The Politics of Rights in Israeli Constitutional Law
Aeyal M. Gross
Israel Studies, Volume 3, Number 2, Fall1998, pp. 80-118 (Article)
Published by Indiana University Press
For additional information about this article
http://muse.jhu.edu/journals/is/summary/v003/3.2gross.html
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Aeyal M. Gross
The Politics of Rights
in Israeli Constitutional Law
[In] the United States . . . the Supreme Court took upon itself the right, despite the
fact that it was not explicitly so authorized in the Constitution, to determine
whether a law made by the people’s representatives in Congress suits or contradicts
the Constitution, and it [the Court] has the power to void a law, even if the large
majority of the people and their representatives support it, on the grounds that the
law violates the Constitution. And so the [U.S.] Supreme Court turned into a
preserving, hindering force, which prefers property rights over human rights. And
when it was decided, in the United States, to impose income tax, the rich came to
argue before the Supreme Court that the law contradicts the Constitution, and the
Supreme Court voided the inheritance law [sic], making it necessary, eventually,
to amend the Constitution. But if thirteen out of forty-eight states had objected to
the amendment, then the thirty-Wve remaining states and the two-thirds of
Congress could not have amended the Constitution, and the people’s wish to impose
income tax would have failed utterly. There was a second case where Congress
regulated child labor, and the Supreme Court . . . voided this law on constitutional
grounds. And so it is a bit strange that here [in Israel], parties in favor of
“progress” and proponents of the “powers of tomorrow” enthusiastically seek such a
regime.—[Then-Prime Minister David Ben-Gurion, in a 1950 Israeli parliamentary (Knesset) debate on whether to draft a constitution (Report of the Committee for the Constitution, Legislation and Law on a Constitution for the State
and Debates in the First Knesset 66 (1952) [Hebrew]].
INTRODUCTION
I
N THIS ARTICLE ,
I SEEK to analyze the “politics of rights”1 in Israel and
their contingent and evolving application in the Israeli constitutional system. To this purpose, I will examine the eVects of the 1992 legislation of two
80
The Politics of Rights in Israeli Constitutional Law
•
81
Basic Laws on human rights, a move often referred to in Israel as the
“constitutional revolution.”2 I will argue that the strongest impact of this
1992 move was the entry of economic rights into Israeli constitutional rights
discourse in a way that protects the current regime of holdings; i.e., the
economic status quo. I will contend that the primary eVect of this legislation
was not progressive in nature, as many had expected, but, rather, possibly
conservative. Indeed, pursuant to these Laws, rights may, in fact, act to
hinder progressive causes. I call this eVect the “Lochnerization” of Israeli
law, after the doctrine established in the 1905 U.S. Supreme Court decision
in Lochner vs. New York,3 under which extending constitutional protection to
economic rights serves to maintain the economic status quo in a way that is
biased against redistribution and any regulatory or protective legislation. I
will maintain that this is especially signiWcant in Israel insofar as there is no
constitutional recognition of “economic rights” in the distributive meaning
of the term; i.e., what is often referred to as “social and economic rights.” As
a consequence, in the Israeli context, the only economic rights that currently enjoy constitutional protection are possessive economic rights—e.g.,
the right to keep one’s property—as opposed to, for example, the right to
housing or to education, which are “economic and social rights.” In addition, I will examine other eVects of the 1992 legislation, including its overall
impact on the protection of constitutional rights in Israel.
