,55 the courts56 or the public57 – they come across as a decisive indication of the
limited nature of the Israeli constitutional project and of the Knesset’s limited authority
as a constituent assembly. Since the enactment of the Basic Laws appears to be an act of
a devoted trustee, the Israeli public could afford the luxury to fade out from the consti-
tution-making process just like any other nation under a three-track democracy natu-
rally does when nothing seems to interfere with its normal evolution or with the
continuity of its dynamic founding narrative.58
III. THE UNENUMERATED CONSTITUTIONAL RIGHTS DOCTRINE AS AN

ESSENTIAL ELEMENT OF THREE-TRACK DEMOCRACY
A. Bridge to the Past
The UCRs doctrine serves as an essential multifunctional bridge in three-track demo

cracy. It is first a bridge to the past (addressing lacuna in a thin constitutional text) since
the written constitution, even if it is a masterpiece, is ultimately an imperfect social
product – that is, a desperate effort to capture the elusive essence of a nation’s identity
with limited linguistic tools designed for ordinary human communication.
This gap is extremely wide in Israel since – from day one – the whole Basic Laws project
was meant to be a partial, step-by-step process. Instead of exercising its constituent power,
the First Knesset – as an elected constituent assembly – reached the so-called ‘Harari
Decision’59 in order to enact one Basic Law at a time to eventually be codified into a consti-
tution. This gradual process is ongoing and no one can claim that the project is over and
done with or that the time for final codification has arrived. Thus, the current list of Basic
Laws fails to capture the full capacity of the Jewish and democratic state.
For instance, the Law of Return60 – which fulfills the deepest aspiration of Zionism in
its revival of the original political unity of the Jewish people – was shamefully enacted as

53
Compare to Ackerman’s levels of collective awareness (Ackerman (n 12)).

54
55
Note that some of the Basic Laws were enacted with very poor MP attendance – in certain cases, with
barely over a quarter of the Knesset Members voting for the Bill.
56
For years under a one-level system of written norms, the Israeli Supreme Court suggested that the Basic
Laws were no different than regular laws (HCJ 148/73 Kaniel v Minister of Justice 27(1) PD 794, 796 [1973] (in
Hebrew); HCJ 107/73 Negev Automobile Service Ltd v State of Israel 28(1) PD 640, 642 [1974] (in Hebrew);
HCJ 60/77 Ressler v Chairman of the Elections Commission 31(2) PD 556, 560 [1977] (in Hebrew)).
57
The enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation –
which in hindsight triggered the ‘Constitutional Revolution’ (see n 6 above) – went completely under the Israeli
public radar.
58
Compare with Schmitt’s insight on the normally fading out sovereign (Schmitt (n 18)).
59
DK 5 (1950) 1743.
60
Law of Return, 5710-1950 (hereinafter: Law of Return).
296 Sharon Weintal
a regular, rather than a Basic Law. This is obviously a problematic gap between text and
narrative to be addressed by constitutional courts.
There are several judicial techniques for bridging such a gap; however the UCRs doc-
trine is probably the more elegant among them. One technique consists of upgrading the
Law of Return, which appears to be a regular law, to the status of a Basic Law by apply-
ing a court-made ‘rule of recognition’ as implied by Court President Shamgar.61 However,
this step inevitably entails high levels of uncertainty regarding the content of the Israeli
constitutional text. Another technique consists of expanding the scope of section 7A of
Basic Law: The Knesset, Israel’s aforementioned implied eternity clause; accordingly, if
striving to annul the Law of Return is cause for banning a list of candidates (or one)
from participating in national elections,62 then handing the same proposal to the Knesset
table after the elections are over, seems impossible.63 Using the UCRs doctrine can serve
as an elegant bridge to the past by recognizing the unwritten constitutional right of every
Jew to join the safe Jewish haven of Israel.
After grappling with the possibility of applying the doctrine of constitutional lacuna
in Israel, Aharon Barak concluded that since the Israeli constitutional project is a grad-
ual one, recognizing a constitutional lacuna in Israel is impossible since any textual gap
reflects a specific stage in the project and not a lacuna.64 Nonetheless, in a three-track
democracy such as Israel, courts serve as a nation’s trustee with the specific social mis-
sion of guarding its dynamic founding narrative from an unauthorised act by a state
organ. Therefore, even if the constituent authority (a state organ) decides to take things
step-by-step, courts – as the nation’s trustee – cannot wait forever and need to step in
and recognise a constitutional lacuna whenever the written ammunition falls short of
fulfilling its role in society.
B. Bridge to the Present
The second type of bridge is a bridge to the present. As explained above, a nation is an
evolving entity with a constantly changing identity; as such, even a text that was rela-
tively successful at capturing its original elusive essence eventually becomes outdated
and irrelevant – desperately chasing a dynamic founding narrative. The written consti-
tution either overprotects rights and values that can no longer be derived from the
founding narrative – as in the classic case of the right to bear arms in the Second
Amendment to the US Constitution65 – or underprotects rights or values that have
become essential to keeping the inner logic and continuity of the narrative intact.
A fine example is gay rights. The rights of gay people (or the GLBT community) are
often lacking in the constitutional text since the whole human phenomenon was ‘in the
closet’ at the time of its foundation. As society evolves and a nation’s identity evolves,
the UCRs doctrine becomes an essential bridge to the present, thereby preventing intense
61
United Mizrahi Bank (n 5) paras 37–38 of former Court President Shamgar’s opinion.
62
EA 11280/02 Central Elections Committee to the Sixteenth Knesset v Tibi 57(4) PD 1 [2003] paras 11–13
of Court President Barak’s opinion (in Hebrew).
63
Compare to the Knesset Regulations, s 75(e). This section authorizes the Knesset’s presidency to bury a
private legislative proposal if it happens to negate the existence of a Jewish state or incites to racism.
64
A Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge, Cambridge University
Press, 2012) 45–69.
65
US Constitution, amend II.
collective dissonance between the free democratic element in the founding narrative and
the status of gay people in society.66
Collective dissonance can be defined as a situation in which a nation radically deviates
from its founding narrative, without any clear intention of breaking out of it. Thus,
resolving the constitutional crisis through a corrective normative act – resuming the
good old narrative – should not be considered as constitutionally problematic. The
UCRs doctrine can provide the legal basis for striking down the deviating norm or prac-
tice as a bridge to the present; thereby, helping to avoid a collective dissonance in the
first place.
C. Bridge to the Future
The last badly needed type of bridge is a bridge to the future. Three-track democracy is
a system in which a nation speaks directly during rare historical times through the oper-
ation of the third track. In such a scheme, one of the court’s pivotal roles is to clear the
channels for a third track since if it is stuck, there is a serious democratic deficit in the
system as free women and men find themselves unable to freely express their will to reor-
ganise as a polity according to a completely new particular formula.
It appears as though a large variety of UCRs are closely linked to this judicial mission
– for example freedom of speech, freedom of association, right to human dignity, right
to equality, etc. Protecting these basic rights is vital to facilitating an open and fair inter-
group dialogue – which is desperately needed to reach a broad historic compromise
identified with a successful third track – between the founding narrative zealots and
their revolutionary opposition.
IV. THE ART OF DERIVING RIGHTS FROM A NATION’S FOUNDING NARRATIVE –

A NATION’S FOUNDING FORMULA FOR SUSTAINING POLITICAL UNITY
AS THE HOLY GRAIL OF CONSTITUTIONAL LAW
A. Israeli Dilemma: Expanding the Scope of ‘Human Dignity’ or Expanding the Search
beyond the Text
The Israeli constitutional project is clearly an unfinished business as the Basic Laws left
huge black holes – constitutional lacunas – in the written Bill of Rights. Basic Law:
Human Dignity and Liberty and Basic Law: Freedom of Occupation omit some of the
most basic rights and liberties in any free democracy, for example the right to equality,
freedom of speech, freedom of association, freedom of religion, freedom of movement,
right to due process, etc.
66
See Justice Dorner’s opinion in HCJ 721/94 EL-AL Israel Airlines v Danilovich 48(5) 749 [1994] paras 1–9
(in Hebrew). Recently, Justice Amit, followed Dorner’s footsteps by basing his judgment on social and legal
changes in order to recognize sexual orientation as a ‘suspect classification’ subject to strict scrutiny (APA
343/09 The Jerusalem Open House for Pride and Tolerance v Municipality of Jerusalem (14 September 2010),
Nevo Legal Database (by subscription) paras 53–57 (in Hebrew)). Obviously, in constitutions including ‘equal-
ity’ or ‘human dignity’ explicitly, the UCRs doctrine could be reserved for other challenges as gay rights can be
naturally derived from the ‘mother right’.
298 Sharon Weintal
While the Israeli ‘Constitutional Revolution’67 successfully established itself by virtu-

ally turning doubt into consensus, the Supreme Court faced another painful dilemma:
either stop for a while and let the dust settle or proceed to the next stage immediately by
expanding the scope of ‘human dignity’, thereby risking the same consensus it worked so
hard to achieve. Three models of interpretation were put forward over the years: the
broad model – advocated by Justice Mazza – whose notion of ‘human dignity’ encom-
passes almost any aspect of equality and individual autonomy;68 the narrow model –
advocated by Justice Dorner – proposed that the original clear intentions of the Knesset
(to exclude several rights and liberties) be taken into account,69 thereby only including
aspects of unenumerated rights which – should they be violated – lead to humiliation as
a clear antithesis to human dignity;70 and Court President Barak’s intermediate model,
which seems to have won the hearts of his fellow judges by suggesting a middle path.
Barak’s intermediate model urges judges to expand the scope of ‘human dignity’
beyond protection from humiliation, but rejects the idea of a ‘single-provision Bill of
Rights’ accommodating virtually each and every constitutional right. According to
Barak, Israeli ‘human dignity’ can only accommodate rights when there is a ‘close
connection’ between the alleged right and the hosting concept;71 in other words, it only
covers violations of central aspects of equality and individual autonomy, which are
tantamount to a breach of the state’s duty to treat the individual as an autonomous com-
plete entity (physically and spiritually), or as an end in itself with an intrinsic value.72
Note that the ‘Basic Principles Clause’ in the Basic Laws seems to corroborate Barak’s
winning model by explicitly addressing its inner elements of autonomy and intrinsic val-
ue.73 It is somewhat ironic that the prevailing model of interpretation – which has
become so pivotal in Israel’s constitutional law – was shaped in the Movement for
Quality Government v Knesset case,74 the worst possible case for establishing the model
as its application there (as discussed below) seems unconvincing.75
The appeal of the intermediate model is obvious: its flexibility, as well as its connec-
tion to the concept of individual autonomy, provide the court with powerful constitu-
tional ammunition, potentially hosting various UCRs. Judges have two ways of
addressing a case when applying the model: either by using autonomy as their focal
point – as they did in the Adalah v Minister of Interior case76 – or by using the Kantian
element as they did in the landmark cases of the Academic Center of Law and Business,77
67
68
Justice Mazza’s opinion in HCJ 4541/94 Miller v Minister of Defence 49(4) PD 94 [1995] para 14 (in
Hebrew); PPA 4463/94 Golan v Prisons Service 50(4) PD 136 [1996] para 14 (in Hebrew); HCJ 205/94 Nof v
Minister of Defence 50(5) PD 449 [1997] paras 8–10 (in Hebrew). For another view supporting the broad
model where equality is the UCR, see HCJ 6784/06 Shlitner v Director of Pension Payments (12 January 2011),
Nevo Legal Database (by subscription) paras 2–3 of Court Vice President Rivlin’s opinion (in Hebrew).
69
For a similar famous criticism, see H Sommer, ‘The Non-Enumerated Rights: On the Scope of the
Constitutional Revolution’ (1997) 28 Mishpatim 257, 303–14 (in Hebrew).
70
Miller (n 68) para 4 of Justice Dorner’s opinion; Golan (n 68) paras 7–9 Justice Dorner’s opinion.
71
Movement for Quality Government v Knesset (n 3) paras 33 and 38 of Court President Barak’s opinion.
72
ibid para 35.
73
74
n 3.
75
See below, section IVB.
76
Adalah v Minister of Interior (n 6) paras 30–46 of Court President Barak’s opinion, paras 7–15 of Justice
Joubran’s opinion, paras 7–10 of Justice Rivlin’s opinion.
77
Academic Center of Law and Business (n 27) paras 36–39 of Court President Beinisch’s opinion, paras
3–5 of Justice Arbel’s opinion, para 1 of Justice Hayut’s opinion, Justice Joubran’s opinion, para 18 of Justice
Naor’s opinion.
Yissacharov78 and John Doe (Anon).79 Effective as it may be, there are still hard cases
which cannot be addressed by using the model; hence, recognizing the alleged right as a
constitutional right would make it necessary to search beyond the text and anchor the
UCR in a nation’s unwritten founding narrative.
Extremely hard cases are those that not only require exploring unwritten territory,
they actually require a controversial particular founding formula because exploring the
more consensual universal founding formula (the modern state and democracy) seems to
get the judge nowhere. Here, a nation’s founding formula for sustaining political unity
– which serves as a precondition for the stability and viability of the whole constitu-
tional order80 – could actually prove to be the holy grail of the UCRs doctrine supporters
or the non-textualist camp. Since any nation is built on some kind of political unity –
whether inside a national group such as Israel (the cultural formula), or between all citi-
zens of the state (or confederation) such as France and the United States (the civic
formula) – the specific formula sustaining this precious resource serves as a particular
founding formula at the basic structure of the constitutional order.81
B. Reviewing the Movement for Quality Government v Knesset Case Using the Nation’s
Founding Formula for Sustaining Political Unity as an Alternative Source
The Movement for Quality Government v Knesset case is one of those extremely hard
cases when upholding a law seems to undermine a nation’s founding narrative, but it is
quite difficult to pinpoint the constitutional provision or principle for resolving the case.
Although the Supreme Court gave the law some extra time to achieve its goals, its prob-
lematic constitutional base went on to guide the Court in the subsequent Ressler v
Knesset case where under Court President Beinisch the law was finally declared null and
void.82
The law, known as the ‘Tal Law’,83 reaffirmed the exemption of ultra-Orthodox
Yeshiva (institution for religious studies) students from mandatory military service, as
long as they dedicate their life to religious studies. The Knesset had to resolve the issue
following the Court’s ruling in the Rubinstein v Minister of Defence case84 whereby
since the number of exemptions had increased dramatically from a couple of hundred to
(then) nearly thirty thousand, it became a substantial issue that exceeded the limited
powers of the Minister of Defence.85 To give the Knesset due credit, the law did attempt
to address the issue of equality by encouraging Yeshiva students to opt for a short milit
ary service that would facilitate their integration into the labour market.
As noted above, this was the case for which Court President Barak designed the win-
ning intermediate model (defining the scope of ‘human dignity’), which ironically seems
78
CA 5121/98 Yissacharov v Chief Military Prosecutor 61(1) PD 461 [2006] paras 65–68 of Court President
Beinisch’s opinion (in Hebrew).
79
John Doe (Anon) (n 6) para 16 of Court Vice President Rivlin’s opinion.
80
Compare with Schmitt’s observation (Schmitt (n 18) 126–27) of ‘political unity’ as a precondition for
constitution-making and for the legitimacy of ‘the constitution’.
81
For the civic perception, EJ Sieyès, Political Writing (Indianapolis, Hackett Publishing, 2003) 93, 97. For
the cultural perception, Preuss (n 26) 150.
82
HCJ 6298/07 Ressler v Knesset (21 February 2012), Nevo Legal Database (by subscription) (in Hebrew).
83
Deferment of Military Draft for Yeshiva Students Whose Occupation is the Study of Torah Law, 5762-2002.
84
HCJ 3267/97 Rubinstein v Minister of Defence 52(2) PD 481 (1998) (in Hebrew).
85
ibid paras 17–41 of Court President Barak’s opinion.
300 Sharon Weintal
to fall short of resolving the case. It appears as though both elements of the intermediate
model cannot apply in this case: first, as Court Vice President Cheshin insisted,86 the
exemption has nothing to do with individual autonomy since what seems to be closely
tied with service women’s and men’s autonomy is the military service itself and not the
exemption of others; second, from a Kantian perspective, their draft serves the purpose
of sustaining a modern state – a universal formula for securing their natural rights as an
end in itself. Moreover, addressing ‘human dignity’ in its plain meaning adds to the
uneasiness since Israeli society glorifies those who serve in the IDF (Israel Defence
Forces) and its elites welcomes them with open arms.
Giving up on the constitutional text does not mean giving up on the case altogether
since in three-track democracy courts have the option to search beyond the text. Court
Vice President Cheshin tried to do precisely that by using the doctrine of unwritten fun-
damental principles at his disposal and exposing two founding values which justify
striking the law down: the particular founding value of the IDF derived from the Jewish
state formula and the universal founding value of equality derived from democracy;87
however, both should have led him to a dead end. Where the former is concerned, the
detection could not have been more precise but something is profoundly wrong with
the final conclusion; one can hardly say that as the number of those benefitting from the
exemption has grown dramatically, the IDF – by far the strongest army in the Middle
East – is under any threat.
Where the latter is concerned, Cheshin’s conclusion is still standing on shaky ground.
Democracy has many faces, however none of them can support the conclusion that ser-
vice women and men have the constitutional right to force the state to draft members of
a minority group who practice a unique way of life that would be threatened if the
alleged right were protected. Facilitating democracy Ely style (resolving process-based
failures that the majority could ride on)88 should have led judges to set aside decisions
which are sensitive to the preference of a minority at the expense of the majority, since
these are actually a sign of a healthy, functioning democracy.89 Switching to a Dworkin
style democracy (as a moral commitment to treat people with ‘equal concern and respect’
that could be deserted by a careless majority)90 is equally unhelpful since assessing the
majority conduct in this case could lead to the conclusion that nothing here is profoundly
wrong; the decision respects the ultra-Orthodox way of life and perception of the ‘good’
rooted in their religious belief, thereby treating members of the minority ‘as equals’
(rather than ‘equally’) as it should according to Dworkin.
Whenever a nation’s universal founding formulas for organizing society lead to a dead
end, judges in a three-track democracy may turn to its particular formula for sustaining
political unity as a last resort. Expanding our search, brings us to the Zionist project
which aspires to integrate the universal achievements of enlightenment and secularism
(by introducing the modern state and democracy) into a particular founding formula
86
Movement for Quality Government v Knesset (n 3) paras 68–75 of Court Vice President Cheshin’s
opinion.
87
ibid paras 6, 9–11, 16–18, 27–30, 47–52.
88
89
For this argument and the assimilation of Ely’s ideas in Israel, see Movement for Quality Government v
Knesset (n 3) paras 7 and 9 of Justice Grunis’s opinion. For the rejection of Ely’s ideas as an excessively narrow
top-down theory, see ibid paras 75–81 of Court President Barak’s opinion.
90
of a Jewish state – a safe Jewish haven in the historic homeland, a public sphere which
supports Jewish culture and connects to its historical roots, all for the sake of reviving
and sustaining the historical political unity of the Jewish people.
It seems as though a political decision which treats the ultra-Orthodox community as
an indigenous national minority – in its full capacity – undermines the basic assump-
tions embedded in the founding narrative and could lead to a disintegration of the politi-
cal unity at the core of the constitutional order; therefore, it could be perceived as
exceeding the Knesset’s limited powers as the nation’s trustee.
When applying the UCRs doctrine, judges should ask themselves two distinct ques-
tions: first, could this unenumerated right soon prove vital to fulfilling my mission as a
constitutional judge according to the theory I adopted? I believe that under three-track
democracy, the answer should be affirmative since a right to equality in barring the bur-
den of sustaining a Jewish state is already essential to fulfilling the Supreme Court’s (as
the nation’s trustee) mission to keep the founding narrative intact. Second, is this an
appropriate case for establishing such a right, even if I am not going to apply it this time?
This is where judges should look at the bigger picture and since the number of ultra-
Orthodox escaping the draft has grown dramatically, and the issue has become a major
obstacle undermining political unity, the time was definitely ripe to recognise such a
right, even if the Court ultimately decides not to strike down the law.
Obviously, recognizing such a right is only the first stage of judicial review, to be fol-
lowed by the application of a Limitation Clause as part of the balancing stage. One can
argue that since we deal with an ambiguous constitutional sphere beyond the constitu-
tional text, the use of the Limitation Clause applied should be narrower than the textual
one,91 thereby leaving Parliament more room for discretion. In any case, it seems as
though the Supreme Court ruled correctly that since the law is a minor step on the long
road to equality and since it is a provisional arrangement soon to be reviewed by the
Knesset, the time is not ripe for striking down the law. Within a few years, everything
had changed; the Supreme Court realised that the law had failed miserably at achieving
its goals and that the number of exemptions hit a new record – hence the time had come
to declare the ‘Tal Law’ null and void.92
Two final remarks with regard to the alternative way of addressing the case discussed
here: first, anchoring the right to equality in the nation’s particular founding formula to
sustain political unity inside the Jewish people – rather than in its universal founding
formula of democracy – limits the UCR scope to the Jewish community and cannot
serve as a constitutional basis for striking down a similar exemption benefitting the
Palestinian citizens of Israel. Second, the Jewish State’s formula for sustaining political
unity inside the Jewish people can serve as a legal basis for deriving all sorts of UCRs
essential to keeping the founding narrative intact, inter alia: the right of Jews worldwide
to become part of the Jewish State, the right of all streams of Judaism (Orthodox
Judaism, Conservative Judaism, Reform Judaism, Progressive Judaism or secular Jews)
to be treated with ‘equal concern and respect’, the right of secular Jews to freedom from
religious coercion and the right of ultra-Orthodox Jews to communal autonomy to the
extent that it can coexist with the basic political unity.
91
92
Ressler v Knesset (n 82) paras 49–62 of Court President Beinisch’s opinion.
302 Sharon Weintal
V. CONCLUSION
Judicial restraint, which includes restraint in applying the UCRs doctrine, could be seen
as a virtue by many constitutional theories (including three-track democracy) – a
reminder of the limits of judicial power according to a specific theory. The problem with
some textualists is their tendency to make it an intrinsic virtue, a main pillar of their
textualist faith; however, it is an empty virtue if it fails to interconnect with constitu-
tional judges’ roles in a free democratic society. In three-track democracy, constitutional
judges play a pivotal role in guarding a nation’s deepest collective will (dynamic found-
ing narrative) against subversive normative acts by unauthorised lower entities – a
nation’s trustee such as the Knesset (Israeli Parliament) – through the wrong decision-
making track. Judicial restraint whenever a nation’s founding formulas (or values) seem
to be under attack – letting the Knesset go wild – could mark the beginning of a rapid
disengagement process from the core of the narrative, deepening the collective dis
sonance in a nation’s daily practice and ending up with a total collapse of the whole
constitutional order when no one could argue that the Israeli people has collectively
spoken for the second time.
The UCRs doctrine is an essential element in every three-track democracy for
bridging the gap between the role of constitutional judges in society and the textual
ammunition at their disposal. Removing this arsenal from the constitutional courts
through a textualist leap back could have severe repercussions for the legal system: first,
by undermining the written constitution and turning it into an uninteresting object for
legal archeologists, frozen in time and hardly relevant; second, by undermining the
Court’s integrity as the nation’s trustee, which systematically fails to guard the nation’s
founding values.93
Recognizing a UCR inherently invites criticism; judges could be blamed for rewriting
laws that Parliament was elected to write – legislating from the bench – when all we ever
wanted from them was to uphold the written constitution as is. Rather than hide what
they really do or obscure their judgments, the courts should be educating the public
regarding their social mission. Therefore, applying the UCRs doctrine should naturally
begin from stage one of the reasoning – introducing an holistic top-down theory for the
role of constitutional judges in a free democratic society; only then can they progress to
stage two – deriving UCRs as essential ammunition to allow them to succeed at their
mission.
I believe that three-track democracy, as presented here, is a powerful holistic top-
down theory for stage one which perfectly fits the Israeli constitutional evolution.
Moreover, it could serve as a compelling direct message from the Supreme Court to
members of the Israeli nation that goes over the heads of some politicians in the Knesset
who unfortunately try to drive a wedge between them.
93
Compare with Grey’s assessment (Grey (n 34) 710–14) whereby applying a strict textualist approach (‘the
pure interpretive model’) would mean giving up almost every important constitutional doctrine ever intro-
duced by the US Supreme Court.
20
Perpetual Constitutional Moments:
A Reply to Hostovsky Brandes and Weintal
DAVID FONTANA
I
WAS HONOURED to be a part of the fascinating conference and I will keep my
reply brief and informal, as was suggested by the conference format.1 I also do not
pretend to be an expert on Israeli constitutional law, so I offer my perspective as an
outsider and someone whose work focuses substantially on comparative constitutional
politics more generally.2 I see in the three wonderful chapters (originally papers) I am
commenting on some themes which relate to elements of comparative constitutional
development more generally, and so that will be the focus of my brief reply. I will sketch
out some general concepts about constitutional development and tie them to these
chapters.
One of the key questions that has to be asked in understanding each constitutional
system is ‘how many constitutional moments have there been in that system’? I use ‘con-
stitutional moments’ in the way that Bruce Ackerman does, as describing a state of
heightened interest and participation in debating ‘the permanent interests of the
community’.3 There might be three different categories of answer to this question: none,
somewhere between one and constant moments, and then constant moments. Let us call
these three ideal types the non-revolutionary, fixed revolutionary, and perpetual revolu-
tionary cases. What strikes me in reading these papers and learning more about the
Israeli constitutional system is that it seems to be one of the few (if there are any other)
countries which fall into this third ideal type, and that has significant implications for
understanding the Israeli constitutional system and these chapters.
I. THE PATH DEPENDENT NATURE OF CONSTITUTIONAL MOMENTS
Not all moments are created equal when it comes to interest and participation in dis-
cussing and formulating the fundamental rules of a constitutional democracy. Bruce
1
If citations or more information about any of my arguments is desired, please do not hesitate to contact
me.
2
Many of my arguments here are related to a larger paper I am writing, entitled D Fontana, ‘Revolutionary
and Reorganizational Constitutionalism: How it Matters for Constitutional Development’ (forthcoming). For
a preview of some of these arguments, see D Fontana, ‘Comparative Originalism’ (2010) 88 Texas Law Review
189.
3
B Ackerman, We the People: Foundations (Cambridge, Harvard University Press, 1991) 240, 272–74.
304 David Fontana
Ackerman captured this in distinguishing between ‘normal politics’ and ‘constitutional

politics’. During the former period, one significant feature Ackerman highlights is disin-
terest in and apathy towards fundamental understandings of the rules of the constitu-
tional system. During the latter period, one significant feature Ackerman highlights is
interest and participation in defining fundamental understandings of the rules of the
constitutional system.
Constitutional moments can be critical junctures during the process of constitutional
development, creating a path dependence logic summarised by Margaret Levi: ‘once a
country or region has started down a track, the costs of reversal are very high. There will
be other choice points, but the entrenchments of certain institutional arrangements
obstruct an easy reversal of the initial choice’.4
Constitutional moments can create this path-dependent dynamic precisely because
they are constitutional moments. Constitutional moments are sticky, and from that
come much of their significance.
There are substantial learning effects, meaning that ‘Knowledge gained . . . leads to
higher returns from continuing use’.5 This happens on the part of the ruled and the rulers
of a system where there are constitutional moments. For the ruled, during the constitu-
tional moment citizens are paying attention to and engaging in discussions about consti-
tutional issues. They are spending time learning and investing in particular understandings
of the Constitution, and learning and investing in particular individuals as being central
to those understandings of the Constitution. In essence, they are making ‘asset-specific
investments’6 which have their greatest value so long as those fundamental features and
individuals of the constitutional system remain the same. For the rulers, as well, there is
a path-dependent nature to constitutional moments. They also learn a series of norms
and follow a series of leaders to create their specific understanding of the constitutional
system. For rulers and ruled, constitutional moments have large set-up costs, making it
hard to change constitutional understandings through normal politics because under-
standings are so heavily created during constitutional politics.
Normal politics are different and do not create the same sorts of path-dependent
dynamics. During normal politics, because interest in and participation in debating fun-
damental constitutional issues is less, more practical settlements can be reached.
Ideologically pure groups can become less ideologically pure, and so can modify under-
standings to accommodate new situations. This transpires because the pure groups
might become less pure because they are less invested in all issues, and because however
ideologically modified they become they can do so in part because their constituencies
are not paying attention to their activities. The result is less of a series of asset-specific
investments, and a series of more malleable and adaptable series of constitutional under-
standings accommodated to the situation.
4
M Levi, ‘A Model, a Method, and a Map: Rational Choice in Comparative and Historical Analysis’ in MI
Lichbach and AS Zuckerman (eds), Comparative Politics: Rationality, Culture and Structure (Cambridge,
Cambridge University Press, 1997) 28.
5
P Pierson, Politics in Time: History, Institutions and Social Analysis (Princeton, Princeton University Press,
2004) 24.
6
See PA Gourevitch, ‘The Governance Problem in International Relations’ in DA Lake and R Powell (eds),
Strategic Choice and International Relations (Princeton, Princeton University Press, 1999) 144–45 (‘Political
actors develop investments, “specific assets”, in a particular arrangement – relationships, expectations, privi-
leges, knowledge of procedures, all tied to the institution at work . . . [This] helps to explain institutional per-
sistence. actors . . . have incentives to protect their investment by opposing change’).
A Reply to Hostovsky Brandes and Weintal 305
II. HOW THE N MATTERS FOR CONSTITUTIONAL MOMENTS
How many constitutional moments does a country have, and how does it matter? We
can create three different ideal types along this continuum – systems where there have
been no constitutional moments, systems where there have been some but no perpetual
moments, and systems where there have been perpetual moments. For the first ideal type
(‘non-revolutionary’), the constitutional system is a combination of malleable and
adaptable constitutional understandings, with no enormous returns to investment and
so lower costs to change. In the second ideal type (‘fixed revolutionary’), there are a
series of fixed understandings which guide the operation of practical, normal constitu-
tional politics during other times. In the third ideal type (‘perpetual revolutionary’), the
fixed understandings are constantly being revisited because of the persistence of consti-
tutional moments. Without normal politics to settle and make practical these constitu-
tional moments, the system always features foundational debates without much
opportunity to make these debates more operationalised.
In the non-revolutionary category, we might think of the modern experience in the
United Kingdom. There have been major constitutional changes in the United Kingdom
in the past 40 years. At first there was the European Communities Act of 1972, and then
the Human Rights Act of 1998. Both laws created major changes to the British system,
creating forms of constitutional review (in form and in practice because of the political
popularity of the courts). In neither situation, though, were these legal changes key rea-
sons for voting for the leaders supporting these changes. In neither situation were these
changes the result of major public discussions of and participation in making these
reforms.
A non-revolutionary system might present its own, unique series of complications. I
have mentioned before how this might push a system towards non-originalism. It might
make the constitutional law of that system more practical and adaptable since it was cre-
ated during moments when compromises were possible and perhaps necessary and
desirable. This might also make these principles adapted during these zero-moment cre-
ation times more fragile, because there is not the halo effect of a creation moment sur-
rounding them. Without higher asset-specific investments, the system can change quickly
and dramatically.
In the second category of fixed revolutionary moments, we might place perhaps most,
if not almost all, constitutional systems. In the United States, originalists might argue
that we are a one (1789) or a two (Civil War) or a three (New Deal) moment system, but
the important point is that these systems have had greater than zero moments. These
systems have heroic figures and principles, supporting originalism (of less relevance
here), but also the heroic first principles created during these moments are codified and
implemented during normal politics. The ideological purity of the creation moment is
tempered and made more practical and durable by the disinterest and practicality of the
normal political moment.
In the third category of constant moments might lie Israel (and perhaps India and a
few other places), a system with something approaching perpetual constitutional
moments. Most of the available research by social scientists seems to suggest a constitu-
tional politics different from other constitutional democracies. Discussions of politics
and elections feature debates about and potential changes to core issues of the polity in
306 David Fontana
a way not seen in non-revolutionary or fixed revolutionary polities. The forms of poli-
tics which transpire during normal politics seem to be more absent in Israeli politics.
There might be less ability to compromise on fundamental principles because elites and
voters always care about first principles. Even if elites cared about fundamental princi-
ples more or less at different times, they are accountable to a citizenry which perpetually
cares about those issues. Compromise is difficult because constitutional politics are
perpetual.
Other systems have constitutional moments which last more than a moment – they
might last years or decades. Joanne Freeman has helpfully described the earlier years of
the American Constitution as precisely this:
The framers of the Constitution may have been looking forward to the detached indifference
of ‘normal politics’ with a sense of foreboding . . . but the ongoing constitutional moment of
the 1790s – when the rules of the game were yet to be fleshed out – was no picnic. Uncertainty
ruled the day – uncertainty about the structure of the Constitution and the durability of the
Union, the impact and implications of popular politics, the new republic’s place on the interna-
tional stage, and the larger significance of a national two-party war. All of these controversies
had constitutional implications, provoking ongoing anxieties about the need for constitutional
change. In essence, during the 1790s, there was no ‘normal politics’ – no long-term disengage-
ment from the national political process among populace and politicians alike.7
The constitutional moment persisted past the creation of the Constitution, to the early
years of the United States of America. But even Freeman recognises that this period
ended, even if it lasted longer than some might realise. We might say the same things
about other countries (the period in South Africa in the 1990s leading to the creation of
a permanent Constitution, for instance). These moments might be longer than immedi-
ate moments, but they still function like a play, with a beginning, middle, and an end.
Likewise, there is a discussion about whether the creation of the Basic Laws in 1992
represented a ‘Constitutional Revolution’.8 But implicit in these discussions as well is the
sense that constitutional development in Israel has an ending, or periods where there is
far less interest in basic constitutional principles.
III. AN APPLICATION TO THE CHAPTERS
This understanding of the nature of constitutional moments is what can help us under-
stand the Hostovsky Brandes9 and Weintal10 chapters. I do not know the specifics of
these chapters, but it struck me that the reality of perpetual constitutional moments is
behind much of what they are discussing. As regards Professor Weintal’s fascinating
chapter, it is hard to think of a ‘three-track democracy’ existing anything more than in
normative theory in Israel given the political realities. Weintal describes some of these
tracks in ways which might always be true, but seem less true in Israel. For instance, he
7
JB Freeman, ‘The Election of 1800: A Study in the Logic of Political Change’ (1999) 108 Yale Law Journal
1959, 1967–68.
8
I assume this debate is familiar to participants, so I will forego the many citations which could be supplied
here.
9
10
A Reply to Hostovsky Brandes and Weintal 307
argues that the parliamentary process fails in involving ‘the people directly’.11 This might
always be true when systems are not direct democracies in any meaningful way, but less
true in Israel because of the intense interest in basic principles – perhaps people are only
concerned about Parliament when it deals with important issues. These same features
seem to be even truer for Professor Hostovsky Brandes’s chapter. It is true that every
system has debates about interpretation, but many of the features of the debate high-
lighted in Professor Hostovsky Brandes’s chapter seem to result from a system of per-
petual constitutional moments. It is part of the reason why ‘no clear test exists today for
the recognition of unnamed rights’.12
11
ibid text accompanying n 12.
12
Hostovsky Brandes (n 9) part I.
Part 6
Social Rights in Israel

21
In Search of the Right to Health in
AEYAL GROSS*
I. INTRODUCTION: ISRAELI VERSUS ISRAELI AND OTHER TALES OF INEQUALITY
I
N 2006, AMIR Israeli petitioned the Israeli Supreme Court (sitting as the High
Court of Justice) contesting the decision of the Council for Cable and Satellite
Broadcasting which allowed the broadcasting of the World Cup soccer games within
the framework of the ‘pay-per-view’ system. He argued that the high fee demanded for
watching the games caused severe damage to him and to sports fans in Israel.1
The Supreme Court rejected the petition, finding that as a result of the Council’s
instructions the cable and satellite companies had been required to revise their proposed
pay-per-view programme and that the revised package as presented to the Court included
the broadcasting of the major games (including the final), in the public commercial chan-
nels as well as a free daily magazine which covered each day’s games. Additionally,
against payment of 492 NIS (New Israeli Shekel) (about $100) viewers were able to pur-
chase a package which would allow them to view another 50 games. It was also submit-
ted to the Supreme Court that the package’s price was later reduced and was liable to be
reduced even further.
The Supreme Court thus found that the revised plan complied with the Council’s pol-
icy of guaranteeing free viewing of events of public importance, and its decision to allow
the broadcasting of only the less important games for a fee, was therefore within the
boundaries of its discretion. Furthermore, given the further reduction in the price of the
package, the Supreme Court held that it was no longer possible to claim that severe
damage was caused to the petitioner.
Less than two weeks after giving its judgment in the Israeli (World Cup) decision, the
Supreme Court gave a judgment in the case of Victoria (Vicky) Israeli.2
Ms Israeli was in the process of losing her hearing, but this was a process that could be
reversed were she to undergo a cochlear implant operation. This operation was included
* I am grateful to Sharon Bassan for her research work and to Michael Prawer for his editing work. Thanks
also to the Cegla Center for Interdisciplinary Research of the Law in Tel-Aviv University for its support of the
research conducted for this chapter.
1
HCJ 699/06 Israeli v Ministry of Communication (30 May 2006), Nevo Legal Database (by subscription)
(in Hebrew).
2
HCJ 2974/06 Israeli v Committee for the Expansion of the Health Basket (11 June 2006), Nevo Legal
312 Aeyal Gross
in the Health Services Basket (HSB) as anchored in the Israeli National Health Insurance
Law (NHIL)3 but entitlement to the operation under the law was conditional upon a
self-contribution of 70 per cent, which, in this case, amounted to 70,000 NIS (about
$15,500). This sum was far in excess of the economic capacity of the petitioner, a teacher
and single mother, and she based her petition not only on the right to health but also on
the right to equality, the latter having been recognised as part of the right to human dig-
nity under Israel’s Basic Law: Human Liberty and Dignity (hereinafter: the Basic Law).
Although the Court expressed concern as to how a 70 per cent self-contribution could be
regarded a ‘contribution’, it refused to intervene, arguing that the question of deciding
on the services to be included in the HSB and under what conditions, as well as the
establishing of priorities, rests first and foremost with the Committee authorised to rec-
ommend the scope of the HSB and to establish priorities, and ultimately with the
Government. The Supreme Court held that the need to set priorities is unavoidable given
the rapid technological and medical changes on the one hand, and the high costs of tech-
nologies and medications on the other.
While expressing its hope that the issue would be revisited by the HSB Committee in the
future, the Supreme Court did not intervene in the matter but rather wished the petitioner
a full recovery, and expressed its hope that she would find comfort in the fact that she had
raised the problem and given it a voice. The latter hope was fulfilled: the litigation was part
of a process that drew attention to the problem of the high self-contribution requirement
for cochlear implant operations – a requirement that was cancelled by the Government
two months later.4
These two Israeli judgments, Israeli (World Cup) and Israeli (Cochlear Implant) tell a
more general story about Israeli constitutional law. In both cases a complex process of
litigation and advocacy produced changes that lowered the access threshold to public
resources. But whereas in the Israeli (World Cup) case the petition was rejected by the
Supreme Court only after it was determined that access to the core of the resource – in
that case the major games – would be free and that payment for access to further games
would not be excessive, in the Israeli (Cochlear Implant) case the Supreme Court rejected
the petition before the governmental intervention. This meant the retention of a situa-
tion in which access to an essential medical operation was denied by reason of the appli-
cant’s inability to pay a prohibitively high fee.
While the Israeli (World Cup) case was not framed as a constitutional case, but as an
administrative law case concerning the discretion of the regulator, two other cases which
were discussed from a constitutional perspective illustrate the neglect of judicial consid-
eration of access to health care in Israeli constitutional law when compared to other
issues of access to public resources, and the still existing gap between the constitutional
protection of social rights on the one hand, and civil and political rights on the other
hand.
In the first of these cases, heard six months after the decision in the Israeli (Cochlear
Implant) case, the Supreme Court held in Majority Camp5 that conditioning a demonstra-
tion permit on the organisers’ financing of the expenses of the demonstration’s security is
3
National Health Insurance Law, 5754-1994.
4
Government Decision 406, taken on 27 August 2006: www.pmo.gov.il/Secretary/GovDecisions/2006/Pages/
des406.aspx (in Hebrew).
5
HCJ 2557/05 Majority Camp v Israel Police 62(1) PD 200 [2006] (in Hebrew).
The Right to Health 313
illegal as it violates the right to freedom of speech. The Supreme Court held that given the
importance of the right to freedom of speech and demonstration and the role of the state
and the police in protecting this right and the possibility of exercising it, the police do not
have the authority to condition a licence to demonstrate on the demonstrators’ financing
of the security for the demonstration. In this case the Supreme Court emphasised that the
state has a twofold duty to protect the freedom of speech and demonstration. First, the
state is duty bound not to violate a person’s right to freedom of speech and demonstration
by imposing a prohibition on the person’s ability to exercise the right, a right anchored in
section 2 of the Basic Law which prohibits the violation of a person’s life, bodily integrity
or dignity. Second, the state has a positive duty, within reason and taking into consider-
ation the means available to it and according to its own scale of priorities, to allocate the
required resources needed in order to enable the realization of the right to freedom of
speech and demonstration, the latter being grounded in section 4 of the Basic Law, which
determines that every person has the right to a protection of his or her life, bodily integrity
and dignity.6 According to the Supreme Court it is inconceivable that the police should be
able to impose a financial burden on those seeking to exercise their right to freedom of
speech and demonstration, and thereby place a ‘price tag’ on the exercise of a right, for this
would imply a violation of the rights for those who cannot afford it.7 The rule is that when
considering the allocation of resources the police may condition the demonstrations upon
compliance with requirements pertaining to time, place and manner, but the Supreme
Court held that saving resources is not in and of itself legitimate grounds for a police
refusal to provide security for a demonstration: the protection of human rights costs
money and a society that respects human rights must be willing to bear the burden.8
As in the Israeli (Cochlear Implant) case, Majority Camp likewise involved a gov-
ernmental fee imposed on people wishing to exercise a right. The difference between
them, however, was that in the context of the right to freedom of speech, such a fee
was considered as illegally violating this right, with the Court emphasizing that doing
so would condition the right on the ability to pay for it and deny access to those with-
out means, whereas the Court refused to make a parallel determination in the context
of the right to health. Contrasting the two cases demonstrates the discrepancy between
the respective rulings and the judicially authored hierarchy of civil rights and social
rights which is both artificial and ideological, given that both categories of rights may
require public funding to be exercised equally. This however is the practice of the
Supreme Court: placing a ‘price tag’ on the exercise of freedom of speech was consid-
ered a prohibited violation of the rights of those who cannot afford it – a consider-
ation that Ms Israeli did not merit when it came to the price tag put upon the cochlear
implant she needed.
While the Majority Camp decision was framed in terms of freedom of speech, it could
alternatively have been considered as raising the issues of equality: in previous case law
in a different context the Supreme Court held that requiring high payments that deny
accessibility to important public services may constitute a violation of the right to equal-
ity. In Hupert v Yad Vashem9 the Supreme Court addressed the legality of a project of
6
ibid para 14.
7
ibid para 16.
8
ibid para 17.
9
HCJ 5394/92 Hupert v Yad Vashem 48(3) PD 353 [1994] (in Hebrew).
314 Aeyal Gross
Yad Vashem – the national Holocaust Memorial in Israel – enabling each person, against
payment, to place a memorial stone carrying the name of a person who died in the
Holocaust. The petitioner argued that this amounted to discrimination between rela-
tives of Holocaust victims who could afford the payment and those who could not. The
Supreme Court determined that there is a duty, also anchored in the Basic Law (inter-
preted as including the right to equality), to treat all people equally in this context. As
such, a requirement of payment even if levied equally upon all, may constitute discrimi-
nation if its result is that people lacking in means are either unable or barely able to
afford it and if the benefit or service for which the payments are required are essential or
important to an extent that precludes their being conditional upon the individual’s abil-
ity to pay.10 The Supreme Court emphasised that its tendency to define the payment
requirement as prohibited discrimination would increase in direct proportion to the
increase in the rate of the payment and the importance of the service or the benefit.11 In
the Hupert case the Supreme Court chose not to intervene, given that payments
amounted to a few hundred dollars, and did not impose a high or unreasonable burden,
and insofar as Yad Vashem events memorialised all Holocaust victims and the service in
question concerned an additional memorial.
While the Majority Camp decision rested on freedom of speech and the Hupert deci-
sion rested on the right to equality, they both determined that imposing burdensome
payments on access to basic essential services or basic rights may be illegal. The differ-
ences between the cases may lie in the fact that the issue discussed in Majority Camp –
freedom of speech – was considered as being within the scope of constitutional rights
guaranteed by the Basic Law, whereas the issue discussed in Hupert – the creation of
memorials for Holocaust victims – was not considered as a basic right per se. Hence, the
need in the latter case to base the ruling on the right to equality, and the lack of an abso-
lute prohibition on payment in this case, which compelled the formulation of the tests
of: (a) rate of payment and the burden it imposes; and (b) the essentiality of the service.
In this regard the Hupert case resembles the Israeli (World Cup) case, even if the latter
did not include a constitutional analysis. However, all three cases are distinct from the
Israeli (Cochlear Implant) case, which, based on either of their rationales, could and
should have been decided differently. Under the rationale of Israeli (World Cup) and
Hupert the issue of the cochlear implant should have been considered as concerning
access to an essential medical operation within the public health system, thus constitut-
ing an essential service, and the excessively high payment requested for that essential
service should have been viewed as giving rise to unjustified inequality (‘price tag’) based
on the ability to pay. Under the Majority Camp rationale it could – and should – have
been decided that the right to health proscribes the imposition of payments that impede
access to it, especially when it involves essential medical treatments that are part of the
right to life and bodily integrity explicitly recognised in the Basic Law, and that the state
is obligated to guarantee its exercise without putting a price tag on it that makes it acces-
sible only to those who can afford it.
It bears note that while freedom of demonstration, memorials for Holocaust victims,
and the viewing of soccer games were all viewed as rights on which a price tag (or at
least an excessive price tag) cannot be imposed, health was treated by the Supreme Court
10
ibid para 13.
11
ibid.
as a commodity on which a price tag can be imposed, turning it into something available
only to those who can afford it.12
In order to understand the gap between Israeli (Cochlear Implant) and the three other
decisions, it is necessary to understand the framework under which the right to health is
relegated to second class status in Israeli constitutional law, being viewed as part of the
perceived ‘distinct’ category of ‘social and economic rights’. Part II that follows takes up
this issue. Part III offers a short description of the Israeli health system and its legal
framework, as an introduction to part IV, which revisits the issue of the right to health
within Israeli constitutional law, focusing on litigation. Finally, part V looks at basic
dilemmas posed by the concept of health rights, and addresses the role that the concept
of human rights can play within public health systems such as the Israeli one. While the
right to health is not limited to issues of access to health care, this chapter will focus
exclusively on that component.
II. THE BARE MINIMUM: SOCIAL RIGHTS IN ISRAELI CONSTITUTIONAL LAW
The discrepancy between the Israeli (Cochlear Implant) case and the other cases
discussed in the previous part, points to what I argue is an ideological schism between
so-called ‘civil and political rights’ and so-called ‘social and economic rights’.13 As the
cases discussed clearly illustrated, the Israeli Supreme Court does not recoil from impos-
ing positive duties upon the Government when it comes to issues which it views as
touching on civil rights, and from restricting the imposition of barriers on public
resources and services, even where there is no recognised ‘right’ to those resources and
services, when such barriers are created through the imposition of payments (‘price
tag’). This schism is reflected in the prevailing interpretation given to the Basic Law, one
of the two Basic Laws on human rights legislated in 1992.14
Much of the debate about ‘social and economic rights’ focuses on the interpretation of
the right to human dignity guaranteed under the Basic Law, based on the proposition
that this is an ‘umbrella’ right from which numerous, more specific rights may derive.
The debate over the more specific rights that derive from the right and specifically,
whether these include social and economic rights, continues to rage.15 The dominant
position is that in the context of the social right to health the right to human dignity
means nothing more than the right to a minimal material existence, including ‘access
to rudimentary medical services’,16 and it can only be asserted in cases of a material
12
See for this distinction, A Gross, ‘Health in Israel: Between A Right and a Commodity’ in Y Rabin and
Y Shani (eds), Economic, Social and Cultural Rights in Israel (Tel Aviv, Ramot Publishing, 2004) 437, 459 (in
Hebrew).
13
For more on this ideological divide, see D Barak-Erez and A Gross, ‘Do We Need Social Rights? Questions
in the Era of Globalization, Privatization, and the Diminished Welfare State’ in D Barak-Erez and A Gross
(eds), Exploring Social Rights: Theory and Practice (Oxford, Hart Publishing, 2007) 1, 7.
14
On the Basic Laws and their background, see: A Gross, ‘The Politics of Rights in Israeli Constitutional
Law’ (1998) 3 Israel Studies 80, 81–83; D Barak-Erez, ‘From an Unwritten to a Written Constitution: The Israeli
Challenge in American Perspective’ (1995) 26 Columbia Human Rights Law Review 309, 312–13.
15
A Gross and D Barak-Erez, ‘Social Citizenship: The Neglected Aspect of Israeli Constitutional Law’ in
D Barak-Erez and A Gross (eds), Exploring Social Rights: Theory and Practice (Oxford, Hart Publishing, 2007)
243, 260.
16
LCA 4905/98 Gamzu v Yeshayahu 55(3) PD 360 [2001] para 20 (in Hebrew); HCJ 366/03 Commitment to
Peace and Social Justice Association v Minister of Finance 60(3) PD 464 [2005] para 15 (in Hebrew).
316 Aeyal Gross
deficiency that prevents a person from subsisting.17 This minimal approach to social
rights casts a shadow over the possibility of judicial review of legislation in the name of
the right to health. At the same time, the Israeli legal system has a longstanding tradition
of recognizing non-written rights in a way that at the very least allows judicial review of
administrative actions even if it balks at interfering in primary legislation.18 Moreover,
the Basic Law does include explicit references to the rights to life and bodily integrity,
both of which can directly impact on issues of access to healthcare.19
In the recent Hassan decision,20 for the first time, the Supreme Court struck down a
statute based on its determination that it violated the right to exist in human dignity.
The Supreme Court held that the statutory determination that a person who owns or
uses a car will be denied income support by the state violates the right to exist in human
dignity. Writing for the Court in this case Court President Beinisch accepted the argu-
ment that there is no distinction between civil and political rights on the one hand and
social rights on the other hand, pointing to the ‘positive’ and ‘negative’ elements required
for the protection of both.21 However, while this decision could signal a breakthrough in
the Court’s case law on social rights, the scope of the Court’s recognition of the right
was limited to minimal (rather than adequate) conditions of existence in dignity and its
implications on further case law have yet to be seen.
In the following part I will briefly discuss the Israeli health system and the legislative
framework that regulates it, after which I will explore the ways in which the minimalist
approach to social rights affects both the Supreme Court decisions on access to health
care and those of the lower courts as well.
III. THE STRUCTURE AND THE LEGISLATIVE FRAMEWORK OF THE

ISRAELI HEALTH SYSTEM
Constitutional discussion of health rights in Israel is conducted against the background

of the structure and the legal framework of the health system, now to be briefly
described.22 The current Israeli health system is the product of a reform entrenched in
the NHIL. Section 1 of the NHIL reads:
National health insurance in accordance with this law, will be based upon the principles of
justice, equality and mutual assistance.
17
Commitment to Peace (n 16) para 15. For a more detailed discussion of this case see Barak-Erez and
Gross, ‘Social Citizenship’ (n 15) 250. One area of law in which the Supreme Court has shown relative willing-
ness to accept petitions was that of the right to education, when petitions invoking social rights required the
judicial review of administrative, rather than legislative, actions. For further discussion, see ibid 254.
18
See Barak-Erez and Gross, ‘Social Citizenship’ (n 15) 254.
19
In this context I do not address other possible sources for the right to health in Israeli law that derive from
international law, most importantly the International Covenant on Economic, Social and Cultural Rights
(adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
20
HCJ 10662/04 Hassan v National Insurance Institute (28 February 2012), Nevo Legal Database (by sub-
scription) (in Hebrew).
21
ibid para 28.
22
For reasons of space the description here is succinct and does not analyze specific provisions of the NHIL.
For a broader discussion, which includes references to the specific clauses in the relevant legislation as well as a
more detailed discussion of some of the issues addressed here, see A Gross, ‘Health Right in Israel Between
Solidarity and Neo-Liberalism’ in C Flood and A Gross (eds), The Right to Health at the Public/Private Divide:
A Global Comparative Study (Cambridge, Cambridge University Press, forthcoming) ch 3.
Under the NHIL, the system under which Israelis were insured by Sick Funds which also
provided most of the health services, was replaced by a universal national health system in
which the insurance is national, and a mandatory progressive health tax is paid to the
state. The state assumes financial responsibility for the HSB, while most health services
continue to be provided by the Sick Funds. The NHIL created a system based on a trilat-
eral relationship, in which the state bears the responsibility for funding of the HSB, the
Sick Funds remain responsible for the provision of most health services, and residents are
entitled to health services. In theory, this structure distinguishes between the financial rela-
tionship between the resident and the state (to which he or she pays a health tax), and the
clinical relationship between the resident and the Sick Funds which provide him or her
with health services. A financial relationship also exists between the Sick Funds and the
state, with the latter being obligated by the NHIL to finance the health basket. This con-
cept is one that, if maintained, would have treated health as a right, as it would create
equal access to health services according to need and not according to the ability to pay.23
However, the promises and premises of justice and solidarity as well as universality
which were articulated in the NHIL were already undermined to a certain degree by the
statute itself, and even more dramatically by a series of legislative amendments intro-
duced shortly after its enactment. These amendments included significant changes in the
financing of the health system in a manner that reduced the state’s responsibility and
shifted some of the burden to patients in the form of direct out-of-pocket payments.24
Unlike the health tax, these payments are regressive: they are uniform and with the
exception of certain exemptions, are levied from all patients regardless of their financial
capacity. Apart from certain ceilings and exemptions, user’s fees have actually become a
major bar to the equal access of all people to health care.25 Systematic research of a num-
ber of groups has shown that a significant part of the population has been forced to
waive certain forms of medical treatment or prescription drugs because of their cost.26
More generally, the imposition of these payments reflects a larger shift in the financing
of the health system. The shift to a greater role for private finance in Israel is discernible
on the macro level: whereas in the 1980s the ratio of public–private financing for health
care in Israel was 75:25,27 and in 1996 it was 69:31,28 by 2011 it was 58:42. This contrasts
23
On egalitarian theories of distributive justice as requiring that access to health care services be predicated
on need as opposed to ability to pay, see C Flood, International Health Care Reform: A Legal, Economic and
Political Analysis (Oxon, Routledge, 2003) 26–28.
24
For background of the law and for a discussion of the reform it created, see S Asiskovitch, Price Tag for
Life: The Political Economy of the National Health Insurance Act in Israel (Jerusalem, Magnes Publication,
2011) (in Hebrew) 200–03.The author discusses how the law itself, while promising health coverage to all Israeli
residents, transferred much of the decision-making on healthcare to the bureaucracy of the Ministry of
Finance, thus making health care dependent on budgetary decisions. This is particularly significant when con-
sidering the Ministry of Finance’s role as a leading agent of neo-liberalism in Israel. For an analysis of the
legislative reforms which created this change see Gross, ‘Health in Israel’ (n 12) 474.
25
See NHIL, s 8, regarding the legislative framework for co-payments. See also NHIL, s 13(5) and the changes
it underwent.
26
For research which points to the effects of co-payments on patients who give up on prescription medicines
and other services because of it, see: R Gross, S Brammli-Greenberg and B Rosen, ‘Co-Payments: The
Implications for Service Accessibility and Equity’ (2007) 6 Law and Business 197, 213–20 (in Hebrew). See also
G Ben-Nun, Y Berlovitz and M Shani, The Health System in Israel, 2nd edn (Tel Aviv, Am Oved Publishing,
2010) 247 (in Hebrew).
27
Ben-Nun, Berlovitz, and Shani (n 26) 125.
28
D Arieli, T Horev and N Keidar (eds), ‘National Health Security Insurance: Statistics 1995–2011’ 51,
chart 37, available at: www.old.health.gov.il/Download/pages/stat2011_1995.pdf (2012) (in Hebrew). 2.6% of
the figure given for private expenditure originated in the contributions from outside Israel.
318 Aeyal Gross
sharply with the average OECD ratio of 72:28 in favour of public expenses.29 This data
is augmented by research that has shown that between the years 1995–2003 there was a
decrease of 33 per cent in real terms in the budget allocated by the state to the HSB.30
IV. IN SEARCH OF THE RIGHT TO HEALTH IN LITIGATION
The aforementioned provides the background for health rights litigation in Israel. In
what follows I will address four main areas of litigation. Due to space constraints my
focus will be on cases that concerned issues of financial access to the health care system
and its affect on equality among Israeli residents covered by the NHIL. I will not address
litigation concerning other issues of no less importance such as discrimination among
residents (especially concerning the Bedouin population living in ‘unrecognised villages’)
and the perils of populations not covered by the NHIL (migrant workers, asylum seekers
and Palestinian residents of the Occupied Territories) whose right to health is often
denied.31
A. Financing/Updating and Structural Issues
The NHIL contains no fixed mechanism for proper updating of the HSB, having only a
limited health cost index. This legislative vacuum generated a series of cases, all of them
originating in the fact that the Health Council, a statutory advisory body, originally
recommended the establishment of an automatic updating system for the HSB. This
update mechanism would reflect the real costs of the Israeli health system and take into
account the growth and ageing of the population as well as technological advancement.
After the Ministers of Health and Finance failed to adopt this recommendation, the Sick
Funds petitioned the Supreme Court, requesting it to order them to act in accordance
with the recommendation. The Supreme Court held that the Ministers should consider
the recommendation, draw conclusions and then give their reasoned decision.32
When the Ministers ended up rejecting the recommendation, an additional petition
was launched against their decision. The Supreme Court rejected the petition, having
been persuaded that the Ministers had duly considered the recommendations, and point-
ing out that the Health Council is only an advisory body. In this judgment the Supreme
Court refrained from addressing the issue on its merits, emphasizing that discretion rests
with the Ministers.33 It would take another decade for the Supreme Court to change its
approach. When the issue again came before the Supreme Court it was stressed that the
limited updating mechanism within the NHIL does not include the changing price of
29
OECD, Health at a Glance 2011: OECD Indicators (OECD Publishing, 2011) 157, chart 7.5.1, available at:
www.oecd.org/dataoecd/6/28/49105858.pdf.
30
L Achdut, A Shmueli and M Sabag-Andbler, ‘The Financing of the Services Basket in the First Decade of
the Operation of the Law – Issues and Tendencies’ in G Ben-Nun and G Ofer (eds), A Decade Since the
National Health Insurance Law 1995–2005 (Tel Aviv, The National Institute for Health Services Research and
Health Policy, 2006) 219, 226–27 (in Hebrew).
31
For discussion of these populations and their exclusion from or within the Israeli health system, see
D Filc, Circles of Exclusion: The Politics of Healthcare in Israel (Ithaca, Cornell University Press, 2009).
32
HCJ 2344/98 Maccabi Healthcare Services v Minister of Finance 54(5) PD 729, 778 [2000] (in Hebrew).
33
HCJ 9163/01 Clalit Health Services v Minister of Health 56(5) PD 521, 528 [2002] (in Hebrew).
hospital days and the changing wages in the public sector. The result was that one
decade later, in 2012, the Supreme Court finally held that the Government had acted
unreasonably in its protracted failure to address the recognised need for an update of the
‘health cost index’. This index determines the cost of the HSB and by extension, the
adjustment of the budget allocated to it. The Supreme Court noted that the erosion of
the budget of the Sick Fund effectively emptied the right to health of its content and
ordered the Ministers of Health and of Finance to expedite – within six months – the
adoption of a mechanism for updating the health cost index.34 This decision is of import
ance given its recognition of the connection between the question of the right to health
and the health cost index mechanism, and its determination – the practical implications
of which are still unknown at the time of writing – that the Government must introduce
some changes in this regard.
B. Access to Drugs and Services
Litigation concerning the scope of the HSB takes place in Israel in two formats. In the first
format, insuree’s claims are brought to the Labour Courts against Sick Funds by Israeli
residents covered under the NHIL, in cases in which individual patients request a treat-
ment or medicine not provided within the HSB. The second format comprises petitions
brought to the Supreme Court, in which petitioners seek judicial review of governmental
decisions not to provide certain medication or treatments. As we will see below while
some of the first kinds of claims have succeeded, claims of the second type have all failed.
i. Labour Courts: Insurers’ Claims against the Sick Funds

Numerous petitions are brought before the Israeli Labour Courts, which are the courts
with jurisdiction under the NHIL in suits against Sick Funds concerning denial of coverage
for prescribed medications and services. The challenges faced by the courts can be classi-
fied under a few major headings: the question of the scope of the treatments covered under
the HSB (eg how many sessions of physical therapy is a patient entitled to); eligibility for
treatments or medications that are included in the HSB but for a different indication than
the one for which it was prescribed; medications and services completely excluded from
the HSB, but which patients nonetheless request the Sick Funds to provide; medications
excluded from coverage but which are required in cases of emergency; and medications
and services that are excluded from the HSB but which the Sick Funds in fact provided to
certain patients, thus exposing themselves to discrimination based claims.35
The rulings of the Labour Courts on these matters give rise to a number of conclu-
sions.36 Generally, the Labour Courts’ position has been that the health basket is limited
and does not purport to include all of the medical services required by a person. The
34
HCJ 8730/03 Maccabi Healthcare Services v Minister of Finance (21 June 2012), Nevo Legal Database (by
subscription) para 54 (in Hebrew).
35
For an elaborate discussion of the case law, see Gross, ‘Health in Israel: Between a Right and Commodity’
(n 12) 502–28. For a discussion of litigation concerning health rights in Israel, see also C Shalev and D Chinitz,
‘Joe Public v The General Public: The Role of the Courts in Israeli Health Care Policy’ (2005) 33 Journal of
Law, Medicine and Ethics 650, 652.
36
Only a few of these decisions were appealed to the Supreme Court and in even fewer cases did the Court
actually issue a substantive decision.
320 Aeyal Gross
health services included in the basket, which the Sick Funds must provide, are the basic,
essential services. The Sick Funds can, however, offer additional services or medications
beyond those prescribed by law, in accordance with their financial resources and in light
of their commitment to fulfillment of the goals and principles of the NHIL and their
status as a public organ.37 The lower courts have occasionally relied on the lack of recog-
nition of the right to health as a constitutional right to reject claims made by patients to
anything beyond the basic basket components.38 On the other hand, in those cases in
which courts have ruled in favour of the petitioners, they have relied on four different
forms of legal justification. All of them may be regarded as strategies for bypassing the
‘minimum’ approach to the right to health:
1. The duty to provide emergency care unconditionally: based on section 3(b) of the
Patient’s Rights Law,39 which determines that
‘in a medical emergency a person is entitled to emergency medical care unconditionally’.40
2. Dynamic interpretation of the health basket: cases holding that the basket must be
interpreted in a flexible and dynamic way.41
3. Judicial review of decisions to exclude services from the health basket: in one case the
Labour Court reviewed a Government decision not to include a certain device in the
health basket. The Labour Court held that the Government’s decision was defective
by reason of its failure to take into account the various considerations in favour of
including it, in addition to the financial considerations, and that the Government had
a duty to occasionally revisit the matter, giving due consideration to matters of
human dignity as mandated by the Basic Law and the NHIL.42
4. The duty to exercise discretion in specific cases: the Labour Courts held that Sick
Funds can and should exercise discretion for the provision of services beyond those
prescribed by law. Later cases which resorted to this form of legal justification focused
on the Sick Funds’ ‘Exceptions Committees’. In this context the National Labour
Court held that the right to health services is a social human right – a penumbral right
of the Basic Law,43 and is a legal social right with constitutional features, based on the
inclusion of the right to life and bodily integrity within the Basic Law.44 The National
Labour Court rejected the position taken by a Sick Fund, that the ‘Exceptions
Committee’ must only consider medical exceptions. It held that the Exceptions
Committee should examine ‘hard cases’ and determine whether, given the recogni-
tion of the right to health and the right to life, it is possible to provide the patient with
the required treatment in cases where there is no solution within the HSB.45
37
NLC 5-7/97 Madzini v Clalit Health Services 33 PDA 193, 203 [1999] (in Hebrew).
38
DLC 22/99 Isaac v Minister of Health (10 December 1999) (unpublished).
39
Patient’s Rights Law, 5756-1996.
40
DLC 14-339/99 Grundstein v Clalit Health Services (24 March 1999) para 7 (unpublished).
41
LA 1557/04 Clalit Health Services v Kaftsan (29 December 2005) para 5 of Judge Rabinovich’s opinion
(unpublished). A Petition to the Supreme Court against this judgment ended in a settlement where the principle
of flexible interpretation was accepted, subject to budgetary considerations. See HCJ 3723/06 Clalit Health
Services v Ministry of Health (24 July 2006), Nevo Legal Database (by subscription) (in Hebrew).
42
DLC 5360/01 Dekel v Klalit Health Services (1 August 2002) para 106 (unpublished). It was later decided
again, by the HSB Committee, not to include the device in the basket of health services.
43
LA 1091/00 Shitrit v Meuchedet Health Services 35 PDA 5, 23 [2000] (in Hebrew).
44
LA 575/09 Maccabi v Dehan (6 January 2011) para 24 (unpublished).
45
ibid para 32. The case is currently under review in the Supreme Court. See HCJ 5438/11 Maccabi v Dehan
(pending).
This case law requires the Committees to examine the data and evidence regarding
technologies not included in the HSB both generally, and in regard to specific patients.
This may reduce the risk of new technologies being made available exclusively by reason
of pressure exerted by interested parties such as pharmaceutical companies. At the same
time it ensures that specific circumstances relating to ‘concrete’ patients are taken into
account. For example in one case involving a cancer patient who for medical reasons
could not undergo chemotherapy, the Sick Fund argued that a drug indicated in the HSB
as a second line drug should be provided only if chemotherapy failed, given that the
relevant medical indication stated ‘failure in previous treatment’. The Exceptions
Committee accepted this position and rejected the patient’s petition. However the Court
rejected this position holding that a proven medical situation which prevents the first
line treatment amounts to ‘failure’ even if the first line treatment was not tried on the
patient. Accordingly the Court ordered the provision of the drug in question.46
The developments described here indicate that whereas in some cases judges regard
the health basket and its specific composition as an immutable reality which cannot be
tampered with, leading to their rejection of petitioners’ arguments, in other more recent
cases they have been willing to engage in rights analysis, be it the right to life and bodily
integrity explicitly recognised in the Basic Law, the right to health as a penumbral right,
or the right to emergency health care guaranteed under the Patient’s Rights Law.47 Rights
analysis, in conjunction with the principle of flexible and dynamic interpretation, has
paved the way to judicial intervention in favour of patients in a way that arguably may
broaden access to health care.
ii. The Supreme Court: Petitions against the Government

While the Labour Courts have occasionally shown willingness to intervene in cases
involving insuree’s claims against the Sick Funds, the Israeli Supreme Court has not
demonstrated the same willingness regarding litigants’ petitions to the Supreme Court
requesting direct judicial review of the Government’s decisions concerning the scope of
the HSB. In fact it has consistently refused to intervene in matters concerning the scope
of the HSB. The most extensive judicial discussion of the scope of the HSB was con-
ducted by the Supreme Court in the Louzon case, decided in 2008.48 The dispute in this
case focused on the Erbitux drug, which was prescribed for certain patients (who ulti-
mately petitioned the Supreme Court) but was not rated sufficiently high in the prioriti-
zation of the HSB Committee and was hence excluded from the HSB even after an
additional budgetary allocation by the Government.49
The petitioners requested that the Supreme Court order the inclusion of the Erbitux
drug in the HSB with an indication for colon cancer treatment. They argued, inter alia,
that the exclusion of this drug violated the right to health which is part of the right to life
and bodily integrity, as well as the right to human dignity, all of which are anchored in
46
LA 45021-05-10 Eliav v Clalit Health Services (12 July 2010) para 26 (unpublished).
47
Gross, ‘Health in Israel: Between a Right and Commodity’ (n 12) 502; Gross, ‘The Right to Health in
Israel between Solidarity and Neo-Liberalism’ (n 22).
48
HCJ 3071/05 Louzon v Government of Israel (28 July 2008), Nevo Legal Database (by subscription) (in
Hebrew). Similar reasoning can be found in a few Supreme Court cases given before and after Louzon. See HCJ
4004/07 Tronishvili v Ministry of Health (19 July 2007), Pador Legal Database (by subscription) (in Hebrew);
HCJ 434/09 Davidov v Minister of Health (3 May 2009), Pador Legal Database (by subscription) (in Hebrew).
49
Louzon (n 48) paras 2–4.
322 Aeyal Gross
the Basic Law. They also argued that the HSB Committee’s decision did not give suffi-
cient weight to the value of human life, and discriminated them vis-à-vis other patients
whose required medications were included in the HSB.50
The judgment’s main determinations may be summarised as follows:
1. Constitutional status of the right to health:
Regarding the constitutional argument, the Supreme Court determined that the scope
of the right to health is difficult to define as prima facie it encompasses a very broad
range of rights, it may be regarded as a general name for a cluster of rights related to
human health, some of which enjoy constitutional protection in Israel. Given the
many aspects of the right, Court President Beinisch held that there is no point in
examining the constitutional status of the right as a whole, but rather that it is prefer-
able to evaluate the underlying reasons for the different rights and interests they pro-
tect, in terms of their relative social importance and the intensity of their link to the
constitutional rights enumerated in the Basic Law.51 The right to health care, and
specifically to publicly funded health care, is not explicitly mentioned in the Basic
Law, which raises the difficult question of whether it amounts to a constitutional
right, especially to the extent that its recognition imposes a positive duty on the state
that encompasses its responsibility for financing of health services in Israel.52 The
Supreme Court held that constitutional rights in the Basic Law may include elements
touching on the area of social welfare and security, including the sphere of health, but
it is unclear whether this means interpreting the Basic Law as including a constitu-
tional right to health services which is broader than the basic level necessary for
human existence within society. The dilemma is between the centrality of health to
human life and the ability to realise all other human rights on the one hand, and the
reality in which the right to public funded health services entails the imposition of a
positive duty, and hence involves general distributional questions, on the other hand.
While acknowledging that the state’s duties in the sphere of civil rights may also
involve a ‘positive’ duty which involves the allocation of resources, Beinisch opined
that the right to publicly funded health services typically involves a dominant ‘posi-
tive’ dimension, which places issues of allocation of social resources based on national
priorities in a higher register.53 Thus, given the need of the Supreme Court to be wary
of shaping economic policies and interfering with national priorities, it is doubtful
whether one should read into the rights in the Basic Law a right which would impose
a correlative duty to provide public health services on a level higher than the mini-
mum required for human existence in society.54 Moreover, even under the assump-
tion that the right is included within the constitutional rights, like all other rights it is
not absolute and would have to be balanced against competing rights and interests.55
For the purposes of the case in question, Beinisch ruled that it sufficed to determine
that given that the drug in question is a novel medicine for colon cancer, and there is
no consensus regarding its ability to save or prolong life, it would seem that the medi-
50
ibid para 5.
51
ibid para 9.
52
ibid para 10.
53
ibid. For a critique of such a distinction between civil and social rights, see Barak-Erez and Gross, ‘Do We
Need Social Rights’ (n 13) 8.
54
Louzon (n 48) para 10.
55
ibid.
cine in question as well as other new and experimental medications, are not part of
the basic health services required for minimal human existence in society, and that
given the limited public resources, it is doubtful if the demand for public funding of
new medications, may be anchored in the core of the Basic Law’s protected constitu-
tional rights.56 Furthermore, even in accordance with an interpretive position which
would expand the constitutional dimension of the right to human dignity beyond the
necessary minimum, only in exceptional circumstances would the state be constitu-
tionally obligated to fund a specific drug – out of numerous drugs for which demands
for public funding are raised.57
2. Scope of the statutory right to health services:
After addressing the constitutional issue, the Supreme Court emphasised that the right
to public health services does exist as a statutory right, regardless of the constitutional
question, and this warrants an examination of whether this statutory right was violat-
ed.58 The right itself is anchored in the Patient’s Rights Law which determines that
every person is entitled to appropriate health care in accordance with the Law and in
accordance with the conditions and arrangements valid at the time in the Israeli health
system,59 as well as by the NHIL.60 Beinisch analyzed the structure of the NHIL, deter-
mining that the Law is based on the principle of solidarity, its aim being for each
insured person to pay in accordance with his ability and to receive according to his
needs, having consideration for the weaker members of society. Court President
Beinisch noted, however,61 that over the years a series of amendments to the NHIL had
eroded the principle according to which the right to receive medical services is an inde-
pendent right, detached from the ability to pay for the service. After addressing these
issues, as well as the mechanism for updating the cost of the HSB and the widespread
criticism thereof, and the ensuing litigation, Beinisch concluded that the Government
has wide discretion in determining the annual addenda to the cost of the HSB.62 Based
on the statutes, Beinisch ruled that while the Israeli legal system recognised a statutory
right to health services which is broader than the core minimum of basic health ser-
vices required for human existence in society, it is nonetheless clear that the HSB does
not purport to include the full range of possible medical services that an individual
may require. The statutory right, it was held, includes a core and a penumbra. The
core of the statutory right to basic health services includes the health services that the
state is committed to fund. In accordance with the NHIL this includes the ‘basic ser-
vices basket’ that was in force in Clalit, the largest Sick Fund, before the NHIL entered
into force on 1 January 1994,63 and which served as the baseline under the statute, and
the funding of which within the HSB is a statutory duty. At the penumbra of the statu-
tory right are the health services not included in this baseline, and the right to expan-
sion within the HSB beyond the baseline is a budget-dependent right, which derives
ibid para 12.

56
ibid.
57
58
ibid para 13.
59
ibid para 14.
60
ibid para 15.
61
ibid, citing Gross, ‘Health in Israel: Between a Right and Commodity’ (n 12) 495.
62
63
This is according to the NHIL which, upon coming into effect, established that basket as the starting
point for the HSB.
324 Aeyal Gross
from policy as determined in the annual budget law.64 Thus, the scope of the statutory
right to public health services beyond the ‘basic basket’ derives from the annual budget
law.
Having said that, Beinisch added one caveat: the budget limit is not ‘an impenetra-
ble roof’: international law indicates the duty to act for the progressive realization of
the right, and when the state takes retrogressive measures in relation to the right, it
assumes the onus of showing that these measures are necessary given the maximum
resources available to it:
[T]he question that is likely to arise in our legal system is whether a serious reduction in the
funding of the health services basket – including by way of significant cumulative erosion of
the funding of the basket in the absence of a substantive mechanism for a real adjustment of
its cost – transfers the burden to the State to show that this reduction is indeed justified and
dictated by reality.65
This interpretive question, Beinisch added, would necessitate an examination of

whether the statutory right for the expansion of the HSB, while budget-dependent,
should be interpreted in accordance with international law and the principle of pro-
gressive realization. Beinisch noted, however, that this is not the question before the
Supreme Court in the present case and should be left open.66 This final comment
relied on the fact that the petitioners in Louzon did not challenge the budgetary
framework allocated by the state for the expansion of the HSB but rather attacked
the exercise of discretion by the basket committee. Given this analysis Beinisch could
conclude that since Erbitux was not part of the baseline basket under the NHIL,
access to it is not a statutory, but rather a budget-dependent right.
3. The determination of the basket and the discretion of the basket committee:
In this part of the judgment Beinisch addressed the procedure for adding new tech-
nologies and described the process in which on an annual basis the Ministry of Health
issues a call for requests to include new medications and technologies in the HSB.
This is followed by an evaluation process of the various proposals, conducted by
professional bodies in the Ministry which then pass the information to the HSB
Committee. The HSB Committee prioritises the new medications and technologies,
and presents its recommendations to the Health Council, a statutory body authorised
to advise the Minister of Health. If the Minister accepts the recommendations, then
further consent is needed from the Minster of Finance, to be followed by the consent
of the Government, which must also approve the financial resource to expand the
HSB.67 The Committee, it was held, enjoys a wide range of discretion and the Supreme
Court will not intervene in its discretion as long as its recommendations were formu-
lated in a proper procedure and as long as it does not substantially deviate from the
relevant considerations which it is obligated to take into account or clearly deviates
from striking an appropriate balance between them.68
64
65
ibid para 17. In this context Beinisch drew on the ICESCR and on UN Committee on Economic, Social
and Cultural Rights, General Comment No 14: The Right to the Highest Attainable Standard of Health
(Art 12 of the Covenant) (11 August 2000) UN Doc E/C 12/2000/4.
66
67
ibid para 20.
68
ibid paras 21–23. For a discussion of the relevant considerations as laid out by the Committee before the
court, see ibid para 26.
The Supreme Court did not find any grounds for intervention, noting that the ques-
tion of how to set priorities in the allocation of public resources is a controversial one,
admitting of differing opinions, and that it is not the Court’s role to choose one prioriti-
zation system over another.69 Having perused the protocols of the HSB Committee’s
discussion, the Supreme Court ruled that the scientific evidence about the drug in ques-
tion was still elementary and non-conclusive. Accordingly, the Committee’s decision to
give it a rating that was lower than the rating of proven life-saving technologies is not
unreasonable to an extent that warrants judicial intervention.70
The Supreme Court’s analysis in Louzon enables the following observations: regard-
ing the constitutional status of the right, the Supreme Court adhered to the minimalistic
approach, maintaining the traditional yet problematic division between civil and polit
ical rights on the one hand and social and economic rights on the other hand. It remains
to be seen whether the more recent Hassan case mentioned earlier, which rejected this
distinction, will give rise to changes in future right to health cases. But no less problem-
atic is the Supreme Court’s holding concerning the scope of the statutory right. The divi-
sion between the core and the penumbra may indeed have its parallel in the recognition
of ‘core obligations’ in the right to health.71 However, the Supreme Court chose to iden-
tify the core obligations with the 1994 baseline HSB, so that anything beyond it is within
the scope of budget-dependent penumbra. This particular choice neglects a substantive
test, which requires consideration to be given to the changing meanings of what is at the
‘core’ in accordance with technological developments, thus confusing the ‘is’ with the
‘ought’. The combination of the Supreme Court’s holdings in the three aspects of its
judgment seems to close the door on the possibility of judicial review of decisions con-
cerning the inclusion of new technologies. Even if new technologies or drugs are more
established and consensual than Erbitux, the Supreme Court’s analysis precludes their
inclusion within the scope of the statutory right and it would seem practically impossible
to make claims on a constitutional or administrative level. Indeed, the state has allocated
budgets for new technologies since 1998, but this budget has been declared to be insuf-
ficient for purposes of covering all essential and life-saving drugs. It relies upon the
Government’s annual budgetary decision and is not guaranteed, and hence cannot be
trusted, especially given the lack of an adequate regular updating mechanism as described
above.
As for the third aspect of the judgment, the criterion for intervention set by the
Supreme Court may be a sound one as indeed the Supreme Court cannot be expected to
replace the Committee’s discretion with its own discretion. Nonetheless, Louzon still
reads like a missed opportunity: consider the paragraphs in which Beinisch suggests that
significant and cumulative erosion of the financing of the basket and the lack of a sub-
stantial mechanism for a realistic update of its cost may amount to a severe violation of
the financing of the HSB (‘retrogressive measures’)72 which imposes a burden upon the
ibid paras 27–28.
69
ibid para 29.