PART I
HISTORICAL BACKGROUND:
THE DEVELOPMENT OF THE DISCOURSE OF RIGHTS
IN ISRAELI CONSTITUTIONAL LAW UP TO 1992
T HE C ONSTITUTIONAL D EBATE
AND THE
H ARARI R ESOLUTION
As anyone familiar with Israeli constitutional history knows, Israel’s Declaration of Independence4 included a commitment to adopt a constitution no
later than 1 October 1948. Shortly after the State of Israel was established,
the controversy began over whether a constitution is desirable for Israel. In
1950, following a debate in the Knesset, a compromise was reached between
the proponents and the opponents of adopting a constitution. Under this
compromise, known as the Harari Resolution, the Knesset was to legislate
a series of Basic Laws that would eventually be consolidated into a constitution as its chapters.5 Why was the promise to adopt a constitution not
fulWlled? In the Knesset debate, the main objections to a constitution were
raised by two diVerent factions. One faction was the religious parties, who
82 • israel studies, volume 3, number 2
rejected the very idea of anything but the Torah serving as the Jewish State’s
constitution, and who were also concerned that a constitution with a
commitment to civil rights would infringe on religious legislation that they
supported. The second objection came from the ruling Mapai party, which
was reluctant to impose any limitations on the government’s power.6
In addition, then-Prime Minister David Ben-Gurion’s vision of the
State, as expressed in the Knesset debate, played a signiWcant role in the
deliberations regarding the desirability of a constitution: in the eighteenth
century, he argued, bills of rights were necessary because of the tyrannical
rule in most states at the time. This was not the case, however, in a democratic regime.7 Moreover, Ben-Gurion was concerned that if a constitution
were introduced, the courts could impede the legislative process. He based
his argument on the American “Lochnerism”8 experience during the preNew Deal era, when the U.S. Supreme Court repeatedly held regulatory
and labor statutes as infringing on the “liberty” of individuals and, thereby,
unconstitutional.9 Perhaps in his most intriguing statement, Ben-Gurion
claimed that “[i]n a free state like . . . Israel there is no need for a bill of rights
. . . we need a bill of duties . . . duties to the homeland, to the people, to
aliyah, to building the land, to the security of others, to the weak.”10 This
statement sheds some light on the broader context of the decision to avoid
adopting a constitution; namely, the Zionist ethos with regard to rights. In
order to understand this point, it is important to note that not one of the
dominant ideologies of the nascent state was liberal-individualist11; i.e.,
centered on the self and his/her rights.12
Indeed, the marginality of individual rights in early Israeli political
culture was a product of the way in which democracy was conceived at that
time in Israel, described by Yonatan Shapiro as “formal democracy.” Shapiro
notes that the Western model of democracy deals with representation by
election as well as the guarantee of civil rights. These are, respectively, the
formal and the liberal components of democracy, which are usually inseparable. The Zionist version, which was inXuenced by Eastern European
thought, emphasized the formal component. Consequently, emphasis was
placed on political rights, like the right to vote, and on social rights, but not
on civil rights.13
T HE B ASIC L AWS
AND THE
B ERGMAN E XCEPTION
Pursuant to the Harari Resolution, a series of Basic Laws were legislated.
Until 1992, all the Basic Laws dealt only with the institutional, or “organic,”
parts of the constitution and did not include a bill of rights.14 For the most
The Politics of Rights in Israeli Constitutional Law
•
83
part, these Basic Laws did not enjoy any normative supremacy over regular
laws.
One notable exception was Article 4 of Basic Law: The Knesset. Article
4 provides that elections to the Knesset shall be “general, national, direct,
equal, secret and proportional” and that this Article can “be changed only by
a majority of the members of Knesset.” This entrenched requirement for a
majority of the members of Knesset, instead of a regular majority of members participating in the vote, was what made Article 4 unique at the time of
its legislation.15 In the 1969 Bergman vs. Minister of Finance,16 a petition was
made to the Supreme Court challenging a law that denied governmentsponsored campaign funding to new parties running for election. In the
petition, it was argued that this law violated the principle of equality as
anchored in Article 4 of Basic Law: The Knesset. The Court ruled in favor
of the petitioners, holding that equality as enshrined in Article 4 applied not
only with regard to the right to vote, but also to the right to be elected. In
this instance, the Court stated, the campaign funding law, which was not
passed by the required majority, infringed on the equal right to be elected.
The Court ruled that the Minister of Finance could act according to the new
law only if it were re-enacted by the required majority or if it were amended
to eliminate the inequality. In the Bergman case, the Supreme Court, for the
Wrst time ever, actually invalidated a statute that had been enacted by Parliament. This set the precedent for judicial review of laws contradicting Article
4, and, over the years, the Court has handed down similar decisions in a few
other instances involving elections legislation.17
It should be noted that Article 4 of Basic Law: The Knesset, the only
entrenched substantial provision in a Basic Law prior to 1992, guaranteed
the most important of political rights—the right to vote. Thus, it was
consistent with the Zionist version of democracy, which focuses on formal
majority rule and not on civil rights, which are perceived as restricting the
majority. In any event, Article 4 was the exception and not the rule. Most
remaining provisions of the Basic Laws were not entrenched and, therefore,
did not supersede regular legislation.18
D EVELOPING A J UDICIAL B ILL OF R IGHTS :
K OL H A ’ AM AND I TS A FTERMATH
In the period leading up to 1992, in the absence of legislation on individual
and civil rights, the Israeli Supreme Court developed what came to be
known as Israel’s judicial bill of rights.19 Hence, to a large extent, the
judiciary should be credited with the introduction of rights-consciousness
84 • israel studies, volume 3, number 2
into the Israeli legal discourse.20 Over the years, the Court exercised judicial
review over administrative acts based on the rights it recognized as included
within the scope of the judicial bill of rights. The paradigm for this type of
judicial review was established in 1953 in the seminal case of Kol Ha’am vs.