70
71
See, A Gross, ‘The Right To Health in an Era of Privatisation and Globalisation: National and
International Perspectives’ in D Barak-Erez and A Gross (eds), Exploring Social Rights: Theory and Practice
(Oxford, Hart Publishing, 2007) 289, 303; L Forman, ‘What Future for the Minimum Core? Contextualizing
the Implications of the South African Socioeconomic Rights Jurisprudence for the International Human
Rights to Health’ in J Harrington and M Stuttaford (eds), Global Health and Human Rights (London,
Routledge, 2010) 62, 67–70.
72
326 Aeyal Gross
state to demonstrate that the said violation is indeed justified and necessary. Indeed,
Beinisch determined that this was not the issue confronting the Supreme Court, and the
petitioner did not challenge the budgetary allocation for health care but rather its deter-
mination of priorities therein. Nonetheless, it is arguable that on a factual level it was
indeed the erosion of the financing of the health basket, as described, and the lack of a
substantial mechanism for realistic update of its cost as discussed above, that formed the
background to the litigation in Louzon. The reason is that these factors caused the exclu-
sion from the HSB of technologies that do not rank sufficiently high on the Committee’s
list, despite their life-saving or life-extending potential. Indeed the Committee should
have wide discretion and as a rule it is difficult to justify intervention in the priorities it
sets. However, the state’s policies on health care may indeed justify a transfer of the
onus to the state to explain and justify any significant reduction of public funding for
health care. In that scenario, judicial intervention would be justified if the explanation
was inadequate. Accordingly, while the petitioners in this case did not challenge the
budget allocated for the health care basket, but rather the way in which it was allocated,
the Supreme Court could have seized on the opportunity to transfer the burden of proof
and determine that the state’s neglect of this issue created a presumption against the
propriety of its decisions. Litigation on access to medications in Israel should be viewed
within the context of the specific issues facing the Israeli health system and rights litiga-
tion, and while it cannot replace policy making, in cases such as Louzon it may arguably
serve as a catalyst for a review of the policy from a rights perspective.73
C. Co-Payments
While the question of the scope of the services included in the HSB generated extensive
litigation, the issue of co-payments has merited far less direct judicial attention, despite
the fact that as described above, the expansion of co-payments after the 1998 legislation
created bars to accessibility and made co-payments a major funding source for the health
system, and in a way that substantially increased inequalities. As mentioned, in the
Israeli (Cochlear Implant) case, the Supreme Court rejected arguments that this type of
payment infringes on the rights to health and equality.
D. The Mixture of Public/Private Programmes
The term ‘Private Health Services’ (PHS)74 is used to refer to a programme that enables
patients to choose their doctor – specifically surgeons – within public hospitals, for an
additional out-of-pocket payment by the patient. These programmes have been promoted
in government hospitals since 1996, by way of private companies that entered into agree-
ments with the hospitals’ research funds.75 In 2002, the Attorney General pronounced the
73
Erbitux, by the way, was added to the HSB in 2012. Director General Directive 1/12, ‘Expansion of the
Health Services Basket for 2012’ (10 January 2012) (in Hebrew): www.health.gov.il/hozer/mk01_2012.pdf
(Ministry of Health) (in Hebrew).
74
The Hebrew acronym is ‘SHARAP’.
75
For a discussion, see Ben-Nun, Berlovitz and Shani (n 26) 131–37 (in Hebrew); Y Shuval and O Hanson,
Ha’Ikar HaBriut (Most Importantly, Health) (Jerusalem, Magnes, 2000) 307–14 (in Hebrew).
practice illegal. Petitions against his decision were filed in the Supreme Court by a group of
doctors and a group of citizens and in 2009 the Supreme Court decided to reject the peti-
tions and uphold the Attorney General’s decision concerning the illegality of the PHS (the
Kiryati ruling). In addressing the matter, Justice Berliner noted that in reality, the PHS was
limited to the selection through payment of surgeons in government hospitals. Nonetheless,
the issue before the Supreme Court actually has far broader implications, because permit-
ting PHS would also legitimate the provision of a wide array of health services by means of
a payment on top of the health tax. This could have significant implications for the charac-
ter of the public health system in Israel, which she described as national and public, and as
one which is subsidised by the state, with each citizen paying a fixed monthly sum from his
or her salary regardless of his or her medical condition, and receiving treatment in accord-
ance with his or her needs.76 Berliner contrasted this system to the PHS regime under which
the patient can choose the surgeon based on a private out-of-pocket payment, which is
usually used to select the more senior doctors who naturally have greater expertise in their
respective fields.77 Health services in the hospitals should be provided exclusively in accord-
ance with medical considerations, and under no circumstances should they be based on
enhanced ability to pay.78 The service provided for citizens within state hospitals is a public
service given for free, and any ability to buy an improved service within the public service
which is normally given for free, must be authorised by the legislature.79
The petitioners in this case attempted to enlist rights arguments in making the case
for allowing PHS. It was argued that whether desired or not, the health system in
Israel does not treat all citizens equally being based rather on equality of opportunity,
and as such, all people are entitled to buy the PHS services. The prohibition of PHS
violates the rights enumerated in the Patient’s Rights Law as well as in the Basic Law,
which protects the autonomy of the individual, including the individual’s right to
select the doctor and the hospital in which he or she is to be treated.80 Justice Berliner
rejected these arguments, relying on the previous Supreme Court rulings which recog-
nised the right to dignity as including a minimum human existence but not a broader
right to health. Accordingly, a right to choose a physician, is not part of the core ser-
vices required for the maintenance of human existence in dignity.81 Additionally, if the
right to choose a physician were to be considered as a part of the personal autonomy
recognised by the Basic Law, it would mean allowing every patient to select a physi-
cian without payment, as part of the HSB. Yet the protection of autonomy does not
entitle the citizen to the realization of each and every one of his desires, just because he
can pay for it.82
Justice Berliner’s ruling in Kiryati demonstrates a commitment to the principles of the
NHIL, and to a public health system in which medical services are provided in accor-
dance with need and not just the ability to pay. Her rejection of the rights arguments
made by the petitioners demonstrates a commitment to an egalitarian concept of health
which is provided in accordance with need and not in accordance with ability to pay,
76
HCJ 4253/02 Kiryati v Attorney General (17 March 2009), Pador Legal Database (by subscription) para 2
(in Hebrew).
77
ibid para 3.
78
ibid paras 34, 41, 48.
79
ibid para 36. Justice Berliner based her decision also on a few statutory provisions (see paras 26–30).
80
ibid para 24.
81
ibid para 52.
82
ibid para 57.
328 Aeyal Gross
and she justly held that if autonomy means the right to choose one’s doctor, than it
should be provided to all patients, and not just to those who can pay for it.
This ruling is in contrast with the Canadian Supreme Court decision in Chaouli 83
which protected access to private health insurance – in the name of the protection of the
right to the security of the person – for those who can pay for it. Interestingly, in reach-
ing her conclusion, Justice Berliner relied on the narrow, minimal recognition of the
right to health as part of the right to human dignity as recognised in Israeli law. In this
case it was a minimal construction of the right to health that served to justify equal
access to health care rather than a broader construction. All the same, given Justice
Berliner’s rejection of the argument from autonomy, she could have rejected an argu-
ment made from the right to health even if the right had been given a broader construc-
tion in Israeli law. That is to say – the rationale for rejecting the right to autonomy claim
could also have been used for rejecting the claim based on the right to health. Both of
them are rights to which all persons should have equal access to regardless of ability to
pay. Rejecting the argument made from the right to health on these grounds would have
been a better response than the one given in the judgment. From reading Kiryati it is
evident that rights discourse can be, and was in fact, used by the petitioners for the
promotion of privatization within the health care system in a manner that creates
inequality. However, a concept of rights grounded in a substantial concept of equality84
– which was adopted in this case by the Supreme Court – should reject these claims and
point to the fact that for a rights argument to be justified, it must be shown that access to
health care is equal and not dependent on the ability to pay.
At the same time, and as the petitioners justly argued, the principle of equality is
already undermined by many other factors. It will be recalled that while Kiryati prohib-
ited discrimination between patients within the public hospital in regard to choice of
surgeon based on the ability to pay, the Israeli (Cochlear Implant) decision upheld
discrimination within the public hospital, based on the ability to pay, even where that
ability determined the very possibility of undergoing an essential operation. This gap
points to the limits of the Supreme Court’s discourse. It may in fact indicate that it was
easier for the Supreme Court to protect equality in Kiryati, where its decision was lim-
ited to the upholding of policy and did not require intervention.
On the other hand, and effectively retreating somewhat from the Kiryati ruling, the
Supreme Court rejected a later petition which challenged the legality of PHS in publicly
funded hospitals which provide public services, but are operated by private companies
and are not government hospitals in the same way as the hospitals addressed in Kiryati
were. Writing for the Court, Court President Grunis based his reasoning mostly on the
laches doctrine, holding that the petition was submitted after a significant delay, but also
distinguishing the case from Kiryati based on the difference between the types of hospi-
tals involved. Addressing the question of whether because of the nature of the rights
involved the Supreme Court should consider the merits of the case notwithstanding the
delay, the Court noted that even if the right to equal access to health care is to be recog-
nised as derivative of the constitutional right to human dignity, then the right is at the
83
Chaoulli v Quebec (AG) [2005] 1 SCR 791 (Can). See A Gross, ‘Is There a Human Right to Private Health
Care?’ (2013) 41 Journal of Law, Medicine and Ethics 138.
84
See on this, M Horwitz, ‘Rights’ (1988) 23 Harvard Civil Rights–Civil Liberties Law Review 393.
periphery and not at the core of the constitutional right.85 This statement further points
to the weak status of the right to health in Israeli constitutional law and to a position
which is at odds with the need to integrate the concept of equal access into its analysis.
In the absence of such a concept, health’s status as a right will be further eroded, increas-
ingly becoming a commodity, the availability of which is based on the ability to pay and
not based on need.
V. CONCLUSION: WHAT ROLE FOR THE RIGHT TO HEALTH?
The question of the role of the right to health and related litigation has been debated
extensively in recent years, raising a few related questions and dilemmas: what is the
scope of the right to health, and more pointedly, what should its contents be (if at all) as
a judicially enforced right? Is it possible, and if so is it desirable, for the courts to order
the allocation of health services which national authorities decided not to provide?
Would not judicial intervention in the area of health undermine the work of the bodies
authorised to prioritise in their capacity as bodies that see the ‘whole picture’ rather than
‘just’ the plight of an individual patient? How can rights discourse with its individualist
tilt address public health, an issue involving collective decision-making?86 Furthermore,
it has been argued that the focus in right to health litigation on access to health care
rather than on other elements of the right to health, moves the discussion, and possibly
the resources, away from the social determinants of health and away from preventive
medicine, towards curative medicine.87 It has also been suggested that right to health liti-
gation may benefit the middle class at the expense of the poor, and powerful arguments
have been made in favour of further research of the question of who litigates, who
benefits, and how health rights litigation affects the overall equity of the system.88
All of these questions merit discussion. Indeed health rights, and specifically health
rights litigation, cannot replace policy and prioritization decisions. However, they can
serve as a tool for reviewing whether a chosen policy adheres to principles of rights.
Introducing the notion of the right to health into public health systems, especially at
times of privatization of financing and of provision of services, may reinstate public val-
ues such as equality. At the same time it may reinforce privatization by allowing demands
for privatised medicine to be dressed up as rights claims. The Israeli experience reflects
both of these, even if the Supreme Court thus far has rejected attempts to achieve the
latter.
85
HCJ 2114/12 Association for Civil Rights in Israel v Government of Israel (15 August 2012), Nevo Legal
86
See Gross, ‘The Right to Health in an Era of Privatisation and Globalisation’ (n 71) 337–38 in A Clapham
and S Marks, International Human Rights Lexicon (Oxford, Oxford University Press, 2005) 197.
87
See, eg BM Meier, ‘The World Health Organization, Human Rights, and the Failure to Achieve Health for
All’ in J Harrington and M Stuttaford (eds), Global Health and Human Rights (London, Routledge, 2010) 163,
182.
88
See, eg S Gloppen, ‘Litigation as a Strategy to Hold Governments Accountable for Implementing the
Right to Health’ (2008) 10 Health and Human Rights 21. For comparative studies on the role of law and litiga-
tion in this regard, see V Gauri and DM Brinks, Courting Social Justice: Judicial Enforcement of Social and
Economic Rights in the Developing World (Cambridge, Cambridge University Press, 2008); AE Yamin and
S Gloppen (eds), Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge, Harvard
University Press, 2011); C Flood and A Gross, The Right to Health at the Public/Private Divide: A Global
Comparative Study (Cambridge, Cambridge University Press, forthcoming).
330 Aeyal Gross
An understanding of the right to health grounded in a distributive and substantive

concept of equality may help avoid the danger of rights discourse being invoked to rein-
force privatization and make it possible to use rights analysis to scrutinise policy deci-
sions according to the principles of progressive realization and equal access. In the
Israeli context, this would mean that while health rights litigation cannot replace prop-
erly conducted prioritization, it may prompt judicial review of whether the policies
taken by the Government advance an egalitarian concept of the right to health. Do the
policies reflect a commitment to broadening accessibility and to a growing commitment
to health on the part of the state, or a withdrawal from such commitments? Does the
state show a commitment to progressive realization of the right to the highest attain-
able level of health? Do the health policy decisions advance equal access, or do they
actually promote inequality? Is the health care system financed on an egalitarian basis,
or rather in a way that imposes a disproportionate burden on the poor? Asking these
questions might have produced different results, or at the very least, might have lead to
lines of reasoning and consideration of factors that do not appear in some of the Israeli
cases mentioned here.
Based on the record of the Israeli Supreme Court, we can see that it actually refrained
from intervening in any of the major right-to-health cases brought before it. The right to
health claim was ineffective as a sword for those who sought to advance equal access,
but at the same time attempts to argue for privatization using right to health arguments
also failed. It was actually in the latter cases, especially in Kiryati, that the Supreme
Court developed an egalitarian concept of the right to health that served as a shield
against attempts to expand privatization of the system, when such privatization was
already restricted by the Government. The reasoning employed by the Supreme Court
when it used the rights analysis as a shield against arguments based on the right to priva-
tization, if taken seriously, could have also been used as a sword against privatization
and against withdrawal from commitment to health. However, treading the latter path
would have required the Supreme Court to enter the arena and intervene in the form of
accepting petitions, something it has thus far been reluctant to do in this area. The sec-
ond PHS case, points to this reluctance, but also to the Supreme Court’s possible with-
drawal from the egalitarian perspective taken in Kiryati. Arguably, with the exception
of the most recent petition, in the series of cases concerning the health cost index update,
non-intervention is the uniting theme of the Supreme Court’s jurisprudence on the right
to health – more than any other aspect of this right.
Unlike the Supreme Court cases, in some of the Labour Court cases, the courts chose
to intervene in favour of patients. Decision-making in individual cases of the type that
come before the Labour Courts may indeed obscure the general picture. But on the
other hand, given its ability to see the individual coming before it, the Labour Courts
may be ideally positioned to address concrete cases which ‘fall between the cracks’ and
do not find a solution in the HSB. Judicial review of the existence and the operation of
committees within the Sick Funds that look into such cases is a welcome development.
Take the case in which a certain medication is included in the HSB but only as a second
line medicine, and because of a certain condition or a conflicting drug the patient
cannot take the first line medicine. These committees (and in their absence, or in the
event that they fail to exercise reasonable discretion, the Labour Courts) have the abil-
ity to provide the patient with the required remedy, given the need to see the ‘concrete’
person before it and not just ‘abstract’ other,89 who may not find a solution within the
HSB.
From this perspective, the decision of the Israeli Labour Courts that required the Sick
Funds to exercise discretion in cases not covered in the health basket, along with the
judicial review of the decisions made by the Sick Funds’ Exceptions Committees, are
examples of what rights analysis may achieve in the context of health. The approach
advocated here does not ignore the budget issues or the need to set priorities. However,
when a right exists, it is the state’s duty to find the appropriate resources, and it cannot
waive its responsibility based on budgetary arguments alone. The state can set priorities
within the existing health system and can prefer one treatment over another if it is more
essential, effective, or cheap, provided that it upholds the core of the right to health, the
principle of accessibility (including economic accessibility), and equality, and provided
that it demonstrates a commitment to health and progressive realization of the right.
Beyond the individual cases decided by the Labour Courts, such a commitment dictates
a departure from the minimalistic approach adopted by the Supreme Court in the cases
that come before it, towards a constitutional approach grounded in equity and substan-
tive equality that will scrutinise decisions based on these principles. Access to health is at
least as important, if not more, than access to watching soccer games.
89
I use these terms following Seyla Benhabib’s distinction in S Benhabib, Situating the Self (London,
Routledge, 1992) 102–48, which in turn draws on Carol Gilliagn’s discussion of ethics of justice and ethics of
care: C Gilligan, In a Different Voice (Cambridge, Harvard University Press, 1994). See in more detail Gross,
‘The Right To Health in an Era of Privatisation and Globalisation’ (n 71) 329–30.
22
The Fiscal Objection to
Social Welfare Rights: A Closer Look
AMIR PAZ-FUCHS*
I. INTRODUCTION
T
HOUGH IT HAS been repeatedly asserted that theoretical arguments against
recognition of social welfare (SW) rights have been effectively answered,1 they
tend to resurface in implicit fashion in legal doctrine. This chapter argues that at
the core of contemporary manifestations of the traditional objections to SW rights is
their unique relationship with money. The chapter sheds light on the structure of the
current version of the old objections by reviewing judicial rulings in courts in general
and in Israeli courts in the fields of health, education and welfare in particular. Focusing
on this one particular justification – that objections to social and economic rights col-
lapse into reservations regarding judicial abilities to deal with fiscal issues – carries the
potential to highlight the ambiguities and inconsistencies in the judgments and in the
arguments that underlie them.
But before doing so, some preliminaries must be addressed. First, as always: terminol-
ogy. But in this case, terminology is also substantive. Scholars writing on the theoretical
and pragmatic objections to judicial enforcement of rights to education, health, housing
and the like, tend to use the term ‘social and economic rights’.2 This chapter, however,
will follow the lead suggested by Mark Tushnet and use the term ‘social welfare rights’.3
As Herman Schwartz and others have recently noted, ‘the central issue is not really
about social and economic rights, but primarily about social rights. More precisely, it is
* I would like to thank Mark Tushnet, Aeyal Gross, Neta Ziv and other participants in the conference for
thoughtful and helpful comments. Unless otherwise stated, all translations are mine.
1
J Waldron, ‘Introduction’ in J Waldron (ed), Theories of Rights (Oxford, Oxford University Press, 1984) 1,
11.
2
There are good reasons for doing so. After all, international documents bind social and economic rights
together. See, eg International Covenant on Economic, Social and Cultural Rights (adopted 16 December
1966, entered into force 3 January 1976) 993 UNTS 3; UN Commission on Human Rights, Note verbale
dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at
Geneva addressed to the Centre for Human Rights (‘Limburg Principles’) (8 January 1987) UN Doc E/
CN4/1987/17; Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (22–26 January
1997).
3
M Tushnet, ‘Social Welfare Rights and the Forms of Judicial Review’ (2004) 82 Texas Law Review 1895,
1895.
334 Amir Paz-Fuchs
about social and certain economic rights’.4 The reason for excluding paradigmatic eco-
nomic rights such as property and contract from this discussion lies not only in the fact
that there is little controversy over the legitimacy of their judicial enforcement, but also
because judicial deference to economic rights such as property and contract conflicts
with the redistributive interests that lie at the heart of social welfare rights.5
The second preliminary note comes in the form of a qualification: the chapter does not
seek to confront the issue that has occupied many American constitutional scholars, to
wit: whether social and economic rights belong in a constitution.6 The normative focus of
this chapter, with its affinities to legal realism, agrees that ‘there is no reason to think that
it is the constitutionalization of these rights that is crucial’.7 Courts may have profound
impact on social policies without resorting to judicial review of legislation. First, because
a significant amount of policy decisions, on the micro and macro level, are made at the
sub-legislative, administrative, level.8 Second, even where legislation is involved, courts
can enforce rights through other methods, such as the interpretation of statutes.9
Turning to the substantive focus of the chapter, it is necessary to ask: what is the
advantage of analyzing the judicial enforcement of social and economic rights through
the perspective of money? The fact that the perspective has largely been swept away as
‘an offense to polite manners’10 is a good enough reason to finally do so. But it is far
more than that. One may say that the same, well-worn theoretical objections to SW
rights that were, as noted, effectively answered, are being redressed in fiscal clothes.
Three such objections are noted: first, that the judicial enforcement of SW rights endan-
gers proper separation of powers; second, that the courts lack the expertise and compe-
tence to deal with the complex issues that SW rights raise; and third, that vexing
enforcement problems related to SW rights will reflect poorly on rights in general, and
will endanger respect for first generation, civil and political (CP) rights. Now, while
these objections were formulated, at first, in a straightforward fashion, today they
almost always seek reinforcement from one or more of the usual concepts: budget, fund-
ing, resources, and the like. But, of course, the substantive rebuttal to the objections still
remains, and should be articulated.
4
H Schwartz, ‘Do Economic and Social Rights Belong in a Constitution?’ (1995) 10 American University
Journal of International Law and Policy 1233, 1235; also D Barak-Erez and A Gross, ‘Social Rights and the
Struggle for Social Citizenship’ in S Almog and Y Rotem (eds), Dorner Book (Srigim, Nevo, 2009) 189, 190.
5
M Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative
Constitutional Law (Princeton, Princeton University Press, 2008) 170–94. For the impact of social welfare
rights on redistribution, see D Barak-Erez and A Gross, ‘Introduction: Do We Need Social Rights – Questions
in the Era of Globalization, Privatization and the Diminished Welfare State’ in D Barak-Erez and A Gross
(eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart Publishing, 2007) 1, 16.
6
F Michelman, ‘The Constitution, Social Rights and Liberal Political Justification’ in Barak-Erez and
Gross, Exploring Social Rights (n 5) 21; C Fabre, Social Rights Under the Constitution (Oxford, Oxford
University Press, 2000); H Schwartz, ‘Economic and Social Rights’ (1993) 8 American University Journal of
International Law and Policy 551.
7
Schwartz, ‘Economic and Social Rights’ (n 4) 1243.
8
R Titmuss, ‘Welfare “Rights”, Law and Discretion’ (1971) 42 The Political Quarterly 113, 120–21, 124
(‘public assistance in the United States is almost entirely discretionary’); M Diller, ‘The Revolution in Welfare
Administration: Rules, Discretion and Entrepreneurial Government’ (2000) 75 New York University Law
Review 1121, 1147; J Handler, ‘Discretion in Social Welfare: The Uneasy Position in the Rule of Law’ (1983) 92
Yale Law Journal 1270, 1276; D Barak-Erez, ‘The Israeli Welfare State – Between Legislation and Bureaucracy‘
(2002) 9 Labor, Society and Law 175, 177–78 (in Hebrew).
9
Tushnet, ‘Social Welfare Rights’ (n 3) 1898; Tushnet, Weak Courts, Strong Rights (n 5) 224.
10
S Holmes and C Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New York, WW Norton,
1999) 24.
The Fiscal Objection to Social Welfare Rights 335
In what follows, I will briefly outline the three arguments, show each one’s modern
association with budgetary concerns, and note some instances that reveal how this asso-
ciation was expressed in Israeli case law. Part II will discuss the argument concerning
separation of powers; part III will focus on the argument concerning the courts’ compe-
tency to deal with SW rights; and part IV will discuss the objection to SW that is con-
cerned with lack of applicability and the impact that ‘futile’ efforts to implement SW
rights supposedly has on ‘real’ (ie CP) rights. I then turn, in part V, to a focused rebuttal
of the fiscal objection. The chapter concludes, in part VI, with a suggestion as to why
this particular objection has remained so attractive to courts and to scholars alike. I
believe that the latter analysis suggests a theoretical reconstruction that has implications
not only to the subject at hand, but also to the way SW rights, and rights in general, are
reconstructed in contemporary judicial discourse.
II. SEPARATION OF POWERS
According to this argument, the judiciary should refrain from enforcing SW rights
because acting otherwise would require the courts to adjudicate policies, priorities and,
ultimately – to distribute and redistribute funds. Such a result is tantamount to the
unconstitutional, illegitimate and undemocratic transfer of authority from Parliament
and government to the courts.11 Timothy Macklem’s exposition of the argument reveals
its strong ties to matters of resources and funding. He argues that allowing the courts
power to enforce social welfare rights would grant them the role to decide
the level of funding that health care should receive from the government, and . . . how that
funding should be distributed . . . It would be for the courts to set the direction for the econ-
omy, to establish the curriculum for the schools, to determine environmental policy – in short,
to govern. Clearly this would be undesirable, for it would have the effect of transferring virtu-
ally all democratic authority from the people’s present representatives . . . to the courts whose
duty it is to interpret and enforce that Constitution.12
Frank Cross drives the point home, employing the timeless phrase and stating that
‘courts understand that requiring legislatures to provide minimal levels of subsistence
for all Americans encroaches upon the jealously guarded “power of the purse”’.13 This,
indeed, fits well with the US Supreme Court’s self-awareness, remarking as it did that
‘the intractable economic, social, and even philosophical problems presented by public
welfare assistance programs are not the business of this Court’.14
Across the ocean, the House of Lords has been characterised as holding ‘a deeply
embedded judicial conviction that matters of public finance are the preserve of the
elected branches of government and not of courts’.15 And the Irish Supreme Court con-
cluded that ‘it is not the function of the courts to make an assessment of the validity of
the many competing claims on national resources’.16
11
See the discussion in G Davidov, ‘Constitutional Review of Budgetary Matters’ (2007) 49 The Lawyer 345,
12
T Macklem, ‘Vriend v Alberta: Making the Private Public’ (1999) 44 McGill Law Journal 197, 210.
13
F Cross, ‘The Error of Positive Rights’ (2001) 48 UCLA Law Review 857, 890.
14
Dandridge v Williams 397 US 471, 487 (1970); Mathews v Eldridge 424 US 319, 348 (1976).
15
ED Palmer, ‘Resource Allocation, Welfare Rights’ (2000) 20 OJLS 63, 74.
16
TD v Minister for Education [2001] 4 IR 259 (Ir).
336 Amir Paz-Fuchs
And yet, on a normative level, it is simply not true that the courts can refrain from
intervening in questions of distribution and redistribution. Not intervening, in such
cases, would usually mean embracing the highly controversial baseline of the market, or
even accepting the economic status quo that, in itself, depends on public institutions and
state action.17 The decision not to alter the ‘background rules’ that inform the current
social and economic state of affairs is a decision in its own right. Even the distinction
between ‘commission’ and ‘omission’ is not relevant in this case. For, in constitutional
democracies, courts quite often protected rights to property and contract, at the expense
of other social and legal interests (the Lochner era being an obvious example).18 In
Professor Tushnet’s words: ‘The state is complicit in creating the distribution of wealth
in society whether it “acts” affirmatively or whether it does nothing but enforce the
background rules of property and contract law’.19
However, as shown by the example of Israeli health policy, the courts tend to accept the
bond between fiscal considerations and the threat to separation of powers. Some back-
ground is warranted: the National Health Insurance Law, 5754-1994, establishes a basket
of health services to which citizens are entitled, and the process for updating the basket.
The Law grants the Ministers of Health and Finance the power to update the basket, fol-
lowing a recommendation by the Health Council.20 In Maccabi Health Services v Minister
of Finance,21 the health fund challenged the Minister’s refusal to update the health index,
despite a unanimous recommendation to that effect by the Health Council, which was but-
tressed by a similar assertion by a parliamentary committee of enquiry. The Minister rec-
ognised the objective need to update the health index, but replied that budgetary constraints
restrained him from acting accordingly.
The Israeli Supreme Court (ISC) dismissed this argument, mocking it as an attempt to
devise a new theory of ubi remedium ibi jus – where there is a remedy there is a right22
– instead of the other way around. The Court clarifies that where a statutory obligation
is recognised, the state cannot argue that fiscal resources prevent it from living up to its
duties. The Court also noted that ignoring the Health Council’s opinion, undermines the
Council’s statutory standing as an expert advisor in the process.23 However, after all this
17
A Sen, Inequality Reexamined (Oxford, Clarendon Press, 1992) 1–100; Holmes and Sunstein (n 10) 61.
18
Lochner v New York 198 US 45, 45 (1905) (striking down a New York law that limited the work day to 10
hours, and the work week to 60 hours, for being an ‘unreasonable, unnecessary and arbitrary interference with
the right and liberty of the individual to contract’); Adkins v Children’s Hospital 261 US 525 (1923) (striking
down a law providing minimum wages for women and children); Adair v United States 208 US 161 (1908)
(upholding ‘yellow dog’ contracts that forbid workers from joining unions); Tyson & Brother v Banton 273 US
418 (1927) (striking down a law regulating the price of theatre tickets); Weaver v Palmer Bro Co 270 US 402
(1926) (striking down a public health and safety regulation concerning the use of fabrics as a violation of the
due process clause). See C Sunstein, ‘Lochner’s Legacy’ (1987) 87 Columbia Law Review 873, 883 (arguing that
the ‘central problem of the Lochner Court had to do with its conceptions of neutrality and inaction and its
choice of appropriate baseline’).
19
Tushnet, Weak Courts, Strong Rights (n 5) 189; for Tushnet’s own discussion of the Lochner era see ibid
172–74.
20
The Health Council is chaired by the Minister of Health, and consists of 46 members from government
ministries, health funds, Israel Medical Association, academia, trade unions, employers and municipalities –
National Health Insurance Law, 5754-1994, s 49.
21
HCJ 2344/98 Maccabi Healthcare Services v Minister of Finance 54(5) PD 729 [2000] (in Hebrew).
22
See also Holmes and Sunstein (n 10) 43 (explaining that individuals enjoy rights in a legal, as opposed to
a moral, sense, ‘only if the wrongs they suffer are fairly and predictably redressed by their government’).
23
Maccabi (n 21) 761–62.
‘lofty talk’,24 the Court concluded that it cannot order the Government to spend the
sums that would result from accepting the petition: ‘We have never instructed the state
to pay anyone out of its budget amounts of such magnitude as those that the health
funds are asking for in the present matter’.25
III. COMPETENCE
Critiques of judicial enforcement of SW rights suggest that the courts, which hear cases
on an individual basis, are not equipped to deal with issues that require a broader view.
Moreover, the complex nature of social and economic issues bars the courts from truly
assessing the whole environment from which the case stems and which is affected by the
decision.26
Continuing the analysis of the judicial role with respect to Israeli health policy, Chinitz
and Shalev note that ‘It is not surprising that the Court is hesitant to intervene in such
technical and obscure fiscal matters . . . The Court is not necessarily well equipped to
deal with accounting’.27 Moreover, even appeals to courts to overturn health fund deci-
sions are ‘unlikely to succeed, unless the letter of the law has been ignored. The courts
acknowledge budgetary constraints and accept standards of evidence-based medicine as
benchmarks for public funding’.28
However, as the Maccabi case, described above, suggests, it is often the political deci-
sion that is not based on ‘evidence-based medicine’, while the judicial one may rely on
substantial expert opinion (such as that of the Health Council, in that case). Even then,
extreme judicial restraint is observed.
Though courts should not be dismissive of the fact that the individual case they are
addressing may have repercussions for others whose claim is not heard, it should also be
recalled that courts deal, on a daily basis, with intricate economic problems that have
serious ramifications in trade, business, monopolies, taxes, and similar realms. This is
done, of course, with no qualms regarding competence.29 Moreover, an institutional
analysis of legislatures and courts reveals no important differences regarding the pres-
sures to which they are subject, the considerations they take into account and the level of
generality they aim for.30 An analysis of post-Communist socio-legal developments sug-
gests that even where constitutional courts intervened in a manner that moderated the
transition to market economies, no ‘disaster’ has come to pass, despite warnings to that
effect.31 Moreover, in some cases (such as Hungary) the transition may have been
improved by the Constitutional Court’s oversight and regulation. The charge that the
24
ibid 750–51; see also D Chinitz and C Shalev, ‘Joe Public v The General Public: The Role of the Courts in
Israeli Health Care Policy’ (2005) 33 Journal of Law, Medicine & Ethics 650, 654.
25
Maccabi (n 21) 752.
26
See Holmes and Sunstein (n 10) 18–19.
27
Chinitz and Shalev (n 24) 653.
28
ibid 655.
29
F Michelman, ‘In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice’ (1973)
121 Pennsylvania Law Review 962, 1006.
30
J Deutsch, ‘Neutrality, Legitimacy and the Supreme Court: Some Intersections between Law and Political
Science’ (1968) 20 Stanford Law Review 169, 183–84.
31
KL Scheppele, ‘A Realpolitik Defense of Social Rights’ (2004) 82 Texas Law Review 1921, 1948; Tushnet,
Weak Courts, Strong Rights (n 5) 235–36.
338 Amir Paz-Fuchs
court lacks expertise to deal with social and economic issues, therefore, seems to rely
on shaky evidence. The conclusion should be that even where budgetary issues are
concerned, the court’s particular expertise justifies expanding ‘the normal conception of
the role of the courts in a democratic society to include the role of “policy partner” in
ongoing bargaining about how a state should use its scarce resources’.32
A more nuanced rebuttal to this objection stems from the fact that not all reviews of
social policies are alike. An important distinction should be made at the level of remedy,
between demands that the court itself erects a policy or programme, on the one hand,
and charges to administer the policy in a fair and equal fashion, on the other hand.33 An
example of the latter case is the Canadian Government’s refusal to provide sign lan-
guage interpreters to deaf patients on the basis that it would put a ‘severe strain on the
fiscal sustainability of the health care system’.34 The Court reasoned that ‘The Legislature,
upon defining its objective as guaranteeing access to a range of medical services, cannot
evade its obligations . . . to provide those services without discrimination by appointing
hospitals to carry out that objective’.35 The Court may well be hesitant to dictate the
erection of a particular medical service, but once the Government decided to enter the
field, ‘it must provide all the services within the genre’36 to all the relevant recipients. We
find, once again, that the ability to link such SW challenges to the duty to treat all citi-
zens with equal concern and respect increases their appeal.37
And yet, while this approach seems quite appealing, it also raises a particular difficulty:
the fact that court decisions that give effect to SW rights are deemed justifiable only when
a given policy is in effect suggests that it is the principle of non-discrimination, rather than
social and economic rights, that is doing ‘the work’. The result is twofold: first, as a prin-
cipled matter, rather than undermining the ‘liberal’ (in the European sense) tendencies of
the courts, this approach reveals a willingness to entertain SW challenges only when they
can be broken down to an individual’s (preferably – nameable individual’s) interests, but
not when they are presented as collective harms, however ill-conceived, unprofessional
and harmful to constitutional rights. Secondly, the concrete effects of the approach are
noticeable, insofar as the remedy is concerned: instead of a generalised (or even generaliz-
able) injunction, the court will solve a particular problem for a particular individual. In
doing so, it will also praise the importance of SW rights, and mock the irrelevance of bud-
getary concerns, which will be relatively minimal in the case at hand. We find, then, that
this approach does not only trace the limits of the ability to challenge social and economic
policies in a successful manner (ie when discrimination is established). It also reinforces,
rather than undermines, the traditional objection to the court’s ability to reach decisions
that have complex, and perhaps unpredictable, consequences, an objection that is espe-
cially visible where SW rights are concerned.
A few Israeli cases from the field of education seem particularly relevant: in Botzer,
the ISC ruled that a school must make the necessary physical arrangements to grant a
32
Scheppele (n 31) 1935.
33
Davidov (n 11) 351.
34
Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624 (Can).
35
ibid para 51; see Tushnet, Weak Courts, Strong Rights (n 5) 205 (asserting that, under Eldridge, once a
government decides to provide some social welfare services, it must do so without discrimination).
36
ibid (n 5) 205.
37
See, eg D Barak-Erez and A Gross, ‘Social Citizenship: The Neglected Aspect of Israeli Constitutional
Law’ in Barak-Erez and Gross, Exploring Social Rights (n 5) 243, 252–53; F Michelman, ‘Foreword: On
Protecting the Poor through the Fourteenth Amendment’ (1969) 83 Harvard Law Review 7, 11.
child who suffers from multiple sclerosis and is bound to a wheelchair, easy access to
and from his classroom.38 The Court did not miss the opportunity to assert that ‘ensur-
ing equal opportunity . . . costs money’ and that the constitutional right to dignity
includes the right to equal opportunities in education.39 Needless to say, the judgment
did not require all schools in Israel to make similar modifications to allow children with
disabilities to be integrated in the general school system. Indeed, the very same year the
ISC rejected a petition that challenged a ministerial (and not statutory) budgetary deci-
sion to cut a programme that assists the children suffering from environmental dis
advantage and helps them integrate, socially and intellectually, into the general school
system.40 The Court distinguished its decision from Botzer, stating that ‘the principle of
equal opportunity does not stand alone. It cannot be severed from the general social
context. The realization of the principle requires resource allocation. The financial abil-
ity of the government authority should be balanced against the needs’.41
A similar fate was in store for a petition to force the Ministry to apply provisions of
the Special Education Law 5748-1988 that require the integration of children with
special needs in the general education system to children aged three to four.42 In a brief
judgment, the Court acknowledged that the professional consensus is that the integra-
tion of children with disabilities enhances their social and intellectual ability, and that
time is of critical importance.43 But it rejected the charge, stating that the limited budget-
ary abilities require prioritization, and that is left to the Government.44 Such budgetary
considerations were left irrelevant when the ISC considered a demand that a municipal-
ity shoulder the costs of transferring a child who suffered severe social problems in her
original school.45 The ISC relied on the constitutional right to education that should be
supplied free of charge, including in cases where particular solutions are necessary.
A pattern emerges: when a general social problem is laid down for the court, budget-
ary concerns are raised. When a very similar social issue (eg integration of children into
schools) is broken down – the court is much more receptive. As Tushnet’s summary of
Irish cases reveals, the same pattern is observed in other countries.46
IV. APPLICABILITY AND SPILLOVER EFFECTS
This argument suggests that, because of their budgetary implications, SW rights simply
cannot be enforced. It would seem surprising to find a court stating such a rationale
explicitly and, indeed, no such sentiment appears in ISC (or other court’s) judgments
that I am aware of. However, the centrality of this argument as a wedge to distinguish
HCJ 7081/93 Botzer v Municipal Council of Maccabim-Reut 50(1) PD 19 [1996] (in Hebrew).
38
ibid para 27.

39
40
HCJ 1554/95 Shoharei Gilat Society v Minister of Education 50(3) PD 2 [1996] (in Hebrew).
41
ibid para 41.
42
HCJ 5597/07 Alut – The National Association for Children with Autism v Minister of Education (21
August 2007), Nevo Legal Database (by subscription) (in Hebrew).
43
ibid para 4.
44
ibid para 6.
45
HCJ 7374/01 John Does v Director of the Ministry of Education (10 September 2003), Nevo Legal
46
Tushnet, ‘Social Welfare Rights’ (n 3) 1899–1900.
340 Amir Paz-Fuchs
CP from SW rights in academic writings,47 and its strong relation to budgetary concerns,
merits some discussion here.
Frank Cross explains that courts ‘avoid involving themselves in matters fundamental
to the enforcement of positive rights’.48 The argument is very similar to that of Maurice
Cranston’s, almost 50 years ago.49 Though they do not state the argument explicitly in
these terms, it can be understood from the thrust of Cranston’s and Cross’s argument,
that the recognition of one type of right (social or economic) to which one cannot give
effect may lead to a derogation of the status of rights in general and to the state’s com-
mitment to the protection of rights.
Cass Sunstein articulated this concern, stating that
[i]f positive rights are not enforceable, the constitution itself may seem like a mere piece of
paper; there could be adverse consequences for other rights as well . . . the existence of unen-
forceable rights will in turn tend to destroy the negative rights – freedom of speech, freedom of
religion, and so forth – that might otherwise be genuine ones. If some rights are shown to be
unenforceable, it is likely that other rights will be unenforceable as well.50
But this worry seems to rest on the fallacious assumption that if a right is recognised,
it should always trump other interests. However, there is no reason to assume that advo-
cates of the right assume that it is an absolute one, or that the state is under a duty to
invest all its resources in one right or another. As Joseph Raz notes, the tendency to
portray support for certain rights as espousing a position in favour of absolute rights
amounts to a ‘simple mistake’ which is more common than what would be expected:
The fact that a given right can be overridden by moral considerations, just like the fact that it
can be overridden by another legal right, shows nothing except that it is not an absolute right
which defeats all contrary considerations.51
Of course, if a full realization of the right to health and education would require that
everyone be able to enjoy free comprehensive health services on demand and free educa-
tion to her heart’s content, it may well be that no country will ever have the financial
capabilities necessary to hold up to such a standard. This does not imply, however, that
within the domestic legal system these rights carry no weight, and surely does not
demand the conclusion that they are not rights at all. Despite attempts to dismiss rights
that correspond to ‘imperfect obligations’ (used here to refer to obligations that cannot
be addressed in full),52 the feasibility of enforcement of rights is not a criterion (or at
least not an overwhelming criterion) when dealing with the question of recognition of
rights. Since rights cost money, the decision to realise civil and political rights by polic-
ing political demonstrations that people find offensive, for example, may divert funds
47
See, eg Y Dotan, ‘The Supreme Court as Defender of Social Rights’ in Y Rabin and Y Shani (eds),
Economic, Social and Cultural Rights in Israel (Tel-Aviv, Ramot, 2004) 69, 88–97.
48
Cross, ‘The Error of Positive Rights’ (2001) (n 13) 889, 904–05.
49
M Cranston, ‘Human Rights, Real and Supposed’ in DD Raphael (ed), Political Theory and the Rights of
Man (Indiana, Indiana University Press, 1967) 50.
50
C Sunstein, ‘Against Positive Rights’ in A Sajo (ed), Western Rights, Postcommunist Application (Hogue,
Kluwer Law International, 1996) 225, 229. For a similar argument, see LW Sumner, The Moral Foundations of
Rights (Oxford, Clarendon Press, 1989) 15; R Epstein, ‘Classical Liberalism Meets the New Constitutional
Order: A Comment on Mark Tushnet’ (2002) 3 Chicago Journal of International Law 455, 464.
51
J Raz, ‘Legal Rights’ (1984) 4 OJLS 1, 19; Holmes and Sunstein also acknowledge this truism (n 10) 97.
52
R Epstein, ‘The Uncertain Quest for Welfare Rights’ (1985) Brigham Young University Law Review 201,
204.
away from building hospitals. Such a decision, in other words, is a political and not a
conceptual one.53
V. THE FISCAL OBJECTION REVEALED AND DISCUSSED
In the discussion above, I briefly addressed each of the objections noted above in their
new, ‘fiscal’, dressing. However, as noted, all these arguments collapse, in their contem-
porary versions, into objections that have money at the centre of their interest.54
Further evidence that the arguments discussed are strongly linked to fiscal constraints
in contemporary discourse is revealed in the negative. In the (justifiably) celebrated
South African Treatment Action Campaign (TAC) case,55 the Constitutional Court
ordered the Government to distribute a drug, Nevirapine, that reduces the transmission
of HIV/AIDS from pregnant mothers to children. The interesting point, for present pur-
poses, is that the drug’s manufacturer was willing to supply as much as was needed at no
cost.
TAC presented a complex case that required proper professional and bureaucratic
expertise, where it could be expected that bona fide questions of competence could be
raised. This matter was indeed acknowledged by the South African Constitutional
Court.56 And yet, instead of deferring to the Government’s discretion, the Constitutional
Court addressed and dismissed the relevant arguments (efficacy, safety, biomedical
resistance, cultural reservations to bottle feeding, absence of clean water) one by one.57
Similarly, the Constitutional Court rejected the Government’s position that it is not in a
position to distribute the drug across the country as ‘not relevant to the question’ at
hand.58 The reason for such an outright rejection of the Government’s arguments in such
a complex case seems clear. Where the fiscal impact of compliance is small, the norma-
tive objections seem to wither away.59 What made the decision ‘a relatively easy one for
the Court’, argues Denis Davis, was the lack of ‘any sustainable argument concerning
distributional questions’.60 Indeed, when the ISC discussed a parallel case, the ISC distin-
guished the matter from TAC by noting (and emphasizing) that, in the latter case, ‘the
drug was distributed free of charge’.61
It makes sense, therefore, to focus on the argument that the fact that enforcement of
SW rights requires public funds is, in and of itself, sufficient to bar them from judicial
enforcement.
The surprisingly trivial refutation of this argument is that while SW rights do indeed
require funds, they are not unique in doing so.62 However, where CP rights (including
R Dworkin, Sovereign Virtue (London, Harvard University Press, 2000) 137.

53
J Kuthari, ‘Social Rights Litigation in India’ in Barak-Erez and Gross, Exploring Social Rights (n 5) 171,
54
174.
55
Minister of Health v Treatment Action Campaign 2002 (10) BCLR 1075 (CC) (S Afr).
56
ibid para 38.
57
ibid paras 56–64.
58
ibid paras 65–66.
59
See also, Tushnet, Weak Courts, Strong Rights (n 5) 247.
60
D Davis, ‘Socio-Economic Rights: The Promise and Limitations: The South African Experience’ in Barak-
Erez and Gross, Exploring Social Rights (n 5) 193, 199.
61
HCJ 3071/05 Louzon v Government of Israel (28 July 2008), Nevo Legal Database (by subscription) para
12 (in Hebrew).
62
See, eg Michelman, ‘The Constitution’ (n 6) 24; Davidov (n 11) 354–55.
342 Amir Paz-Fuchs
equality) are concerned, the courts are quite impatient with such arguments. Thus, the
Canadian Supreme Court accepted a claim that a benefit policy was discriminatory, and
was undeterred by the fiscal implications, noting that ‘any remedy granted by a court
will have some budgetary repercussions whether it be a saving of money or an expendi-
ture of money’.63 And in Singh,64 the same Court rejected the Government’s position that
refugees can be denied an oral hearing because of the unreasonable budgetary burden
that granting such a right would entail.65 Similarly, the South African Constitutional
Court ruled that prisoners may not be denied the right to vote, even though granting
them such rights may have serious logistic and financial implications.66
In Israel, the Supreme Court stated that it is ‘natural’ that implementing equality (in
this case – to women in the air force) would have financial consequences.67 In fact, where
equality is concerned, the ISC repeated the simple statement that ‘human rights cost
money’ on several occasions: when accepting the charge that forcing airline cabin atten-
dants to retire at 60 constitutes age discrimination;68 when accepting the claim that dif-
ferent early retirement arrangements for men and women cannot be justified by
budgetary concerns;69 when stating that such concerns cannot justify discrimination
between groups entitled to benefits and subsidies;70 when ordering a deeper drill for a
pipe line to avoid harming graves, at the cost of 500,000 NIS (New Israeli Shekel);71 and
when striking down a law that permits holding accused soldiers for extensive periods
before seeing a judge.72
As trivial as this seems, a testament to the power of the original argument discussed in
this part is the fact that two prominent constitutional scholars, Stephen Holmes and Cass
Sunstein, dedicated a book to refuting it. The main argument in The Cost of Rights73 is
clearly stated in the introduction:
To the obvious truth that rights depend on government must be added a logical corollary, one
rich with implications: rights cost money . . . The right to freedom of contract has public costs
no less than the right to health care, the right to freedom of speech no less than the right to
decent housing. All rights make claims upon the public treasury.74
Contemporary antagonists of SW rights have understood the force of this reply, and
have revised their position, arguing that the distinction between SW rights and tradi-
63
Schachter v Canada [1992] 2 SCR 679, 709 (Can).
64
Singh v Minister of Employment and Immigration [1985] 1 SCR 177 (Can).
65
ibid para 70.
66
Minister of Home Affairs v NICRO 2004 (5) BCLR 445 (CC) para 48 (S Afr) (‘Resources cannot be
ignored in assessing whether reasonable arrangements have been made for enabling citizens to vote. There is a
difference, however, between a decision by Parliament or the Commission as to what is reasonable in that
regard and legislation that effectively disenfranchises a category of citizens’).
67
HCJ 4541/94 Miller v Minister of Defence 49(4) PD 94, 142 [1995] (in Hebrew).
68
HCJFH 4191/97 Recanat v National Labour Court 54(5) PD 330, 366 [2000] (in Hebrew).
69
HCJ 6845/00 Niv v National Labour Court 56(6) PD 663, 697 [2002] (in Hebrew) (‘we find it difficult to
understand how budgetary considerations could justify discrimination of women’).
70
HCJ 5496/97 Mardi v Minister of Agriculture 55(4) PD 540, 568 [2001] (in Hebrew) (even when the budget
for the relevant needs has been spent in its entirety, ‘remedying discrimination . . . might cost money . . . [and
there is] an obligation to find the way to pay the necessary sums’).
71
HCJ 4638/07 Al-Aktza Almobarak Company Ltd v Israel Electric Co (29 October 2007), Nevo Legal
72
HCJ 6055/95 Zemach v Minister of Defence 53(5) PD 241, 281 [1997] (in Hebrew) (‘defending human rights
often has costs’).
73
Holmes and Sunstein (n 10).
74
ibid 15.
tional, CP rights, is one of quantity, not quality. In other words, it is indeed true that
both ‘types’ cost money, but the degree of SW expenditure is of such a different magni-
tude that it demands a conceptually different treatment.75 This position, positively noted
by the ISC,76 suggests that, because SW rights require massive distributions of funds,
they raise questions of competence and democratic legitimacy in a way that minor
expenditures that result from decisions concerning CP rights do not. There are two dif-
ferent responses to this renewed version of the traditional argument. The first relates to
the above discussion, concerning the importance of the remedy sought when assessing
the legal challenge.77 The reason that the remedy comes to the fore is that, since almost
all modern nations have in place governmental health care, education, subsistence sup-
port and similar programmes, demands that the court institute a new social programme
‘from scratch’ are extremely rare.78 Much more common – and potentially costly – are
demands that existing social policies should not discriminate against defined groups
(women, single parents, single sex couples, immigrants, etc). And yet, even those advanc-
ing the objection under review do not suggest that the courts should refrain from scruti-
nizing claims of discrimination, even against the background of SW policy.79
A second response to this objection takes it at face value: even if there is a clear way of
distinguishing CP claims from SW claims (as was made clear, at least equality blurs the
line), the argument relies on empirical evidence that is not offered. In fact, there may
well be evidence to the contrary. The Costs of Rights, in fact, includes an appendix
entitled ‘Some Numbers on Rights and Their Costs’,80 exemplifying the astounding cost
of CP rights enforcement in the US. For example, the Federal prison system costs $2.465
billion; the Federal court system costs almost $1.5 billion; the joint cost of animal and
plan inspection and food and safety inspection is close to $1 billion; Defence Department
obligations exceed $20 billion; environmental protection (clear air, hazardous waste,
natural resources, and water quality) costs over $1.3 billion; and Census Bureau activi-
ties, government publications, postal services and national archives cost over $500
million.
In Israel, several cases can be noted to make the same point. While finding that the
‘Gaza Disengagement plan’ is constitutional, the ISC struck down four compensation
mechanisms to (former) settlers in the region.81 A senior Ministry of Finance official esti-
mated the cost of the judgment at 500 million NIS, raising the total cost to 7.5 billion NIS,82
while a subsequent report issued by the Knesset (Israeli Parliament) Research and
Information Center assessed the cost of the judgment at 10.8 billion NIS (about $3 billion).83
Following the Disengagement, the ISC did not hesitate ordering the Government to
75
Tushnet, ‘Social Welfare Rights’ (n 4) 1896; M Cohen-Eliya, ‘The Blues, the Reds, and the Judge in Between:
A Procedural Approach with Bites for Judicial Review on Social Rights’ (2009) 12 Law and Government 407,
410–15, 420–21 (in Hebrew).
76
77
Text to nn 33–37.
78
Schwartz, ‘Economic and Social Rights’ (n 4) 1238.
79
Cohen-Eliya (n 75) 429.
80
Holmes and Sunstein (n 10) 233–36.
81
HCJ 1661/05 Hof Aza Regional Council v Knesset 59(2) PD 481 [2005] (in Hebrew).
82
Z Klein, ‘Haber: The HCJ Judgment will increase the cost of the Disengagement Plan by 500 million
NIS’, Globes, Rishon-Lezion, 16 June 2005 (in Hebrew) www.globes.co.il/news/article.aspx?did=924114.
83
I Biton, ‘The Disengagement Plan from the Gaza Strip and Areas in Northern Samaria’ Knesset Research
and Information Center (31 January 2010) (in Hebrew), available at: www.knesset.gov.il/mmm/data/pdf/
m02539.pdf.
344 Amir Paz-Fuchs
complete the necessary defence for classrooms in the Gaza vicinity, despite warnings that
the costs would reach ‘hundreds of millions of NIS in the short run, and probably several
billion NIS in the long run’.84 The overall cost of the ISC’s orders to dismantle (and
re-erect) certain segments of the separation barrier85 is estimated at 1.5 billion NIS ($416
million).86 The ISC’s unprecedented decision to strike down a law that would authorise
the establishment of a private prison87 has been estimated to cost the tax payer up to 637
million NIS ($177 million).88
Another case merits particular mention, as it combines exceptional, clear financial
consequences with the Court’s refusal to give them any consideration. In addition, the
case manifests the Court’s complete disregard of the Government’s legitimate priorities
and rationales. In the case, Dan Area Revenue Service v Perry,89 the ISC denied an appeal
on the Tel-Aviv District Court’s decision, according to which child care should be recog-
nised as exemptions for tax purposes. The decision was made despite the Ministry of
Finance’s assertion that it would cost the public treasury over 3 billion NIS ($900 mil-
lion) per year.90 Where the tax interests of successful lawyers are concerned, it would
seem, fiscal concerns lose their appeal.
When SW claims appear before the Court, particularly in their ‘naked’ form which
highlights the fiscal aspect, the Court’s worst fears are met with an unmitigated reply. In
Manor91 and in Commitment to Peace92 claims were made that social benefit cuts (to old
age pensions and to subsistence benefits, respectively) infringe an impoverished individ-
ual’s ability to a life of dignity and undermine the right to social security.93 In light of the
above, the fact that the Court ruled against the claimants is not surprising.
The surprise, or disappointment, stems from ISC’s logic, which is a testament to its
complete deference to government fiscal policy. The Israeli constitutional method that
has developed over the past two decades involves a three-stage analysis.94 First, the court
assesses whether a constitutional right has been violated. If so, it continues to assess
whether the infringement is by law, proportionate to the benefit, and cannot be achieved
by less harmful means. The third stage involves a discussion of the constitutional rem-
edy, if necessary.
In the vast majority of cases, the court is very lenient insofar as the first stage is con-
cerned, and focuses its attention on the second stage. The court, in other words, is ready
to recognise an infringement of constitutional right even when it is patently clear that
the infringement is justified, and marginal when compared to the beneficial objective
84
HCJ 8397/06 Wasser v Minister of Defence 62(2) PD 198 [2007] para 8 (in Hebrew).
85
HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807 [2004] (in Hebrew); HCJ
7957/04 Mara’abe v Prime Minister of Israel 60(2) PD 477 [2005] (in Hebrew).
86
S Arieli and M Sfard, The Wall of Folly (Tel-Aviv, Yedi’ot Sfarim, 2008) 225.
87
Legal Database (by subscription) (in Hebrew).
88
B Arad, The Cost of Judicial Activism (Jerusalem, Jerusalem Center for Market Research, 2010).
89
CA 4243/08 Dan Area Revenue Service v Perry (30 April 2009), Nevo Legal Database (by subscription) (in
Hebrew).
90
H Kanna, ‘Tax claims worth billions are swamping the courts’, Calcalist, Tel-Aviv, 29 June 2009 (in Hebrew)
www.calcalist.co.il/local/articles/0,7340,L-3275640,00.html. The judgment was overturned by statute.
91
HCJ 5578/02 Manor v Minister of Finance 59(1) PD 729 [2004] (in Hebrew).
92
HCJ 366/03 Commitment to Peace and Social Justice Association v Minister of Finance 60(3) PD 464
[2005] (in Hebrew).
93
See Barak-Erez and Gross, ‘Social Citizenship’ (n 37) 250–52.
94
that the law in question achieves.95 The sizable majority of petitions are denied, there-
fore, only after the proportionality of the violation is assessed, along with a cost-benefit
analysis and an enquiry to see if the objective can be achieved at a lesser harm to the
right.
The ISC’s analysis in Manor and Commitment to Peace was quite different. Despite
the significant cut in benefits (in some cases – up to 30 per cent), the Court was unwilling
to rule that the laws in question infringed the constitutionally recognised (at least in
rhetoric) right to social security at all.96 We find, then, that while the Court expands its
understanding of the scope of CP rights and, consequently, the occasions where a viola-
tion is exhibited, its construction of SW rights is much more narrow, and its willingness
to acknowledge a violation – much more limited.
A very similar path was taken, in a series of cases, by the European Court of Human
Rights, which struck down claims for subsistence benefits at the preliminary stage. Even
though the claimant lacked any independent means of support, the Court ruled that the
claim is ‘manifestly ill-founded’ since it was not clear that there were no alternative sup-
port systems.97 Similarly, the Canadian Supreme Court rejected a claim to equalise gen-
eral assistance benefits to young adults (under 30), stating that there is no legal support
to the claim that a reduced benefit (one-third) constitutes a substantive constitutional
harm.98
Finally, an issue that posits the tension rights and money in their pure form has the
potential to occupy the courts time and time again in the future. The matter, which may
be termed colloquially as ‘chipping in’, concerns the conditioning of rights on payment.
Here again we find a very different judicial approach where CP and SW are assessed.
In the case of Fordyce County99 the US Supreme Court ruled that the Government
cannot charge the immediate users of freedom of speech, such as protesters in a public
park, for the expenses for speech related activities. And in a very similar Israeli case, the
ISC recognised the police’s power to subject a protest license to certain conditions that
are relevant to matters of public order, but ruled that ‘setting a price for the implementa-
tion of a right means violating the rights of those who cannot afford it’.100 But this senti-
ment is somewhat more attenuated when SW issues are concerned.
As emerges from Eva Brems’s portrayal of several copayment cases in Europe, the
courts are unwilling to allow even a preliminary judicial review of the position that sub-
stantial copayments violate the right to health and to equality.101 Similarly, in Israel, a
woman who required surgery so as not to lose her hearing was asked to pay 70 per cent
of the cost.102 Being a teacher and a single parent, she could not afford the ‘bill’, and
95
HCJ 9333/03 Kaniel v Government of Israel (16 May 2005), Nevo Legal Database (by subscription) (in
Hebrew) (any new tax infringes on the right to property); HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd
v Rosenzweig 60(1) PD 38 [2005] (in Hebrew) (law dictating a mandatory day of rest bears on the constitu-
tional right to freedom of occupation).
96
Commitment to Peace (n 92) para 20.
97
E Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in Barak-Erez
and Gross, Exploring Social Rights (n 5) 135, 155–56.
98
Gosselin v Quebec [2002] 4 SCR 429 (Can); P Macklem, ‘Social Rights in Canada’ in Barak-Erez and
Gross, Exploring Social Rights (n 5) 213, 237–38.
99
Fordyce County, Georgia v Nationalist Movement 505 US 123 (1992).
100
HCJ 2557/05 Majority Camp v Israel Police 62(1) PD 200 [2006] para 16 (in Hebrew).
101
Brems (n 97) 141.
102
HCJ 2974/06 Israeli v Committee for the Expansion of the Health Basket (11 June 2006), Nevo Legal
346 Amir Paz-Fuchs
challenged the onerous copayment requirement. In rhetoric that is strikingly different

from the one employed in the free speech cases, the ISC stated that when priorities are to
be set, the judiciary should defer its judgment to professional committees, such as the
one that deliberated the question in this case.103
In conclusion, it would be worthwhile to refer to Ruth Gavison’s suggestion that the
Court’s most marked deference to governmental priorities is visible in cases where ‘human
and social interaction’104 is necessary. Contrariwise, we find that such deference is actually
most notable in social policy cases where the budgetary requirements are pure and clear.
VI. HOW DID IT COME TO THIS? RIGHTS AS SOCIAL BARGAINS
The discussion to this point has shown how objections to SW rights, proven unsuccess-
ful on their own terms, have been transformed to fiscal arguments, and have been
remarkably triumphant in doing so. Moreover, as the preceding part has shown, this
resurgence has taken place despite the fact that arguments focused on budgetary matters
fail to distinguish convincingly between SW matters and traditional rights litigation.
I end this chapter with the suggestion that this specific transformation, and its success,
is not coincidental. In fact, the fiscal redressing of the arguments against SW rights is
part of a larger phenomenon, one that has deeper meanings and wider consequences.
Legal discourse is in the process of restructuring rights as ‘conditional’105 or, in the termi-
nology suggested by Sunstein and Holmes (importantly – in the closing sections of a
book arguing against fiscal objections to SW rights) – as ‘social bargains’. These are the
makings of ‘consumer-citizenship’,106 one that is ‘reconceived in terms of consumption
and participation in markets’.107 The importance of this trend has been noted: if the wel-
fare state was once understood to reflect ‘the subordination of market price to social
justice, the replacement of the free bargain by the declaration of rights’,108 it is now urged
that ‘that trajectory has been reversed’.109
What are the jurisprudential consequences of the central role that market discourse
has captured in policymaking? Borrowing a phrase from a different jurisprudential
debate, it may be suggested that the fiscal paradigm has the potential to lead to a situa-
tion whereby ‘rights become illusory’ since they would ‘extend only up to the point
where our actions ceased to make a net contribution to the collective project’.110
103
For a detailed discussion of the case and its aftermath see Barak-Erez and Gross, ‘Social Citizenship’
(n 37) 253–54; A Gross, ‘The Right to Health in an Era of Privatization and Globalization’ in Barak-Erez and
Gross, Exploring Social Rights (n 5) 289, 323.
104
R Gavison, ‘On the Relationship Between Civil and Political Rights and Social and Economic Rights’ in
JM Coicaud, MW Doyle and AM Gardner (eds), The Globalization of Human Rights (United Nations
University Press, 2003) 23, 37.
105
A Paz-Fuchs, Welfare to Work: Conditional Rights in Social Policy (Oxford, Oxford University Press)
53–64.
106
N Harris, ‘The Welfare State, Social Security and Social Citizenship Rights’ in N Harris (ed), Social
Security Law in Context (Oxford, Oxford University Press, 2000) 3, 27.
107
K Rittich, ‘Social Rights and Social Policy’ in Barak-Erez and Gross, Exploring Social Rights (n 5) 107,
111; similarly, JP Euben, ‘Walzer’s Obligation’ (1972) 1 Philosophy and Public Affairs 438, 444.
108
TH Marshall, ‘Citizenship and Social Class’ (1963) 115.
109
M Katz, The Price of Citizenship: Redefining the American Welfare State (Pennsylvania, University of
Pennsylvania, 2008) 1.
110
N Simmonds, ‘Rights at the Cutting Edge’ in M Kramer, N Simmonds and H Steiner (eds), A Debate
Over Rights:Philosophical Enquiries (Oxford, Clarendon Press, 1998) 113, 145.
Curiously, while the above quote was meant to criticise a dominant theory of rights,111
it is almost an exact translation of some ISC (and other court) pronouncements dealing
with SW rights. Thus, in Manor, the Court stated that the objective of ‘healing the mar-
ket’ is ‘important to preserve the social structure, which in turn protects human rights’.112
With respect to the rights of manpower workers, Court President Barak stated that ‘it is
worth harming human rights to preserve a social structure that protects human rights’.113
The relevance to our current discussion is made explicit by the fact that the ISC sup-
ported the above statement with a reference to another case – Kontram v Ministry of
Treasury114 – which, somewhat surprisingly, ‘is considered an important contribution to
the emergence of social rights in the [Israeli] Supreme Court’.115 The case involved an
administrative matter of licensing, quite unrelated to social rights. Zamir J does suggest
that ‘human rights are, indeed, of supreme importance’.116 But he continues:
But that is just one role [of the government] . . . In fulfilling our role, each of us must accept
a system of responsibilities, not only towards other individuals, but also towards society in
general . . . That is how I perceive the social contract.117
The quote is important, I believe, because the language placing ‘rights besides duties’;
‘no rights without responsibilities’;118 and rights as ‘social bargains’ or ‘community
assets’119 forms and informs the judicial manifestation of the social contract version that
is currently in vogue.120
In particular, positing rights against general welfare, and rights against social justice,
allows even those who express support for SW rights to subject them to general interest.
The following quote, from Court President Barak, is part of that particular agenda: ‘the
normative status and scope of the right to social security . . . is derived from the nature
of the economic and social regime that governs a certain society . . . It expresses the eco-
nomic strength of its market’.121 It would seem difficult to offer a better example to sup-
port Simmonds’ warning that rights may end up serving merely as place holders for
forms of protection, that are ‘balanced against countervailing considerations, so that the
protections that finally result are the outcome of this calculus of conflicting reasons’.122
The natural result, per Simmonds and others, is that ‘rights or the interests of the right-
holders would play no strategic role in moral and political affairs’.123 While this proposi-
tion seems somewhat extreme as a general assessment, it has merit insofar as SW rights
discourse in Israel (and elsewhere) is concerned.
111
I refer to the ‘interest theory of rights’. See, eg J Raz, Ethics in the Public Domain: Essays in the Morality
of Law and Politics (Oxford, Clarendon Press, 1995) 44–55.
112
Manor (n 107) 740. The passage was quoted approvingly in HCJ 4947/03 Be’er Sheva Municipality v
Government of Israel (10 May 2006), Nevo Legal Database (by subscription) para 11 (in Hebrew) (confirming
a law abolishing tax benefits to cities in the south of Israel).
113
HCJ 450/97 Tnufa v Minister of Labour and Welfare 52(2) PD 433, 441 [1998] (in Hebrew).
114
HCJ 164/97 Kontram v Ministry of Finance 52(1) PD 289 [1998] (in Hebrew).
115
Barak-Erez and Gross, ‘Social Citizenship’ (n 37) 247.
116
Kontram (n 114) 340.
117
ibid.
118
A Giddens, The Third Way and its Critics (Cambridge, Polity Press, 1998) 65–66; A Gewirth, The
Community of Rights (Chicago, University of Chicago Press, 1996) 42, 223, 231–35.
119
Holmes and Sunstein (n 10) 217.
120
See, eg Michelman, ‘The Constitution’ (n 6) 26–30.
121
HCJ 494/03 Physicians for Human Rights v Minister of Finance 59(3) PD 322, 333–34 [2004] (in Hebrew).
122
Simmonds (n 110) 160.
123
J Chan, ‘Raz on Liberal Rights and Common Goods’ (1995) 15 OJLS 15, 29.
348 Amir Paz-Fuchs
The important point here is the conceptual one. It is expressed in the ISC’s succinct
statement that, in some cases, ‘where there is no budget, there is no right’.124 It should be
made clear that the Court does not express the obvious truth that budgetary consider-
ations may limit the implementation of the right. Rather, it suggests that they are, as
Dennis Davis argues when discussing South African cases, ‘in effect . . . defined in terms
of availability of resources’.125 He refers to Chaskalson P’s conclusion, according to
which: ‘access to housing, health care, food, water and social security are dependent
upon the resources available for such purposes, and that the corresponding rights them-
selves are limited by reason of the lack of resources’.126
VII. CONCLUSION
Despite assertions to the contrary, objections to SW rights have not disappeared. In fact,
the current divide between SW rights and traditional, CP rights, seems wider than ever.
The explanation for this curious situation, this chapter argued, lies in the fact that while
the original objections were found unconvincing on their face, their contemporary ver-
sions capture the sign of the times: the market, consumer–citizenship paradigm. Costs,
budgets and economic criteria are naturally central to this paradigm and thus re-enforce
arguments that were on the verge of extinction. But history had a different idea in mind,
and not for the first time. Over 200 years ago, Jeremy Bentham wrote of the social con-
tract: ‘I was in hope . . . that this chimera had been effectively demolished by Mr Hume.
I think we hear not so much of it now as formerly’.127 So now, insofar as paradigms sup-
porting social policy are concerned, we hear of little else other than the social contract.
And as the previous part of this chapter hypothesised, this paradigm, along with its
derivatives, are playing a role in forming the new challenge for advocates of SW rights.
124
125
Davis (n 60) 197; also Gross (n 105) 316; D Davis, P Macklem and G Mundlak, ‘Social Rights, Social
Citizenship and Transformative Constitutionalism: A Comparative Assessment’ in J Conaghan, M Fischl and
K Klare (eds), Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford,
Oxford University Press, 2002) 511, 523–24.
126
Soobramoney v Minister of KwaZalu Natal 1997(12) BCLR 1696 (CC) 8, para 11.
127
J Bentham, ‘A Fragment on Government or a Comment on the Commentaries’ in JH Burns and
HLA Hart (eds), Collected Works of Jeremy Bentham (London, Athlone Press, 1977) 393, 439.
23
Constitutional Review of
‘Eligibility Conditions’ in
Social Rights Litigation
NETA ZIV
I. INTRODUCTION
I
N FEBRUARY 2012 the Israeli Supreme Court handed down a decision – Hassan v
National Insurance Institute1 – invalidating section 9A(b) of Israel’s Income
Supplement Law.2 It was the first time the Supreme Court had struck down a law due
to its infringement of a social right – in this case the right to human subsistence, derived
from the basic right to human dignity. The unconstitutional section defined an eligibility
condition for welfare as lack of ownership or regular use of a car. The Court decided
that the requirements within this condition constituted a violation of the basic right to
human subsistence, as they did not meet the proportionality ‘means–end’ test, required
from a law violating a basic human right. Judicial review of eligibility conditions, com-
mon to social rights legislation, is the focus of this chapter.
The broader context of this ruling was the constitutional standard for review of social
rights. Prior to the Hassan decision the state had argued that due to their positive nature
and their budgetary implications on social policy, judicial review of the scope and con-
tent of social rights ought to be performed primarily at the first stage of analysis, that is,
when we enquire whether a violation of a basic social right had occurred. It also asserted
that the burden of persuading that a violation had occurred – which lies upon the law’s
challengers – is heavy and could be met only if the norm under review bears no relation-
ship to the purpose of the legislation. In the Hassan case the state extended this argu-
ment to the review of eligibility conditions within social rights legislation.
However, the Court rejected this proposition, ruling that the burden imposed on chal-
lengers of a social right is not heavier than in cases of civil and political rights. Accordingly,
review of the eligibility conditions will be performed at the second stage of constitutional
analysis, following a determination that a social right had been infringed upon.
1
HCJ 10662/04, 3282/05, 7804/05 Hassan v National Insurance Institute (28 February 2012), Nevo Legal
Database (by subscription) (in Hebrew). The author took part in this litigation and represented petitioners in
one of the cases, HCJ 3282/05 Merav Bin-Nun and others. Part of the documents upon which analysis in this
chapter is conducted was obtained by the author during the course of representation.
2
Income Supplement Law, 5741-1980 (hereinafter: Income Supplement Law). S 9A added to this law in:
Income Supplement Law (Amendment No 15), 5761-2001, SH No 1772, p 122.
350 Neta Ziv
The goal of this chapter is to demarcate the boundaries of this ruling by analyzing the
nature of eligibility conditions within social rights legislation and to assess its potential
impact on constitutional protection of social rights. Part II reviews the connection
between social rights and eligibility conditions from three perspectives: social policy and
theory, human rights and constitutionality. Part III distinguishes between substantive eli-
gibility conditions and verification methods and then discusses two other types of condi-
tions: citizenship and residency requirements, and discriminatory conditions. Although
they too impose qualifications that limit entitlement, I differentiate between them and
direct eligibility conditions, which are analyzed in the remaining part of this chapter. Part
IV describes the development of judicial review of social rights in Israel and part V focuses
on judicial review of eligibility conditions, by analyzing the Hassan case. I conclude by
assessing the impact of this decision on future constitutional litigation of social rights.
II. SOCIAL RIGHTS AND ELIGIBILITY CONDITIONS
The literature discussing social rights as human rights attempts to delineate their unique-
ness and underscore the commonalities between social-economic rights and civil and
political rights.3 Despite the growing recognition of the inalienability of all human
rights, there are characteristics that epitomise social rights. Rabin and Shani emphasise
the elements typifying most social rights as being:4 (a) dominant positive characteristics
– social rights often involve considerable obligations of public provision, which may
entail significant costs;5 (b) non-affluent constituency: social rights recipients are often
less well-off individuals who cannot obtain these resources otherwise;6 (c) historical con-
text – social rights have developed within the context of the welfare state.7
Notwithstanding the recognition of social rights as human rights, entitlement to social
resources is oftentimes selective, rather than universal. By universal I mean the right of
every person – without individual determination of particular circumstances – to obtain
certain resources. Such as, for example, the right to education and the right to receive
emergency medical services in most countries, including Israel.8 In Israel child allow-
ances and old age allowances are also universal, and do not require means testing or
other eligibility conditions.9
3
On the nature of social rights as human rights and their constitutionality, see D Barak-Erez and A Gross,
‘Introduction: Do We Need Social Rights? Questions in the Era of Globalization, Privatization, and the
Diminished Welfare State’ in D Barak-Erez and A Gross (eds), Exploring Social Rights: Between Theory and
Practice (Oxford, Hart Publishing, 2007) 1.
4
Y Rabin and Y Shani, ‘The Case for Judicial Review over Social Rights: Israeli Perspectives’ (2008) 4 Israeli
Affairs 681.
5
Obviously this distinction is not accurate as many civil and political rights are costly in their implementa-
tion. On this point, see S Holmes and CR Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New
York, WW Norton, 1999) 35, 39, 44–48.
6
See generally, D Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-
Economic Rights (Oxford, Oxford University Press, 2007).
7
See also, J Tweedy and A Hunt, ‘The Future of the Welfare State and Social Rights: Reflections on
Habermas’ (1994) 21 Journal of Law and Society 288, 288–90.
8
Mandatory Education Law, 5709-1949, ss 1–2. See also, Charter of Fundamental Rights of the European
Union (18 December 2000) [2000] OJ C364/1, Art 31(1): ‘Every worker has the right to working conditions
which respect his or her health, safety and dignity’.
9
AC Lewin and H Stier, ‘Who Benefits the Most? The Unequal Allocation of Transfers in the Israeli Welfare
State’ (2002) 83 Social Science Quarterly 488.
‘Eligibility Conditions’ in Social Rights Litigation 351
Indeed, states can fulfill social rights obligations in more than one way. Legislation
may spell out particular conditions one must meet to become eligible for ‘social rights’ in
the sense of direct public provision.10 For example, a statute may determine that welfare
entitlement is conditional upon the recipient’s acceptance of work offered to her by the
state; regulation may condition public housing assistance upon the recipient never having
owned a dwelling; a law may state that a welfare recipient using a car is not eligible for
public assistance. In cases of this sort entitlement is not universal; one needs to meet cer-
tain criteria to become eligible for public provision. Even countries that have a strong
universal system may impose eligibility criteria in the form of means testing in some
contexts.11 This type of conditioning is rarely found in civil and political rights; their
application is for the most part universal and not conditional. As will be discussed below,
this difference between the two types of rights bears upon their constitutional analysis.
My concern is when these kinds of qualifications appear problematic: what if the job
offered to the welfare recipient stands in contrast to her religious beliefs? What if the
person with no housing resources had lost his home due to a natural disaster? What if
the vehicle is lent to the welfare recipient by a family member so she can take her child to
school? How should we assess the legitimacy of such requirements?
Eligibility conditions of this sort can be discussed from different angles. In the follow-
ing sections I will briefly address the topic from the perspectives of social theory and
public policy, human rights and constitutionality.
A. Social Policy
As a matter of public social policy states may choose to implement a universal

social system, in all, or some areas of life such as welfare, employment, education or
health. Accordingly, each person would be entitled to receive benefits regardless of her
personal behaviour, condition or means. But many countries, including Israel, prefer
selective arrangements in some contexts, and institute entitlement upon fulfilling certain
conditions.
Eligibility conditions are geared to ensure resources are allocated in accordance with
the rationale underlying provision. Hence if the public purpose is to ascertain that the
neediest will receive resources, means testing will be applied;12 if it is to encourage par-
ticipation in the workforce, behavioural requirements such as work-oriented activities
(‘workfare’) will be established;13 if the goal is to prevent waste of a scarce resource
10
W Korpi and J Palme, ‘The Paradox of Redistribution and Strategies of Equality: Welfare State
Institutions, Inequality, and Poverty in the Western Countries’ (1998) 63 American Sociological Review 661.
The authors studied different systems adopted by capitalist democracies and their distributive affects. Their
claim is that particular institutional factors – rather than meta-approach to social welfare – are extremely sig-
nificant in leading to different distributive outcomes.
11
A Doron and J Gal, ‘The Israeli Income Support Program in a Comparative Perspective’ (2000) 58 Social
Security 5, 6–7 (in Hebrew).
12
Since one of the justifications for economic and social human rights is human need, it is arguable that
need ought to be individually determined: FI Michelman, ‘Foreword: On Protecting the Poor Through the
Fourteenth Amendment’ (1969) 83 Harvard Law Review 7.
13
On the workfare globally, see J Peck, ‘Workfare: A Geopolitical Etymology’ (1998) 16 Environment and
Planning Society and Space 133; on the Israeli experience, see A Beinisch, ‘Contracting Out from the Perspective
of Public Law: Privatized “Welfare to Work” and the Limits of Regulations and Oversight’ (2008) 38 Mishpatim
283.
352 Neta Ziv
(water, for example) cap usage may be imposed;14 if it is to enable young children to
enjoy parental care, parents to young children will be exempt from work requirement,
etc.
The most common eligibility conditions are ‘targeted programmes’, directed at the
poor, distinguishing between those in most need and those in less need.15 Such pro-
grammes are the least interventionist in market distribution, as they are geared towards
reducing poverty rather than narrowing inequality.16 Korpi and Palme have acknow
ledged, that although ‘support for targeting [social programmes] has decreased among
social scientists, it has increased among policymakers’. They are also supported by inter-
national institutions such as the International Monetary Fund and the World Bank.17
I assume that in various circumstances imposing eligibility conditions – in principle – is
appropriate while in others it becomes more problematic. However, the appropriateness
of eligibility conditions in principle does not release us from examining the legitimacy of
particular conditions.
B. Human Rights Theory and Doctrine
Notwithstanding controversies between policymakers (and academics) about the effec-

tiveness of a universal versus selective social system, imposing eligibility criteria for
social assistance raises questions regarding the theoretical basis underlying social rights
as human rights, in terms of their universality. Human rights – both social rights and
civil rights – are universal in the sense that every person is entitled to their respect, pro-
tection and fulfillment.18 How can we reconcile universal entitlement with a selective
system of eligibility?
The answer is based on the distinction between two understandings of social rights:
the first views them as the unconditional right to receive a resource; the second as the
unconditional right of reasonable access to a resource.19 According to White, both
notions can serve as a theoretical basis for social rights:
The notion of a social right can quite intelligibly be understood in the second way as well as in
the first: as an unconditional right of reasonable access to a given resource, rather than as a
right to be given this same resource unconditionally.20
14
See, eg the South African case City of Johannesburg v Mazibuko 2009 (8) BCLR 791 (SCA) (S Afr). In this
case the South African Constitutional Court reviewed the legality of a city policy under which usage over a
certain quantity of water resulted in a water cut-off.
15
On the targeted model as one social policy model, see Korpi and Palme (n 10) 667–69.
16
According to Esping-Andersen’s model these programmes represent more strongly the conservative state.
G Esping-Andersen, The Three Worlds of Welfare Capitalism (Princeton, Princeton University Press, 1990). These
programmes also correspond with a ‘minimum welfare state’ model (in contrast to a regulatory or distributive
welfare state). On this point, see H Kliemt, ‘On Justifying a Minimum Welfare State’ (1993) 4 Constitutional
Political Economy 159.
17
Korpi and Palme (n 10) 663.
18
M Green, ‘What We Talk About When We Talk About Indicators? Current Approaches to Human Rights
Measurement’ (2001) 23 Human Rights Quarterly 1062, 1071; TH Marshall, ‘Citizenship and Social Class’ in
Marshall (ed), Citizenship and Social Class (Cambridge, Cambridge University Press, 1950) 148; JW Nickel,
‘How Human Rights Generate Duties to Protect and Provide’ (1993) 15 Human Rights Quarterly 77.
19
S White, ‘Review Article: Social Rights and the Social Contract – Political Theory and the New Welfare
Politics’ (2000) 30 British Journal of Political Science 507.
20
ibid 510.
White grounds his claim in social contract theory, in particular TH Marshall’s

approach, under which the state has a duty to ensure that citizens have reasonable access
to certain vital resources.21 However, he explains, ‘a right of reasonable access to a
decent minimum of income does not necessarily have to take the form of a universal
right to be given a minimum income unconditionally’.22 Accordingly, since a person with
adequate personal wealth has reasonable access to subsistence, conditioning provision
with need does not violate one’s human rights.
Considering social rights in this manner, ‘reasonable access’ is an internal qualifica-
tion within the right, in the sense that we cannot define the right to provision without
identifying the criteria and conditions for entitlement. Thus eligibility conditions of this
sort are not external factors to any ‘pre-existing right’; rather they are components of
the right, delineating its scope and range.
‘Reasonable access’ is also closely related to the public purpose underlying the social
arrangement. In order to determine whether a particular eligibility condition meets the
reasonable access rationale, reasonableness has to be ‘broken down’ into its compo-
nents. These include: (a) defining the purpose of the selective arrangement (fulfillment of
basic needs, distributive justice, participation in the workforce, etc); (b) applying a
means–end test, that is, enquiring whether the restrictive condition indeed furthers the
purpose, whether it is proportionate in terms of costs versus benefit, etc.
From a positivistic perspective, international human rights law recognises states’ lee-
way to impose conditions upon social provision. General Comment 19 of the Committee
on Economic, Social and Cultural Rights on the right to social security, for example,
states that ‘qualifying conditions for benefits must be reasonable, proportionate and
transparent’.23 The comment continues to clarify that
States parties are also obliged to provide the right to social security when individuals or a
group are unable, on grounds reasonably considered to be beyond their control, to realise that
right themselves, within the existing social security system with the means at their disposal
(emphasis added).24
In other words, under the Covenant States may condition provision on individual
determination of eligibility, as long as these conditions meet certain criteria: reasonable-
ness, proportionality, transparency, and when individuals do not have the means to pro-
vide for themselves.
C. Constitutionality
The constitutionality of eligibility conditions entails a different analytical enquiry than the
one made from the perspective of social policy and human rights. It is accepted that states
may adopt a selective system as appropriate social policy, and that they can fulfill their
international human rights obligations by instituting selective social rights arrangements.
However, constitutional analysis provides a framework to review particular conditions in
terms of their adherence to the duty to protect a human right.
Marshall (n 18).
21
White (n 19) 511.

22
23
UN Committee on Economic, Social and Cultural Rights, General Comment No 19: The Right to Social
Security (Art 9 of the Covenant) (4 February 2008) UN Doc E/C12/GC/19, Art 24.
24
ibid Art 50.
354 Neta Ziv
What are the constitutional implications of the discussion above? In statutes that incor-
porate eligibility conditions, entitlement is not born – that is, the right does not come into
existence – until the designated criterion is met. It seems that from a jurisprudential per-
spective, once a selective mechanism has been put in place, all its elements – including
substantive eligibility conditions – constitute and form an inherent part of the (social)
right. In this sense, eligibility conditions are not ‘external prerequisites’ which lay outside
the scope of full constitutional review. Rather, constitutional oversight of an eligibility
condition is embedded in the process of judicial review of a law’s constitutionality.
Constitutional judicial review (in Israeli law as well as other jurisdictions) often
includes two stages.25 First a court must determine if a violation of a constitutional right
has occurred, that is, that a constitutionally protected interest has been infringed. The
burden of proof at this stage lies upon the party challenging constitutionality.26 At the
second stage, conducted under the Limitation Clause,27 we examine if the restriction of a
right is justified. First, we examine whether the limitation furthers a proper purpose, and
if so, we continue to enquire if it meets the three-tiered proportionality test: (a) the vio-
lating measure bears a rational relationship to the purpose; (b) the purpose underlying
the statute could not be achieved using measures that infringe less upon the right (the
least restrictive requirement); and (c) overall the benefits of the violation outweigh its
disadvantages.28 At this second stage the burden of proof to show that these require-
ments are met lays upon the party that asks to uphold the challenged arrangement.29
Where do eligibility conditions ‘fit’ within this constitutional analysis? At what stage
should we examine their adherence to constitutional standards? To what extent does
constitutional review of eligibility conditions differ from review of other qualifying con-
ditions for provision? These questions lay at the heart of the Hassan case. In order to
examine them, the next part maps out various schemes for qualifying resource alloca-
tion, and differentiates them from direct eligibility conditions – the main topic of this
chapter.
III. TYPES OF QUALIFYING CONDITIONS
A. Substantive Eligibility Conditions versus Verification Methods
Eligibility conditions differ from methods for verifying entitlement for social provision
or for revoking it. Oftentimes statutes include obligations imposed upon recipients as a
25
On the stages of constitutional review in Israeli law see, eg CA 6821/93 United Mizrahi Bank Ltd v Migdal
Cooperative Village 49(4) PD 221 [1995] (in Hebrew); HCJ 6055/95 Zemach v Minister of Defence 53(5) PD
241 [1999] (in Hebrew); HCJ 6427/02 Movement for Quality Government v Knesset 61(1) PD 619 [2006] (in
Hebrew).
26
See, eg HCJ 366/03 Commitment to Peace and Social Justice Association v Minister of Finance 60(3) PD
464 [2005] para 19 of Court President Barak’s opinion (in Hebrew).
27
The Limitation Clause in Basic Law: Human Dignity and Liberty states: ‘8. There shall be no violation of
rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper pur-
pose, and to an extent no greater than is required’, and in Basic Law: Freedom of Occupation: ‘4. There shall
be no violation of freedom of occupation except by a law befitting the values of the State of Israel, enacted for
a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express
authorization in such law’.
28
HCJ 2887/04 Abu-Medigam v Israel Land Administration 62 (2) PD 57 [2007] para 36 of Justice Joubran’s
opinion (in Hebrew).
29
United Mizrahi Bank (n 25).
condition for entitlement, however these are means employed by the state agency to
verify substantive requirements. Such methods may include the duty to consent to
entrance into one’s home to enquire about its inhabitants; reporting obligations imposed
upon recipients to obtain information about income or family relationships; surveil-
lance, inspections and other measures to acquire data about social assistance recipients.
Numerous cases relating to social assistance in the United States have fallen under this
category: the legitimacy of ‘midnight raids’ into welfare recipients’ homes,30 summary
termination of allowance without a hearing,31 entering one’s home to obtain data about
its inhabitants, etc.32 Some of these measures were annulled by the US Supreme Court as
violating due process or privacy rights.33 Similarly, the Israeli Supreme Court has
reviewed the legality of summary welfare repeal without a hearing and the petition led
to the establishment of pre-termination hearings in most circumstances of welfare
annulment.34
Verification measures of this sort relate to social rights entitlement, but are not the
focus of this chapter. They often involve infringements of the right to privacy, due pro-
cess, liberty and equality.35 Therefore, they are subject to heightened judicial review.
Oftentimes they entail administrative or statutory interpretation rather than constitu-
tional judicial review.
Administrative verification methods of this sort should not be conflated with eligibil-
ity conditions that constitute ‘signals’ for other requirements. The ‘man in the house
rule’ – under which welfare entitlement of single mothers was terminated upon evidence
of male presence – is a condition of this sort. The rule, implemented by state agencies
until invalidated by the US Supreme Court,36 is still utilised (in some form) by Israeli
welfare agencies.37 Underlying this measure is a presumption that the presence of a man
in one’s home indicates monetary contribution to the family and thus ‘stands for’ unre-
ported income. Similarly, a rule that disentitles recipients from social allowance if they
stay outside the country for more than a designated number of days,38 or own or use a
car (as in the Hassan case), treats these conditions as markers of another factor, usually
the availability of (concealed) means. For the purpose of this chapter I consider such
conditions as substantive eligibility requirements; they will thus be addressed in part IV,
and I argue for a strict standard of review of their constitutionality.
30
See CA Reich, ‘Midnight Welfare Searches and the Social Security Act’ (1963) 72 Yale Law Journal 1347.
Night raids were abolished by the Federal Court in Parrish v Civil Service Commission 66 Cal 2d 260 (1967).
31
Goldberg v Kelly 397 US 254 (1970).
32
Wyman v James 400 US 309 (1971).
33
In general, see W Forbath, ‘Constitutional Welfare Rights: A History, Critique, and Reconstruction’
(2001) 69 Fordham Law Review 1821.
34
HCJ 1512/04 Hanuka v National Insurance Institute (10 April 2005), Nevo Legal Database (by subscrip-
tion) (in Hebrew). Based on the settlement agreed upon by the parties the Court dismissed the petition on 10
April 2005.
35
PL Morgan, ‘Public Assistance for the Price of Privacy: Leaving the Door Open on Welfare Home
Searches’ (2009) 40 McGeorge Law Review 227, 230–39. In the US advocates had attempted to claim they
infringed the right to property: see generally, M Davis, Brutal Need: Lawyers and the Welfare Rights Movement
1960–73 (New Haven, Yale University Press, 1993) 81–89, 104–07.
36
King v Smith 392 US 309 (1968).
37
The definition of ‘partner’ or ‘spouse’ for welfare purposes had changed over time to include not only
married couples but also those in some form of cohabitance. On this point, see E Albin, ‘Income Security
Benefits for the Alternative Families – the Case of Polygamous Families in Studies in Law, Gender and Feminism’
in D Barak-Erez et al (eds), Studies in Law, Gender and Feminism (Srigim, Nevo, 2007) 617 (in Hebrew).
38
Income Supplementary Law, s 14A.
356 Neta Ziv
B. Social Citizenship
States often condition social rights eligibility on a requirement that a person maintains a
particular association with the country – citizenship or some form of residency. Since
state obligations pertain to people within their boundaries, and welfare being ‘closed
systems’ – in the sense that the rights provided to some impact the rights of others – in
principle such requirements seem sensible.39 More so, in an era of mass migration and
open borders, policies relating to ‘social citizenship’ have become prominent topics of
debate within destination countries favoured by migrant workers, refugees and other
immigrants.40
Alongside the question of the appropriate policy in regards to ‘social citizenship’, in a
number of countries the constitutionality of citizenship or residency requirements was
adjudicated. The legal issue was whether conditioning eligibility for social rights upon
residency or citizenship violated the basic right at stake. In Israel it was the right to
social security; in South Africa the right to income support; in Germany the right to
unemployment benefits. I will discuss these cases focusing on the constitutional standard
of review for these conditions.
i. Israel
In 2003 an amendment to Israel’s National Insurance Law changed the definition of ‘res-
idency’ for temporary residents (non-citizens) that hold certain visa types, restricting
these groups’ entitlement to social security and national health insurance.41 Prior to the
amendment the state had determined residency status according to a person’s individual
circumstances and her actual association with the country (length of stay, centre of life,
family attachments, etc). The amendment created a categorical exclusion, based solely
on the formal visa type of the person.
In Physicians for Human Rights v Minister of Finance42 the constitutionality of this
amendment was challenged. Petitioners argued that the new law infringed the basic right
to equality, to social security and to health, all recognised within the right to human
dignity. They challenged the categorical, rather than the individual, exclusion of eligibil-
ity based on a formal visa status rather than on substantive personal determinates. The
state responded that entitlement for social rights can be conditioned upon a determina-
tion of some ‘attachment’ to the state. Since de facto visa status is a strong indicator for
such attachment, the categorization is legitimate. In addition, the state claimed that the
disentitlement exclusion does include emergency medical treatment, certain maternity
benefits and work accident insurance, the most pertinent of social rights.
39
In the words of Freeman ‘the preservation of the advantage of the welfare state entails limited access to
their benefits’ (GP Freeman, ‘Migration and the Political Economy of the Welfare State’ (1986) 485 Annals of
the American Academy of Political and Social Science 51, 52).
40
See, eg T Faist, ‘Boundaries of Welfare States, Immigrants and Social Rights on the National and
Supranational Level’ in R Miles and D Thranhardt (eds), Migration and European Integration: The Dynamics
of Inclusion and Exclusion (New Jersey, Fairleigh Dickinson University Press, 1995) 177, 179–80.
41
The amendment was enacted as part of the Arrangements Law (Legislative Amendments for Achieving the
Budget Goals and the Economic Policy for the 2003 Fiscal Year), 5763-2002, ss 17(2)(a)(1), 17(2)(c), 17(3)(a),
17(11), 17(13). These benefits included, inter alia, income support, unemployment benefits, maternity benefits,
old age benefits and health insurance.
42
HCJ 494/03 Physicians for Human Rights v Minister of Finance 59(3) PD 322.
The Court rejected the petition and affirmed the constitutionality of the Law, stating
that a requirement for an attachment or affinity with the state is a reasonable condition
for ‘social citizenship’, and that there exists a typical correlation between one’s visa type
and the kind of linkage she maintains to the state. In the words of the Court ‘whoever
holds a temporary visa, for the purpose of a visit, work, etc, would typically not retain a
significant and ongoing affinity to the country’.43
As to the constitutionality of the social residence requirements, the Court enquired
into the ‘relevancy’ of the condition (visa type) to the purpose of the legislation (ascer-
taining affinity and affiliation with the state), and was satisfied with a showing of a gen-
eral correlation between a visa type and one’s substantive connection to the country.
This means–ends test does not impose a heavy burden upon the state and is relatively
easy to meet. It is similar to the ‘rational basis’ standard of review in the US constitu-
tional jurisprudence. All the state has to demonstrate is that the condition is not arbi-
trary and that there is some correlation between the eligibility condition and the law’s
purpose. A more stringent test would be troubled by instances in which individuals with
strong and long-lasting connections to the country – though still holding temporary
visas – would not be entitled to social security and health insurance. It would ask the
state to present detailed information about the number of such cases, to demonstrate
that determination of individual entitlement would impose real hardship (not just incon-
venience) and that overall the benefits of the exclusion outweighed its disadvantages.
My point is not that the case should have inevitably ended differently, but that the
lenient standard of review for social citizenship created an analytical framework that
could significantly weaken judicial review of social rights.
ii. South Africa
In 2004 the South African Constitutional Court decided a case relating to eligibility
requirements of South Africa’s Social Assistance Act 2004.44 This law conditioned receiv-
ing certain social benefits (old age grants, child support grants and dependence care
grants) on South African citizenship. The petitioners were citizens of Mozambique who
were permanent residents in South Africa (some acquired residence through work, oth-
ers as refugees). They were all destitute and would have qualified for social benefits but
for the citizenship requirement. The challenge to the citizenship requirement was based
on section 27 of the South African Constitution, which guarantees the right to health-
care, food, water and social security to ‘everyone’; the right to equality (section 9) the
right to life (section 11) and the right to dignity (section 10).45
The Constitutional Court struck down the clause conditioning social assistance upon
citizenship. It enquired into the bond between the country and permanent residents,
describing them as ‘those who have become part of our society and have made their
home in South Africa’.46 The Court relied on specific legislation that required treating

43
Khosa v Minister of Social Development 2004 (6) SA 505 (CC) (S Afr).

44
45
Insofar as child allowance was at stake the petition was also based on the rights of children, recognized in
the South African Constitution, 1996, s 28.
46
Khosa (n 44) para 58.
358 Neta Ziv
permanent residents similarly to citizens,47 and distinguished between permanent and

temporary residents.48
The point, however, is not the ruling’s outcome, but the constitutional analytical pro-
cess, as well as the standard of review applied by the Court. The decision (85 pages long)
dwells in minute detail on every argument of the Government, scrutinizing it thoroughly,
through the Constitution’s ‘Limitation Clause’ (section 36). The Government claimed that
permanent residents may acquire citizenship and therefore excluding residency is legit
imate, but the Court stated that such a result was unlikely given South Africa’s immigra-
tion policy. The state asserted that its citizens have priority over permanent residents, but
the Court rejected this justification, citing the Immigration Act (mentioned above) as proof
of their equal status. The state claimed that accepting the petition would impose financial
hardship, but the Court concluded that the state did not offer precise figures about the
number of potential eligible beneficiaries or anticipated expenses. The state argued that it
wanted to promote self-sufficiency rather than dependency of permanent residents, but the
Court reasoned that it was the state itself that decided to give these people the status of
permanent residents, and cutting them off from basic social assistance ran counter to the
state’s ‘constitutional commitment to developing a caring society’.49
More so, the state referred to US constitutional jurisprudence, which affirmed the
exclusion of social assistance from non-US citizens, utilizing the ‘rational basis’ standard
of review.50 Justice Mokgoro distinguished between the US constitutional standard and
that of South Africa:
I am prepared to assume that there is a rational connection between the citizenship provisions
of the [South African] Act and the immigration policy it is said to support. But that is not the
test for determining constitutionality under our Constitution. Section 27(2) . . . sets the stand
ard of reasonableness which is a higher standard than rationality.51
The Court concluded that the distinction was discriminatory as it excluded ‘a vulnera-
ble group’, stigmatised inferiority, created dependency and its totality alluded to an
infringement of human dignity of people who were ‘part of the South African Community’.52
This review standard of social citizenship conditions is thus stricter than the one adopted
by Israeli or US courts.
iii. The European Court of Human Rights

In Cevat Gaygusuz v Austria the European Court of Human Rights (ECtHR) addressed
the legality of an Austrian statute that denied unemployment emergency benefits to non-
Austrian citizens.53 The petitioner, a Turkish national, had legally lived and worked in
Austria for about 14 years, during which he had paid his insurance contributions and
taxes. Due to medical conditions which rendered him unable to work, the petitioner
47
Immigration Act (No 13, 2002), s 25(1) (S Afr) holds that ‘The holder of a permanent residence permit has
all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obliga-
tions which a law or the Constitution explicitly ascribes to citizenship’.
48
Khosa (n 44) para 59: ‘It may be reasonable to exclude from the legislative scheme workers who are citi-
zens of other countries, visitors and illegal residents, who have only a tenuous link with this country’.
49
ibid para 65.
50
City of Chicago v Shalala 189 F 3d 598 (1999), cert denied 529 US 1036 (2000).
51
Khosa (n 44) para 67.
52
ibid paras 68–78.
53
Gaygusuz v Austria (1996) 23 EHRR 364.
applied for an advance on his pension in the form of emergency assistance (monetary
assistance for those no longer entitled to unemployment benefit, guaranteeing a mini-
mum income). Gaygusuz was denied this benefit, since it was conditional upon Austrian
citizenship.
Gaygusuz argued before the ECtHR that the citizen-only provision in Austria’s unem-
ployment law contradicted the European Convention on Human Rights (ECHR),54 infring-
ing his right to a fair hearing, respect for private and family life, peaceful enjoyment of his
possessions and to non-discriminatory treatment. The ECtHR found the Austrian law in
violation of the ECHR. It recognised that the Convention protected the benefit at stake (a
pecuniary right enjoyed by the petitioner) and thus addressed the counter arguments raised
by the Government defending the distinction. The Court enquired whether the distinction
furthered ‘a legitimate aim’ and if there was a ‘reasonable relationship of proportionality’
between the end and the means employed, imposing a heavy burden on the state to fulfill
them.55 The Government’s claims – that the state has special responsibilities to its own
citizens; that nationality was a relevant criterion in social legislation; that there was no
contractual obligation towards Turkish nationals – were dismissed by the Court as not
meeting this standard.
In sum, the South African Supreme Court and the ECtHR applied a stricter standard
of review for social citizenship than the Israeli standard adjudicated in Physicians for
Human Rights. This is not to say the Israeli case would or should have ended differently
had the court applied the South African or ECtHR’s analysis; rather that the Israeli
Court adopted a lenient standard for scrutinizing exclusionary social citizenship condi-
tions for social rights.
C. Discriminatory Conditions
Social rights entitlement can also be conditioned upon discriminatory criteria, based on
a suspect classification (race, gender, nationality); however their analysis is somewhat
different.
The prohibition on discrimination is a universal norm in international human rights
and constitutional law. Article 2(2) of the International Covenant on Civil and Political
Rights obligates states to ensure that social rights will be respected
without discrimination of any kind as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.56
Similar provisions can be found in the European Social Charter;57 the Additional
Protocol to the American Convention on Human Rights in the Area of Economic, Social
54
Human Rights, as amended).
55
Gaygusuz (n 53) para 42.
56
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered
into force 3 January 1976) 993 UNTS 3.
57
European Social Charter (18 October 1961) CETS 35, safeguards, among others, the right to employment,
housing, health, social security and protection against poverty, ‘without discrimination on grounds of race,
colour, sex, religion, political opinion, national extraction or social origin’ (Preamble, and pt II, Arts 1–19). See
similar provisions in the European Social Charter (Revised) (3 May 1996) CETS 163, pt V, Art E and pt I.
360 Neta Ziv
and Cultural Rights (Protocol of San Salvador)58 and the African (Banjul) Charter of
Human and Peoples’ Rights.59 When the group-based eligibility distinction is explicit –
such as a rule that does not recognise the right of women to own or to inherit property
– it is discussed and adjudicated within the context of non-discrimination.60 Although it
can be considered a form of an eligibility condition, the focus of judicial review is the
right to equality, which usually entails a heightened standard of judicial review.
Yet some discriminatory conditions are indirect and implicit – they appear neutral but
impose a disparate negative impact on a protected group. In the Israeli context military
service is a case of this sort. Since a number of social groups do not serve in the army –
the Arab citizens of Israel, persons with disabilities, some new immigrants – criteria that
condition entitlement of social services upon military service often mask indirect dis-
crimination and can be treated as such.61 From a legal perspective – statutory as well as
constitutional – if neutral criteria operate as a cover for unequal treatment, they can be
considered as prohibited discrimination.
In 2002, the Knesset (Israeli Parliament) amended the section relating to child allowance
in the National Insurance Law,62 differentiating between parents who served in the mili-
tary and those who did not, establishing a preference to those who served.63 A number of
individuals and civil society organizations challenged the law in the Supreme Court.64 The
petitioners claimed the law was discriminatory, and thus asked for a stringent level of judi-
cial review of criteria disparately impacting a minority group, in particular since social
benefits were at stake. The Supreme Court was about to deliver a decision following an en
banc hearing (by 13 Justices) however, before the ruling, the Government extracted the
amendment and petitions were withdrawn.
Hence when social rights are conditional – either explicitly or by way of a non-bona
fide neutral qualification – on belonging to a protected/suspect group, constitutional
review falls within the equal protection domain, thus subject to heightened scrutiny and
imposing a heavier burden upon the state to justify the condition. The issue that
remained unresolved, and arose in the Hassan case, was the review standard of eligibil-
58
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights (Protocol of San Salvador) (entered into force 16 November 1999) OAS Treaty Series No 69
(1988) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/
II82 Doc 6 Rev 1 at 67 (1992). The Protocol adds to the protection of economic and social rights recognized in
two other human rights instruments in the Americas: American Declaration of the Rights and Duties of Man,
OAS Res XXX adopted by the Ninth International Conference of American States (1948) reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II82 Doc 6 Rev 1, 17
(1992) and American Convention on Human Rights, ‘Pact of San Jose’, (adopted 22 November 1969, entered
into force 18 July 1978).
59
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October
1986) (1982) 21 ILM 58. The Charter recognizes certain social rights (health, housing, education and family
life) and includes a prohibition on discrimination.
60
An interesting case in point is the decision of the High Court of Swaziland in the case of Mary-Joyce
Doo Aphane (Aphane v Registrar of Deeds and others [2010] SZHC 29 (SZ), available at: www.swazilii.org/sz/
judgment/high-court/2010/29) in which a statute restricting married women in common law marriages to have
immovable property registered on their name was found to be unconstitutional according to the Swaziland
Constitution.
61
On the effect of eligibility criteria of different social groups in Israel, see Stier and Lewin (n 9).
62
National Insurance Law (Consolidated Version), 5755-1995.
63
Economic Emergency Programme Law (Legislative Amendments for Achieving Budgetary Goals and the
Economic Policy for the 2002 and 2003 Fiscal Years), 5762-2002.
64
HCJ 4953/02 John Does v Government of Israel (unpublished). The case was dismissed following a
change in the Government position.
ity requirements that are neither based on social citizenship nor exclude a ‘protected
group’.
IV. CONSTITUTIONALITY OF SOCIAL RIGHTS IN ISRAEL
The debate on the constitutionality of social rights in Israel emerged following the 1992
enactment of Israel’s Basic Laws (Basic Law: Human Dignity and Liberty, and Basic
Law: Freedom of Occupation). At first it was not clear if social and economic rights
were protected constitutional rights. This debate is largely over. Israeli jurisprudence
has gradually but consistently recognised that the basic right to human dignity includes
social and economic rights and they enjoy constitutional protection.65
The Israeli Supreme Court began acknowledging the constitutionality of social and
economic rights in 1998, in a decision in which the then Court President Barak declared,
as obiter dictum, that human dignity includes a ‘minimum core’ of resources in the area
of housing, health and education.66 In the following decade, after petitions filed largely
by non-profit Israeli organizations, the court expanded its recognition of social rights,
such as the right to education, health, housing, welfare, old age and child allowance – as
protected constitutional rights.67
As Barak-Erez and Gross explain, the outcome of these cases was mixed: on the one
hand the Supreme Court acknowledged that social and economic rights enjoy constitu-
tional protection and are subject to judicial review; on the other hand they resulted in a
narrow protection of their content and scope. The Court ruled that constitutional pro-
tection guaranteed a ‘minimum core’ of resources, but no more.68
How much is ‘minimum’? In the context of income support minimal core apparently
includes the right to receive only the basic resources for subsistence. In the leading case
on judicial review of social rights – Commitment to Peace and Social Justice Association
v Minister of Finance69 – petitioners challenged the reduction in income support benefits
(welfare), claiming that it amounted to a violation of the right to human subsistence.
Rejecting this claim Court President Barak stated that constitutional protection extends
only a basic ‘safety net’, ensuring
a person has enough food and drink in order to live; a place to live in which he can realise his
privacy and his family life and be protected from the elements; tolerable sanitation and medical
services, which will ensure him access to the facilities of modern medicine.70
65
Y Rabin and Y Shani, ‘The Israeli Unfinished Constitutional Revolution: Has the Time Come for
Protecting Economic and Social Rights?’ (2003–04) 37 Isrrael Law Review 299, 301–08; Barak-Erez and Gross
(n 3).
66
LCA 4905/98 Gamzu v Yeshayahu 55(3) PD 360, 375–76 [2001] (in Hebrew). See also HCJ 4128/02 Adam
Teva Va Din v Prime Minister of Israel 58(3) PD 503, 518 [2004] (in Hebrew); LCA 5368/01 Yehuda v Teshuva
58(1) PD 214, 220–22 [2003] (in Hebrew).
67
On this process, see G Mundlak, ‘Fifty Years to the Implementation of The National Insurance Act –
Parties will Take Place in the Supreme Court’ (2004) 67 Social Security 83, 96–102 (in Hebrew).
68
Barak-Erez and Gross (n 3). See also R Shiv, ‘“Stop the Revolution without Me”: On the Promulgation
and Disciplining of the Discourse of Distributive Justice and Social Rights’ (2009) 2 Tel-Aviv University
Journal on Law and Social Change, 185, 194–95.
69
Commitment to Peace (n 26).
70
ibid 483–84.
362 Neta Ziv
More so, in Commitment to Peace the Court imposed a relatively heavy burden of
proof upon challengers of a social right to demonstrate that an infringement of a pro-
tected basic right had occurred. Court President Barak stated that petitioners must pro-
vide the Court ‘with a complete factual basis’ proving violation of dignity, including
‘details, based on appropriate documentation, of the sources of income and the current
and fixed expenditure of that person’ against ‘all the national and other support systems
that assist that person and the steps he takes in approaching them in order to exhaust his
rights’.71 As the petitioners did not provide the required proof, the Court ended constitu-
tional review at the first stage, and did not require the state to justify the measure.
This stringent burden of proof standard set by the Court constitutes a significant
impediment for effective judicial review.72 This point cannot be underscored. The ques-
tion of proof – who has to prove what – is often what lies at the heart of the dispute
during judicial review. Imposing an onerous duty on petitioners might limit judicial
review significantly. It frees the state from the need to justify the measures it utilises and
leaves it with broad leeway to curtail social resources with limited judicial oversight.
To what extent does the Commitment to Peace ruling pertain to judicial review of
eligibility conditions? This was the legal question in the Hassan case.
V. CONSTITUTIONALITY OF ELIGIBILITY CONDITIONS – THE HASSAN CASE
Eligibility conditions vary: they may constitute behavioural requirements, such as par-
ticipation in work training and placement, refraining from drug abuse, cap for water
usage; or direct means testing – level of income and savings, past and present property
ownership, number of family members; as well as indirect means testing (ie conditions
that ‘mark’ or indicate the existence of income) – frequency of travel abroad, or use/
ownership of a car.
I have already suggested that such conditions constitute an inherent element of a
social right and that consequentially, their constitutionality ought to be determined
through the established judicial model applied to human rights. But what does this
mean? At what stage of review and under which standard should eligibility conditions
be scrutinised?
As discussed above in section IIIB, in the context of social citizenship the Israeli
Supreme Court ruled that residency or citizenship requirements are subject to a lenient
standard of review – rational basis. But residency and citizenship may be considered a
distinctive category. At times they amount to discriminatory practices, and then should
be treated within that category. Moreover, social citizenship demarcates the boundaries
of community solidarity (given the distributive nature of social rights) and thus are
threshold requirements, defining ‘who’ is eligible to a certain resource, rather than
‘when’ and ‘under what circumstances’. Hence the review standard applied to social citi-
zenship need not bind other eligibility requirements.
71
ibid 485.
72
In contrast, in his dissenting judgment, Justice E Levy ruled differently: ‘I am of the opinion that all of the
material that was presented to us allows us to determine that the constitutional human right to live with dig-
nity has been violated as a result of the reduction, or at least that the petitioners have succeeded in raising a real
doubt as to whether the recipients of the benefits are able to support themselves with dignity’ (ibid 499–500).
A. Background and Arguments
In the Hassan case the Supreme Court was asked to review the constitutionality of sec-
tion 9A(b) of Israel’s Income Supplement Law,73 which denied welfare to any person –
otherwise eligible – who regularly used or owned a car.74 This Law includes an ‘income
test’, to verify that only the neediest would receive support. The National Insurance
Institute (NII) thus argued that regular use of a car (or ownership thereof) ought to be
construed as ‘income’; the amount of this income was to be appraised at the level of an
individual’s allowance. Under this formula there need not be any correlation between
the extent and frequency of car usage (or value of the owned car) and the actual amount
of presumed income. Section 9A created a non-refutable presumption under which
income was assumed, and at the level of one’s eligibility.
The petitioners – Jews and Arabs together with Israeli non-profit organizations –
argued that such a broad and undifferentiated condition was a constitutional violation
of the basic right to human dignity, which does not survive the Limitation Clause, with
its three-tiered test of proportionality.75 They described the circumstances of the peti-
tioners, who all either owned a car or had used one (borrowed from family members or
friends) for shopping, driving to work, taking children to school or visiting the doctor.
Their benefits were denied or revoked.76
In response, the state (and the NII) articulated their position on the constitutional
review model of social rights, based on the following elements:
1. Constitutionality of the car ownership/usage condition ought to be determined at the
first stage of constitutional analysis, that is, when the court examines whether a viola-
tion of a protected constitutional interest had occurred. There are valid policy and
methodological reasons not to conduct the analysis at the second stage of review, in
lieu of the positive nature of social rights and the financial ramifications of review.
2. The protected interest in this case is the right not to be compelled to live in poverty,
that is, the right not to live in dire need involuntarily/inevitably. This means that if a
73
During the Court hearings the Income Supplement Law was amended in 2007 and the prohibition on car
ownership and usage was narrowed, as follows: a welfare recipient could own or use a car if they worked and
received an income not exceeding 25% of the average Israeli income, and providing that the car did not surpass
a certain engine size and yearly model: see Income Supplement Law (n 2) s 9A(c). The amendment improved the
situation of some welfare recipients but did not alter the arrangement altogether.
74
According to the state, as mentioned in writing and orally during the hearing, regular use of a car included
usage once or twice a week, or even less frequently. The NII employs inspectors who conduct surveillance and
inspections of welfare recipients, who then report their findings.
75
In Hassan HCJ 10662/04 and HCJ 3282/05 (n 1), petitions were filed directly against the NII challenging s
9A; petitioners were represented by Adalah – The Legal Center for Arab Minority Rights in Israel, and Itach-
Maaki Women Lawyers for Social Justice. In HCJ 7804/05 the petition was filed against the National Labour
Court following an individual rejection of a welfare claim due to the regular use of a car. The petitioner was
represented by the State Legal Aid Office. All cases were conjoined and the decision related to the three
petitions.
76
This was not the first case in which the legality of eligibility conditions was brought before the Supreme
Court; however previous cases did not end in a ruling. In HCJ 1433/03 Bachtin and others v Minister of Finance
(3 November 2008), Nevo Legal Database (by subscription) (in Hebrew), the petitioners challenged the consti-
tutionality of a work requirement imposed upon mothers of young children to accept any job offered to them.
The petition ended in a consent decree. See D Freibach Hefetz and N Ziv, ‘A Legal-Social-Cultural Struggle of
Care Rights and Duties: The Case of Bachtin v The Ministry of Finance’ (2012) 13 Labor, Society and Law 267.
The author of this chapter was one of the lawyers representing the petitioners in the Bachtin case.
364 Neta Ziv
person has a choice not to live in poverty, she does not meet the compelling need/
involuntary definition of a protected constitutional interest.
3. The eligibility requirement is a precondition to the right itself. As such, we must
check if it corresponds with the protected interest (as defined above). Only if the (pre)
condition bears no relevance to the protected interest, is it unconstitutional. This
analysis is similar to the holding in Physicians for Human Rights; the state thus
equated car ownership/usage with social citizenship.
4. Ownership or regular use of a car is either an indicator of unreported income (since
driving a car entails high costs), or should be considered as if it was income, provided
to the recipient as an ‘in kind’ resource by family and friends. This ‘income’ is grossed
up to the level that disentitles the recipient from eligibility.
5. Accordingly, the recipient’s income is calculated to include a surplus, and she is not
considered to be in poverty involuntarily.77
There are two key elements to this legal construction. First, the state had added a
qualifying condition to the definition of right itself: no longer is it defined as ‘the right
not to live in existential want’, or ‘the right to minimum subsistence’. It is all the above,
but with a qualification: poverty must be involuntary or inevitable.
Second, eligibility is a ‘precondition’ to the right; therefore it needs only to bear a rela-
tively weak connection to the protected interest – as defined above. Accordingly, the
condition will survive judicial review if it ‘corresponds’ with the interest, that is, meets
the rationality test. Since all one needs to show is some relevancy between the protected
interest and the eligibility condition, this burden is quite easy to meet.
The petitioners argued, in contrast, that this is a problematic legal construct. They did
not contest that eligibility conditions are meant to distinguish between those who can
work and those who cannot; between people who are in dire economic need and those
who are not. The problem lies, however, with the means–end linkage.
Eligibility conditions often lie at the heart of social rights, delineating their scope; thus
they are internal to the rights. This ‘structure’ of a right is, for the most part, more com-
mon to social and economic rights that are ‘positive’ at the core.78 As such, the petition-
ers argued that they ought to be scrutinised scrupulously – through the Limitation
Clause, with its two substantive stages of review.79
First the state has to articulate and persuade that the purpose of the limitation is
proper; then it must pass the three subsets of the proportionality test: 1) the violating
measure bears a rational relationship to the purpose; 2) the purpose underlying the stat-
ute could not be realised using measures that are less infringing of the right; 3) the over-
all benefits of the violation outweigh its drawback. These are not easy tests to fulfil, and
the burden to persuade the court they are met lies with the party asking to uphold the
statute, usually the state.
77
Affidavit on behalf of respondents, November 2009. On file with author.
78
Not all social rights are positive at their core. The right to form a workers’ union, or the right to a family,
also recognized as social rights, are liberty-based.
79
Other constitutions contain similar notions but may be phrased differently. See, eg the South African
Constitution, 1996, s 36: ‘36. Limitation of rights: 1. The rights in the Bill of Rights may be limited only in
terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account all relevant factors,
including: a. the nature of the right; b. the importance of the purpose of the limitation; c. the nature and extent
of the limitation; d. the relation between the limitation and its purpose; and e. less restrictive means to achieve
the purpose’.
The analysis proposed by the state collapsed the ‘proper purpose’ requirement into
the first stage of analysis, and asked to end it there. Under this framework eligibility
conditions would hardly ever need to meet the requirements of the Limitation Clause at
all and only pass the rationality/relevance test. By applying the rationality test we forgo
the two other subtests, imposing a heavy burden on the right challenger to show arbi-
trariness and irrational exclusion. This is almost impossible to do; thus adoption of this
standard would weaken judicial review of social rights significantly.
B. Ruling
On 28 February 2012 the Supreme Court accepted the petitions, and invalidated section
9A(b) of the Income Supplement Law. Court President Beinisch who wrote the main
opinion clarified some questions regarding the constitutionality of social rights, albeit
leaving some unresolved. As a general statement Beinisch rejected the claim that there
exists an inherent difference between social rights and economic rights on the one hand,
and civil and political rights on the other, for the purpose of constitutional analysis.
Beinisch discarded the assertion that review of social rights entails unique difficulties due
to their vagueness and due to its potential monetary implications.80
Discarding the interpretive model set forth by the state Beinisch stated:
[A]doption of the respondents’ approach means imposing the burden of proof upon the peti-
tioners almost in full . . . petitioners will have to prove the infringement of the right as well as
the legitimacy of the means chosen in the legislation . . . Changing the rules of scrutiny means
relieving respondents from the need to prove the constitutionality of the means chosen by
them.81
Following this analysis the Court then continued to enquire whether section 9A
infringes the right to human dignity in the sense of minimal human subsistence, and
resolved that it does. The purpose of the section, declared Beinisch, was to ensure that
only the neediest would receive support and that examination of a recipient’s income is
thus legitimate. However, the Court found the flaw in the categorical and irrefutable
presumption under which any use (or ownership) of a car was calculated as income at
the level of the welfare allowance:
[T]he rule infringes upon the right to dignified human subsistence because it stipulates a cate-
gorical rule under which anyone who has ownership or usage of a car will not be entitled to
income support; this is so with no relation to the individual question if indeed that person has
an income at the level that can secure realization of the right to minimal subsistence in
dignity.82
The Court was not persuaded that this mechanism indeed verified that only those
with the least means would receive welfare. Subsequently, the burden of proof to show
the connection between the end of the statute and its means was not met. The Law was
thus declared unconstitutional, and the state was given a period of six months to remedy
and amend the Law and implement an alternative mechanism.
80
Hassan (n 1) paras 29 and 31 of Court President Beinisch’s opinion.
81
82
366 Neta Ziv
During the litigation (which lasted over six years) the amount of income support was
never discussed or disputed. The case was not about how much the state was providing
but to whom and under what circumstances. Therefore the ruling in Commitment to
Peace regarding the minimal core was the presumed starting point for deliberation in the
Hassan case. Can the Hassan ruling affect the question of level/amount? I will conclude
with initial thoughts on this topic.
VI. CONCLUSION
In our neo-liberal age Israel’s traditional welfare state, which embodied a relatively high
level of universalism, will in all likelihood continue its transformation into a minimum
welfare state. Social programmes will increasingly include eligibility requirements and
restrictive qualifications for social provision. Given this trend, it is critical to sustain
constitutional judicial scrutiny of social rights and to employ a meaningful process for
reviewing eligibility conditions within them. In the Hassan case the Supreme Court ruled
that review of eligibility conditions ought to be conducted at the second stage of analy-
sis, which requires the state to justify the measures it utilises. Can this ruling affect judi-
cial review of the quantity of resources the state has to provide to fulfill its human rights
obligations?
On the one hand the Hassan case did not address this issue; therefore a narrow read-
ing of the decision would imply it does not. More so, Court President Beinisch repeated
the spirit of the constitutional protection guaranteed by the right to human subsistence,
stating that ‘the right to a minimum of human subsistence in dignity is at the heart and
core of human dignity. Life in hunger, with no roof over one’s head, in a constant search
for help, is not a life in dignity’.83 This is the same minimal standard – the right not to
live in ‘existential want’, if you may – that the Court approved in Commitment to Peace.
At the same time Court President Beinisch rejected the assumption articulated by the
state – one which had previously been articulated in Commitment to Peace as well –
regarding the direct correlation between choice and poverty. In both cases the state
underscored the presumption regarding the potential of welfare policies to shape indi-
vidual conduct. It asserted that facilitating access to welfare (by relaxing barriers or
increasing the amount of allowance) would lead recipients to adopt unwanted behav-
iour, namely, over reliance on state provision instead of joining the workforce. This
dynamic, known as the ‘poverty trap’ was not rejected by the majority ruling in
Commitment to Peace,84 and was repeated by the state in Hassan. By arguing that the
protected constitutional interest was the right not to live in poverty involuntarily the
state furthered an assumption that use of a car is a choice that can be avoided and that it
signals the existence of (concealed or unreported) income.
I have already mentioned that the Court rejected the blanket assumption about the
correlation between using a car and having an income. But Court President Beinisch also
commented about the question of choice, stating that
83
84
This assertion was rejected, however, by Levy J dissenting in, Commitment to Peace (n 26) 516: ‘“Poverty
traps” are not created only as a result of benefits that are used to supplement income. This approach is erroneous
and misleading’.
[a]lthough the inevitability request seems justified in theory, in practice the distinction between
choice and inevitability is not simple at all. The question which life circumstances are the out-
come of free choice and which life circumstances are the outcome of inevitability and necessity
is oftentimes complex. Where does the boundary between free choice and social construction
lie? Life choices are influenced, among other things, by the environment in which a person had
been raised – from family, economic and social conditions.85
This reasoning represents a viewpoint that incorporates structural aspects and external
facets – in additional to personal choice – into the constitutional analysis of social and
welfare rights. It rejects the one-dimensional approach that assumes a direct correlation
between welfare policy and personal choices. In this sense the Hassan decision embodies
extensive implications to social rights adjudication. It may posit an opportunity to re-
examine the broad spectrum of social rights in constitutional litigation.
85
Hassan (n 1) para 51 of Court President Beinisch’s opinion.
24
The New Consensus on Enforcing Social
Welfare Rights: Comments on Three Papers
MARK TUSHNET
I. INTRODUCTION: THE EMERGENCE OF CONSENSUS ON

ENFORCEMENT OF SOCIAL WELFARE RIGHTS
A
CCORDING TO NETA Ziv,1 the debate about including social welfare rights
in Israeli constitutional law is ‘largely over’ – and not merely in Israeli consti-
tutional law. I believe that the debates over that question around the world are
also largely over. Constitution designers and courts have treated such rights as constitu-
tionally guaranteed. The issues for the future are not whether social welfare rights
should be constitutionally guaranteed and judicially enforced, but, first, how they should
be enforced by courts, and second, what are the conditions leading to effective (and inef-
fective) enforcement. The papers discussed here represent a new generation of scholar-
ship on constitutionally guaranteed social welfare rights. I begin with some comments
on how the emergence of a consensus on the inclusion of social welfare rights in consti-
tutions led to the end of the first generation debates, and then turn to the issues that the
new generation of scholarship will be addressing.
The apparent consensus on judicial enforcement of second-generation rights has
entailed the widespread rejection of several objections to such enforcement that were
common before the consensus emerged.2 The objections took the form of asserting that
there were categorical differences between ‘traditional’ rights, that constitutions pro-
tected and courts enforced, and social welfare rights. The objections rested on principles
of separation of powers, expense, and ineffectiveness. Experience and scholarship have
established that claims about categorical differences could not be sustained. To the
extent that traditional rights and social welfare rights differ, the differences lie in locat-
ing specific traditional rights and specific social welfare rights along a spectrum ranging
from ‘fully enforceable’ to ‘not likely to be enforceable’. And, sometimes, we will find a
specific social welfare right closer to the ‘fully enforceable’ end of the spectrum than
some traditional rights.3
1
2
These paragraphs are based on M Tushnet, ‘Reflections on Judicial Enforcement of Social and Economic
Rights in the Twenty-First Century’ (2011) 4 National University of Juridical Sciences Law Review 177, with
some modifications.
3
Without addressing other difficulties in this note, I suggest an example: a right to life-sustaining medica-
tion may be more easily enforced than a right to be protected against torture (depending on the circumstances
370 Mark Tushnet
II. THE FADING IMPORTANCE OF SEPARATION OF POWERS OBJECTIONS
The separation of powers objection focused on the programmatic nature of second-

generation rights. In one version, the argument was that the term ‘rights’ could not fairly
be applied to the interests at stake when these ‘rights’ were discussed. A right, the argu-
ment went, required someone or some entity under a corresponding duty, but duties
could arise only in connection with relatively well-defined interests. Social and economic
‘rights’ lacked the specificity needed to generate correlative duties. Legislatures could of
course pursue programmes that advanced interests in housing and food and the like, but
courts could not develop a jurisprudence of rights implicating those interests. A related
objection, or perhaps simply a rephrasing of that objection, was that implementing
programmes to protect these interests necessarily required a high degree of discretion in
the implementer, a much larger degree of discretion than courts enforcing rights could
possibly have.
Once courts began to try to enforce social welfare rights, these generalised separation
of powers objections turned out to be less forceful than it seemed at first. The objections
assumed that civil and political rights were categorically different from social welfare
rights, for otherwise separation of powers would have blocked the enforcement of civil
and political rights, a result no one thought correct. Yet, no such categorical distinction
exists. As Amir Paz-Fuchs shows,4 civil and political rights entail governmental duties.
Consider the right to vote: the government must provide the facilities for voting, and one
can without much difficulty generate substantial arguments that protecting the right to
vote requires that the government devote significant resources toward making it possible
for people who have the franchise to exercise their right to vote – by making polling
places accessible, for example.
In addition, courts devised ways of moving from broad statements of the interests at
stake to more precisely specified ones, with the effect of allowing them to treat the more
precise specifications as ‘rights’ fitting into the traditional category where rights entailed
duties. I deal with this in more detail below in connection with Neta Ziv’s chapter.
Experience with the enforcement of civil and political rights showed as well that that
enforcement also involved a substantial amount of judicial discretion, not only in imple-
mentation but even at the rights-specification stage. The emerging consensus was that
these experiences showed that separation of powers principles could not support a sharp
distinction between first- and second-generation rights.
Professor Paz-Fuchs shows in detail how the objections based on fiscal considerations
has persisted. But, I believe, they persist only because those who offer them have a mis-
takenly narrow idea of the remedial forms associated with the judicial protection of
rights. It is not merely that enforcing civil and political rights is costly too, as Paz-Fuchs
argues. The central image of judicial remedies is the coercive order directing a target –
the executive or the legislature – to take (or refrain from taking) specific actions to
ensure compliance with constitutional requirements. Sometimes the costs of such coer-
under which the torture occurs). The facts relating to the former can be explored easily in ordinary litigation,
whereas the facts relating to the latter might be quite difficult to uncover, making it easier to enforce the former
than the latter.
4
Comment on Enforcing Social Welfare Rights 371
cive remedies are indeed large. So, for example, a coercive order directing the govern-
ment to supply housing to all those in need could impose quite substantial budgetary
demands, far larger than the costs associated with complying with many other constitu-
tional rights.
But, courts have devised different remedial forms, which make the costs of enforcing
social welfare rights comparable to those of enforcing civil and political rights. These
forms include (mere) planning requirements, in which the relevant bureaucracy is
charged with developing a plan to implement the judicially specified right, with the
courts only loosely supervising the plan’s implementation.5 Yet, by embedding the right
within the bureaucracy, the courts may move the bureaucracy toward an internalised
commitment to implementation; lax judicial supervision is then not a bug but a feature.
Another form is consultation or engagement, in which the courts insist that government
officials interact directly with those who are adversely affected by their resource alloca-
tion decisions.6 Again, there is no guarantee that consultation and engagement will result
in changes on the ground,7 but here too the hope is that direct human confrontation will
induce bureaucrats to modify their plans.
Those who raise the fiscal objection might argue that the costs of implementing tradi-
tional rights are low relative to the costs of enforcing second-generation rights. That
overlooks several points. Exercising constitutionally protected civil and political rights
imposes costs on society at large, and those costs can be large. As Professor Gross’s dis-
cussion of the Majority Camp decision shows,8 increasing the risk of disorder demon-
strations elicits an increase in police deployment. Speech critical of government policy
exemplified by the Wikileaks episode also increases social risk and entails costs to pre-
vent repetition. Yet no one contends that the risks and expenses associated with demon-
strations and critical speech imply the inappropriateness of judicial enforcement of
rights to free expression. The difference between the costs associated with enforcing
civil and political rights and social welfare rights is not that the former are small and the
latter large, but that the former are generally invisible because they are diffused across
the society as a whole without figuring openly in government budgets, while the latter
are immediately visible in budget statements. The new remedial forms reduce the imme-
diate, and immediately visible, costs of enforcement, responsive to formulations such as
the ‘within available resources’ qualification in the South African Constitution.
III. SOME NEW REMEDIAL FORMS
Let me offer somewhat more detailed comments on these new remedial forms. Drawing
on a term imported into comparative constitutional law from an important contribution
to Canadian constitutional scholarship by Peter Hogg and Alison Bushell, we can call
them ‘dialogic’ remedies. So far they come in two variants.
5
In the literature of comparative constitutional law the widely celebrated Grootboom case in South Africa
(Government of Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC) (S Afr)) is the primary
example of a planning remedy.
6
Here the primary example is Occupiers of 51 Olivia Road v City of Johannesburg 2008 (3) SA 208 (CC)
(S Afr).
7
For the example usually given of such a failure, see Residents of Joe Slovo Community v Thubelisha
Homes 2009 (9) BCLR 847 (CC) (S Afr).
8
See ch 21 in this volume, part I.
372 Mark Tushnet
(a) Dialogue between courts and legislatures and executive officials. In the Grootboom
case the South African Constitutional Court reviewed the constitutionality of the gov-
ernment’s programme to provide housing for those in need. Mrs Grootboom repre-
sented a group of squatters who the government evicted. Rather than challenging the
evictions, Mrs Grootboom challenged the government’s overall programme for provid-
ing housing to the needy. The government did have such a programme but, the Court
held, it was unconstitutionally defective because it did not contain a specific provision
aimed at providing housing for those, such as Mrs Grootboom, in desperate need. The
Court ordered the government to develop a plan for providing housing to that group.
This order was at least implicitly dialogic because it left open the possibility that the
lawyers representing Mrs Grootboom could return to Court to challenge the govern-
ment’s plan as inadequate, and the Court would have to determine whether the plan was
constitutionally adequate.
Gross’s discussion of the provision of medical care shows how planning remedies fit
easily into a constitutional scheme of judicial enforcement of social welfare rights. The
health services ‘basket’ he discusses is the government’s plan for the distribution of med-
ical resources, and modifications in the bucket at the urging of courts are no different in
principle from other adjustments the government routinely makes based on new infor-
mation. The dicta Gross cites from the Luzon case are typical of contemporary judicial
approaches to the enforcement of social welfare rights.
(b) Dialogue between executive officials and plaintiffs. The South African Constitutional
Court has pioneered the development of another intriguing remedial possibility. The case
again involved squatters: this time they were occupying a building that everyone agreed
was unfit for human habitation because it lacked adequate drinking water and was quite
vulnerable to fire. The city sought to evict the squatters, not in the service of some property
owner’s interest in the building, but to protect the squatters themselves against these real
risks. The Constitutional Court held that before going forward with the evictions the city
had to engage in a discussion with the residents about whether they could develop some
method of providing water and fire protection without evicting the residents.9 The ‘engage-
ment’ resulted in an agreement by the city to leave the residents in place and provide them
with water and emergency fire services.
IV. THE ISRAELI CASE
The core characteristic of these dialogic remedial forms is that they do not impose finan-
cial costs directly or visibly, in the way that coercive enforcement of a social welfare
right on behalf of a needy individual might. Gross’s comments suggest that the Israeli
Supreme Court has failed to see the possibility of novel remedial forms. And, of course,
Paz-Fuchs’s chapter can be read as an extended critique of the assumption that the only
remedial form is the coercive order aimed at providing some material good to an identi-
fied individual. One outsider’s question about those comments and observations is this:
why has the Court, so sophisticated about constitutional law in other dimensions, been
seemingly so unsophisticated in this one?
9
Olivia Road (n 6). B Ray, ‘Engagement’s Possibilities and Limits as a Socioeconomic Rights Remedy’
(2010) 10 Washington University Global Studies Law Review 399–425, provides a good analysis of the case and
subsequent ones.
I suggest several possibilities, all touched upon in these chapters. First, constitutional
language may matter. Drawing on standard international human rights terminology, the
South African Constitution qualifies its guarantees of social welfare rights with the
phrase ‘within available resources’. That qualification might well suggest to a court that
it should search for effective remedies that nonetheless do not require the government to
allocate ‘too many’ resources to satisfying constitutional requirements. In contrast,
locating the protection of social welfare rights within a constitution’s protection of
human dignity or the right to life may push the courts in the direction of preferring coer-
cive remedies, because in most settings ‘human dignity’ and, to a lesser extent, the right
to life, are rather unyielding against arguments that social reality requires some accom-
modation of the right. Courts would be quite uncomfortable in finding what they
acknowledged to be torture – understood as a violation of human dignity – permissible
in any but the most extraordinary circumstances (though they might strive to character-
ise the phenomena at issue as ‘harsh interrogation but not torture’).10
Second, but pointing in the other direction, a constitution whose interpretation cen-
tres on the doctrine of proportionality might be more open to courts’ finding that some
social welfare right has been violated. The first step of proportionality analysis asks
whether the impugned policy violates a constitutionally protected right. Such a finding is
not in itself decisive or, indeed, consequential in many cases. The reason is that fiscal,
separation of powers, and other concerns can be addressed in subsequent stages, when
the courts examine whether a violation of rights is justified.11
Finally, social welfare rights may not be seen as free-standing, but either parasitic
upon, or at least strongly related to, other constitutional rights. Equality concerns
require what is inelegantly known in English as a ‘comparator’ – a class that receives the
benefit denied to the claimant in the case at hand. Candidates for comparison include
others within the scheme of social provision, such as those who receive treatment for
their urgent conditions when the claimant does not receive treatment or her equally
urgent condition; or those who are able to obtain the treatment by spending their own
resources.12 Gross’s discussion of medical care notes how closely the issues are related to
questions of equality. Ziv’s discussion of eligibility conditions strongly implies a connec-
tion between problematic conditions and intrusions on a constitutionally protected
domain of privacy.
I now turn to some additional issues. Proponents of constitutionalised social welfare
rights typically assume that the material goods those rights guarantee must be provided
by the state. That assumption seems to me to underlie the arguments by both Gross and
Ziv. Provision by the state means a scheme of social provision whose adequacy must be
assessed in constitutional terms.13 (Or at least so it seems to me). The availability of the
10
Consider here the Israeli Supreme Court’s position in HCJ 5100/94 Public Committee against Torture in
Israel v State of Israel 53(4) PD 817 [1999] (in Hebrew), which can be understood as asserting that engaging in
torture (in extreme cases) might be impermissible but not subject to legal penalty, or the German Constitutional
Court’s decision that abortion, a violation of the right to life, must be condemned by law but may not be penal-
ized under quite a few circumstances (88 BVerfGE 203 (1993) (Ger)).
11
For discussions of proportionality analysis, see, eg R Alexy, A Theory of Constitutional Rights (New
York, Oxford University Press, 2002); A Barak, Proportionality (New York, Cambridge University Press, 2011).
12
As to the latter, see Chaoulli v Quebec (AG) [2005] 1 SCR 791 (Can), holding it unconstitutional to bar
individuals from spending their own resources to obtain the medical care they believed necessary.
13
Of course social welfare rights are provided by the state in the definitional sense that they are rights
inscribed in constitutional law, but that sense is not the one that interests me here.
374 Mark Tushnet
private market as a comparator in equality-based cases suggests another possibility.

Perhaps constitutionalizing social welfare rights has no significant conceptual implica-
tions for the distribution of the source of their provision as between market provision
and social provision. That is, we might find universal agreement with the proposition
that the constitution guarantees social welfare rights, but still face significant – and, in
the jargon, reasonable – disagreement about how much of the provision of those rights
should be done by the state, and how much by the market. The resolution of that dis-
agreement will depend on ideology, politics, and history.
Once the issue is seen in that light, what is at stake in all the cases Gross and Ziv dis-
cuss is the usual and quite ordinary question of constitutional review: what stance
should the courts take, what standard of review should they apply, when faced with
legislation that rests on a reasonable albeit not conclusive legislative or executive judg-
ment about the best means by which social welfare rights can be guaranteed? One’s
answer to that question should be the same as the answer one gives to the same question
asked about regulations of freedom of expression, for example. So, Jeremy Waldron and
I, court sceptics that we are, would tend to say that courts should adopt a standard akin
to ‘mere rationality’ in US constitutional law for legislation that rests on a reasonable,
though disputable, understanding of freedom of expression and legislation that rests on
a similarly, reasonable though disputable, understanding of the question of distributing
social welfare rights protection between market and social provision.14 Court enthusi-
asts will take a different view. But, as Ziv in particular emphasises, the question as to
social welfare rights is the same as that as to civil and political rights.
Given this analysis, I think that Ziv’s argument should be slightly reformulated. First,
I do not think – and it is not clear to me that Ziv thinks – that anything important turns
on whether we describe the rights in question as rights to resources or rights to reason-
able access to resources. A right to reasonable access to resources is, I think, simply a
description of the case when the legislature chooses market provision as the mechanism
by which the right to the resource is guaranteed. Similarly, I would place less weight on
the distinction between eligibility conditions that define the contours of the social wel-
fare right and conditions that are in her sense limitations on a social welfare right (such
as the rules challenged as discriminatory, and the like). The contours of the right are the
boundaries the legislature has chosen to set between market provision and social provi-
sion. And, again, the standard of review should be whatever one thinks appropriate for
cases of reasonable disagreement over legislative choices.
V. CONCLUSION: EFFECTIVE ENFORCEMENT OF SOCIAL WELFARE RIGHTS?
I note one additional point in conclusion: some have questioned whether dialogic reme-
dies are truly effective in moving resources to those truly in need.15 Examined as a whole,
14
See J Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346;
M Tushnet, Taking the Constitution Away from the Courts (Princeton, Princeton University Press, 2000).
15
This criticism is particularly prominent in the literature on the South African cases, in part because the
South African Constitutional Court explicitly rejected the proposition that there is some constitutionally pro-
tected ‘minimum core’ substantive right, and in part because the dialogic remedies seem to critics inadequately
responsive to the social problems the nation faces (although the ‘within available resources’ language in the
Constitution rather strongly suggests that effective provision of social welfare rights within available resources
does not, as a constitutional matter, require provision to all in need).
the cases in which courts have done something significant in enforcing social welfare
rights tend to be cases that primarily benefit not the poorest in a nation but those who
are relatively well-off, the middle classes rather than the poor. This is of course clearest
in the ‘right to health’ cases involving the provision of specific drugs through individual
direct actions.16 Statistics are hard to come by, but it seems clear enough that the primary
beneficiaries of these actions are in the middle classes. And, the reason is clear enough as
well: to bring such an action a person has to have a lawyer available to him or her, and
in general the middle classes have substantially greater access to lawyers than do poorer
people. But, the problem arises in connection with other forms of relief too. With respect
to dialogic remedies, for example, most people can effectively engage with government
officials only if they have some assistance, and, again, lawyers provide that assistance.
Of course NGOs can provide assistance, by making lawyers and other resources useful
in litigation over second-generation rights available to poor people. But, equally obvi-
ously, NGOs are underfunded, available only spottily, and in general cannot be expected
to be widely enough available so as to offset the middle class bias of the remedial forms
taken as a whole.
The US political scientist Charles Epp has provided a systematic explanation for these
outcomes. Examining what he calls efforts at rights revolutions in a number of coun-
tries, including India, Epp concludes that such revolutions succeed only when they are
accompanied by what he calls a ‘support structure’, a set of institutions that supply those
seeking constitutional rights with regular access to lawyers, funds to keep litigation
going, and favourable publicity.17 Support structures include NGOs, but, intriguingly,
Epp finds that some governments provide the necessary resources, even when the law-
yers are attacking government policies. Nonetheless, sustaining a support structure is
difficult, and national variations will matter a great deal. Future scholarship on the judi-
cial enforcement of second-generation rights will, I think, focus on the question of how
support structures can be created and sustained.
Perhaps the most important conclusion I draw from these reflections is a much
simpler one. The issues scholars in the field need to consider are substantially different
from the ones that have preoccupied scholarship on the judicial enforcement of second-
generation rights for the past decades. As these articles indicate, a new scholarly agenda
is on the table. As I see it, that agenda will move away from concern for separation of
powers and fiscal concerns, and toward an analysis of the ideological commitments dis-
played in discourse about social welfare rights. In addition, it will examine in detail the
interactions among individual litigants, the support structures of NGOs, and the courts.
The new agenda will, I think, enhance both the scholarly interest in, and excitement
about, the constitutionalization of social welfare rights.
That appears to be the conclusion of most studies of the ‘right to medication’ cases in Brazil.
16
CR Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective
17
(Chicago, University of Chicago Press, 1998).

Part 7
Constitutional Rights and Private Law

25
Constitutional Rights and Private Law*
AHARON BARAK
I. THE PROBLEM PRESENTED
A
LL ARE IN agreement that the individual’s constitutional rights1 are directed
towards the state. The history of human rights is that of the recognition of
individual rights vis-à-vis the state. The texts of the different constitutions have
turned this history into a reality. Often, explicit provisions are found in the constitution,
according to which the state must respect the rights of individuals determined therein.2
The question before us is: are constitutional rights directed at the state (vertical relation-
ship) alone or are these constitutional rights directed at individuals as well (horizontal
relationship)? Is an employee’s (just like any other individual’s) constitutional right to
freedom of expression, directed at the state, also an employee’s constitutional right to
freedom of expression vis-à-vis the employer? This question is recognised in compara-
tive constitutional law as a one regarding third party’s effects (Drittwirkung). The first
party is the individual, the state is the second party, and the third party is made up of
another individual. The question is: are constitutional rights, granted by the constitution
to the first party (the individual) directed towards the second party (the state) alone or
also vis-à-vis the third party (another individual)? The literature on this subject is vast.3
* This chapter is based on my past writing on this subject as well as an additional development of this
train of thought. For previous publications, see A Barak, ‘Constitutional Human Rights and Private Law’ in
A M Rabello and P Sarcevic (eds), Freedom of Contract and Constitutional Law 105 (Hebrew University of
Jerusalem, 1998); A Barak, ‘Constitutional Human Rights and Private Law’ in D Friedmann and D Barak-Erez
(eds), Human Rights in Private Law (Oxford, Hart Publishing, 2001) 13; A Barak, ‘Constitutional Human
Rights and Private Law’ (1996) 3 Review of Constitutional Studies 218.
1
The term ‘constitutional rights’ is used in this chapter to describe rights expressly or impliedly guaranteed
by the constitution.
2
See Israeli Basic Law: Human Dignity and Liberty, s 11. English translation available at: www.knesset.gov.
il/laws/special/eng/basic3_eng.htm; Israeli Basic Law: Freedom of Occupation, s 5. English translation availa-
ble at: www.knesset.gov.il/laws/special/eng/basic4_eng.htm. See also Grundgesetz für die Bundesrepublik
Deutschland [Grundgesetz][GG][Basic Law], 23 May 1949, BGBl I, art 1(3) (Ger); South African Constitution,
1996, s 8(1).
3
In the last 10 years there have been many articles published on this subject. The important books published
during that period are: AM Rabello and P Sercevic (eds), Freedom of Contracts and Constitutional Law
(Jerusalem, Hebrew University of Jerusalem, 1998); R English and P Havers (eds), An Introduction to Human
Rights and the Common Law (Oxford, Hart Publishing, 2000); D Friedmann and D Barak-Erez (eds), Human
Rights in Private Law (Oxford, Hart Publishing, 2001); A Sajó and R Uitz (eds), The Constitution in Private
Relations: Expanding Constitutionalism (Hague, Eleven International Publishing, 2005); T Barkhuysen and
SD Lindenbergh (eds), Constitutionalisation of Private Law (Leiden, Martinus Neihoff Publishers, 2006);
KS Ziegler (ed), Human Rights and Private Law: Privacy as Autonomy (Oxford, Hart Publishing, 2006); D Oliver
and J Fedtke (eds), Human Rights and the Private Sphere: A Comparative Study (London, Routledge-Cavendish,
380 Aharon Barak
This dilemma appears to be resolved when the constitution states (expressly or

impliedly) a clear stand. In some constitutions there is an express reference to the hori-
zontal effect. Thus, for example, in the Constitution of South Africa there is an explicit
provision, that reads as follows:4
A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it
is applicable, taking into account the nature of the right and the nature of any duty imposed by
the right.
With this provision in mind, seemingly the question in South Africa is the scope of the
provision and the circumstances where its conditions are met.5 This conclusion is not
free from doubts,6 as the Constitutional Court’s rulings have determined that the appli-
cation is indirect.7 In a small number of constitutions there are provisions regarding the
horizontal application of special constitutional rights.8
The United States Bill of Rights is drafted in a manner that precludes the horizontal
effect on most rights. Thus, for example, the First Amendment states:9
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.
This provision is directed at Congress, and burdens it with obligations. This provision
has only a vertical effect.
Under the assumption that a constitution is not expressly restricted to vertical effect,
the question before us is if the constitutional rights apply to horizontal relationships as
well. The answer to this question is interpretive.10 What are the options available to the
interpreter?11 In principle, one can think of four models: (1) direct application model;
(2) non-application model; (3) application to the judiciary model; and (4) indirect appli-
cation model. In part II those four models will be discussed, and my preference to the
fourth model (indirect application) will be explained. Part III will discuss the application
of the fourth model in detail generally. Part IV will deal with its application in Israel.
Part V will make some general conclusionary remark about the indirect application
model and its relationship to the direct application model.
2007); C Mak, Fundamental Rights in European Contract Law: A Comparison of the Impact of Fundamental
Rights on Contractual Relationships in Germany, the Netherlands, Italy and England (Alphen an den Rijn,
Kluwer Law International, 2008); D Hoffman (ed), The Impact of the UK Human Rights Act on Private Law
(Cambridge, Cambridge University Press, 2011).
4
South African Constitution, 1996, s 8(2).
5
See S Woolman, ‘Application’ in S Woolman and M Bishop (eds), Constitutional Law of South Africa,
2nd edn (Pretoria, Juta Law, 2005) ch 31.
6
See H Cheadle, ‘Third Party Effect in the South African Constitution’ in A Sajó and R Uitz (eds), The
Constitution in Private Relations: Expanding Constitutionalism (Hague, Eleven International Publishing,
2005) 55.
7
Du Plessis v De Klerk 1996 (3) SA 850 (CC) (S Afr); Bernstein v Bester NO 1996 (2) SA 751 (CC) (S Afr);
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) (S Afr); Khumalo v Holomisa 2002 (5) SA
401 (CC) (S Afr); Rail Commuters Action Group v Transnet Ltd 2005 (2) SA 359 (CC) (S Afr).
8
See US Constitution, amend XIII, which bans slavery. This ban applies to interpersonal relationships. See
also the Grundgesetz GG (n 2), Art 9(3) which bans agreements between individuals which limit the freedom of
association.
9
US Constitution, amend I.
10
See A Barak, Purposive Interpretation in Law (Princeton, Princeton University Press, 2005) 370.
11
See PW Hogg, Constitutional Law of Canada, vol 2, 5th edn (Toronto, Thomson Carswell, 2007) 102.
Constitutional Rights and Private Law 381
II. THE FOUR MODELS
A. The Direct Application Model
The first model available to the interpreter is to interpret the constitution’s provisions
regarding human rights as being directed at both the state and individuals.12 According
to this approach, constitutional rights directly apply to the relationships between indi-
viduals. Thus, for example, according to this option, the right to dignity and liberty
found in Basic Law: Human Dignity and Liberty also applies to the relationships between
individuals. According to this approach, the Basic Law recognises the employer’s con
stitutional duty not to limit the employee’s human dignity and the employee’s constitu-
tional right not to limit the employer’s human dignity. Similarly, the freedom of
expression anchored in the constitution is not just the freedom of the individual vis-à-vis
the state but also vis-à-vis every other individual. Two considerations support this
option: first, in the modern reality, the danger to constitutional rights is not only from
the state but also from other individuals. At times, these have powers no less than those
of the state. Constitutional rights should therefore apply to horizontal relationships as
well.13 Second, we are faced with an expansive privatization process.14 State powers,
whose use by the governmental authority must respect the constitutional rights of the
individual vis-à-vis the state, are transferred over to the private sector. If within this sec-
tor the constitutional rights do not continue to apply, the result will be that the privati-
zation will release the state of its constitutional duties without replacing it by imposing
such duties on the private sector.
Despite the potency of these considerations, I believe that this model is not right.15
The reasons brought for its defence do not support it. Regarding the first consideration
(the power of certain individuals as the state) – I believe that the individual’s protection
vis-à-vis another individual, no matter how powerful they may be, should be resolved in
private law (statute or common law) itself. There is no justification in granting to a
weaker individual a constitutional right vis-à-vis a stronger individual. The granting of
constitutional status to a right is equal to the protection of said right from the state, a
body that can legislate statutes or develop the common law and therefore limit the right.
The granting of constitutional status to a right imposes limitations on the state to affect
the right. This result is irrelevant to the protection of the weaker individual’s rights vis-
à-vis the stronger individual. As to the relationship between the weaker and stronger
12
For this model, see A Barak, Interpretation in Law: Constitutional Interpretation, vol 3 (Jerusalem, Nevo
Publishing, 1994) (in Hebrew). In German literature this approach is referred to as ‘unmittelbare Drittwirkung’.
For an analysis of this approach, see R Alexy, A Theory of Constitutional Rights (Oxford, Oxford University
Press, 2002) 351; M Kumm and VF Comella, ‘What is So Special About Constitutional Rights in Private
Litigation? A Comparative Analysis of the Function of State Action Requirement and Indirect Horizontal
Effect’ in, The Constitution in Private Relations: Expanding Constitutionalism (n 3) 241.
13
See Barak, Interpretation in Law (n 12) 656.
14
See I Zamir, Administrative Power, vol 1, 2nd edn (Jerusalem, Nevo Publishing, 2010) 39 (in Hebrew);
D Barak-Erez, Administrative Law, vol 1 (Tel Aviv, Israel Bar Association, 2010) 59 (in Hebrew).
15
It is possible that it may be justified in special cases, when the legal system wishes to put up a red flag
regarding a certain kind of inappropriate activity. The Indian Constitution grasps as a duty not to discriminate
against an obligation as a duty imposed not only vis-à-vis the state but also in interpersonal relationships: see
Indian Constitution, Art 15. See also aforementioned US Constitution, amend XIII, which bans slavery. This
ban applies to interpersonal relationships.
382 Aharon Barak
individual, sub-constitutional law is sufficient. The stronger individual has no legislative

power and the Limitation Clause – which applies when the constitutional right is limited
by a sub-constitutional norm16 – does not apply. Of course, to the extent that said sub-
constitutional law does not sufficiently consider the weakness of one side, particularly
due to their chronic weakness, the road is open to consider its constitutionality. Indeed,
disproportional protection by private law of the weak from the strong may make private
law unconstitutional. As such, the weaker party’s constitutional right vis-à-vis the state
is sufficient. There is no need to recognise this right as a constitutional right vis-à-vis the
stronger side. The vertical effect is characterised by the constitutional right of the indi-
vidual vis-à-vis the state. The state has no constitutional right vis-à-vis the individual.
The second consideration (privatization which results in a release from constitutional
obligations) may be relevant when considering the constitutionality of the privatiza-
tion.17 Thus, for example, the privatization of prisons was declared in Israel unconstitu-
tional due to its disproportional limitation of the prisoner’s right vis-à-vis the state.18
When privatization is constitutional, the law that applies to the relationship between the
individuals after the privatization should be the sub-constitutional law, which has been
made suitable for privatization.19 It is not fitting that the vertical relationship which
applied vis-à-vis the state before the privatization continues to apply, vis-à-vis other
individuals after privatization.
The direct application model is methodologically problematic. Its application is
unsatisfactory. Methodologically when two principle-shaped constitutional rights con-
flict – whether it be the individual’s constitutional right vis-à-vis a state or one individu-
al’s constitutional right vis-à-vis another individual (according to the direct application
model) – the conflict’s solution is not found at the constitutional level.20 The scope of the
constitutional right does not change. The conflict’s solution is at the sub-constitutional
level, such as at the legislative or common law level. On this level we determine if the
law limiting a constitutional right to realise another constitutional right is constitu-
tional. Therefore, even if direct application is recognised, the conflict’s solution regard-
ing the scope of the rights will not be at the constitutional level but rather at the
sub-constitutional level, namely in providing the answer to the question of if the limiting
law is constitutional. This level must of course fulfill the requirements of the Limitation
Clause. Thus, in Israel the limitation of the constitutional right must be ‘to an extent not
greater than is required’,21 that is – proportional.
Therefore, the recognition of the direct application (horizontal) model is method-
ologically wrong. The logic at the foundation of the need to recognise the individual’s
16
A typical Limitation Clause is found in s 1 of the Canadian Charter of Rights and Freedoms. For Israel,
see Basic Law: Human Dignity and Liberty, s 8.
17
Relevant to this matter is the approach that the Parliament cannot release itself from its duty to determine
primary arrangements (the non-delegable duty): HCJ 3267/97 Rubinstein v Minister of Defence 52(5) PD 481,
502 [1998] (in Hebrew); HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v Prime Minister
)27 February 2006), Nevo Legal Database (by subscription) (in Hebrew); G Sapir, ‘Primary Arrangements’ (2010)
32 Tel-Aviv University Law Review 5 (in Hebrew).
18
See HCJ 2605/05 Academic Center of Law and Business v Minister of Finance (19 November 2009), Nevo
Legal Database (by subscription) (in Hebrew).
19
See A Harel, Private Bodies in Administrative Law (Tel-Aviv, Israel Bar Association, 2008) (in Hebrew);
D Barak-Erez, ‘Public Corporations’ (1995) 19 Tel-Aviv University Law Review 273 (in Hebrew).
20
See A Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge, Cambridge
University Press, 2012) 83.
21
Basic law: Human Dignity and Liberty, s 8.
constitutional right vis-à-vis the state does not exist regarding the recognition of the
constitutional right of one individual vis-à-vis another.22
B. The Non-Application Model
The second model provides that constitutional rights apply only vis-à-vis the state (verti-
cal relationship). A constitution is meant to protect the individual from the state and is
not aimed at dealing with interpersonal relationships (horizontal), a relationship which
has always been regulated by private law. According to this option, anything concerning
interpersonal relationships should be regulated in private law, without any influence or
penetration of the constitution’s provisions, all of which are part of the public sphere.
Of course, the boundary between the public law and private law is not so clear nor is it
impenetrable. There are reciprocal ties between public and private law. Therefore, when
developing legal doctrines regarding private law, the judge will consider the public law.
This consideration reflects the need to observe the entire structure of society, law and
the legal system. However, according to the second model, this consideration by the
judge is not based on the application – direct or indirect – of the constitution’s provi-
sions regarding human rights in interpersonal relationships.
Canadian law essentially takes23 the second option.24 The latter was determined in the
Dolphin Delivery case.25 In that case the labour union organised a strike against the
employer. The Dolphin Delivery Company was not the employer, but rather supplied
products to the employer. Despite this, the labour union decided to picket Dolphin
Delivery. The latter applied to the Court to request an injunction, which prevented the
labour union from committing a civil wrong of inducing breach of contract. In court the
labour union claimed that it should not be handed down an injunction as it would limit
its right to freedom of expression which is protected in the Canadian Charter of Rights
and Freedoms. The Supreme Court refuted this claim: it ruled that the constitutional
rights determined in the Canadian Charter of Rights and Freedoms were directed
towards the state and not other individuals.
The non-application model is fitting to the extent that it rejects the direct application
model. However, it creates too deep a rift between constitutional law and private law.
There are closer ties between constitutional law and private law than those presented by
the non-application model. At the core of these ties are the duties of private law – and
the duty of the legislator and the judges who create and develop private law – to fulfill
the constitutional values and principles.26
22
Alexy (n 12) 362: ‘direct horizontal effect cannot mean that rights of the citizens against the state are also
rights of the citizen against other citizens . . . direct horizontal effect cannot be achieved simply by exchanging
the addressee of the right of a citizen against the state’.
23
It is also possible to see weakened indirect application in it: see S Gardbaum, ‘The “Horizontal Effect” of
Constitutional Rights’ (2003) 102 Michigan Law Review 388.
24
See Hogg (n 11) 101. See also Pepsi-Cola Canada Beverages v RWDSU [2002] 1 SCR 156 (Can); Dagenais
v CBC [1994] 3 SCR 835 (Can).
25
RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573 (Can).
26
For this duty, see n 93 below.
384 Aharon Barak
C. The Application through the Judiciary Model
The third model is the application through the judiciary.27 The starting point is that con-
stitutional rights are directed towards the state alone. However, the judge is a state
organ, and therefore the constitutional right is directed towards him. According to this
model when the judge speaks, the state speaks; when the judge acts the state acts. The
judge is the state and human rights need to be protected vis-à-vis him as well. The mean-
ing of the latter, from the judge’s point of view, is twofold: first, he must develop the
common law in a fashion that conforms to his duty not to disproportionally limit consti-
tutional rights. Secondly, he must act within the confines of the specific dispute in a
fashion which conforms to the parties’ constitutional rights vis-à-vis the state.
This model was developed in American constitutional law, wherein constitutional
rights are directed towards the state. In the New York Times Co v Sullivan case28 it was
triggered regarding the development of the rules of defamation in tort law. In this case,
the discussion concerned a claim of defamation filed by Sullivan (a public figure) against
the New York Times. It was decided that the court must develop the common law of
defamation according to the First Amendment. In the Shelley v Kraemer case29 it was
applied to prevent discriminatory remedies in individual disputes. Here, the Shelley fam-
ily (an African-American family) had purchased a home. Kraemer lived in that same
neighbourhood. He applied to the court in order to prevent the Shelley family from gain-
ing possession of the home as the latter would have contradicted a restrictive covenant
applicable on the house, according to which a ‘Negro’ could not purchase the home. The
Supreme Court ruled that a judge cannot provide an injunction which would limit the
principle of equality found in the Fourteenth Amendment.
The third model – so long as it is regarding an individual dispute – is wrong.30 Despite
this, the third model is correct when it concerns the common law. According to my point
of view, the common law is subject to the general constitutional structure.31 A common
law precedent may lawfully limit a constitutional right. To do so, it must fulfill the
requirements of the Limitation Clause – it must be proportional.32 Therefore, I believe
that the New York Times Co v Sullivan case33 was rightly decided. This is not the case in
Shelley v Kraemer.34 When the time comes for the judge to grant an injunction, he must
act according to the rules of the common law which is the legal framework where the
rules of the restrictive covenant and its enforcement were developed. If these rules allow
for the non-granting of a discriminatory injunction – he must act according to these
rules. If these rules determine that there is room to grant an injunction order, even if it is
discriminatory – he has the duty to lead to a change in these rules (only if he is autho-
rised to do so according to the judicial hierarchy (for example if the matter is brought
before the Supreme Court) or according to the rules of judicial power (in the federal law
27
For this model, see Gardbaum (n 23).
28
New York Times Co v Sullivan 376 US 254 (1964).
29
Shelley v Kraemer 334 US 1 (1948).
30
See the Dolphin Delivery case (n 25) paras 33–35 of Mcintyre J’s opinion.
31
See Barak, Proportionality (n 20) 118. See also n 93 below.
32
Barak, Proportionality (n 20) 121.
33
Sullivan (n 28).
34
Kraemer (n 29).
system)). The rules of the common law cannot limit constitutional rights, unless they
fulfill the requirements imposed by the legislation limiting the constitutional rights. So
long as the common law is not changed – he must act according to the rules of the com-
mon law. If not, the constitution’s provisions, which see the right to equality as a right
vis-à-vis the state alone and not vis-à-vis other individuals, becomes suddenly a right to
equality vis-à-vis another individual. The judge is not empowered to do so. If a constitu-
tion’s provision regarding the right to equality applies vis-à-vis the state alone, and not
in the relationship between individuals, there is no room for the conclusion that when a
dispute between individuals comes to court, the judge must determine the dispute in an
equal manner. This conclusion voids the constitutional provision according to which the
right to equality applies to the relationships between the individual and the state only.
Indeed, Shelley v Kraemer’s ruling was not sustained. Instead, the courts developed
the doctrine of state action.35 The application of the constitutional rights included in the
Bill of Rights vis-à-vis the judge are conditional on that individual, who according to the
claim, limits the constitutional rights in his relationship with others and carries out func-
tions which are traditionally the state’s. A significant amount of case law has been dedi-
cated to this matter and has determined when the nexus between the state and the
individual is sufficiently close, so close that it is possible to attribute the behaviour to the
state. This doctrine overrules, albeit not explicitly, the ruling in Shelley v Kraemer. In
light of the development of this doctrine, American law should no longer be seen as a
system which adopts the model of the application through the judiciary. There are those
who believe that the American approach adopts the indirect application.36
D. The Indirect Application Model
The fourth model is that of indirect application (unmittelbare Drittwirkung).37 According

to this model, the individual’s constitutional rights apply directly vis-à-vis the state and
indirectly vis-à-vis an individual. The individual should not fill the shoes of the state,
which possesses the duty concerning constitutional rights. An individual does not have
constitutional rights vis-à-vis another individual. The rights between the individuals are
at the sub-constitutional level (statute or common law) and not at the constitutional
level. Indeed, ‘the state’s duties to uphold human rights are not the same content-wise as
the individual’s duty to uphold human rights’.38 ‘The duty of the state to act equally vis-
à-vis the individual is not the same content-wise as the individual’s duty to act equally
vis-à-vis another individual’.39 The individual’s freedom of occupation vis-à-vis the state
is different in scope than the freedom of occupation of the individual vis-à-vis another
individual. However, the individual’s constitutional rights vis-à-vis the state apply indi-
rectly to the relationships between individuals. This indirect application is based on the
35
See E Chemerinsky, Constitutional Law: Principles and Policies, 3rd edn (New York, Aspen Law &
Business, 2006).
36
See Gardbaum (n 23).
37
For an analysis of this approach, see Alexy (n 12) 351; Kumm and Comella (n 12) 246.
38
CA 294/91 Jerusalem Community Burial Society v Kestenbaum 46(2) PD 464, 531 [1992] (in Hebrew)
(Barak J’s opinion).
39
HCJFH 4191/97 Recanat v National Labour Court 54(5) PD 330, 362 [2000] (in Hebrew) (Court President
Barak’s opinion).
386 Aharon Barak
assumption that each of the individual’s constitutional rights vis-à-vis the state have an
objective value aspect which is projected itself onto all of the law’s branches. This means
that the individual’s rights vis-à-vis the state to dignity, freedom, privacy and property
express objective values (but not rights) which shape the relationships between individu-
als within private law. These values are used for the interpretation of the private law, to
complete lacunae in it or develop it. To the extent that the existing private law limits
‘negative’ constitutional rights of the individual vis-à-vis the state, such law (statute or
the common law) is constitutional only if it is proportional. To the extent that such
existing law does not protect proportionally the ‘positive’ individual rights vis-à-vis the
state, the state must develop the private law to make it proportional.40
From the four models I discussed, this model is the proper one. It is accepted in most
legal systems where this problem has arisen.41 It applies within the framework of the
European Convention on Human Rights.42 Amongst the legal systems which draw on
the indirect application are Germany,43 Italy,44 the Netherlands45 and New Zealand.46
The indirect application model recognises the difference between the individual’s consti-
tutional right directed towards the state and the individual’s sub-constitutional (statute
or common law) right directed towards another individual. This difference is expressed
in the normative status of the right and its scope. Regarding the normative status – while
the individual’s right vis-à-vis the state is a right at the constitutional level, the individu-
al’s rights vis-à-vis another individual is at the sub-constitutional level. It is mostly found
in private law. As for the scope – the individual’s constitutional right vis-à-vis the state
is more expansive than the individual’s right vis-à-vis another individual. There are two
reasons for this: first, the objectives of the constitutional right are at full force vis-à-vis
the state. Second, in determining the scope of the individual’s constitutional right vis-à-
vis the state, one should consider the rationale at the right’s basis. No balance should be
made on the constitutional level between it and the considerations which justify the
right’s limitation (ie the public interest or rights of others). Balances should be made
only when determining the constitutionality of the limitation of the constitutional right
by a sub-constitutional law.47 With regards to the determination of the scope of the
40
Regarding this obligation see below, text at section IIIDv.
41
See A Barak, ‘Constitutional Human Rights and Private Law’ in D Friedmann and D Barak-Erez (eds),
Human Rights in Private Law (Oxford, Hart Publishing, 2001) 13.
42
Human Rights, as amended) (ECHR). See C Ovey and RCA White (eds), Jacobs and White: European
Convention on Human Rights, 4th edn (Oxford, Oxford University Press, 2002) 31; EA Alkema, ‘The Third-
Party Application of “Drittwirkung” of the European Convention on Human Rights’ in GJ Wiarda, F Matscher
and H Petzold (eds), Protecting Human Rights: The European Dimension: Studies in Honour of Gerard J
Wiarda (Köln, C Heymann Publishers, 1989) 33; RS Kay, ‘The European Convention on Human Rights and the
Control of Private Law’ (2005) 5 European Human Rights Law Review 466 ; A Clapham, ‘The “Drittwirkung”
of the Convention’ in Macdonald, Matscher and Petzold (eds), The European System for the Protection of
Human Rights (New York, Springer, 1993) 163. For the approach in international law, see JH Knox, ‘Horizontal
Human Rights Law’ (2008) 102 American Journal of International Law 1.
43
See Mak (n 3) 57.
44
ibid 104.
45
ibid 83.
46
See Hosking v Runting [2004] 7 HRNZ 301 (NZ). For an analysis of the case law, see A Geddis, ‘The
Horizontal Effects of the New Zealand Bill of Rights Act, as Applied in Hosking v Runting’ (2004) New
Zealand Law Review 681; P Rishworth, G Huscroft, S Optican and R Mahoney, The New Zealand Bill of
Rights (Oxford, Oxford University Press, 2003) 102.
47
See Barak, Proportionality (n 20) 80.
individual’s right vis-à-vis another individual, the scope of the right is determined by
the sub-constitutional law (such as a statute or common law) and is a product of the
balancing between the rationale at the rights basis and the rationale at the basis of the
constitutional rights of others or the public interest. The constitutionality of this balance
is determined by the Limitation Clause that is, this sub-constitutional law is constitu-
tional only if it is proportional.
The indirect application model does not blur the distinction between the individual’s
constitutional right vis-à-vis the state and the individual’s right vis-à-vis another indi-
vidual. According to this model, the rights which exist between individuals are not con-
stitutional rights. They are not a part of the constitution, but rather, they are part of the
sub-constitutional law. They are anchored in regular legislation or the common law
(such as contract, tort, property and labour law). The rights and remedies for their
breach have been shaped by private law over hundreds of years. In this shaping there is
significant weight given to the fact that the constitutional law recognises the existence of
these rights vis-à-vis the state (vertical relationship). The existence of this relationship
affects directly the constitutionality of this sub-constitutional law, and it affects the
rights of individuals vis-à-vis the state. Thus sub-constitutional law affects indirectly the
rights between individuals (horizontal relationship). This influence is best expressed in
the interpretation of the norms in private law, in the completion of the lacunae within it,
and the development of new and proportional private law. Hence the difference between
this approach and the non-application model. The non-application model creates a bar-
rier between the constitutional rights and private law. This barrier is cracked only when
the lack of the non-application model determines that the development of the common
law is affected by constitutional rights. The indirect application model takes a much
stronger position. The influence of the constitutional rights on common law is extensive
and much stronger in the indirect application model than in the non-application model.
Private law, made by statute or common law,48 infringes on the constitutional right of
each individual vis-à-vis the state, and therefore is subject to the Limitation Clause.
The relationship between the indirect application model and the application through
the judicial model are complex. On the one hand, both models provide that the constitu-
tional rights apply only vertically. According to both models, the legislator and the judge
must act to suit legislation and common law to constitutional rights. For this reason the
decision in the New York Times Co v Sullivan49 case befits both models. On the other
hand, the indirect model option sees the constitutional rights as objective values work-
ing within private law and according to it. This is not true regarding the application to
the judiciary. The state action doctrine, as it has been developed in the United States,
operates outside of private law. Its operation is within public law, and the constitutional
right is directed not only towards the state, but also vis-à-vis individuals carrying out the
state’s functions.
48
ibid 118.
49
Sullivan (n 28).
388 Aharon Barak
III. THE INDIRECT APPLICATION MODELS IN ACTION
A. Constitutional Rights as Objective Values
The starting off point of the indirect application model is in the perception that consti-
tutional rights have both a subjective and objective aspect.50 The subjective aspect is the
duty that they impose on the state vis-à-vis the individual. Alongside the subjective
aspect there is an objective aspect (objektive Wertordnung). Every subjective constitu-
tional right reflects an objective value. These objective values operate on all of the law’s
branches. Thus, for example, human dignity has two elements – subjective and objec-
tive. The subjective element is expressed in the constitutional right to human dignity
granted to the individual vis-à-vis the state. The objective element is expressed by the
fact that human dignity is an objective value of the legal system in general and of private
law in particular.
This differentiation between the two elements of constitutional rights has been
expressed in the Lüth case given by the German Constitutional Court.51 The case exam-
ined the legality of Lüth’s behaviour, who asked the public to boycott a film directed by
a renowned Nazi. The movie’s producer applied to the Civil Court to prevent Lüth from
demanding the film’s boycott. The Civil Court ruled that Lüth’s behaviour was a civil
wrong, as it fell within the boundaries of section 826 of the German Civil Code (BGB)
which sets out:
A person who, in a manner contrary to public policy, intentionally inflicts damage on another
person is liable to the other person to make compensation for the damage.
Lüth applied to the Constitutional Court. He claimed that the ruling limited his con-
stitutional right to freedom of expression. The Constitutional Court ruled that Lüth’s
constitutional right to freedom of expression was an objective value of the legal system.
The term ‘public policy’ found in section 826 of the BGB should be interpreted in a man-
ner consistent with this objective value. Considering the case’s circumstances, Lüth’s
behaviour should not be considered as offensive to ‘public policy’.
Lüth’s constitutional right to freedom of expression was directed towards the state
alone. Lüth had no constitutional right to freedom of expression vis-à-vis the film’s pro-
ducer. However, in the relationship between Lüth and the producer the objective value
of freedom of expression did apply. This value influences the meaning of the private
law’s provisions on ‘good morals’ and other ‘valve concepts’ of private law.
We will now examine the different channels through which the objective aspects of
the constitutional right affects private law (statute or the common law). I will discuss
three main channels: (1) the interpretation of the private law; (2) referring to the gaps
and the negative arrangement in private law; and (3) developing private law.
50
The use of the terms ‘subjective’ and ‘objective’ in this context was taken from German constitutional
theory. The subject aspect regards the individual’s right vis-à-vis the state. The objective aspect is regarding the
constitutional value which applies to all relationships in the law.
51
7 BVerfGE 198 (1958) (Ger).
B. First Channel of Application: Interpreting Private Law
i. The Objective Aspects of Constitutional Rights and the Interpretation of Private Law
The indirect application model assumes that constitutional rights apply only to the rela-
tionship between the individual and the state. However, each of the individual’s consti-
tutional rights vis-à-vis the state expresses one of the legal system’s objective values.
This objective value is not limited to the relationship between the individual and the
state. It applies to all legal fields, and all legal relationships, including the relationship
between individuals. It applies to private law.52
These objective value elements – derived from the individual’s constitutional rights
vis-à-vis the state – have significant importance in private law. It is expressed in the
interpretation of statutory private law. This interpretation in Israel is purposive inter-
pretation.53 According to this interpretation, the statute text is given the interpretation
which fulfills its purposes. This purpose, on a high level of abstraction, includes the
fundamental values of the legal system.54 These make up ‘a normative umbrella spread
out above all legislation’.55 The latter expresses the fact that the law is ‘a living creature
within its environment’.56 The law’s environment includes ‘not only the legislative con-
text in proximity, but also extended circles of accepted principles, fundamental purposes
and basic standards’.57 These fundamental principles include the objective values at the
foundation of the constitutional rights. These values penetrate into private law through
purposive interpretation. Therefore, the rules of contract, tort or property found within
private law should be interpreted in a manner which fulfills human dignity, liberty,
property and the other objective values derived from constitutional rights.
Like all fundamental principles which shape statutory purposes, they are in constant
conflict.58 The objective aspect of one constitutional right (freedom of expression) con-
flicts with the objective aspect of a different constitutional right (privacy). Sometimes
the objective aspect of the constitutional right conflicts with objective principles like
public interest, such as security, public order and health. This conflict is not solved by
the ‘victory’ of one objective aspect and the ‘loss’ of another or that of the public inter-
est. The solution to this conflict within the legislative purpose is through balancing
between the conflicting values according to their importance at the decision point. This
is an interpretive balancing.59 Interpretive analogy can be used for the needs of this bal-
ancing from the element of proportionality stricto sensu from the rules of constitutional
52
CA 6601/96 AES System Inc v Saar 54(3) PD 850,860 [2000] (in Hebrew).
53
See Barak, Purposive Interpretation (n 10) 370.
54
ibid 381.
55
See CA 165/82 Kibbutz Hatzor v Assessing Officer 39(2) PD 70, 75 [1985] (in Hebrew) (Barak J’s opinion).
See also CA 2000/97 Lindorn v Carnit – Road Accident Victims Fund 55(1) PD 12, 29 [1999] (in Hebrew):
‘Alongside the specific purpose at the foundation of the defendant’s right is the general purpose. This is an objec-
tive purpose. It reflects the core values of the system . . . it is an expression of the understanding that legislation is
not a one-off act of a passing legislator, but rather a link of legislative creation of a permanent legislator. It makes
up a ‘normative umbrella’ spread above all of the legislation . . . This general purpose “trickles” into the purpose
of all legislation. It is an expression of the structure of the system and its values’ (Court President Barak).
56
HCJ 58/68 Shalit v Minister of the Interior 23(2) PD 477, 513 [1970] (in Hebrew).
57
Kibbutz Hatzor (n 55).
58
59
Regarding the interpretive balancing, see Barak, Proportionality (n 20) 72.
390 Aharon Barak
proportionality.60 However, the Limitation Clause has no application. We are dealing

here with a balancing for purposive interpretation and not for constitutional validity.
ii. The Interpretation of Valve Concepts

a. Interpretation in Light of the Objective Aspects of Constitutional Rights
A special case of the interpretation of the private law exists when private law uses valve
concepts (ventilbegriffe; conceffi volvola). Examples of these are good faith, public pol-
icy or negligence. These are shaped as principles (to distinguish from rules).61 They
reflect society’s values and its basic principles. They provide the legal system with the
appropriate flexibility. With their help, the legal system conforms to changing needs, yet
still remains true to itself. Both legislation and the common law use these valve concepts
to prevent stagnation within the law and to match up the law to changing conditions.
The interpretation of the valve concepts which apply in private law is done on the
background of the basic values of the legal system. These include the objective aspects of
the constitutional rights to human dignity, freedom, property, privacy, freedom of
movement and occupation. Indeed private law’s valve concepts take on a meaning which
is influenced by the objective aspect of constitutional rights. This objective aspect has a
‘radiating effect’ on the valve concepts.62 The valve concept’s content is determined
through the interpretive balancing between all the values which express it, and, within
them, the objective aspect of the subjective constitutional rights. I will demonstrate this
through two of private law’s important valve concepts: public policy and good faith.
b. Public Policy

One of the most important valve concepts is public policy. It operates in both public and
private law alike. Through this concept ‘the legal system ensures the constant flow of
fundamental values into the private law. This ensures harmony in the legal system.
Through “public policy” the legal system ensures the proper behavior in interpersonal
relationships’.63
The main components of public policy are the values which make up the objective
aspect of constitutional rights. Public policy is the fulfilling of values such as human dig-
nity, freedom, privacy, property and freedom of occupation. Needless to say, alongside
these values are additional values which reflect the public interest. These values are in
conflict.
Often these basic principles conflict with one another . . . One’s freedom of occupation limits
another’s freedom of contract. One’s freedom of expression limits another’s human dignity.
This is particularly obvious within the framework of ‘public policy’ in contract law, as one of
the basic principles of our legal system is the principles regarding freedom of contracts . . . and
one of the fundamental rights of man that should be considered is that of the autonomy of the
individual’s will. This is part of human dignity and liberty. Contractual relationship is an
expression of this autonomy. Freedom of contracts is a constitutional right. When the con-
60
ibid 75.
61
Regarding the differentiation between principles and rules in this context, see ibid 70.
62
Regarding the ‘doctrine of radiation’ see Alexy (n 12) 352.
63
Recanat (n 39) 363 (Court President Barak’s opinion).
tract’s content limits freedom of occupation, human dignity, freedom of movement, freedom
of conscience and religion or freedom of expression – ‘public policy’ should not be shaped
based on a simple use of these principles.64
The solution to this conflict is found through proper balancing which reflects the rela-
tive importance of conflicting values. ‘In determining the scope of “public policy” there
must be an internal balance between conflicting interests and values’.65 Thus,66
only when the weight of the principles regarding freedom of contracts and the autonomy of the
individual’s will is smaller than the weight of the opposing value – only then is there room to
void a stipulation in a contract, or the entire contract, due to a conflict of public policy.
Procaccia J was right to state that ‘determining the scope of public policy requires a deli-
cate and complicated balance between conflicting values and interests’.67 This balancing
may be learnt, through interpretive analogy, from the rules of balancing set forth in the
rules of constitutional proportionality.68
c. Good Faith

Good faith, for the purpose of this chapter, is an objective standard. It expresses a stand-
ard of honesty, fairness and allegiance between adversaries.69 It is meant to determine
that a person ensuring their matters, must do so in a manner which is fair and all the
while considering the other party’s justifiable expectations. ‘Human being to human
being, one cannot behave like a wolf, but one is not required to be an angel. Human
being to human being, one must act like a human being’.70
The honesty and fairness between rivals are required by good faith and shaped by the
values which make up the objective aspect of the constitutional rights. Good faith
reflects the consideration of objective values regarding human dignity, privacy, property
and liberty. Good faith is indeed a ‘pipeline’71 through which the objective values of the
legal system flow through, and reflect the values of the constitutional right into private
law. Additional values, related to the interpersonal behaviour of those with opposite
interests, also flow into it. These values are in constant conflict. Good faith reflects the
proper balance between them. This balance expresses the relative social importance
of the conflicting values.72 In determining this balance it is possible to learn, through
analogy, from the rules of balancing that are part of constitutional proportionality.73
64
Kestenbaum (n 38) 533 (Barak J’s opinion).
65
CA 5258/98 A v B 58(6) PD 209, 222 [2004] (in Hebrew) (Court President Barak’s opinion). See also Saar
(n 52).
66
Kestenbaum (n 38) 533 (Barak J’s opinion).
67
CA 11081/02 Dolev v Kadosh 62(2) PD 573, 603 [2007] (in Hebrew) (Procaccia J’s opinion).
68
See A Barak, Proportionality: Constitutional Rights and their Limitations (Srigim Li On, Nevo Publishing,
2010) 101 (in Hebrew).
69
FH 22/82 Beit Yules v Raviv 43(1) PD 441, 484 [1989] (in Hebrew); CA 1966/07 Ariel v Pension Fund of
Egged Members Ltd (9 August 2010), Nevo Legal Database (by subscription) (in Hebrew).
70
LCA 6339/97 Roker v Salomon 55(1) PD 199, 279 [1999] (in Hebrew) (Court President Barak’s opinion). See
also HCJ 59/80 Beer-Sheba Public Transport Services Ltd v National Labour Court 35(1) PD 828, 834 [1980] (in
Hebrew); Beit Yules (n 69).
71
Roker (n 70) 279.
72
73
ibid 101.
392 Aharon Barak
iii. Interpretation of Private Law and its Validity