Minister of the Interior.21 This case dealt with a Communist newspaper that
was temporarily closed down by the Minister of the Interior, as per his
authority pursuant to the Press Ordinance. The Supreme Court decided
that, due to the primary status of free speech in democracy, the Minister
could only apply his discretion when there is a “near certainty” of risk to
public safety. The Kol Ha’am decision was the paradigm for the law of civil
rights in Israel until at least 1992. The structure of the decision is the model
for all subsequent civil rights decisions. This decision has three important
elements. First, it includes a judicial bill of rights. In Kol Ha’am, the Court
“created” freedom of speech via judicial legislation. Recognition of other
rights such as freedom of religion, equality, and the right to demonstrate
was later accomplished via judicial creativity, frequently by drawing on
Israel’s Declaration of Independence.22 Second, in this decision, judicial
review amounted to scrutiny only of administrative acts and not of statutes.23 Nonetheless, perhaps by restricting the ways in which statutes may be
interpreted, the Court was, in eVect, exercising something quite similar to
judicial review of statutes.24 Third, the Kol Ha’am decision introduced a
technique for balancing rights with some conXicting collective interest: in
most subsequent cases, the Court balanced rights, not with other conXicting rights, but, rather, with a conXicting collective interest such as state
security or the public good.25
However, two qualifying comments should be made with regard to
this description. First, judicial review of administrative action on the basis
of the “judicial bill of rights” was not without limits. For example, when the
Court deliberated the argument that the requirement for Jews to marry in
Israel under Jewish religious law conXicts with freedom of religion and
freedom of conscience, it held that when the legislature’s explicit will is
obvious, the Court is required to uphold that will, even if it conXicts with
the rights outlined in the Declaration of Independence.26 Second, the Court
used not only the “liberal” aspect of the Declaration, but also its ZionistJewish aspect—i.e., the deWnition of Israel in the Declaration as a Jewish
State—most notably, in a case where the Court upheld a Central Elections
Committee decision to disqualify a party from running in elections when
the Court found the party platform to be a repudiation of the existence of
the State.27
The Politics of Rights in Israeli Constitutional Law
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85
Although the Kol Ha’am decision established the Supreme Court as
the guardian of civil rights in Israel, the Court’s record in this respect has
been far from uniform.28 Moreover, from the late 1960s until the late 1970s,
the pace of judicial development of rights slowed down.29 Beginning in the
late 1970s, however, and continuing through the 1980s, judicial review
intensiWed, and the judicial bill of rights expanded. Important decisions
were laid down in such areas as freedom of demonstration, gender equality,
and freedom of speech.30
This evolution may have been related to the broad changes that Israeli
society was undergoing at the time. For example, the public’s formerly deep
trust in government was corroded, especially following the 1973 Yom Kippur War;31 the hegemony of Labor Zionism (following the rise of the
Likkud party in the 1977 elections) came to an end32; and an independent
civil society was evolving, with civil rights organizations beginning to
emerge in the early 1970s (e.g., the Association for Civil Rights in Israel,
formed in 1972, and the Ratz [Citizen Rights Movement] Party, formed by
Shulamit Aloni in 1973).33 The claims being brought before the Supreme
Court were of a new and diVerent kind, and from the 1970s throughout the
1980s, the Court developed an expansive rights jurisprudence. Pnina Lahav
attributes this last evolution partly to a change in the composition of the
Court, with the retirement of six of the “old guard” justices between 1975
and 1980.34 Two of the justices appointed during this period were to have an
important eVect on the Court’s jurisprudence: Meir Shamgar, a strong
defender of the freedom of speech, who was appointed in 1975 and became
President in 1984, and Aharon Barak, appointed in 1978 and the current
President of the Court. The 1953 Kol Ha’am decision remained the paradigm
for the Court’s rights jurisprudence during the 1970s and 1980s, but the
Court became more “activist” during this period. By eVectively abolishing