What is the case if the interpretation of private law – interpretation which takes into
consideration the objective aspect of the constitutional rights – leads to a result which
does not completely express this aspect? This occurs when private law determines
arrangements which do not match up with the interpretive balance between the objec-
tive aspects of constitutional rights or between the other constitutionally protected
objective values. What is the effect of this private law? The answer is that the constitu-
tionality of this private law will be tested. Indeed, this private law is an act of the state
(whether legislation or common law). To the extent that this private law can limit the
individual’s constitutional rights vis-à-vis the state, the limitation will lead to the uncon-
stitutionality of the private law unless it fulfills the requirements of the Limitation Clause
in general and the requirements of proportionality stricto sensu within it in particular.
Thus, the radiation of the objective values at the foundation of constitutional rights
onto private law does not ensure, in and of itself, that this private law is constitutional.
It is possible that due to linguistic limitations, and the existence of additional and con-
tradictory values, the means used by legislation and its interpretation, will lead the inter-
preter to conclude that private law limits individuals’ constitutional rights vis-à-vis the
state, and that this limitation is not proportional.
C. Second Channel of Application: A Negative Arrangement and Lacunae
i. The Silence of Private Law

The interpretation of private law assumes the existence of relevant legal text. What hap-
pens if this text does not exist? If the absorption of the constitutional rights as objective
values in private law is done through private law’s provisions – what happens if there is
no relevant private law? Is this really the failure point of the indirect application?
In order to answer this question we must list the different meanings of silence in pri-
vate law.74 This silence has different voices. For this purpose, the two relevant meanings
that can be given to such a silence are negative arrangement and lacuna.
ii. Negative Solution

A negative solution is based on an interpretive conclusion, according to which the solu-
tion determined in the law contains an implicit negative solution regarding matters not
regulated by law. At times the negative solution will reflect the objective aspects of con-
stitutional rights. In this situation, the indirect application is resolved by the negative
solution. But what is the case if a negative solution refuses the radiation stemming from
the constitutional right’s objective values? What is the destiny of the indirect application
in this situation? Does the latter mean that the indirect application of constitutional
rights is not possible?
My answer is that the non-expression of the objective aspects of constitutional rights
may disproportionally limit the individual’s constitutional rights vis-à-vis the state
which determined the negative solution. The result may be that the negative solution is
74
unconstitutional. Indeed, the destiny of a negative solution regarding constitutionality is

the same as that of a positive solution regarding constitutionality. They both can dispro-
portionally limit the individual’s constitutional right vis-à-vis the state.
iii. Lacunae
We assume that the private law does not determine a text which should be interpreted
with the constitutional right’s objective aspect in the background. We also assume that
the lack of legislative text stems from a lacuna. Is the significance of the latter that there
is no room for indirect application?
In order to answer this question we must first examine the rules of lacunae and the
reaction to the lacunae. If the court does not have the authority to complete the lacunae
in the legislation – as is the case in most common law legal systems75 – then the lacunae
remains as is. The solution to this legal problem will exhaust itself within the boundaries
of the common law. The common law makes up a ‘security net’ which is meant to solve,
amongst others, most of the legislative lacunae. The only thing to examine is if this com-
mon law – similar to that of a negative solution – is constitutional. In most continental
legal systems and in Israel, the court has the authority to complete a lacuna in the law.76
This complementary law is based on completion through analogy from a similar legisla-
tive norm from private law. Without a suitable analogy the judge looks to the general
principles.
Completion of lacunae is not merely an authority given to the judges. It is a duty
imposed upon them. Once the lacuna in the legislation has been discovered, the judges
must complete it according to the rules used in their legal system to do so. Once the
completion of the lacuna has been completed, new law has been added to private law.
This complementary law was created by the judicial authority. This is sub-constitutional
law. It adds a complementary norm to the legislation. Like the rules of the common law,
this rule may also limit the individual’s constitutional right vis-à-vis the state. The con-
stitutionality of this limitation will be determined according to its proportionality.
D. Third Application Channel: Creating New Private Law
i. New Legislation and Developing the Common Law

The interpretation of private law – including its valve concepts – may lead to the conclu-
sion, that these solutions cannot ‘absorb’ the radiation of the objective aspect of the
constitutional rights. In addition, this interpretation may lead to the conclusion, that the
lack of solution in private law regarding the absorption of objective values is not a nega-
tive solution nor does it mean there is a lacuna. Has this situation led to the end of the
road for the indirect application model? My answer is in the negative. If private law does
not exist – it should be created. The legislator (in the framework of the legislation) and
the judge (in the framework of the common law) cannot wash their hands of this. They
should create new law (legislative or case law) which can express the objective values of
the constitutional rights.
75
ibid 69.
76
ibid.
394 Aharon Barak
ii. New Legislation

Much of private law is legislated. If there is no legislation which can ‘absorb’ the objective
aspects of constitutional rights, there is no escape from new legislation. The legislator will
legislate new laws to solve the problem not yet solved in private law. Through its content,
the new legislation will express the objective aspect of the constitutional rights. This will
be done through the legislative recognition of new individuals’ sub-constitutional rights
vis-à-vis other individuals.
iii. The Development of the Common Law

In the common law legal systems the judge’s power to create law is recognised. Contract
and tort law in most common law legal systems are case law, where little legislation is
involved. This development in the case law must take place here as well. When a judge
encounters a legal problem regarding an interpersonal relationship whose basic values
are derived from the objective aspect of the individual’s constitutional rights vis-à-vis
the state, the judge should develop the common law in a manner that the basic constitu-
tional values will be absorbed into private law. The development of the common law
will translate the objective aspect of the constitutional rights into sub-constitutional law
creating rights of individuals vis-à-vis other individuals. This approach was adopted by
the Constitution of South Africa that provides:77
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common
law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation is in
accordance with Section 36(1).
From this provision it appears that the development of the common law is the duty of
the judicial authority. It is needless to repeat that this development of the common law
is possible only when the legislation does not determine a contradictory solution. The
common law cannot change legislation. The judicial activity in the development of the
common law, as in Holmes’ much quoted phrase, is ‘interstitial’.78
The Israeli Supreme Court acted along these lines when it recognised compensation
for a limitation of the individual’s will where surgery was carried out without the
patient’s informed consent.79 Similarly the Supreme Court was asked to recognise proce-
dural arrangements which would allow for the exposure of the identity of online com-
mentators for slander. The request was denied by the majority.80
iv. Proportionality of New Legislation and the Development of the Common Law
New legislation and the development of common law must be proportional. Indeed,
development of private law by the legislature or the judiciary is a state action. This
action may limit a constitutional right of an individual. This limitation will be constitu-
77
South African Constitution, 1996, s 8(3). See also the South African cases (n 7 above).
78
See Southern Pacific Co v Jensen 244 US 205, 221 (1917).
79
CA 2781/93 Daaka v Carmel Hospital 53(4) PD 526 [1999] (in Hebrew).
80
LCA4447/07 Mor v Barak ESS Company for International Telecommunications Ltd (25 March 2010),
Nevo Legal Database (by subscription) (in Hebrew).
tional only if it is proportional.81 Therefore it must secure that the balance between the
conflicting objective aspects will coincide with the balance between the individual’s con-
stitutional right vis-à-vis the state and the constitutional rights of others. This balance
will be determined by proportionality stricto sensu.
v. New Legislation and the Development of the Common Law – Discretion or
Obligation?
a. Negative and Positive Rights
The indirect application model is based on existing private law, including the comple-
tion of lacunae, which ‘absorbs’ the objective aspect of the constitutional rights. Where
such private law does not exist, the absorption of the objective aspect will be carried out
by the new law anchored in legislation or common law, which develops private law. The
question that arises in this matter is, is the development of this private law a discretion-
ary activity by the legislator (in developing legislation) or the judge (in developing the
common law) or a duty imposed upon them? If development of private law is not an
obligation it raises the question of the efficiency of the indirect application model.
The answer to this question leads us to an important issue of constitutional law,
regarding the ‘positive’ aspect of constitutional rights.82 The question is if the constitu-
tional rights are but negative rights, meaning, rights which impose duties on the state
(legislative, executive or judiciary) not to limit the right holder, or whether they are also
positive rights, meaning, those rights which impose a duty on the state to protect the
right holder. When the approach is that the state duty is only a negative one, no duty to
protect the individual’s constitutional right is imposed. This means the lack of duty to
develop the private law in the spirit of the indirect application model. If, on the other
hand, the duty of the state is also a positive duty, then the state must protect the
individual’s constitutional rights vis-à-vis from infringement by another individual.
The state will have fulfilled its duties by developing the law according to the objective
aspect of the constitutional right. The state will do so, inter alia, if it recognises the sub-
constitutional right of the right holder vis-à-vis other individuals. It will make up part of
the private law.
The answer to the question of the ‘positive aspect’ of the constitutional rights changes
from legal system to legal system. American law does not recognise, in principle, the
positive aspect.83 The Bill of Rights is meant to prevent limiting constitutional rights by
the state. They are not meant to impose upon it the duty to protect the individual. Other
legal systems recognise the positive aspects of a number of rights, but not them all.84
81
See Barak, Proportionality (n 20) 118. See also South African Constitution, 1996, s 8(3)(b).
82
Regarding this issue, see Barak, Proportionality (n 20) 422. See also D Grimm, ‘The Protective Function of
the State’ in G Nolte (ed), European and US Constitutionalism (Cambridge, Cambridge University Press, 2005)
137, 138; A Mowbray, The Development of Positive Obligations Under the European Convention on Human
Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004); S Freedman, Human Rights
Transformed: Positive Rights and Positive Duties (Oxford, Oxford University Press, 2008); H Shue, Basic
Rights: Subsistence, Affluence, and US Foreign Policy, 2nd edn (Princeton, Princeton University Press, 1996)
155.
83
See Jackson v City of Joliet 715 F 2d 1200, 1203 (1982).
84
Eg, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention
on Human Rights, as amended) (ECHR) recognizes the positive aspect of a number of rights. See Mowbray
(n 82).
396 Aharon Barak
German constitutional law recognises the general positive aspect of all constitutional
rights (the schutzpflicht)85 and this is the case in the Constitution of South Africa.86
The situation in the Israeli legal system is not free from doubt. It seems that the right
to life, body and dignity has both a positive and negative aspect.87 The negative aspect
(the state’s duty not to limit a constitutional right) is expressed in section 2 of Basic Law:
Human Dignity and Liberty:88
There shall be no limitation of the life, body or dignity of any person as such.
The positive aspect (the state’s duty to protect the constitutional right) is determined in
section 4 Basic Law: Human Dignity and Liberty:89
All persons are entitled to protection of their life, body and dignity.
Through this positive aspect the state in Israel is under a duty to protect the individual’s
life, body and dignity from their infringement by other individuals.90 The question which
has not yet been resolved in Israel is if the positive aspect of the constitutional right
applies only regarding the right to life, body and dignity included in section 4 of the
Basic Law or does it extend to the entirety of the constitutional rights in this Basic Law
(property, liberty, mobility and privacy) and in Basic Law: Freedom of Occupation
(freedom of occupation).
Recognizing the positive aspect of the constitutional rights (all or some of them) raises
two questions. First, do we find vis-à-vis the state’s duty the individual’s right? Second,
how can an individual realise the positive duty?
b. Fulfilling the Duty in Positive Rights

Regarding the first question, I believe that if a duty is imposed on the state to protect
certain values, then opposite such duty stands the individual’s right.91 The state’s duty is
the individual’s right. Indeed, Basic Law: Human Dignity and Liberty, explicitly states
that ‘all persons are entitled’92 to protection of their life, body and dignity. Human dig-
nity is not only a ‘negative’ right, but also a ‘positive’ right. There is a constitutional
obligation on the legislature, the executive and the judiciary to protect positive rights of
individuals. It is not at their discretion – it is an obligation. Therefore, the judiciary is
obliged to develop the common law in a manner that will guarantee protection of his
rights vis-à-vis the state.93
85
See Grimm (n 82) 143.
86
See South African Constitution, 1996, s 7(2).
87
See HCJ 2557/05 Majority Camp v Israel Police 62(1) PD 200 [2006] para 10 of Barak J’s opinion (in
Hebrew); HCJ 6427/02 Movement for Quality Government v Knesset [2006] 61(1) PD 619 [2006] para 31 of
Barak J’s opinion (in Hebrew).
88
Basic Law: Human Dignity and Liberty, s 2.
89
ibid, s 4.
90
HCJ 366/03 Commitment to Peace and Social Justice Society v Minister of Finance [2005] 60(3) PD 464,
479 (Court President Barak’s opinion).
91
See Grimm (n 82) 153; Alexy (n 12) 301.
92
Basic Law: Human Dignity and Liberty, s 4.
93
See Carmichele (n 7) in which the South African Constitutional Court imposed a duty on the courts to
develop tort law so that it will recognize the duty of the police to take actions in order to protect individuals
from the aggression of other individuals.
How does the individual fulfill his positive right? My answer is that he will do so in
one of the fashions available to him to realise his negative right. The German
Constitutional Court has more than once ordered the legislature to use its legislative
powers to fulfill the positive aspect of the constitutional rights.94 In common law legal
systems the right holder can ask the court to use its power to create common law.95
Needless to say, if this common law is not to the legislator’s liking, it has the power to
void or change this case law.
The positive aspect of the constitutional rights – similarly to the negative aspect –
does not recognise an absolute positive right. This is a relative positive right. It can be
limited by a proportional legal provision (statute or common law). Therefore, if not
every positive aspect of the constitutional right is protected by the legal system, it is pos-
sible that this situation is constitutional as it is also proportional.96 New legislation that
protects the positive right must be proportional. This is also the case for new common
law. Legislation which voids or changes the common law and fulfills the positive aspect
is constitutional only if it is proportional.
IV. THE INDIRECT APPLICATION IN ISRAEL
The Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation
determine a list of constitutional rights. The language of the Basic Laws does not deter-
mine who are the right holders. There is no explicit determination to the question if
these rights are directed towards the state only or also towards other individuals. Both
Basic Laws set forth that ‘all governmental authorities are bound to respect’97 the rights
determined within them. It was not determined that this obligation is imposed only on
the state. The question of the application of the constitutional rights in interpersonal
relationships (horizontal), is seemingly open and given to interpretive determination by
the court.
The issue arose for the first time during the Jerusalem Community Burial Society v
Kestenbaum case.98 This case dealt with the question of whether relatives of the deceased
could be granted the right to add onto the tombstone the deceased’s name in Latin letters
as well as her date of birth and death in numbers. In my opinion I noted that this right
could be based on the rules of private law. In this context I mentioned that the condition
regarding having solely Hebrew letters, which arose from the contract signed by the
deceased’s husband, was contrary to public policy and was therefore void. This conclu-
sion was based on the indirect application model, while noting that the question of
direct application remained open.99 The line of thinking on which the case was examined
was:100
[T]he basic principles of the system in general and a person’s human rights in particular are not
limited to public law. The differentiation between public and private law is not so severe. The
94
See Grimm (n 82) 153. See also Oliver and Fedtke (n 3) 153.
95
See Rami Mor (n 80) Rubinstein J’s opinion.
96
97
98
Kestenbaum (n 38).
99
ibid 530.
100
ibid.
398 Aharon Barak
legal system is not a confederation of legal fields. It makes up a unification of method and just
ice. Therefore, basic principles are principles of the entire system, and not solely of public law.
The question I discussed in my opinion was ‘how do basic principles of public law flow
into private law, and from there they are delivered into the individual’s behavior in his
relationship with other individual’s’.101 In my answer I referred to the principles of inter-
pretation.102 In addition, I mentioned that ‘private law includes a number of doctrines,
which use tools through which the basic principles of the system in general and the per-
son’s basic rights in particular flow into private law’.103 One of those doctrines is that of
public policy. I noted that ‘this provision . . . channels into private law the basic princi-
ples of the law in general and basic human rights in particular’.104 I emphasised that:
[B]y transferring the basic principles of the system in general and the person’s human right in
particular from public law into private, they were changed. The state’s duty to fulfill human
rights is different in content to the individual’s duty to fulfill human rights. It is clear the state’s
duty is more severe and that the protection of basic right vis-à-vis it is more expansive.
However, every individual must also respect another individual’s basic rights. Indeed, the indi-
vidual’s duty to fulfill the other’s basic rights is derived from the same source that the state’s
duty is derived from – these are the basic social understandings and the basic legal principles
that the legal system is built upon.105
The question of the indirect application arose again in the AES System Inc v Saar
case.106 In this case an employee signed a non-compete agreement. The question was if
this agreement was valid. As in the Jerusalem Community Burial Society v Kestenbaum
case,107 it was decided that the agreement was void as it contradicted public policy. The
indirect application model of constitutional rights has been recognised in all fields of
private law.108 Thus, for example, it applies in contract law,109 tort law110 and labour
law.111
V. CONCLUSION
With the recognition of the state’s duty to act – as well as the scope of this duty – the
cycle is complete. The subjective constitutional right which operated in the relationship
between the individual and the state on the constitutional level becomes the individual’s
101
ibid.
102
ibid.
103
ibid.
104
ibid 531.
105
ibid; see also CA 3156/98 Ben Yishai v Veingarten 55(1) PD 939, 952 [1999] (in Hebrew).
106
Saar (n 52).
107
Kestenbaum (n 38).
108
See Hoffman (n 3).
109
HCJ 2911/05 Elhannati v Minister of Finance 62(4) PD 406 [2008] (in Hebrew). D Barak-Erez and I Gilad,
‘Human Rights in Contract Law and Tort Law: The Quiet Revolution’ (2009) 8 Kiryat Hamishpat 11 (in Hebrew).
See also D Bhana and M Pieterse, ‘Towards a Reconciliation of Contract Law and Constitutional Values: Brisley
and Afrox Revisited’ (2005) 122 South African Law Journal 865.
110
Barak-Erez and Gilad (n 109).
111
See A Barak, ‘Constitutional Rights and Private Law: Application in Labor Law’ in Essays in Honor of
Elika Barak-Ussoskin (Tel-Aviv, Nevo Publishing, 2012). See also LA 90/08 Isakov Inbar v Commissioner for
Women Labour (8 February 2011), Nevo Legal Database (by subscription) para 8 (in Hebrew); LA 33680-08-10
Dizengoff Club v Zoili (16 November 2011), Pador Legal Database (by subscription) paras 11, 25 of Court
President Arad’s opinion (in Hebrew).
subjective sub-constitutional right vis-à-vis other individuals. This metamorphosis takes

place through three stages: during the first stage objective constitutional values are
drawn from subjective constitutional rights of the individual vis-à-vis the state. During
the second stage these objective values penetrate into private law – through interpreta-
tion and the completion of lacunae. During the third stage, the objective aspect of the
constitutional right penetrates into private law through new legislation or new common
law. If this legislation and development are the legislator’s and the judge’s duty – as they
are if the legal system recognises positive rights – then they have fulfilled their duty
through the legislative or common law recognition of subjective rights at the legislative
or common law level (at the sub-constitutional level) of the individual vis-à-vis the indi-
vidual. This sub-constitutional law is constitutional only if it is proportional.
It is important to note, that the indirect application model affects the interpersonal
relationships. However, it does not turn these relationships into constitutional relation-
ships. At the constitutional level it is the relationship between the individual and the
state. The relationship between individuals, whose content is affected by the indirect
application, is not at the constitutional level. It is at the sub-constitutional level. The
constitutional level expresses the individual’s constitutional right vis-à-vis the state to its
fullest extent. The constitutional possibility to limit this scope does not reduce it, but
rather affects the constitutionality of the sub-constitutional law which limits it.112 This
sub-constitutional norm – which reflects the private law as it was designed according to
the effects of the indirect application – does not express the full scope of the constitu-
tional right. Private law will express the constitutional right as it was limited by the
other’s constitutional right and by the public interest. The individual’s right in the pri-
vate law vis-à-vis another individual, will always be narrower in scope than the individ-
ual’s right vis-à-vis the state.113 The individual’s right vis-à-vis another individual, within
private law, reflects the proportional limitations on the fulfillment of the constitutional
right. It is an expression of the understanding that the individual’s constitutional right
vis-à-vis the state is conveyed into the private law as an individual’s right vis-à-vis
another individual. This right expresses the proportional limitations on the realization
of the constitutional right vis-à-vis the state in private law. While the scope of the indi-
vidual’s constitutional right vis-à-vis the state is wider than the scope of the sub-consti-
tutional right, the realization of the constitutional right vis-à-vis the state also happens
within the sub-constitutional law. Hence the similarity between the two. Nonetheless,
this similarity does not mean they are identical. This is due to the difference between the
principles and values at the balance.114
In many cases, the result reached by the indirect application model is not different
from the one achieved by the direct application model.115 A study of comparative law
emphasises that at times in the same legal system, two models of application are used,
without the court having defined the difference between them.116 A legal system (such as
German constitutional law) where all the stages occur – the transformation of a subjec-
tive constitutional right into an objective value, the penetration of objective values into
See Barak, Proportionality (n 20) 32, 83.

112
Kestenbaum (n 38) 531.

113
114
See HCJ 488/11 Medical Organization of Israel v Minister of Health (19 June 2011), Nevo Legal
Database (by subscription) (in Hebrew); Ben Yishai (n 105) 952.
115
See Kum and Comella (n 12).
116
See Oliver and Fedtke (n 3) 520–57.
400 Aharon Barak
private law through interpretation and the completion of lacunae, the duty to develop
the private law by the legislator – will make up solutions according to both very similar
methods of application. However, the difference between them should not be blurred.
The results will not always be the same; the objective aspect of every constitutional right
will not always be recognised; the purposive interpretation which grants an interpretive
status to the objective purpose of every legal norm will not always apply; the legal sys-
tem will not always agree to the penetration of objective values into its valve concepts; a
duty will not always be imposed on the legislator and judiciary to develop the law in a
fashion which fulfills the objective aspect of the constitutional rights. In any case where
one of the stages is not activated in a complete fashion, the difference between the direct
and indirect application models will be emphasised. Even if all stages are completely
activated, there will still be a clear difference between the direct and indirect application
models. This difference is expressed by the fact that in the direct application model the
individual has a constitutional right vis-à-vis another individual. The indirect applica-
tion model does not recognise a constitutional right between individuals. The indirect
application model recognises the individual’s sub-constitutional right (legislative or
common law) vis-à-vis another individual. This difference may have little practical sig-
nificance, because in both models the realization of the right, and the remedies for its
limitation, are on a sub-constitutional level. There may be little difference between the
content of a sub-constitutional law that realises the right of an individual vis-à-vis the
state and the content of a sub-constitutional law that realises the right of an individual
vis-à-vis another individual. Nonetheless, there is still a difference. The reason for this is
that the interests and values taken into account in forming a sub-constitutional law that
deals with the right of an individual vis-à-vis the state differs greatly from the interests
and values taken into account in forming a sub-constitutional law that deals with the
right of an individual vis-à-vis another individual.
26
Human Rights in Private Law:
Hybridization of the Balancing Tests
MICHAL TAMIR
I. INTRODUCTION
T
HE APPLICATION OF human rights in private law poses a complex challenge
to legal scholars.1 It combines private and public law in a way that calls for an
in-depth grasp of the basic assumptions of each and every legal field as well as
the need to adapt theories and narratives that propel law into an era in which the bound-
aries between the ‘private’ and the ‘public’ are blurred.2 It embodies the implementation
of constitutional doctrines (such as the rights discourse and the balance theory) within
the developed and comprehensive doctrine of private law and its basic assumptions. The
core of the clash between these worlds dates back to the philosophical origins of politi-
cal, social and legal discourse whereby the values of human dignity and equality – which
are dominant in constitutional law – clash with the values of freedom and autonomy
which characterise private law.3 In Israel, the application of human rights in private law
is a given. It is the outcome of a set of statutory arrangements4 alongside a set of funda-
mental judicial laws originating in Court President Aharon Barak’s judgment in the mat-
ter of Kestenbaum.5 Moreover, Israeli law and the ways in which it copes with the issue
constitute a comparative model for a great many countries which have recently been
grappling with the development of the constitutional doctrine and the application of
human rights in private law.6
1
MJ Horwitz, ‘The History of the Public/Private Distinction’ (1982) 130 University of Pennsylvania Law
Review 1423, 1424. The attack on the public/private distinction was the result of a widespread perception that
so-called private institutions were acquiring coercive power that had formerly been reserved to governments.
2
To the distinction between private and public law, see A Barak, Interpretation in Law: Constitutional
Interpretation, vol 3 (Jerusalem, Nevo, 1994) 649–50 (in Hebrew); D Barak-Erez, ‘Public Law and Private Law
– Overlaps and Mutual Influences’ (1999) 5 Law and Government 95, 95–99 (in Hebrew); A Bendor and
M Tamir, ‘Constitutional Clichés – Between Public Expression and Private Dignity’ (2002) 32 Mishpatim 623,
3
cf N Cohen, ‘Equality vs Freedom of Contract’ (1993) 1 HaMishpat 131, 131–32 (in Hebrew); H Keren,
Contract Law from a Feminist Perspective (The Hebrew University of Jerusalem, Sacher Institute for Legislative
Research and Comparative Law, 2005) 267–353 (in Hebrew).
4
Among the dominant laws are: Prohibition of Discrimination in Products, Services and in Entry into
Places of Entertainment and Public Places Law, 5761-2000; Employment Law (Equal Opportunities), 5748-
1988; Equality Right for People with Disability Law, 5758-1998.
5
6
Eg H Hershkoff, ‘“Just Words”’: Common Law and the Enforcement of State Constitutional Social and
Economic Rights’ (2011) 62 Stanford Law Review 1521, 1582.
402 Michal Tamir
Notwithstanding the above, whether applying human rights in private law is justified
or not is still a debatable issue among scholars.7 Furthermore, one can hardly say that
the topic was thoroughly addressed by the Israeli Supreme Court. Nonetheless, it
appears as though the discourse on this matter – worldwide as a whole and in Israel
specifically – left the justification stage behind a long time ago8 and switched to focusing
on the particular applications of the statutory arrangements and the application of the
judicial model for constitutional rights in private law. Thus, the main challenge cur-
rently facing Israeli jurists is that of defining legal tools for the development and proper
conceptualization of how, and to what extent, to apply human rights in private law.
In particular, it appears as though a significant question that requires development is
the relation between customary constitutional balancing9 and the balancing involved in
the application of constitutional rights in private law. It is an indisputable fact that once
constitutional rights become part of the fabric of private law, the balancing picture
changes and the current constitutional doctrines of balancing do not offer all the tools
required to achieve an appropriate application of constitutional rights. Thus for exam-
ple, one convention that highlights the difference is that the Limitation Clause10 – which
is part of the Basic Laws and embodies ‘vertical’ balance between individual rights and
public interest11 – cannot be applied in an analysis of human rights in private law. It fur-
ther appears that the simplistic implementation of the ‘horizontal balancing’ test devel-
oped in constitutional law to cope with the clash between two human rights of identical
constitutional status12 is irrelevant because of the different properties of private law
which do not allow for its application.13
This chapter is also based on the assumption that despite the clear difference between
the action of public authorities and that of individuals and despite the difficulty involved
in infringing on the autonomy of private will, the application of human rights must be
recognised in the modern state, even in private law. The chapter will accordingly focus
on attempting to depict the characteristics pertinent to the continued development of
law – namely to the judicial implementation of the application of human rights in pri-
vate law in concrete cases, primarily in contract law. The premise is that the differences
between public and private law need to be reflected in the discussion surrounding the
application of human rights in private law.14 As a fundamentally liberal country, Israel
7
H Dagan, ‘Values: The Limited Autonomy of Private Law’ (2008) 56 American Journal of Comparative
Law 809, 811.
8
See, eg D Barak-Erez and I Gilead, ‘Human Rights in the Laws of Contracts and Torts’ (2009) 8 Kiryat
Hamishpat 11, 36 (in Hebrew).
9
For some recent and helpful principles of constitutional balancing, see A Barak, ‘Proportionality and
Principled Balancing’ (2010) 4 Law & Ethics of Human Rights 2; S Gardbaum, ‘A Democratic Defense of
Constitutional Balancing’ (2010) 4 Law & Ethics of Human Rights 78.
10
See n 24 below and the accompanying text.
11
In his judgment in the Kestenbaum case, Court President Barak already made clear that the basic balanc-
ing in vertical relationships does not apply to horizontal relationships between individuals, because the sub-
stance of the duty to protect human rights and the extent of the protection are different (Kestenbaum (n 5)
531). Nonetheless, Professor Aharon Barak’s recent writings suggest the need for a broader use of the propor-
tionality test, embodied in the Limitation Clause, even in private law. See Barak, ‘Proportionality’ (n 9) 116.
12
See, eg HCJ 2481/93 Dayan v Wilk 48(2) PD 456, 475–76 [1994] (in Hebrew).
13
There are those who claim that the distinction between vertical and horizontal balancing stems from its
importance pursuant to the Basic Law since both types of balancing are included within the scope of propor-
tionality. See Barak, ‘Proportionality’ (n 9) 305.
14
cf BR Snyder, ‘Private Motivation, State Action and the Allocation of Responsibility for Fourteenth
Amendment Violations’ (1990) 75 Cornell Law Review 1053, 1061 (explaining that when a private party acts,
Human Rights in Private Law 403
shall not forego freedom of contract or the autonomy of individual will and the courts
must be cautious about establishing balance when the legislator fails to do it. In part II,
I will briefly review the development of the application of constitutional rights in private
law in Israel. Part III will focus on the groundbreaking decision in the Kestenbaum case.
In part IV, I will attempt to propose several relevant indices for balancing between con-
stitutional rights in private law, which will likely be instrumental toward defining crite-
ria to achieve ‘private balancing’ between constitutional rights in the realm of private
law. Part V briefly sums up and demonstrates implementation of the suggested criteria
on the Kestenbaum case.
II. GENERAL BACKGROUND
In 1992, the State of Israel underwent a ‘Constitutional Revolution’15 through the enact-
ment of two Basic Laws protecting human rights,16 namely: Basic Law: Human Dignity
and Liberty and Basic Law: Freedom of Occupation. This revolution emphatically
placed the question of the application of these constitutional human rights in private law
on the public agenda.17 The Basic Laws – which achieved supra-legal constitutional sta-
tus by virtue of Supreme Court judgments18 – raised a question which could also apply to
other constitutions worldwide: does the constitution also apply in private law? Is the
rationale underpinning human rights confined solely to protecting the individual against
governmental violations, or are the interests protected by the Basic Laws also relevant to
violations by private individuals?19
In Israel, this question may be particularly complex. Whereas the Basic Laws expressly
state that these rights ‘shall be upheld in the spirit of the principles set forth in the
Declaration of the Establishment of the State of Israel’,20 and that their purpose is to
establish in a Basic Law ‘the values of the State of Israel as a Jewish and democratic
state’21 – that is that they are intended to shape the character of Israeli society – the spe-
cific provisions in the Basic Laws expressly address the legislature and governmental
authorities. The section pertaining to rights violations, which has earned the title of ‘the
Limitation Clause’, addresses the legislature and states:
it does so on its own behalf. In contrast, government actors ultimately derive their authority and power from
the citizenry, who expect them to actively promote the public interest).
15
See R Gavison, ‘Round Table: Israeli Constitutionalism’ (2005) 6 Yale Israel Journal 25, 27.
16
See AL Bendor, ‘Is It a Duck? – On the Israeli Written Constitution’ (2005) 6 Yale Israel Journal 53.
17
See D Friedmann and D Barak-Erez, ‘Introduction’ in D Friedmann and D Barak-Erez (eds), Human
Rights in Private Law (Oxford, Hart Publishing, 2001) 1, 1 (explaining that human rights were originally con-
ceived as rights and freedoms vis-à-vis the state and other public authorities).
18
See CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 49(4) PD 221 [1995] (in Hebrew)
extracted in (1997) 31 Israel Law Review 764, 770. See also, A Barak, ‘Human Rights in Israel’ (2006) 39 Israel
Law Review 12 (discussing the two major periods in Israeli history: the first period – from the formation of the
State in 1948 up to the enactment of the Basic Laws pertaining to Human Dignity, Liberty and Freedom of
Occupation in 1992; and the second period – from the enactment of these Basic Laws to the present).
19
cf A Barak, ‘Constitutional Human Rights and Private Law’ in D Friedmann and D Barak-Erez (eds),
Human Rights in Private Law (Oxford, Hart Publishing, 2001) 13, 13 and the related footnotes (determining
that the applicability of constitutional human rights within the sphere of private law is an issue of major
importance, which has arisen in most legal systems).
20
Basic Law: Human Liberty and Dignity, s 1A; Basic Law: Freedom of Occupation, s 1.
21
Basic Law: Human Liberty and Dignity, s 1; Basic Law: Freedom of Occupation, s 2.
404 Michal Tamir
There shall be no violation of rights under this Basic Law except by a law befitting the values
of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required
or by regulation enacted by virtue of express authorization in such law.22
In other words, the Basic Laws chart an express course for the Court, which requires
it to examine cases in which there is a clash between the right and public interest, but is
silent regarding clashes between rights as such. Moreover, the application clause, also
known as the ‘Respecting Clause’, provides that ‘all governmental authorities are bound
to respect the rights under this Basic Law’,23 so that the Basic Laws bind governmental
authorities, but not individuals, to respect rights. These problems are not purely seman-
tic. Protecting one’s rights in private law means violating the rights of another. It follows
that if the Court assumes the task of creating formulae for balancing rights, it will be
violating rights without statutory authorization.24 On the other hand, if it fails to protect
a civil right which has been violated by private law, the Court will be disregarding basic
rights vested by our constitutional document upon ‘a person per se’.25
Concurrently, the legislation regulating the clashes between human rights in private
law developed and generated its own balances. Thus, for example, the Defamation Law,
5725-1965, which preceded the Basic Laws, regulates the clash between reputation and
freedom of expression; section 2 of the Equal Opportunity in Employment Law,26 regu-
lates the issue of equality in private employment relations and prohibits an employer
from discriminating against employees or job seekers on grounds set forth in the law; the
Prohibition of Discrimination in Products Law,27 prohibits any person or private body
selling a product or public service from discriminating against a person on the grounds
set forth in that law.
It may therefore be said that, except where housing is concerned, legislation in Israel
currently regulates most areas in which rights clash in private law. Under these cir
cumstances – where the matter is regulated by legislation – given that this legislation is
constitutionally valid, the question of the application of rights in private law does not
arise and the only issue to be considered is the interpretation and implementation of the
legislation. However, the difficult questions have inevitably been left unresolved. Thus,
for example, is a person entitled to refuse to let his or her apartment to an Arab, an
Ethiopian or a homosexual?
There are several models in various countries addressing the question of the applica-
tion of constitutional rights in private law, when the legislature does not give its own
answer in a specific enactment. The main models are: the Canadian ‘non-application’
model, according to which the Charter is applicable only in regard to the relations
between the citizens and the federal authorities or the authorities of the various
provinces;28 the American model of ‘application to the judiciary’, according to which
although the constitution is not applicable in the private law, courts would not give a
22
Basic Law: Human Liberty and Dignity, s 8. See also Basic Law: Freedom of Occupation, s 4.
23
Basic Law: Human Liberty and Dignity, s 11. See also Basic Law: Freedom of Occupation, s 5.
24
cf Barak, ‘Constitutional Human Rights’ (n 19) 42 (stating that it is imperative to take a clear constitu-
tional stand on the application of human rights in relationships between private parties, and that it is desirable
that such a stand be taken by the constitutional legislative body rather than left to the judiciary).
25
cf ibid 28.
26
Employment Law (n 4).
27
Prohibition of Discrimination in Products, Services and in Entry into Places of Entertainment and Public
Places Law(n 4).
28
See RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573 (Can).
remedy which infringes upon human rights since it is a ‘state action’;29 and the ‘direct
application’ model, explicitly applied by the South African Constitution,30 and prevail-
ing in a number of European countries by case law, according to which the constitution
is applicable in the private law.31
The Israeli Court has chosen the ‘indirect application’ model, developed in the
German Constitutional Court.32 In this model, constitutional human rights permeate
private law through private law doctrines and mainly ‘safety valves concepts’ (concetti
valvola) such as ‘good faith’, ‘public order’ and ‘reasonableness’. These concepts, which
assess human behaviour with extra-legal yardsticks, are affected by constitutional
rights.33 Justice Aharon Barak adopted this model in the Kestenbaum case34 and further
fine-tuned it to adhere to the ‘reinforced indirect model’. According to this model, where
existing private law fails to grant a proper remedy to the right infringement, private law
is revised to provide a remedy as needed.35
Because the model of indirect application attracted followers in Israel, constitutional
human rights produced an impact on private law. Particularly prominent is the example
of the employment relationship with regard to the contractual sphere.36 Historically,
contracts restricting the business of a person following termination of her employment
were examined on the basis of ‘public order’.37 This concept is not defined by law and its
content is subject to courts’ interpretation. Generally it means ‘the main values, princi-
ples and interests that a given society wish to maintain in a given time’.38 When the basic
right of freedom of occupation began to permeate the safety valve concept of ‘public
order’, the latter changed its character and options to restrict employees following the
termination of their work are now much more limited.39
III. THE KESTENBAUM CASE
It appears eminently clear that the founding principles of the legal system in general and basic
human rights in particular are not limited solely to public law. The distinction between public
29
See Shelley v Kraemer, 334 US 1, 12–19 (1948); S Gardbaum, ‘The “Horizontal Effect” of Constitutional
Rights’ (2003) 102 Michigan Law Review 388, 412–14.
30
South African Constitution, 1996, s 8 (‘Application’). See also S Woolman, ‘Application’ in S Woolman,
T Roux and M Bishop (eds), Constitutional Law of South Africa, 2nd edn (OS, 2006) chs 31, 62–74 (describing
the current legal situation and the advisable one).
31
See Barak, ‘Constitutional Human’ (n 19) 14–17 (describing the adoption of the ‘direct application model’
in Switzerland and Germany).
32
The Lüth case, 7 BVerfGE 198 (1958) (Ger), described and discussed in DP Kommers, The Constitutional
Jurisprudence of the Federal Republic of Germany, 2nd edn (Durham, Duke University Press, 1997) 361–69;
C Starck, ‘Human Rights and Private Law in German Constitutional Development and in the Jurisdiction of
the Federal Constitutional Court’ in D Friedmann and D Barak-Erez (eds), Human Rights in Private Law
(Oxford, Hart Publishing, 2001) 97, 106–07.
33
Barak, ‘Proportionality’ (n 9) 163.
34
Kestenbaum (n 5).
35
See Barak, ‘Constitutional Human’ (n 19) 30.
36
See G Mundlak, ‘Human Rights and the Employment Relationship: A Look through the Prism of
Juridification’ in D Friedmann and D Barak-Erez (eds), Human Rights in Private Law (Oxford, Hart Publishing,
2001) 297, 298.
37
See, eg CA 312/74 Cables and Electric Threads Company v Kristianpoler 29(1) PD 316, 319–21 [1974] (in
Hebrew) (explaining that the restrictions must comply with two conditions: they are necessary to protect legit
imate interests of the employer and they are compatible with the public interest).
38
See A Barak, The Judge in a Democracy (Haifa, Haifa University Press, 2004) 259 (in Hebrew).
39
See, eg CA 6601/96 AES System Inc v Saar 54(3) PD 850, 873–77 [2000] (in Hebrew).
406 Michal Tamir
and private law is not that sharp. Legal method is not a confederation of legal fields – rather, it
unites method and law. Indeed, the basic principles are those of the method as a whole and not
of public law alone. Basic human rights do not target the government exclusively; they also
affect mutual relations between individuals themselves.40
These words written by Justice Barak in the Kestenbaum case, and frequently quoted
subsequently, mark the budding recognition of the impact of human rights in Israel on
private law.
In this case, the Court considered the clash between human rights and freedom of
contract in a case where the Jewish Burial Society refused to allow a man to write an
inscription on his wife’s tombstone in non-Hebrew characters, as the contract contained
a provision incorporating the Burial Society’s regulations, which Kestenbaum acknow
ledged with his signature. Justice Barak based his finding whereby the contractual provi-
sion was void on three alternative grounds: first, the fact that the provision was a
depriving condition in a standard contract, which entails its invalidation according to
the Standard Contracts Law.41 Second, the fact that the Burial Society was a hybrid
body,42 which was also subject to obligations imposed by public law. As such, it had to
draw a balance between human dignity and public interest in the Hebrew language, and
under these circumstances, the right to human dignity outweighed public interest. Third,
the percolation of the right to dignity through the concept of ‘public order’ in contract
law. Within the context of public order, a balance had to be drawn between human dig-
nity and the Burial Society’s freedom of contract – a balance where the right to human
dignity ultimately outweighed the freedom of contract.
Are Justice Barak’s grounds in the Kestenbaum case alternative? Let us modify the
data somewhat. In the theoretical situation, there is not one – but several burial societies
overseeing the burial of Jews in Jerusalem and each one of them holds different values.
The first one holds the Hebrew language sacred, the second one values pluralism, the
third one focuses on foreign languages, and so forth. Would the verdict have been differ-
ent had Kestenbaum insisted on a burial society that holds the Hebrew language sacred?
Let us bear in mind that this is a legally competent person who has the option to choose.
Under these circumstances, could one have still claimed that the Burial Society was
offending his dignity by insisting on the Hebrew language? Is the contractual provision
still void for being contrary to public order?
Although the Kestenbaum decision constitutes a breakthrough regarding the imple-
mentation of the indirect applicability model, it should be interpreted bearing in mind
that the Burial Society is also a hybrid body. The verdict broke the ground for the imple-
mentation of human rights in private law, however – perhaps because of the fact that the
outcome could also have been established based on balances belonging exclusively to
public law – no clear criteria were defined for the application of human rights in private
law. In the next part, I will attempt to define such criteria.
40
41
Standard Contracts Law, 5743-1982; see also V Lusthaus and T Spanic, Standard Contracts (Tel-Aviv,
Nevo, 1994) (in Hebrew) 47–57 (defining deprivation), 49 (discussing the Kestenbaum case as an example in
which the Court weighed several rights and interests and reached the decision that the condition was
prejudicial).
42
See A Harel, Hybrid Bodies – Private Bodies in Administrative Law (Tel-Aviv, The Israel Bar-Publishing
House, 2008) 56 (in Hebrew) (bringing up the case as an example of a private body administering governmental
authorities).
IV. AN INCLUSIVE ASSESSMENT OF THE CIRCUMSTANCES
This chapter proposes some principles designed to tackle the issues raised by the clash
between human rights in private law which have not been resolved by legislation. These
are not principles from which one can derive clear-cut rules as to how to solve all of the
complex questions that arise; rather, this is an attempt to set guidelines for seeking a bal-
ance between two axioms. The first one involves the autonomy of the free will at the
root of private law, which is contrary to the principle of allegiance dominating public
law (according to which the authorities are liable for the public and thus have to act only
within their authorization and for the public faith); the second axiom concerns the fact
that human rights are inherent to all human beings, including vis-à-vis other individuals
and not just the government.
The postulation is that in order to make sure that rights are essentially, rather than
mechanically, applied in private law and genuinely secured, each clash of rights must be
handled by thoroughly assessing all the circumstances of the case. Within this context,
I wish to propose a list of criteria whose shared characteristic is that they are non-
dichotomous. Each trait has the potential for a whole set of possibilities and the point’s
position in the set should affect the discussion. Nonetheless, each criterion may have a
typical standard in public law, however the standard in private law, is likely to be
different.
Within this context, the following criteria must be weighed:
A. The Substance of Each of the Clashing Rights
The process of addressing clashing values should – in my opinion – take into account
several aspects that could affect the balancing equation.
First, one must take into account that the constitutional norm permeating private law
modifies the intensity of its validity during the shift from vertical to horizontal relation-
ships and this change is likely to have an effect on its implementation method. Professor
Alexy distinguishes between constitutional rules and constitutional principles. A consti-
tutional rule is a norm that requires a decisive implementation of an objective value. On
the other hand, a constitutional principle is a norm at a higher level of abstraction which
requires the conceptualization of a value to an optimal extent in relation to the existing
normative system.43 This distinction has crucial implications on the balancing method
because whereas in constitutional law, balancing tests are designed as rules (for exam-
ple, the Limitation Clause), in private law, they are designed as principles. Nonetheless,
it appears as though it is actually the high level of abstraction that can help to create a
balance that is closer to the basic assumptions of private law. The indices that will be
proposed hereafter for balancing between constitutional rights in private law, strive to
actualise the constitutional norm by taking into consideration the horizontal norms
between the parties as well as the implications of implementing the constitutional value
on the area in private law in which it is actualised.
43
See R Alexy, ‘The Construction of Constitutional Rights’ (2010) 4 Law & Ethics of Human Rights 21.
408 Michal Tamir
Secondly, it is necessary to take the constitutional hierarchy of human rights into

account. The constitutional discourse in the State of Israel does not frequently address
the issue of the hierarchy within the pyramid of constitutional norms, primarily due to
the fact that Israeli constitutional law is – relatively speaking – in the initial phases of
defining the constitutional norm through court decision. Nonetheless, it appears as
though it is possible to draw a sketchy picture of a normative pyramid at the constitu-
tional level. The upper portion of the pyramid clearly depicts the key civil and political
rights such as freedom of movement,44 freedom of political expression45 and rights that
are inherently and closely tied to human dignity, such as equality of suspect groups.46
The bottom of the pyramid depicts the socio-economic rights47 to the extent that they
pertain to aspects beyond the minimum subsistence level with dignity.48 Constitutional
hierarchy is also likely to affect private law in such a way that when a high-ranking right
in the hierarchy clashes with a purely economic right, the latter will recede. For example,
in a situation where a person only lets one room in an apartment in which she herself
continues to dwell, it would seem that her right to privacy, combined with her economic
rights to the property, overrides the right to the equality of others.49 Nonetheless, despite
the fact that hierarchy in private law is affected by constitutional law, it is likely to be
different. In private law, there is bound to be more emphasis on economic rights such as
freedom of contract and property. For instance, freedom of political expression is of
primordial relevance in the public arena in such a way that it will overcome almost any
censorship.50 Conversely, when the journalist’s freedom of expression clashes with the
newspaper owner’s freedom of property, it is somewhat limited nonetheless.51
Thirdly, besides the need to weigh the constitutional relevance of the value injected
into private law, one needs to consider its sub-constitutional value. This particularly
concerns specific constitutional arrangements which already embody constitutional val-
ues as well as the implications of these arrangements on the balancing equation in pri-
vate law. Thus, for example, a review of various constitutional arrangements in the
realm of private law will reveal that the right to equality – although not expressly
anchored in the Basic Law but rather a derivative of human dignity – garnered stronger
defence within the scope of legislation in many private law fields such as employment
relations, public services, handicapped persons, etc. This fact is presumably significant
in cases where private law is developed through common law as part of the aspiration
toward constitutional harmony. In this matter, it shall be emphasised that the absence of
equality arrangements in non-regulated legislative areas does not constitute a negative
arrangement.52
44
See HCJ 5016/96 Horev v Minister of Transportation 51(4) PD 1 [1997] paras 59–60 of Justice Barak’s
opinion (in Hebrew).
45
See HCJ 10203/03 Hamifkad Haleumi v Attorney General 62(4) PD 715 [2008] paras 20–27 of Justice
Naor’s opinion (in Hebrew).
46
See HCJ 7052/03 Adalah v Minister of Interior 61(2) PD 202 [2006] para 71 of Justice Barak’s opinion (in
Hebrew).
47
See HCJ 1715/97 Investment Managers Bureau v Minister of Finance 51(4) PD 367 [1997] paras 5–8 of
Justice Dorner’s opinion (in Hebrew).
48
HCJ 366/03 Commitment to Peace and Social Justice Association v Minister of Finance 60(3) PD 464, 481
[2005] para 15 of Justice Barak’s opinion (in Hebrew).
49
Barak, Interpretation in Law (n 2), 691–92.
50
HCJ 399/85 Kahana v Broadcasting Authority Management Board 41(3) PD 255 [1987] (in Hebrew).
51
See NLC 53/3-223 Palestine Post Ltd v Yechiel 27 PDA 436 (17 October 1994) (in Hebrew).
52
cf Barak, ‘Proportionality’ (n 9) 126 (explaining that completion of the lacuna, at the sub-constitutional
level, should be achieved according to the proportionality rules).
Fourthly, there is an important distinction between negative rights (which grant the
right not to be involved in the activity of the individual) and positive rights (which
impose the obligation to take action and in certain cases, the obligation to provide
resources). Certain rights can be classified as unmistakably negative (such as the right to
freedom against imprisonment) and others as unmistakably positive (such as the right to
a minimal supply of water). This issue is also highly relevant to the application of human
rights in private law. When a ‘negative’ constitutional value permeates private law, it
entails less constitutional significance than in the case of a ‘positive’ constitutional value
due to the various obligations that are imposed in both cases. For example, stating that
an individual’s freedom of employment should not be restricted for motives of non-com-
petition is not the same – from a constitutional standpoint – as stating that a private
developer constructing an apartment building in a disadvantaged neighbourhood needs
to adhere to minimal standards of a dignified existence.
B. Constitutional versus Administrative Equality
Is a private individual entitled to refuse to rent his or her home to an Arab, an Ethiopian
or a homosexual? Is a private individual entitled to discriminate between his or her vari-
ous lessees by charging a different rent? It appears as though feelings regarding these
types of discrimination differ. Therefore, making the distinction between ‘constitutional
equality’ and ‘administrative equality’,53 is vital in regard to the ‘privatization’ of the
right to equality, that is applying the right to equality in private law.
Constitutional equality – or ‘the principle of non-discrimination in the substantive
sense’ deals with ‘suspect groups’ – that is groups who are structurally and historically
discriminated against – and it affords a substantial autonomous right not to be discrim
inated against for belonging to a certain group.54 In the matter of Poraz, Justice Barak
said that ‘equality must be upheld between persons who belong to religions, nations,
denominations, races and parties who subscribe to different points of view espoused by
entities and groups. Needless to say, this list is not exhaustive’.55 Indeed, alongside the
classic grounds of race, nation, religion and sex – whose premise is that any distinction
based on them is forbidden unless there is any clear rationale to deviate from this prem-
ise56 – over the years, more recent grounds have been added to the list, such as age57 and
sexual orientation.58
Administrative equality addresses the administrative authority’s obligation to treat
people with no pertinent differences between them consistently for the purpose of exer-
cising authority, regardless of their group affiliation.59 This principle is also called the
53
See M Tamir (Itzhaki), ‘Equality of Gays and Lesbians’ (2000) 45 The Lawyer 94, 109–11 (in Hebrew).
54
See Y Benkler, ‘Non-Discrimination in Housing: Scope, Applicability and Remedies for Enforcement in
Israeli Law’ (1991) 16 Tel-Aviv University Law Review 131, 160 (in Hebrew).
55
HCJ 953/87 Poraz v Mayor of Tel Aviv 42(2) PD 309, 332 [1998] (in Hebrew).
56
Y Zilbershats, ‘The Right of the Majority to Choose its Residence’ (2001) 6 Law and Government 87, 96
(in Hebrew).
57
See HCJFH 4191/97 Recanat v National Labour Court 54(5) PD 330, 369–71 [2000] (in Hebrew).
58
See APA 343/09 Jerusalem Open House for Pride and Tolerance v Municipality of Jerusalem (14 September
2010), Nevo Legal Database (by subscription) paras 53–59 of Justice Amit’s opinion (in Hebrew).
59
cf A Bendor, ‘Equality and Governmental Discretion – on Constitutional Equality and Administrative
Equality’ in Y Marzel (ed), Shamgar Book, vol 1 (Tel-Aviv, The Israel Bar-Publishing House, 2003) 287, 302–03
(in Hebrew) (defining the right to ‘administrative equality’ as ‘the right to consistency’).
410 Michal Tamir
‘principle of non-discrimination in the procedural sense’ and it demands equality by law

and therefore the obligation not to discriminate applies to authorities operating by law.60
In public law, this distinction has various implications. Although administrative
authority cannot mar administrative or constitutional equality, the different types of
equality generate different judicial criticism. As long as the claim pertains to violating
the right to equality in its strong constitutional sense, the tendency is to assess the viola-
tion from a broad perspective of the authority’s activity, to evaluate the criteria applied
and to intervene where necessary. On the other hand, as long as the authority defines
criteria that do not presumably violate the value of equality in its constitutional sense,
but rather distinguish between X and Y based on considerations within the authority’s
realm of responsibility, the judicial criticism of the authority’s activity will focus on
checking procedural or discretional deficiencies. Moreover, the application of constitu-
tional equality is binding not only where constitutional law is concerned but, in a
broader sense, in all areas of law.61
The distinction between constitutional equality and administrative equality should be
weighed as part of the process of how and to what extent constitutional values are
applied in horizontal relationships. My position is that whereby the dimension of consti-
tutional equality firmly permeates private law, the dimension of administrative law per-
meates private law at a much weaker level. Thus, the distinction yields a typological axis
of equality obligations that starts with imposing the administrative equality obligation
and ends with imposing constitutional equality obligations in order to promote the
empowerment of weakened groups in private law itself. As long as the required obliga-
tion is one of constitutional equality, the tendency will be to apply it since – to my under-
standing – within the scope of the indirect applicability model, the equality value
permeating the law is constitutional equality. Of course this does not imply that consti-
tutional equality fully applies to private law since injecting the value from constitutional
law into private law is just the beginning of the task, which ends with establishing a bal-
ance between the values. Nonetheless, using the distinction helps during both stages.
First, it helps to stress the relevant aspects of equality that need to be injected into pri-
vate law; secondly, it helps to grant constitutional equality the relevance it deserves
within the scope of the balance.
C. Whether the Rights are Waivable
The difference between protecting a right in public law and the ability to waive it in
private law stems from the basic perception of human rights in democracy. Human
rights are perceived as a defence against governmental power and as such, the govern-
ment is not entitled to violate them other than in the light of criteria of constitutionality
and proportionality. On the other hand, in the private sphere, human rights are granted
to the individual as freedoms and as such, at least on a basic level, the individual is enti-
tled to detract from them by applying free will. Accordingly, a waiver of rights in the
public sphere depends on its constitutionality, that is the permission must be in a law,
for a proper purpose and in a proportional manner. However, elsewhere, I expressed my
60
See Benkler (n 54) 160.
61
Tamir (n 53) 112, 118–22.
fundamental position whereby a waiver of constitutionality in private law would be best

assessed through the prism of public order.62
Another issue is the question of at which level the waiver should be discussed – at the
level of the parties among themselves (a level that is considerably developed within the
scope of contract law) or at the level between the parties and the public as a whole
through safety-valve concepts such as public order and probability. To a large extent,
the answer to these questions depends on the ideological perception behind the law.
Autonomous perceptions of private law, as the will theory, dictate a policy whereby due
to the individual’s complete ownership of the legal right, one needs to adopt a position
whereby she is entitled to waive her constitutional freedoms upon her will. On the other
hand, more instrumental perceptions of private law – like the public attitude toward
contract law or the philosophical interest doctrine – will grant significance to general
public values and interests that deviate from the question of the free will of the individ-
ual waiving her rights. It appears as though these questions are still in their infancy.63
The waiver issue raises tough questions. In which areas can an individual waive her
constitutional rights in private law? To what extent does the applicability of human
rights in private law generate commodification of constitutional rights and to what
extent can this commodification be broadened? For example, it is obvious that an
employment contract imminently restricts human freedom, but the waiver does not
entail any difficulty. Nonetheless, the more one penetrates the nuclear dimensions of
constitutional rights, the closer one gets to its cogent dimension64 regarding which there
is a consensus that it is unwaivable, even in private law.65
In this context, inspiration can be drawn from the constitutional development of the
perception of human dignity in Israeli law. Kvod ha-adam (human dignity) is a basic
right with many facets whose interpretation encompasses a set of derived rights.66
Because of this complexity, various models were proposed in Israel to clarify the consti-
tutional right to dignity and define its scope. Yehudit Karp suggested an interesting
interpretation by likening human dignity to a stone cast into a lake and making ripples:
One could perceive the value of ‘human dignity’ as surrounded by ripples of content, as if the
legislator cast the ‘human dignity’ stone into the waters of the Lake of Basic Laws. Its impact
on the water creates ever expanding ripples which bounce and feed off each other. Each ripple
is the outcome of another ripple and they flow toward each other and distance themselves from
their source until they fade away.67
62
See M Tamir and A Harel, ‘On Human Dignity and Privatization’ (2011) 41 Mishpatim 663, 677–82.
63
See D Snyder, ‘The Law of Contract and the Concept of Change: Public and Private Attempts to Regulate
Modification, Waiver, and Estoppel’ (1999) Wisconsin Law Review 607, 673 (explaining that the concept of
waiver is problematic and hard to define).
64
cf Y Shany and O Ben-Naftali, International Law between War and Peace (Tel-Aviv, Ramot, 2006) 197–
201 (in Hebrew) (discussing cogent attributes of human rights in domestic and international law).
65
Eg among critical thinkers, there is a discussion being held over the question of whether it is appropriate
to recognize prostitution contracts, which reflect a flagrant and grave violation of women’s human dignity,
if only to enable the woman to enjoy the agreed-upon consideration. See Keren (n 3) 273–74 (referring to
MJ Radin, ‘Market Inalienability’ (1984) 100 Harvard Law Review 1849; MJ Trebilcock, The Limits of
Freedom of Contract (Cambridge, Harvard University Press, 1993)).
66
See O Kamir, ‘Honor and Dignity Cultures: the Case of Dignity and Human Dignity in Israeli Society and
Law’ in D Kretzmer and E Klein (eds), The Concept of Human Dignity in Human Rights Discourse (Leiden,
Martinus Nijhoff Publishers, 2002) 231, 236–345 (elaborating four different terms in the English language
expressing four aspects of dignity).
67
Y Karp, ‘Some Questions on Human Dignity According to Basic Law: Human Dignity and Liberty’ (1995)
25 Mishpatim 129, 137 (in Hebrew).
412 Michal Tamir
There appears to be a consensus whereby a person cannot be allowed to waive the

‘core’ ripple, even in exchange for a contractual or other benefit she may receive.68
However, the further one gets from the core, toward more far-reaching circles of dig-
nity, the greater the potential to forego a right in exchange for contractual gain.69
I agree with the claim whereby the issue of the waiver of rights cannot hold water in
its own right; rather, it must in any case be ascertained whether the behaviour of one of
the parties to the contract infringes upon the right of the person waiving her right to the
extent that public order is affected. Within this context, one must take into consider-
ation the overall competing values, inter alia, the value pertaining to the autonomy of
the individual will of both parties when entering into the contract.70 Thus, awareness of
the individual’s ability to waive her right in private law could – in certain cases – lead to
a weakened defence of public values within the scope of indirect applicability and – in
other cases – could actually reinforce their defence. Thus for example, the fact that there
are so many ways of contracting an alliance could omit claims of discrimination or vio-
lation of the contractee’s human dignity because of her ability to use free market tools in
order to ensure her well-being in an egalitarian way.
D. Nature of the Entities
This parameter addresses another crucial development, namely that of the publicization
of certain private entities and their definition as hybrid bodies. In the 1980s and 1990s in
Israel – as a result of the policy of several governments – there was extensive privatiza-
tion71 which led to a growth in the private sector at the expense of the public sector and
to the conversion of a great many public products from the public supply model to the
marketing supply model.72 Israeli law underwent two key processes simultaneously,
which – to a certain extent – were a reaction to privatization and led to the application
of public law to private law players. The initial process at the core of this chapter is the
establishment of the indirect applicability model and the influx of values horizontally
within private law.73 The second process is the courts’ growing willingness to reclassify
– by means of functional tests – incorporated entities in private law and define them as
hybrid bodies to which certain norms from the realm of constitutional and administra-
68
cf DN MacCormick, ‘Rights in Legislation’ in PMS Hacker and J Raz (eds), Law, Morality and Society:
Essays in Honor of HLA Hart (Oxford, Clarendon Press, 1977) 189, 197 (dealing with unwaivable rights). See
also, CA 2145/92 State of Israel v Gueta 46(5) PD 704, 725 [1992] (in Hebrew) (Justice Alon discusses basic
rights which are part of the human spirit and hence cannot be waived).
69
Thus, in labour law there are cogent rights, intended to protect employers, and hence unwaivable. See
O Yadlin, ‘“Good Faith” in Employment Relations: From Class to Individual’ (1999) 22 Tel-Aviv University
70
cf Woolman (n 30) 122–23 (claims that there is no such thing as a waiver – what appears to be a waiver is
actually the interpretation of the right).
71
See A Shapira, ‘Central Privatization Processes in Israel’ (2010) 64 Parliament (in Hebrew): www.idi.org.il/
Parliament/2010/Pages/64_2010/C/c_64.aspx.
72
Y Dotan and B Medina, ‘Legal Aspects of the Privatization of the Supply of Goods and Services’ (2007)
37 Mishpatim 287, 292–95 (in Hebrew).
73
D Barak-Erez, ‘Human Rights in an Era of Privatization’ (2001) 8 Labour, Society and Law 209, 213 (in
Hebrew); D Barak-Erez, ‘Civil Rights and Privatization in Israel’ (1999) 28 Israel Year Book of Human Rights
203, 207–12, 215–16.
tive law apply.74 The Kestenbaum case is the most prominent in this area since it reflects
both streams simultaneously.
The significance of both processes is ultimately the application of norms from public
law to incorporated entities that function in private law. Both paths show a willingness
to blur the distinction between the private and the public. Nonetheless, a distinction
must be made between them. The relevant difference for our purposes is that once a
body is defined as a hybrid one, its relationship with the individual grows significantly
closer to a vertical relationship between individual and authority. It is perceived as a
body that essentially activates forces similar to those activated by the governmental
authority, and thus the scope of the application of public norms is commensurate with
the body’s degree of functional publicization. On the other hand, in cases of the applica-
tion of human rights in private law, the horizontal relationship between the individuals
themselves are maintained. In these cases, the applicability of human rights – according
to the model of Israeli law – is only indirect and grants sub-constitutional entitlements
according to the constitutional values being applied.
Despite the fundamental difference between both models, one can sketch an axis of
sorts, whose starting point is an entirely private body and end point, a statutory govern-
mental authority. Along the way, there are the private entities to which certain obliga-
tions pertaining to public law may apply. The more we are willing to accept this
typological continuum, the greater the incentive to make use of functional tests that help
the court to assess the hybridity of a body for the purpose of evaluating the question of
whether public law values should apply to it within the scope of indirect applicability.
When the court evaluates an incorporated body in private law in order to determine
whether it is a hybrid body, preference is given to the essence (nature) of the body over
the formalistics involved (its form of incorporation). Within the scope of the essence,
various characteristics are taken into account, such as the extent of the impact on public
interest,75 the degree of proximity to government activity,76 etc.
When implementing the indices, the court may definitely reach the conclusion that the
body standing before it does not satisfy enough criteria to impose obligations pertaining
to a hybrid body, but satisfies enough of them to justify the imposition of lesser obliga-
tions by virtue of the indirect applicability of human rights in private law. An illustra-
tion of such can be seen in the verdict of the Jerusalem Magistrate’s Court which
addressed conflicting transaction laws.77 The Court imposed increased trust obligations
on the bank in its capacity as a professional entity between the parties and based on
the perception that despite its being an autonomous contractee in private law, the trust
obligations applicable to it are similar to public law obligations.78
74
See CA 3414/93 On v Diamond Exchange Plants 49(3) PD 196, 206 [1995] (in Hebrew) Justice Zamir’s
opinion.
75
See E Benvenisti, ‘The Applicability of Administrative Law to Private Bodies’ (1994) 2 Law and Government
11, 32 (in Hebrew).
76
See D Barak-Erez, Administrative Law, vol 1 (Tel-Aviv, Israel Bar-Publishing House, 2010) 15 (in Hebrew).
77
HP (Jm) 2247/03 Reshef v Levi (16 March 2004), Nevo Legal Database (by subscription) (in Hebrew).
78
See M Rubinstein and B Okon, ‘The Bank as a “Social Agency” III’ in Y Marzel (ed), Shamgar Book,
vol 3 (Tel-Aviv, The Israel Bar-Publishing House, 2003) 819, 832 (in Hebrew).
414 Michal Tamir
E. Type of Property
Political and social changes such as the ‘constitutional revolution’79 or the privatization
policy have also led to changes in basic philosophical and legal concepts such as the con-
cept of property. In the spirit of the general philosophical clash between the public and
the private, one can pinpoint two dominant rival perceptions of property in society and
in Israeli law.80 The first one is the conservative libertarian proprietary perception that
presupposes entitlement and long-term validity of ownership; the second one – which is
best described by Hanoch Dagan81 – is the perception of socio-public property for which
the justifications for private property are more communitarian.82
Based on the social perception, the concept of property must not only be understood
in its libertarian, autonomous context, but also in its broader social context, just like the
relationship between individuals among themselves and individuals and the community.
Along with ownership and financial value, the property reflects a set of other values such
as freedom, justice and more. Accordingly it is sometimes appropriate to deviate from
formal entitlement granted by traditional proprietary rights and incorporate other con-
siderations likely to expand or restrict the proprietary right. On the other hand, the
conservative approach’s premise is the opposite. As a counter-reaction to the publiciza-
tion of property laws, this perception aims to maintain long-term validity of individual
ownership.
It appears as though Israeli law has overlooked the dichotomy between ‘private prop-
erty’ and ‘public property’ and is aware of the fact that there are assets involving aspects
of private property coupled with aspects of public property.83 The literature has devel-
oped a typology of proprietary institutions, which makes it possible to create a spectrum
between private property and public property. There are several important distinctions
establishing this typology. The first distinction pertains to the nature of the property
itself. In this context, one can distinguish between personal property (or founder prop-
erty) and interchangeable property.84 The first end of the spectrum consists of non-con-
vertible proprietary assets which are identified with and directly reflect the owner’s
personality (such as a wedding ring). The other end of the spectrum consists of proprie-
tary assets which serve the purpose of financial profit only and are convertible since they
have no personality-related value (such as office buildings for rent). Different proprie-
tary assets become meaningful in this sense based on their location between the two ends
of the spectrum.85 The second distinction pertains to the relationship between the par-
ties. This is where different relationships are assessed (eg between individual
and local authority/community settlement, etc). The first end of the spectrum boasts an
79
See MD Birenhack, ‘Just Property: Three Concepts of Property’ (2005) 21 Bar-Ilan Legal Studies 439,
442–62 (in Hebrew) (dealing with how the ‘Constitutional Revolution’ broadened the concept of property and
abolished the dichotomy between private and public property).
80
For a general survey, see A Lehavi, ‘The Public Domain of Private Property’ (2006) 9 Law and Government
619, 621–23 (in Hebrew).
81
H Dagan, Property at a Crossroads (Tel-Aviv, Ramot, 2005) (in Hebrew).
82
For a general survey of communitarian conceptions, see S Gardbaum, ‘Law, Politics, and the Claims of
Community’ (1992) 90 Michigan Law Review 685.
83
On (n 74) 204 (Justice Levin providing examples such as a university campus or sports stadium).
84
Lehavi (n 80) 624.
85
See MJ Radin, Reinterpreting Property (Chicago, University of Chicago Press, 1993) 79–80.
intimate relationship between the individual and his partner (reflected in partnership
laws) while the other end features relationships between strangers.86
In this spirit, and upon the indirect (and even ‘reinforced’) applicability of objective
principles seeping from public law to the private, it seems appropriate that the balance
between the rights will be influenced by the type of property in question in light of the
above parameters. Indeed, there is opposition to adapt public values in the realm of
property laws due to the fact that the existing laws reflect the balances which the legisla-
tor deemed right.87 On the other hand, there are those who claim that in Israel these
mechanisms do not always work – for example where the housing capacity of minorities
is concerned.88 Either way, it appears as though even in earlier, less developed periods,
common law had the knack of embodying ‘public good’ considerations within the scope
of proprietary entitlements.89 Therefore in the present era – primarily within the scope of
reinforced indirect applicability – the need to weigh the characteristics of property has
grown.
F. Type of Contract
Different types of social and economic alliances are characterised by different types of
contracts. First, there are general ‘contractual patterns’ whose importance is recognised by
the law for the purpose of designing a certain contract. For example, the relational con-
tract90 – the contractual pattern that sometimes dictates increased obligations between the
parties to the contract – inter alia, because of their prolonged relationship, which generates
mutual dependence;91 or the standard contract – the contractual pattern that characterises
contracts in which one of the parties to the contract is the stronger, more sophisticated one
whereas the other party is part of the alliance but has no true control over the contents of
the contract.92 Secondly, there are types of alliances that are regulated by specific contract
legislation. Prominent illustrations of such in Israeli law are the insurance contract,93 the
sales contract,94 the rental contract,95 the present contract,96 the contract work contract97
86
Lehavi (n 80) 627.
87
cf ibid 640–42 (asserting that one should not apply general doctrines in a private dispute, when there are
legal and administrative mechanisms for the decision).
88
H Sandberg, The Land of the State of Israel – Zionism and Post-Zionism (Jerusalem, The Sacher Institute,
2007) 15–25, 25–35, 37–49, 149–51 (in Hebrew).
89
The common law courts have recognized the right to ‘rule’ a property regarding property affected with
a public interest. Some types of property were deemed ‘public’, and thus could not be privately owned. See
A Reichman, ‘Professional Status and the Freedom to Contract: Towards a Common Law Duty of Non-
Discrimination’ (2001) 14 Canadian Journal of Law and Jurisprudence 79, 89–124 (bringing the examples of
the market place or highway).
90
I Macneil, ‘The Many Futures of Contracts’ (1974) 47 Southern California Law Review 691; I Macneil,
Contracts: Exchange Transactions and Relations, 2nd ed (1978); I Macneil, ‘Relational Contract Theory:
Challenges and Queries’ (2000) 94 North Western University Law Review 87.
91
See Keren (n 3) 128–30. See also LCA 1185/97 Milgrom’s Estate v Mishan 52(4) PD 145, 160 [1998] (in
Hebrew) (dealing with a standard contract between a person and a retirement home as a relational contract,
characterized by long-term and complex relations).
92
A Bin-Nun, Law on Standard Contracts 5743-1982 (Jerusalem, The Sacher Institute, 1987).
93
Insurance Contract Law, 5741-1981.
94
The Sale Law (Apartments), 5733-1973.
95
Rental and Borrowing Law, 5731-1971.
96
The Gift Law, 5728-1968.
97
Contract for Services Law, 5734-1974.
416 Michal Tamir
and more. For the most part, specific contractual regularization reflects the balancing of
values. However, in many cases safety-valve concepts enable the court to carve content
into the statutory balancing system.98 This content may also express public values within
the scope of their indirect application in private law.
The history of the application of human rights in the area of contract law was atten-
tive to the relationship between the parties to the contract. Thus, for example, the rights
to freedom of occupation, equality and association were recognised within the scope of
contractual employment relations, which constitute a long-term and ongoing relation-
ship; the latter boasts an almost permanent balance of power of the strong versus the
weak and does not merely reflect the proprietary aspect of employment, but also the
personality-related and creative aspect of the subject in the realm of employment.99
The perception ensuing from the Supreme Court ruling is that there is strong justifica-
tion to apply human rights norms – and primarily equality norms – to ongoing relation-
ships. Presumably the trend should be pursued in this area and the nature of the
contractual relationship assessed. The key criterion in this area is that the more the
contract type reflects power gaps between the parties, and the more the contract meets
‘public’ criteria, the greater is the tendency to apply public norms to a broader extent.
Thus for example, for contracts in which one of the parties had no impact on their
formulation, such as standard contracts100 or collective agreement, the tendency to inter-
vene should be greater.101 Moreover, it appears as though another stage that should be
aspired to is the development and elaboration of particular safety-valve concepts in spe-
cific contractual legislation in order to rely on them and not only on the conceptualiza-
tion in general contractual legislation102.
G. Nature of the Parties to the Contract
This parameter examines whether the parties have equal power or whether there is in an
inherent imbalance of power between them. In this area as well, there appears to be an
axis of sorts at one end of which there are contracts drawn in a situation where there is
equality in the power relationship between the parties; at the other end of the axis there
are contracts that bring out significant power gaps between the parties. The question of
defining the indices according to which the power gaps will be assessed is one that calls
for an influx of public values.
Hilla Keren places the identity of the person being discriminated against in the con-
tractual alliance at the core of the assessment of the application of obligations to equal-
ity in contract law.103 According to her feminist outlook, which is critical of the law, the
98
Eg the interpretation of the term prejudicial condition in a standard contract.
99
See, eg Recanat (n 59) (dealing with the equality right of flying attendants in regard to their retirement
age); HCJ 6845/00 Niv v National Labour Court 56(6) PD 663 [2002] (in Hebrew) (dealing with discrimination
of women in regard to their retirement agreements).
100
See G Shalev, ‘Contract Law’ in I Zamir and S Colombo (eds), The Law of Israel: General Surveys
(Jerusalem, The Sacher Institute, 1995) 197, 210 (‘Standard contracts constitute, ab initio, a deviation from the
principle of freedom of contract, in that the formation of such contracts does not express freedom, and their
formulation is a unilateral enterprise’).
101
See HCJ 104/87 Nevo v National Labour Court 44(4) PD 749, 768 [1990] (in Hebrew).
102
See, eg Rental and Borrowing Law, 5731-1971, s 22.
103
Keren (n 3) 297–325, 355–79.
routine development of contract law is the outcome of an assumption whereby the ulti-
mate contract is between two businessmen. Nonetheless, reality has shown that contrac-
tual alliances vary greatly and that it is always necessary to assess the relationship
between the parties to the contract. Accordingly, contract law must focus – where
appropriate – on the identity of the weak party and embody, through the doctrine of
contract law, the power gaps between the parties. This is all the more so in cases when
one of the parties to the contract does not have any other practical options; she does not
have the option to choose and is the weak party whose contractual freedom is very lim-
ited or completely inexistent. Under these circumstances, the judicial intervention in the
formal contractual freedom is designed to promote essential contractual freedom.104
Along with more extensive use of existing contractual tools and the need to take into
account the gaps between the parties within the context of other civil laws such as tort
law,105 it would also be appropriate for the assessment of the applicability of human
rights in private law to take into account the need to minimise gaps between strong and
weak parties.106
V. CONCLUSION
In this chapter, I attempted to suggest criteria for the balance called for in private
law between human rights within the scope of the indirect applicability model. These
criteria are not exclusive, and there may be other relevant variables. Moreover, it is pre-
sumably not right to develop excessively rigid tests since one of the advantages of com-
mon law stems from its ability to develop ad hoc tests and balancing according to the
circumstances of concrete cases brought before it. Nonetheless, the criteria comprise a
basic categorization of the key questions that the court faces when it has to establish a
balance stemming from the application of constitutional principles in private law. The
criteria set forth a series of basic typologies that grant the court tools for delimiting the
questions and understanding the basic levels which make it possible to weight the consti-
tutional values.
The inference of applying these criteria to the Kestenbaum case is, in my opinion, that
Justice Barak’s grounds must be cumulative and not alternative. If one were to select a
different scenario, in which the burial society did not control most of the burials in
Jerusalem and the widower could choose among different burial societies – it could
undoubtedly be argued that a person who chose to enter into a contract with a company
that championed Hebrew inscriptions waived his right.
In fact, Justice Barak was the one who stressed the ability of individuals to waive
rights:
Indeed, we enable individuals – in well-defined areas – to waive their basic rights to a certain
extent (but not fully or essentially). This waiver naturally affects the nature of the appropriate
N Cohen (n 3) 132.
104
See, eg CA 10064/02 Migdal Insurance Company Ltd v Abu Hana 60(3) PD 13 [2005] paras 33–40 of
105
Justice Rivlin’s opinion (in Hebrew) (consideration within the scope of compensation for ‘lost years’ according
to statistical earning aspects in cases in which the plaintiff’s earning potential is low because of his minority
status).
106
For distributive justice in private law, see C Vinitzki and M Tamir, ‘Application of Distributive Justice in
Private Law: Models’ (2012) 14 HaMishpat 469 (in Hebrew).
418 Michal Tamir
balance between the different values. This balance differs from that accepted in public law
since the human right infringement in this context is not founded on the victim’s will, but on
governmental power.107
In the Kestenbaum judgment, Lionel Kestenbaum and the honour of his deceased wife
were confronted with the Society’s contractual freedom. However, the economic right
was enhanced by the Society’s aim to promote and sanctify the Hebrew language – an
ideological aim at the Society’s core, which is also part of its dignity and freedom of
expression. Accordingly, one cannot claim to be dealing with a clash between a civil
right and an economic right, but rather a head-on collision between civil–political rights.
If it were not a matter of a monopolistic company, would Kestenbaum’s waiver of his
right to choose the language of the inscription on the tombstone be contrary to public
order? In my opinion, the answer is no. Human dignity serves both as a reason and a
rationale for all human rights, including the autonomy of individual will.108 In this case,
it is not a matter of waiving one’s core dignity in the sense of ‘human dignity’, the waiver
of which a democratic society cannot condone. The dignity that the judgment addresses
pertains to much more far-reaching circles which a legally competent person – who has
the option to choose – is entitled to relinquish in order to achieve his other interests and
rights.
It is against this background that one should interpret the criticism of Frances Raday
of Justice Barak’s reasoning in the Kestenbaum case.109 Raday agreed with the outcome
of the judgment, but thought that Justice Barak had chosen a formal model of ‘privatiz-
ing human rights’, which did not take into account the difference in respective strength
and may ultimately undermine the objective of protecting the rights of the weak. Instead,
she proposed a substantive model for privatizing human rights, which seeks to preserve
the objective of human rights to protect socio-economic discrepancy.
Nonetheless, there is a great deal of wisdom in the judgment rendered by Justice
Barak in the Kestenbaum case. As aforementioned, using the argument of the right’s
application to private law as grounds in their own right and part of the rationale for the
decision (ratio decidendi) made it possible to apply the human rights doctrine in private
law to Israeli law, as opposed to an obiter dictum. Thus, the tremendous significance of
the judgment despite the fact that it is doubtful as to whether the three arguments set
forth by Justice Barak were alternative rather than cumulative.
107
108
HH Cohen, ‘On the Meaning of Human Dignity’ (1983) 13 Israel Year Book of Human Rights 226, 231.
109
F Raday, ‘Privatization of Human Rights and the Abuse of Power’ (1994) 23 Mishpatim 21, 32–34 (in
Hebrew).
27
Private Actors and Constitutional Rights
STEPHEN GARDBAUM*
T
HE ISSUE OF whether and how constitutional rights bind private individuals
as well as government actors has been a formative and paradigmatic one in the
growth and development of comparative constitutional law in recent years.
Perhaps rivalled only by the topic of proportionality, this issue has been the subject of a
fruitful dialectic between the theory and practice of comparative constitutional law that
has helped to drive the discipline forward over the past two decades. Scholars have first
observed the range of internal constitutional practices in various systems, then attempted
to systematise the topic by providing conceptual and normative maps of the available
options, and judges in turn have employed these maps to forge increasingly convergent
answers to the general issue. Like the principle of proportionality, what is generally
referred to as indirect horizontal effect, or the indirect application of constitutional
rights, has come to be the dominant model within both the academy and the courtroom
of comparative constitutional law. It is now, perhaps, part of the post-war paradigm.1
Remarkably, one person has single-handedly combined both roles in making a unique
and seminal contribution to this topic. Even more remarkably, this same person has also
made the same dual contribution to the topic of proportionality. I am referring, of
course, to Aharon Barak whose chapter2 – a distillation of his thoughts and actions on
the issue – I have the honour to comment on, alongside that of Michal Tamir.3
In his comprehensive and wide-ranging chapter, ‘Constitutional Rights and Private
Law’, Justice Barak begins by setting out four models for answering the basic question
of whether an individual’s constitutional rights apply only against the state (vertically)
or also against fellow individuals (horizontally). In addition to describing and distin-
guishing the four models, he presents concise normative critiques of the first three before
focusing for the remainder of the paper on the fourth model – indirect application –
which, he argues, originated in the seminal Lüth opinion in Germany and has since
become the dominant one comparatively. The second half of the paper provides a
detailed explanation of how this model works in action both generally and in Israel,
where it was adopted by the Supreme Court in the early 1990s as the result of landmark
opinions written by Justice Barak.
* This chapter was written for the Israeli Constitutional Law in the Making – Comparative and Global
Perspectives Conference, 22–24 May 2011.
1
The term is Loraine Weinrib’s. L Weinrib ‘The Post-war Paradigm and American Exceptionalism’ in
S Choudhry (ed), The Migration of Constitutional Ideas (Cambridge, Cambridge University Press, 2006).
2
3
420 Stephen Gardbaum
In my comments, I shall be focusing on the first part of Justice Barak’s paper and, in
particular, on his four models for answering the basic question. This is both because
that part of the paper best enables me to fulfil my assigned function of helping to put the
issue in the broader context of constitutional theory and global processes, and because
some of my own past writing on the subject has attempted a similar task.4 Indeed, one of
the things I shall be doing is identifying one small island of difference between us amidst
a large sea of agreement.
The first of Justice Barak’s four models is the ‘direct application’ of constitutional
rights against private individuals, or direct horizontal effect as it is commonly labelled in
the literature. In response to the familiar normative arguments for this comparatively
uncommon position in practice, Justice Barak argues, first, that it is unnecessary to pro-
tect weaker individuals in society against stronger ones through constitutional rights as
sub-constitutional law is sufficient for the task and, secondly, that the potential evasion
and erosion of constitutional obligations via privatization of government services is ade-
quately and more properly countered by rights-conscious judicial review of privatization
statutes themselves, as well as by suitable changes in sub-constitutional private law.
Second is ‘the non-application model’, in which constitutional rights not only apply
directly vis-à-vis the state alone (as they do in most of the jurisdictions under consider-
ation) but also are limited to public law and the public sphere without any penetration
into private law and, hence, into inter-personal relations. The well-known Canadian
case of Dolphin Delivery5 is cited as an example of this position. Justice Barak’s critique
of this model is that ‘it creates too deep a rift between constitutional law and private
law’6 and fails to view the legal system as a coherent whole reflecting and expressing
certain fundamental, comprehensive, or overarching (ie ‘constitutional’) values and
principles.
The third model, stated to have been developed in American constitutional law, is ‘the
application through the judiciary model’. Here, although constitutional rights are
directed towards the state alone, the judge is deemed to be a state organ and so, like the
others, must act consistently with constitutional rights. In particular, this means first
that judge-made common law must be developed in line with constitutional rights and,
secondly, that the judge ‘must act within the confines of the specific [private law] dispute
in a fashion which conforms to the parties’ constitutional rights vis-à-vis the state’.7
According to Justice Barak, this first duty, exemplified by New York Times v Sullivan8 is
sound; but the second, exemplified by Shelley v Kraemer9 is not. This is because it trans-
forms a constitutional right to equality vis-à-vis the state into a constitutional right to
equality vis-à-vis another individual, which judges are only empowered to do under the
direct applicability model. Justice Barak argues that this second aspect of the application
by the judiciary model, however, is not accepted within comparative law and has not
4
See S Gardbaum, ‘The “Horizontal Effect” of Constitutional Rights’ (2003) 102 Michigan Law Review
387; S Gardbaum, ‘Where the (State) Action Is’ (2006) 4 International Journal of Constitutional Law 760;
S Gardbaum, ‘The Myth and the Reality of American Constitutional Exceptionalism’ (2008) 107 Michigan
Law Review 391; S Gardbaum, ‘The Structure and Scope of Constitutional Rights’ in T Ginsburg and R Dixon
(eds), Research Handbook in Comparative Constitutional Law (Northampton, Elgar, 2011).
5
RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573 (Can).
6
Barak (n 2) at 383.
7
ibid, at 384.
8
New York Times v Sullivan 376 US 254 (1964).
9
Shelley v Kraemer 334 US 1 (1948).
Private Actors and Constitutional Rights 421
been sustained in America. Rather, it has effectively been overruled by subsequent devel-
opment of the US state action doctrine, so that the horizontal application of constitu-
tional rights by judges is conditional on the individual against whom a rights claim is
made exercising a state function.
Finally, the fourth model is that of the ‘indirect application’ of constitutional rights,
which holds that the individual’s constitutional rights apply directly against the state
and indirectly against fellow individuals. Originating in the German Federal
Constitutional Court’s 1958 decision in the Lüth case, the model is premised on the
assumption that each of the individual’s subjective constitutional rights against the state
also has an objective value that ‘radiates’ into all areas of the law, including private
law. As a result, ‘Every provision of private law must be compatible with this system of
[objective] values, and every such provision must be interpreted in its spirit’.10
Accordingly, although constitutional rights apply directly to the government only, they
apply indirectly to private individuals via their influence on private law. By contrast,
Justice Barak states that the US state action doctrine of the third model ‘operates outside
of private law’.11
When he first developed his fourfold model in the early- and mid-1990s, Justice Barak
was a pioneer in the field and writing on a largely blank slate. Those of us contemplating
the field now do so standing on his shoulders. The main difference between Justice
Barak’s conceptual map of the terrain and my own is a relatively small one, and may
even ultimately boil down to labels or level of abstraction/generality – although I am not
quite convinced of this yet. In essence, I believe there are three models or answers to the
basic question of the scope of constitutional rights within a legal system and not four. In
particular, I think there is no separate, independent or distinct third model – the model
of judicial application. Rather, this ‘model’ is one way among several in which a legal
system may institutionalise the position of indirect application. That is, it is one tech-
nique for achieving indirect horizontal effect, not an alternative to it. Similarly, the
German model of conceptualizing constitutional rights as objective values that operate
within private law is also another specific route to, or version of, indirect applicability
and is neither a necessary one nor constitutive of this position itself – although, as I shall
argue, Germany also routinely employs aspects of the judicial application technique. In
other words, in my view, Justice Barak’s model of indirect application is actually a more
general one than he conceives of it. What defines this more general position and distin-
guishes it from both the direct and non-applicability models is the proposition that all
law (including all private law), but not all conduct, is subject to the constitution and its
set of rights.12 In this way, although constitutional rights apply directly only against the
government (contra the direct applicability model), they also apply indirectly against
private individuals by governing the law that regulates their legal relations with one
another (contra the non-applicability model).
10
Lüth, translated in DP Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany
(Durham, Duke University Press, 1997) 363.
11
Barak (n 2) at 387.
12
The fact that all law but not all conduct is subject to constitutional rights under this general position does
not mean that only law and no conduct is also so subject. Thus, for example, the official conduct of state offi-
cials – including judges – in administering, executing and enforcing the law is also typically governed by the
constitution under the basic vertical approach, which is included in, but does not exhaust, the model of indirect
application. The main type of conduct that is excluded is that of private individuals.
Accordingly, I disagree that Germany and the United States adhere to different mod-
els or approaches to the basic question. Thus, in my view, Lüth and New York Times
are in essence structurally identical instances of the same general position – indirect
application. In both, the respective lower courts were held to have violated the constitu-
tional rights to free speech of the claimants by applying the relevant private law without
adequately taking these rights into account. In Lüth because the lower court failed to
take the objective value of freedom of expression adequately into account in interpreting
and applying ‘good morals’ under section 826 of the German Civil Code (BGB). In New
York Times because the lower court failed to take the newspaper’s constitutional right
to free speech adequately into account in interpreting and applying the common law of
defamation. It is true that in Lüth, the Federal Constitutional Court (FCC) did not inval-
idate section 826 but required it to be interpreted in light of the objective value of free
expression, whereas the US Court invalidated the state common law of defamation. But
that was only because the very general and capacious language of section 826 could be so
interpreted. If it could not have been, the FCC would have invalidated it under the first
Lüth prong: ‘every provision of private law must be compatible with this system of
values’.13
Consequently, the only real difference between Lüth and New York Times is the
existence in Germany of a constitutional duty on the lower courts to interpret private
law consistently with the constitutional value where possible; although if not possible,
the FCC will invalidate that law as unconstitutional. Even here, however, there is a con-
stitutional canon in the United States, if not a duty, that where a provision of law is
ambiguous, courts should apply the meaning that is consistent with the constitution
rather than exercise the power of judicial review, unless plainly contrary to legislative
intent.14 And this difference may, in turn, simply reflect the institutional difference
between decentralised and centralised judicial review – as in the latter, lower courts only
have interpretive and not invalidation powers. In short, in Germany no less than the
United States, constitutional rights are applied through the judiciary. Courts are bound
by, and may violate, constitutional rights15 (indeed, the majority of successful constitu-
tional complaints are against lower courts) and all private law – BGB and common law
– is subject to them. This, in turn, means that in both countries although constitutional
rights apply directly only against the government, they apply indirectly against individu-
als in the context of private litigation.
As further support for my view that there is a single general position of indirect appli-
cability deriving from the proposition that all law, including all private law, is subject to
constitutional rights, let us briefly consider the case of Shelley v Kraemer that Justice
Barak considers exemplifying the mistaken second prong of the separate and distinct
application by the judiciary model. Recall that Justice Barak approves of New York
Times as exemplifying the valid, but distinct, first prong of this model. Although Justice
Barak argues that the principle he identifies as underlying the decision in Shelley – that
13
Lüth (n 10). See Gardbaum, ‘The “Horizontal Effect”’ (n 4) 405–06; G Taylor, ‘The Horizontal Effect of
Human Rights Provisions, the German Model and its Applicability to Common Law Jurisdictions’ (2002) 13
King’s College Law Journal 187, 196–97.
14
Edward J DeBartolo Corp v Fla Gulf Coast Bldg & Constr Trades Council 485 US 568, 575 (1988).
15
As expressly stated in the Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz][GG][Basic
Law], 23 May 1949, BGBl I, Art 1(3) (Ger): ‘The following basic rights shall bind the legislature, the executive,
and the judiciary as directly enforceable law’.
within a private law dispute, the judge must act consistently with the parties’ constitu-
tional rights vis-à-vis the state – is mistaken, he suggests elsewhere in his paper that the
same result could, and perhaps should, be reached under his fourth model of indirect
applicability. This involves balancing the objective value of equality against the objec-
tive value of the freedom to contract, finding the former weightier than the latter in the
particular context, and so deeming the racially restrictive covenant void as against pub-
lic policy.16 Thus, rather than holding that by enforcing a racially restrictive covenant a
court violates the purchaser’s (external) constitutional right to equality vis-à-vis the
state, the fourth model would hold that the covenant violates the (internal) contractual
norm of public policy based on the objective aspect of the constitutional right to
equality.
Now although this is a difference, it does not seem like a significant enough difference
to me to say that two separate and independent models of the application of constitu-
tional rights to private individuals are at work here. In both cases, constitutional rights
apply indirectly to individuals, rather than either directly or not at all. Especially if one
notes that for jurisdictional reasons, the US Supreme Court could not have taken the
approach that Justice Barak suggests would be the more proper one and the one that the
Israeli Supreme Court would take. This is, of course, because for federalism reasons
the US Supreme Court does not have the power to interpret or develop state private law
but only the power to declare state action (including state private laws) constitutional or
unconstitutional. But here, I think, is the important point: the FCC would likely analyze
the issue raised by Shelley in a way that is more similar to the US than the Israeli Supreme
Court. And if I am correct, this casts further doubt on the distinctiveness of the third and
fourth models.
Imagine a purchaser in Shelley’s position in Germany. As in both Lüth and Shelley
itself, the German Shelley makes his constitutional rights claim in the lower courts but
they reject it out of hand. The purchaser then files a constitutional complaint with the
FCC against the lower courts, as in Lüth. The FCC is quite likely to find that the lower
court violated the purchaser’s constitutional right to equality by not taking its objective
aspect sufficiently into account in resolving the private law dispute. Again, for jurisdic-
tional reasons – though for slightly different ones than in the US case – the FCC cannot
itself interpret and apply the private law of contract but only to declare the action of the
state court constitutional or unconstitutional, as in Shelley itself. The precise routes may
differ between the US and Germany – the Supremacy Clause’s command that all state
law is subject to the Constitution and the Fourteenth Amendment’s that no state actor
shall deprive any person of equal protection versus the conception of constitutional
rights as forming an objective order of values throughout the legal system – but the
analysis and result is essentially the same. In both, state courts have violated an individ-
ual’s constitutional right to equality in how they resolved a private law dispute. My
point in all of this is that the specific differences in how the US, German and Israeli
courts handle the issue of the effect of constitutional rights in private law disputes – dif-
ferences stemming to a significant extent from jurisdictional powers and limitations17 –
Barak (n 2) section IIIDi.

16
For other and more general aspects of the importance of jurisdiction on the issue, see M Kumm and
17
VF Comella, ‘What is So Special about Constitutional Rights in Private Litigation? A Comparative Analysis of
the Function of the State Action Requirements and Indirect Horizontal Effect’ in A Sajo and R Uitz (eds), The
Constitution in Private Relations: Expanding Constitutionalism (Utrecht, Eleven, 2005).
do not seem sufficient to me to say they are giving different answers to the general
question of the scope of constitutional rights within a legal system. Rather, they each
adhere to the essential and general position of indirect application, or indirect horizontal
effect, in which all private law is subject to constitutional rights – thereby indirectly
subjecting private individuals to them. Once again, this is what distinguishes this inter
mediate position from both the direct and non-applicability models.
Accordingly, my own conceptual map of the terrain identifies three clear and distinct
general positions. First, what Justice Barak refers to as the non-applicability model and
I refer to as strong vertical effect: constitutional rights apply to public law and only
those private law disputes in which the state is a party (for example, as employer or
landlord). As Justice Barak correctly and insightfully notes, this is more restrictive than
the very common basic vertical position in which constitutional rights apply directly to
the state only because, as we have seen, this latter position does not rule out significant
indirect impact on private individuals through its applicability to private law. The point
of this first position is precisely to prevent constitutional rights from leaking into the
private sphere at all.
Secondly, indirect horizontal effect through the impact of constitutional rights on pri-
vate law. I sub-divide this position into two, not as between judicial application and
objective values (for the reasons above), but between a stronger and weaker version.
The strong version of indirect horizontal effect is where constitutional rights apply
directly to all private law (and so indirectly to individuals) because all private law must
be consistent with it and all private law can be challenged as violating constitutional
rights. By contrast, weak indirect horizontal effect operates where constitutional rights
apply indirectly to private law; that is where they do not directly govern that law or
apply directly to the private law dispute at hand. The typical mechanism for this indirect
application to private law is the general power or duty of courts to interpret/develop
private law, often the common law, in line with constitutional ‘values’ in the context of
an ordinary, non-constitutional cause of action, as distinct from a specific rights claim.
For the reasons given, in my book both Germany and the United States are strong indi-
rect horizontal effect jurisdictions: Germany because, under Lüth, the interpretive duty
is not exhaustive so that a provision of private law which cannot be interpreted consist
ently with a right’s objective value is unconstitutional; the United States because all law
is directly subject to the Constitution under its Supremacy Clause. Canada is an example
of weak indirect horizontal effect because – unlike private law statutes – the common
law at issue in private litigation is not directly subject to the Canadian Charter of Rights
and Freedoms (despite the Charter’s Supremacy Clause, Charter rights are stated to bind
only the legislative and executive branches of government, and not the judicial), but
courts ought to take Charter rights into account in developing the common law.18 I am
not sure into which of my categories Israel falls; this will likely depend on whether pri-
vate laws that cannot be interpreted consistently with objective values are unconstitu-
tional, as in Germany. Finally, at the other end of the spectrum is what Justice Barak
calls the direct applicability model and I refer to as direct horizontal effect.
On this last model, Justice Barak’s critique of the fairly standard arguments for direct
applicability of constitutional rights against private individuals that I referred to above
is expressed in universal terms. But his arguments might also be thought of as condi-
18
See Dolphin Delivery (n 5).
tional. That is, where certain conditions apply, sub-constitutional law will be sufficient
to address the problem of protecting weaker individuals in society against stronger, or of
rendering private law suitable for privatization. Where these conditions do not apply,
however, then there may be no sufficient alternative solution and only direct applicabil-
ity can solve a genuine problem that sub-constitutional law is unable to do. This in fact
seems to be one of the reasons for the rapid spread of the direct applicability model in
many Latin American countries since the transition to democracy in the 1990s.19 Faced
with either or both weak legislative systems, or ones captured by representatives of the
powerful, courts have helped to fill the resulting vacuum and bring about greater protec-
tion of the weak through constitutional causes of action by one private individual against
another, such as the writs of tutela (Colombia) and amparo (Argentina). Indeed, on a
global level, this rapid recent development of the direct applicability model in Latin
America is a significant trend and cuts against too easy a dismissal of this model in terms
of comparative constitutional experience.
In ‘Human Rights in Private Law: Hybridization of the Balancing Tests’, Michal
Tamir takes as her starting point the Israeli Supreme Court’s choice of the indirect appli-
cation model and proposes a framework for its judicial implementation in concrete
cases, primarily in contract law. As she views it, the model results in frequent clashes of
rights between ‘the autonomy of the free will at the root of private law’ and ‘the fact that
human rights are inherent to all human beings, including vis-à-vis other individuals and
not just the government’.20 Such clashes that have not been resolved by (valid) legisla-
tion, she argues, should be assessed in the light of all their particular circumstances, and
the main part of the chapter proposes several principles or criteria to serve as guidelines
for courts in performing the required case-by-case assessments. These principles include
the substance of the clashing rights (eg the normative hierarchy of the human right at
issue, whether a negative or a positive right is at stake), whether ‘constitutional equality’
(the obligation to refrain from discriminating against members of suspect groups) or
only ‘administrative equality’ (the requirement of consistency in the treatment of like
cases) is involved, whether the rights are waivable, the nature of the entities involved,
and the type of property or contract under consideration.
These principles provide a basic categorization of the key questions the court should
ask when balancing private law values and human rights under the indirect applicability
model. Tamir applies them to justify the outcome of the actual Kestenbaum case,21 in
which the Jewish Burial Society held a monopoly, offering the widower little choice, and
so was treated as a hybrid body subject to certain public law obligations, and to show
how a hypothetical version in which it competes on language policy with other burial
societies ought to affect the balance, due to a clearer waiver of rights. She also suggests
that a private landlord is more likely to be able to discriminate among lessees in rent
charged (administrative equality) than on the basis of race or sexual orientation (consti-
tutional equality).
The chapter clearly and thoroughly identifies the major legal and factual variables
that might be used to distinguish cases and their outcomes under the model of indirect
application as it has been accepted in Israel. One possible concern with such a context
19
See W Rivera-Perez, ‘International Human Rights and the Doctrine of Horizontal Effect in Latin America’
(SJD dissertation, UCLA School of Law, 2010) (on file with the author).
20
Tamir (n 3) at the beginning of part IV.
21
sensitive, all-things-considered approach is that it may potentially exact too high a cost
from individuals in terms of the standard rule of law values of legal certainty and pre-
dictability to make this a suitable solution for private law disputes. It is perhaps one
thing to subject parties to the uncertainties of a multi-pronged balancing exercise in the
context of constitutional adjudication and another in the context of everyday private
law disputes unregulated by legislation. It is true that ordinary negligence law, for exam-
ple, often imposes the ex ante indeterminacy of the reasonableness standard on individu-
als, but whether doing X is reasonable in the circumstances is still a somewhat more
constrained exercise than weighing all the factors in such a multi-pronged test. A second
reaction is that, at times, there is some confusion in her account between the direct and
indirect application models. So, on the one hand, Professor Tamir’s capacious concep-
tion of human rights quoted above appears to envisage their direct application to private
individuals. On the other, however, she seems to deem it important (and struggles) to
distinguish the ‘firm permeation’ of private law by the principle of constitutional equal-
ity that she proposes from its ‘full application’ to private law,22 as if this latter would be
incompatible with indirect application rather than perfectly consistent with it. These
quibbles aside, this chapter is a fine and helpful systematization of the issues faced by
Israeli courts in the process of applying Justice Barak’s favoured fourth model.
22
Tamir (n 3) at 410.
Part 8
Constitutional Rights and ‘State of Emergency’

28
The National Security Constitution
and the Israeli Condition
DAPHNE BARAK-EREZ*
I. INTRODUCTION
I
SRAEL OFFERS A unique case study for the assessment of the constitutional regu-
lation of national security. The special value attached to the Israeli example derives
from several factors: first, Israel has experienced continuous existential threats ever
since its establishment. Therefore, in Israel, the constitutional regulation of national
security is not only a matter for the law books. It is the result of a constant challenge to
both the existence of the country and the rule of law.1 Second, national security threats
have served as one of the reasons working against the aspiration to finalise Israeli consti-
tution-making. Third, Israel presents a working laboratory to one of the constitutional
models for dealing with national threats – a model based on the power to declare an
emergency regime. Against the background of the controversy around this model, Israeli
law serves as an example of both its advantages and weaknesses. Fourth, the Israeli
Supreme Court also practices judicial review in matters related to the military and
national security, and thus makes the regulation of security matters in Israel a living
legal reality.
The following analysis is aimed at reviewing and evaluating the Israeli case study, tak-
ing into consideration its unique traits as well as its potential contribution to under-
standing the relative advantages and disadvantages of models for regulating emergency
conditions in other systems. Following this Introduction (which serves also as part I),
part II describes the basic features of the regulation of security matters in Israeli law and
part III elaborates on the issues regulated on the constitutional level by provisions of the
Basic Laws. Part IV takes the analysis another step forward by describing the de facto
application of the constitutional regime in this area. Part V offers another perspective on
the Israeli case study by looking into other models of regulating the issue of emergency
conditions in other legal systems. Two other important aspects discussed at this stage
are the impact of judicial review on the de facto regulation of security issues (part VI)
and more specifically the impact of norms of international law as applied by the courts
* The author would like to thank Liav Orgad for his comments.
1
See also P Lahav, ‘A Barrel Without Hoops: The Impact of Counterterrorism on Israel’s Legal Culture’ (1988)
10 Cardozo Law Review 529; D Barak-Erez, ‘Israel’s Anti-terrorism Law: Past, Present and Future’ in VV Ramraj,
M Hor, K Roach and G Williams (eds), Global Anti-Terrorism Law, 2nd edn (Cambridge, Cambridge University
Press, 2012) 597.
430 Daphne Barak-Erez
(part VII). Towards the end, part VIII offers a relatively new perspective on the
Israeli case study, by looking into the impact of new laws which set special security-
oriented norms and limit their durability to a limited period of time (using ‘sunset’
provisions). This development is also evaluated in the conclusion vis-à-vis the more
traditional building blocks which constitute the regulation of emergency conditions in
Israel (part IX).
II. FOUNDATIONS
Israel did not fully accept a formal constitution as promised by its Declaration of
Independence2 in part because its establishment was accompanied by constant existen-
tial threats. Within these circumstances, the idea of a constitution was risky in more
than one way. On the one hand, having a constitution necessarily meant the limitation
of government powers during a time in which it was vital to give the government maxi-
mum strength in order to secure the prospects of the state to protect itself against its
enemies. On the other hand, a constitution that would have merely reflected the necessi-
ties of the time could not set a vision for the country. This could have been an unbal-
anced and potentially dangerous constitution. Eventually, the compromise of refraining
from enacting a formal constitution (and instead legislating Basic Laws that would even-
tually be consolidated into such a document)3 proved to be the pragmatic solution in
several contexts including, namely, national security.4
Lacking a formal constitution, the normative framework of national security law in
Israel has found its grounding in legislation, judicial precedents, and later, also in Basic
Laws.
(1) Legislation – statutory law in this area has traditionally included both legislation
originating from the days of the British Mandate in Palestine5 and original Israeli legisla-
tion. The Law and Administration Ordinance6 provided the first constitutional princi-
ples in this area, although formally speaking it only had the force of ordinary legislation.
This Ordinance was enacted in the first days of the state and was aimed at reflecting the
main principles regarding the roles and powers of the various branches of government.
The most important provision of the Ordinance in this context was section 9, which
acknowledged Parliament’s power to declare an ‘emergency situation’. It further stated
that when the government declares an ‘emergency situation’ it has the power to promul-
gate ‘emergency regulations’ that carry the power to abolish or amend any existing law
2
3
This compromise is known as the ‘Harari Decision’: ‘The first Knesset charges the Constitution, Law and
Justice Committee with the task of preparing a constitution for the country. The constitution will be built
chapter by chapter, so that each one will in itself be a basic law. The chapters will be submitted to the Knesset
as the Committee concludes its task and, together, all these chapters will become the constitution of the coun-
try’. DK 5 (1950) 1743 (in Hebrew).
4
Another area of controversy which posed difficulties was the regulation of law and religion. For more
background on the early stages of the Israeli constitutional process, see D Barak-Erez, ‘From an Unwritten to a
Written Constitution: The Israeli Challenge in American Perspective’ (1995) 26 Columbia Human Rights Law
Review 309.
5
The main statutory framework from this time is the Defence (Emergency) Regulations, 1945, Palestine
Gazette 1442, 1055 (Isr).
6
The Law and Administration Ordinance, 5708-1948.
The National Security Constitution 431
for a period not exceeding three months. Indeed, section 9 succinctly included the basic
features of the constitutional regulation of national security in Israel: the power of the
Parliament to wave its sovereignty and sole power to legislate by declaring a state of
emergency; and the power of the government to overstep the boundaries set between the
executive branch and the legislative branch for a limited period of time. It reflected a
willingness to grant the executive branch additional power, subject to Parliament’s final
word – its power to revoke the declaration of the emergency situation. In addition to the
power to promulgate emergency regulations, Israel enacted several laws that included
provisions stating that they would be in force only when a declaration of a state of emer-
gency is in force.7
(2) Judicial precedents – the Israeli Supreme Court, sitting as the High Court of Justice,
has also opened its gates to petitions in matters of national security from its very first days.
It is possible to indicate petitions in matters such as judicial review of administrative deten-
tions even from the time of the War of Independence.8 However, until the 1990s, the scope
of judicial review was limited to the invalidation of executive decisions.9 Legislation was
immune from the power of judicial review, following the British tradition of sovereignty
(which has been gradually deserted later on in both Israel and Britain).10 Thus, executive
decisions in the area of national security were subjected, first and foremost, to the ultra
vires principle, meaning that the government, including the military, cannot act without
statutory authorization.11
(3) Basic Laws – among the Basic Laws, the most important one for the foundations of
national security law is Basic Law: The Government,12 which defines the powers of the
executive branch. This Basic Law currently includes the updated regulation of the issue
of an emergency situation (replacing the Law and Administration Ordinance in this
regard, as detailed below). Another important aspect of the constitutional regulation of
national security is found in Basic Law: The Military, which clarifies the subjection of
the military to the government. Section 2(a) of this Basic Law states in this regard:
The Army is subject to the authority of the Government.
Other provisions of the Basic Law detail the chain of command and control of the
military by the government. Section 3(b) of the Basic Law states that
[t]he Chief of the General Staff is subject to the authority of the Government and subordinate
to the Minister of Defence.
7
See, eg Emergency Land Requisition (Regulation) Law, 5710-1949; Commodities and Services (Control)
Law, 5718-1958. A notable example of a newer law that applies only in times of emergency is that of the
Emergency Powers Law (Detention), 5739-1979, authorizing the use of administrative detentions. These laws
were designed to serve as ‘dormant’ legislation. In practice, however, they have not been dormant in any practi-
cal sense – they are in force de facto since their legislation (due to the continuous nature of the declaration of
emergency situation, as described later).
8
HCJ 7/48 Al-Karabutli v Minister of Defence 2(1) PD 5 [1949] (in Hebrew).
9
See Barak-Erez, ‘From an Unwritten to a Written Constitution’ (n 4).
10
In Britain, laws are currently subject to judicial review based on the Human Rights Act, 1998. In Israel, the
change has developed gradually during the 1990s, as explained below in part VI.
11
In this sense, Israeli law presents an example of the ‘legislative’ model of terrorism law. For this terminol-
ogy, see, D Barak-Erez, ‘Terrorism Law between the Executive and Legislative Models’ (2009) 57 American
Journal of Comparative Law 877.
12
On the various versions of this Basic Law, see nn 13–16 and the accompanying text.
III. THE EMERGENCY CONSTITUTION AND THE BASIC LAWS
As indicated, the constitutional basis for Israeli national security law was incorporated
into Basic Law: The Government. The first version of this Basic Law, enacted in 1968,13
did not address the issue, but it was eventually regulated by Basic Law: The Government
from 199214 and Basic Law: The Government from 2001,15 the current valid version of
this Basic Law.16
Section 1 of Basic Law: The Government states:
The Government is the executive authority of the State.17
Thus, it does not authorise the government to act beyond its statutory powers.18 Indeed,
the government has residual power to act in areas not regulated by existing legislation,19
but this power has been interpreted as inapplicable to actions which infringe human rights
or to new initiatives aimed at the regulation of new areas of law (where power lies only
with the legislature).20 Therefore, the government may take steps considered necessary for
safeguarding national security, when these are not legislated, only within its power to pro-
mulgate emergency regulations (formerly based on section 9 of the Law and Administration
Ordinance, and currently on Basic Law: The Government).
Sections 38 and 39 of Basic Law: The Government adhere to the principles of the
regulation of emergency situations as they had been originally drafted in 1948.21
According to section 38, the power to declare an emergency situation is given to the
Knesset, the Israeli Parliament. Section 38(a) states:
Should the Knesset ascertain that the State is in a state of emergency, it may, of its own initia-
tive or, pursuant to a Government proposal, declare that a state of emergency exists.
When such a declaration is in force, the government is empowered to promulgate

emergency regulations that may change current laws, for a period not exceeding three
months. Section 39(a) states that
[d]uring a state of emergency the Government may make emergency regulations for the defence
of the State, public security and the maintenance of supplies and essential services,
13
Basic Law: The Government, 5728-1968, SH No 540, p 226.
14
15
16
The two earlier versions of Basic Law: The Government are identical on this point. The following analysis
reviews ss 38–39 of Basic Law: The Government from 2001 (which rehearse the wording of ss 49–50 of the
Basic Law from 1992). The differences between the two versions are connected to the fact that Basic Law: The
Government from 1992 tried to introduce direct elections to the position of the Prime Minister, a reform which
was abolished by its predecessor from 2001. They do not have a bearing on the regulation of emergency
regimes, the focus of this analysis.
17
All the citations from the Basic Laws are taken from the English translation published on the Knesset
website: knesset.gov.il/description/eng/eng_mimshal_yesod1.htm.
18
This view represents the adherence of Israeli constitutional law to the so-called ‘legislative’ model of
anti-terrorism law. See n 11 above. This emphasis is warranted against the background of the use of executive
power in the area of national security in the US, although the breadth of this power is subject to controversy as
illuminated by cases such as Hamdi v Rumsfeld 542 US 507 (2004) and Hamdan v Rumsfeld 548 US 557 (2006).
19
S 32 of Basic Law: The Government states: ‘The Government is authorized to perform in the name of the
State and subject to any law, all actions which are not legally incumbent on another authority’.
20
See HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v Prime Minister 61(1) PD 1
[2006] (in Hebrew).
21
For additional comparison between the two, see B Bracha, ‘Checks and Balances in Protracted State of
Emergency – The Case of Israel’ (2003) 33 Israel Year Book of Human Rights 123.
and section 39(c) states that

[e]mergency regulations may alter any law temporarily suspend its effect or introduce condi-
tions, and may also impose or increase taxes or other compulsory payments unless there be
another provision by law.
Section 39(f) adds the factor of the time limitation on emergency regulations, stating that
[t]he force of emergency regulations shall expire three months after the day of their enactment
unless their force is extended by law, or they are revoked by the Knesset by law, or pursuant to
a decision of a majority of the members of Knesset.
The current version of Basic Law: The Government includes several additional limita-
tions on the powers of government during a state of emergency.22 First, the declaration
of a state of emergency may not exceed one year, although it may be renewed. Section
38(b) states in this regard:
The declaration will remain in force for the period prescribed therein, but may not exceed one
year; the Knesset may make a renewed declaration of a state of emergency as stated.
The practical implication of this limitation is that the Knesset is obligated to revisit its
decision in this matter at least once a year. Second, the Basic Law subjects the power to
promulgate emergency regulations to several substantive limitations regarding their
contents. Section 39(d) states that
[e]mergency regulations may not prevent recourse to legal action, or prescribe retroactive pun-
ishment or allow infringement upon human dignity.
Section 39(e) adds another limitation by stating that

[e]mergency regulations shall not be enacted, nor shall arrangements, measures and powers be
implemented in their wake, except to the extent warranted by the state of emergency.23
Since 1992, Basic Law: The Government provides for another important matter, not
previously regulated – the declaration of war (and not only of emergency). In the current
version of the Basic Law, it is governed by section 40. Section 40(a) states in this regard
that, in principle,
[t]he state may only begin a war pursuant to a Government decision.
At the same time, section 40(b) clarifies that

[n]othing in the provisions of this section will prevent the adoption of military actions neces-
sary for the defence of the state and public security.
In addition, section 40(c) states that the Knesset (more specifically, its Foreign Affairs
and Security Committee) must be notified of decisions to begin war or of military
22
These additional limitations had been introduced for the first time in Basic Law: The Government, 5752-
1992 (n 14).
23
As explained below, this limitation was already introduced by judicial precedents even prior to its express
stipulation in the Basic Law. See A Shinar, ‘Constitutions in Crisis: A Comparative Approach to Judicial
Reasoning and Separation of Powers’ (2008) 20 Florida International Law Journal 115; C Friedberg and
RY Hazan, ‘Israel’s Prolonged War against Terror: From Executive Domination to Executive–Legislative
Dialogue’ (2009) 15 Journal Legis Studies 257.
actions. With regard to war, the Prime Minister should also give a notice to the Knesset
plenum.
The constitutional significance and force of these provisions of Basic Law: The
Government is connected to the fact that they are not subject to change through emer-
gency regulations. According to section 41 of the Basic Law,
[n]otwithstanding the provisions of any law, emergency regulations cannot change this Basic
Law, temporarily suspend it, or make it subject to conditions.
It is difficult to circumvent this limitation because according to section 44(a) the Basic
Law itself may be repealed only by a special majority.24 Thus, in contrast to regular leg-
islation that may be changed by a simple majority vote in the Knesset, the required
majority in this context is at least 61 Knesset Members (out of the 120 in the full ple-
nary). This provision secures for Basic Law: The Government certain durability. At the
same time, in terms of political reality, the majority needed does not constitute a high
barrier to cross, since every stable coalition government needs at least this majority in
the Knesset in order to be able to govern effectively.25
Another important limitation on the use of emergency regulations derives from Basic
Law: Human Dignity and Liberty, which includes the main constitutional provisions on
the protection of human rights in Israel. According to section 12 of this Basic Law, it
cannot be suspended or amended by emergency regulations. In addition, emergency
regulations may limit the application of the rights guaranteed by the Basic Law, only
subject to the condition that
the denial or restriction shall be for a proper purpose and for a period and extent no greater
than is required.
Whether such emergency regulations meet this standard is a question subject to judi-
cial review.
IV. THE EMERGENCY CONSTITUTION IN PRACTICE
The Israeli regime of emergency powers is formally based on the assumption that emer-
gency law is the exception to the norm and that the government is subject to close parlia-
mentary scrutiny in this area (since the Knesset controls the power to declare and
prolong an emergency situation). Practice, however, presents a different de facto balance
between the executive and the legislature.
In fact, the emergency situation originally declared in Israel in May 1948, pursuant to
its establishment, has never been abolished for several reasons. First and foremost,
threats on Israel’s security never subsided after its independence, culminating in both
wars and terrorist attacks. Hence, one might understand why the Knesset found it diffi-
24
S 44(a) of Basic Law: The Government (n 15) states: ‘This Basic Law can only be changed by a majority of
the Knesset members; the majority under this sub-section will be required for decisions of the Knesset plenum
in the first, second and third readings; for purposes of this sub-section, “change” is either explicit or by
implication’.
25
The requirement of special majority to amend Basic Law: The Government is thus very different from the
strong preservation of the status quo originating from the harsh procedure of constitutional amendment in the
US. See US Constitution, Art V.
cult to take the initiative and stop renewing this declaration. Second, from a political
perspective, the coalition-based system of government in Israel does not allow for a very
independent parliamentary supervision of the executive. Knesset Members who belong
to the parties that comprise the government tend to support it, especially in core matters
such as national security. This way, Israeli emergency law demonstrates once again the
danger of analyzing legal regimes only by reference to the ‘law in the books’. In these
books, the emergency regime is the exception. In the realm of ‘law in action’, it is the
standard.26
In 1999, the Association of Civil Rights in Israel (ACRI) petitioned the High Court of
Justice arguing that the declaration of an emergency situation had become unreasonable
with the passage of time. The prospect of abolishing the declaration necessitated a seri-
ous process of reviewing current legislation in order to assess whether some of the laws
which include provisions conditioning their applicability in the existence of a declara-
tion of emergency situation should be amended (by applying them during periods with
no declaration of an emergency situation in force). Accordingly, the Ministry of Justice
initiated such a process and the court allowed it to do so, holding the petition open until
this process is finalised and the court is updated regarding its results.27 Eventually, how-
ever, with no obvious sign that the threats on Israel had declined, the court decided to
dismiss the petition, expressing its wish that the Ministry of Justice continue to promote
the effort it had initiated in reviewing statutory schemes which currently apply only dur-
ing emergency situations.28
V. THE EMERGENCY CONSTITUTION FROM A COMPARATIVE PERSPECTIVE
The regulation of national security in Israeli constitutional law should be assessed also by
reference to the theoretical and comparative study of exceptions made for emergencies.
The idea that emergency circumstances merit the suspension of the ordinary con
stitutional regime is not new. Rather, it is derived from the institution of dictatorship in
the Roman Empire. In Rome, a dictator was appointed as a temporary leader with spe-
cial powers for a limited period of time, in order to confront threats to the empire. As
Clinton Rossiter writes:
The splendid political genius of the Roman people grasped and solved the difficult problem of
emergency powers in a manner quite unparalleled in all history, indeed so uniquely and boldly
that a study of modern crisis government could find no more propitious a starting point than a
brief survey of the celebrated Roman dictatorship.29
At the same time, history teaches us that the power to declare an emergency situation
may be abused. The most notable example of such gross misuse has been the rise of the
Nazi regime, which took advantage of and circumvented the Weimar Constitution, by
26
For this distinction, see R Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law Review 12.
27
See HCJ 3091/99 Association for Civil Rights in Israel v Knesset (1 August 2006) (in Hebrew) (hereinafter:
Declaration of Emergency case). The Supreme Court decided to postpone the hearing of this petition without
dismissing it.
28
See HCJ 3091/99 Association for Civil Rights in Israel v Knesset (8 May 2012) (in Hebrew).
29
C Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton,
Princeton University Press, 1948) 15.
suspending several of its protections in the name of national security.30 Concerns are
inspired not only by historical experience; they are based also on the theoretical under-
standing that exceptions to the norm tend to gradually eliminate it.31
In principle, the challenge posed by extraordinary threats to national security (or
other types of crisis) to the constitutional order raises several questions.32 The first ques-
tion is whether to insist on maintaining the regular legal order (thus giving preference to
human rights and democracy under all circumstances) or to allow for accommodations
that curtail the regular level of human rights protections or democratic processes. Israeli
law, like many other systems, has chosen the latter option, as explained below.33 The
second question concerns the choice between different versions of accommodations –
introducing express constitutional provisions which allow for the partial suspension of
some constitutional arrangements; adopting lenient constitutional interpretations that
allow for broadening executive power without express regulation of emergency
regimes;34 or assuming that government will choose to break the rules when this becomes
absolutely necessary.35 Here, the Israeli system opted for the first alternative.
In general, the argument for the express regulation of emergencies in the constitution
derives from the recognition that it avoids the following contradicting evils – the inabil-
ity to effectively protect the state from its enemies (if only the regular constitutional
regime applies) and the destruction of the rule of law as a guiding principle (if emergency
extra-legal measures are taken). This preference also finds grounding in the approach of
international law. Several human rights conventions allow for ‘derogation’ from the
regular level of protection of human rights in states of emergency.36 The main shortcom-
ing of this model concerns the possibility of overusing it. This concern is doomed to be
in the background; the answer to it should lie in the domain of political culture (that has
to push against this possibility to the maximum extent possible).
30
Article 48 of the Weimar Constitution (the Constitution of the German Reich, 1919 (Die Verfassung des
Deutschen Reichs)) stated: ‘In case public safety is seriously threatened or disturbed, the Reich President may
take the measures necessary to reestablish law and order, if necessary using armed force. In the pursuit of this
aim he may suspend the civil rights described in articles 114, 115, 117, 118, 123, 124 and 154, partially or
entirely’. English translation available at: www.zum.de/psm/weimar/weimar_vve.php.
31
The concern regarding the effect of the exception on the norm has been inspired by the writings of Carl
Schmitt. See C Schmitt, Political Theology (Chicago, University of Chicago Press, 1985).
32
The description of these choices in the following paragraph is similar to the one offered by EA Posner and
A Vermeule, ‘Accommodating Emergencies’ (2003) 56 Stanford Law Review 605, 606–07.
33
In theory, each of these alternatives has different merits and vices. Express provisions regulating emergency
situations create stability since they clarify the ‘rules of the game’. At the same time, they are susceptible to over-
use, due to the simplicity and prima facie legitimacy associated with the act of suspension of the regular constitu-
tional order.
34
This alternative, based on the interpretation of vague constitutional provisions, necessitates the govern-
ment to act under a cloud of constitutional uncertainty. It may thus deter the government from overusing
special powers, and at the same time may make it hard to act effectively, even when executive action is needed.
35
The last alternative mentioned is, in fact, an extra-legal one. It wishes to narrow the recourse to emer-
gency measures to the minimum degree possible. However, it may in fact eventually lead to scepticism regard-
ing the rule of law altogether. This proposal has been promoted by O Gross, ‘Chaos and Rules: Should
Responses to Violent Crises Always be Constitutional?’ (2003) 112 Yale Law Journal 1011.
36
See, eg Art 4 of the International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 states the following: ‘(1) In time of public emergency which
threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the pre-
sent Covenant may take measures derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their
other obligations under international law and do not involve discrimination solely on the ground of race, color,
sex, language, religion or social origin’. See E Hafner-Burton, LR Helfer and CJ Farris, ‘Emergency and Escape:
Explaining Derogations from Human Rights Treaties’ (2011) 65 International Organization 673.
As a matter of practice, several modern constitutions include provisions regulating the

possibility to declare emergency regimes during which ordinary constitutional protec-
tions do not apply to the same extent. It is worthwhile to compare these examples to the
regulation of emergencies in Israel. The brief analysis below focuses on three important
case studies – those of South Africa, Germany, and Spain – which had suffered during
the twentieth century from dictatorial regimes and abuses of emergency powers.
Section 37 of the South African Constitution of 1996,37 which serves as an example for a
modern and sophisticated constitutional document, recognises the possibility of declaring
a state of emergency38 by an Act of Parliament when
the life of the nation is threatened by war, invasion, general insurrection, disorder, natural
disaster or other public emergency,
and when ‘the declaration is necessary to restore peace and order’. In such circumstances
legislation may derogate from the ordinary level of protection of constitutional rights.
However, the constitution puts additional limitations on such legislation, which may do
so only when ‘the derogation is strictly required by the emergency’ and consistent with
the obligations of the state under international law. In addition, the South African
Constitution recognises a table of non-derogable rights. It awards absolute protection to
human dignity and life, and authorises only limited derogations from other rights.
The German Basic Law39 and the Spanish Constitution40 shed light on the possibility
of distinguishing between several types of emergencies (a distinction unknown to Israeli
law).
The German Basic Law distinguishes between ‘internal emergency’ (regulated by
Articles 91 and 87a(4)), ‘state of tension’ (regulated by Articles 12a(5)–(6) and 80a) and
‘state of defence’ (regulated by Articles 115a–115l). The most severe situation is that of
‘state of defence’, limited to circumstances in which ‘federal territory is under attack by
armed force or imminently threatened with such an attack’. A determination that such a
situation exists ‘shall be made by the Bundestag with the consent of the Bundesrat’ based
‘on application of the Federal Government’ and it requires ‘a two-thirds majority of the
votes cast, which shall include at least a majority of the Members of the Bundestag’.
During such time legislative powers may be exercised with modifications, including the
passing of federal legislation in areas which are normally regulated by the Länder (Art
115c) and the use of a special enhanced legislative process (Art 115d), sometimes even
only by the Joint Committee, rather than by the Bundesrat and Bundestag (Art 115e).
These extraordinary laws ‘shall suspend the operation of incompatible law so long as
they are in effect’. However, the last word is given to the democratic process. According
to Article 115l, the Bundestag may, with the consent of the Bundesrat, at any point
repeal laws enacted by the Joint Committee (Art 115l(1)) and may also at any time ter-
minate the declaration of the state of emergency (Art 115l(2)).
37
South African Constitution, 1996, s 37.
For the possibilities of regulating emergencies in South Africa in the past, see S Ellmann, ‘A Constitution for
38
all Seasons: Providing against Emergencies in a Post-Apartheid Constitution’ (1989) 21 Columbia Human Rights
Law Review 163.
39
Grundgesetz (GG).
40
Constitución Española, BOE n 311, 29 December 1978.
The Spanish Constitution also distinguishes between three types of emergencies:

alarm, emergency, and siege (Article 116(1)). Siege, the highest level of emergency situa-
tion, can only be
declared by the absolute majority of the House of Representatives at the exclusive proposal by
the Government.
The House of Representatives shall determine the territorial scope, duration, and con-
ditions of the declaration. Article 116(5) states that
[t]he House of Representatives may not be dissolved while any of the states contained in the
present article are in effect,
and Article 116(6) clarifies that

[t]he declaration of the states of alarm, emergency, and siege shall not modify the principle of the
responsibility of the Government or its agents as recognised in the Constitution and in the laws.
In addition, Article 55 accepts the possibility of suspending basic rights when a state of
emergency or siege is declared.
The US Constitution, which dates from the eighteenth century, includes a much less
sophisticated regulation of emergency. In fact, formally speaking, it does not recognise
special rules for times of emergency, and only authorises the possibility of suspending
the Writ of Habeas Corpus. According to Article I, section 9, clause 2:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebel-
lion or invasion the public safety may require it.41
This provision falls short of constituting a full scheme of emergency powers, but it
forms a pragmatic alternative to the need to do so, by barring the access to court of
people whose liberty is being infringed by the executive.42
41
US Constitution, Art I, §9, cl 2. In practice, the use of suspension power in the US has been a source of
public debate. The most well-known (and controversial) example of such suspension comes from the decision
of President Lincoln during the Civil War. Richard Posner wrote in this regard: ‘One response to Lincoln’s
actions might be to say that if he was acting justifiably, we should amend the Constitution to authorize presid
ents to suspend habeas corpus in emergencies . . . The alternative, which has been chosen by default, is to say
that we are not going to give the president that legal authority but we are going to expect him to suspend
habeas corpus if doing so is necessary (as Lincoln believed) to save the nation’. RA Posner, Not a Suicide Pact
– The Constitution in a Time of National Emergency (Oxford, Oxford University Press, 2006) 153–54. This
analysis adheres to the model of using extra-legal measures. See n 35 above.
42
For an interpretation of the Suspension Clause as a source of emergency power in the substantive sense of
the word, see AL Tyler, ‘Suspension as an Emergency Power’ (2009) 118 Yale Law Journal 600. Against this
background and following the events of 9/11, Bruce Ackerman has suggested going beyond the traditional
regulation of the matter and introducing in the US as well the possibility of declaring an emergency regime,
during which the President (as the head of the executive branch) will be authorized to take measures necessary
for the defence of the country and its people. See B Ackerman, ‘The Emergency Constitution’ (2004) 113 Yale
Law Journal 1029; B Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism
(New Haven, Yale University Press, 2006). This proposal builds upon the regulation of emergencies in other
constitutions (and accommodates this idea to the US context by the proposal to enact a framework statute in
this regard). In the US, however, this proposal was generally speaking received with concern. Critiques offered
various reasons – ranging from concerns regarding the ability to protect rights, see, eg LH Tribe and PO
Gudridge, ‘The Anti-Emergency Constitution’ (2004) 113 Yale Law Journal 1801, to analytical arguments
against the effectiveness of regulating the matter only by a statute, see, eg A Vermeule, ‘Self-Defeating
Proposals: Ackerman on Emergency Powers’ (2006) 75 Fordham Law Review 631.
Evaluating the Israeli condition against the above comparative background leads to
several poignant points. First, the express regulation of emergency regimes is currently
considered the lesser evil by various modern constitutional documents. Second, the pri-
mary problem with the Israeli regulation of emergency situations does not derive from
the law in the books, but rather from the continuity of the declaration of emergency in
practice. At the same time, putting formal limitations on the duration of emergencies is
not a sensible solution, given the palpable threats the country faces. However, the pos-
sibility of amending the relevant provisions in a manner that will allow for distinctions
between various degrees or levels of emergencies (as in Germany and Spain) should be
considered.43 Such a reform will decrease the scope of exceptional executive powers in
times of ‘ordinary’ emergencies.
Indeed, as the analysis so far reveals, the constitutional text by itself may not suffice
for safeguarding a balanced use of emergency powers. Even a constitutional regime
which acknowledges distinctions between degrees of emergency is not a full guarantee
against a political choice to use the most extreme measure. However, introducing these
nuances into the constitutional system may diminish the prospects for the overuse of
emergency powers.
VI. JUDICIAL REVIEW AND NATIONAL SECURITY
The regulation of national security in constitutional texts proves to be important only if

it is enforced by the courts. As already noted, in Israel, executive decisions in the area of
national security have been subject to judicial review since the early days of the Israeli
Supreme Court.44 This is also the case today, and even more so, as the Israeli Supreme
Court has significantly narrowed preliminary barriers for judicial review, including the
justiciability doctrine.45
The relatively significant role exercised by the judiciary in the Israeli context is often
juxtaposed with the relatively weak parliamentary supervision of decisions in the area of
national security (due to various factors, including the parliamentary coalition system
which guarantees an almost automatic support for government decisions, as well as the
background perception that Israel is under constant threat).46
It is important to note, however, that although the role of judicial review is important
it is also limited. The decisions of the Supreme Court in this area do not challenge the
basic structure of the regulation of the emergency regime (nor the declaration of the
emergency situation itself),47 but rather criticize specific decisions in the area of national
43
Distinctions between different emergencies are also found in Canada, where the matter is regulated not by
the Canadian Charter of Rights and Freedoms, but rather by a statute – the Emergencies Act 1985 (Can). See
R Martin, ‘Notes on Emergency Powers in Canada’ (2005) 54 University of New Brunswick Law Journal 161;
KL Scheppele, ‘North American Emergencies: The Use of Emergency Powers in Canada and the United States’
(2006) 4 International Journal of Constitutional Law 213, 230–31.
44
See Al-Karabutli (n 8). For the growth of judicial review of decisions in the area of national security, see
B Bracha, ‘Judicial Review of Security Powers in Israel: A New Policy of the Courts’ (1991) 28 Stanford Journal
of International Law 39.
45
D Barak-Erez, ‘Broadening the Scope of Judicial Review in Israel: Between Activism and Restraint’ (2009)
3 Indian Journal of Constitutional Law 118.
46
See Shinar (n 23); Friedberg and Hazan (n 23).
47
See nn 27–28 above and accompanying text.
security within this framework.48 In other words, judicial review has proved more effec-
tive when it addresses specific decisions to use emergency regulations, and not the basis
of the emergency regime as such.
The landmark precedents exercising judicial review over decisions in the area of national
security have touched on decisions or actions that incongruously prioritised national security
over basic rights (and thus were deemed ultra vires, unreasonable or disproportionate).
These cases include the ruling to invalidate the military censor’s decision not to disclose the
name of a retiring head of Mossad (the Israeli intelligence authority)49 and the ruling which
prohibited the use of physical interrogation measures by the General Security Services.50
Traditionally, the Israeli Supreme Court has intervened in the area of national secur
ity mostly by reviewing executive decisions, due to the constitutional convention preva-
lent in the formative years of the Israeli legal system – of legislative sovereignty. Thus,
judicial review of legislation in the area of national security was beyond the reach of the
court. However, the immunity of legislation from judicial review was removed with the
enactment of the Basic Laws on human rights in 199251 – Basic Law: Freedom of
Occupation52 and Basic Law: Human Dignity and Liberty. These Basic Laws were inter-
preted by the Court as also extending judicial review to legislative infringements of
human rights.53 One notable example of litigation, which challenged the constitutional-
ity of legislation in the area of national security, has been the controversy over the law
which prohibits residents of the Occupied Territories from applying for residency in
Israel (as well as from starting a process of naturalization) based on their family rela-
tions with Israeli citizens.54
VII. NATIONAL SECURITY BETWEEN CONSTITUTIONAL LAW

AND INTERNATIONAL LAW
An analysis focused on the constitutional aspects of national security obscures the fact
that, in the Israeli context, many of the important constraints in this area derive not only
from constitutional law but also from international law. This has been the case due to
48
In general, the court is willing to intervene when the government tries to wield its power to promulgate
emergency regulations although it has other means of action, including the possibility of initiating new legisla-
tion. See HCJ 2994/90 Poraz v Government of Israel 44(3) PD 317 [1990] (in Hebrew); HCJ 6971/98 Paritzky v
Government of Israel 53(1) PD 763 [1999] (in Hebrew).
49
HCJ 680/88 Schnitzer v Chief Military Censor 42(4) PD 617 [1989] (in Hebrew).
50
51
See text to nn 9–10.
52
The original version of Basic Law: Freedom of Occupation, 5752-1992, SH No 1387, p 114 was replaced
by a newer version – Basic Law: Freedom of Occupation, 5754-1994, SH No 1454, p 90.
53
See HCJ 6821/93 United Mizrahi Bank v Migdal Cooperative Village 49(4)PD 221 [1995] (in Hebrew).
However, judicial review of infringements of Basic Law: Human Dignity and Liberty does not extend to laws
which preceded this Basic Law, according to the express exception stated in s 10: ‘This Basic Law shall not
affect the validity of any law [din] in force prior to the commencement of the Basic Law’.
54
The Court was bitterly divided in this matter, and petitions against the law were rejected twice by close
majority–minority decisions. The justices in the minority stated that despite the importance of the legislative
goal, the measure taken – enacting a sweeping rule against so-called ‘family unification’ with Palestinian resid
ents of the Territories and thus infringing constitutional rights of their Israeli relatives – did not pass the pro-
portionality requirement. See HCJ 7052/03 Adalah v Minister of Interior 61(2) PD 202 [2006] (in Hebrew);
HCJ 466/07 Galon v Attorney General (11 January 2012) (in Hebrew). See also D Barak-Erez, ‘Citizenship and
Immigration Law in the Vise of Security, Nationality, and Human Rights’ (2008) 6 International Journal of
Constitutional Law 184.
several reasons: first, the power of international law has generally expanded worldwide,
as well as in the Israeli context where the Supreme Court gradually takes more guidance
from the norms of international law;55 second, and more concretely, many of the chal-
lenges in the area of national security in Israel have concerned the Occupied Territories
– beyond Israel proper. Accordingly, the international law of occupation has proved
extremely relevant.56 In fact, some of the Israeli Supreme Court’s most interesting and
important decisions were mainly inspired by international law more than by Israeli
domestic constitutional law. Examples include the decisions on the security barrier57 and
the decision on targeted killings.58
The impact of international law has consistently intensified due to the unprecedented
willingness of the Israeli Supreme Court to engage with petitions concerning military
actions that are taking place in real time, when they have an effect on human rights of
civilians.59 The orders given by the Court may have been restrained, but in some cases
even the willingness to hear a petition has a restraining effect on military actions.60
VIII. EMERGENCY LEGISLATION WITHOUT EMERGENCY –

TOWARD A NEW PARADIGM?
The backbone of national security law, as described so far, has been the power to declare
an emergency situation. Therefore, the focus was on the scope of the power to declare an
emergency situation and possible reforms in the way it is regulated. In contrast to this
traditional analysis, it is suggested here to shed light on the constitutional significance of
a relatively new legislative policy of enacting new laws which regulate top priority
national security matters without conditioning their force in the existence of a formal
declaration of an emergency situation.
More specifically, it is possible to point at two categories of new laws of this sort –
ordinary laws and so-called temporary laws which include ‘sunset’ provisions.
A representative example of this new legislative trend is the Incarceration of Unlawful
Combatants Law, 5762-2002, which unlike the law on administrative detentions61 is not
limited to emergency situations. A major legislative bill – the Draft Bill Struggle Against
Terrorism, 201162 – emphasises the willingness to broaden this option. The Bill, designed
55
D Barak-Erez, ‘The International Law of Human Rights and Constitutional Law: A Case Study of an
Expanding Dialogue’ (2004) 2 International Journal of Constitutional Law 611.
56
At the same time, there have been some doubts regarding the complete application of Israel’s Basic Laws
on human rights in these areas: HCJ 1661/05 Hof Aza Regional Council v Israeli Knesset 59(2) PD 481 [2005]
(in Hebrew).
57
HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807 [2004] (in Hebrew);
HCJ 7957/04 Mara’abe v Prime Minister of Israel 60(2) PD 477 [2005] (in Hebrew). See also D Barak-Erez,
‘The Security Barrier: Between International Law, Constitutional Law and Domestic Judicial Review’ (2006) 4
International Journal of Constitutional Law 540.
58
HCJ 769/02 Public Committee against Torture in Israel v Government of Israel 62(1) PD 507 [2006] (in
Hebrew).
59
See, eg HCJ 2936/02 Physicians for Human Rights v Commander of the IDF forces in the West Bank 56(3)
PD 3 [2002] (in Hebrew); HCJ 2117/02 Physicians for Human Rights v Commander of the IDF forces in the
West Bank 56(3) PD 26 [2002] (in Hebrew).
60
For a broader analysis, see Barak-Erez, ‘Broadening the Scope of Judicial Review’ (n 45).
61
See n 7 above.
62
Draft Bill Struggle Against Terrorism, 2011, HH (Government) No 611, p 1408.
to form the basis for the new anti-terrorism law in Israel, aims at enacting a law in this
area for all seasons, notwithstanding the existence of an emergency situation. In fact, the
Bill even aims at amending several existing laws which currently condition their applica-
bility in the existence of an emergency situation.
Interestingly, in its decision on the continuity of the declaration of emergency, the
Supreme Court has pointed to the new Bill as one of the steps taken by the Ministry of
Justice in order to get prepared for the non-renewal of the declaration of emergency
situation.63 The decision refrains from addressing the possibility that this achievement
may become a ‘Pyrrhic victory’ if the practical result is that the declaration of emergency
will end but the so-called normal legislation will become emergency-oriented in its
substance.
A similar development is the legislation of ‘temporary’ laws – laws with sunset
provisions which limit their force to a period of a few years with no connection to the
existence of an emergency situation. Representative examples in this regard include the
law which limits ‘family unification’ with relatives of Israeli citizens who live in the
Occupied Territories64 and the special law on investigations of suspects in national secu-
rity offences, regarding the time period before they can meet with their attorneys and the
procedures lengthening their arrests.65
Indeed, legislating special laws in times that are perceived as ‘special’ due to national
security threats (but with no formal constitutional declaration of an emergency situa-
tion) is not special to Israel.
Following the events of 9/11 this has been done by several Western democracies, such
as the US, Canada and the UK. Partially at least, these laws were enacted for a limited
period of time, in a way that contributed to their public legitimacy.66
The US Patriot Act of 2001 originally included a sunset clause (section 224) which
limited some of the law’s provisions to four years. Later on the issue of prolonging
these provisions was the subject of heated debates, and eventually most of them were
indeed prolonged. In a similar manner, the Canadian Anti-terrorism Act of 2001
limited the force of two controversial powers – regarding preventive arrests and
investigative hearings – to five years. Eventually, these powers were not prolonged. In
the UK, the Anti-terrorism, Crime and Security Act 2001, limited its provisions on
unlimited detentions of non-nationals declared as ‘suspected international terrorists’ to
a period not exceeding five years. After this controversial power was declared as incom-
patible with the European Convention on Human Rights,67 the UK enacted the
Prevention of Terrorism Act of 2005, which introduced the power to promulgate ‘con-
trol orders’ to national and non-nationals alike. This power was limited to a duration of
one year with the possibility of prolonging it (section 3), and in fact, it was indeed
prolonged.
Formally speaking, ordinary legislation which includes sunset provisions is not part of
the constitutional regulation of emergency situations. However, pragmatically, to a
63
Declaration of Emergency case (n 27) para 16.
64
Citizenship and Entry into Israel (Temporary Provision) Law, 5763-2003.
65
Criminal Procedure (Detainee Suspected of Security Offence) (Temporary Provision), 5766-2006.
66
JE Finn, ‘Sunset Clauses and Democratic Deliberation: Assessing the Significant Deliberation: Assessing
the Significance of Sunset Provision in Antiterrorism Legislation’ (2010) 48 Columbia Journal of Transnational
Law 442.
67
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.
large degree, this form of legislation makes the declaration of an emergency situation
redundant. First, such laws provide the government with broad powers that are ready
for use at times of threat to national security. Second, when these laws are challenged in
court and accused of infringing the proper balance between the protection of national
security and the protection of human rights, the court is expected to take into consider-
ation the fact that these are ‘only’ temporary laws and therefore to limit the scope of
judicial review. When the court does so, the result is that these laws in fact influence the
constitutional framework of emergency.68 In the first decision, which reviewed the con-
stitutionality of the limitations on ‘family unification’, the temporary nature of the law
played an important role. Cheshin J referred to earlier precedents on temporary laws
and stated that
the less we declare temporary laws void, the better . . . Security reasons are reasons that change
from time to time, and determining that a law is a temporary law means a reduction in the
harm caused by it merely to the areas where security reasons so demand.69
Of course, the temporary nature of the law constitutes only one factor to be consid-
ered by the court, and it is still possible that the court will decide to invalidate even a law
of a temporary nature.70
The shift toward the legislation of laws with sunset provisions in the area of national
security poses an additional question: to what extent are these laws of a really temporary
nature? Indeed, it seems reasonable to enact special powers in the area of anti-terrorism
for limited periods. This way, it is possible to answer temporal challenges without chang-
ing the underlying principles of the legal system. This understanding has shaped the toler-
ant view of the Israeli Supreme Court toward temporary laws of this kind. However, this
tolerance has to be reassessed against the background of prolonging laws with sunset
provisions time after time. This practice may create a new balance between security needs
and human rights under the disguise of temporary legislation, forming a reality of ‘tem-
porary permanence’ or ‘permanent temporariness’. In many ways, this new practice
resembles the basic problem with the constant prolonging of the declaration of emer-
gency situation under Basic Law: The Government. It should therefore come as no sur-
prise that the Israeli Supreme Court is gradually developing a growing (although limited)
willingness to review also laws defined as ‘temporary’ when they are prolonged more
than once.71
68
This judicial restraint in reviewing temporary laws has developed as a general policy and is not limited to
the national security context. See, eg HCJ 726/94 Klal Insurance Co Ltd v Minister of Finance 48(5) PD 441,
486 [1994] (in Hebrew); HCJ 24/01 Ressler v Knesset 56(2) PD 699 [2002] (in Hebrew).
69
Adalah v Minister of Interior (n 54) p 450 (para 118).
70
Indeed in the Adalah v Minister of Interior decision itself, the minority justices thought that the invalida-
tion of the law is merited despite its temporary nature. In another case – CHR 8823/07 Anonymous v State of
Israel (11 February 2010) (in Hebrew) – the Court invalidated a statutory provision which recognized the pos-
sibility of prolonging the arrest of a suspect in terrorist related activities without his or her presence in court.
71
See Ressler v Knesset (n 68) (a petition against the exemption of students of religious institutions from
military service was accepted after the temporary law in this matter was prolonged); Galon (n 54) (the second
petition against the law which prohibited family unification with Palestinians from the Occupied Territories
was dismissed but some of the justices expressed a growing dissatisfaction with the practice of the prolonging
a law which was originally legislated as a temporary measure. Special notice should be taken of the opinion of
Levi J, who was part of the majority in the earlier decision in this matter, and ultimately joined the minority
justices).
IX. CONCLUSION
The analysis offered so far shows that although the Israeli case study is special it still
resembles problems and issues that are debated also in other systems. Recognizing spe-
cial powers that may be invoked in times of emergency is a practice accepted by several
systems and in this sense the Israeli regime as enacted by Basic Law: The Government is
a reasonable compromise, especially when one takes notice of the special security threats
Israel has to cope with. The unique nature of the Israeli condition derives not from the
‘law in the books’, but rather from the constant prolonging of the declaration of the
emergency situation. At the same time, putting a formal limitation on the length of an
emergency situation is not a practical solution, taking into consideration the threats fac-
ing Israel. The comparative study sheds light on a possibility that has not yet been pur-
sued by Israel – of differentiating between various levels of security conditions.72 Beyond
the formal contours of the constitutional norms, this chapter has noted the growing
tendency to enact temporary laws with ‘sunset’ provisions which derive their professed
justification from increased security threats presented as temporary. When these laws
are prolonged, they seem to informally change the constitutional balance between secu-
rity threats and human rights. In addition, the analysis offered clarifies the position that
although the constitutional regulation of Israel’s national security law is formally
grounded in Basic Law: The Government, in fact it is much broader and includes also
the de facto permanent nature of the declaration of an emergency situation, the influence
of international law and the access to judicial review of decisions in this area.
72
As noted above, this differentiation is recognized by the German Basic Law and by the Spanish
Constitution. Similarly, such differentiation is also recognized in Canada by the Emergencies Act, 1985. See
Martin (n 43); Scheppele (n 43). It is worth noting that Israeli law accepted this differentiation for limited pur-
poses – in the context of the Civil Defence Law, 5711-1951 (as amended), which regulates the powers to defend
residents of civilian areas during a period of battles.
29
The Role of the Legislature in
Determining Legitimate Responses to
Security Threats: The Case of Israel
BARAK MEDINA
I. INTRODUCTION
A
CTIVISM AND MINIMALISM are typically attributed to the scope of
judicial involvement in determining the legitimacy of decisions taken by the polit-
ical branches. But such evaluation may also address the role the legislature
plays in delineating the measures the Executive Branch may (or should) take. From a
normative, deontological perspective, at issue is what is the scope of the principle known
as the rule of law, which requires governments to act on the basis of general, predefined
norms, determined by an assembly of representatives. In addition, enforcing such
requirement imposes the representatives to deliberate on the relevant aims and means,
and may thus have a substantial positive effect on policies taken.
The purpose of the current chapter is to contribute to the study of this issue by
presenting and critically evaluating the Israeli experience regarding the role of the legis-
lature (the Knesset – Israeli Parliament) in one specific context – responding to security
threats, and in particular to terror attacks. At issue is the question of what political
branch should decide the types of military and administrative measures that are legit
imate and justified in certain circumstances?
The descriptive part of this chapter presents a story of evolution in the role of the
Israeli Parliament in this respect. Until approximately the second half of the 1990s, the
Knesset’s role was mostly marginal. The choice of responses to security threats was con-
sidered in the exclusive domain of the Executive Branch. However, the last decade has
witnessed a growing involvement of the legislature in delineating what measures can
legitimately be employed and in what circumstances. This change reflects only in small
part the aim of restraining unjustified use of force. The more dominant aim is precisely
the opposite – legitimizing the use of certain measures that were otherwise considered
prohibited.
The chapter also aims to enquire as to what role the Israeli legislature should play.
Given the fact that in practice the Knesset legislates mostly to legitimise employing cer-
tain measures rather than to restrain the government, it may seem as if the requirement
of ex ante legislative authorization is superfluous. Nevertheless, I suggest that enforcing
446 Barak Medina
this requirement is justified. I address three main arguments: first, that the requirement
of legislation is beneficial, at least in terms of its deliberative values; second, that legisla-
tion is an essential tool for scrutinizing governmental activities; and third, that the con-
cerns of the symbolic adverse effects of authorizing human rights infringements in
legislation are unfounded.
The chapter proceeds as follows: part II provides an overview of the scope of legisla-
tion in Israel in determining the legitimacy of various responses to security threats. Part
III considers several explanations of this reality. Part IV then moves on to consider the
normative aspects of the discussion, by identifying three main models of regulating the
government’s response. Part V compares the models and argues for an enhanced involve-
ment of the legislature, according to the third model. Part VI concludes.
II. THE KNESSET’S ROLE IN LEGITIMIZING PRE-EMPTIVE MEASURES
In Israel, as in other liberal democracies, determining how to respond to security threats

and what pre-emptive measures to take is traditionally considered to be in the domain of
the Executive Branch. As indicated, the Israeli legislature adopted a rather minimalist
approach in regulating the government’s actions in the fight against terror. This part
describes this practice, and points to its evolution in recent years.
A. The Minimalist Approach
The prevailing approach in Israel used to be one of legislative deference to the Executive
Branch in determining the legitimacy of the use of pre-emptive measures in response to
security threats. Whereas punitive measures can be implemented exclusively by the
courts, based on explicit legislation, pre-emptive measures are often taken without such
authorization. Subject to minor exceptions, the Knesset refrained from determining in
legislation the preventive powers of the Executive Branch (and to a great extent, did not
apply other supervising powers as well). It neither granted the Executive Branch explicit
authorization to take certain measures nor did the Knesset restrain the government by
setting limits to its powers.
A notable expression of this minimalism is the government’s decision to subject tens
of thousands of Arab Israeli citizens to martial law in the years 1948–66.1 This policy
came into force during Israel’s War of Independence, which was, in part, a civil war
between the Jews and Arabs in Palestine. This decision can be considered legitimate in
times of war. However, it remained in force long after the hostilities were over, for close
to two decades, and, as indicated, the Knesset did not take any (formal) part in either
imposing martial law or revoking it.
In 1967, just one year after martial law was revoked, Israel reimplemented it, this time
over the hundreds of thousands of Palestinians who lived in the West Bank and the Gaza
Strip, areas which were occupied in the Six Days War.2 The Israeli martial law in the
1
Y Bauml, ‘The Military Government on the Israeli Arabs and its Cancellation’ (2002) 43 The New East 133
(in Hebrew).
2
M Shamgar, ‘Legal Concepts and Problems of the Israeli Military Government – The Initial Stage’ in
M Shamgar (ed), Military Government in the Territories Administrated by Israel, 1967–80: The Legal Aspect
(Jerusalem, Hebrew University, 1982) 13.
Legislative Responses to Security Threats 447
Gaza Strip ended in 2005, when Israel withdrew from the area, whereas in the West
Bank this status is still in force, now for more than four decades. Here too, the Knesset
refrained from authorizing the government to implement the military order and take
specific measures, and it did not impose restrictions on the IDF’s (Israel Defence Forces)
powers (although it did approve in legislation the government’s decisions to withdraw
from the Gaza Strip in 2005, and to transfer certain sovereign powers to the Palestinian
Authority in specific parts of the West Bank, in 1993). In the face of terrorist attacks, the
Israeli security forces took harsh military measures against persons living in the Occupied
Territories.3 Again, these measures were not explicitly authorised by the Knesset and
were not subject to limitations set forth in legislation.
This long practice of deference by the Knesset was possible, in terms of formal
authorization, based on three main sources of law (in addition to section 40 of the
Basic Law: The Government, discussed below). The first is legislation enacted during
the British Mandate over Palestine, primarily the Defence Regulations (Emergency),
1945. This legislation consists of extensive governmental powers, which are highly
uncommon in democratic regimes. It was implicitly incorporated into Israeli law by
section 11 of the Law and Administration Ordinance, 5708-1948.4 Other provisions
that empower the government with extensive powers to infringe basic liberties, also
originated in the era of the British Mandate, and were similarly incorporated into the
Israeli law.
The second source that authorises the government to take actions in response to security
threats is the norms of customary international humanitarian law (IHL). The international
law of belligerent occupation authorises the occupying state to
take all the measures in [its] power to restore, and ensure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in force in the country.5
The laws in force in the Gaza Strip and the West Bank prior to the Israeli occupation,
as well as the general authority to take all measures required to ensure public safety,
provide the government with extensive powers, making legislation by the Knesset unnec-
essary. The Israeli Supreme Court also ruled that the terror attacks of Palestinian
organizations established an ‘international armed conflict’.6 The government is thus
empowered to take actions such as targeted killings of suspected terrorists and mass
curtailment of freedom of movement, including: imposing curfews and closures on the
residents in certain areas, applying a siege on the Gaza Strip, and the construction of the
separation barrier. This too enables the Knesset to refrain from taking part in the diffi-
cult moral and legal dilemmas about the conditions in which it is justified to use such
measures.
3
D Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (Albany,
SUNY Press, 2002) 115–85.
4
HCJ 7/48 Al-Karabutli v Minister of Defence 2(1) PD 5, 9–10 [1949] (in Hebrew).
5
Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations
Concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January
1910) TS 539, Art 43.
6
HCJ 769/02 Public Committee against Torture in Israel v Government of Israel 62(1) PD 507 [2006] para
18 of Court President Barak’s opinion (in Hebrew). English translation available at: elyon1.court.gov.il/files_
eng/02/690/007/e16/02007690.e16.htm.
448 Barak Medina
The third source is ‘emergency powers’. When a declaration on a state of emergency

is in force, the government is authorised to employ several specific powers.7 In such
times the government is also authorised by Basic Law: The Government, section 39(c) to
enact emergency regulations, which
may alter any law temporarily, suspend its effect or introduce conditions, and may also impose
or increase taxes or other compulsory payments.
The Knesset declared a state of emergency just a few days after the State was founded,
on 19 May 1948, and has avoided cancelling this declaration ever since. The Supreme
Court refused to review the legitimacy of this practice.8 In recent decades the govern-
ment has avoided using this power, mainly due to limits imposed by the judiciary regard-
ing the power to enact emergency regulations.9
Thus, most powers of the Executive Branch that are employed in response to security
threats are not based on the Knesset’s legislation. Only a handful of powers are regu-
lated in legislation, most notably administrative detentions, set by the Emergency Powers
Law (Detentions), 5739-1979, and the authority to declare an organization as a terrorist
one, according to the Prevention of Terrorism Ordinance of 1948 (both acts are in force
only during the time of a formal declaration of ‘a state of emergency’).
B. The Knesset’s Greater Involvement in the Recent Decade
In recent years, the Knesset has enacted several laws which are aimed, primarily, at
expanding the security agencies’ powers and to removing doubts about the legitimacy of
employing these powers absent such an explicit authorization in legislation. This legisla-
tion includes two main types of norms.
One group consists of legislation that provides powers to interrogate suspected terror-
ists. The Knesset’s involvement in this area is the result of the tendency to limit the pow-
ers of the police, and accordingly to provide greater protection of basic liberties for
criminal, non-terror related suspects. In setting such norms the Knesset explicitly
exempted the security agencies from the general limitations, and authorised them to take
more extensive measures in interrogating suspected terrorists.
One example (which dates to the earlier period) is the Wiretap Law, 5739-1979. It
prohibits investigation authorities from engaging in wiretapping, unless authorised to
do so, for the purpose of preventing serious crimes, by a court order. However, the law
exempts security agencies from this requirement and authorises them to wiretap ‘when-
ever needed for security reasons’, subject only to the approval of the Minister of Defence
(section 4). Other examples deal with the rights of detainees. The Criminal Procedure
Law (Enforcement Powers – Detentions), 5756-1996, compels investigation authorities
to inform a relative of a person detained and a lawyer of his or her choice about the
detention. Here too the Knesset empowered the government to infringe this basic right
7
There are thus certain similarities between this declaration and the decision of the US Congress known
as the War Powers Resolution, Pub L No 93-148, 87 Stat 555 (1973) (codified as amended at 50 USC, ch 33,
s 1541–48 (2006)). This Resolution authorizes the President to make brief interventions unilaterally – giving
him 60 days to use military force without legislative approval.
8
HCJ 3091/99 Association for Civil Rights in Israel v Knesset (8 May 2012), Nevo Legal Database (by sub-
scription) paras 11–13 (in Hebrew).
9
HCJ 6971/98 Paritzky v Government of Israel 53(1) PD 763 [1999] (in Hebrew).
in the case of persons suspected of terrorist activities (‘security offences’ in the jargon
used in this and related legislation). The same is true in respect of the right to counsel,
under the Criminal Procedure Law (Enforcement Powers – Detentions), 5756-1996 (sec-
tions 34 and 35). The Knesset also enacted the Criminal Procedure Law (A Detainee
Accused in a Security Offence) (Temporary Provision), 5766-2006, which empowers the
government to hold suspected terrorists in detention for 96 hours without a judicial war-
rant (as compared to only 24 hours in the case of persons who are suspected of non-
security related criminal offences); and authorises the government to ask, and the court
to approve, that the court hearings on extending the period of detention will be held
without the detainee’s presence, whenever stopping the interrogation (in order to bring
the detainee to court) is likely to prevent pre-empting a security offence. Finally, the
Criminal Procedures Law (Criminal Investigations), 5762-2002, which imposes a duty of
written or video documentation of interrogations of the accused, provides a general
exemption from this requirement in the case of investigating a person accused of terror
related offences (section 17).
Interestingly, in most of the above Laws the government is required to provide the
Knesset with a periodical report of its use of the above exceptional powers, such as the
number of wiretaps without a judicial warrant that were held during a specified period,
the number of persons held in detention for more than 24 hours without a judicial war-
rant, and so on. This requirement strengthens the Knesset’s involvement in supervising
the legitimacy of employing such extraordinary measures.
A second type of norms enacted in recent years authorises the government to take
specific measures in response to security threats. Among these is the Detentions Law,
which empowers the Minister of Defence to order the holding of a person in detention
for a period of up to six months (but administrative detention orders may be extended
repeatedly), whenever there is
a reasonable basis to suppose that the security of the State or of the public necessitates [this]
person to be held in detention.10
The Israeli Supreme Court ruled that this power can only be used as a forward-looking
preventive measure, against a person who poses an individual threat, and may not be
used as punishment for past acts.11 In response, the Knesset enacted a new piece of legis-
lation (without revoking the earlier one) – the Internment of Unlawful Combatants Law,
2002. It authorises the government to intern persons who are classified as ‘unlawful
combatants’, to bypass the requirement of proving the detainee’s individual dangerous-
ness. The law aims at replacing the requirement of ‘individual dangerousness’, with a
‘collective dangerousness’ approach, according to which a person can be interned when-
ever the terrorist organization that he is affiliated with poses a threat.12 In addition,
internment under the Unlawful Combatants Law is not limited in time.
10
Emergency Powers Law (Detentions), 5739-1979, s 2.
11
See, eg HCJ 5784/03 Salama v IDF Commander of Judea and Samaria 57(6) PD 721 para 6 [2003] (in
Hebrew). English translation available at: elyon1.court.gov.il/Files_ENG/03/840/057/A05/03057840.A05.HTM.
See also CrimFH 7048/97 John Does v Ministry of Defence 54(1) PD 721 [2000] (in Hebrew), in which the
Court invalidated a decision to hold a person in detention merely as a ‘bargaining chip’. English Translation
available at: elyon1.court.gov.il/files_eng/97/480/070/a09/97070480.a09.pdf.
12
CrimA 6659/06 A v State of Israel 62(4) PD 329 [2008] (in Hebrew). English Translation available at:
elyon1.court.gov.il/Files_ENG/06/590/066/n04/06066590.n04.htm. The Court ruled, however, that this power
can be employed only when the detainee’s ‘individual dangerousness’ is sufficiently high.
450 Barak Medina
Other examples of such legislation are: the Prohibition on Financing Terror Law,
2005, and the General Security Service Law, 2002. The former law prohibits financially
transacting with entities declared by the government as terror organizations. The latter
law authorises the General Security Service (GSS), Israel’s main security agency respon-
sible for the fight against terror, to employ several measures to collect information,
including the power to enter private premises, to obtain telecommunication data, and
more. At the same time, it also sets limits on the GSS powers, both by setting express
limitations,13 and by not granting its staff certain powers, most notably the power to
employ coercive investigative methods. Finally, the government has recently published a
draft of the proposed Fight Against Terrorism Law, 2010, which aims primarily to cod-
ify the existing legislation that was discussed above, but also to add several additional
anti-terrorist measures.
The above legislation reflects a considerable increase in the Knesset’s involvement in
determining the appropriate responses to security threats in comparison to the past.
However, the Knesset did not deviate from its traditional minimalist approach regard-
ing ‘military’ activities, such as targeted killings, imposing siege, curtailing freedom of
movement, and so forth. In these areas the Knesset did not respond to judicial decisions
that substantially limited the government’s powers.14 Thus, the Knesset’s current
approach cannot accurately be described as an activist one in absolute terms, but only
relatively to its previous approach. In addition, the above review demonstrates that the
aim of restraining the Executive Branch is the distinctively less dominant one. The legis-
lation imposes some limits on the governmental powers, by setting the conditions for
employing the relevant powers. A potential additional restraint may result from the
requirement for the government to provide the Knesset with a periodical report of the
use of some of its exceptional powers. However, it seems that the more dominant pur-
pose of the recent tendency of greater involvement of the legislature is precisely in the
opposite direction, as substantial parts of the relevant enactments legitimise the use of
various measures in response to security threats.
III. REASONS FOR THE KNESSET’S PAST MINIMALISM AND

CURRENT (PARTIAL) ACTIVISM
The decision whether to enact norms that relate to governmental powers may be based
on three main types of considerations – functional, deliberative and symbolic. The cen-
tral element is the functional aspect. Legislation may serve to either legitimise an other-
wise prohibited governmental measure or to prohibit an otherwise legitimate one. This
consideration is contingent on two background conditions: the first is the nature of the
governing constitutional norms, mainly the scope of judicial review of governmental
activities, and the enforcement of the requirement of explicit legislative authorization as
a prerequisite to employ certain powers. A second relevant condition is the legislature’s
political motivation to restrain the government. A related functional role of legislation is
to direct behaviour of soldiers and other officials. A permissive legislation may serve to
shield soldiers from the risk of criminal liability, and a prohibitive one may be aimed at
deterring them from taking certain measures.
13
The General Security Service Law, 5762-2002, ss 8–12.
14
See n 21 below.
The two other considerations are more nuanced. The deliberative aspect refers to the
process of legislation, rather than its outcome. This process serves as a forum for public
deliberation on the disputed issue. Thus, the decision whether to legislate is also a result
of the prevailing political culture regarding the question whether inducing such an open
deliberation is desirable or not. The third consideration is the symbolic consequences of
legislation. As discussed below, the explicit authorization in legislation to take measures
that infringe basic human rights may have adverse symbolic (domestic and international)
political consequences.
In general, legislatures do not show an interest, independent of that of the govern-
ment, in restricting the powers of the Executive Branch in the context discussed here.
Times of armed conflicts and threats of terror activities are characterised by a high level
of uncertainty and ambiguity. The stakes are high and imposing or enforcing restraints
by the Parliament on the use of certain types of military force is typically perceived as a
politically unrewarding activity. It is not surprising then that legislatures in liberal
democracies employ a rather minimalist approach to regulating the fight against terror-
ism, as discussed above.15 The same is true for the government’s incentive to initiate
legislation. Legislation is costly, in terms of both the requirement of holding extensive
deliberations and the symbolic effects of ex ante explicit authorization to infringe basic
liberties. As long as the scope of judicial review is ‘bearable’ in terms of the measures it
prevents the government from taking, these costs are usually prohibitive.16
Consider, along these lines, the Knesset’s practice in the two periods under discussion.
The minimalism is mostly the result of the Court’s lack of activism in most parts of the
first period. The Court avoided requiring ex ante legislation as a prerequisite for employ-
ing military measures, and it also recognised, as discussed above, British Mandate legis-
lation and IHL as sufficient sources of power. The government had no interest in
initiating legislation, and the Knesset did not show any preference, independent of that
of the government, in restricting or otherwise delineating the powers of the Executive
Branch.
Rationalizing the recent legislation is more difficult, as here conflicting considerations
are involved. As indicated, one purpose of this legislation is to restraint the Executive
Branch. This part of the legislation can be explained by an ideological shift in the Knesset
towards a wider protection of basic human rights. This shift is a part of what is known
as the ‘Constitutional Revolution’ of 1992/95, which refers to the enactment of the Basic
Law: Human Dignity and Liberty, and the judicial recognition of this Basic Law as
Israel’s Bill of Rights. The greater attachment to the requirement to respect human rights
and other constraints may also be explained on pragmatic (functional) considerations,
mainly as a consequence of the enhanced (political) status of international law and inter-
national tribunals. One may also identify an evolving preference in the Israeli political
culture towards more substantial public deliberations, which may have diffused into
setting security policies as well.
15
See, eg JL Mashaw, ‘Due Process of Governance: Terror, the Rule of Law, and the Limits of Institutional
Design’ (2009) 22 Governance 353; B Ackerman and OA Hathaway, ‘Limited War and the Constitution: Iraq
and the Crisis of Presidential Legality’ (2011) 109 Michigan Law Review 447, 450–51.
16
cf S Issacharoff and RH Pildes, ‘Emergency Contexts without Emergency Powers: The United States
Constitutional Approach to Rights During Wartime’ (2004) 2 International Journal of Constitutional Law
296.
452 Barak Medina
However, as indicated, the more dominant purpose of the recent tendency of greater
involvement of the legislature is precisely in the opposite direction, as substantial parts
of the relevant enactments are aimed at legitimizing the use of certain measures. The
functional element of the legislation, to authorise otherwise impermissible (or at least
doubtful) measures, is probably the main purpose of this recent increase in legislation.
One reason is the enactment of acts that provide greater protection of basic liberties of
criminal, non-terror related suspects, such as a maximum period of holding a person in
detention, the right to counsel, and more. These acts required the Knesset to explicitly
address the powers of security agencies in dealing with suspected terrorists, since the
majority’s position is that the fight against terrorism justifies infringing the criminal pro-
cedure rights of suspected terrorists. Thus, the aim is to neither expand the government’s
powers nor restrain it, but merely to hold them unchanged, but given the change in the
norms that generally apply in criminal proceedings, the exceptional measures taken
against suspected terrorists had to be legislated for.
A second reason is the moderate increase in the Supreme Court’s enforcement of the
constitutional law doctrine which requires an explicit legislated authorization to take
measures that infringe basic liberties. According to section 8 of the Basic Law: Human
Dignity and Liberty, it is not permissible to infringe human rights unless the infringe-
ment is prescribed by law. This norm expands the criminal law principle of legality (nul-
lum crimen sine lege). In its important 1998 Rubinstein v Minister of Defence decision,
the Court expanded this requirement and held that employing powers which involve
substantive moral dilemmas or raise public and political dispute must be authorised in
legislation.17 The Court held that the Knesset should set the ‘primary’ arrangements,
leaving the Executive Branch to deal only with ‘secondary’ norms. The Court held that
the government’s powers are limited according to this doctrine.18 The Rubinstein v
Minister of Defence case dealt with the policy of exempting Yeshiva (institution for reli-
gious studies) students from the draft, and in 1999 the Court implemented this doctrine
to hold that it is impermissible to use coercive interrogation methods, not even in the
case of a ‘ticking bomb’, at least as long as no explicit authorization to do so is promul-
gated in legislation.19 However, the enforcement of this doctrine is rather limited, as the
international laws of armed conflict are considered a sufficient basis for authorization.
The third motivation of the Knesset’s recent greater involvement is the Court’s grow-
ing activism in reviewing the legitimacy of various military activities.20 In several cases
the Court declared invalid even anti-terrorist measures that were explicitly authorised in
legislation.21 But these are exceptional, as in most instances the military activities that
17
HCJ 3267/97 Rubinstein v Minister of Defence 52(5) PD 481, 502–24 [1998] (in Hebrew).
18
ibid 524–30. cf the Canadian Supreme Court decision in Slaight Communications Inc v Davidson [1989]
1 SCR 1038, 1077 (Can) (‘it is impossible to interpret legislation conferring discretion as conferring a power to
infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied’).
19
HCJ 5100/94 Public Committee against Torture in Israel v State of Israel 53(4) PD 817, 832–36 [1999] (in
Hebrew). See also HCJ 1437/02 Association for Civil Rights in Israel v Minister of Public Security 58(2) PD 746
[2004] (in Hebrew) (invalidating an order which denies detainees the right to counsel, for the lack of sufficient
authorization in legislation for such an order).
20
See, eg Y Dotan, ‘Legalising the Unlegaliseable: Terrorism, Secret Services and Judicial Review in Israel
1970–2001’ in M Hertogh and S Halliday (eds), Judicial Review and Bureaucratic Impact: International and
Interdisciplinary Perspectives (Cambridge, Cambridge University Press, 2004) 190.
21
CHR 8823/07 John Doe (Anon) v State of Israel (11 February 2010), Nevo Legal Database (by subscrip-
tion) (in Hebrew) (invalidating s 5 of the Criminal Procedure Law (A Detainee Accused in a Security Offence)
(Temporary Provision), 5766-2006, which authorized the government to ask, and the Court to approve holding
were found impermissible were not based on explicit legislation, and the Court was not
required to refer to constitutional norms to declare them invalid. These include, for
instance, the decision to ban the use of force (or the use of ‘humiliating’ techniques) in
interrogations of suspected terrorists;22 the prohibition to target persons who do not
take direct part in military activities;23 the decision that the army may not use enemy
civilians as ‘human shields’;24 and the prohibition to order that certain roads will be
closed to traffic of vehicles of all Palestinian residents of the Occupied Territories, fol-
lowing terrorist attacks against passengers on these roads.25 The Court preferred not to
base its decisions on formal rules, such as the lack of explicit authorization in legislation,
but rather referred mainly to broad standards such as the ‘proportionality’ doctrine. The
result is that these decisions are often read as reflecting not only what is legal but also
what is just and morally permissible, making the political cost of an override often a
prohibitive one. In addition, the fact that the Court decided according to its interpreta-
tion of IHL means that legislation legitimizing the prohibited measures is perceived as
overriding not only the Court’s ruling but also the dictates of IHL. For these reasons, in
the majority of the cases, most notable of which is the prohibition against the use of
coercive measures in interrogation, the government preferred ‘to bite the bullet’, and
chose not to ask for legislative approval of such activities.
IV. REGULATING RESPONSES TO SECURITY THREATS:

MODELS OF LEGISLATIVE INVOLVEMENT
The extensive literature of recent years on the broad issue of the ‘Emergency Constitution’
discusses the applicability of the constitution in times of emergency. In particular, it
addresses the question whether the prohibition against unjustifiable curtailment of basic
liberties applies in times of emergency just as it does in times of normalcy. Some scholars
argue that (at least substantial parts of) human rights law should be suspended or quali-
fied in times of crises, and thus legitimise infringements that would have been proscribed
otherwise.26 Others object to this position, arguing that one may not ‘skip the
Constitution’27 even in times of emergency, as the solutions must be found within the
constitutional framework. The debate is whether anti-terrorist measures should be
taken ‘outside’ the constitution, and in an important sense ‘outside’ law in general (as in
court hearings without the detainee’s presence); HCJ 8276/05 Adalah v Minister of Defence 62(1) PD 1 [2006]
(in Hebrew) (invalidating a provision denying persons harmed in ‘conflict zones’ in the Occupied Territories
from the right to receive compensation). English translation available at: elyon1.court.gov.il/files_eng/05/
760/082/a13/05082760.a13.pdf.
22
Public Committee against Torture (n 19).
23
Public Committee against Torture (n 6).
24
HCJ 3799/02 Adalah v GOC Central Command, IDF 60(3) PD 67, 80 [2005] (in Hebrew). English transla-
tion available at: elyon1.court.gov.il/files_eng/02/990/037/A32/02037990.a32.htm.
25
HCJ 2150/07 Abu Safiyea v Minister of Defence (29 December 2009), Nevo Legal Database (by subscrip-
tion) (in Hebrew). English translation available at: elyon1.court.gov.il/files_eng/07/500/021/m19/07021500.m19.
htm.
26
See, eg RA Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (New York,
Oxford University Press, 2006) 152–58; EA Posner and A Vermeule, Terror in the Balance: Security, Liberty, and
the Courts (New York, Oxford University Press, 2007) 15.
27
D Cole, ‘How to Skip the Constitution’, New York Review of Books, 16 November 2006, www.nybooks.
com/articles/archives/2006/nov/16/how-to-skip-the-constitution.
454 Barak Medina
the slogan ‘necessity knows no law’),28 or within it. The discussion in this chapter is nar-
rower. My underlying premise is that human rights laws bind at all times. The dilemma
refers to the applicability of only one constitutional norm – the requirement of legisla-
tive authorization. It is assumed that the governmental decisions must stand the scrutiny
of legality, and the question is basically whether the legislature, and not only the judici-
ary, should be required to take part in deciding on the constitutionality of the response
to security threats.
What role should the Israeli legislature play in determining the ways in which the state
may respond to security threats? I start the normative discussion by delineating three
main models of regulating the government’s response.
According to one model, the Executive Branch holds ‘inherent’ powers (including
those based on international laws of war), to employ all measures it deems necessary in
response to security threats. The government may well be limited in employing its dis-
cretion to take a certain measure – mainly, it may do so only for ‘appropriate purpose’,
and may inflict harm subject to the ‘proportionality’ requirements – but the measures it
may use are not limited to those explicitly authorised by the legislature.
A second model provides the Executive Branch with such ‘inherent’ powers only as
long as the legislature explicitly declares that a security threat exists (eg ‘a state of emer-
gency’). A form of this model is employed in the International Covenant on Civil and
Political Rights,29 which provides the possibility of derogating from some of the rights
enshrined in the Covenant during declared states of emergency. According to this model,
while it is not necessary for the legislature to provide the government with the powers
that may be used in response to the threat, a general authorization to hold such un-
enumerated powers is required, as well as a formal declaration about a state of emer-
gency. Arguably, this latter requirement makes explicit the exceptional nature of the
measures the government may employ, and enforces the legislature to deliberate on the
justification of authorizing the government to use special measures.
Finally, according to a third model, the government’s powers are limited to those explic-
itly authorised in legislation. This model is based, primarily, on the concern that in times
of crises the legislature cannot be expected, for political reasons, to appropriately scruti-
nise the activities of the Executive Branch. The only effective way to involve the legislature
in the deliberation is by requiring a legislated authorization to take such actions.30
V. THE CASE FOR GREATER INVOLVEMENT OF THE LEGISLATURE
The comparison between the different models should be based on general, universal
considerations, but it clearly has a substantial local and contextual dimension. The fol-
28
W Rehnquist, All the Laws But One: Civil Liberties in Wartime (New York, Alfred A Knopf, 1998); A Harel
and A Sharon, ‘Necessity Knows No Law: On Extreme Cases and Uncodifiable Necessities’ (2011) 61 University
of Toronto Law Journal 845.
29
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered
into force 3 January 1976) 993 UNTS 3.
30
For a related typology, see D Barak-Erez, ‘Terrorism Law between the Executive and Legislative Models’
(2009) 57 American Journal of Comparative Law 877; J Ferejohn and P Pasquino, ‘The Law of the Exception:
A Typology of Emergency Powers’ (2004) 2 International Journal of Constitutional Law 210, 216–18. The
second model presented here is close to what Ferejohn and Pasquino refer to as ‘the legislative model’ while the
third model is similar to what Barak-Erez calls ‘the legislative model’.
lowing discussion refers mainly to the Israeli case.31 I start with a short doctrinal analysis
of Israeli constitutional law on this issue, and then move to policy analysis, in an attempt
to provide support for the third model.
A. Doctrinal Analysis
The requirement that the government’s activities in response to security threats, both
within Israel and in the Occupied Territories, will be explicitly authorised in legislation
is based on section 8 of the Basic Law: Human Dignity and Liberty. It can also be based
on the Rubinstein doctrine, which requires that all major policy decisions will be deter-
mined by the Knesset, in legislation.32
An important doctrinal question is raised by section 40(b) of the Basic Law: The
Government, which provides that
[n]othing in the provisions of this section will prevent the adoption of military actions neces-
sary for the defence of the state and public security
and section 18 of the Law and Administration Ordinance, 5708-1948, which authorises
the government to establish armed forces, which shall have authority to do
all lawful and necessary acts for the defence of the State.
To my view, these provisions do not resolve the issue under consideration. Section 40(b)
mainly addresses the armed forces power to take the measures necessary immediately,
even prior to a formal decision of the government (according to section 40(a)) ‘to begin
a war’.33 Section 40(b) provides that ‘Nothing in . . . this section will prevent’ taking
actions, without explicitly providing the armed forces with an unlimited power to take
all actions necessary to the defence of the state. Similarly, the ‘lawful’ requirement in
section 18 can be interpreted as incorporating the requirement of specific authorizing
legislation.
The powers mentioned in these provisions refer only to the strict sense of ‘military
actions’. This term should be narrowly interpreted, to include only measures directed
against ‘combatants’ (including civilians ‘for such time as they take a direct part in
hostilities’),34 immediately necessary for the protection of lives. Thus, while targeted
31
For an analysis which accentuates the contextual dimension see, eg Barak-Erez ibid 886–91. For localized
comparisons between the models see, eg MJ Glennon, ‘The United States: Democracy, Hegemony, and
Accountability’ in C Ku and HK Jacobson (eds), Democratic Accountability and the Use of Force in
International Law (Cambridge, Cambridge University Press, 2003) 323; G Nolte, ‘Germany: Ensuring Political
Legitimacy for the Use of Military Forces By Requiring Constitutional Accountability’ ibid 231; Y Boyer et al,
‘France: Security Council Legitimacy and Executive Primacy’ ibid 280; ND White, ‘The United Kingdom:
Increasing Commitment Requires Greater Parliamentary Involvement’ ibid 300; B Medina, ‘Legislating
Responses to Security Threats: The Requirement of Legislative Authority to Take Anti-Terrorist Measures’ in
F Liao (ed), Constitutional Interpretation (forthcoming).
32
See n 17 above and accompanying text. For a discussion see, eg B Medina, ‘The No-Delegation Doctrine
– A Reply to Yoav Dotan and Gideon Sapir’ (2012) 42 Mishpatim 449 (in Hebrew).
33
See M Kremnitzer and A Bendor, The Basic Law: The Army (Jerusalem, Hebrew University Press, 2000)
45 (in Hebrew).
34
Art 51(3) of the First Additional Protocol to the Geneva Convention (International Committee of the Red
Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3). See Barak-Erez (n 30) 891
(suggesting that actions of ‘preventive killings of terrorists . . . are considered part of the conduct of a military
confrontation and, therefore, are not based on legislation’).
456 Barak Medina
killings of suspected terrorists may be considered as a military action, if conducted to

thwart an imminent threat posed by a person who takes a direct part in hostilities, it
is implausible to interpret the above provisions as authorizing the armed forces to
take measures which are distinctly outside the realm of what is typically conceived of as
‘military actions’. Activities such as demolitions of houses in which suicide bombers
lived, mass curtailment of freedom of movement, including imposing curfews and
closures on the residents in certain areas, the construction of the separation barrier,
administrative detentions, methods of interrogations, employing ‘profiling’ practices for
tracking potential terrorists, and similar activities, should be classified as infringements
of basic liberties. These are subject to human rights law, including the requirement of
explicit legislative authorization as a prerequisite for their legitimacy, and the other
requirements set forth in section 8 of the Basic Law: Human Dignity and Liberty.
B. Policy Considerations in Support of the Third Model
Supporters of the first model, according to which the Executive Branch holds ‘inherent’
powers to employ all measures it deems necessary in response to security threats, base
their opposition to the third (and to some extent to the second as well) primarily on the
view that the benefits of insisting on legislation are marginal. As demonstrated by the
Israeli experience, the legislature may be expected to mostly legitimise employing certain
measures rather than to restrain the government, making the requirement of ex ante
legislative authorization superfluous. It is also suggested that requiring legislation is
dangerous: arguably, it is impossible to predict what types of measures will be required
in response to possible security threats, and enforcing the requirement of authorised
legislation might thus prevent the government from effectively addressing the threats. In
addition, as mentioned above, the explicit authorization in legislation to hold certain
powers may have adverse symbolic consequences.
I find these arguments unpersuasive. I suggest that insisting on legislation is beneficial,
at least in terms of the deliberative value of the process. Moreover, the main concern in
the current context should not be from excessive restrictions of the executive but rather
from the lack of efficient review, and legislation is an essential tool for scrutinizing gov-
ernmental activities. It is in this respect that the third model is superior to the second
one. Insisting on legislative authorization is also justified on the basis of the importance
of ‘rulifying’ the fight on terror. In addition, I argue that concerns of the symbolic
adverse effects of authorizing human rights infringements in legislation are unfounded.
Finally, I briefly address the concern that enforcing the requirement of authorised legis-
lation might prevent the government from effectively addressing the threats.
Deliberation. The democratic principle of citizens’ equal participation lends support
to legislative ordering.35 It also provides the executive with an explicit expression of pop-
ular support, which is often needed in order to take extreme measures.36 But the most
important benefit of requiring legislation is probably the deliberation which the process
of legislation induces.37 The process of legislation requires decisionmakers to present
35
See, eg J Waldron, Law and Disagreement (New York, Oxford University Press, 1999) 232–34, 244–49.
36
Ferejohn and Pasquino (n 30) 220.
37
F Michelman, ‘Relative Constraint and Public Reason: What is “The Work We Expect of Law”?’ (2002) 67
Brook Law Review 963, 971–84; Barak-Erez (n 30), 894–95.
their empirical evaluations of the relevant risks and the expected efficacy of the measures
under consideration.38 It also requires explicitly stated moral positions, including, for
instance, what weight should be given to the rights of ‘enemy civilians’, how to address
uncertainties, and so forth.39 Essentially, the deliberative process may well shape pre
ferences, rather than merely restating attitudes.40 Parliamentary deliberation over the
constitutionality of the use of force serves to rebut moral disagreements by conducting a
debate which is based on ‘public reason’.41 Under the Rawlsian constraint of public rea-
son ‘participants in social decisions must stand ready to explain the consonance of their
positions with some conception of a complete, legitimating constitutional agreement’.42
An appeal to public reason requires the decisionmakers to present valid justifications for
inflicting (unintended) harm on enemy civilians, to justify a position which assigns dif-
ferent values to people’s lives according to their nationality, and so forth. The require-
ment to hold open deliberations may also contribute to mitigate the concern of the
institutional bias of law enforcement and security agencies, whose primary goal is to
fight crime and terror.43 One may not rule out the possibility that the political discussion
will result in providing the government with more powers, as providing greater security
is often more popular than protecting basic liberties of suspected terrorists. However,
the doctrine under consideration is not based primarily on a consequentialist argument
about the probable outcomes under each of the alternative models. Its central basis is the
recognition of the intrinsic value of holding parliamentary, and thus also directly or at
least indirectly, public deliberations.
Scrutinizing governmental activities. In times of crises there is no effective way to
appropriately scrutinise activities of the Executive Branch. The lack of adequate infor-
mation and the high risk which is involved in such decisions make the efficacy of the
Parliament’s supervisory powers very limited.44 Parliaments such at the Knesset are
empowered to direct the government’s activities only through legislation.
The second model presented above is not suited to address the concern of insufficient
check on the government. It is doubtful whether the Parliament is suited to hold a thor-
ough and independent review of the government call to declare a state of emergency.
The Israeli experience demonstrates such a failure. It seems that the theory of Carl
Schmitt, that it is impossible to develop effective constitutional constraints on the use of
38
ibid 891.
39
C Martin, ‘Taking War Seriously: A Model for Constitutional Constraints on the Use of Force in
Compliance with International Law’ (2011) 76 Brook Law Review 611; O Greene, ‘Democratic Governance
and the Internationalisation of Security Policy: The Relevance of Parliaments’ in H Born and H Hänggi (eds),
The Double Democratic Deficit: Parliamentary Accountability and the Use of Force Under International
Auspices (Aldershot, Ashgate, 2004) 28.
40
PF Diehl and T Ginsburg, ‘Irrational War and Constitutional Design: A Reply to Professors Nzilebe and
Yoo’ (2006) 27 Michigan Journal of International Law 1239, 1249–50; A Gutmann and D Thompson, Why
Deliberative Democracy? (Princeton, Princeton University Press, 2004) 1–20.
41
CT Tsai, ‘Presidential War Power in the Deliberative Moment – An Empirical Study of Congressional
Constitutional Deliberation and Balance of War Power’ (SSRN, 16 July 2010): ssrn.com/abstract=1641226
(demonstrating that a higher level of congressional deliberation over a use of force influences Congress to
impose a higher level of control over presidential war power).
42
J Rawls, Political Liberalism (New York, Columbia University Press, 1993) 226. See also, eg GK Hadfield
and S Macedo, ‘Rational Reasonableness: Toward a Positive Theory of Public Reason’ (SSRN, 1 March 2011):
ssrn.com/abstract=1785996.
43
TP Crocker, ‘Torture, with Apologies’ (2008) 86 Texas Law Review 569, 585–93; Hamdi v Rumsfeld 542 US
507, 545 (2004) (Souter J concurring).
44
H Hänggi, ‘The Use of Force Under International Auspices: Parliamentary Accountability and “Democratic
Deficits”’ in Double Democratic Deficit (n 39) 3.
458 Barak Medina
armed force for in moments of crisis such constitutional provisions will be ignored,45 is
particularly powerful in reference to the second model of providing the government with
unlimited powers whenever a state of emergency is declared.46 It seems that the only
effective way to induce the legislature to take part in reviewing the executive is by the
continued operation of a thick substantive notion of the rule of law at all times, and thus
by applying the third model.
The prediction that the legislature may take an important role in restraining an unjus-
tified use of force is based mainly on the political costs that are involved in formally
legitimizing taking certain measures. The Israeli experience in this respect is illuminat-
ing. As indicated above, while the GSS used force in interrogation for more than a
decade, a policy which was approved by a public committee appointed to investigate the
matter,47 the Knesset did not intervene to stop this practice. In 1999, when the Supreme
Court held that absent explicit authorization such a practice is prohibited,48 the political
costs of such legislation were proved to be prohibitive. The mere enforcement of the
requirement to legislate was sufficient, despite the majority’s support of this measure, to
change the practice.
‘Rulifying’ the fight on terror. Explicit authorization ensures that the government acts
on the basis of general, overt, predictable norms, in accordance with the requirements of
formal justice.49 Refraining from setting guidelines ex ante is unfair to actors who are
exposed to the risk of bearing civil and criminal liability if it turns out that their judge-
ment regarding the permissibility of the infringement is different from that of the ex post
reviewer. In fact, prior authorization may be necessary to encourage risk-averse agents,
who are reluctant to ‘dirty their hands’, to nevertheless promote the overall good when
such action involves a justified infringement of a moral constraint.50 Thus, even those
whose major concern is inducing the executive to take the necessary measures in response
to security threats should in fact support the requirement of prior authorization in legis-
lation.51 Such legislation may also narrow the scope of judicial review of military
actions.52
Symbolic aspects. Some scholars base their objection to legislation by pointing at the
expressive role of authorizing rights infringements. It rests on the notion that legal pro-
visions express attitudes, shape public perceptions, and may thus inflict ‘expressive’
harm. For instance, a statute authorizing torture, even only in very rare circumstances,
45
Carl Schmitt, Political Theology, Four Chapters on the Concept of Sovereignty (G Schwab tr, University of
Chicago Press, 2005). For a critical analysis of Schmitt’s theory, see, eg D Dyzenhaus, ‘Schmitt v Dicey: Are
States of Emergency Inside or Outside the Legal Order?’ (2006) 27 Cardozo Law Review 2005, 2030–37;
O Gross, ‘The Normless and the Exceptionless Exception: Carl Schmitt’s Theory of Emergency Powers and the
“Norm-Exception” Dichotomy’ (2000) 21 Cardozo Law Review 1825.
46
Ferejohn and Pasquino (n 30) 216.
47
Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile
Terrorist Activity, Report (1987). For an English translation of excerpts, see (1989) 23 Israel Law Review 146. For
a critical analysis, see M Kremnitzer, ‘The Landau Commission Report – Was the Security Service Subordinated
to the Law, or the Law to the “Needs” of the Security Service?’ (1989) 23 Israel Law Review 216.
48
Public Committee against Torture in Israel v State of Israel (n 19).
49
See, eg HLA Hart, The Concept of Law (Oxford, Clarendon Press, 1961).
50
NA Sales, ‘Self Restraint and National Security’ (2012) 6 Journal of National Security Law and Policy
227; M Walzer, ‘Political Action: The Problem of Dirty Hands’ (1973) 2 Philosophy and Public Affairs 160.
51
See, eg J Nzelibe and J Yoo, ‘Rational War and Constitutional Design’ (2006) 115 Yale Law Journal 2512,
2530–32; Ferejohn and Pasquino (n 30) 216–18; DN Pearlstein, ‘Form and Function in the National Security
Constitution’ (2009) 41 Connecticut Law Review 1549.
52
Issacharoff and Pildes, (n 16); Barak-Erez (n 30) 893.
can be considered disrespectful of human dignity. According to this objection, it is better

that agents would act extra-legally when necessary, without explicit prior authoriza-
tion.53 This position is implicit in the German Constitutional Court’s judgment to invali-
date a statute authorizing officials to shoot down an aircraft that was being wielded as a
deadly weapon.54 Arguably, prior authorization may turn the actor’s decision-making
process into a rather technical assessment of whether the conditions set forth by the leg-
islature are met, without giving sufficient attention to the nature of the action as an
infringement of rights.55 I find these arguments unpersuasive.56
For one thing, if no principles govern the behaviour of agents in extreme cases, how
would agents decide whether the circumstances they face are truly extreme? Once it is
accepted that basic liberties may justifiably be infringed under certain circumstances,
there is no escape from delineating those circumstances. In addition, this argument is
relevant in the current context only with respect to the marginal effect of authorizing
certain measures through legislation, since, at least in Israel, the judiciary sets rules of
behaviour that justify taking numerous anti-terrorist measures, and the adverse sym-
bolic effect already exists. It is doubtful whether the legislations’ marginal expressive
effect is substantial, given forward-looking ‘judicial legislation’.
Another argument that can be raised against ex ante authorization is that such author
ization is likely to bring about unjustified activities.57 It may also induce the establish-
ment of institutions that would make infringements an even more readily available
option.58 It was also suggested that legislating taking extreme measures may enable offi-
cials to maintain what is known as ‘role distance’,59 in which an official disassociates
themself from the action’s moral implications. While these slippery slope arguments
cannot be ignored, they do not necessarily preclude predetermined guidelines for the
permissibility of infringements. The absence of ex ante authorization may result in
people refraining from taking justified measures, as suggested above. Moreover, such
authorization may be accompanied by measures that deter unjustified activities.
Legislation authorizing the government to take extreme measures in response to
security threats may well have adverse symbolic effects. However, making these sym-
bolic effects a decisive reason against legislation directly contradicts the very basic
reasons for insisting on legislation in the first place, including the deliberative value of
the process of legislation and the political costs associated with such legislation. If the
53
See, eg Posner (n 26) 152–58; O Gross, ‘Are Torture Warrants Warranted? Pragmatic Absolutism and
Official Disobedience’ (2004) 88 Minnesota Law Review 1481, 1526–34; Harel and Sharon (n 28).
54
115 BVerfGE 118, 128 (2006) (Ger).
55
cf ES Anderson and RH Pildes, ‘Expressive Theories of Law: A General Restatement’ (2000) 148 University
of Pennsylvania Law Review 1503, 1512; SH Kadish, ‘Torture, the State and the Individual’ (1989) 23 Israel
56
For a critical discussion of this objection, see E Zamir and B Medina, Law, Economics, and Morality
(New York, Oxford University Press, 2011) 117–22.
57
H Shue, ‘Torture’ (1978) 7 Philosophy and Public Affairs 124, 141; D Luban, ‘Liberalism, Torture, and the
Ticking Bomb’ (2005) 91 Virginia Law Review 1425, 1446; HH Koh, ‘Can the President be Torturer in Chief?’
(2006) 81 Indiana Law Journal 1145, 1165; JH Langbein, ‘The Legal History of Torture’, in S Levinson (ed),
Torture: A Collection (New York, Oxford University Press, 2004) 93, 101; JB Elshtain, ‘Reflection on the
Problem of “Dirty Hands”’ ibid (Torture: A Collection) 77.
58
See, eg H Shue, ‘Torture in Dreamland: Disposing of the Ticking Bomb’ (2006) 37 Case Western Reserve
Journal of International Law 231, 238; Kremnitzer (n 47) 254–57.
59
M Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (Princeton, Princeton University
Press, 2002) 233–35; M Gur-Arye, ‘Justifying the Distinction between Justification and Power’ (2011) 5 Criminal
Law and Philosophy 293.
460 Barak Medina
government finds it impossible to openly justify its activities, it should not be shielded
from scrutiny by referring to arguments of the sort of ‘acoustic separation’.60 If the
‘noise’ is troubling, the government should not make it, not merely conceal it behind
‘acoustic’ walls.
Preventing effective address of the threats. As indicated, supporters of the first model
also point at the possible ‘cost’ of insisting on legislative authorization – the arguable
concern is that enforcing the requirement of authorised legislation might prevent the
government from effectively addressing the threats. This concern is difficult to sustain.
The doctrine under consideration does not require the government to obtain the legisla-
ture’s approval to employ certain measures (or, for that purpose, to declare ‘war’ or a
state of emergency). It merely imposes on the Executive Branch the task of convincing
the legislature that certain measures should be included in the arsenal of actions that can
be used, in a given set of circumstances, in the fight against terrorism. Indeed, when the
circumstances are exigent, the Executive Branch may act even without legislative author-
ity, based on some form of ‘emergency powers’, or to take immediate measures as needed
in cases of necessity. The government is required, however, to establish that the circum-
stances are indeed exigent. But as a general matter, the fight against terrorism as such
should not be regarded as constituting a state of emergency, as the measures that govern-
ments consider as essential to pursue this fight are well-known. It is the Executive
Branch’s responsibility to initiate legislative proceedings to obtain the authority it deems
necessary.
VI. CONCLUDING REMARKS
Measures which are directed against suspected terrorists are measures which infringe
upon basic human rights, irrespective of the nationality of the targeted persons or the
place in which the governmental activity takes place. Such measures can be employed
only subject to legislative authorization (or when the circumstances are exigent).
Legislation provides the required authority only when it explicitly addresses specific
measures and details the circumstances in which each of them can be employed. Insisting
on legislation, which requires the government to act on the basis of general, predefined
norms, is expected to induce several benefits: it imposes on the representatives a duty to
take direct and formal part in a deliberation on the relevant aims and means, which may
have a substantial effect on actual outcomes and serves essential intrinsic values.
Democracies should thus follow this path in determining their responses to security
threats.
60
M Dan-Cohen, ‘Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law’ (1984) 97
Harvard Law Review 625.
30
Of Law, Constitutions and Security
ADAM TOMKINS
I. INTRODUCTION
O
NE OF MY favourite books as a young boy was Douglas Adams’s sci-fi
comedy, The Hitchhiker’s Guide to the Galaxy. The Guide had the words
‘Don’t Panic’ emblazoned on its cover, as did my copy of the book. The instruc-
tion was meant for inter-galactic space travellers seeking to get about the planets on the
cheap. But, in the real world, it is a motto that we would all do well to live by when we
are confronted with threats to our security. Sometimes quick and decisive action is
needed, for sure. Sometimes a loud call for help is required. And sometimes we will have
no option but to reach for coercive powers and, in extremis, for the use of lethal force.
But what we should never do is panic.
Yet panic was for many years the routine reaction of British Governments when con-
fronted with threats to security. From the 1970s the United Kingdom has faced a range
of terrorist threats. Many of these are ongoing. At the time of writing the current level of
threat from international terrorism in the UK is assessed by the authorities to be ‘sub-
stantial’, meaning that ‘a terrorist attack is a strong possibility’. And the current level of
threat from terrorism associated with Northern Ireland is assessed in Northern Ireland
to be ‘severe’, meaning that ‘a terrorist attack is highly likely’.
Between 1972 and 1992 some 3,000 deaths and over 40,000 terrorist incidents were
attributed to terrorism in Northern Ireland. (The population of Northern Ireland is
about 1.7 million people.) In July 2005 52 people were killed when a series of bombs
exploded on London’s public transport network, in a coordinated set of suicide attacks
perpetrated by Islamic extremists.
The terrorism that the United Kingdom has experienced is nowhere near to being on
the scale of that which Israel has confronted since its founding in 1948 and, unlike Israel,
the security threat to the UK is not existential in nature. Britain’s neighbours are not
aggressive towards the UK and, as Lord Hoffmann observed in his infamous opinion in
the Belmarsh case,1 while ‘fanatical groups of terrorists [have the ability] to kill and
destroy’, they cannot ‘threaten our institutions of government or our existence as a civil
community’.2 Such a ‘public emergency’ as the UK faces is not such as to constitute a
threat to the ‘life of the nation’.3
1
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 (hereinafter: Belmarsh).
2
ibid para 96. See further on this case below.
3
In this view Lord Hoffmann was alone among the nine Law Lords who heard the appeal in Belmarsh. Eight
462 Adam Tomkins
This is not so with Israel. This chapter reflects on those written for this book by
Daphne Barak-Erez and Barak Medina. It does so by contrasting the stories they tell
with the analogous story in the United Kingdom. It must be understood, however, that
UK–Israeli comparisons in the arena of national security are neither equivalents nor par-
allels. The security contexts of the two countries are vastly different. Yet, as we shall see,
the ways in which the British and Israeli constitutional orders have developed their
responses to terrorism and related security threats have much in common.
It may not be on a Middle Eastern scale, but terrorism in the UK has been more than
serious enough to send British Governments of all parties into spasms of panic. For 35
years the standard governmental response to a terrorist outrage was to call for the par-
liamentary draftsman, so that more pages could be added to the already burgeoning
statute book. And, for 35 years the legislation that would follow on from an act of ter-
rorism would be rushed through Parliament in what can only be described as a fit of
legislative panic. Even after 9/11 we saw the by now familiar routines revisited, as the
129 sections and eight schedules of the Anti-terrorism, Crime and Security Act 2001 were
taken through the House of Commons with only 16 hours of debate. This, despite the
fact that in the Terrorism Act 2000 the United Kingdom already possessed the ‘most
rigorous’ anti-terrorism legislation ‘in Europe’.4
The courts, too, were prone to panic when questions of national security came before
them. Judicial panic took a different form from that seen in the legislature. In Parliament
the symptom of panic was unseemly haste. In the courts it was denial. When govern-
ments sought to make arguments based on national security, all too often the courts just
did not want to know anything more. National security being too hot a political potato,
the judges panicked, and threw it back directly at government. Thus, if ministers claimed
that it was necessary in the interests of national security to withhold evidence from dis-
closure in legal proceedings, so be it. The minister’s say-so was good enough for the
judges: not for them to investigate to see if security considerations really did require the
evidence to be withheld.5 Likewise, if ministers deemed it necessary in the interests of
national security to deport someone from the UK, so be it. The courts would not inter-
vene.6 Nor did they intervene to stop internment during the two World Wars, despite
powerful, indeed ringing, dissenting opinions from Lord Shaw in 1917 and Lord Atkin in
1942.7
This is not an attractive picture. In the twentieth century terrorism or other perceived
threats to the security of the state elicited over-reaction from the government of the day,
appeased by legislators who were in such a rush that they had no time to reflect on what
they were being asked to do, and left unchecked by the courts, whose judges preferred to
look the other way until normalcy returned.
of their Lordships ruled that the UK did face a public emergency threatening the life of the nation. A Grand
Chamber of the European Court of Human Rights subsequently agreed with the majority of the House of
Lords: see A v United Kingdom (2009) 49 EHRR 29.
4
The verdict of Parliament’s Joint Committee on Human Rights: see its 2nd report (2001–02, HL 37, HC
372) para 30.
5
Duncan v Cammell Laird [1942] AC 624. This rule held until 1968, when a degree of judicial oversight was
introduced: see Conway v Rimmer [1968] AC 910.
6
R v Secretary of State for the Home Department, ex p Hosenball [1977] 1 WLR 766 (CA) and R v Secretary
of State for the Home Department, ex p Cheblak [1991] 1 WLR 890 (CA).
7
R v Halliday, ex p Zadig [1917] AC 260 and Liversidge v Anderson [1942] AC 206.
Of Law, Constitutions and Security 463
Unhappily, in the twenty-first century we continue in the United Kingdom to make

significant quantities of new law in the national security and counter-terrorism fields.
Equally unhappily, we continue to witness an apparently ever growing volume of
serious appeal court litigation in national security law, some of it raising allegations of
the most egregious abuses, including the return to Britain of the dread and disgrace
of torture.8 Less unhappily, in their most recent attempts to grapple with security and
terrorism, both the legislature and the courts in the United Kingdom appear (at least for
the time being) to have stopped panicking, as they have started to approach their consti-
tutional functions with more maturity.
II. THE LAW-MAKING PROCESS
In Parliament, our most recent counter-terrorism and national security legislation has
not been fast-tracked through its legislative process. Since the Anti-terrorism, Crime and
Security Act 2001, only two terrorism Bills have been fast-tracked and both of these have
since been replaced with other legislation that was not fast-tracked.9 Neither the
Terrorism Act 2006 nor the Counter-Terrorism Act 2008 were fast-tracked through
Parliament: the former took five months to pass through Parliament and the latter took
10 months. The legislation to replace control orders was not fast-tracked through
Parliament,10 and neither was the legislation that placed terrorist asset-freezing on a per-
manent statutory footing.11 At the time of writing the Justice and Security Bill is before
Parliament: it is expected to pass into law in 2013. It has not been fast-tracked.
But it is not just the speed of the legislative process that is important. So too is its qual-
ity. And here, too, Parliament has started to take its constitutional responsibilities far
more seriously. In order to understand this, we need to put it in context. In the British
system the majority of legislation passed by Parliament is government legislation. The
Government12 do not have an exclusive right of legislative initiative – backbench MPs
and Peers in the House of Lords may introduce bills, in certain circumstances. But the
Government have effective control of the parliamentary timetable, at least in the House
of Commons, and this means that very little legislation is passed by Parliament without
government approval.13 Likewise, almost all of the Government’s legislation is passed.14
8
A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221; R (Mohamed)
v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, [2011] QB 218; R (Mousa) v
Secretary of State for Defence [2011] EWCA Civ 1334, [2012] HRLR 6. See also the report of the Baha Mousa
Inquiry: www.bahamousainquiry.org.
9
The Prevention of Terrorism Act 2005 was repealed and replaced by the Terrorism Prevention and
Investigation Measures Act 2011, and the Terrorist Asset-Freezing (Temporary Provisions) Act 2010 was
repealed and replaced by the Terrorist Asset-Freezing etc Act 2010.
10
The Terrorism Prevention and Investigation Measures Act 2011.
11
The Terrorist Asset-Freezing etc Act 2010.
12
By ‘Government’ I mean specifically the Executive Branch – the administration that is for the time being in
office – headed by the Prime Minister and the Cabinet.
13
An exception is the Hunting Act 2004, which was passed by Parliament despite the Government not being
in favour of the manner in which it sought to ban hunting in England and Wales.
14
An exception is the House of Lords Reform Bill (2012–13), which was withdrawn by the Government
when it appeared that no programme motion could be agreed in the House of Commons. Without a pro-
gramme motion the Government would have had much less control on the amount of parliamentary time
devoted to the Bill. The fear was that so much time would be consumed with this Bill that the Government
would struggle to make progress with its other legislative priorities.
464 Adam Tomkins
Parliament’s principal legislative job, then, is neither to generate legislation of its own
initiative nor to seek to block the legislative proposals of the Government. It is, rather,
to debate, amend, revise and improve the Government’s legislation. For a variety of
reasons to do with party controls and the rules of parliamentary procedure, this is a
function that has come to be far better performed by the unelected House of Lords than
by the elected House of Commons. The Commons is unrivalled as a theatre in which
ministers must account for their policies, actions and decisions, and it is still in the
House of Commons that the great debates are staged, where the issues of the day are
aired and where opinion is defended and tested. These are all invaluable parliamentary
tasks, but as a strictly legislative assembly, the modern House of Commons is gravely
limited. Routinely, it is in the House of Lords that we see the most careful and detailed
attention being paid to legislative scrutiny. The Lords take seriously their constitutional
function of being a ‘revising chamber’ and they devote huge energies to this. In addition,
the rules of the Upper House do not permit the Government to control parliamentary
time in the Lords to anything like the extent that is true for the Commons. Finally, no
political party enjoys a majority in the House of Lords, and the political appointees have
to work alongside ‘cross-bench’ Peers who are appointed to the House not because of
their party allegiance but because of their expertise and experience. It is relevant in our
context that lawyers are among the groups over-represented on the cross-benches.
With this context in mind, Parliament’s current contribution to law-making in the
national security and counter-terrorism fields can be illustrated with three examples.
These examples span the end of the last Labour Government (in office from 1997–2010)
and the beginning of the current Conservative–Liberal Democrat Coalition Government
(in office since May 2010). The first example dates from the period 2006–08. The
Government sought to increase the maximum length of pre-charge detention for terror-
ist offences to 42 days. The normal maximum period in English law for which a suspect
may be detained by the police before being charged with a criminal offence is 24 hours.
In the most serious cases this limit can be extended to a maximum of 96 hours. For ter-
rorist offences the limit was set at five days (from 1974–2000), seven days (from 2000–
03), 14 days (from 2003–06) and 28 days (from 2006). Ministers indicated that they
wished the limit to be increased further to 42 days. Parliamentary committees responded
by seeking evidence as to whether this further increase was necessary.15 They failed to
find any and, indeed, they found authoritative evidence that it was not necessary.
Regardless, ministers pursued the matter. When the issue came to a vote in the House of
Lords, the Government were defeated by 309 votes to 118,16 a loss so crushing that the
Government abandoned their plan and did not seek to revive it in the Commons.
Our second example concerns terrorist asset-freezing. Asset-freezing is a key com
ponent of effective counter-terrorism, and is mandated by a series of United Nations
Security Council Resolutions, including UNSCR 1267 and UNSCR 1373 (as amended).
The United Kingdom gave domestic legal effect to these Security Council Resolutions
through Orders in Council made by ministers under the United Nations Act 1946. In
Ahmed v HM Treasury the UK Supreme Court ruled that the Orders in Council were
15
To this end the work of the House of Commons Home Affairs Committee and of the Joint Committee on
Human Rights was invaluable. For a detailed account, see A Tomkins, ‘Parliament, Human Rights, and Counter-
Terrorism’ in T Campbell, K Ewing and A Tomkins (eds), The Legal Protection of Human Rights (Oxford,
Oxford University Press, 2011) 20–28.
16
See HL Deb 13 October 2008, vol 704, cols 491–544.
ultra vires.17 Powers as intrusive of fundamental human rights as those contained in the
Orders required express authorisation in primary legislation, the Court ruled: general
Order-making powers such as those contained in the United Nations Act could not be
relied on as authority for making Orders as coercive as these. Operative provisions of
the Orders were therefore quashed. The Government could not allow the UK’s regimes
of terrorist asset-freezing to lapse, so fast-track legislation was rushed through
Parliament in order to give emergency legislative authority to that which the Supreme
Court had ruled unlawful. This legislation was time-limited and before the end of 2010
was replaced by permanent legislation.
In the making of the Terrorist Asset-Freezing etc Act 2010 Parliament amended the
Government’s proposals in a number of ways. Perhaps the most important two were as
follows. The Government had proposed that the Treasury should be empowered to
freeze the assets of persons reasonably suspected of involvement in terrorist activity. The
House of Lords persuaded the Government to change this test of reasonable suspicion to
one of reasonable belief.18 Secondly, the Government had proposed that persons wishing
to challenge a decision by the Treasury to freeze their assets would be able to go to court
but that the court would be able only to review the lawfulness of the decision. Applying
the ordinary rules of English administrative law this would mean that the court would
be able to quash the decision only if it ruled that the decision was so unreasonable that
no reasonable decision-maker could have taken it.19 Given the gravity of the decision-
making we are talking about here, this would have been a very limited jurisdiction.
Again the House of Lords persuaded the Government to amend the legislation, so that it
now provides for a full right of appeal to the courts.20
Our final example is the Justice and Security Bill which, at the time of writing, remains
before Parliament. A recurrent problem in national security law is how to make litiga-
tion fair. Fundamental rules of open and natural justice require that parties to litigation
are able to see and to challenge the evidence of other parties in the case. On occasion it
is extremely difficult to square these rules with the need to keep operationally sensitive
intelligence material secret. A classic example is when the Government determines that
the ongoing presence of a foreign national in the United Kingdom is no longer conducive
to the public good and, in the interests of national security, that the person should be
deported. The deportee challenges the decision to deport him. The Secretary of State
responds by explaining that the case against the deportee comprises sensitive secret intel-
ligence, which cannot be disclosed to him. How can a case such as this be conducted
fairly? In 1996 the European Court of Human Rights (ECtHR) ruled that the procedures
then used for such cases in the United Kingdom were unfair.21 In response a new proce-
dure was introduced into UK law: closed material procedure (CMP). Under CMP evid
ence that cannot be served on parties in litigation owing to its sensitivity or secrecy is
served instead on a special advocate (SA). The SA is a security-cleared lawyer appointed
to represent the interests of a party to litigation in closed process. Once the closed mater
ial has been served on the SA, they are prohibited from communicating directly with the
Ahmed v HM Treasury [2010] UKSC 2, [2010] 2 AC 534.

17
See the Terrorist Asset-Freezing etc Act 2010, s 2(1).

18
19
This is the test of Wednesbury unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223 (CA).
20
See the Terrorist Asset-Freezing etc Act 2010, s 26.
21
Chahal v United Kingdom (1997) 23 EHRR 413.
466 Adam Tomkins
party on whose behalf they act. When a court goes into a closed process everyone is
required to leave the courtroom except for the judge, the Government’s lawyers and the
SA. Other parties, their lawyers and members of the public must wait outside until
the court re-opens its doors. Matters dealt with in closed process are determined by the
court in a closed judgment. Closed judgments remain secret: only the Government and
the SA in the particular case will be able to read them.
CMP was first used in the UK for deportation and other related immigration hear-
ings.22 Subsequently the use of CMP and SAs grew to control orders cases,23 to asset-
freezing cases,24 and to other counter-terrorism cases, such as under the Terrorism
Prevention and Investigation Measures Act 2011.25 In Al Rawi v Security Service,26 Al
Rawi and certain other former detainees at Guantanamo Bay sued the UK’s security and
secret intelligence services for damages. The claimants alleged that the security and
secret intelligence services, as well as other departments and agencies of the UK
Government, were complicit in the torture, illegal rendition and other ill-treatment they
had suffered at and en route to Guantanamo. The defendants argued that so much of the
material they wished to serve in their defence was sensitive and secret that a fair trial of
the action could proceed only under CMP. This was the first occasion on which it was
suggested that a damages action should proceed under CMP. Hitherto all use in the UK
of CMP had been in litigation testing the legality of Government decision-making rather
than the Government’s liability. Both the Court of Appeal and the Supreme Court ruled
that the courts possessed no inherent power to order that a damages action proceed
under CMP. Closed material procedure, ruled the appeal courts, was such an incursion
into the common law principles of open and natural justice that it required express stat-
utory authorisation.
The Government settled Al Rawi’s claims in a confidential out-of-court settlement
later asserted to be in the region of £20 million plus costs. Plainly frustrated with having
to pay millions of pounds of damages to people the Government considered to be highly
dangerous, ministers announced their intention to legislate so that, in the future, claims
such as Al Rawi’s could be heard in accordance with CMP. This, the Government con-
tended, was a necessary step in order for such claims to be fairly defended in effective
litigation. The result was the Justice and Security Bill, introduced into Parliament in
May 2012.
The Government’s desire to legislate in this manner is readily understandable given
the result in Al Rawi. But the means by which the Government proposed that CMP
should be available in ordinary civil litigation left a lot to be desired. Under the
Government’s proposals, the Justice and Security Bill would have provided for CMP to
be used in civil proceedings on the application only of the Secretary of State. The court
would have been compelled to grant such an application where the proceedings in ques-
tion would otherwise have required any party to disclose material whose disclosure
would be damaging to national security. These provisions were amended during parlia-
22
Under the Special Immigration Appeals Commission Act 1997.
23
Under the Prevention of Terrorism Act 2005.
24
Under the Counter-terrorism Act 2008 and the Terrorist Asset-Freezing etc Act 2010.
25
For a thorough account of the position down to 2009, see E Metcalfe, Secret Evidence (London, Justice,
2009). A more recent account is Amnesty International, Left in the Dark: The Use of Secret Evidence in the UK
(London, AI Publications, 2012).
26
Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531.
mentary debates on the Bill in the House of Lords. As amended, the Bill provided that
CMP may be used in civil proceedings on the application of any party to those proceed-
ings or on the court’s own motion. The court would have a discretion as to whether to
grant an application that proceedings go into a closed process. In exercising that discre-
tion the court was to consider: (a) whether the degree of harm to national security caused
by any disclosure of material outweighs the public interest in the fair and open adminis-
tration of justice; and (b) whether a fair determination of the proceedings is possible by
any other means. As with the Lords’ earlier assault on the Government’s plan over
42-day detention, the amendments to the Justice and Security Bill were the work princi-
pally of cross-bench and other lawyers.
The amendments made to this scheme had three objectives: first they sought an equal-
ity of arms that was missing from the original Bill; secondly, the amendments sought to
build into the CMP process an element of judicial balancing, such that adopting a CMP
in any trial would occur only where, on balance, the damage to national security in not
doing so outweighs the damage to the principles of open and natural justice that inevita-
bly arises in doing so. Thirdly they sought to ensure that conducting a trial under CMP
is genuinely a measure of last resort. Most, but not all, of these Lords amendments sur-
vived, in one form or another, in the House of Commons, but a full account is beyond
the scope of this paper.
These, then, are my three examples – pre-charge detention, asset-freezing and closed
material procedure – of improved legislative scrutiny in the UK Parliament of matters of
national security and counter-terrorism law. It is notable that the story outlined here of
more active parliamentary involvement in the making of national security law bears a
striking resemblance to the story Barak Medina tells of the increased, if still partial,
activism of the Knesset in the same arena. Some of the parliamentary victories here are
more significant than others: stopping 42 days was a bigger deal than substituting rea-
sonable belief for reasonable suspicion, for example. But what each of these examples
has in common is that Parliament was both willing and able to scale back the extent of
the powers that the Government was claiming they needed. Thus, the Government
asserting that a particular power is necessary in the interests of national security is no
longer any guarantee that the power will be legislated for. Parliament will make its own
judgement of what is needed.
III. THE ROLE OF THE COURTS
Surveying a number of the cases mentioned above – including Halliday, Liversidge v

Anderson and Hosenball – David Dyzenhaus remarked that ‘the judicial record in
enforcing the rule of law’ in cases of national security ‘is at worst dismal, at best ambigu-
ous’.27 The twentieth-century record was indeed dismal, culminating in Lord Diplock’s
famous dictum in the GCHQ case that national security is ‘par excellence a non-
justiciable question’.28 The judicial record in the twenty-first century, while patchy, is
certainly a lot less dismal than that of the twentieth. As I did in the previous part, so too
here I will give three examples.
27
D Dyzenhaus, The Constitution of Law (Cambridge, Cambridge University Press, 2006) 17.
28
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 412 (HL).
468 Adam Tomkins
The first is the decision of the House of Lords in the Belmarsh case.29 Among other
matters, the Anti-terrorism, Crime and Security Act 2001 permitted the Secretary of
State to certify that a person is a terrorist or that a person’s presence in the UK is a risk
to national security. Persons so certified were liable to be detained indefinitely without
charge or trial. In Belmarsh an eight-to-one majority of the Law Lords ruled that this
scheme was unlawful. The Government had accepted that the scheme was incompatible
with Article 5 of the European Convention on Human Rights30 but had sought to dero-
gate from this provision owing to the ‘public emergency’ that the UK faced after 9/11.
While the House of Lords upheld the legality of the derogation (Lord Hoffmann dissent-
ing, as we saw above), measures taken in pursuance of a derogation must be ‘strictly
required by the exigencies of the situation’.31 Their Lordships ruled that the scheme of
indefinite detention without charge – a variant of internment – did not meet this test.
In Chahal the ECtHR had ruled that it is unlawful for a state party to the Convention
to deport someone to a country where they would face a real risk of torture.32 Whilst this
is a valuable and powerful reminder of the unqualifiedly evil nature of torture, the ruling
created a problem. What should a European state do with people whom it would like to
deport for reasons of national security but who may not be deported because of the rule
in Chahal? The UK’s answer post 9/11 was the scheme of indefinite detention without
charge legislated for in the Anti-terrorism, Crime and Security Act. Because the problem
to which the scheme was an answer related only to foreign nationals (no state may law-
fully deport its own nationals), the scheme applied only to persons subject to immigra-
tion control: British citizens could not be detained under the Act. Yet, the House of
Lords found, the security threat to the UK post 9/11 came not only from foreign nation-
als resident in the UK but also from British nationals. If indefinite detention without
charge was not necessary for British nationals, how could it be ‘strictly required’ for
persons subject to immigration control? This was the flaw that fatally undermined the
scheme, in the judgment of the Law Lords.
Our second example relates back to closed material procedure (CMP) and special
advocates (SAs). We saw above that when CMP is used, evidence that the Government
deems to be sensitive is not served on the other parties to litigation, but is shown only to
the court and to the SAs. In Secretary of State for the Home Department v MB33 the
House of Lords ruled that this procedure would have to be ‘read down’ so as to ensure
that it was compatible with the Convention right to a fair trial under Article 6 of the
ECHR. Lower courts struggled to know what this process of ‘reading down’ would
entail in any particular case and the matter returned to the House of Lords in Secretary
of State for the Home Department v AF.34 Immediately before AF was argued in the
House, the ECtHR handed down its judgment in A v United Kingdom.35 In this case,
Strasbourg ruled that, in order to comply with the right to a fair trial, a party repre-
29
Belmarsh (n 1).
30
The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention
on Human Rights, as amended) (ECHR).
31
ibid Art 15.
32
Chahal is one of a number of cases in which the ECtHR has played a decisive role in reshaping British
national security law. That European and international law have had this influence is a feature that the UK
shares with Israel, as Daphne Barak-Erez explains towards the end of her chapter.
33
Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC 440.
34
Secretary of State for the Home Department v AF [2009] UKHL 28, [2010] 2 AC 269.
35
A v United Kingdom (2009) 49 EHRR 29.
sented by a SA must be provided with ‘sufficient information about the allegations

against him to enable him to give effective instructions to the special advocate’.36 The
House of Lords relied on this judgment when ruling in AF that, as long as this require-
ment is satisfied ‘there can be a fair trial notwithstanding that the [individual] is not
provided with the detail or the sources of the evidence forming the basis of the allega-
tions’.37 This is sometimes known as the AF ‘gisting’ requirement.
This was a level of disclosure that the Government felt they could not always live with
and, in a number of instances, the Government elected to abandon proceedings rather
than to disclose the material that would be necessary in order to comply with the rulings
in A v United Kingdom and AF. In a series of cases the Government has sought to restrict
the scope of the gisting requirement. They were successful in Tariq v Home Office38 in
persuading the Supreme Court to rule that this level of disclosure was not required in a
race discrimination claim brought by a former civil servant.
Our final example concerns deportation. The British Government has sought several
routes out of the problem that was set by the ECtHR in Chahal. One of their strategies has
been to seek diplomatic assurances that foreign nationals whom the UK would like to
deport will not be tortured upon return to their country of origin (or country of citizen-
ship). In a number of instances, courts have ruled that the assurances obtained by the
British Government are insufficiently robust to render deportation lawful: despite
the assurances given, there remains a real risk of treatment contrary to Article 3 ECHR.
The Court of Appeal came to this conclusion in respect of assurances obtained from
Gaddafi’s regime in Libya.39 The House of Lords upheld the legality and robustness of
similar assurances that had been obtained from Algeria and Jordan40 but, in the latter case,
the ECtHR ruled that the person concerned (Abu Qatada) could not be deported to Jordan
because he would face the prospect of being tried there on the basis of evidence obtained
by torture.41 Further assurances subsequently obtained from the Jordanian authorities
were eventually held to be sufficient to guarantee that any trial Abu Qatada could face
would be free of the taint of torture. He was deported to Jordan on 2013.
As with our parliamentary examples, what the Belmarsh, AF and Abu Qatada cases
each illustrate is that the courts are no longer anything like as reluctant as they formerly
were in seeking to subject to searching scrutiny the Government’s claims as to what is
necessary in the interests of national security. This does not mean that the Government
will always lose (any more than the case law of the Israeli Supreme Court means that the
Israeli Government will always lose in that Court). But it does mean that the Government
no longer always wins merely by virtue of playing the national security card.
IV. CONCLUSIONS
Two related conclusions may be drawn from these various legislative and adjudicative
episodes. Each of them is also at least implicit in the papers published here by Daphne
36
ibid para 220.
37
AF (n 34) para 59.
38
Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452.
39
AS (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289, [2008] HRLR 28.
40
RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110.
41
Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1.
470 Adam Tomkins
Barak-Erez and Barak Medina. The first is that, properly understood and despite all too
frequent protests to the contrary, matters of national security and counter-terrorism are
not for the executive alone. Whilst governments, ministers and the civil servants and
military officers who are responsible to them will have the lead role in determining what
measures are necessary in the name of national security, they do not act alone. Rather,
national security is the shared responsibility of all the branches.
Secondly, ‘emergency constitutionalism’ is the wrong paradigm for assessing matters
of national security and counter-terrorism law. This has been a dominant narrative in
the United States in the decade since 9/11 but, as British and even more so as Israeli expe-
rience shows, threats to security may be more or less permanent, not exceptional. The
more we can do to normalise our response to such threats, and the less we reach for the
law of the exception as a justification for the otherwise unjustifiable, the more likely we
are to ensure that our cherished ideals of constitutional justice are not sacrificed. This, I
think, may be Israel’s greatest contribution to the debate. Even in a country that has
lived under a permanent state of emergency, considerable efforts continue to be made
within the Knesset and by the Supreme Court to normalise national security law. In this
way may constitutional responsibility for national security law be shared in Israel. And
if Israel can do this, given the extraordinary threats it has faced throughout its existence,
so surely can all democracies that are committed to the rule of law.
In the United Kingdom we have come to see this only recently. In the twentieth
century the parliamentary and judicial records alike were dismal. In the twenty-first,
conscious that the threats we face may be with us for a while, and under the close watch
and scrutiny of international human rights law, we seem to have stopped panicking
about national security and to have started to act with at least a degree of maturity.
Reflective deliberation on what powers governments should have and robust adjudica-
tion of disputes about the exercise of those powers are the twin hallmarks of democratic
constitutions committed to the rule of law. Both Britain and Israel face ongoing chal-
lenges (as do many other countries around the world) in ensuring that in the national
security field these hallmarks are adhered to. The papers by Daphne Barak-Erez and
Barak Medina give us reason to hope that in Israel’s case the challenge can be met. In the
end, our security and counter-terrorism strategies must conform to the constitutional
values we hold most dear. Responsibility for ensuring that this happens is shared by us
all.
Part 9
Israel – ‘Jewish and Democratic’

31
Jewish and Democratic:
Three Zionisms and Post-Zionism*
CHAIM GANS
I. INTRODUCTION
T
HERE ARE THREE defining tenets that constitute the common denominator
for all the versions of Zionism. The first is that the Jews, apart from sharing a
religion, also form an ethno-cultural nation. The second is the ethno-cultural prin-
ciple. According to it, members of groups sharing a common history and culture have
fundamental, morally significant interests in adhering to their culture and in sustaining it
for generations. Furthermore, these interests warrant political recognition and support,
primarily by means of the right to national self-determination.1 The third tenet of Zionism
is that the Jews should realise their right to ethno-national self-determination in Zion,
namely, in the historical homeland from which the Jewish people had been cut off since
antiquity. Post-Zionists reject all these tenets.2 Here I will concentrate on their rejection of
the Zionist principle supporting the realization of the Jewish right to self-determination in
Israel.
According to one major version of post-Zionism, the ‘ethnic nationalism dominant in
Israel, according to which the people as an ethno-cultural entity is identical with the
“state” as an administrative-constitutional entity’, must be replaced with ‘territorial
nationalism, according to which it is possible to separate nation and state in such a way
that communal (or cultural, religious, ethnic etc) belonging will not be constitutionally
protected’.3 According to some post-Zionist writers, at the constitutional level of the
* This chapter is based on my forthcoming book A Political Theory for the Jewish People: Three Zionist
Narratives (Haifa, Haifa University Press, 2013). It summarizes the gist of the argument in that book concerning
the status of the Jews in Israel relative to that of the Palestinians. The book also contains parts relating to the
status of the Jews in Israel relative to the Jews living outside it, and the Zionist historiography of Judaism.
1
For a detailed formulation of this interpretation of ethno-cultural nationalism, see C Gans, The Limits of
Nationalism (Cambridge, Cambridge University Press, 2003) 7–38.
2
Some scholars distinguish between ‘rejectionist post-Zionism’ and ‘affirmative post-Zionism’. Post-Zionists
belonging to the first group are anti-Zionist. Those belonging to the second group are not anti-Zionists. I think
that this distinction is misconceived, and that the notion of post-Zionism should only refer to anti-Zionists. For a
detailed discussion of this issue see the introduction to my book, C Gans, A Political Theory for the Jewish People:
Three Zionist Narratives (Haifa, Haifa University Press, 2013).
3
U Ram, The Time of the ‘Post’: Nationalism and the Politics of Knowledge in Israel (Tel Aviv, Resling,
2006) 17 (in Hebrew). Ram is the clearest and the most detailed spokesman among writers who could be con-
sidered as belonging to this brand of post-Zionism, such as S Sand, The Invention of the Jewish people (New
York, Verso, 2010); O Yiftachel, Ethnocracy: Land and Identity Politics in Israel/Palestine (Philadelphia,
474 Chaim Gans
State of Israel neither world Jewry nor even Israeli Jewry itself ought to be protected.
Like the Jews in many other places in the world, and like non-Jewish groups in Israel,
the Jews in Israel are free to form their own associations. The liberal principle of free-
dom of association allows them to do so in the very same way that it allows soccer teams
and people who share religions to form their own associations.
Post-Zionist writers present three main arguments to support the above thesis. First,
they assert that there is a fundamental contradiction in Israel’s perception of itself as a
state which is both ‘democratic and Jewish’.4 Secondly, they claim that the liberal ideal
of state neutrality requires separating (ethno-cultural) nationality and state for the same
reasons that it requires a separation of Church and state.5 Thirdly, they invoke the
alleged moral superiority of civic-territorial nationalism – such as, the type of national-
ism embodied by the United States or France – over ethno-cultural nationalism, such as
that of Germany or Serbia.6 Two major normative concerns underlie these arguments
against the continued Jewish self-determination in the Land of Israel.7 One is a concern
for equality. Another is a concern for freedom.
In responding to this post-Zionist critique I will distinguish between three major
interpretations of the Zionist idea: the proprietary, the hierarchical, and the egalitarian.
I shall argue for three theses regarding the above post-Zionist critique. First, I will show
that it is rather a feeble critique with relation to the conception of Zionism which is the
most popular among Israeli – and perhaps not only Israeli – Jews, the proprietary con-
ception of Zionism. Second, I will show that the above post-Zionist critique is at least
partly justified with regard to a second conception of Zionism, ‘hierarchical Zionism’,
which is common mainly among academics and professionals in fields related to polit
ical thought and law. Third, I will show that with regard to a third understanding of
Zionism, the one I argued for in A Just Zionism8 and which I shall call here ‘egalitarian
Zionism’, the post-Zionist critique completely loses its force. In part II of this chapter I
Pennsylvania UP, 2006); B Kimmerling, ‘Religion, Nationality and Democracy in Israel’ (1994) 50–51 Zmanim
116 (in Hebrew); J Shapira, ‘The Secular Politicians and the Place of Religion in Israel’ in M Mautner, A Sagi
and R Shamir (eds), Multiculturalism in a Democratic and Jewish State (Tel Aviv, Ramot, 1998); Y Peled,
‘Strangers in Utopia: The Civic Status of Israel’s Palestinians’ (1993) 3 Theory and Criticism 21 (in Hebrew).
This brand of post-Zionism is civic. According to it, Israel should be the state of the Israeli nation, a nation
that will consist of both its Jewish and Arab citizens. Another version of post-Zionism could be branded ‘mul-
ticultural’. Its proponents are mainly post-colonial multiculturalists. As such, they believe that only Arabs and
Mizrahi Jews, groups that suffered under Ashkenazi Zionism, should enjoy legal protections by the State of
Israel. They oppose, together with the civic post-Zionists, Israel’s conception of itself as a Jewish state. The
main proponents of multicultural post-Zionism are Y Shenhav and Y Yona, What is Multiculturalism? On the
Politics of the Difference in Israel (Tel Aviv, Bavel, 2005).
4
Ram, The Time of the ‘Post’ (n 3) 187; Basic Law: Human Dignity and Liberty, s 1A; Basic Law: Freedom
of Occupation, s 2.
5
For these reasons, see Ram, The Time of the ‘Post’(n 3) 91.
6
ibid 188; Sand, The Invention of the Jewish People (n 3).
7
The term ‘Land of Israel’ (‘Eretz Yisrael’ in Hebrew) does not merely refer to the land or the territory of
the State of Israel. It is the land promised to the Jewish people in the Old Testament. Jews lived and were politi-
cally dominant in many parts of it mainly in the first millennium BC until the destruction of the second temple
in 70 AD. The term denotes most of the land which today comprises the State of Israel and the Kingdom of
Jordan. Since the 1920s, it has mainly denoted the territories under the British Mandate; that is, the land
between the Jordan River and the Mediterranean. It thus overlaps with historic Palestine. Another name for the
Land of Israel in Jewish tradition (which appears frequently in the Old Testament and in liturgy) is Zion – also
a traditional name for the Holy City of Jerusalem. This of course explains why the ideology discussed in this
chapter is called Zionism.
8
C Gans, A Just Zionism: On the Morality of the Jewish State (Oxford, Oxford University Press, 2008).
Jewish and Democratic: Three Zionisms 475
will briefly present the proprietary, hierarchical and egalitarian interpretations of

Zionism. In part III I will argue for the three theses just listed regarding the post-Zionist
critique.
II. THREE ZIONISMS
A. Proprietary Zionism
According to proprietary Zionism, the Jewish people have a right of ownership as it

were, over the Land of Israel and its political institutions, that is rooted in antiquity.
This interpretation resonates in the Israeli Declaration of Independence, the first section
of which states that
[t]he Land of Israel [is] the birthplace of the Jewish people. Here their spiritual, religious and
political identity was shaped. Here they first attained to statehood, created cultural values of
national and universal significance and gave to the world the eternal Book of Books.9
To be sure, this section tells the (true) story of the primacy of the Land of Israel in
Jewish history, emphasizing that it was from the Land of Israel that the Jews bequeathed
the world with the Bible. However, Jewish Israelis adhering to mainstream Zionism and
its politicians usually reverse what is stated in the first section of the Israeli Declaration
of Independence.10 Instead of emphasizing what it actually asserts, namely, the primacy
of the Land of Israel in Jewish history and identity, they usually stress the primacy of the
Jews in the history of the Land of Israel. And instead of noting that the Jews had
bequeathed the Bible to the world when they resided in the Land of Israel, they speak of
the Bible as bequeathing the Land of Israel to the Jews. This reversal serves to justify
their proprietary claims to the Land of Israel. The second and third sections in the
Declaration of Independence encourage this transposition:
After being forcibly exiled from their land, the people kept faith with it throughout their
Dispersion and never ceased to pray and hope for their return to it and for the restoration in it
of their political freedom. Impelled by this historic and traditional attachment, Jews strove in
every successive generation to re-establish themselves in their ancient homeland.11
These statements in the Declaration of Independence, which according to historians

associated with mainstream Zionism (such as Anita Shapira12 and Yisrael Bartal13) are
false, are used in order to reject any possible claims on the limitation of the Jews’ ancient
proprietary rights to the Land of Israel. According to the second and third paragraphs in
the Declaration of Independence, the Jewish people were forcibly expelled from the
Land of Israel, and from the time of their expulsion never ceased striving to return to it.
Therefore, it is only their physical possession with the land that they have lost, not their
right of ownership over it.
9
10
The major characteristic of mainstream Zionism is the attribution of privileged status to the Jews in
Israel relative to all other groups living in the country.
11
Declaration (n 9).
12
A Shapira, ‘Review Essay: The Jewish-people deniers’ (2009) 28 Journal of Israeli History 63.
13
Israel Bartal, ‘Inventing the Invention’, Haaretz, 27 May 2008: www.haaretz.co.il/literature/1.1327315 (in
Hebrew).
476 Chaim Gans
The current interpretation of Zionism, which is allegedly justified by the ancient

Jewish rights over the Land of Israel functions not only as a justification for the return of
the Jews to the Land of Israel upon the inception of Zionism. It also justifies their ongo-
ing superior status in it relative to the Arabs. If the Jewish people are the owners of the
Land of Israel from time immemorial, and its ownership has not lapsed, then it follows
from this interpretation of Zionism that the Arab nation is the usurper of the Land of
Israel. It must be noted that this interpretation presupposes a collectivist moral ontology
in which the basic subjects of political morality are nations and not individuals.
The combination of proprietary justice and collectivist moral ontology underlying the
current version of Zionism provides possible explanations for two of the most impor-
tant components of mainstream Zionism regarding the status of Arabs in Israel. On the
one hand, this combination provides an explanation for the consensus existing among
most Jewish political parties in Israel, according to which any collective rights should
not be granted to the Arabs in the Jewish state, at least not rights of a political and ter-
ritorial nature that express recognition of the Arab collectivity as an historical collectiv-
ity with respect to Palestine/the Land of Israel. On the other hand, the combination of
proprietary justice and collectivist moral ontology can provide an explanation of the
fierce disputes that often arise in Israel over issues concerning the individual rights of
the Arabs in the Jewish state. On the one hand, since according to proprietary Zionism,
the Arabs as an historical collectivity must be perceived as the plunderers of the country,
it is totally unthinkable – from the perspective of this interpretation – that they should
be granted collective rights there. For granting them such rights would be tantamount to
granting a thief rights to objects he had stolen on the mere grounds that they had been
stolen by him. On the other hand, the fact that the Arabs as a collective and not as indi-
viduals could be considered as usurpers of the land of the Jews provides an explanation
for why the question as to whether they deserve individual rights, or which individual
rights they deserve, is under dispute among the different sections of mainstream Zionism.
The limiting right-wing response to this question would be that of the racist right-wing
Zionism inspired by Rabbi Meir Kahana that calls to remove all Arab individuals from
the Land of Israel. The limiting ‘left-wing’ response of proprietary Zionism would be
that of Revisionist Zionism inspired by Zeev Jabotinsky, the current main spokesman of
which is Moshe Arens. It proposes the removal of the Arabs as a collective from the
Land of Israel, while recognizing their status as individual citizens. This status grants
them full civil and political rights. In addition, there are many other possibilities between
these two poles. If members of the public at large and its politicians make proposals that
express views to the left of Arens’s position, they usually do so for tactical reasons or at
most for pragmatic reasons, and not for principled ones. Examples are Ben-Gurion’s
acceptance of the Peel Partition Plan in 1937, or the concession Netanyahu made to
Obama in his 2009 Bar-Ilan speech by agreeing to the establishment of a Palestinian state
within the area dominated by Israel since 1967.14
14
Ben-Gurion was explicit in indicating that his reasons for supporting the Peel Partition Plan were tactical.
See the excerpt from a letter he wrote to his son Amos in 1937. D Ben-Gurion, Letters to Paula (Pittsburgh,
University of Pittsburgh Press, 1968) 153.
B. Hierarchical Zionism
In addition to the historical argument, the Israeli Declaration of Independence justifies

itself by invoking two additional arguments pertaining to political morality – one is
based on the persecution of the Jews and the other on the universal right to national self-
determination.15 The latter is interpreted by some leading representatives of mainstream
Zionism as entailing a right to a nation-state within which the Jews exercise hegemony.
According to Ruth Gavison, the state declared in the Declaration of Independence ‘is the
state in which the Jewish people realises its right to self-determination, or in other
words: Israel is the nation-state of the Jewish people’.16 She further notes that a nation-
state is
a state in which there is a connection between the state institutions and a particular national
culture, [one that] grants important advantages to the nation with which the state is identified
and places a great burden on citizens of the state who are not members of this nationality.17
While the proprietary argument for a hierarchy between Jews and non-Jews in Israel
is mainly popular among the public at large and many politicians representing main-
stream Zionism, the argument based on the hegemonic interpretation of the universal
right to self-determination is mainly invoked by academics from the disciplines relevant
to politics and members of academic professions that serve mainstream policy.18 Their
discussion of the status of the Jews compared to the status of the Arabs in the Land of
Israel is mainly based on this argument. They treat the historical arguments invoked by
the Declaration of Independence – namely, the argument based on the historical connec-
tion between the Jews and the Land of Israel and the argument concerning the history of
the persecutions of the Jews – as secondary and as playing an auxiliary role in support of
the self-determination based argument.
The argument for hegemony based on self-determination is an a-historical argument.
Unlike proprietary–historical rights, the right to national self-determination is a right
that groups have by virtue of belonging to a general category to which other groups also
belong – their being peoples – rather than by virtue of certain events in their particular
history. The current argument for hegemony also differs from the historical argument in
15
The Declaration also contains legal arguments listing international declarations in support of the Zionist
enterprise. These include the 1917 Balfour Declaration, the 1922 British Mandate for Palestine, and the UN
General Assembly Partition Plan of 1947.
16
R Gavison, Israel as a Jewish and Democratic State: Tensions and Possibilities (Jerusalem, Van Leer
Institute and Hakibbutz Hameuchad, 1999) 26.
17
R Gavison, ‘The Jewish State: The Principle Justification and the Desirable Character’ (2002) 13 Tekhelet
50, 54 (in Hebrew).
18
The most important among this latter group are mainly judges and jurists. Thus, we find the former
Supreme Court Judge Menachem Elon asserting that ‘the state of Israel is the state of the Jewish People and
only the Jewish people’ (EA 2/88 Ben-shalom v Central Elections Committee for the Twelfth Knesset PD 43(4)
221, 272 [1989] (in Hebrew)). Prominent examples of the former group are Shlomo Avineri, Ruth Gavison,
Amnon Rubinstein and Alex Yaakobson. Avineri frequently publishes opinion editorials in the daily Haaretz
which presuppose this conception of Jewish self-determination in Israel: S Avineri, ‘The Hope Will Not Die’,
Haaretz, 20 October 1995; ‘Yes, Jewish and Democratic’, Haaretz, 3 November 2003: www.haaretz.co.il/
misc/1.921631 (in Hebrew). Gavison, Rubinstein and Yaakobson published full scale books and articles defend-
ing this interpretation: R Gavison, ‘The Jews’ Right to Statehood: A Defense’ (2003) 15 Azure 70, 74–75;
A Yakobson and A Rubinstein, Israel and the Family of Nations: Jewish Nation-State and Human Rights
(London, Routledge, 2008).
478 Chaim Gans
that it does not derive from proprietary justice, which grants rights mainly on the basis
of the legitimacy of acts of acquisition. Rather, it is rooted in distributive justice.
According to distributive justice, resources must be allocated mainly on the basis of the
principles of equal respect and concern for individuals and groups in need of the
resources.
There are two reasons why the moral implications of Jewish hegemony that is based
on self-determination are much less terrifying than those of hegemony based on the pro-
prietary–historical argument. First, hegemony justified by self-determination only has
implications concerning the institutional dimension of Jewish rule in the Land of Israel,
and does not have any implications regarding its territorial dimension. The hegemony
justified by self-determination does not necessarily cover the entire territory of the Land
of Israel, and therefore does not necessarily threaten all the Arabs (and other non-Jews)
inhabiting the Land of Israel, but only those within the borders of the area in which the
Jews enjoy self-determination. Secondly, this kind of hegemony cannot imply commit-
ting wrongs as horrendous as those entailed by the proprietary argument. This is so
because unlike hegemony deriving from the notion of ownership, the hegemony entailed
by the right to self-determination also includes many constraints and limitations which
are usually related to the exercise of governmental powers, such as the constitutional
constraints of human and civil rights. Basing Jewish hegemony in the Land of Israel on
the right to national self-determination does not easily lend itself to allowing the expul-
sion of Arabs from the Land of Israel, violating their rights to private property, making
their political rights conditional upon their loyalty to the Jews, and similar types of gross
wrongs, some of which are actually carried out by Israel and others proposed time and
again by political parties in Israel. From the viewpoint of the proprietary–historical
argument for the Jews’ rights in the Land of Israel, the aforementioned acts are not even
considered wrongs. If lands in the Land of Israel belong to the Jews, taking it away from
Arabs means redeeming it, not plundering it. On the other hand, from the viewpoint of
those who believe in hegemony, because they interpret the right to self-determination as
the right to political hegemony, most acts of these types are considered unthinkable.
Yet, hierarchical Zionists are convinced that certain inequalities regarding the Arabs
derive from the right to self-determination. Their view is that this right means the right
to a Jewish nation-state, a state identified as solely Jewish in its public sphere, its sym-
bols, language, anthem, the national/religious affiliation of those immigrants allowed to
enter the country and become citizens, ‘and the right to the monopoly [that the Jewish
people has] over the entire public and symbolic space of the state’.19 Thus, even though
hegemony entailed by self-determination cannot approach the intensity of the oppres-
sion which is implied by proprietary Zionism, that justification, too, condemns Israel to
upholding a regime of inequality between Jews and Arabs, by excluding the latter – as a
matter of constitutional principle – from presence in the public, symbolic, and essen-
tially the political spheres of Israel, at least as a collective.20
19
Gavison, ‘The Jewish State’ (n 17) 28.
20
I have critiqued at length the arguments supporting the current conception of self-determination in gen-
eral, and specifically, the arguments of its Israeli spokesmen in Gans, The Limits of Nationalism (n 1) 70–83;
Gans, A Just Zionism (n 8) 53–80.
C. Egalitarian Zionism
This Zionism is the one which I argued for in A Just Zionism. Like proprietary Zionism
and hierarchical Zionism, it is based on the three arguments for the establishment of the
state of Israel that are cited in its Declaration of Independence: (a) the historical link of
the Jews to the Land of Israel; (b) the right to national self-determination; and (c) the
Jewish history of persecution. Yet, the roles and meanings of each of these arguments
within the framework of egalitarian Zionism differ from those in the other versions of
Zionism. Unlike proprietary Zionism, but as in the framework of hierarchical Zionism,
the right to national self-determination – rather than the historical link between the
Jews and the Land of Israel – constitutes the core of the egalitarian interpretation. Unlike
hierarchical Zionism, however, egalitarian Zionism does not conceive of the right to
national self-determination as implying a hierarchy between homeland groups. The
point of departure of the right to national self-determination is equality between home-
land nations within the framework of the states ruling their homeland territories. Any
digression from this equality can only be justified if there are reasons which themselves
derive from the requirements of equality, for example, due to differences in the popula-
tion size of each of the homeland groups in the state that rules over areas of this home-
land, or due to special needs of a group compared to other group/s.
Egalitarian Zionism interprets the historical ties between the Jews and the Land of
Israel in the way they are actually described in the Declaration of Independence – as
pertaining to the primacy of the Land of Israel in Jewish identity rather than to the pri-
macy of the Jewish people in the history of the Land of Israel. The latter interpretation
is the one commonly held among those supporting proprietary Zionism. Moreover,
within the framework of egalitarian Zionism, the historical ties constitute a basis just
for determining the geographical site for the realization of the universal and a-historical
right to self-determination. They do not constitute a basis for the Jews’ proprietary
rights over the whole Land of Israel.
As for the persecutions of the Jews: they serve within egalitarian Zionism as the basis
for the realization of Jewish self-determination in the Land of Israel despite the fact that
Arabs were already living there. They are interpreted as a source for a necessity which
justified – or at least can serve as an excuse for – the establishment of a Jewish colony in
Palestine. As such, they set the limits to the price the Arabs have been forced to pay for
the realization of Zionism, namely, giving up territories which they inhabited and over
which they could have had exclusive control. The necessity which these persecutions
created is part of the justification for the realization of the Jewish right to self-
determination in Palestine. These persecutions, which the Jews suffered over the centu-
ries, did not end despite their emancipation in the nineteenth century, and culminated in
the Holocaust. However, the urgent necessity that these persecutions created by the
1930s and 1940s, gradually diminished by the late 1940s with the establishment of the
State of Israel, and June 1967, when the state achieved a stunning victory in the Six-Day
War. The expansion of Jewish settlement in the Land of Israel after that year, and
beyond the borders determined between 1949 and 1967, cannot be justified in the absence
of such extensive persecution of the Jews.
By perceiving the historical connection between the Jews and the Land of Israel as the
basis only for determining the geographical site for the realization of the Jews’ universal
480 Chaim Gans
right to self-determination within the Land of Israel, and not as a basis for their propri-
etary rights over the Land of Israel as a whole, the egalitarian conception of Zionism
avoids the potentially disastrous moral implications entailed by the proprietary concep-
tion of Zionism. By perceiving the persecution of the Jews as the basis for the realization
of Jewish self-determination in the Land of Israel despite the fact that Arabs were already
living there, egalitarian Zionism sets limits, as I have just explained, to the price the
Arabs have been forced to pay.
However, the core of egalitarian Zionism consists in its interpretation of the right to
self-determination. According to its egalitarian interpretation, this right should be
viewed as consisting of self-government and cultural preservation rights that should be
granted equally to all homeland groups within the states dominating their homelands. It
is only when equality itself requires differences in rights allocated to homeland groups as
a result of relevant non-normative differences between them (such as their size, or their
needs), that such different rights should be granted. Equality, as we know, does not
mean equal arithmetic division of goods but rather a division which demonstrates equal
concern and respect for the parties involved. Granting equal child benefits to families
means granting more benefits to families with many children than to families with few
children. Similarly, in a state in which there are two homeland nations, if one of them
has many members while the other is smaller, it is fitting that the larger group enjoy
more resources for educating its younger generation, more massive presence in the insti-
tutions of civil society, politics and the economy of the state, more of a presence in the
public sphere, and larger representation in the symbols of the state. Yet, according to the
egalitarian conception, there is no justification for the group with a larger number of
members – as supporters of hierarchical Zionism think – having ‘a right to a monopoly
over all the public and symbolic space of the state’ (emphasis added).21
As we know, it is justified not to distribute goods in arithmetically equal portions not
only because of differences in size among the relevant groups, but because of differences
in needs that justify such deviations. Equality in distribution of medicines does not mean
that an equal amount of medicines is distributed among the ill and the healthy, but
rather the prioritizing of ill people who need medicines over healthy individuals who do
not require them. On Indian reservations in North America, various special privileges
are granted to Native Americans over other citizens of these states owing to the needs of
the former for the special protection of their cultural interests on their reservations.
Perhaps the Jewish right to self-determination in the Land of Israel also requires such
protection. I believe that the Jewish right to self-determination in the Land of Israel does
indeed require such protection owing to the history of the Jewish–Arab conflict as well
as due to the fact that the Jews are a small minority in the Middle East. However, one
must be aware that justifications such as these for deviations from the arithmetically
equal distribution of rights and goods must be limited to those areas to which these spe-
cial needs apply. In the case of the Jews in Palestine, they only apply to the spheres of
security and demography, and do not comprise all other issues. Moreover, the priorities,
special rights and other means which are granted must be constrained by the require-
ments of human rights. For example, preserving the Jewish demographic majority in
Israel by prohibiting Palestinian family unification would be unacceptable, because it
violates Article 1 of the International Convention on the Elimination of All Forms of
21
See Gavison, ‘The Jewish State’ (n 17) 28.
Racial Discrimination.22 According to this Article, the term ‘racial discrimination’