standing requirements35 and by seriously eroding the “justicability” (political question) doctrine,36 the Court opened its gates to petitions concerning
issues that, in the past, it had refrained from dealing with. The Kol Ha’am
doctrine, therefore, took the form of a presumption in favor of civil rights.37
This presumption acted as the backdrop every time the Court interpreted a
statute or scrutinized an administrative decision. Although judicial activism
was limited by the Court’s inability to exercise judicial review of legislation,
the Court did, nonetheless, void parliamentary resolutions38 and various
executive actions, including decisions made by cabinet ministers.39 The
Court’s activism went beyond rights issues, delving into government accountability and proper administration.40
86 • israel studies, volume 3, number 2
This evolution of judicial activism and review was part of the wider
“legalization” of Israeli society,41 and it can be attributed in part to a weakening of the other branches of the political system that took place over the
same period, partly as a result of a political deadlock between the two major
political blocs in the Knesset and of the ethical deterioration in the Israeli
political arena.42
Although, as I noted, the Court’s activism was limited insofar as it
could not void primary legislation, it nonetheless could make such legislation eVectively moot. In 1985, the Film and Theater Censorship Board
decided to ban a play that not only criticized Israeli army practices in the
Occupied Territories, but also compared the army’s practices to those of the
Nazis. The playwright petitioned the Supreme Court, and the Court applied the Kol Ha’am paradigm in its decision that the Board can only ban a
play if there is “near certainty” of risk to public order.43 With this decision,
it was clear that the Board would never be able to ban a play again, and
subsequently, the Knesset amended, and later canceled, the law regarding
censorship of plays.44
Throughout its period of development, there was a dark side to the
Court’s civil rights jurisprudence. In almost every instance, the Court has
upheld Israeli army practices in the Occupied Territories, including demolition of houses,45 deportations, and administrative arrests.46 In addition,
petitions brought by Israeli-Palestinians, citizens of the State of Israel, on
civil rights issues, such as freedom of speech, or on equality issues, have
regularly been rejected by the Court.47 In this context, I agree with Gad
Barzilai that the Court has always decided within the parameters of the
Jewish nationalism and national security narratives and has refrained from
examining and challenging them.48 In the words of Pnina Lahav, “when a
citizen comes before the Court to assert a right and the state objects for
reasons related to national security or the welfare of the Jewish State qua
Jewish State, the Court has tended to prefer the values embedded in the
nation-state at the expense of those rooted in universal values.”49 In other
words, the Court, did, indeed, develop a liberal jurisprudence, but it was
liberalism Zionist-style—within the context of the Jewish collective. We
thus see that, even if Israel’s democracy was slowly becoming more “liberal”
and less “formal,” a process in which the proliferation of rights discourse
played an important part, it was still an “ethnic” democracy in nature; i.e.,
as Sammy Smooha has deWned it, a democracy that combines the extension
of political and civil rights to individuals and of certain collective rights to
minorities with institutionalized dominance over the State by one ethnic
group.50
The Politics of Rights in Israeli Constitutional Law
•
87
It should be noted that, until 1992, those civil rights arguments accepted by the Court did, at least, tend to promote progressive causes. When
a civil rights argument failed in court, in most cases it was because the Court
had preferred what it conceived as a collective interest, such as security or
public safety, and the balancing formula, therefore, tilted in favor of that
interest. Since the arguments made against civil rights claims were usually
based on collective interests and not on other conXicting individual rights,
the limits of the civil rights discourse in Israel was not really due to the
“double-edged sword”51 nature of rights, as the case often is in the U.S. In
the pre-1992 Israeli constitutional rights discourse, there was no trace of the
American phenomenon of “bad” decisions that are based on rights arguments. Israel did not have the equivalent of a Dred Scott,52 where the U.S.
Supreme Court had held legislation enfranchising slaves unconstitutional
because it violated the right to property of slave owners; Israel did not have
the equivalent of a Lochner,53 where, in the name of “liberty,” labor legislation
was held unconstitutional; nor was there a case like Buckley54 or Belotti,55
where campaign funding laws designed to bring greater equality to the
political process were held unconstitutional because they violated freedom
of speech.56 Israeli Supreme Court decisions that were criticized by progressives were not the result of rights arguments, but, rather, resulted from
the failure of rights to trump arguments from collective interests that were
not conceived as basic civil or human rights. Consider, for example, the 1992
case involving Israel’s deportation of over four hundred Hamas activists.
The Court upheld the deportation, ruling that the relevant civil rights
(mainly the right to a hearing) should, in this case, defer to the collective
interest—speciWcally, national security.57
As mentioned above, the Supreme Court’s civil rights jurisprudence
under the Kol Ha’am doctrine could not extend to judicial review of primary
legislation. Toward the end of the 1980s, the Court seemed to begin to lose
patience with this situation. In the obiter dictum in Laor Movement vs. Speaker
of the Knesset,58 Justice Barak suggested that the question of whether the
Court can hold a Knesset statute void because it contradicts the basic values
of the Israeli legal system is an open one.59 Barak apparently was attempting
to open up the discussion of whether there can be full constitutional judicial
review even without a written bill of rights. However, for all intents and
purposes, the legislation of the two Basic Laws in 1992 may have rendered
this question moot.
88 • israel studies, volume 3, number 2
PART II
THE 1992 BASIC LAWS AND THEIR EFFECT
ON RIGHTS IN ISRAELI CONSTITUTIONAL LAW
T HE 1992 M OVE
By 1992, the Knesset’s task under the Harari Resolution to legislate a set of
Basic Laws to form a constitution seemed to be almost complete. Only two
Basic Laws were missing—a bill of rights60 and Basic Law: Legislation,
which was expected to determine the normative supremacy of the existing
Basic Laws, to allow for judicial review, and to consolidate all the Basic
Laws into a full constitution in all but name.
In 1992, Knesset Member Amnon Rubenstein, a leading Israeli constitutional law scholar, devised the idea of “reproducing” the Harari compromise: since the enactment of a bill of rights appeared controversial, Rubenstein proposed that, rather than legislating one Basic Law on human rights,
a series of smaller Basic Laws should be legislated, so that at least the less
controversial rights, for which political consensus could be reached, would
be passed in the Knesset.61 Rubenstein’s proposal was adopted, and major
compromises had to be negotiated with the religious parties, who were
opposed to the entrenchment of a few basic rights. Equality and freedom of
religion are two rights that, if entrenched, could infringe on legislation that
favors Jewish religious institutions and could change Israeli marriage and
divorce law (which requires that individuals marry and divorce as per the
laws of their religion), thereby undermining the authority of the religious
courts under whose jurisdiction this branch of law currently falls.
The result of the compromise was the enactment of two Basic Laws—
Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation. These laws were but two of the at least Wve Basic Laws on human
rights that were included in Rubenstein’s scheme. However, political impasse has led to the suspension of the legislation process for the other Basic
Laws, and it is doubtful whether they will be enacted in the foreseeable
future.
T HE 1992 B ASIC L AWS
Basic Law: Human Dignity and Liberty guarantees the right to life, physical
integrity, human dignity and property, and freedom of movement from and
to Israel; Basic Law: Freedom of Occupation extends protection to only
one right; namely, freedom of occupation. Both Basic Laws include a
limitations clause that allows restriction of the protected rights (1) by a law;
(2) Wtting the values of the State of Israel; (3) designed for a proper purpose;
The Politics of Rights in Israeli Constitutional Law •
89
and, (4) to an extent no greater than necessary, or pursuant to a law enacted
with explicit authorization therein. Alongside this limitations clause, however, Article 10 of Basic Law: Human Dignity and Liberty grants immunity
from scrutiny to all previously existing legislation; and, Article 1 of Basic
Law: Freedom of Occupation contains a similar provision, but only a
limited grace period.
A R EVOLUTION ?
To use Bruce Ackerman’s term, there was no “constitutional moment”62
when the Basic Laws were enacted. During the Knesset debates surrounding the legislation, one Knesset member referred to the whole process as
“guerrilla-style constitutional legislation,”63 and Shulamit Aloni, for many
years the champion of human rights in Israel, called the compromise reached
“a law of despair, a poor person’s human rights law.”64 Most notable is the
fact that less than half of the total number of Knesset members (120) actually
participated in the Wnal vote on the Basic Laws. For example, Basic Law:
Human Dignity and Liberty was passed only by a majority of thirty-two to
twenty-one, with one abstention.65 Hence, what was to become part of
Israel’s written constitution was passed by a regular parliamentary majority.