applies to
any distinction, exclusion, restriction or preference based on race . . . or national or ethnic
origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental freedoms (emphasis added).23
III. THE POST-ZIONIST CRITIQUE
A. Jewish Self-Determination and Equality
When the post-Zionist writers argue that Israel’s Jewishness conflicts with its claim to
being a democratic state, they do not mean to argue that the principle of majority rule is
being violated in Israel, or that its citizens have not been granted rights such as the right to
vote or to be elected, the right to assembly, or the right to free speech. What they do mean
to say is that in the case of the Arab citizens of Israel, these rights have to a great extent
been emasculated, while Jewish citizens enjoy immunity from any Arab intervention in
their pursuit of their interests as Jews. The Arabs in Israel have the right to vote and to be
elected, but they are constitutionally prevented from advancing their collective interests as
Arabs, since they cannot vote and be elected for the purpose of promoting their group
interests as a homeland ethno-cultural group in Israel. Only the Jews in Israel have this
right.24 The alleged conflict between the Jewishness of the state and democracy thus refers
to the unequal distribution of political power between Jews and Arabs.
This critique, if perceived as a critique of mainstream Zionism, is simultaneously too
feeble and too strong with regard to this kind of Zionism. It is too weak to the extent
that it is targeted at the proprietary version of mainstream Zionism. Yet, it is too strong
in relation to the hierarchical conception of the right to self-determination.
The post-Zionist critique is too feeble in relation to proprietary Zionism, since this
Zionism condemns Israel not only to inequality between its Jewish and Arab citizens,
but also condemns it to the perpetual violation of the human rights of its Arab citizens.
In his book The Law of Peoples, John Rawls distinguishes among various types of peo-
ples regarding their moral perfection. At the top of the ladder, he positions ‘liberal’ peo-
ples – those who maintain democracy and equality among their members. After them, he
ranks peoples that he calls ‘decent’ – the type that does not maintain democracy and
equality but instead has a hierarchy of rights pertaining to different groups and commu-
nities. However, these peoples at least protect the human rights of those under their rule.
Rawls’s third category, which is important for our discussion, is that of ‘outlaw’ states
– those states that threaten peace by attempting to expand their spheres of influence and
by their violation of the basic human rights of the people inhabiting their territories.25
22
International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21
December 1965, entered into force 4 January 1969) 660 UNTS 195.
23
For further discussion, see C Gans, ‘Individual’s Interest in the Preservation of Their Culture: Its Meaning,
Justification and Implications’ (2007) 1 Journal of Law and Ethics of Human Rights 6.
24
This is especially due to the Basic Law: The Knesset, s 7A. This section allows the disqualification of
political parties that have a racist platform and of political parties that deny Israel’s right to exist as the state
of the Jewish people. This section of the law has been amended over the years and today requires the disquali-
fication of parties which deny Israel’s right to exist as a Jewish and democratic state.
25
J Rawls, The Law of Peoples (Cambridge, Harvard University Press, 1999) 23–25, 63–66, 80–81.
482 Chaim Gans
If what I said above about the role played by proprietary Zionism in Israeli politics is
correct, Israel should not only be categorised as a country that is neither liberal nor
egalitarian, but as a state that is not even ‘decent’. If the theory underlying Israeli politics
is historical–proprietary Zionism – and in view of the settlement policy, there is no other
way to interpret the theory underlying current Israeli politics – it seems that Rawls’s
third category, not necessarily the second, is a more apt characterization of present-day
Israel. To make do with the post-Zionist critique that there is a contradiction between
Israel’s Jewishness and its democratic nature in a way that turns it into a non-egalitarian
society is to voice too feeble a claim and to miss criticizing what most needs to be
criticised.
Conversely, if the post-Zionist critique is aimed at the hierarchical interpretation of
Zionism, the type that relies on the hegemonic conception of self-determination, this
critique is exaggerated. Although its premises are well-founded, the practical conclusion
which the post-Zionist writers draw from these premises does not follow. Israel, accord-
ing to the conception held by Ruth Gavison, Amnon Rubinstein, Alex Jacobson, and
others, is by their own admission a non-egalitarian, hierarchical society, a country that
‘grants important advantages to the nation with which the state is identified and places a
great burden on citizens of the state who are not members of this nationality’.26 In this
chapter I have clarified why such inequality cannot be justified. However, the practical
conclusion that the post-Zionist writers draw from this critique, namely, that Jewish
self-determination in Israel should be annulled, does not follow from the condition
of inequality implied by the hegemonic conception of self-determination. What does
follow is that the hegemonic conception of self-determination must be replaced by its
egalitarian conception. According to this conception, since both Jews and Arabs in Israel
are homeland groups, they should both, as a matter of principle, be granted hegemony
compared to communities of immigrants but not compared to each other. On the other
hand, for circumstantial considerations the Land of Israel must be divided between Jews
and Arabs into two states, one that is mainly Jewish while the other is principally
Palestinian. Jewish dominance in one of these states, and Arab dominance in the other,
would be justified because of numbers and special needs, which are equality-based
reasons for inequality, and not because there is something about the principle of self-
determination which makes it hierarchical as a matter of principle.
B. Jewish Self-Determination and Freedom
In actuality, and despite the opposite impression they create, post-Zionist writers are
aware of the fact that the inequality forged by the hegemonic interpretation of the right
to self-determination does not entail the need to totally remove the Jewish presence from
the constitutional level of the state. In response to the possibility of a bi-national state,
Uri Ram says that one should not
confuse between the current situation, in which there might be a justification for demanding
national equality, and the ideal state of affairs from the post-Zionist perspective, in which nation-
ality will have no constitutional or statist standing. It may be that at the present state of affairs, in
a country that is bi-national by the composition of its population, bi-national governance would
26
Gavison, ‘The Jewish State’ (n 17) 26.
be more democratic than mono-national governance. Yet, there is no need to promote a solution
that does none other than double by two the mono-nationality and in fact perpetuate the suppres-
sive nationalist structures of control each by itself and in contrast to the other.27
In other words, the problem of inequality is a problem that could be solved by grant-
ing constitutional status not only to the Jewish group but also to the Arab. Nevertheless,
according to Ram, this still leaves the problem of freedom. He believes that ethno-
cultural governmental structures are ‘oppressive structures’ in relation to the individuals
under their rule, even if they maintain equality between different national groups.
The fact that Ram is concerned with impeding freedom rather than equality is under-
scored in many of the statements he makes in his discussion of the Israeli Supreme Court
(sitting as the High Court of Justice) decision Ornan v Minister of Interior.28 In this case,
the Court considered a petition by many Israeli celebrities to instruct the state to register
them as Israeli under the rubric Nationality on their identity cards rather than as Jewish.
Ram describes this petition as
expressing the post-Zionist conception that seeks to replace ethnic nationality (the Eastern-
European and German models), according to which Israel is the state of the Jewish people,
with civic nationality (the French–American model), according to which Israel is a state of its
citizens (and inhabitants) and only theirs.29
When this petition seeks ‘to ground the principle of nationality on the principle of
citizenship’, says Ram, ‘it is endeavoring to apply to national identification the basic prin-
ciples of democracy – personal choice (and not state coercion) and recognition of a range
of alternatives (and not coercion of given possibilities)’.30 That is, the problem in the
Jewishness of Israel is not simply in its Jewishness, but in this Jewishness being the realiza-
tion of ethno-cultural nationalism, a nationalism that will remain a problem even if Israel
would cease to be mono-ethno-nationalist and would become bi-ethno-nationalist. ‘The
bi-national principle sanctifies nationalism instead of proposing a worthy alternative to it’
– Ram says.31 ‘From the democratic point of view’, he adds, ‘it is fitting for a state to repre-
sent analytically abstract citizens rather than cultural communities’.32
But is such a state possible? And will such a state actually serve the freedom of its citi-
zens? These questions took centre stage in the debate between the major political theories
of neutralist liberalism that aroused great interest from the 1970s onwards, in particular
John Rawls’ theory of justice, the non-liberal responses to neutralist liberalism called
communitarianism, as well as the intra-liberal responses to them, namely, those that have
been called liberal multiculturalism and liberal nationalism. This debate is an elaborate
replica of the famous clash between enlightenment and anti-enlightenment thinkers that
preceded it by 200 years. However, the main novelty in the current debate is that
arguments against neutralist liberalism are being invoked not only by the opponents
of liberalism, but also by writers within the liberal camp: liberal multiculturalists and
liberal nationalists. Their arguments – expressed in thousands of articles and hundreds of
books that have appeared since the 1980s – are scarcely mentioned by Ram. Yet, these
27
Ram, The Time of the ‘Post’ (n 3) 191.
28
HCJ 11286/03 Ornan v the Minister of Interior (20 September 2004), Nevo Legal Database (by subscrip-
tion) (in Hebrew).
29
Ram, The Time of the ‘Post’ (n 3) 196.
30
ibid 200.
31
ibid 91.
32
ibid.
484 Chaim Gans
arguments justify negative replies to the two questions at the beginning of this paragraph.
Even if ‘it is fitting for a state to represent analytically abstract citizens rather than cul-
tural communities’, such a state is humanly not really feasible. The alternatives that one
might consider as approximating it mostly would not serve human freedom, at least no
more than states that serve citizens belonging to cultural communities.
A number of writers have already noted that states cannot be neutral with respect to
their support of culture in the same way as they can perhaps be neutral with respect to
religion. The reason is that it is impossible to avoid giving preference to a particular
language or particular languages spoken by their citizens. Preferring certain languages
over others is an unavoidable practical necessity. As a result, in a multi-ethnic and
multinational state, the state cannot be neutral with regard to its citizens’ interests in
adhering to their original languages and cultures. In actual practice, the state’s choice of
one particular language over other languages means demonstrating preference for the
cultural group that speaks that language. The fact that their language has been chosen
makes it possible for members of that group to adhere to their culture and to sustain it
for generations, while the same possibilities are denied to other citizens.
On the practical level, there is no way out of this predicament. The ideal that states
should be neutral in the cultural sense is therefore necessarily unattainable, and it has
not and cannot be implemented by any state. In this context, Will Kymlicka noted the
language policy implemented by the United States, which is ‘the allegedly prototypically
“neutral” state’. In the United States, there is a legal requirement for children to learn
English in schools. Knowledge of English is a condition imposed on immigrants for
receiving citizenship, and it is also a condition for employment in government. Kymlicka
further noted that the borders of the states in the United States and the dates on which
new states joined the Union were intentionally determined in a manner that would
ensure an English-speaking majority in these states. According to him, these require-
ments and decisions ‘have played a pivotal role in determining which ethno-linguist
groups prosper and which ones diminish’.33 As for France, the situation is even more
striking: the aspiration to preserve and promote French culture is manifestly a part of
the political agenda of this civic nation-state; it is an aspiration that guides its political
and budgetary decisions. France is a country that enacts regulations to protect its sing-
ers’ chansons by placing quotas on the broadcasting of foreign music by its radio sta-
tions. Similarly, it protects its film-makers by providing them with massive subsidies.
France does this for cultural reasons, not economic reasons. France could relinquish this
cultural protectionism, but it could not refrain from adopting a language, or a small
number of languages as its language/s. This means that cultural neutrality is a possibility
that countries cannot really opt for.
Moreover, states whose citizens are divested of their culture and which allow human
freedom to be realised in a manner disconnected from actual concrete cultures are not
only impossible – they are also undesirable. The closest approximation of the ideal of
the cultural neutrality of states that one might realistically think of is the adoption of a
single language and culture by all the countries in the world. If all humankind had one
common culture, inequality among people belonging to different cultures within the
33
W Kymlicka, ‘Western Political Theory and Ethnic Relations in Eastern Europe’ in W Kymlicka and
M Opalski (eds), Can Liberal Pluralism be Exported?: Western Political Theory and Ethnic Relations in Eastern
Europe (Oxford, Oxford University Press, 2001) 13, 17.
framework of the various existing states would not arise, and people would then not be
limited culturally from moving from one place to another the world over. Yet, obviously
such a reality, which in certain respects would enhance the freedom of individuals,
would diminish it in other respects: first and foremost – relative to the prevailing state of
affairs today – it would reduce the range of options open to people regarding the choice
of ways of life and lifestyles. Yet, beyond that, creating a reality in which there is only
one culture and language in the world would block peoples’ freedom to live within a
framework of cultures with which they identify and within which they have a sense of
historical belonging. The interest that masses of people everywhere currently have to
cling to their original culture as well as their interest in maintaining it for generations,
should they wish to do so, is for these people an interest at least as important as the
interest of people belonging to a particular gender to continue to belong to that gender,
if they wish to do so, or the interest of people with this or that sexual orientation to con-
tinue living according to it, should they wish to do so. These are pivotal human com
ponents of identity. For those persons for whom these components of identity are
important, politics and law must maintain political and legal realities that allow them to
continue to cling to these components of their identity. The existence of political and
legal realities that do not allow people to adhere to identity and that have decisive influ-
ence on their welfare means the oppression of those people, in effect, a violation of their
freedom, dignity, and their welfare. Just as no political or legal reality should be main-
tained that threatens the ability of people whose sexual orientation is homosexual to
realise this orientation, there should be no political or legal reality that threatens the
ability of people whose cultural identity is Jewish national to realise that identity.
Relinquishing Jewish self-rule in the Land of Israel – and for reasons I listed earlier, even
relinquishing Jewish majority – will pose a threat to the ability of all those masses of
Jews who are interested in preserving their national identity to realise this interest. It
seems to me, therefore, that not only would the post-Zionist proposal to waive this con-
stitutional protection not promote freedom, but it would even critically violate the free-
dom of many Jews. Of course, this is not to be understood as saying that any legal means
is appropriate for advancing the majoritarian aim. In the previous section, I mentioned
several means which to my mind are inappropriate. Moreover, I am convinced that
refusing to register citizens who wish to be listed as Israelis as their nationality and not
Jewish is indeed an improper legal means to preserving Jewish identity on the political
and constitutional level in Israel. Such means harms freedom. But as I have mentioned a
number of times, one must not confuse the issue of the justness of the goal of maintain-
ing Jewish self-determination in Israel with the issue of the justness of one means or
another for promoting this goal. The justness of the goal does not mean that all means
proposed to advance it are just, and the impermissibility of this or that means for the
advancement of a given goal does not mean that the goal is unjustified.
I therefore return to the thesis I voiced at the beginning of current part of this chapter.
The post-Zionist critique of Zionism is simultaneously too feeble and too strong. It is
too weak to the extent that it is targeted at the proprietary version of mainstream
Zionism, whereas it is too strong in relation to the interpretation of Zionism by main-
stream academics and professionals, namely, the one based on the hierarchical concep-
tion of the right to self-determination. Zionism need not be abandoned because of the
post-Zionist critique because there is a version of Zionism, its egalitarian version, which
cannot be subjected to the post-Zionist criticisms.
32
A Jewish Nation-State: A Discussion in
Light of the Family Reunification Case
AVIAD BAKSHI AND GIDEON SAPIR
I. INTRODUCTION
T
HE ISRAELI DECLARATION of Independence defines Israel as a ‘Jewish
state’.1 The Israeli Supreme Court determined that the Jewishness of the state ‘is a
constitutional fact which lies at the base of the activity of the state authorities’.2
Israeli law has internalised this basic constitutional element in many areas. For exam-
ple, Israel’s immigration laws grant the right to nearly every Jew to become its citizen
almost immediately.3 For over 50 years the State of Israel customarily allotted land for
settlement intended solely for Jews.4 Israel anchors commemoration of the Holocaust in
legislation,5 cares for reparations for its victims6 and for bringing Nazis to trial for their
crimes,7 and applies the Penal Law of the State of Israel to crimes ‘against a Jew for
being a Jew,’ even if perpetrated outside its territory and against people who are not citi-
zens of Israel.8
Over the course of years, the Israeli Supreme Court invalidated several arrangements of
this type. In the past decades, the Court intensified that trend,9 while at the same time re-
emphasizing that Israel’s very definition as a Jewish state is legitimate from the democratic
1
2
EA 1/65 Yardor v Chairman of the Central Elections Committee to the Sixth Knesset 19(3) PD 365 [1965]
(in Hebrew).
3
Law of Return, 5710-1950, s 1 (hereinafter: Law of Return); The Nationality Law, 5712-1952, s 2.
4
HCJ 114/78 Burkan v Minister of Finance 32(2) PD 800 [1978] (in Hebrew). For academic review of this
policy, see, eg Y Benkler, ‘Non-discrimination in Housing: Content, Scope, and Assistance’ (1991) 17 Tel-Aviv
University Law Review 131 (in Hebrew).
5
Martyrs’ and Heroes’ Commemoration Law – Yad Vashem, 5713-1953; Martyrs’ and Heroes’ Remembrance
Day Law, 5719-1959; Denial of Holocaust (Prohibition) Law, 5746-1986; State Education Law (Amendment No
5), 5760-2000, s 2(4).
6
Nazi Persecution Disabled Persons Law, 5717-1957; Victims of Holocaust Property Law (Restoration to
Successors and Dedication to Support and Perpetuation), 5765-2005.
7
Nazis and Nazi Collaborators (Punishment) Law, 5710-1950; CC (Jm) 40/61 Attorney General v Eichmann
27 PM 169 [1961] (in Hebrew); CrimA 336/61 Eichmann v Attorney General 17 PD 2033 [1962] (in Hebrew);
CrimA 347/88 Demjanjuk v State of Israel 47(4) PD 221 [1988] (in Hebrew).
8
Penal Law, 5737-1977, s 13(b)(2).
9
Thus the Court gradually eroded the senior status of Hebrew versus Arabic and other languages. See
CA 294/91 Jerusalem Community Burial Society v Kestenbaum 46(2) PD 464 [1992] (in Hebrew); CA 105/92
Reem Engineers Contractors v Nazareth-Illit 47(5) PD 189 [1993] (in Hebrew); CA 12/99 Jamal v Sabek 53(2)
PD 128 [1999] (in Hebrew); HCJ 4112/99 Adalah v Tel-Aviv Municipality 56(5) PD 393 [2002] (in Hebrew).
488 Aviad Bakshi and Gideon Sapir
point of view.10 This position of the Court is attacked from two opposing directions. There
are those who argue that the Court’s policy turns the Jewishness of Israel into a defunct
symbol.11 In contrast, others claim that the Court’s steadfastly clinging to the definition of
the State of Israel as a Jewish national state, as poor as its content may be, conflicts with
basic liberal foundations.12
This chapter has two aims. The first is to reinforce the criticism against the trend
toward limiting the components of national identity in Israel. We shall argue, basing
ourselves on liberal premises, that the Jews have the human right to live in their own
nation-state. Recognition of the right for self-determination in a nation-state does not
make it immune from limitation. Like any other human right, this one too is not abso-
lute, and on certain issues it must recede in the light of other rights or reach a compro-
mise with them. Yet, from the moment we recognise the constitutional status of the
right, we must ensure that it will not remain an empty slogan.
Our second aim is to examine what is the proper weight to be given to the afore
mentioned right within the framework of the Israeli immigration policy. We shall dis-
cuss the Citizenship and Entry into Israel Law (Temporary Provision)13 (hereinafter:
Temporary Provision Law) that limits the entrance to Israel and the acquisition of status
by residents of the Palestinian Authority, and two Supreme Court rulings that examined
the constitutionality of this Law.
Two short clarifications are called for:
1. The concept ‘Jewish’ in the term ‘Jewish state’ may be interpreted in two ways: reli-
gious and national. There are those who feel that the State of Israel must act not only
to effectuate the national yearnings of its Jewish citizens but also to realise the objec-
tives of the Jewish religion.14 In contrast, there are some who argue that the Jewish
nation has an independent existence separate from the Jewish religion and that the
State of Israel as a Jewish state is obliged only to the former.15 This chapter does not
enter the thicket of this debate and will focus solely on the national aspect, on the
assumption that it is possible to differentiate between the two meanings. Thus, our
discussion will focus on questions of relations between a state and a nation and not
issues of religion and state.
10
See, eg EA 11280/02 Central Elections Committee to the Sixteenth Knesset v Tibi 57(4) PD 1 [2003]
(in Hebrew); EA 2/88 Ben-Shalom v Central Elections Committee to the Twelfth Knesset 42(4) PD 749 [1988]
(in Hebrew); HCJ 6698/95 Ka’adan v Israel Land Administration 54(1) PD 258 [2000] (in Hebrew); Kestenbaum
(n 9).
11
See, eg U Struzman, ‘High Court of Justice: The Concept, the Jewish Agency, and the Settlement Katzir’
(2000) 140 Ha-Umma 14 (in Hebrew); E Shochetman, ‘The Legality and Constitutionality of Jewish Settlement
in Erez Israel’ (2001) 6 Law and Government 109 (in Hebrew); Y Cohen, Who’s Afraid of a Jewish State (Tel-
Aviv, The Israel Bar-Publishing House, 2001) (in Hebrew).
12
See, eg A Bisharah, ‘Between People and Nation: Thoughts on Nationality’ (1995) 6 Theory and Criticism
19 (in Hebrew); Y Peled, ‘Ethnic Democracy and the Legal Construction of Citizenship: Arab Citizens of the
Jewish State’ (1992) 86 American Political Science Review 432; O Yiftachel, ‘Ethnocracy: The Politics of
Judaizing Israel/Palestine’ (1999) 6 Constellations 364; B Kimmerling, ‘Religion, Nationalism and Democracy
in Israel’ (1999) 6 Constellations 339; A Shlaim, Collusion Across the Jordan: King Abdullah, the Zionist
Movement, and the Partition of Palestine (New York, Columbia University Press,1988).
13
Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, SH No 1901, p 544.
14
See, eg Rabbi YI Herzog, A Constitution for Israel According to Tora (Jerusalem, Mosad HaRav Kook,
1989) (in Hebrew).
15
See, eg M Kremnitzer, ‘The Image of the State of Israel as a Jewish and Democratic State’ in A Ravitsky
and Y Stern (eds), About the Jewishness of a Democratic State (Jerusalem, The Israel Democracy Institute,
2007) 395 )in Hebrew).
A Jewish Nation-State 489
2. The concept ‘nation’ in the expression ‘nation-state’ can also be interpreted in two
ways: politically and ethno-culturally.16 Political nationalism is defined solely in terms
of citizenship. In contrast, ethno-cultural nationalism is based on a common culture,
on a narrative of common ethnic origin, or on another component of identity that is
not dependent upon common citizenship. Our discussion will focus on the second
meaning of the concept, that is, on nationalism in the ethno-cultural sense.
II. A JEWISH NATIONAL STATE AS A HUMAN RIGHT
A. Justifications from the Right to Culture
In recent decades many liberal thinkers have begun to suggest liberal justifications for
the right to culture. The various proposals can be usefully divided into four main formu-
lations: Kymlicka holds that life within the framework of a certain culture serves as an
imperative condition for affecting the right to autonomy.17 Taylor feels that a person’s
right to preserve his specific culture derives from the right to dignity. In his opinion, a
person’s human need to be respected by his environment deserves recognition.18 In this
framework the uniqueness of each person, which is expressed through his culture, must
be honoured.19 Halbertal and Margalit are convinced that a person’s culture constitutes
a fundamental component in his self-identity, and therefore the right to culture is a
derivative of the right to identity.20 Finally, Gans feels that each person has the right to
act for the realization of significant dreams and considers a person’s cultural choices as
the effectuation of such a dream.21 In common with all the approaches described is the
conclusion that the right of human beings to live within the framework of their culture
should be recognised.
Does the right to culture draw in its wake a right to self-determination in a nation-state?
Two arguments are likely to lead to a negative conclusion. First, it can be claimed that
it is possible to realise the right to culture to a sufficient degree in sub-state community
16
See, eg C Gans, The Limits of Nationalism (Cambridge, Cambridge University Press, 2003) ch 1. Gans
calls the first type of nationalism ‘statist nationalism’ and the second, ‘cultural nationalism’. Since in the con-
tinuation of this chapter we shall also indicate justifications for a nation-state that do not rely on culture, we
prefer to use the term ‘ethno-cultural nationalism’, which is accepted in research into nationalism.
17
W Kymlicka, Liberalism, Community, and Culture (Oxford, Clarendon Press, 1989) ch 8; W Kymlicka,
Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Oxford University Press, 1995) ch 2.
For a similar view, see J Raz, ‘Multiculturalism: A Liberal Perspective’ in J Raz (ed), Ethics in the Public
Domain: Essays in the Morality of Law and Politics (Oxford, Clarendon Press, 1994) 155, 170.
18
C Taylor, ‘The Politics of Recognition’ in A Gutman (ed), Multiculturalism and ‘The Politics of Recognition’
(Mexico City, Fondo de Cultura Económica, 1992) 25.
19
Taylor ibid; C Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, Harvard
University Press, 1989) chs 1, 2; C Taylor, ‘Reply and Re-articulation’ in J Tully (ed), Philosophy in an Age of
Pluralism: The Philosophy of Charles Taylor in Question (Cambridge, Cambridge University Press, 1994) 213.
Of note is that Taylor already began to develop the idea of identifying culture with dignity of man in his early
teachings, even before the right to culture was formulated as such. See C Taylor, ‘What is Human Agency?’ in
T Mischel (ed), The Self: Psychological and Philosophical Issues (Lanham, Rowman & Littlefield Publishers,
1977) 103.
20
A Margalit and M Halbertal, ‘Liberalism and the Right to Culture’ (1994) 61 Social Research 491.
21
C Gans, A Just Zionism: On the Morality of the Jewish State (Oxford, Oxford University Press, 2008)
ch 3; Gans, The Limits of Nationalism (n 16) ch 2; C Gans, From Richard Wagner to the Palestinian Right
of Return (Tel-Aviv, Am Oved Publishers, 2006) ch 5 (in Hebrew); C Gans, ‘Nationalism and Immigration’ in
M Mautner, A Sagi and R Shamir (eds), Multiculturalism in a Democratic and Jewish State (Tel-Aviv, Ramot
Publishing House, 1998) 341, 346–48 (in Hebrew).
frameworks, and if so, there is no justification to demand a nation-state. Second, effectuat-

ing the right to culture of a national group within the framework of a nation-state might
entail infringing on the right of cultural minorities in that state, including those minorities’
right to culture, so its realization should be limited only to sub-state frameworks. No won-
der then that a large part of the liberal thinkers who support the right to culture feel it
should be realised as part of a multicultural state and not a nation-state.22 Yet, other liberal
writers, such as Michael Walzer,23 Charles Taylor,24 and David Miller,25 feel that realizing
the right to culture requires recognition of the right to a nation-state.
The selection of a nation-state as a fitting framework for realizing the right to culture
can be based on the claim that a nation-state grants the national culture protection to an
extent and power that cannot be compared to the protection that can be given by a
multicultural state. For example, the efforts of a cultural group to preserve its culture
and bequeath it to the coming generations, as part of a multicultural state, are liable to
fail if the environs of that culture will be inundated by members of a foreign culture.
Conversely, a nation-state enables the cultural group to operate an immigration policy
that will coincide with the interest in preserving the national culture.
Many cultures include, among other things, common values. A certain culture might
prefer personal freedom over solidarity and distributive justice. Another might stand
firm for compromises and turning the other cheek to its adversaries. The values can be
realised within a framework of internal policy (in the first instance) and external policy
(in the second) that would be adopted in a nation-state. Members of the relevant cul-
tural group would, indeed, be able to attempt to fashion the policy of the regime in
accordance with their national values in a multicultural state as well, but the chances for
their success are conditional upon their relative weight in the state and even if they gain
the majority, they will be forced to compromise with the value system of other culture
groups.
22
See, eg Kymlicka, Liberalism (n 17) chs 7, 9; Kymlicka, Multicultural Citizenship (n 17) chs 4, 9; J Raz,
‘Multiculturalism’(n 17) chs 6, 8; SR Perry, ‘Immigration, Justice and Culture’ in WF Schwartz (ed), Justice in
Immigration (Cambridge, Cambridge University Press 1995) 94. It should be noted that in his later theory,
Kymlicka presents an approach that considers the existence of nation-states as a legitimate arrangement. As
opposed to Taylor and Walzer, Kymlicka does not feel that nation-states are necessary for the purpose of pro-
tecting the right to culture, but he no longer sees them as a contradiction to the idea of the right to culture. In
any event Kymlicka does not provide a detailed explanation for his new approach and does not even tena-
ciously cling to it. For example in his book, W Kymlicka, Multicultural Odysseys (Oxford, Oxford University
Press, 2007), Kymlicka does not indeed have recourse to his opposition to a nation-state but he also writes that
this is not the optimal regime.
23
See M Walzer, ‘Comment’ in A Gutmann (ed), Multiculturalism: Examining the Politics of Recognition
(Princeton, Princeton University Press, 1994) 99; M Walzer, ‘The National Question Revisited’ in Nation and
Universe: The Tanner Lectures on Human Values (Salt Lake City, University of Utah Press, 1990) 507, 532;
M Walzer, ‘The Politics of Difference: Statehood and Toleration in a Multicultural World’ in R McKim and
J McMahan (eds), The Morality of Nationalism (Oxford, Oxford University Press, 1997) 245; for Walzer’s
earlier support of a nation-state, before the right to culture crystallized, see M Walzer, ‘The Moral Standing of
States: A Response to Four Critics’ (1980) 9 Philosophy and Public Affairs 209.
24
C Taylor, ‘Why Do Nations Have to Become States?’ in G Laforest (ed), Reconciling the Solitudes: Essays
on Canadian Federalism and Nationalism (Montreal, McGill-Queen’s University Press, 1993) 40; C Taylor,
‘Nationalism and Modernity’ in R McKim and J McMahan (eds), The Morality of Nationalism (Oxford,
Oxford University Press, 1997) 31; C Taylor, ‘Cross-Purposes: The Liberal-Communitarian Debate’ in
NL Rosenblum (ed), Liberalism and the Moral Life (Cambridge, Harvard University Press, 1989) 159. The
statements are based on the principles delineated by Taylor in his main writings. See Taylor, ‘The Politics of
Recognition’ (n 18); C Taylor, ‘Sources of the Self ’ (n 19) 196–203.
25
DL Miller, On Nationality (Oxford, Clarendon Press, 1995) ch 2.
Another area in which a nation-state has an advantage over a multicultural state, con-
cerns the attitude toward the cultural–national dispersion. A nation-state can assign
resources and operate in the international area for the protection of members of the
cultural–national dispersion and to foster the culture among them. In contrast, it is
doubtful whether a multicultural state can shoulder the task of assisting the dispersion
of each one of the cultural groups belonging to it. In addition, the nation-state, by its
very existence, constitutes a focal point that consolidates around it the consciousness of
the members of the national culture the world over.26 The Israeli instance serves as an
excellent example of this last point.
As Chaim Gans argues, the intense protection to a culture that a nation-state can
grant is particularly vital to ensure the bequeathing of the culture from one generation to
the next.27 But from the few examples we gave above, we see that the gap between the
degree of protection possible within the framework of a nation-state and that which can
be provided by a multinational state is no less significant from the point of view of the
members of a given generation and in relation to their own lives.
The need for realizing the right to culture in a nation-state becomes especially vital in
the modern period. An interesting phenomenon that characterises the writing on the right
to culture is the use of examples from separatist and marginal groups. For example,
Kymlicka bases himself on the studies by Schwartz about the failure of integration of
Indians into nineteenth-century United States,28 and he frequently refers to native cultures
in Canada29 or Australia.30 Halbertal and Margalit inject into the liberal discussion the
ultra-Orthodox enclaves in Jerusalem.31 Others focus on the Amish.32 It seems that these
writers believe that the right to culture is necessary today only for members of separatist
groups, since other cultures are in various stages of waning and assimilation at the end of
which the members of these cultures will adapt a universal, eclectic culture for them-
selves. In other words, according to this approach, most citizens of the West today have
no need for the protection of the right to culture, and in any event are not eligible for it.
Our take on this issue is different. The difficulty prevailing today in maintaining cul-
tural uniqueness does not overshadow the natural human need for protection of this
uniqueness and its development, even for members of those cultural groups who chose
or were forced to somewhat attenuate the distinct characteristics of their culture.33 At
least part of the justifications for the right to culture, noted briefly above, is also relevant
in the reality of Western life. Culture is still a characteristic of identity even among
groups that are not separatist (Margalit and Halbertal), holding on to it is especially
significant for those who have chosen it (Taylor), and preserving it serves for many
26
See, eg the articles in M Fludernik (ed), Diaspora and Multiculturalism: Common Traditions and New
Developments (Amsterdam, New York, Rodopi, 2003).
27
See Gans, nn 16 and 21 above.
28
Kymlicka, Liberalism (n 17) ch 8.
29
ibid.
30
Kymlicka, Multicultural Citizenship (n 17) ch 2.
31
Margalit and Halbertal (n 20).
32
J Spinner, The Boundaries of Citizenship: Race, Ethnicity, and Nationality in the Liberal State (Baltimore,
The Johns Hopkins University Press, 1994) ch 5.
33
Ruth Gavison presents a specific argument that supports his general claim. Gavison argues that the Jewish
nation-state is vital precisely for secular Jews whose Jewish identity is not protected by religious foundations.
See R Gavison, ‘The Jews’ Right To Statehood: A Defense’ (2003) 15 Azure 70, 76–77; R Gavison, ‘Thoughts
About the Significance and Implications of “Jewish” in the Expression “Jewish and Democratic State”’ in
Ravitsky and Stern (n 15) 107, 152 (in Hebrew).
people as an aspiration and a dream (Gans). The combination of these two facts, the
importance of the protection of distinctive characteristics of culture and the difficulty in
modern life to rely, for the purpose of preserving culture, on the strength of the veteran
cultural frameworks, requires and justifies strong, mainly institutionalised, protection of
the right to culture. A nation-state is capable of providing the national culture with that
same forceful protection. In an era in which voluntary group frameworks find it difficult
to stand in the breach, state protection becomes particularly vital.
The great challenge the liberal writers are taking upon themselves is to translate the
human need for cultural uniqueness into liberal terms and to propose a mechanism that
will allow for this distinctiveness to operate in harmony with other liberal values. Even
if we have succeeded in demonstrating that a nation-state is necessary for the realization
of the right to culture, there will be a need to protect, within its framework, the rights of
the members of minority culture groups who live in this state, including their right to
culture. As noted above, there are those who feel that such a combination is not possible
in a nation-state. We think differently. In this context, one must discuss separately first
generation human rights and the collective right of the minority to culture. Certain prac-
tices within the framework of the nation-state are likely to stand in conflict with this
or that individual right. Tension between rights, however, is a regular reality in the
discourse of constitutional rights, which developed various balancing mechanisms for
dealing with it. As with our issue, too, there will be a need to strike a balance. In each
instance we will have to examine whether the practice is necessary to effectuate the right
to culture of the majority, the degree to which the practice infringes on the rights of the
minority citizens, and the various possible alternatives for realizing the right. At the end
of the day, certain practices will be disqualified or limited and others approved.
The nation-state will be required to also honour the minority’s right to culture. Within
this framework there will be a place to consider the granting of partial or total auto
nomy to the minority group for various issues related to maintaining their culture.
Indeed, the very definition of a country as a nation-state means that the culture of the
minority groups will not enjoy an equal status with that of the majority, a problem that
would not arise in a multicultural state. Yet, it may be that even from the point of view
of the minority groups in a given nation-state, the value inherent in the existence of their
nation-state, which awaits them somewhere, is greater than the damage involved in
defining their country of citizenship as the state of a different nation, as long as the latter
honours their individual rights and their sub-state right to culture.
Chaim Gans claims that the argument we offered fails in the light of the fact that to
date there are some cultural groups in the world that do not receive the right to self-
determination in their nation-state. This lack of equality obliges us, in his opinion, to
relinquish the idea of a nation-state also on the part of the cultures that benefit, or might
benefit, from realization of the right.34 We however agree with Taylor, who argues that
the inequality noted does not justify renouncing the right to a national state of groups
who have succeeded in realizing it, and this derives from two main reasons.35 First, any
social rectification takes place gradually, and one should not expect it to be effectuated
all at once. Second, the fact that one group does not receive full protection of its rights
does not justify detracting from the protection granted to another group.36
34
Gans (n 16) 74–78.
35
Taylor, ‘Why Do Nations’ (n 24).
36
For Gans’s response to this argument, see Gans (n 16).
B. Other Justifications
Yael Tamir37 and David Miller38 support the nation-state because of its potential contri-
bution to the protection of civil and political rights, such as rights concerning welfare
and the ensuring of personal security. Their argument is based on two premises. The
first is that strong solidarity is required among all citizens and between them and the
state in order to ensure a satisfactory degree of protection of first-generation human
rights (civil and political) and second-generation rights (social). Only that way will citi-
zens honour the rights of each other, agree to relinquish economic resources for the
benefit of their needy fellowmen, and take upon themselves the risks involved in defend-
ing the state and its borders. The second argument is that a particularly high level of
solidarity is usually found among members of an ethno-cultural group. Basing them-
selves on these two premises, Tamir and Miller (with slight differences between them
that are not significant for the current discussion) propose using the model of a nation-
state as a means for harnessing ethno-cultural solidarity for the purpose of strengthening
civil solidarity.
A few years ago, Amnon Rubinstein and Alex Yakobson published a book, Israel and
the Family of Nations.39 The book contains a comprehensive survey of countries, whose
immigration laws attest to their being nation-states. This survey is of great importance,
but the claim that ‘this is what everybody does’ cannot serve as a substitute for the need
for independent, normative justification for a model of a nation-state.40 Similar remarks
can be made about the argument, which Ruth Gavison uses extensively, to wit the right
to national self-determination was recognised in the law of nations following World
War I.41 This fact is relevant in the context of international relations and international
law, but it does not provide normative justification for a model of a nation-state.
C. Justification from the Right to Refrain from Persecution
Alongside general justifications for a nation-state, one may also present one more lim-
ited in scope, which strengthens the right of the Jewish people (and nations similar to it
with the relevant characteristics) to its own nation-state. The justification, which has a
number of versions, is based on the circumstances of the Jewish people as a nation that
underwent severe persecution and is even today the object of hatred.
In 1980, the Israeli writer AB Yehoshua published a book that describes the Holocaust
of the European Jews during World War II as a critical crossroads in Jewish history.42
To be sure, Jews had suffered severe persecution in many countries and in different peri-
ods. But Yehoshua feels that the Holocaust led to a watershed after which the Jews
could no longer allow themselves to exist without their own country. In light of this
Y Tamir, Liberal Nationalism (Princeton, Princeton University Press, 1993) ch 6.

37
Miller, (n 25) ch 3.
38
39
A Yakobson and A Rubinstein, Israel and the Family of Nations – The Jewish Nation-State and Human
Rights (Jerusalem, Schocken Publishing House, 2003) (in Hebrew).
40
See G Sapir, ‘Book Review – Yakobson and Rubinstein: Israel and the Family of Nations’ (2007) 11
Democratic Culture 237.
41
See, eg R Gavison, ‘Thoughts About the Significance’ (n 33) 107, 109 (in Hebrew).
42
AB Yehoshua, For Normality (Jerusalem, Schocken Publishing House, 1980) (in Hebrew).
initial premise, Yehoshua turns to discussing normative justification for the establish-
ment of a Jewish nation-state. Yehoshua rejects the moral validity of historical or reli-
gious justifications and turns to justification on the basis of what he calls ‘the right of
existential distress’.43 He argues that whoever is under severe threat is permitted to
defend himself, even on the account of legitimate interests of a third party as long as this
does not lead the third party to the same lack and threat from which he is suffering.
Yehoshua’s argument seeks to justify the immigration of Jews to the area in which the
State of Israel exists today. He uses the argument of the persecutions to justify the
nation-state post factum, but this claim is strong enough to base the right, to begin with,
of a persecuted people to found for itself a nation-state. Furthermore, it is incumbent
upon the family of nations to help it realise this right. Obviously a nation-state will rise
in a certain area and on account of certain people, an issue which will require a dis
cussion as to why precisely that area and its specific inhabitants are the ones who must
pay the price for the protection of the persecuted nation. But, as noted, the right of a
persecuted people creates an obligation in principle for humanity to ensure that the per-
secuted group will gain a safe haven.
III. A NATION-STATE VERSUS FAMILY REUNIFICATION
A. The Law and the Court Rulings
Israeli immigration law deals, inter alia, with the situation that is called in popular
jargon ‘family reunification’, in which a citizen seeks to bring into the country his/her
foreign spouse and grant that spouse citizenship. The citizenship law makes the nation-
alization process of the spouse easier and exempts him/her from most of the conditions
an ordinary seeker of naturalization is required to fulfill.44 In fact, the Interior Minister
approves these requests in the vast majority of cases.
After the Oslo Accords were signed between Israel and the PLO in 1993, a steep
increase occurred in the number of marriages between Palestinians who were residents
of the Territories and Arab citizens of Israel. Under these circumstances, the lenient pol-
icy for the approval of citizenship for spouses of Israelis led to a most significant increase
in the number of Palestinians who became citizens owing to reunification of families.
According to data from the Ministry of Justice, between 1994 and 2002, 130,000–140,000
Palestinians became naturalised Israeli citizens.45
In March 2002 the Interior Minister froze the graduated process for family reunifica-
tion of Israelis with Palestinian spouses. The declared motivation for the decision was
security, after a Palestinian who held an Israeli identity card, given to him as a result of
the process of his parents’ reunification, carried out a terror attack wounding many. In
May 2002 the policy was anchored in a Government Decision.46 A number of petitions
43
ibid 95–105.
44
Citizenship Law, 5712-1952, s 7. On this issue there is almost no significance to the question as to whether
the citizen among the spouses is a Jew; HCJ 3648/97 Stamka v Minister of Interior 53(2) PD 728 [1999] (in
Hebrew).
45
From statements by the then Deputy Attorney General, Meni Mazuz, in a discussion of the Knesset’s
Interior Committee on 14 July 2003 on the proposed Temporary Provision Law. The protocol of the discussion
can be viewed on the Knesset website: www.knesset.gov.il/protocols/data/html/pnim/2003-07-14-01.html.
46
Government Decision 1813, taken on 12 May 2002.
were lodged with the Supreme Court (sitting as the High Court of Justice) against this
Government Decision.47 While the processes in the Court were still underway the Knesset
(Israeli Parliament) passed the Temporary Provision Law,48 which anchors the limita-
tions the government imposed.49 The Law was enacted as a temporary provision,
explained by security constraints. In the period of the Law’s validity, the Interior
Minister is prohibited from granting a permit to stay in Israel, a license to reside in
Israel, or Israeli citizenship to residences of the West Bank, except for a very few excep-
tional cases specified in the Law. The Law determined a mechanism for the government,
with the approval of the Knesset, to extend the period of validity of the temporary provi-
sion. The government made use of this mechanism a number of times, and each time
extended the validity of the Law for a few months. A number of petitions challenging
the legality of the Law were presented to the Supreme Court, which dealt with them as
an expanded panel of 11 justices and rejected them by a difference of one vote (herein
after: Adalah 2006).50 Taking into consideration the Court’s comments during the course
of the discussion on the petition, the Knesset amended the Law, and determined a
number of alleviations, even before the ruling was given.51 After the Court’s ruling the
Knesset amended the Law once again (hereinafter: the third version). The third version
of the Law increased the category of exceptions to the prohibition even more and in
addition ordered the establishment of a committee that the Interior Minister should turn
to when addressing family reunification for humanitarian reasons. The third version
broadened the prohibition on reunification of families and applied it also to petitioners
whose country of origin was Iran, Lebanon, Syria, or Iraq.52 A mechanism was deter-
mined that enables the government to extend the validity of the Law, with the authoriza-
tion of the Knesset, for a period of up to one year for each extension.
As stated, the petition was submitted against the Temporary Provision Law in its first,
most extensive version. The ruling was rendered in 2006, when the second version of the
Law was in effect and that enabled the Interior Minister to permit the residence in Israel
of women above the age of 25, men above the age of 35, and children below the age of
14. In the judgment, which was delivered by a panel of 11 justices and which covered 263
pages, the petitions against the legality of the Temporary Provision Law were rejected
by one vote.53
47
See, eg HCJ 4022/02 Association for Civil Rights in Israel v Minister of Interior (11 January 2007), Nevo
Legal Database (by subscription) (in Hebrew). The appeals became redundant with the passage of the Law
described here. Yet, in light of the petitioners’ arguments, a short ruling was rendered, in any event, in 2007 on
these processes that rejects the petitions that attack the Government Decision and not the legality of the Law.
48
ibid n 13.
49
For the background on the enactment of the Law and a critical analysis of its legality, see G Davidov,
J Yovel, I Saban and A Reichman, ‘State or Family? The 2003 Amendment to the Citizenship and Entrance to
Israel Law’ (2006) 8 Law and Government 643 (in Hebrew); as well as A Rubinstein and L Orgad, ‘Human
Rights, National Security and Jewish Majority: The Case of Restrictions of Family Migration’ (2006) 48 The
Lawyer 315 (in Hebrew).
50
HCJ 7102/03 Gal-On v Attorney General (30 May 2005), Nevo Legal Database (by subscription) (in
Hebrew); HCJ 8099/03 Association for Civil Rights in Israel v Minister of Interior (14 May 2006), Nevo Legal
Database (by subscription) (in Hebrew); HCJ 8263/03 Askafi v Minister of Interior (14 May 2006), Nevo Legal
Database (by subscription) (in Hebrew); HCJ 7052/03 Adalah v Minister of Interior 61(2) PD 202 [2006] (in
Hebrew).
51
Citizenship and Entry into Israel Law (Temporary Provision) (Amendment), 5765-2005, SH No 2018,
p 730.
52
ibid para 3d.
53
Adalah v Minister of Interior (n 50).
The minority justices thought that the petitions should be accepted. The main opinion
among the minority justices was written by Court President Aharon Barak, and Beinisch,
Joubran, Hayut, and Procaccia JJ concurred with him. Barak examined the issue from
the viewpoint of the Israeli spouse, while leaving undecided the question of whether the
foreign spouse also has relevant legal rights. Barak’s opinion is divided into three parts.
In the first, he examined whether the Law infringes on constitutional rights; in the sec-
ond, he surveyed whether the infringement of rights, on the assumption that this exists,
meets the criteria of the Limitation Clause; and in the third, he dealt with the proper
remedy, on the premise that the infringement is not justified.
In the first part, Barak argued that the right to dignity anchored in the Basic Law:
Human Dignity and Liberty should be interpreted as also including the right to establish
a family, and this right includes the right of the Israeli citizen to receive his/her spouse in
Israel and to carry on their joint life. In light of this, Barak determined that the Temporary
Provision Law infringed the constitutional right to establish a family.54
Barak further determined that the Law infringed the right to equality of Arab Israeli
citizens, since in practice the Law is directed almost exclusively toward them and thus
discriminates against them, in comparison to Jewish citizens, in relation to their ability
to realise their right to a family.55 In order for such an infringement to serve as the cause
for invalidating the Law, the right must be anchored in a Basic Law. The right to equal-
ity is not included among the rights protected by the Basic Laws, as it was explicitly
removed from the formulation of the Basic Law: Human Dignity and Liberty.56 But
Barak determined that this aspect of equality is included within the framework of the
constitutional right to dignity, and therefore the Temporary Provision Law contradicts
the constitutional right to dignity also because of the detriment to equality.
In the second part, Barak examined whether the infringement of the rights to a family
life and equality meets the conditions of the Limitation Clause. The state argued that the
purpose of the Law is to prevent terror attacks, and Barak determined that this goal is
worthy.57 For our purposes, it is important to note that the state did not argue about the
existence of another aim, so Barak was not required to examine other goals, including
the demographic one. We shall return to this possible aim later. From here, Barak turned
to examine the proportionality of the harm to the right.58 Barak determined that a ratio-
nal link exists between the means adopted by the Law – sweeping limitation of the entry
of Palestinians – and the goal – prevention of terror. Barak also determined that it is, of
course, possible to employ less harmful means – an individual examination of requests
for family reunification, but this means will not yield the same degree of security as
sweeping limitation of immigration, so the Law passes the second proportionality test.
Yet, in Barak’s opinion the Law fails the third proportionality test. Barak argued that
the third test includes two sub-tests: one sub-test examines the benefit inherent in the
Law as it is versus the damage it involves. The second sub-test looks at the additional
benefit (in terms of realizing the goal) bound up with the Law in comparison to other
alternatives, which effectuate the goals to a lesser degree, versus the additional harm
54
ibid paras 31–34, 42–45.
55
ibid para 46.
56
See G Sapir, ‘Constitutional Revolutions – Israel as a Case Study’ (2010) 5 International Journal of Law in
Context 358.
57
Adalah v Minister of Interior (n 50) para 82.
58
ibid paras 84–92.
involved in the Law in comparison to the above-mentioned alternatives.59 Barak argued

that the Law does not pass the second sub-test, in the sense that the increase in security
deriving from the mechanism that the Law determines, in comparison to the alternative
of individual examination, is not of greater weight than the additional harm deriving
from the mechanism rooted in the Law. In other words, Barak felt that it would be
worthwhile to pay in terms of security so as to lower the harm to human rights.60
Concurring with Barak’s minority opinion were, as noted, Beinisch, Joubran, Hayut,
and Procaccia JJ. The ruling by Procaccia J differed from those of her minority opinion
colleagues over the question of the purpose of the Law. Procaccia did not accept the
state’s claim according to which the motivation for the Law was only security, and she
referred – as a reason for her lack of belief – to a discussion held in the Knesset as part of
the legislative process in which various Knesset Members presented demographic con-
siderations as the purpose of the Law. Procaccia refrained from expressing an unequivo-
cal opinion over the question of whether the demographic goal could serve as a proper
one, and she sufficed with the incongruence between the declared aim and the aim that
could be deduced (as stated, solely in her opinion) as the reason for determining that the
Law does not pass the test of worthy goal.61
Edmond Levy J was the one who tilted the scales. In principle, Levy concurred with
the minority justices. He went hand in hand with Barak, leaving him only at bottom line.
Levy thought that the state should be given an extension of nine months to prepare for
the invalidation of the Law, and since at the time of the rendering of the judgment, the
Law would in any event expire within a short time, Levy refrained from concurring in
his opinion with those who proposed declaring the Law null and void. Levy added that
if the validity of the Law would be extended without changes being made to it as called
for by the instructions of the ruling, it would be possible to request another discussion
on the constitutionality of the Law.
Cheshin J wrote the main opinion of the majority. As he understood it, the Law does
not infringe at all upon a constitutional right. A citizen does not have a constitutional
right to absorb his foreign spouse into his country, while the right to equality is not
harmed since there is a relevant difference between a person married to a subject of an
enemy country and someone married to a citizen of a friendly country.62 Cheshin also
opposed Barak’s conclusion on the question of proportionality. He took exception to
Barak’s claim according to which a security price must be paid for preserving human
rights and determined that the right to life overrides the other rights of man.
A number of petitions were submitted against the third version of the Law,63 and
in January 2012 the Court rejected the petitions with a majority of six to five (herein
after: Gal-On 2012). Four of the minority justices, harked back to the position of the
minority justices of Adalah 2006 and determined that the Temporary Provision Law did
59
For an academic presentation by Barak of the ruling in general and of his interpretation of the assess-
ments of proportionality in particular, see A Barak, ‘Proportional Effect – The Israeli Experience’ (2007) 57
University of Toronto Law Journal 369, 383; for a critical discussion of Barak’s interpretation of the assess-
ments of proportionality, see G Sapir, ‘Proportionality and Compromise’ in S Almog, D Beinisch and Y Rotem
(eds), Dalia Dorner Book (Tel-Aviv, Nevo Publishing, 2009) 397 (in Hebrew).
60
HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807 [2004] (in Hebrew).
61
Adalah v Minister of Interior (n 50) paras 14, 19.
62
ibid paras 86, 92.
63
HCJ 466/07 Gal-On v Attorney General (11 January 2012), Nevo Legal Database (by subscription) (in
Hebrew).
disproportional damage to the rights of family and equality. Levy J joined the minority
position but differed from his colleagues with the argument that the Law did not coin-
cide with the values of Israel as a Jewish and democratic state, and did not even meet the
criterion of worthy goal.64
Similar to the majority justices in Adalah 2006, the six majority justices in Gal-On
2012 thought that even if the Temporary Provision Law harms constitutional rights, this
harm meets the criteria of a Limitation Clause, in light of the security aim of the Law
and in consideration of the exceptions to the Law.
B. The Status of the Demographic Goal and Its Relative Weight
As cited above, In Adalah 2006 Procaccia J rejected the state’s argument according to
which the purpose of the Law is to guard the security interest of the state and its citizens,
and she claimed that circumstances inform us that also resting at the base of the Law is
the demographic aim. Yet, even Procaccia J did not express a clear opinion on the issue
of the legitimacy of this aim. What did the other members of the panel think about the
demographic goal? On the surface, we cannot know, since the majority of the Court’s
justices accepted the state’s argument that the security goal and not the demographic
one is what underlies the Law, and that being the case, they did not have to discuss the
legitimacy of the demographic goal. Reinforcement for this response can be found in the
statement by Cheshin J who rebuked his colleagues Procaccia and Joubran who treated
the demographic issue incidentally.65
On second thoughts, however, perhaps the justices’ refraining, in Adalah 2006, from
referring to the question of the legitimacy of the demographic goal can teach us some-
thing about their stance on the topic. If they were convinced that the demographic goal
was legitimate and did not create problems, they would say so explicitly.
Two pieces of data reinforce this observation. First, during the course of the discus-
sion of a petition, the Court permitted a voluntary association, ‘The Jewish Majority in
Israel’, to join the discussion as a respondent. This association argued that the demo-
graphic consideration was definitely at the base of the Law, that this consideration is a
worthy aim, and that the Law attains this goal in proportionality. Secondly, in the state’s
replies to the Supreme Court, it did indeed argue that the Law was not intended for the
realization of the demographic goal. But the Attorney General added that ‘even if the
dominant goal of the law was demographic – which does not seem to be the case here –
then this purpose is likely to coincide with the values of the State of Israel as a Jewish
and democratic state’.66 The fact that the Court chose to ignore these statements
strengthens the sense that the demographic consideration hovered about the Court, but
it appeared to the justices of the panel as a fear-instilling wraith, to the point that they
hurried to hide themselves from it.
As noted above, the Court’s rendering in Gal-On 2012 does not differ in its bottom
line from Adalah 2006. The Court again held firm to the security explanation as the
exclusive justification for the temporary provision. Yet, a number of incidental remarks
64
ibid para 26.
65
Adalah v Minister of Interior (n 50) para 135 of Cheshin J’s opinion.
66
Para 169 of the closing arguments of the state of 16 December 2003 as quoted in Adalah v Minister of
Interior (n 50) para 14 of Procaccia J’s opinion.
scattered throughout the opinions of the justices are likely to indicate judicial willing-
ness to consider the demographic justification positively, if it will be presented explicitly
in the future by the state. We will survey some of these expressions in brief.
Levy J who, as noted above, determined that the security reason does not pass the test
of worthy goal, points out that it is not at all clear whether the state’s refraining from
basing the Law on the demographic consideration reinforces its position or weakens it.67
Levy even mentions the immigration wave by reasons of ‘family reunification’ that took
place in Israel in the period 1994–2002 in a way that can be understood as alluding to the
legitimacy of employing the demographic consideration.68 Court Vice President Rivlin
explains that he is discussing the security rationale alone, not only because the demo-
graphic rationale was not presented by the state, but also because in his opinion the
demographic rationale is not apt for the Law in its current form. Yet, Rivlin notes inci-
dentally that the state was permitted to enact family immigration law based on the
demographic aim.69 In this context Rivlin quotes from the statement by Court President
Barak in a different instance,70 according to which ‘the reason for the existence of the
State of Israel is in its being a Jewish state’ and that ‘it is the right of every Jew to immi-
grate to the State of Israel, in which the Jews will constitute a majority’ constitutes one
of the core characteristics of Israel as a Jewish state.
Melcer J refrained from basing his decision upon the demographic consideration in
light of the state’s position, but he does determine that regarding ‘a discussion such as
this, its time will come’,71 and he cites in this context the position of Ruth Gavison,72
who holds that one may justify the Temporary Provision Law (even in its original, strin-
gent version) through demographic considerations.
The only justice of the panel whose rendering can be explained as actually giving
weight to the demographic rationale is that of Naor J. Naor argues that rationales other
than security (ie the demographic rationale) have implications for the laws of immigra-
tion to Israel.73 From this statement it may be inferred that in Naor’s opinion – despite
the fact that with the lack of the state addressing the demographic consideration, it is
not possible to take it into account as part of the test of worthy goal – the demographic
consideration is still relevant, as a cumulative reason for determining the need to inter-
pret sparingly the constitutional right to family life, such that it will not include the right
of a married citizen to bestow citizenship in his/her state to his/her spouse.
To sum up, in both instances – Adalah 2006 and Gal-On 2012 – the Court refrained
from rooting its decision on the national–demographic goal. Yet, whereas in Adalah
2006 all the majority justices distanced themselves from the demographic reason, in
Gal-On 2012, some of the justices stress that their stance derives strictly from the state’s
refraining from basing its position on the demographic goal, and premise in incidental
remarks a foundation for taking that goal into account in the future.
Is the goal of maintaining a solid Jewish majority among the citizens of the state a
proper aim? In the lack of judicial reference to that question, the other natural place to
look for an answer to the question is in the academic discourse. And, indeed, the law and
67
Gal-On (n 63) para 1 of Levy J’s opinion.
68
ibid.
69
ibid para 16 of Rivlin J’s opinion.
70
Central Elections Committee (n10).
71
Gal-On (n 63) para 31 of Melcer J’s opinion
72
ibid.
73
ibid paras 4–5.
the court’s decision stimulated great academic interest and reaped an impressive harvest
of publications.74 Yet, the members of academe – except for a pair of writers in one
article that argued that maintaining a demographic balance constitutes a legitimate
consideration75 – referred only to the security goal and did not discuss the demographic
one.
We think that the demographic goal is proper. The conclusion drawn in the pre-
vious section was that members of the Jewish people have the right to political self-
determination, whether from the right to culture, whether owing to the right to avoid
persecution, or whether as a right intended to advance the interest of reinforcing the
solidarity among citizens of the state. Apparently the existence of a solid Jewish major-
ity constitutes a condition for the legitimacy of the definition of the state as a Jewish
nation-state. If the members of the Jewish people cease to constitute a majority in the
State of Israel, or even if they will remain a majority but lose a decidedly numerical
advantage, they will lose the right to commit the state to the advancement of their
culture. From this we learn that the state has a clear interest to act for the purpose
of preserving the Jewish majority among its citizens and that this interest in itself is a
worthy one.
The conclusion that the demographic goal is worthy does not lead perforce to the
conclusion that the law in one version or another is constitutional. For the purpose of
the current discussion, we are ready to presume, without an in-depth discussion, that
realization of the law infringes upon certain rights of members of the Arab minority in
the state. In light of this premise, in order to make the law acceptable one must make
certain that its arrangements find a proper balance between the worthy purpose and the
harmed rights. Such an examination requires delving into the proportionality tests,
while referring to the different components of the law and weighing the various alterna-
tives that could be proposed for the purpose of attaining the demographic goal. Of
course, a review such as this also involves the operation of strong discretion, which
by its nature is subjective and dependent upon the worldview of the observer. We are
convinced that the advantage of the researcher over the judge and the politician is not in
his ability to invoke strong discretion such as this in a particularly good way but in his
ability to sharpen normative considerations. Thus, we will limit our discussion to the
presentation of these considerations and will refrain from taking the ultimate decisions
on the question of the legitimacy of the law in this or that version.
There are actions aimed at achieving demographic goals which can be justified, and
there are acts for this purpose which can be peremptorily rejected. The Law of Return,
which grants Jews the right to immigrate to Israel and become a citizen of the state,
serves in our opinion as a good example of measures of the first kind, and indeed, as far
74
See, eg B Medina and I Saban, ‘Human Rights and Risk-Taking: On Democracy, Ethnic-Profiling and the
“Limitation Clause”’ (2009) 39 Mishpatim 47 (in Hebrew); L Orgad, ‘Immigration, Terrorism and Human
Rights: Admission Policy and the War on Terror in Time of National Emergency’ (2009) 25 Bar-Ilan Legal
Studies 485 (in Hebrew); Y Ben-Shemesh, ‘Constitutional Rights, Immigration and Demography’ (2006) 10
Law and Government 47 (in Hebrew); Y Zilbershats, ‘Coping with the Non-Jewish Immigration to Israel (case
comment)’ (2006) 10 Law and Government 87 (in Hebrew); Rubinstein and Orgad (n 49); Davidov, Yovel,
Saban and Reichman (n 49) (the last two articles were written even before the decision was rendered); N Carmi,
‘The Nationality and Entry to Israel Case Before the Supreme Court of Israel’ (2007) 22 Israel Studies Forum
26; D Barak-Erez, ‘Israel: Citizenship and Immigration Law in the Vise of Security, Nationality and Human
Rights’ (2008) 6 International Journal of Constitutional Law184.
75
Orgad and Rubinstein (n 49) 341–46.
as we know, at least among the members of the Jewish majority, there is no dispute over
the legitimacy of this law.76 Conversely, the vast majority of the Jewish citizens of the
country would summarily reject any proposal to act to preserve the Jewish majority by
negating the citizenship of non-Jewish citizens of the state, all the more so through
expelling them by force from Israel.
In the middle, between legitimate steps to reinforce the Jewish majority in the state
and unacceptable measures, there are those whose legitimacy can be disputed. The law
under discussion belongs to this intermediate group. Countering the law are the rights
that have been infringed upon, but there are also considerations that should operate in
its favour, considerations that either reinforce the strength of the Jewish stake or weaken
the intensity of the infringement on the rights of citizens who are seeking family reuni
fication. We shall enumerate a number of these considerations: first, the State of Israel
has recognised the right of the Palestinians to a nation-state on part of the lands between
the Jordan River and the Mediterranean. This datum reinforces the legitimacy of Israel’s
tenacity to ensure the conditions necessary so that in this area there will also exist a
Jewish nation-state, and these include, as noted, a clear Jewish majority in this state. It
is unreasonable that while in the Territories a Palestinian nation-state is in the process of
being constructed, with Israel’s agreement and support, that the Jews will be forced to
see the loss of the national identity of their country. Second, the political leadership of
the Palestinian minority in Israel, the Palestinian leadership in the West Bank Territories,
and all Arab countries, deny the right of the Jewish people to political self-determination
in any area of the Land of Israel. This fact increases the legitimacy of actions on the part
of the Jewish majority whose aim is the preservation of strong numerical dominance,
even if the fact of its being the numerical majority is not seriously endangered yet. Third,
the immigration data of Palestinians in the period prior to the Temporary Provision Law
show that it is not trivial numbers that are under discussion.77 We are talking about a
staunch stream of immigration that is not waning. This fact turns protection of the
Israeli majority into an especially pressing mission. Finally, the citizens of Israel belong-
ing to the Palestinian minority, who seek family unification, can do so in the territory of
the West Bank. The West Bank Territories are located quite close to Israel, and they, or
a large part of them, are to be included within the area of the future Palestinian nation-
state. Therefore, such a measure will not obligate them to be completely uprooted from
their land or their culture. This fact weakens the intensity of the infringement on the
right to family life of the Palestinian Israeli citizens who seek family reunification.
We think that these considerations reinforce the legitimacy of the law. But, as noted,
even if the limitation on immigration from the Territories to Israel is legitimate, this
does not mean that it justifies levying a sweeping prohibition against immigration for
reasons of family reunification, nor even the law in its present form, an attenuated
version in comparison to its original formulation. The provisions of the law must be
individually examined through the prism of proportionality tests. As stated, we do not
intend to make such an examination here.
76
The members of the Palestinian minority deny this too. See, the National Committee for the Heads of
the Arab Local Authorities in Israel, ‘The Future Vision of the Palestinian Arabs in Israel’: www.adalah.org/
newsletter/eng/dec06/tasawor-mostaqbali.pdf.
77
See statements by Meni Mazuz, ibid n 45.
IV. SUMMARY AND CONCLUSIONS
In this chapter we argued that the aspiration for self-determination within the frame-
work of a nation-state is an interest that should be recognised as a human right.
Furthermore, the status of this right is reinforced in the context of the Jewish people
owing to the unique circumstances of this nation, which is forced to fight for its very
survival against those trying to annihilate it. We pointed out the fact that the existence
of a clear demographic majority of the members of a nation in a sovereign state consti-
tutes an imperative condition for the legitimacy of its definition as the state of this
nation. Therefore, maintaining the existence of this condition constitutes a worthy goal.
For it to be justified, acts toward the maintenance of a demographic majority must
meet the tests of proportionality. In the operation of proportionality tests, one must
consider a number of relevant variables. These variables include, among others, the
question as to whether the members of the minority enjoy or are likely to enjoy self-
determination, whether the members of the minority group recognise the right of the
majority to self-determination, and the degree of the threat challenging the imperative
conditions for realizing it. In the present context, all three of the variables reinforce the
weight of the right of the Jewish people to self-determination in its nation-state and of
vigorous action for the realization of this right.
At the same time, the intensity of the infringement on the rights of the members of the
minority group is likely to change from one instance to the next, and the variables influ-
encing the degree of harm must be identified and considered. In the present context, the
fact that family reunification can be realised in close proximity to the present place of
residence of the seeking citizens, weakens the intensity of the infringement on their right
to family life if their request to realise the right within the boundaries of Israel is denied.
33
National Identity and Religion–State
Relations: Israel in Comparative Perspective
GILA STOPLER
I. INTRODUCTION
D
IFFERENT STATES HAVE different models of relations between religion
and the state. There are diverse reasons why a state chooses to adopt a particu-
lar model of religion– state relations, one of which may be the role given to
religion in creating and strengthening national identity. Israel is defined as a Jewish and
democratic state and the Orthodox Jewish religion is established in the state in several
ways.1 While there is an ongoing debate in Israel on whether its definition as a Jewish
state should be understood as referring to the Jewish religion or merely to Jewish nation-
ality, there can be no doubt that the partial establishment of the Orthodox Jewish reli-
gion in the state plays an important role in Jewish national identity in Israel.2 This
phenomenon is not unique to Israel. Since religion and nationalism are often closely
related, many times religion–state relations play a significant role in a polity’s national
identity.
This chapter will explore the connection between national identity and religion–state
relations in Israel and will place it in a comparative perspective. It will argue that with
respect to national identity religion can serve two functions: first, the unity function (an
inclusive function) – to unite different individuals or groups under a unitary national
identity; and second, the gatekeeping function (an exclusionary function) – to make sure
that the boundaries of the national group remain clear and to exclude from the group
anyone who may dilute or threaten its identity. Next, the chapter will discuss several
countries in which religion is a central component of national identity, including Greece,
Malaysia and Turkey. It will show how the nexus between national identity and religion
finds expression in different religion–state structures, and point to the functions that it
serves. Finally, the chapter will describe religion and state relations in Israel, discussing
in what ways Israel’s chosen model of religion–state relations was expected to aid the
strengthening of the Jewish national identity. The chapter will claim that the Israeli
model has been partially successful, at best, in achieving both its unity function and its
1
D Barak-Erez, ‘Religion and the Secular State – An Israeli Case Study’ 1–3 www.juridicas.unam.mx/wccl/
ponencias/11/329.pdf.
2
Y Shapira, ‘Secular Politicians and the Status of Religion in the State of Israel’ in M Mautner et al (eds),
Multiculturalism in a Democratic and Jewish State, The Ariel Rosen-Zvi Memorial Book (Tel-Aviv, Tel-Aviv
University Press, 1998) 663 (in Hebrew).
504 Gila Stopler
gatekeeping function and will argue that a major cause for the Israeli model’s limited
success is the state’s lack of control over its own religious establishment.
II. THE ROLE OF RELIGION IN NATIONAL IDENTITY
Prominent writers on nationalism, such as Anderson and Gellner, tend to ignore the role
that religion often plays in the creation and preservation of nations.3 In fact, modern
Western discourse has until recently maintained a dichotomy between nationalism as
the product of modernization and secularization, and religion as a phenomenon of the
past, which is destined to disappear with the triumph of the enlightenment.4 Nevertheless,
a closer examination of the relationship between religion and nationalism shows that
religion has played and still plays an important role in many national movements in
both the Western and the non-Western world.5 Moreover, religion continues to play an
important role not only in national movements but also in the nation-states that they
create and even in the constitutional structure of these states. Thus, even among Western
democracies one can find countries such as England, Ireland and Greece, in which the
dominant religion, which has played an important role in the creation of the nation, is
given some constitutional recognition, from the largely symbolic, as is the case in
England, to the more robust as is the case in Greece.6 Giving constitutional recognition
to a national religion can be done in a variety of forms and can serve various functions.
I will suggest that two central functions that religion plays in national identity are the
unity function and the gatekeeping function.
A. The Unity Function
Just as with other types of communities, the formation of a national community depends
on the creation of a mutual bond around which the community can be united and sus-
tained. Benedict Anderson famously suggested that a nation should be understood as ‘an
imagined political community’.7 According to Anderson nations are imagined because
their members ‘never know most of their fellow-members, meet them, or even hear of
them, yet in the minds of each lives the image of their communion’.8 Nations are com-
munities because ‘regardless of the actual inequality and exploitation that may prevail in
each, the nation is always conceived as a deep, horizontal comradeship’.9 National com-
munities, according to Anderson, ‘are to be distinguished . . . by the style in which they
3
B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London,
Verso, 1991); E Gellner, Nations and Nationalism, 2nd edn (Blackwell, 2006).
4
P van der Veer and H Lehmann, ‘Introduction’ in P van der Veer and H Lehmann (eds), Nation and
Religion: Perspectives on Europe and Asia (Princeton, Princeton University Press, 1999) 1.
5
See, eg ibid 4; PW Barker, Religious Nationalism in Modern Europe: If God be for Us (Oxon, Routledge,
2009).
6
See SV Monsma and JC Soper, The Challenge of Pluralism: Church and State in Five Democracies, 2nd
edn (Lanham, Rowman & Littlefield Publishers, 2009) 131 (discussing the largely symbolic constitutional rec-
ognition of religion); see section IIIA of this chapter (discussing Greece’s hearty constitutional recognition of
religion).
7
Anderson (n 3) 6.
8
ibid.
9
ibid 7.
National Identity, Religion and State 505
are imagined’.10 One way of imagining the nation and creating the necessary mutual
bond is through a common religion, which can create a sense of comradery between the
members of the nation and serve as the basis of national identity.
Ernest Gellner suggests that the concept of the nation, although contingent and elu-
sive, includes two important elements, the cultural and the voluntaristic.11 According to
Gellner, the cultural element suggests that ‘two men are of the same nation if and only if
they share the same culture, where culture in turn means a system of ideas and signs and
associations and ways of behaving and communicating’.12 The voluntaristic element
suggests that ‘Two men are of the same nation if and only if they recognise each other as
belonging to the same nation’.13 The voluntaristic element is crucial since
[a] mere category of persons (say, occupants of a given territory, or speakers of a given lan-
guage, for example) becomes a nation if and when the members of the category firmly recog-
nise certain mutual rights and duties to each other in virtue of their shared membership of it. It
is their recognition of each other as fellows of this kind which turns them into a nation, and
not the other shared attributes, whatever they might be, which separate that category from
non-members.14
Thus, common religion can serve to unite its members into a nation, but it will only
do so if the co-religionists recognise each other not merely as co-religionists but also as
members of a common nation that share mutual rights and duties as members of the
nation. As will be further discussed below, in cases where other factors may hinder the
creation of a unified national identity, nation-states may look to religion as a means of
uniting their potential members and garnering their support, and may even give religion
official status and authority in the state in order to do so.
B. The Gatekeeping Function
Nations are founded and preserved not only on the basis of the unity of their members,
but also by preserving the difference between those who belong to the nation and those
who do not. In this respect national communities resemble religious communities. One
way through which religious communities control their membership is through restric-
tive rules of marriage. It has even been suggested that the function of religious family
law for the religious community is akin to the function of citizenship laws for the sover-
eign state. In both cases the laws serve to demarcate the boundaries of the community
and decide who belongs to the community and who is excluded.15
State laws that give a monopoly to religious communities over family law, and recog-
nise only religious marriages between community members, may serve the need of reli-
gious communities to preserve and demarcate their boundaries and thus may have an
important gatekeeping function for the religious communities. At the same time, as will
be demonstrated below, in nation-states that wish to demarcate the boundaries of the
ibid 6.
10
Gellner (n 3) 6–7.
11
12
ibid 6.
13
ibid 7.
14
ibid.
15
A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, Cambridge
506 Gila Stopler
nation along religious lines, the maintenance of a religious monopoly over family law, at
least with respect to the majority religion, has an important gatekeeping function for the
national community as well.
However, one must not forget that this manner of preserving community boundaries,
both religious and national, may result in violations of the rights of individuals within
and outside the community. These violations may include the violation of women’s right
to equality through the imposition of patriarchal and discriminatory religious laws; the
violation of the right to family life through restrictions on inter-religious marriages; and
the violation of the right to freedom of conscience and to freedom from religion by the
compulsory imposition of religious laws.16
III. RELIGION–STATE RELATIONS AND NATIONAL IDENTITY –

A COMPARATIVE PERSPECTIVE
A. Greece
The close ties between Greek national identity and the Greek Orthodox religion are
officially articulated in the Greek Constitution through the status that it grants to the
Eastern Orthodox Religion. Article 3 of the Constitution stipulates that:
The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ
and Article 16 states that the development of

national and religious consciousness
through education is a fundamental state objective.17 These provisions are the basis for
the daily prayers in Greek schools and for state financing of the teaching of Orthodoxy
in these schools.18 The interrelationship between the Greek Orthodox Church and Greek
national identity goes back to the establishment of the modern Greek state in the 1820s.19
Prior to the establishment of modern Greece, the Ottoman Empire ruled over the region
through its millet system which divided the population into groups according to their
religion. The Orthodox Church used its relative freedom under the millet system in
order to teach its members the Greek language and customs and played an important
role in the Greek revolution.20
During and after the revolution a struggle was waged over the direction in which
modern Greek national identity should be developed, between those who favoured the
cultivation of a Westernised secular liberal identity and those who favoured promoting
a Byzantinist nationalist identity of a Greek Orthodox nation.21 While Greek political
leaders decided to fashion the state along European lines in order to appeal to central
powers such as Britain and France, they also realised that Church support would legit
16
See nn 59–65 below and accompanying text.
17
1975 Syntagma [Constitution] Arts 3, 16(2) (Greece).
18
E Karagiannis, ‘Secularism in Context: The Relations between the Greek State and the Church of Greece
in Crisis’ (2009) 60 European Journal of Sociology 133, 146.
19
CP Danopoulos, ‘Church–State Relations, National Identity, and Security in Post-Cold War Greece’ (2004)
30 Journal of the Hellenic Diaspora 7, 13.
20
ibid 16–17.
21
ibid 14.
imise their nation building efforts.22 Consequently, Greece’s dual commitment to

Western democracy and to an Eastern Church, which continues to this very day, is
reflected in Greek law and society.23 This duality makes Greece, which has never directly
experienced the reformation or the enlightenment, and which is highly homogenous reli-
giously, with around 97 per cent of the population Orthodox Christians, quite different
from Western European countries.24 Thus, the state established Orthodox Christianity
as its official religion in order to utilise religion’s unifying function, while at the same
time subjecting the Church to state control through measures such as appointing the
members of the Church’s governing body (the Synod) and subjecting all synodal deci-
sions to government approval.25 Until recently the state enabled the Church to maintain
its gatekeeper function by allowing it to retain exclusive control over marriages and
divorces, but this changed in 1982 when a socialist government introduced civil marriage
after much conflict and debate.26
B. Malaysia
Malaysia is a state in which the Muslim religion and the Malay national identity are
closely intertwined. Article 3 of the Malaysian Constitution defines Malaysia as an
Islamic Federation. It states that:
Islam is the religion of the Federation; but other religions may be practiced in peace and har-
mony in any part of the Federation.27
Around 40 per cent of Malaysia’s population is non-Muslim.28 While the country main-
tains a façade of interracial harmony and religious pluralism, clear preference is given in
the Constitution and in federal law to the Malay ethnic group, who are Muslims.29 The
Constitution defines ‘Malay’ as a person, who professes the religion of Islam, habitually
speaks the Malay language, conforms to Malay custom and was born in Malaysia or
Singapore, or is the issue of such a person.30 Because Islam is such an important com
ponent of the Malay national identity the state exercises tight control over Islam and
the ruling coalition is promoting a relatively moderate form of Islam (Islam Hadhari or
civilizational Islam) in order to prevent the spread of more radical forms of Islam.31
The Malaysian Constitution guarantees individual religious freedom and the right of
every religious group to manage its own religious affairs.32 However, the Constitution
ibid 17.
22
L Molokotos-Liederman, ‘The Greek ID Cards Conflict: A Case Study on Religion and National Identity
23
against the Challenges of Increasing EU Integration and Pluralism’ 1 www.faithineurope.org.uk/idcards.pdf;

Karagiannis (n 18) 147; Danopoulos (n 19).
24
Karagiannis (n 18) 147.
25
ibid 149.
26
Danopoulos (n 19) 18; Molokotos-Liederman (n 23) 2.
27
Federal Constitution of Malaysia 27 August 1957, Art 3.
28
FA Noor, ‘From Pondok to Parliament: The Role Played by the Religious Schools of Malaysia in the
Development of the Pan-Malaysian Islamic Party (PAS)’ in FA Noor et al (eds), Madrasa in Asia: Political
Activism and Transnational Linkages (Amsterdam, Federal Constitution of Malaysia Amsterdam University
Press, 2008) 191, 192.
29
R Hirschl, Constitutional Theocracy (Harvard, Harvard University Press, 2010) 128.
30
Federal Constitution of Malaysia 27 August 1957, Art 160(2).
31
Hirschl (n 29) 128–29.
32
Federal Constitution of Malaysia 27 August 1957, Art 11(1)–(3).
508 Gila Stopler
includes special provisions for Islam, which both give preference to Muslims and at
the same time restrict their behaviour. For example, the Constitution allows state and
federal law to restrict
the propagation of any religious doctrine or belief among persons professing the religion of
Islam.33
Consequently, it is forbidden to propagate non-Muslim religious doctrines to Muslims,

and those wishing to propagate Muslim religious doctrines and beliefs to Muslims must
obtain permission from state religious departments.34 The control over the propagation of
Muslim religious doctrines granted to the government in the Constitution has enabled the
government, among other things, to clamp down on dissident Muslim organizations and
shut down their schools.35
In addition to establishing Islam as a state religion and attempting to unite the
Malayan nation around the relatively moderate Islam Hadhari, Malaysia uses Islamic
personal law as a gatekeeper for the Malayan nation. Thus, personal law in Malaysia
clearly distinguishes between Muslims and non-Muslims for the purpose of marriage.
While Muslims can only marry Muslims and must do so according to Islamic law, non-
Muslims can marry in a civil marriage, irrespective of their religion.36 Furthermore, if a
non-Muslim wishes to marry a Muslim they must convert to Islam before the marriage.37
In this manner Malaysian law is able to minimise intermarriage between Malays and
non-Malays and maintain the distinction between citizens belonging to the Malay nation
and citizens who do not, which stands at the core of Malaysia’s national identity.
C. Turkey
Unlike Malaysia Turkey is a secular country. When the Republic of Turkey was pro-
claimed in 1923, religion was banished from the public sphere in order to pave the way
for modernization.38 Hundreds of religious Muslim schools (medreses) that were seen as
incompatible with modern academic requirements were closed, and the state established
compulsory schools that followed a national curriculum devoid of any religious instruc-
tion.39 Secularization was central to the Kemalist40 modernization project, and various
33
ibid Art 11(4).
34
AF Abdul Hamid, ‘Islamic Education in Malaysia’ (RSIS Mono No 18, 2010) 25 www.rsis.edu.sg/
publications/monographs/monograph18.pdf.
35
Eg in 1994 the Malaysian Government banned the Darul Arkam Movement and closed its schools. See ibid
60–63.
36
See the Malaysia Government’s official portal, ‘myGovernment’, ‘Marriage’: www.malaysia.gov.my/en/
relevant%20topics/society%20and%20life/citizen/family/marriage/pages/marriagemain.aspx.
37
See The Malaysia Government’s official portal, ‘myGovernment’, ‘Marriage Procedures between Muslims
and Non-Muslims’: www.malaysia.gov.my/en/relevant%20topics/society%20and%20life/citizen/family/marriage/
proceduremarriagemuslimandnonmuslim/pages/marriagebetweenmuslimandnonmuslim.aspx.
38
B Agai, ‘Islam and Education in Secular Turkey: State Policies and the Emergence of the Fethullah Gulen
Group’ in R Hefner and MQ Zaman (eds), Schooling Islam the Culture and Politics of Modern Education
(Princeton, Princeton University Press, 2007) 149, 150. Nevertheless, the 1924 Constitution stated that Islam
was the religion of the Turkish State and while this Article was removed in 1928, the principle of laicism (secu-
larism) was inserted into the Constitution only in 1937. L Köker, ‘Religion, Education and the Turkish
Constitution: A Critical Assessment’, Turkish Review, 14 October, 2010, 36–45.
39
Agai (n 38) 150.
40
Mustafa Kemal Atatürk was the founder of the Republic of Turkey.
Muslim practices such as the pilgrimage to Mecca (hajj) were banned by law until 1947.
Nevertheless, Islam played an important role in the Kemalist understanding of the
Turkish nation due to Islam’s importance as the ‘unspoken bond’ that created the
Turkish nation from a multitude of separate ethnic groups including Anatolians, Kurds,
Caucasians, Albanians, Bosnians Tartars, etc.41 Thus, while on the one hand the early
Kemalist state repressed Islam, on the other hand it promoted its own interpretation of
Islam in order to legitimate its secular nationalism.42
The introduction of democracy in 1946 along with the realization that the ban on
public expressions of religion is leading many to seek it via channels over which the state
has no control, has led to the gradual reintroduction of religion into the public sphere
and into the state system of education.43 Consequently, the notion of laicism, which ini-
tially meant a complete ban on Islam, was transformed to mean the control of religious
expression by the state, and the following years saw a gradual increase in state-controlled
Islamic education.44 In the 1980s the role of Islam in Turkish society has further strength-
ened. Islam was portrayed as a national trait of the Turks and as a source of social and
moral stability, and obligatory religious courses were introduced in state schools.45 As a
result, perhaps paradoxically, although Turkey is defined in its 1982 Constitution as a
secular state,46 state control over Islamic education and its compulsory introduction into
state schools are enshrined in the Constitution, which stipulates that
education and instruction in religion and ethics shall be conducted under state supervision and
control
and
[i]nstruction in religious culture and moral education shall be compulsory in the curricula of
primary and secondary schools.47
Furthermore, the secular state through its Department of Religious Affairs (DIR) con-
trols 70,000 mosques and thousands of Qur’anic courses, and supervises private forms
of religious activities.48 Thus, the state, whose control over religion is so tight that it even
distributes the Friday sermons to the mosques around the country, is the most important
religious player in Turkey.49 The Turkish Constitution expressly instructs the DIR to use
Islam in order to foster national unity when it stipulates that
[t]he Department of Religious Affairs . . . shall exercise its duties . . . aiming at national solidar-
ity and integrity.50
Accordingly, the DIR promotes a relatively progressive form of Islam, which has been
called ‘Turkish-Islamic-Synthesis’, and which is aimed at undermining Islamic influences
Agai (n 38) 151.
41
UC Sakallioglu, ‘Parameters and Strategies of Islam–State Interaction in Republican Turkey’ (1996) 28

42
International Journal of Middle Eastern Studies 231, 236; U Azak, Islam and Secularism in Turkey: Kemalism,
Religion and the Nation State (London, IB Tauris, 2010) 12.
43
Agai (n 38) 152; see also D Çakmak, ‘Pro-Islamic Public Education in Turkey: The Imam-Hatip Schools’
(2009) 45 Middle Eastern Studies 825, 829.
44
Agai (n 38) 152.
45
ibid 152–53; Çakmak (n 43) 833.
46
Constitution of the Republic of Turkey 7 November 1982, Art 2.
47
ibid Art 24.
48
Agai (n 38) 153–54.
49
Azak (n 42) 12.
50
Constitution of the Republic of Turkey (n 46) Art 136.
510 Gila Stopler
outside of state control and assisting in the project of national homogenization.51 While
Islam performs an important unity function for Turkey’s national identity, it is not used as
a gatekeeper to preserve the boundaries between Muslims and non-Muslims, and civil
marriage is the only legally valid form of marriage in Turkey.52 The redundancy of reli-
gion’s gatekeeping function in Turkey is undoubtedly related to the fact that 98 per cent of
Turks are Muslims.
IV. RELIGION–STATE RELATIONS AND NATIONAL IDENTITY IN ISRAEL
A. Religion–State Relations in Israel
Israel is defined in its Basic Laws as a Jewish and Democratic state. This definition is
relatively new, and was adopted along with the two Basic Laws on human rights – Basic
Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation. The origins
of this definition can be traced to the Israeli Declaration of Independence, which states
that Israel is to be a ‘Jewish state’, but at the same time that it will
ensure complete equality of social and political rights to all its inhabitants irrespective of reli-
gion, race or sex; it will guarantee freedom of religion, conscience, language, education and
culture.53
It is important to note that there is an ongoing and as of yet unsettled debate with regard
to the exact meaning of the definition of Israel as a Jewish state in the Basic Laws. While
some consider that the definition of Israel as a Jewish state constitutes an establishment
of the Jewish religion in the state through the Basic Laws, others argue that the term
‘Jewish state’ should be understood merely as designating the character of Israel as the
home of the Jewish people, where Jews realise their right to self-determination.54 The
persistence of this debate is in itself proof of the extremely fuzzy lines between Jewish
national identity and religion in Israel.
The definition of Israel as a ‘Jewish state’ was enacted in the Basic Laws only during
the 1990s. However, the Orthodox Jewish religion, which is represented in Israel by the
Zionist Orthodox community and by the ultra-Orthodox community, has been estab-
lished in the state from its inception in 1948 through laws granting legal status to
Orthodox Jewish religious authorities in several areas. The most important area is that
of personal status law, which was left to the exclusive control of the religious authori-
ties.55 In addition, there are several other areas in which the Orthodox Jewish religion is
51
Agai (n 38) pp 152–53, 156.
52
Constitution of the Republic of Turkey (n 46) Art 174.4.
53
54
See A Levontin, ‘“Jewish and Democratic” – Personal Reflections’ in JE David (ed), The State of Israel:
Between Judaism and Democracy (Jerusalem, The Israel Democracy Institute, 2000) 251 (taking a position
against interpreting the term Jewish in the Basic Laws to include the Jewish religion). See CF M Alon, ‘Constitution
by Legislation: The Values of a Jewish and Democratic State in Light of Basic Law: Human Dignity and Personal
Freedom’ (1993)17 Tel-Aviv University Law Review 659, 668–70 (in Hebrew), republished in English in A Maoz
(ed), Israel as a Jewish and Democratic State (Jewish Law Association Studies, 2011) 21 (taking a position
supporting the inclusion of the Jewish religion in the term ‘Jewish’); R Gavison, Can Israel be Both Jewish
and Democratic? or: Israel between Jewishness and Democracy (1 January 2011): www.gavison.com/
c935-book-can-israel-be-both-jewish-and-democratic-or-israel-between-jewishness-and-democracy.
55
Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, s 1-2.
given preferential status by the state, either through statutes or through administrative
decisions, which confer to it state power as well as money. Thus, the state has estab-
lished a Chief Rabbinate and has given full control over it to Orthodox Judaism.56
The Chief Rabbinate is a powerful state organ which enjoys large budgets and which
controls the religious services given by the state to the Jewish population.57 Some of the
state and municipal institutions established and financed by the state and subject to the
religious authority of the Chief Rabbinate are the Rabbinical Courts that deal with mat-
ters of marriage and divorce of Jews in Israel, the regional religious councils which deal
with the supply of religious services – such as burial (public cemeteries in Israel are over-
whelmingly religious), synagogues, kashrut (the requirement that food be kosher), etc –
to Jews on a regional basis, and the conversion courts which deal with conversion to
Judaism.58
B. Religious Personal Law’s Gatekeeper Function
The most important aspect of the partial establishment of Orthodox Judaism is that all
Jews in Israel are subject to Jewish religious personal laws. Members of other recognised
religious communities, such as Muslims and various Christian denominations, are also
subject to the personal religious laws of their particular religions.59 The current system
of personal laws is essentially a continuation of the Ottoman millet system, which was
based on the principle of community self-rule, giving each religious community full con-
trol over the personal status of its members, regardless of whether they wish to abide by
the religious rules and even regardless of whether they consider themselves members of
the community.60 This state of affairs has been maintained by the British Mandate and
later by the State of Israel, which until this very day does not have a procedure for civil
marriage.
By recognizing only religious marriages conducted by a religious tribunal of a recog-
nised religious community Israeli law in effect prevents people of different religions
from marrying in Israel.61 One of the main reasons for the decision of the Israeli legisla-
ture to adopt this statutory scheme was its wish to prevent mixed marriages that would
dilute the Jewish community, obscure the boundaries between the Jewish majority and
the Arab (Muslim and Christian) minority and threaten Jewish national identity.62 When
introducing the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law in 195363
the Deputy Minister for Religious Affairs explained that one of the purposes of granting
56
Chief Rabbinate of Israel Law, 5740-1980.
57
H Lifshitz and G Sapir, ‘Jewish Religious Services in Israel – a Normative and Administrative Assessment
in Preparation for Reform’ (2006) 23 Bar Ilan Law Studies 147–56.
58
Jewish Religious Services Law (Consolidated Version), 5731-1971.
59
The authority of the various religious communities was established through legislation from the period of
the British Mandate that was later incorporated into Israeli law. See King’s Order in Council, 1922, sign 51(1).
The detailed authority of the Jewish Rabbinical Courts is set out in the Rabbinical Courts Jurisdiction Law
(n 55). The detailed authority for the Muslim Religious Courts can still be found in the King’s Order in Council,
1922, sign 52.
60
R Halperin-Kaddari, Women in Israel – A State of Their Own (Philadelphia, Penn Press, 2004) 227–28.
61
King’s Order in Council, 1922, sign 51; Rabbinical Courts Jurisdiction Law (n 55).
62
S Fogiel-Bijaoui, ‘Why Won’t There be Civil Marriage Any Time Soon in Israel?’ (2003) 6 Nashim: Journal
of Jewish Women’s Studies & Gender Issues 28–34.
63
n 55 above.
512 Gila Stopler
legal recognition exclusively to religious marriages was to exclude the possibility of

mixed marriages that might result in the conversion of Jews to other faiths.64 Similarly,
when it became known that the Muslim Sharia Courts in Israel were willing to marry
Muslim men to Jewish women, the Ministry of Religious Affairs has instructed the
Sharia Courts to refrain from conducting such marriages.65
Has the use of Orthodox Jewish personal law as a gatekeeper for the Jewish nation
been successful? On the one hand the number of interreligious marriages and especially
of interreligious marriages between Jews and Arab Muslims or Christians in Israel is
very low. Thus, unlike Jews outside Israel whose interreligious marriage rates are often
high, the rate of interreligious marriages of Jews in Israel is less than five per cent.66 It is
likely that the lack of civil marriages in Israel has contributed to the dearth of inter
religious marriages. Nevertheless, it is important to note that Israeli law does recognise
civil marriages that have been held abroad, and although more than 10 per cent of Israeli
couples marry civilly abroad, the number of interreligious marriages remains small.67
The fact that more than 10 per cent of the couples shun religious marriage and marry
abroad is in itself proof that the use of Orthodox Jewish personal law as the gatekeeper
for the Jewish nation has been only partially successful. A major reason for the Orthodox
religious law’s limited success as a gatekeeper is the human rights violations that occur
as a result of its imposition.68 One obvious violation is the violation of the right to free-
dom of conscience and belief of all those who do not wish to marry in a Jewish Orthodox
religious ceremony.69 Many Jews are not religious and do not want to marry in a reli-
gious ceremony. In addition, within Judaism there are different streams, including for
example Reform and Conservative Judaism, whose members wish to marry in ceremo-
nies conducted by their own Rabbis, according to their traditions. Because Israeli law
grants the power to marry Jewish couples exclusively to Orthodox and ultra-Orthodox
Rabbis anyone who wants to marry in a Reform or Conservative ceremony and have her
marriage recognised by the state is denied that right.
Furthermore, while allowing only religious marriages restricts the rights of both men
and women, it has a particularly severe impact on women’s equality rights. This is
because the Jewish Orthodox personal laws as applied by Israeli Rabbinical Courts are
highly patriarchal and give clear preference to men over women in most matters pertain-
ing to the marriage relationship, especially the resolution of the marriage.70 Moreover,
64
Z Triger, ‘There is a State for Love: Marriage and Divorce between Jews in Israel’ in O ben Naftali and
H Nave (eds), Trials of Love (Tel-Aviv, Ramot, 2005) 173–226 (in Hebrew).
65
P Shiffman, ‘Civil or Sacred: Marriage and Divorce Alternatives in Israel – A Necessary and Feasible
Change’ (ACRI, 2001): www.acri.org.il/he/wp-content/uploads/2011/07/kadat-o-kadin.pdf, n 16 and accom
panying text (in Hebrew). It is interesting to note that although according to Islam, the Sharia Courts can
marry Muslim men to non-Muslim women, they cannot marry Muslim women to non-Muslim men. This is
presumably because women will eventually convert to men’s religion, and, thus, become non-Muslim.
66
Z Triger, ‘Love and Prejudice: On the Paradox of the Phenomenon of Interfaith Marriages in Israel’ in
D Barak-Erez et al (eds), Readings in Law, Gender, and Feminism (New York, Oceana Publications Inc, 2007)
733, 753–54 (in Hebrew).
67
See Israel Central Bureau of Statistics (CBS) data and compare the numbers of all marriages registered in
Israel with the number of Israelis married abroad. See CBS websites: www.cbs.gov.il/www/population/
marrige_divorce/luach1.pdf and www.cbs.gov.il/www/population/marrige_divorce/marriage_all.pdf.
68
This claim holds true not just for Israel but for any country that imposes religious obligations on a popu-
lation which contains a considerable number of people who are unwilling to accept such impositions. This
segment of the population will try to find ways to by-pass these impositions.
69
See, eg F Raday, ‘On Equality’ in F Raday et al (eds), Women’s Status in Israeli Law and Society (Jerusalem,
Schocken, 1995) 241 (in Hebrew).
70
Halperin-Kaddari, Women in Israel (2004) (n 60) 233–39.
the subordination of women within the marriage has far-reaching effects on their ability
to achieve equality in all areas of life.71 While partial attempts have been made to ame-
liorate this situation by means such as the establishment of civil family courts, which
have parallel jurisdiction to religious courts in matters that do not pertain directly to
marriage and divorce, these attempts do not weaken the hold that Orthodox Judaism
has on marriage and divorce themselves.72
The use of Orthodox Jewish personal law as a gatekeeper for the Jewish nation leads
many Jews to reject the option of marrying in Israel and to criticise the state for the
human rights violations that the Orthodox monopoly creates. However, an even more
serious problem for the state in its attempt to use Orthodox Judaism as gatekeeper for
the Jewish nation is the fact that the strictness of Orthodox Jewish precepts prevents
many people whom the state has an interest in integrating into the Jewish nation from
being able to marry in Israel. During the 1990s the state has brought hundreds of thou-
sands of Jews and people of Jewish descent from the former Soviet Union to Israel under
the Israeli Law of Return,73 and has taken numerous steps since then in order to integrate
them into the Jewish community for the explicit purpose of strengthening the Jewish
majority in Israel and the Jewish nation. Contrary to the intentions of the state, the con-
trol of Orthodox Judaism over marriages of Jews in Israel is preventing a vast majority
of these new immigrants from marrying other Jews, and even each other, and from fully
integrating into the community.74 Thus, from the perspective of the state the use of
Orthodox Judaism as a gatekeeper for the Jewish nation has backfired.
It is worth noting that the Law of Return itself could arguably be seen as an example
of the use of religion as a gatekeeper for the nation, since it defines its beneficiaries in
relation to their Jewishness and grants only Jews the right to immigrate to Israel.
However, unlike personal status law, which was entrusted to the Orthodox religious
establishment and given a strictly Orthodox interpretation, the Law of Return, which
makes only a partial use of the religious definition of who is a Jew, was never entrusted
to the Orthodox establishment or given a strictly Orthodox interpretation. It is precisely
the discrepancy between the definition of a Jew under the Law of Return and the defini-
tion of a Jew under Orthodox religious law that has been the cause of the inability of so
many new immigrants, who were brought to Israel by the state, to marry within its
borders.75
C. Religious Establishment and the Unity Function
The Zionist movement that struggled for the establishment of the State of Israel was a
national secular movement, led by Eastern European secular Jews who were staunchly
opposed to the traditional religious leadership of Eastern European Jewish communities
and aspired to create in Israel a modern national and secular Jewish state.76 Nevertheless,
ibid 239–40.
71
ibid 228–29, 233–35.

72
73
Law of Return, 5710-1950 (hereinafter: Law of Return).
74
Y Sheleg, ‘Not Halakhically Jewish: The Dilemma of non-Jewish Immigrants in Israel’ (Policy Paper 51,
Jerusalem, The Israel Democracy Institute, 2004) 43–44 (in Hebrew).
75
A Yakobson, ‘Joining the Jewish People: Non-Jewish Immigrants from the Former USSR, Israeli Identity
and Jewish Peoplehood’ (2010) 43 Israel Law Review 218, 219–20, 235–36.
76
Shapira, ‘Secular Politicians’ (1998) (n 2) 663–65.
514 Gila Stopler
the leaders of the Zionist movement, who later became the leaders of the new state,
decided to partially establish Orthodox Judaism in the state. One historical explanation
to this decision revolves around the Zionist leaders’ need to get the support of Orthodox
religious factions in the struggle to establish the state. In order to secure their support
the secular Zionist leaders have come to an agreement with the Orthodox factions which
is known as the ‘Status Quo’ and which outlined in general terms what later became the
contours of the partial establishment of the Orthodox Jewish religion in the new state.77
A second explanation for the partial establishment of Orthodox Judaism was the secular
Zionist regime’s need to enhance the legitimacy of the Jewish nation-state in the eyes of
its Jewish citizens and of diaspora Jews, who were thought of as potential future citi-
zens, by maintaining a connection with the Jewish past.78 Thus, secular national leaders,
and especially the head of the Zionist movement and Israel’s first Prime Minister, David
Ben-Gurion, decided to use the Orthodox Jewish religion as a legitimating and unifying
force. They believed that in due time, after the establishment of the state, the religious
element of Jewishness, which was initially used to buttress the emerging national ele-
ment of Jewishness, would gradually disappear and be replaced by a fully-fledged Jewish
nationalism.79 This assumption was closely related to the assumption that Orthodox
Judaism was in itself in a gradual process of disintegration as an inevitable result of
modernity, and that consequently no harm could be done by acceding to the demands of
Orthodox religious leaders.80
Contrary to Ben-Gurion’s expectations, not only has Orthodox Judaism not dis
appeared, but with the help of generous state funding, of its control over the religious
establishment, and of its increasing political power, Jewish Orthodoxy and in particular
its radical ultra-Orthodox branch, has experienced an unprecedented revival and expan-
sion in Israel.81 However, far from promoting Jewish national unity, the existence of an
extensive religious establishment in Israel and the continued exclusive Orthodox and
ultra-Orthodox control over it, have been main causes for a deepening divide within Israeli
Jewish society, which has come to be known as the religious–secular divide.82 In recent
years the increasing radicalization of those controlling the religious establishment, and
especially of the ultra-Orthodox, has put unprecedented pressure on Jewish national unity
within Israel as well as on the relations between Israel and more liberal diaspora Jews,
particularly those from the Reform and Conservative streams of Judaism. Due to lack of
space I will focus only on one manifestation of this problem, which exposes the depth of
the divide, not only between ‘religious’ Jews (ie Orthodox and ultra-Orthodox) and ‘secu-
lar’ Jews (who also include Reform, Conservative and some modern-Orthodox), but also
between the Jewish nation-state and its own religious establishment.83
77
D Barak-Erez, ‘Law and Religion under the Status Quo Model: Between Past Compromises and Constant
Change’ (2009) 30 Cardozo Law Review 2495, 2496–97.
78
Shapira (n 2).
79
Z Zameret, ‘Yes to the Jewish State, No to a Clericalist State: The Mapai Leadership and its Attitude to
Religion and Religious Jews’ in M Bar-on and Z Zameret (eds), On Both Sides of the Bridge: Religion and State
in the Early Years of Israel (Jerusalem, Yad Ben Zvi, 2002) 175, 177, 197–98 (in Hebrew).
80
ibid 198.
81
G Gorenberg, The Unmaking of Israel (HarperCollins, 2011) 165–91.
82
See, eg H Eden et al, Being Citizens in Israel: A Jewish and Democratic State (Tel-Aviv, Ma’alot, 2001)
299–316 (in Hebrew). This is an official high school citizenship textbook, which dedicates almost 20 pages to
describing this divide and its causes, as a major internal divide within Jewish society.
83
In discussing the Jewish nation-state, I am referring to Israel’s civil state institutions, such as the govern-
ment, the Knesset (the Israeli Parliament) and the Supreme Court.
As already mentioned in the previous section, during the 1990s Israel has brought
hundreds of thousands of Jews and people of Jewish descent from the former Soviet
Union for the express purpose of strengthening the Jewish nation by increasing the
Jewish majority. Because of the strong relationship between the Jewish religion and
Jewish national identity the state has from the onset viewed it as an important national
interest to help those immigrants who wish to do so to convert to Judaism. Since the
Jewish Orthodox conversion process in Israel is protracted and complicated the state
has attempted to facilitate the process by establishing Special Conversion Courts, which
although staffed by Orthodox Rabbis and following Orthodox practice, were at the
same time expected to be committed to the national mission of assisting the new immi-
grants who wish to convert. However, these courts turned out to be of very little use to
those wishing to convert. Faithful to strict interpretations of Orthodox conversion
requirements these courts have been very slow in approving conversions and in particu-
lar have been rejecting many candidates for conversion on the basis of their alleged fail-
ure to commit to observing Jewish religious commandments.84 While one could argue
that religious courts should be free to apply their own understanding of religious law, it
is important to note two things. First, this strict interpretation of Orthodox Jewish reli-
gion is not the exclusive interpretation and the official stance of the courts as published
by the government is that a declaration of intent to observe Jewish religious command-
ments is sufficient.85 Second, and perhaps more importantly for our purposes, the failure
of these state appointed religious courts to follow government policy, and to assist
immigrants who wish to convert into Judaism and facilitate their inclusion in the Jewish
nation, is a stark example of the paradoxical nature of the Israeli attempt to use the
establishment of religion as a means for advancing national unity.
Furthermore, the paradox does not stop here. Despite the fact that the Special
Conversion Courts are the official state organs in charge of conversion, the Rabbinical
Courts, which have exclusive jurisdiction on matters of marriage and divorce, and are
controlled by ultra-Orthodox Rabbis, have several years ago decided that the conversions
conducted by these courts were religiously invalid and have pronounced them retroactively
void.86 While this does not affect the validity of the conversions in the eyes of the civil
authorities of the state, it does have crucial implications in all realms governed by religious
law and especially with respect to the status of the converts’ marriages and for the status of
their children. Thus, the Rabbinical Court’s declaration that these conversions are retroac-
tively void leads to the retroactive annulment of the converts’ marriages to Jewish spouses
(since under religious law Jews cannot marry non-Jews) and, in cases where the converts
are women, to the annulment of their children’s status as Jews (since the children have not
been born to a Jewish mother). Recently, the Israeli Supreme Court published its decision
84
See, eg R Mendel, ‘Through the Agony of Conversion. I don’t want to be Jewish Anymore’, Ynet, 20
March 2012: www.ynet.co.il/articles/0,7340,l-3863646,00.html (in Hebrew) and the statistics brought there, as
well as ITIM (Organization for Resources and Advocacy for Jewish Life), 2012 Conversion Report page, itim.
org.il/_uploads/dbsattachedfiles/doch_giyur_2012.pdf (in Hebrew).
85
The state’s position on the issue can be found on the Israeli Government’s website – which provides
information for potential converts. See ‘Israel Citizenship Guide’: www.gov.il/firstgov/topnav/situations/
spopulationsguides/ipnationality/ipgiur (in Hebrew). On the various religious opinions in this debate, see
A Adrei, ‘Are We Not Responsible for Them? – More on the Conversion Debate’ (2000) 24 Akdamot 178 (in
Hebrew).
86
HCJ 5079/08 Jane Doe v Rabbinical Court Judge, Rabbi Sherman 2-3 (25 April 2012), Nevo Legal
516 Gila Stopler
in the case of two women whose conversion was retroactively declared void by the
Rabbinical Courts.87 After the women’s appeal to the Supreme Court the Rabbinical
Courts have reconsidered the women’s individual cases and have decided that their con-
versions were not void. The Supreme Court relied on this change in the Rabbinical Courts’
position in order to reject the petitioners’ request to issue an order declaring that the
Rabbinical Courts have no authority to question a convert’s conversion.88 The Supreme
Court’s refusal to issue such a declaration is unfortunate, because it leaves Rabbinical
Courts with the discretion to retroactively declare conversions void in the future, thereby
violating the basic rights of the converts and undermining the state’s attempt to facilitate
conversions.
V. CONCLUSION
As the Israeli example clearly demonstrates, using the establishment of religion as a

means of facilitating national unity is a dangerous gamble, and the deeper the establish-
ment, and the more the state relies on religion as a gatekeeper and/or as a unifying fac-
tor, the greater is the risk. Ben-Gurion has famously confided to the renowned Jewish
philosopher Yeshayahu Leibowitz, who was a vociferous advocate of the separation of
religion and state, that he (Ben-Gurion) established religion in the state so that the state
could control religion.89 Having come from a strong collectivist Eastern European back-
ground, and not having been exposed to enlightenment liberalism, Ben-Gurion and
other Zionist leaders of that time could not have anticipated the effects of the unhealthy
combination of thick religious establishment and liberal ideals which is the marker of
Israel’s religion and state relations for the past decades. In a bizarre twist on the liberal
ideal of religious freedom the Israeli state, including its Supreme Court, has ended up
respecting the freedom of religion of the ultra-Orthodox and Orthodox judges staffing
its state religious tribunals much more than it respects the religious freedom of most of
its citizens, and has consequently lost control over its own religious establishment.
Putting aside for a moment the serious rights violations that a thick establishment of
religion in the state can cause, and which deserve separate treatment, the comparative
cases discussed in this chapter, and especially the cases of Malaysia and Turkey, reveal
an awareness on the part of both these states, of an important truth that Ben-Gurion
identified but which the State of Israel failed to implement, which is that tight state con-
trol over a powerful national religion is a prerequisite if a state intends to use it to pro-
mote its national interests. Perhaps paradoxically, such state control, illiberal though it
may be, can be more conducive to promoting a moderate form of national religion than
an allegedly liberal defence of the religious freedom of those who control the religious
establishment.
87
ibid.
88
ibid.
89
Y Leibowitz, ‘Separation of Religion and State – Summary and Prospects’ (1960) Beterem tpeople.co.il/
leibowitz/leibarticles.asp?id=8 (in Hebrew).
34
The Dilemmas of Identity in a
Jewish and Democratic State:
A Comparative Constitutionalist
Perspective on Bakshi and Sapir,
Gans, and Stopler
SUSANNA MANCINI AND MICHEL ROSENFELD
I. INTRODUCTION
A
LL CONSTITUTIONS, NO matter how abstract or universal they may appear
in their formulation and scope, must necessarily possess an identity1 as do
nation-states that can only achieve unity and coherence as ‘imagined commun
ities’.2 Moreover, constitutional identity and national identity are not identical though
they are related and bound, at least to some extent, to be in conflict with one another.3
Although it is by no means exceptional for a nation-state to experience tensions and
even contradictions within both its national and constitutional identities, Israel stands
out in as much as its cleavages seem to run much deeper and therefore they loom as
much more intractable. Not only does Israel confront a series of obvious profound ten-
sions between its ‘Jewish’ and its ‘democratic’ commitments, but it is also deeply inter-
nally divided over its identity as ‘Jewish’. At one end of the spectrum are secular Israelis,
who understand ‘Jewish’ as meaning a common culture shared by all Jews; at the other,
the ultra-Orthodox who equate ‘Jewish’ with the strictest interpretation of religious
dogma encountered within Judaism. Furthermore, in between these positions are several
others such as those espoused respectively by the modern-Orthodox, more liberal
denominations, such as Conservative and Reform Judaism (which lack official recogni-
tion by the state), and traditional approaches that regard ‘Jewish’ as some blend between
culture and religion approached primarily from the perspective of tradition.
1
See M Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community
(London, Routledge, 2010).
2
B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London,
Verso Books, 1991).
3
See Rosenfeld (n 1). An example of a conflict between the two identities would be a case where national
identity strongly incorporates the polity’s majority religion whereas the constitution affords vigorous protec-
tion to minority religions.
518 Susanna Mancini and Michel Rosenfeld
What further complicates matters is the unique and unprecedented way in which Israel
has been building, and to a large extent continues to build, its identity as a nation entitled
to the geographic location where it is presently situated due to the special history of the
Jewish people. In this connection Zionism has been the major propelling force behind
Israel as an imagined community as Chaim Gans’ chapter amply illustrates.4 Although as
Gans emphasizes, there are many versions of Zionism,5 they all concur on a narrative
whereby the Jewish nation built on some fusion between the Jewish people, the Jewish
religion and Jewish culture had developed the core of its identity prior to establishing its
current links – which started in the late nineteenth century – with the land it claims as
its own and therefore as the legitimate space for it to fulfill its destiny as a fully-fledged
modern nation-state. This is in sharp contrast with the building of nationhood in other
nation-states. For example, in France nation-building was in full force during the 1789
Revolution, but this was in the context of a fully-developed state erected by the absolute
monarchy, and in relation to a population with millenary ties with the territory within
which the French nation was to seek to fulfill its destiny.6 Even in the United States, where
nation-building has taken several generations and been animated by several waves of
immigration, it is after entering American territory, and not before, that new immigrants
became engaged in contributing to American nation-building.
Another vexing difficulty confronting Israel’s endeavours to reconcile its Jewish and
democratic nature relates to a seeming blurring between the country’s Jewish religion/
culture as the actual majority culture and religion within Israel and Zionist based or
inspired arguments for special protection of Jewish culture and religion at the expense of
minority cultures and religions within Israel. Indeed, the latter arguments often give the
impression that, contrary to fact, Jewish culture and religion are presented as vulnerable
within Israel as if they were minority ones. The above-mentioned difficulty could easily
be solved if that were the whole story. But this is not the case to the extent that several of
Israel’s neighbours are hostile to its existence and way of life. In short, within its borders
Israel’s Jewish culture is majoritarian, but within the hostile Middle Eastern region in
which Israel is embedded, Jewish culture is a minority one that is widely regarded with
hostility. Does this justify Israel treating Jewish culture internally as if it were a minority
one?
The unique combination of factors discussed above certainly weighs on Israel’s ability
to build a successful fully-shared national identity and a workable constitutional iden-
tity. Tellingly, in this latter respect, Israel has been unable thus far to adopt a written
constitution in spite of many initiatives in that direction throughout its history.
Nevertheless, through the adoption of Basic Laws and through judicial decisions, Israel
has instituted a constitutional path that has yielded elements that may be used in the
construction of a plausible and coherent constitutional identity. The three chapters
respectively by Bakshi and Sapir, Gans, and Stopler are fully aware of the complexities
surrounding Israel’s endeavours to build a broadly acceptable national and constitu-
tional identity, and each of them, in its own way, provides critiques and suggestions,
that both help clarify matters and suggest how Israel may progress beyond its current
4
See ch 31 in this volume.
5
ibid part II.
6
U Preuss, ‘Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between
Constituent Power and the Constitution’ in M Rosenfeld (ed), Constitutionalism, Identity, Difference and
Legitimacy, Theoretical Perspective (Durham, Duke University Press, 1994) 143.
Dilemmas of Identity: Jewish and Democratic 519
quandaries. We basically agree with Stopler’s analysis and conclusions and will there-
fore only briefly comment on her essay. On the other hand, we disagree for very different
reasons, with both Gans and Bakshi and Sapir. As we will discuss more fully, with
respect to the latter, we do not think there can be any legitimate constitutional justifica-
tion for wholesale exclusion of spousal reunification between Israeli Arabs and their
Palestinian spouses living in the Territories. With respect to Gans, in contrast, our
disagreement is much more nuanced. Nevertheless, we will argue that his egalitarian
Zionism is ultimately unsatisfactory as it is not as egalitarian as he presents it to be.
II. THE CONTRADICTIONS OF ISRAEL’S INTEGRATION OF STATE AND RELIGION
Modern constitutionalism certainly does not require separation between religion and the
state as the American and French Constitutions prescribe. As Stopler indicates, Greece
provides a vivid example of a robust state religion and of a close partnership between
state and religion without exceeding the bounds of constitutionalism.7 Moreover, even
certain secular countries, such as Germany, allow for significant intertwining between
state and religion as exemplified by state sponsored religious education in public schools
and state collection of taxes for distribution to various religious communities.8 The key
from the standpoint of constitutionalism, however, is that the freedom of conscience, of
religion, and from religion be afforded adequate protection. And that, as Stopler convinc-
ingly argues, requires ultimate state control over the state religion.
Although Israel affords full recognition and collective rights to minority religions
through its continuation of the millet system established by the Ottoman rulers over
Palestine, it amply fails the test of modern constitutionalism in relation to its majority
Jewish population.9 This is because, as Stopler systematically demonstrates, Israel has in
essence yielded effective control of the state (Jewish) religion to the Orthodox and in
some cases the ultra-Orthodox over whom it ultimately wields little, if any, control.
This in effect leaves out all other versions of Judaism, including in some cases the mod-
ern-Orthodox, as well as all secular Jews. Accordingly, state deference to the Orthodox
produces clear violations of freedom of, and from, religion as well as of freedom of con-
science. To cite but one example, by giving the Orthodox Rabbinate exclusive jurisdic-
tion over the marriage of Jews,10 and by not providing for any civil marriage, Israel
deprives those Jews who wish to marry under the rituals of Conservative or Reform
Judaism of freedom of religion; those secular Jews who object to a religious marriage of
freedom from religion and freedom of conscience; and those Jews who wish to marry a
non-Jew of basic liberty, privacy, and equality rights routinely vindicated under modern
constitutionalism.11
7
Ch 33 in this volume, part IIIA.
8
E Eberle, Church and State in Western Society: Establishing Church, Cooperation, and Separation
(Burlington, Ashgate, 2011).
9
This is not meant to imply success or failure with respect to Israel’s Christian and Moslem religious
minorities. Those issues remain beyond the scope of the present endeavour.
10
Strictly speaking, it may be possible for an Israeli Jew under the millet system to be married by state rec-
ognized Christian or Muslim authorities, but that would constitute a very rare circumstance that might require
religious conversion or other onerous religious commitments on the part of the would be Jewish spouse.
11
cf Loving v Virginia 388 US 1 (1967) (prohibition against racial intermarriage held to violate due process
and equal protection rights under the US Constitution).
To the extent that the state gives the last word to the Orthodox on matters touching
all Israeli Jews, Israel confronts the kind of constitutional problem and clash with con-
stitutionalism that the much criticized 2012 Egyptian Constitution does. On the one
hand, Articles 43 and 45 of that Constitution protect respectively freedom of belief and
freedom of thought and opinion whereas the Constitution’s Preamble specifies that that
[e]quality and equal opportunities are established for all citizens, men and women, without
discrimination.
On the other hand, however, Article 219 of the new Egyptian Constitution enshrines
[t]he principles of Islamic Sharia
as framed in accordance with

credible sources accepted in Sunni doctrines.
Thus, it appears that both in the Israeli and the recent Egyptian cases, important consti-
tutional rights, such as equality between men and women are ultimately bound to yield
a religious view not shared by a significant percentage of the members of the country’s
majority religion.12
Although the Israeli state defers too much to the Orthodox, it does not completely
yield control to the latter on all issues with crucial religious implications. One problem-
atic case discussed by Stopler is that concerning the Law of Return, 5710-1950.13 The
Law of Return plays a key role in Israel’s Zionist agenda as it favours Jewish immigra-
tion and access to citizenship with the aim of boosting and perpetuating the Jewish
majority in Israel. The Law of Return, however, adopts a much broader criterion to
determine who is a Jew than does Orthodox Judaism. Thus, for example, a person
whose father is Jewish, but whose mother is not, would qualify as a Jew under the Law
of Return, but not under the criteria embraced by the Orthodox. Paradoxically, the par-
tial state control over religion as it pertains to who is a Jew for purposes of the Law of
Return does not mitigate the constitutional deficiencies prompted by lack of state con-
trol over religion in other areas, but it instead aggravates them. Going back to our exam-
ple, the Israeli state spends resources to convince a foreigner with a Jewish father but not
a Jewish mother to leave his country of origin, to settle in Israel and a short time later to
obtain Israeli citizenship. After all that is done, the newly minted citizen who fully iden-
tifies with Israel’s Jewish majority decides to marry a fellow Israeli Jew. Soon thereafter,
the new citizen is bound to find out that he has no right to marriage in his new country
because for the Orthodox Rabbinate with a monopoly on marriage for Jews, he is not a
Jew. Needless to add, this kind of disjunction can only exacerbate the frustrations in the
quest for a viable constitutional identity and even that for a sustainable national
identity.
It is clear, as Stopler’s analysis unambiguously indicates that the current relationship
between the Jewish religion and the state fails the modern constitutionalism test. It is
also true, as many Israelis point out, including secular ones, that things are not as bad as
they seem, as Jews who cannot meet Orthodox criteria for marriage or refuse to submit
12
Stopler emphasizes how giving the Orthodox a monopoly over Jewish marriage and divorce in Israel in
effect deprives Jewish Israeli women of equality with men. See n 7, text accompanying nn 70–72.
13
ibid nn 73–75.
to Orthodox rituals can marry abroad and have the Israeli state automatically recognize
their marriage as valid within Israel.14 Nevertheless, even if one concedes, for the sake of
argument, that recognition of foreign marriages provides some legal, political and social
relief against the official monopoly given by the state to the Orthodox, this does not in
any way alter the utter unacceptability of the monopoly in question from the standpoint
of modern constitutionalism.
To achieve a viable constitutional order and to construct a sustainable constitutional
identity Israel will have to move beyond the current status of the relationship between
the Jewish religion and the state. At the very least, Israel would have to provide for civil
marriage and civil divorce. Beyond that, if the millet system is to be perpetuated, other
denominations within Judaism, such as the Conservative and the Reform, as well as all
Christian and Muslim denominations and all non-Abrahamic religions with a de mini-
mis number of members15 should be given the same rights over the personal status and
relationships of their members as do the Orthodox today. It would also be possible to
move in other directions and emulate some of the countries with a state religion con
stitutionally controlled by the state such as those described by Stopler.16 Moreover, it
would even be conceivable for Israel to move towards a secular model either with
significant entanglement between religion and the state as is the case in Germany or a
more separationist one as in France or the United States. Ultimately, the problem does
not lie with a lack of plausible or suitable constitutional models, but with intractable
political conflict and deep splits among incompatible conceptions of national identity.
Some have argued that Israel does not need a constitution because Jews already have the
Torah. Also, some among the ultra-Orthodox do not believe in the legitimacy of the
State of Israel as they are convinced that only God can restore the Jews to the Biblical
land He once led them to in ancient times. Consistent with this view, Jewish nation-
hood, if at all separable from Jewish peoplehood, would have to be imagined against the
Israeli state to the extent that the latter is considered to have emerged against God’s will.
Others in the Orthodox community would like to enshrine Jewish law, the Halakha, in
the fabric of Israeli constitutionalism while at the other end of the spectrum – but still
within the confines of Zionism – some secular Jews would like to bestow a constitu-
tional dimension on Jewish culture but relegate the Jewish religion to the private sphere.
III. THE RELEGATION OF MINORITIES IN THE DEMOCRATIC PERIPHERY
Bakshi and Sapir discuss at length the link between the human right of all peoples to
self-determination and the right of the Jewish people to statehood.17 They also discuss
different liberal–national theories, in order to sustain that to preserve a people’s unique
culture, an homogeneous (as opposed to a multinational) state is the optimal political
form.18 This discussion is, however, of little help in sustaining their conclusions that
14
Y Merin, ‘The Right to Family Life and Civil Marriage under International Law and its Implementation
in the State of Israel’ (2005) 28 Boston College International and Comparative Law Review 79.
15
It is obvious that it might be impractical to empower a religion with only a handful of members living in
the country. A certain minimum of adherents, such as 1,000 or maybe even 5,000, and a certain minimum of
internal organization may be set by law as a minimum threshold.
16
Ch 33 part III.
17
Ch 32 in this volume, part II.
18
ibid.
limitations on the fundamental rights of Palestinians are necessary in, and compatible
with, a Jewish and democratic state. In the first place, the same arguments that Bakshi
and Sapir use to sustain Jewish statehood can be used to sustain the right of Palestinians
to self-determination and to cultural preservation within the State of Israel. The right
to self-determination has two dimensions: an external one, which enables groups to
build their own state, and an internal one, that states must satisfy to comply with their
international law obligations. The internal dimension of self-determination places an
obligation on states to respect the cultural rights of minorities and to fully include them
in the democratic process.19 Most importantly, however, the point is not whether the
Jewish people are entitled to statehood in order to maintain its culture and identity.
One can fully support Israeli statehood and its ‘Jewish’ character without accepting
the idea that any nation-state can disregard the legitimate cultural and identity-
related rights of sub-national groups, or, worse, establish a system of differentiated
citizenship.
Western political theories have traditionally neglected the claims of minorities. As
Eric Hobsbawm explains, until the first part of the twentieth century, the ‘great nations’
were seen as the carriers of historical development, while smaller, less developed nations
could only progress by abandoning their national character and assimilating with one of
the ‘great nations’.20 Contemporary democracies, however, can no longer rely upon a
high level of consensus on matters such as identity, religion and language as a prerequi-
site for their functioning. Contemporary constitutionalism postulates a close connection
between freedom and equality. Virtually all consolidated democracies protect groups
through a variety of legal tools. In Europe, one can roughly distinguish between ‘multi-
national’ states, such as Switzerland and Belgium, which reject the notion of minority
and promote equality among all national groups, and states which recognize the exist
ence of a majority/minority relationship and provide for the protection of minority
rights through special clauses,21 which are enshrined in the Constitution and are part of
the latter’s fundamental principles.22 Minority protection was listed as one of the pre
requisites that candidate countries had to satisfy prior to their access to the European
Union,23 and during the enlargement process the European Commission monitored very
strictly the implementation of minority protection in Central and Eastern European
countries. As a result, clauses protecting the rights of minorities are now a common
feature of European constitutionalism. France, however, has remained immune to
this trend. Despite the existence on its territory of a vast number of ethnic and linguistic
19
See S Mancini, ‘Secession and Self-Determination’ in M Rosenfeld and A Sajo (eds), Oxford Handbook of
Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 481–500.
20
E Hobsbawm, Nation and Nationalism Since 1780: Programme, Myth and Reality (Cambridge,
Cambridge University Press, 1990).
21
See, eg Costituzione [Constitution] (Italy), Art 6 (‘The Republic protects linguistic minorities through
special laws’).
22
See S Mancini and B de Witte, ‘Language Rights as Cultural Rights. A European Perspective’ in F Francioni
and M Scheinin (eds), Cultural Human Rights (Leiden-Boston, Martinus Nijhoff Publishers, 2008), 247–84.
23
European Council in Copenhagen, 21–22 June 1993, Conclusions of the Presidency, DOC/93/3, s 7Aiii
(‘Membership requires that the candidate country has achieved stability of institutions guaranteeing demo
cracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning
market economy as well as the capacity to cope with competitive pressure and market forces within the Union.
Membership presupposes the candidate’s ability to take on the obligations of membership including adherence
to the aims of political, economic and monetary union’).
minorities, the French legal system does not confer any special status to minority
groups.24 Nevertheless consistent with all other European countries, France does protect
sub-national groups from discrimination in that it confers all individuals regardless of
group membership equal citizenship rights. In other words, irrespective of what consti-
tutional model a state chooses to adopt in order to manage ethnic pluralism, it cannot
depart from formal equality for all its citizens. Multinational states place all groups on
an equal footing, which might result in the prevalence of collective interests over indi-
vidual rights. This is typically the situation in Belgium and, to a lesser extent, in
Switzerland, where equality among groups applies at the federal level, while linguistic
territoriality is the rule within sub-national units. As a consequence, a French-speaking
Belgian will be prevented from exercising his or her linguistic rights within Flanders,
because the collective cultural rights of the Flemish population to preserve its language
and tradition prevails. This is, however, a symmetric situation, because the same pattern
applies in Wallonia to the detriment of Flemish speakers. Moreover, at the federal level,
French and Flemish-speaking Belgians enjoy identical citizenship status. In states which
recognize the existence of a majority/minority relationship, such as Italy, minorities are
not placed on an equal footing with the majority as collectivities, individually, however,
their members enjoy full citizenship rights. In Italy, Article 3 of the Constitution confers
‘equal social dignity’ and ‘equality before the law’ to ‘all citizens’, without distinction of,
inter alia, race, language and religion.25 Moreover, in order to protect and promote the
culture of sub-national groups, and help them overcome the disadvantage that being in a
minority position almost inevitably poses, the Italian legal system grants them special
collective rights, that range from cultural and educational rights to territorially-based
political autonomy. Finally, in democratic states which recognize the existence of a
dominant majority, members of minority groups are always granted the right to exit
from their community and find a place within the majority group.26 In Israel, in contrast,
there are no such rights, as individuals are automatically and permanently assigned to a
group upon birth. The public sphere is made up of closed communities, with no open
space between them. Those who do not (wish to) belong to an officially recognized
group fluctuate in a sort of constitutional limbo, deprived of basic rights, such as the
right to marry. No one is simply an ‘Israeli’ citizen: ‘Israeli’ must be accompanied by
inclusion in one of the officially recognized groups.
Bakshi and Sapir argue for a solution that is inconsistent, we believe, with all models
of managing constitutional coexistence between different ethnic groups. They argue
against a multinational state, in the name of the right of the Jewish people to enjoy their
culture as the dominant group, which is per se a reasonable position, but they are not
prepared to grant full equal citizenship rights to the members of the second largest eth-
nic group in the country. On the other hand, they seem to be willing to grant certain
collective rights to this group, but not as an equal national group, but rather as a cluster
of religious communities. This enables Israel to pursue its millet based system and thus
24
Significantly, in 1999, the Constitutional Council ruled that the European Charter for Regional or
Minority Languages (5 November 1992) CETS 148, is not consistent with the French Constitution because it
confers ‘specific rights to those speaking regional or minority languages within the territories in which such
languages are spoken’ (Decision 99-412 DC, 15 June 1999).
25
Costituzione [Constitution] (Italy), Art 3 (‘All citizens have equal social dignity and are equal before the
law, without distinction of sex, race, language, religion, political opinion, personal and social conditions’).
26
See J Raz, ‘Multiculturalism’ (1998) 3 Ratio Juris 193–205.
preserve the homogeneity of its Jewish majority.27 The result of this unfortunate alchemy
of collective and individual dimensions, however, is that Palestinians in Israel are not
equal either as a sub-national group or as individual citizens. They are indeed separate
and different.
In this respect, the arguments by Justice Aharon Barak in his dissenting opinion in the
Adalah v Minister of Interior case, are right on target.28 The Basic Law: Human Dignity
and Liberty should certainly be interpreted as also including the right to establish a fam-
ily, and this right encompasses the right of the Israeli citizen to receive his/her spouse in
Israel and to carry on their joint life. Hence, the Citizenship and Entry into Israel Law
(Temporary Provision), 5763-2003 (hereinafter: Temporary Provision Law), infringes
on the right to equality of Arab Israeli citizens, notably on their constitutional right to
establish a family. The Temporary Provision Law has a disparate impact, since in prac-
tice it is directed almost exclusively toward Palestinian-Arabs, and thus it discriminates
against them, in comparison to Jewish citizens, in relation to their ability to realize their
right to a family.
The justification upon which the Temporary Provision Law relies for its discrimina-
tory infringement of the rights of Palestinian-Arab citizens is security. Said differently,
Palestinian spouses of Israeli citizens of Palestinian ethnicity ostensibly pose a security
risk solely because of their ethnic background, irrespective of their personal conduct and
of their connection to terrorist groups. Race-based profiling practices have been used
(and justified)29 by various countries in the past to the detriment of different groups.
After 11 September 2001, a clear tendency has emerged worldwide to use terrorist profil-
ing based on national or ethnic origin and religion in the context of immigration con-
trols, to target immigrants of Arab/Muslim background.30 Such practices are radically
incompatible with basic human rights standards, and with the understanding of demo
cracy as a system which treats each individual with equal respect and concern. They
have repeatedly been condemned by international bodies;31 in the case at hand, Justice
27
See the insightful critique by M Karayanni, ‘Two Concepts of Group Rights for the Palestinian Arab
Minority Under Israel’s Constitutional Definition as a “Jewish and Democratic State”’ (2012) 10 International
Journal of Constitutional Law 304, who identifies two distinct concepts of group rights in respect to the
Palestinian-Arabs: a ‘thin’ concept which pertains to them as a single national group, according to which the
democratic values of the State of Israel will accommodate them with only a small measure of group rights, and
only to the extent that this accommodation will not jeopardize the hegemonic status of collective Jewish inter-
ests, and a ‘thick’ concept that pertains to the Palestinian-Arabs as a cluster of religious communities, which
strengthens the religious identity of this community.
28
29
Korematsu v United States 323 US 214 (1944).
30
Eg the United States has implemented policies and practices in the field of immigration, designed to coun-
ter terrorism that single out certain groups of immigrants based on their country of origin or nationality and,
indirectly through the choice of the targeted countries, their ethnicity and religion. Under the so-called
‘Voluntary Interview Program’, male immigrants, who had entered the United States after January 2000 and
were not suspected of any criminal activity, were selected for ‘interviews’ only because of their age and country
of origin, that is a country ‘in which intelligence indicated that there was an Al-Qaida terrorist presence or
activity’. Although a list of such countries was never provided, about 8,000 men eventually interviewed were
Arab and/or Muslim. See Migration Policy Institute, America’s Challenge: Domestic Security, Civil Liberties,
and National Unity after September 11 (2003) 41.
31
See, eg UN Human Rights Council, Implementation of General Assembly Resolution 60/251 of 15 March
2006 entitled ‘Human Rights Council: Report of the Special Rapporteur on the Promotion and Protection of
Human Rights and Fundamental Freedoms while Countering Terrorism’ (29 January 2007) UN Doc A/HRC/4/26,
para 83 (‘Terrorist-profiling practices that are based on “race” are incompatible with human rights. Profiling
based on ethnicity, national origin and/or religion involves differential treatment of comparable groups of people.
Such differential treatment is only compatible with the principle of non-discrimination if it is a proportionate
Barak’s dissenting opinion unmistakably shows how the harm race-based profiling does
to human rights outweighs all security considerations.
In her separate dissenting opinion, Justice Ayala Procaccia points to the demographic
preoccupations that lurk behind the security argument.32 Bakshi and Sapir argue that a
nation-state enables the majority to implement an immigration policy that coincides
with the interest in preserving the national culture. Immigration policies vary from
country to country. Some countries have particularly restrictive policies in this field. It
is, however, not compatible with basic human rights standards for a state to apply a
race-based classification in the field of immigration, targeting the race of its own citi-
zens. The only potentially justifiable exceptions to family reunification are those added
by the third version of the Temporary Provision Law, which broadened the prohibition
on reunification of families and applied it also to petitioners whose country of origin
was Iran, Lebanon, Syria, or Iraq, because these are countries hostile to Israel. But the
West Bank is not comparable to a hostile country: it is occupied territory and, as the
Israeli Supreme Court has unambiguously stated, the Palestinians in the West Bank have
human rights which must ‘stand at the center’ of the occupiers’ considerations.33
The state model that emerges from Bakshi and Sapir’s analysis of the Adalah v
Minister of Interior case is not consistent with any model implemented in a fully-fledged
democratic state. In 2011, the Council of Europe Commission for Democracy through
Law (the so called ‘Venice Commission’) expressed a number of concerns regarding the
new Hungarian Constitution. In particular, the Commission pointed out that the latter
seemed ‘to be premised on a distinction between the Hungarian nation and (other)
nationalities living in Hungary. The Hungarian nation, in turn, also includes Hungarians
living in other states’.34 The Commission was also troubled by the language of the
Preamble, which ‘has been written in the name of “we the members of the Hungarian
nation”, intimating that members of the “nationalities living with us” are not part of the
people behind the enactment of the Constitution’. The latter, according to the
Commission,
should be seen as the result of the democratic will-formation of the country’s citizens as a
whole, and not only of the dominant ethnic group. Therefore, the language used could/should
have been more inclusive (such as, for example ‘We, citizens of Hungary . . .’).35
means of countering terrorism. Profiling practices based on ethnicity, national origin and/or religion regularly
fail to meet this demanding proportionality requirement: not only are they unsuitable and ineffective means of
identifying potential terrorists, but they also entail considerable negative consequences that may render these
measures counterproductive in the fight against terrorism’).
32
Ch 32, text accompanying n 60.
33
HCJ 2056/04 Beit Sourik Village Council v Government of Israel 58(5) PD 807 [2004] (in Hebrew) para 34
(‘The Hague Convention authorizes the military commander to act in two central areas: one – ensuring the
legitimate security interest of the holder of the territory, and the other – providing for the needs of the local
population in the territory held in belligerent occupation . . . The first need is military and the second is civil-
ian–humanitarian . . . The concern for human rights stands at the center of the humanitarian considerations
which the military commander must take into account’).
34
According to the Preamble, ‘we promise to preserve the intellectual and spiritual unity of our nation torn
apart in the storms of the last century’. This statement implies obvious historical references and should be read
in conjunction with the Magyarország Alaptörvénye [Fundamental Law of Hungary], 1 January 2012, Art D,
establishing Hungary’s ‘responsibility for the fate of Hungarians living beyond its borders’.
35
European Commission for Democracy through Law (Venice Commission), Opinion on the New Constitution
of Hungary, Opinion no 621/201, paras 39–40.
The exceptional situation of Israel, which we fully recognize, should not serve as a
justification for the entirely one-sided reading of human rights provisions and require-
ments that Bakshi and Sapir provide. Dignity, equality and non-discrimination are fun-
damental human rights that pertain to all human beings, and must be guaranteed by all
states, irrespective of how they manage ethnic pluralism in their constitutional system.
The Jewish majority’s undisputable right and legitimate desire to preserve and promote
its culture is not irreconcilable with equal respect and consideration for all. So long as
Palestinian-Arabs will constitute a minority in a Jewish state, a balance must be drawn,
in order not to exclude them from the enjoyment of fundamental rights and to deprive
them of the status of full Israeli citizens.
IV. HOW EGALITARIAN IS ‘EGALITARIAN’ ZIONISM?
There is a debate in Israel among proponents of different strands of Zionism and among
all the latter and post-Zionists. As stressed by Gans, post-Zionists wish to strip Israel of
its Zionist vestiges and endow it with the kind of individualistic constitutional culture
and identity that is prevalent in France and the United States. One virtue of post-Zionism
is that it seems particularly well suited to remove all badges of second-class citizenship
that, as noted in part III above, currently afflict Israel’s Arab citizens. Gans argues,
however, that post-Zionism is neither necessary nor desirable, and that Zionism need
not be inequitable so long as the ‘egalitarian’ version of it that he has put forth is chosen
over its rival ‘proprietary’ and ‘hierarchical’ versions.36 Whereas we believe that Zionism
provides a plausible basis for constructing a viable constitutional identity for Israel,
none of the arguments in favour of any of the three versions discussed by Gans strikes us
as persuasive. Moreover, as we shall attempt to demonstrate below, Gans’s version of
Zionism is certainly more egalitarian than are its rivals, but not egalitarian enough to
satisfy the evolving demands of contemporary constitutionalism.
We agree with Gans that ‘proprietary’ Zionism, which justifies Jewish entitlement to
Israel on the basis of the Bible,37 amply fails any plausible criteria compatible with mod-
ern constitutionalism. We also agree with Gans that ‘hierarchical’ Zionism which is
based on an ahistorical claim that every people has a right to self-determination and that
therefore the Jewish people has such a right within the State of Israel, while less objec-
tionable than ‘proprietary’ Zionism, is nevertheless constitutionally deficient as it would
relegate Arabs within Israel to second-class citizenship.38 Gans goes on to claim that his
‘egalitarian’ Zionism by submitting Arab claims for a homeland on the same footing as
their Jewish counterpart cures the egalitarian deficiencies of the two rival versions of
Zionism and ought therefore to pass constitutional muster.39
Gans bases his own version of Zionism on three arguments advanced by the other two
versions – namely, ‘(a) the historical link of the Jews to the Land of Israel; (b) the right to
national self-determination; and (c) the Jewish history of persecution’40 – but he claims
that by giving these a different interpretation he overcomes the problems that saddle the
36
Ch 31, part III.
37
ibid part IIA.
38
ibid part IIB.
39
ibid part IIC.
40
ibid.
rival versions’ gloss on these arguments.41 Before proceeding any further, however, we
should point out that none of these arguments, under any plausible interpretation, pro-
vides a sufficient constitutional basis for the implantation of Zionism as the core founda-
tion of Israeli national and constitutional identity. Indeed, the historical link of the Jews to
the Land of Israel, in the sense understood by Gans that Israel has always been central in
the self-understanding and aspiration of the Jewish people, seems no more sufficient to
entitle the Jews collectively to that geographic parcel than would a Basque claim to a terri-
tory with which that people strongly identifies but which encompasses lands that now
belong in part to France and in part to Spain. Concerning the argument based on self-
determination, moreover, even assuming that every people and every nation has a right to
self-determination,42 why would the Jewish people have a compelling claim to rule Israel,
a land they ceased ruling over and left for the most part two millennia ago? The pre-
existence of a ‘nation’, and the existence of a relationship between the latter and a given
territory are necessary conditions for territorial self-determination; they do, however, pose
a first problem, in that various different groups might have equally legitimate claims on the
same territory. Moreover, even if in principle all nations should be granted the right to
their own state, in practice, to satisfy the aspirations of given nationalities through state-
hood, necessarily implies the frustration of other nationalities.43 Finally, regarding perse-
cution, given a history of countless centuries of endless persecution culminating in the
Holocaust, there is a strong case based on justice, fairness, and human decency that call for
Jewish people to have their own homeland. But why should that be in what is today Israel?
Is not there a much better case under restitutive and compensatory justice for a homeland
for the Jews being located in a ceded portion of Germany’s territory? Or else, on land
ceded voluntarily by a country, such as Australia or Canada, with huge virtually uninhab-
ited spaces?
Notwithstanding the above critiques of the three versions of Zionism discussed by
Gans, there is an alternative version of Zionism that seems amenable to sound constitu-
tional justification. That alternative version would draw on Israel’s existence as a
nation-state for the past 65 years, as a member of the United Nations recognized by most
other countries in the world, which happens to have a citizenry that is in its large major-
ity Jewish. Whereas it is true that Jews have always had Israel close to their heart since
the beginning of the diaspora, that they occupied significant portions of Palestine prior
to independence in 1948, and that their yearning for self-determination as a nation may
have been particularly acute given the horrendous history of persecution to which they
were subjected, these do not add up to any valid constitutionally grounded claim for a
Jewish state. On the other hand, the alternative version under discussion, which we may
label as ‘State Democratic Majority’ Zionism, is constitutionally sound as should
become plain if one keeps in mind that there are two dominant constitutional approaches
that are compatible with the tenets of contemporary constitutionalism, as already dis-
cussed in part III. The first of these is the one centered on individualism and the second
approach, in contrast, does give central importance to collective rights, whereas the indi-
vidualist approach is incompatible with any plausible conception of Zionism and would
therefore call for a post-Zionist constitutional identity and order, its rival collectivist
41
ibid.
42
But see the discussion above in part III.
43
E Gellner, Nations and Nationalism (Ithaca, Cornell University Press, 1983).
approach would be compatible with the version of Zionism that we briefly outlined
above. In Israel Jewish culture could inform the country’s constitutional identity and
could frame a collectivist constitutional approach that could satisfy the precepts of con-
stitutionalism much like the Belgian, Canadian and Swiss Constitutions do.44 Consistent
with this, the three arguments that Gans advances as justifying the three versions of
Zionism would have no impact on Israel’s constitutional identity, but they could cer-
tainly figure, at least in some interpretations, in the making and evolution of Israel’s
national identity.
The collectivist constitutional approach gives rise to a special obligation to vindicate
the collective and individual rights of minorities, and particularly of significant and his-
torically grounded minorities. Moreover, failure to abide by the obligation in question
would deprive any project based on majority collective goals of constitutional legiti-
macy. Israel has Arab citizens that represent 20 per cent of the country’s population and
that for the most part have lived within Israel’s current boundaries for many years before
the country’s independence. In view of Gans’s claims for his ‘egalitarian’ Zionism, we
will now briefly focus on whether its deployment would lead to the minimum necessary
individual and collective needs of Israel’s Arab citizens to comply with the basic precepts
of constitutionalism.
Gans starts from the unimpeachable premise that ‘self-government and cultural pres-
ervation rights . . . should be granted equally to all homeland groups’.45 He then pro-
ceeds correctly to link equality to proportionality. If the state is obligated to provide the
minimum feeding needs of indigent children then a family with six children ought to get
double in state subsidies than a family with three children. But from these unassailable
premises, Gans draws the wrong conclusion as he in essence asserts that because Jews
are much more numerous than Arabs in Israel, it is the latter’s cultural and self-
government rights that should prevail. What seems to lead Gans astray, is that whereas
numbers matter both collectively and individually regarding equality, they do not matter
in the same way. Spain should not force Catalans to use Spanish in their dealing with
local authorities in Cataluña because the vast majority of citizens in Spain are native
Spanish speakers. Forcing all citizens to deal with public authorities in French may be
justified in France because the country has an exclusively individualistic constitutional
approach. But once group rights are recognized, the group, and not the individual,
becomes the subject of equality. This means that to the extent that Zionism commits
Israel to a collectivist constitutional approach, Israel’s Arab minority ought to be enti-
tled to both self-government and cultural collective rights. Now it is true that propor-
tionality and numbers matter even in the context of group related equality. If Arabs
represent only one-fifth of Israel’s population then they should receive proportionately
less from the state to promote their cultures than Jews should, but that would not in any
way detract from the Arab minority’s collective right to promote their own culture with
state assistance. Gans, however, argues for individual equality for Israeli Arabs, but
seems to leave no room for Arab group rights within Israel. And that represents a serious
depravation of equality in the context of a collective constitutional approach.
44
Israel could even supplement a cultural collectivist constitutional approach with the constitutional incor-
poration of Judaism as its state religion by emulating the Greek example or that of any other country that
grants the state ultimate control over religion.
45
Ch 31, part IIC.
V. CONCLUSION
All three essays examined above highlight the constitutional, political and ideological
obstacles confronting Israel in the context of constructing a sustainable constitutional
identity that may mesh successfully with a constitutionally viable narrative that would
promote a national identity incorporating essentials of Jewish culture and history, and
even conceivably religion. These essays, moreover, suggest directly or indirectly how
Israel may preserve a Zionist vision and agenda while endeavouring to satisfy the funda-
mental tenets of contemporary constitutionalism. Stopler underscores how Israel’s
current handling of the relationship between religion and the state stands as an impedi-
ment to a successful constitutional handling of the matter, but at the same time she sheds
light on how the country might overcome this difficulty through greater state control
over religion. Bakshi and Sapir tackle a thorny human rights issue that closely split the
Israeli Supreme Court, but in our opinion came to the wrong solution because they shut-
tle between the individualist and the collectivist constitutional approaches without
remaining fully consistent to either. Gans makes the case that Zionism is consistent with
contemporary constitutionalism, but his own ‘egalitarian’ Zionism comes up somewhat
short in that it leaves Israel’s Arab minority with the same individual rights as the coun-
try’s Jewish majority, but not with collective rights comparable to those granted to
minorities in contemporary constitutional democracies, such as Italy and most European
countries. In the end, Israel seems to have multiple paths to viable combined and differ-
entiated constitutional and national identities. From our vantage point at least, the most
intractable question remains whether Israel will be able to muster the political will
necessary to translate its constitutional potential into a fully-fledged constitution.
Index
adjudication, see constitutional adjudication common attitude to, 42
anti-formalism, 162–3 ‘Constitutional Revolution’, 3, 100–1
implications, 163 constitutional scope, 102
ease of amendment, 20
Basic Law: Freedom of Occupation (BLO), 2, 4, 51, 55 impact on Knesset legislation, 47
constitutional rights, 73–83, 396–7 institutional aspects of constitutional law, 2
development of constitutional law, 159, 177 interpretation by the courts, 48–50, 315
limitation clause: judicial review and, 48–50, 100–1
proper purpose, 78 legal status, 41
‘notwithstanding’ mechanism, 20, 73–83 limitation clauses, 160–1
proportionality test, 21, 192–3 national security, 431, 432–4
see also human rights; limitation clause proportionality test, 161
Basic Law: Human Dignity and Liberty, 2–3, 177 redesigning, 68
dignity, 3, 279–81 role, 42, 43–7
interpretation of right to human dignity, 269, 277, see also Basic Law: Freedom of Occupation; Basic
283–4, 315 Law: Human Dignity and Liberty;
justification of recognition, 275–7
legislator’s intention, 273–5 Canada, 78–9, 86
partial recognition, 277 constitutional deviations, 88–90
recognition of unenumerated rights, 270–3 constitutional rights, 383
social and economic rights, 278–9, 315 fiscal objections to social welfare rights, 342
societal values as human dignity, 277–8 judicial appointments, 97, 98
legislator’s intention, 273–5 judicial review, 96, 123
liberty, 3, 269 legitimacy of state action, 258
movement from and to Israel, 3 ‘notwithstanding’ clause, 13–14, 66, 74, 75–6
personal autonomy, 283 proportionality, 190, 197, 199, 209, 213, 217–18,
privacy, 3, 269 220
property, 3 social welfare rights, 342
protection from humiliation, 271, 277, 282–3 use of foreign precedents, 155–6, 161
regulation of national security matters, 434 Central Elections Committee, 245
scope of protected rights, 102, 267–8, 297–9 citizenship:
security threats, 455 Belgium, 523
unenumerated constitutional rights, 269–70 conditions for:
freedom of expression, 269 France, 484
freedom of religion, 269 United States, 484
interpretation of right to human dignity, 269, eligibility for social welfare rights, 356
315 Europe, 358–9
justifying the recognition, 275–7 Israel, 356–7, 362–6
recognition of, 270 South Africa, 357–8
right to a clean environment, 270 family reunification, 494–5
right to a minimal standard of living, 269 France, 484, 525
right to an adequate standard of living, 270 Law of Return, 520
right to education, 270 minority rights, 492
right to equality, 269 nationality distinguished, 483
right to establish a family, 524 political nationalism, 489
social and economic rights, 278–9, 315 social citizenship, 356–9
societal values as human dignity, 277–8 Zionism, 520, 522, 526
see also human rights; limitation clause civil and political rights:
Basic Law: The Government, 443–4 social and economic rights distinguished, 343
limitations of Government’s powers, 433–4 concentrated judicial review, 121, 127–8, 131–2
national security, 432–4, 455 concept, 123–4
regulation of emergency situations, 432 diffuse model distinguished, 128
Basic Laws, 2 institutional variations, 130–1
basis for Israeli Constitution, 41–3 see also judicial review
532 Index
consensus, 53–4, 59 constitutional rights:

constitutional adjudication, 94–9, 139–40 application to the judiciary, 380, 384–5, 420
adjudication models: Basic Laws, 397
Common Law model, 96–9 Canada, 383
Continental Europe, 95–6, 160–1 common law and, 384–5
democratic accountability and, 95–6, 97–9 constitutional ‘moments’:
prevalence of foreign law, 151–2 fixed revolutionary, 305
United States, 94–5 non-revolutionary, 305
courts, 140–2 perpetual revolutionary, 305–6
European law, 160–1 direct application model, 380, 381–3, 420
hybridity, 145–7 power of individuals as the state, 381
judicial accountability, 91–4 privatisation, 382
judicial review, 142–5 European Convention on Human Rights, 386
political accountability, 140–2 indirect application model, 380, 385–7, 419, 421
use of foreign law, 151–2, 160–72 definition, 385
constitutional law, 41–3, 53, 56 European Convention on Human Rights, 386
constitutional adjudication, 94–9 impact on interpersonal relationships, 399
democratisation, 57 Israel, 397–8
judicial accountability, 91–4 individual and, 379
judicial review, 43, 48, 57–8, 105–8 interpersonal relationships and, 399
justification for, 112–20 Israel, 397–8
legitimacy and, 108–12 legal variables, 425–6
majestic Constitutionalism, 73–90 models:
‘notwithstanding’ mechanism, 73–90 application to the judiciary, 380, 384–5
substantive constitutional law, 44, 48–50 direct application model, 380, 381–3
United States, 67 indirect application model, 380, 385–7, 419, 421
use of foreign law, 156–63 non-application model, 380, 383, 420, 424
constitutional models, 50-7 non-application model, 380, 383, 420
adjudication: objective values, as, 388
Common Law model, 96–9 power of individuals as the state, 381
Continental Europe, 95–6, 160–1 private law and, 379–80, 419–26
democratic accountability and, 95–6, 97–9 interpreting private law, 389–92
prevalence of foreign law, 151–2 privatisation, 382
United States, 94–5 public law:
creating public dialogue, 9, 12–14 non-application model, 380, 383, 420, 424
current Israeli model, 20–22, 51–2 scope, 386
defending basic values, 9–12, 15–16 South Africa, 380
democracy-reinforcing constitutionalism, 186–8 state and, 379
preservative constitutionalism, 186 third parties, 379
serving as a silencing mechanism, 9, 14–15 United States, 384
transformative constitutionalism, 173–86 constitutional supremacy, 206
weaknesses, 53–4 constitutions:
see also constitutional adjudication; constitutional adoption, 1–2
law; judicial review aims, 28
constitutional ‘moments’: compromises, 61–3
fixed revolutionary, 305 ‘Constitution of Conversation’, 67
non-revolutionary, 305 role of judges, 68
perpetual revolutionary, 305–6 ‘Constitution of Settlement’:
‘Constitutional Revolution’, 3, 47, 92, 120, 137–8, United States, 68
178, 286, 403, 451 constitutional supremacy, 206
consensus, 172, 298 content and form, 1, 2
constitutional adjudication, 100–2 creating public dialogue, 9, 12–14
constitutional law, 156–63 defending basic values, 9–12
expansion of judicial review, 116 determination of legal rules, 43
majestic Constitution, 76–7 entrenchment, 206
political accountability of the judiciary, 102 form and content:
property law, impact on, 414 consensus, 2
supremacy of Basic Laws, 206, 295 imposed constitutions, 60
use of foreign law, 151–2 Israeli Constitution:
see also Basic Law: Freedom of Occupation; Basic Basic Laws, 41–3
Law: Human Dignity and Liberty; Basic definition as a ‘Jewish’ state, 487–9, 503
Laws demographic goals, 498–501
Index 533
majestic Constitution model, 81–3 discrimination, 404, 469

national identity and religion, 503 access to medication and health services, 311–13,
Orthodox control, 511–13, 517, 519 319, 322, 328, 338, 374
proportionality doctrine, 192–4, 209 administrative equality, 409–10
relationship between religion and the state, age discrimination, 342
503–5, 510–11, 519–21 citizenship rights, 362
rights of minorities, 522–3 constitutional equality, 409
role of a constitution, 41 Drittwirkung doctrine, 184
Supreme Court and jurisdictional capacities, Israeli Arabs, 237, 496
124–5 Palestinian Arabs, 524
judicial reinforcement, 206–7 racial discrimination, 480–1
‘notwithstanding’ clause, 20–2 residency rights, 362
overriding the constitution, 22 right to equality, 275
rationales for: right to a family, 496
creating public dialogue, 9, 12–14 security threats:
defending basic values, 9–12 pre-emptive measures, 446–50
serving as a silencing mechanism, 9, 14–15 social rights entitlement, 343, 350, 359–61
serving as a silencing mechanism, 9, 14–15 Israeli Supreme Court (ISC) intervention, 187
United States, 68 Zionism, 476, 477 – 8, 526
see also Israeli Constitution see also family unification; human dignity
contract law: dominant instrumentalist theory, 29
application of human rights law, 416 Drittwirkung doctrine (impact on third parties), 174,
contractual patterns, 415 379, 385
nature of parties to a contract, 416–17 Germany, 182
private law, 415–17 Lüth case, 182
types of alliance: rise in Israel, 183–4
contract work contracts, 415 South Africa, 182
insurance contracts, 415 United States, 183
present contracts, 415
rental contracts, 415 elitist dominance, 28, 30–31, 136
sales contracts, 415 European conception of rights, 161
types of contract: judiciary, 27, 133, 146
relational contracts, 415 emergency constitution, see national security
standard contracts, 415 European Convention on Human Rights, 65, 98, 191,
creation of public dialogue, 9, 12–14 199, 359
appropriate constitutional model, 18 –20 constitutional rights, 386
function of a constitution, as a, 12 indefinite detention, 442, 468–9
weaknesses of the model, 12–13 right to a fair trial, 468
creative/purposive interpretation: European Court of Human Rights, 164, 212, 345
growing opposition, 25 closed material procedure (UK), 465
judicial review, 26 deportation issues, 468–9
eligibility for social welfare rights, 358–9
Declaration of Independence, 1, 54, 430 proportionality, 199–201
Constituent Assembly, 1–2 social citizenship, 358–9
definition of Israel as a ‘Jewish state’, 487, 510, European Court of Justice, 164, 190, 195
515 European Union, 164, 171, 191
egalitarian Zionism, 479 consensus, 61
elections for legislative authority constitutional history, 61
hierarchical Zionism, 477 proportionality of law, 195
process of enacting a Constitution, 1–2 protection of human rights, 64–5
proprietary Zionism, 475 minority rights, 522
Provisional Council of State, 1–2
democracy-reinforcing constitutionalism, 186–8 family unification, 480
demographic goals of the State of Israel: academic discourse, 499–500
family unification, 498–501 background, 494
legal reasoning, 498–9 demographic goals of the State of Israel,
legitimacy, 498 498–501
marriage, 511–13 legal reasoning, 498–9
diffuse judicial review, 121, 125–7, 132–6 legitimacy, 498
concentrated model distinguished, 128 judicial regulation, 496–8
concept, 123–4 legal reasoning, 494–8
see also judicial review legislative regulation, 494–5
534 Index
family unification (cont): social citizenship, 356

rights of minorities, 522–3, 525 transformative constitutionalism, 173, 174, 175–6,
right to a family life, 496 207–8
right to equality, 496 positive rights, 179
see also discrimination rhetoric of values, 176–7
foreign constitutional law, 210–13 global constitutionalism, 205–7
applications in ISC, 152 definition, 205
criticism in Israel, 165–72 impact, 205
bad comparisons, 167–9 Greece, 506–7
cherry-picking by judges, 167
undermining original intent, 166 ‘Harari’ decision, 2, 100, 106, 157, 177, 267, 295
undermining sovereignty, 166 health, see right to health
definition, 152 Health Services Basket (HSB), 311–12, 320
global constitutionalism, 212–13 determination of the basket, 324, 336
negative impact: discretion of the basket committee, 324
false sense of consensus, 172 human dignity, 279–84
interrelations between countries, 169 expanding the scope, 297–9
interrelations between courts, 169 Germany, 176, 182
ratching up effect, 169–70 Israel, 102, 178, 268, 275–7
transjudicialism, 170–2 Basic Law, 267–8
prevalence in Israeli constitutional adjudication, central pillar, as a, 269–70
152–5 humiliation and, 271, 277, 282–3
reasons, 156–65 interpretation, 181, 270–3
prevalence in other jurisdictions, 155–6 legislator’s intention, 274
Canada, 155–6 protecting societal values, 277–8
South Africa, 156 protection of autonomy, 282–3
proportionality, 210 scope, 268
reasons for prevalence in Israel: social and economic rights, 278–9
‘Constitutional Revolution’, 159–60 South Africa, 177, 182
geopolitical isolation, 164, 211 see also Basic Law: Human Dignity and Liberty;
historical background, 156–60 human rights
lack of historical case law, 163–4 human rights:
non-formalist nature of constitutional law, administrative equality, 409–10
162–3 constitutional equality distinguished, 410
non-textual nature of constitution, 156–60 Basic laws and protection of, 47–8
professional and academic relationships, 164–5 clashes with private law:
reliance on interpretation, 211 administrative equality, 409–10
France, 61, 96, 299, 474, 506, 518, 528 constitutional equality, 409
constitutional judicial review, 123 constitutional norms, principles and rules, 407
cultural identity, 526–7 constitutional relevance, 408
cultural neutrality and, 484 contract law, 415–17
rights of minorities, 521– 3 hierarchy of rights, 408
freedom of speech, 241 nature of entities, 412–13
offence to feelings and, 248–54 negative rights, 409
positive rights, 409
Gaza Disengagement Plan, 249–50, 343–4 property law, 414–15
Germany, 10, 521 sub-constitutional value, 408
constitutional court, 96 constitutional equality, 409
constitutional national security, 437 administrative equality distinguished, 410
constitutional rights model, 386, 422 - 4 individual rights and the courts, 37–8
Drittwirkung doctrine, 182 Jewish right to a nation-state, 489–94, 521–6
ethno-cultural nationalism, 474 judicial review and protection of, 140
human dignity, 176 minority rights, 30
‘imposed’ constitutions, 60 private law, in, 401–18
integration of state and religion, 519 unresolved clashes, 407
judicial influence on Israeli law, 165 protection, 30
judicial review, 123 derogation in states of emergency, 436
diffuse judicial review, 131 right to culture, 489–93, 521–2
legitimacy of state action, 259 right to refrain from persecution, 493–4
proportionality doctrine, 185, 190, 209, 220 right to self-determination:
illegitimate reasons, 257 compliance with international law obligations,
three-pronged formula, 195, 213 522
Index 535
right to build a state, 522 marriage, 519

rights of minorities, 522–3 unity function of religious establishment,
rights of minorities, 522–3 513–16
scope and weight, 30 rights of minorities, 522–3
waivable nature of rights, 410–12 role of a constitution, 41
see also right to health; social welfare rights judicial review, relationship with, 41
Hungary: Supreme Court and jurisdictional capacities,
rights of minorities, 525 124–5
Israeli Supreme Court (ISC):
Israeli Constitution: criticism of growing powers, 25
Basic Laws, 41–3 doctrines of administrative law, 2
definition as a ‘Jewish’ state, 487–9, 503 elitist dominance, 28, 31
demographic goals, 498–501 holistic theory, 286–8
family unification, 498–501 three-track democracy, 285
legal reasoning, 499–501 interpretation of substantive constitutional law,
legitimacy, 498 44, 67
marriage, 511–13 Basic Laws, 54–7
eligibility for social welfare, 356–7, 362–6 invalidating statutes:
establishment, 1 principle of equality, 54–5
Jewish nation state as a human right: judicial activism, 2, 25–7
justifications, 489 - 94 national security issues, 452 - 3
right to culture, 489–92 judicial moderation and, 44
right to refrain from persecution, 493–4 judicial review, 361–2
judicial review, 41, 91, 139–47 burden of proof, 362
arguments against, 27–9 jurisdictional capacities:
arguments for, 29–30, 32 High Court of Appeals, 124
background, 106–8 High Court of Justice, 124–5
constitutional adjudication models, 94– 9, limiting governmental power, 2
140–2 protection of human rights, 2, 30–1
double hybrid model 128–9 social welfare rights, 361–2
‘Constitutional Revolution’, 100–2, 131 three-track democracy, 288–95
diffuse judicial review, 121, 123–8, 132–7 assumptions 290–2
hybridity, 128–9, 145–7 legitimacy, 289
impact of Basic Law: Human Dignity and see also judicial activism; judicial review
Liberty, 101
influence of common law system, 99–100 Japan, 60
institutional considerations, 43–6, 130 Jewish Majority in Israel, 498
instrumentalist / meritocratic justification, 30, Jewish nation-state, see Israeli Constitution
32 judges, see judiciary
judicial accountability, 91–4, 140–2 judicial accountability, 91–2
justification, 91, 105–20, 142–5 constitutional mechanisms, 92–4
legal reasoning, 115–20 appointment processes, 93
legitimacy, 102–3, 108–14 constitutional text, 92–3
opposition to, 25, 106–8 judicial tenure, 93
right to a hearing, 33–40 judicial activism, 2, 25–7
rules and discrepancies with Basic Laws, 48 anti-formalism, 162–3
social welfare cases, 361–2 court intervention in legislative decisions, 26
Supreme Court and jurisdictional capacities, creative interpretation, 26
124–5 increasing, 162–3
United Mizrahi Bank v Migdal Cooperative legitimacy of military activities, 452 -3
Village, 101–2 judicial review, 41, 91, 107, 121–2, 124, 139–47
majestic Constitution model, 81–3 arguments against, 27, 29
grandeur and dignity, 79 anti-democratic, 27
national identity and religion, 503 elitist dominance, 28
Orthodox control, 517 arguments for, 29, 32
marriage, 511–13, 519 superior knowledge of judges, 29–30, 32
proportionality doctrine, 209 background to Israeli adoption of judicial review,
overarching principle, 192–3, 194 106–8
tool in rights-protection issues, 192, 194 common law systems, 96–8
relationship between religion and the state, 503–5, appointment of judges, 97
510–11, 519–21 judicial accountability, 97
gatekeeper function of religious law, 511–13 power of courts to review legislation, 98
536 Index
judicial review (cont): legislative, relationship with, 43

concentrated judicial review, 121, 127–8, 131–2 protection of rights, 29
concept, 123–4 role, 44, 65
diffuse model distinguished, 128 see also Israeli Supreme Court; judicial account-
institutional variations, 130–1 ability, judicial activism
legal reasoning, 136–7 Justice and Security Bill (UK), 463, 465, 466–7
constitutional adjudication models, 94, 140–1
Common Law model, 96–9 Knesset, 2–3
accountability, 141–2 accountability, 141
Continental Europe, 95–6 appointment of judges, 69
double hybrid model, 128–9 Basic Laws, 22, 41–2, 43, 44, 47–8, 51–2, 54–5, 77,
United States, 94–5 99–102, 294–5
constitutional methodology, 112–14 emergency constitution and, 432–4
Constitutional Revolution, 100–2, 131 Constitution, Law and Justice Committee, 24,
creative/purposive interpretation, 25–6 131
diffuse judicial review, 121, 125–7, 132–6 duty to uphold Basic Laws, 44
concentrated model distinguished, 128 emergency constitution, 434–5
concept, 123–4 Basic Laws and, 432–4
legal reasoning, 136–7 establishment, 2
hybridity of judicial review in Israel, 128–9, 145–7 family reunification, 494–8
impact of Basic Law: Human Dignity and Liberty, human dignity, 267, 273–5
101 human rights protection, 174
implications, 39 constitutional rights, 299–301
influence of common law system, 99–100 protection of individual rights, 38
institutional considerations, 43–6 impact of basic laws, 47
concentration of power of judicial review in judicial review, 106–8, 114, 119, 130–1
Israeli Supreme Court (ISC), 130 justiciability, 113–14
establishment of a constitutional court, 130 legitimacy and, 108–12
instrumentalist / meritocratic justification, 30, 32 ‘notwithstanding’ clause, 21–2, 73–4, 78–82
judicial accountability, 91–4, 140–2 constitutional amendment and, 83–9
justification, 91, 105–20, 142–5 role in national security, 448–50
legal reasoning, 115–20 activist approach, 450–3
legitimacy of judicial review, 108–9 detention of suspects, 448–9
legitimacy, 102–3, 108–12 evolving involvement, 448–50
concept, 108 legitimising pre-emptive measures,
constitutional methodology, 112–14 446–50
counter-majoritarian difficulty, 108 limiting police powers, 448
opposition, 25, 106–8 minimalist approach, 446–8
primary legislation, of, 106–7 regulating responses to security threats,
protection of human rights, 140 453–4
right to political participation, 27 structure, 68–9
right to a hearing, 33–7 supremacy over courts, 20, 66–7
justification for, 37–40 see also Israeli Constitution
rules and discrepancies with Basic Laws, 48
social welfare cases, 361–2 Labour Courts, 330–1
burden of proof, 362 discrimination, 184
statutes, of, 27–33 health insurance, 319–21
Supreme Court and jurisdictional capacities, legal feminism, 31
124–5 legal systems, see constitutions
United Mizrahi Bank v Migdal Cooperative Vil- legislative:
lage, 101–2 accountability, 141
see also constitutional adjudication appointment of judges, 69
judiciary: family reunification, 494–8
independence, 29 human dignity, 267, 273–5
judges: human rights protection, 38, 174, 299–301
election, 10 judicial review, 106–14, 119, 130–1
disadvantages, 11–12 judiciary, relationship with, 43
full-life tenure, 69 promoting interests of the majority, 29–30
interpretation of constitutional law, 67 role in national security, 446–54
limiting terms of service, 11–12, 69 structure, 68–9
superior knowledge, 28, 29–30, 32 supremacy over courts, 20, 66–7
transjudicialism, 170–2 see also Israeli Constitution; Knesset
Index 537
legitimacy: judicial review, 439–40

constitutional methodology, 105, 120 legislative role, 454
conservative phase, 118–20 constitutional law, 455–6
pragmatic phase, 112–14 deliberation, 456–7
radical phase, 114–18 policy considerations, 456–60
judicial review: preventing effective address of threats, 460
legal legitimacy, 108 regulation of the fight on terror, 458
political legitimacy, 109 scrutinising government activity, 457–8
sociological legitimacy, 108–9 symbolic aspects, 458–60
legal reasoning, 112–20 limitations of Government’s powers, 433–4
military activities, 453–3 power to declare emergency situation, 441
state action, 257–60 ordinary laws, 441
Canada, 258 sunset provisions, 441–3
Germany, 259 ‘temporary’ laws, 441
South Africa, 258–9 regulation of emergency situations, 432
Limitation Clause, 192, 358, 382, 402–3, 496, 498 Basic Law: Human Dignity and Liberty,
Basic Laws, 77, 119, 160–1 434
constitutional proportionality, 225, 384, 387 response to security threats, 445–6
eligibility conditions for social welfare rights, determining legitimacy, 446–50
363–5 martial law, 446–7
private law, 392 minimalist approach, 446–8
unenumerated constitutional rights, 301 regulation of, 453 - 5
role of the legislature, 445–50, 454
majestic Constitution model: right to counsel, 449
‘notwithstanding’ mechanism, 81–83 see also human rights; Israeli Constitution
reasons for adoption, 81 negative effectiveness test, 233
discourse and education, 82–83 proportionality, 233
normality in the face of the international com- ‘notwithstanding’ mechanism:
munity, 82 amending powers, 74
stability and consensus, 81–2 Basic Law: Freedom of Occupation (BLO), 73–4
Malaysia, 507–8 Canada, 13–14, 74
empowered legislature, 75–6
national identity: constitutional amendment, 83–5, 87–8
constitutional identity distinguished, 517 constitutional deviation, 85–7, 88–9
function of religion, 504 constitutional crisis, 73–4
gatekeeping function, 503 constitutional deviation, 73, 85–7
unity function, 503, 504–5 temporary nature, 88–9
gatekeeping function of religion, 503 dialogical potential, 66
exclusionary, 505–6 Israel, 20–2
Greece, 506–7 Basic Law: Freedom of Occupation (BLO), 73–4
Malaysia, 507–8 majestic Constitution model, 76–81
Turkey, 508 - 10 reason for introduction, 74
unity function of religion, 503 majestic Constitution model, 76–81
inclusivity, 504–5 background, 76–81
National Labour Court, 184 addition of mechanism to the Basic Law:
see also labour courts Freedom of Occupation (BLO), 77–9
national security, 440–1 amendments to the Basic Law: Freedom of
Basic Laws, 431, 432–4 Occupation (BLO), 80–81
comparative law, 435–40 ‘Constitutional Revolution’, 76
Germany, 437 creation of Basic Laws, 77
historical examples, 435 right to import kosher meat, 73–4
South Africa, 437
Spain, 438 offence to feelings, 241–54
United States, 438 reasons for not recognising, 248–54
constitutional foundations, 430
Basic Laws, 431 parliamentary sovereignty, 2, 84, 97
judicial precedents, 431 Britain, 64–5
legislation, 430–1 judicial review versus, 142–4
constitutional regulation, 429–30 Peel Partition Plan 1937, 476
emergency constitution, 432, 434–5 People’s Council, 1
emergency powers, 448 pluralism of Israeli society, 66
international law and, 440–1 political discourse, 16, 24
538 Index
positive rights, 179–82 property law:

enforcement in Israel, 181–2 concept of property, 414
Germany, 179–80 nature of the property:
rejection of concept by United States, 180 interchangeable property, 414
South Africa, 180 personal property, 414
post-war constitutionalism, 1, 161 private law, 414–15
Post-Zionism: relationship between parties, 414–15
concept of nationality: proportional representation, 68
‘Israeli’ versus ‘Jewish’, 483 proportionality doctrine, 161, 189–90, 202–3,
concern for equality, 474 213–14, 220, 255–7
self-determination and equality, 481–2 ancillary powers doctrine, 217
concern for freedom, 474 appropriate purpose test, 228–9, 238
self-determination and freedom, 482–5 consistency with values of the state, 228
cultural neutrality of the state, 484–5 subjective purpose, 228–9
freedom of association, 474 balancing, 239
Jewish right to self-determination in Israel: advantages, 240–1
rejection of, 473–4 categorical approach versus, 240
religious neutrality of the state, 484 exclusionary reasons, 240
self-determination and equality, 481–2 freedom of speech versus offence to feelings,
rights for Israeli Arabs, 483 241, 248–54
self-determination and freedom, 482–5 methodology, 255
Zionism distinguished, 473 principled balancing, 202
preservative constitutionalism, 174, 186–7 Canada, 190, 197, 209, 213, 217, 220
see also constitutions common law, 394–5
private law: concept, 190, 203, 214
application in human rights, 401–3 constitutional proportionality, 225–7
background, 403–5 infringement ‘to an extent no greater than is
Canadian non-application model, 404 required’, 225, 235–7
development, 403–5 deficiencies, 239–42
Israeli ‘indirect application model’, 405 detention, 232–3
judicial implementation, 402 European Convention of Human Rights:
justification, 402 tool in rights-protection issues, 191
South African ‘indirect application model’, 405 European Court of Justice, 190, 220–1
US model of ‘application to the judiciary’, formulae, 195
404–5 European Court of Human Rights, 190, 197
constitutional rights and, 379–400 means versus aims test, 196
developing private law, 393–7 formula, 190, 194–6, 203
developing common law, 393, 394 doctrine distinguished, 194, 214
negative rights, 395–6 three-pronged formula, 195
new legislation, 393–4 freedom of speech:
positive rights, 395–6 offence to feelings, 239–42
proportionality, 394–5 Germany, 185, 190, 209, 220
human rights in, 401-18 three-pronged formula, 195, 213
unresolved clashes, 407–17 guiding considerations, 236–7
autonomy of the free will, 407 Israel, 209
inherency of human rights, 407 overarching principle, 192–3, 194
indirect application model, 380, 385–7, 419 tool in rights-protection issues, 192, 194
definition, 385 least restrictive means test, 234–5
European Convention on Human Rights, 386 legal reasoning, 190, 201–2
impact on interpersonal relationships, 399 legitimacy, 257–60
Israel, 397–8 assumption of legitimate objective, 260
interpretation of private law, 389–92 means to ends analysis, 260–1
good faith, 391 limitation clauses, 192–3, 218–19
objective aspects, 390 morality, 215
public policy, 390–1 nature of, 190
validity, 392 overarching principle, 190–1, 202
value concepts, 390 tool in rights-protection issues, 191, 202–3, 216
judicial implementation, 402 necessity test, 184, 226, 234–5, 238
Kestenbaum case, 405–6, 417–18 comparing alternative measures, 234
negative aspects, 392–3 disadvantages, 234
proportionality, 419 offence to feelings, 242–7
see also contract law; human rights; property law private law, 394–5
Index 539
proceduralising proportionality analysis, 261 right to health, 311-15, 329–31

proportionality stricto sensu, 184, 194–5, 201, access to drugs and services, 319–26
226–7, 235–7, 238 insurers’ claims, 319–21
value-based decisions, 226, 228 Labour Courts, 319–21, 330
rationality, 184 bypassing ‘bare minimum’ approach:
reasoning device, as a, 190, 201–2 duty to exercise discretion in certain cases, 320
relationship between tests, 237 duty to provide unconditional emergency care,
scrutiny tests, 194 320
social welfare cases, 344–6, 373 dynamic interpretation of the HSB, 320
constitutionality of eligibility conditions, 362–3 judicial review of decisions to exclude services,
South Africa, 209 320
subtests of, 226–7, 231–7 co-payments, 326
suitability test, 226, 231–4 constitutional status, 322–3
disadvantages, 233 discrimination, 311–13, 319, 322, 328, 338, 374
third parties, 261–3 equality, 318
three-pronged formula, 195–6, 213 evidence-based medicine, 337
development of doctrine, 197–201 financial access, 318
‘to an extent no greater than is required’, 225, Israeli (cochlear implant) case, 311–13
230–7 Israeli (world cup) case, 312–13
suitability test, 231–4 Israeli health system, 316
transformative constitutions, 184–6, 208–9 access to drugs and services, 319–26
transnational comparisons, 221–2 financing, 318–19
Canada, 190, 197, 209, 213, 217, 220 Health Services Basket (HSB), 311–12, 320
Germany, 185, 190, 195, 209, 213, 220 Israeli Supreme Court:
South Africa, 209 intervention against government, 321–6
United Kingdom, 190, 198 judicial role, 337
Zimbabwe, 190, 198 legal justification, 320–1
United Kingdom, 190, 198 litigation, 321–6
Zimbabwe, 190, 198 public / private programmes, 326–9
role, 329–31
Rabbinical Courts: scope, 323–4
marriage, 512–13 rolling procedures, 42, 46–7
religion and the nation-state: principle of equality, 46–7
function of religion, 504
gatekeeping function, 503 separation of powers, 214
unity function, 503, 504–5 proportionality and, 219
gatekeeping function of religion, 503 social welfare rights and, 335–7
exclusionary, 505–6 silencing mechanism, 9, 14–15, 22–3
Greece, 506–7 appropriate constitutional model, 17–20
Israel, 510–16 social and economic rights:
Malaysia, 507–8 civil and political rights and, 315, 343, 345, 348
Turkey, 508–10 interpretation of ‘human dignity’, 315
unity function of religion, 503 see also human rights; right to health; social
inclusivity, 504–5 welfare rights
right of property, 240 social citizenship, 356
see also property law Europe, 358–9
right to a hearing, 33–7 Israel, 356–7
adjudication process and, 37–40 South Africa, 357–8
complaint against infringement of a right, 34 social welfare rights, 333–5, 346–8
courts and, 38 budgetary implications, 339, 342, 348
duty to provide an explanation, 33, 35, 37 co-payments:
duty to reconsider, 33, 35, 37 judicial review, 345
infringement of prima facie rights, 35 constitutionality of social rights, 361–2
justification for infringement of a right, 33–4 discrimination, 343, 359–61
justification for judicial review, 37 education, 338–9
opportunity to raise a grievance, 33, 35, 37–38 effective enforcement, 374–5
procedural complaint, 34 eligibility conditions, 350–1
resolution of disputes: constitutionality, 353–4, 362–6
existence of a prima facie right, 33 human rights theory, 352–3
weight of the right, 33 social policy, 351–2
right to free speech, 157–9 verification of entitlement distinguished,
see also offence to feelings 354–5
540 Index
social welfare rights (cont): dynamic legal systems, 290–1

emergence of consensus, 369 incompetence of Parliament, 292
fiscal objections, 341–6, 346, 348 universal versus founding formulae and values,
Canada, 342 291–2
South Africa, 341, 342, 373 Israel as a, 292–5
judicial enforcement, 334, 337, 340, 374–5 Basic Law: The Knesset, 292–3
competence, 337–9 doctrine of unwritten fundamental principles,
emergence of consensus, 369 293–4
Israeli Supreme Court, 344–6, 361–2 implied eternity clause, 292
judicial review, 361–2 origin and nature of Basic Laws, 294–5
burden of proof, 362 legitimacy, 289
proportionality, 373 UCRs (unenumerated constitutional rights)
qualifying conditions: doctrine, 295–7, 302
eligibility and verification methods, 354–5 transformative constitutionalism, 207–9
social citizenship 356 - 9 concept, 173, 175–6
verifying entitlement, 355 Constitutional Revolution, 178
remedies: constitutional values, 207, 208
dialogic remedies, 371–2 doctrines, 176
executive and plaintiff dialogues, 372 rhetoric of values, 176–9
judicial, legislative and executive dialogues, 372 Drittwirkung doctrine, 182–4
separation of powers in, 335–7, 370–1 Germany, 174–5, 176, 179–80, 182, 208
Ireland, 335 impact on third parties, 182–4
United Kingdom, 335 judicial activism, 173, 207
United States, 335 positive rights, 179–82, 207–8
social citizenship, 356 enforcement in Israel, 181–2
European Court of Human Rights, 358–9 rejection of concept by United States, 180
Israel, 356–7 private relations and, 207, 208
South Africa, 357–8 proportionality, 173, 184–6, 207, 209
see also human rights; right to health; social and South Africa, 174, 176, 180, 182, 208
economic rights value orientated discourse, 207
South Africa: see also constitutions
constitutional national security, 437 transjudicialism, 170–2
constitutional rights, 380 Turkey, 508–10
Drittwirkung doctrine, 182
eligibility for social welfare rights, 357–8 unenumerated constitutional rights (UCRs), 269–70
fiscal objections to social welfare rights, 341, 342, expanding the scope of ‘human dignity’, 297–9
373 freedom of expression, 269
human dignity, 177 freedom of religion, 269
legitimacy of state action, 258–9 individual autonomy, 298–9
proportionality doctrine, 209 interpretation of right to human dignity, 269, 315
Social Assistance Act 2004: justifying the recognition, 275–7
eligibility requirements, 357–8 recognition of, 270
social citizenship, 357–8 judges authority, 285
social welfare rights, 341, 342, 373 right to a clean environment, 270
sovereignty: right to a minimal standard of living, 269
negative impact of use of foreign law in constitu- right to an adequate standard of living, 270
tional adjudication, 166 right to education, 270
parliamentary sovereignty, 2, 84, 97 right to equality, 269
Britain, 64–5 social and economic rights, 278–9
judicial review versus, 142–4 societal values as human dignity, 277–8
Spain: see also human rights
constitutional national security, 438 unlawful detention, 462–4, 467 - 8
Special Conversion Courts, 515 United Kingdom:
state’s duty to act, 398 asset-freezing, 464–5
scope of duty, 398–9 closed material procedure (CMP), 465–7
substantive constitutional law, see constitutional law judicial response to terrorist threats, 462–4, 467–9
Supreme Court, see Israeli Supreme Court (ISC) legislative response to terrorist threats, 462, 463–7
pre-charge detention, 462–4
terrorism, see national security proportionality doctrine, 190, 198
three-track democracy, 288, 302 special advocates, 465–6
assumptions, 290–2 terrorism, 461–2
collective will as the basic norm, 290 asset-freezing, 464–5
Index 541
closed material procedure (CMP), 465–7 Zimbabwe, 190, 198

House of Lords, 464 Zionism, 473–5
judicial response, 462–4, 467–9 egalitarian Zionism, 474, 526–8
legislative response, 462, 463–7 interpretation of the right to self-determination,
pre-charge detention, 462–4 480
see also constitutions; judicial review primacy of the Land of Israel, 479
United Nations: ethno-cultural principle, 473
counter-terrorism measures, 464–5 hierarchical Zionism, 474, 526
Resolution 194 of the General Assembly, 1 Jewish hegemony, 478
United States: primacy of the Jewish people, 479
citizenship: regime of inequality, 478
requirement for a knowledge of English, 484 interpretations:
compromises, 62–3 egalitarian, 474, 479–81
‘Constitution of Settlement’ 68 hierarchical, 474, 477–8
constitutional history, 60–1 proprietary, 474, 475–6
constitutional law, 67 proprietary Zionism, 474, 526
constitutional national security, 438 collective rights of Arabs, 475, 527
constitutional rights model, 380, 421–2 collectivist moral ontology, 475
Drittwirkung doctrine, 183 individual rights of Arabs, 475, 528
Marbury v Madison, 94, 113, 145, 160, 168 primacy of Jewish People, 479
originalist movement, 167 proprietary justice, 475
rejection of concept of positive rights, 180 rights over territory of Israel, 475
proportionality, 214–16 religion and ethno-culturalism, 473
public values and private law, 208 right to ethno-national self-determination,
473
Yeshiva students, 254, 299 struggle for a secular state, 513–14
equality, 46, 119 see also Post-Zionism

Aahorn Barak. Gideon Sapir. Barak-Erez. Israeli Constitutional Law in The Making

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Aahorn Barak. Gideon Sapir. Barak-Erez. Israeli Constitutional Law in The Making

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ISRAELI CONSTITUTIONAL LAW IN THE MAKING

In the domain of comparative constitutionalism, Israeli constitutional law is a fascinat-

Volume 2 in the series Hart Studies in Comparative Public Law

OXFORD AND PORTLAND, OREGON

Published in North America (US and Canada) by

© The editors and contributors severally, 2013

British Library Cataloguing in Publication Data

Typeset by Hope Services, Abingdon

Part 1 Towards a Full-Fledged Constitution

Part 2 Models of Judicial Review in Israeli Constitutional Law

Part 3 Global Impacts on Israeli Constitutional Law

12. The Israeli Case of a Transformative Constitutionalism 173

Part 4 Balancing in Israeli Constitutional Law

Part 5 ‘Unenumerated Rights’ in Israeli Constitutional Law

Part 6 Social Rights in Israel

Part 7 Constitutional Rights and Private Law

Part 8 Constitutional Rights and ‘State of Emergency’

Part 9 Israel – ‘Jewish and Democratic’

Ori Aronson is Lecturer, Bar-Ilan University, Faculty of Law.

Tsvi Kahana is Associate Professor, Faculty of Law, Queen’s University, CA.

Supreme Court (By Case Name)

European Court of Justice (By Case Number)

C-331/88 R v Minister for Agriculture, Fisheries and Food ex p Fedesa [1990]

Opinion of Advocate General Trstenjak delivered on 14 April 2010, in Case C-271/08

European Court of Human Rights (By Case Name)

HCJ 205/94 Nof v Minister of Defence 50(5) PD 449 [1997]...................................... 298

CrimFH 7048/97 John Does v Ministry of Defence 54(1) PD 721

CA 751/10 John Doe v Dayan-Urbach (8 February 2012), Nevo Legal Database

District Court (By Case Name)

Magistrate Court (By Name)

Labour Court (By Case Name)

LA 1091/00 Shitrit v Meuchedet Health Services 35 PDA 5 [2000] ............................. 320

Supreme Court (By Case Name)

Court of Appeal (By Case Name)

2 CMLR 164, 182 ................................................................................................ 198

Special Immigration Appeal Commission

King v Smith 392 US 309 (1968) ............................................................................... 355

Federal Courts (By Case Name)

National (In Alphabetical Order)

Charter of Human Rights and Responsibilities Act 2006 ............................................97

Anti-Terrorism Act 2001.......................................................................................... 442

Emergencies Act 1985 .......................................................................................439, 444

Civil Code (BGB) 182

s 12...................................................................................................................... 434

Laws, Ordinances and Orders

Administrative Affairs Courts Law, 5760-2000 ......................................................... 152

Criminal Code Ordinance, 5696-1936

s 18 ..................................................................................................................... 430

Draft Bills and Bills Memoranda

Bill Memorandum of Basic Law: The Legislation, 2012 ..............................................42

s 37...................................................................................................................... 437

Immigration Act (No 13, 2002)

Social Assistance Act 2004 ....................................................................................... 357

International (In Alphabetical Order)

UN Committee on Economic, Social and Cultural Rights, General Comment No 19:

European Union (In Alphabetical Order)

Declaration of the Establishment of the State of Israel, 1 LSI 7 (1948).

Towards a Full-Fledged Constitution

II. THREE RATIONALES AND THREE MODELS

A. Protecting Constitution

According to a common rationale, a Constitution is required to defend basic values. This

Similar statements were made by Victor Comella:

B. Dialogical Constitution

can be based on pragmatic considerations, in particular, the difficulty of access of ordin

US or Europe.29 Instead, in some of those systems, relatively recent constitutional devel