While the enactment of the Basic Laws had, perhaps, been a case of
“guerrilla-style constitutional legislation” and, as a result, received little
public attention, the public soon heard a messenger in the form of Supreme
Court Justice Aharon Barak heralding that a “constitutional revolution”
had taken place. Two months after the enactment of the two Basic Laws, in
a speech at the University of Haifa, Barak declared that this legislation had
granted human rights a preferred constitutional status in Israel, similar to
the situation in many other countries.66 In what follows, I shall assess the
impact of this “revolution” on the politics of rights in Israel. However, I will
Wrst address the debate on the scope of the right to “human dignity”
guaranteed in Articles 2 and 4 of Basic Law: Human Dignity and Liberty,
since this debate has direct bearing on the rest of our discussion
T HE I NTERPRETATION
OF THE
R IGHT
TO
H UMAN D IGNITY
As indicated above, Basic Law: Human Dignity and Liberty and Basic Law:
Freedom of Occupation were intended to include only those civil rights for
which political consensus could be reached. However, referring to Basic
Law: Human Dignity and Liberty, Aharon Barak (in his academic writings)
wrote that “human dignity and liberty” includes equality, freedom of speech,
freedom of religion, freedom of art, and freedom of gathering and association. Moreover, at the foundation of this Basic Law lies the vision of the
90 • israel studies, volume 3, number 2
individual as free; therefore, according to Barak, human dignity and Liberty
include the autonomy of free will, leading to the conclusion that freedom of
contract is included within the scope of “human dignity and Liberty.”67
Hence, it would appear that, under Barak’s reading of Basic Law: Human
Dignity and Liberty, the right to human dignity incorporates many civil
rights that were omitted from the Basic Law, including the economic right
of freedom of contract.68 However, Barak’s index of rights does not include
social rights. Concern over this fact was expressed by Ruth Ben-Israel, who
addressed Barak’s elaboration of what rights should be included in “human
dignity,” and found it “very sad” that he did not include in his list any of the
social rights.69 In Barak’s later writings, he did in fact, refer to the right to a
minimum material and mental existence as falling within the scope of
human dignity, but he continues to exclude from this scope other social
rights, such as the right to education, health, and social welfare.70 The
decision in one case, a petition to continue funding for an educational
program for needy children, reXects Barak’s interpretation of this concept.
The petition was rejected, with one justice reasoning that the right to
education is not included in the scope of human dignity.71
It therefore seems that the thrust of Ben-Israel’s critique is still valid.
Ben-Israel correctly concluded from Barak’s writings that, in his view, a neoliberal individualistic approach prevails that views the individual as the
superior factor and takes the form of freedom of contract, support for the
market economy, and the rejection of any State intervention in labor relations. Ben-Israel illustrates via examples taken from Israeli law how the
combination of Barak’s interpretation of the scope of “human dignity” as
including the self ’s right to autonomous free action and freedom of contract, together with Article 3 of Basic Law: Human Dignity, which guarantees property rights, and with the rights guaranteed under Basic Law:
Freedom of Occupation, may work to hinder any future labor legislation
and to weaken already-existing normative arrangements in this area.72 BenIsrael’s ground-breaking article was the Wrst to indicate the perils inherent in
a certain interpretation of the 1992 Basic Laws. I will call this the risk of the
“Lochnerization” of Israeli constitutional law, meaning that there is a danger that the economic rights of property, contract, and occupation will be
interpreted in such a way as to limit the possibility of the enactment of
protective and progressive legislation. In this context, I borrow from Cass
Sunstein’s understanding of Lochnerism as imposing a constitutional requirement of neutrality, which uses the term “neutrality” as referring to the
preservation of the existing distribution of wealth and entitlements according to the current baseline.73
The Politics of Rights in Israeli Constitutional Law •
91
Although this subject has been deliberated extensively in the literature
and has been referred to in a few obiter dicta, it still remains unclear how the
Supreme Court’s interpretation of the parameters of “human dignity” will
develop in terms of which rights fall within its scope. Much of what becomes of the Basic Laws depends on how the Court interprets this issue.
As an aside with regard to deWning the scope of “human dignity,” it
should be noted that Jeremy Waldron has said that one of the lessons to be
learned from the American constitutional experience is that the words of
each provision in the Bill of Rights tend to take on a life of their own,
“becoming the obsessive catch-phrase for expressing everything one might
want to say about the right in question.”74 This description, which, as
Waldron has said, “is not the way to argue about rights” that are “principles
of deep and pervasive concern,”75 may become only too applicable in the
context of the Israeli constitutional experience, and especially with regard
to “human dignity and liberty,” which seems to have been adopted as the
“catch-phrase” in Israeli constitutional discourse.76 Since the legislation of
Basic Law: Human Dignity and Liberty, the term “human dignity” has been
invoked inside and outside of the courtroom in a variety of diVerent contexts. The proliferation of arguments recently caused Supreme Court Justice Zamir to remark that,
[a]nyone who hears the arguments recently brought before this Court would
be likely to think that [primary] legislation has been brought down to the level
of an administrative decision. Lawyers appear before the Court daily, singing
the praises of the Basic Laws and arguing that one statute or another contradicts a Basic Law. Have we turned into Sodom and Gomorra, where so many
laws infringe on fundamental human rights and there is no cure? And if there
is no basis for arguing that a certain law infringes, for example, on freedom of
occupation or on the right to property, at least they say that it infringes on
human dignity, each petitioner and his dignity.77
Justice Zamir’s complaint illustrates how the term “human dignity and
liberty” has entered the legal and political discourse in Israel in a way that is
symptomatic of the phenomenon that Waldron described. It may be that
the extensive reliance on the two Basic Laws legislated in 1992, and particularly, on the “human dignity and liberty” clause, is merely a fad that will pass
when these two Basic Laws cease to be a novelty. But in the meantime, it
appears that “human dignity and liberty”78 is indeed the new catch-phrase in
the Israeli legal-political discourse. It would be unfortunate if we were to
content ourselves with the superWcial invocation of this catch-phrase, in-
92 • israel studies, volume 3, number 2
stead of conducting a serious debate on human rights. The “heavenly
concept”79 of human dignity may lose its signiWcance if it is reduced to a
casually invoked “fetish,” rather than conveying a more substantial sense to
the right in question.
C ONSTITUTIONALISM AS N EO -L IBERALISM ?
T HE P ROTECTION OF E CONOMIC R IGHTS
As noted, my contention is that the most signiWcant impact of the 1992
legislation of Basic Law: Human Dignity and Liberty and Basic Law:
Freedom of Occupation was the introduction of certain economic rights
into Israel’s constitutional discourse. In this section, I will discuss the right
to property, freedom of contract, and freedom of occupation. My argument
is that Israeli rights jurisprudence was profoundly aVected by the introduction of these rights into the Israeli constitutional discourse, especially insofar as they are interpreted as protecting the prevailing regime of possessions,
rather than as rights mandating a distribution of resources.
As I mentioned earlier, until recently, civil rights arguments accepted
by the Israeli Supreme Court tended to promote progressive causes. However, some of the changes brought about by the 1992 legislation may have
changed this situation. Today, Basic Law: Human Dignity and Liberty and
Basic Law: Freedom of Occupation are often invoked in the name of
business interests, with the rights most frequently referred to being the
right to property and freedom of occupation. The Supreme Court has come
very close to holding a statute unconstitutional in a few cases involving the
right to property and freedom of occupation, and it was in a case involving
freedom of occupation that the Court, pursuant to its authority under the
Basic Law, for the Wrst time ruled that a statute was unconstitutional.
The Right to Property.80 Article 3 of Basic Law: Human Dignity and
Liberty protects the right to property, and this article already has been the
subject of several signiWcant decisions. In the most famous of these cases to
date, the Gal Law case, the Supreme Court gave a landmark 367 pages-long
opinion, elaborating on its position regarding the normative superiority of
the two new Basic Laws and its authority to conduct judicial review pursuant thereto.81 In this case, the Tel-Aviv District Court had invalidated a
statute aimed at giving assistance to the agricultural sector, which had fallen
into deep Wnancial crisis. The statute banned creditors of moshavim [agricultural cooperatives] from claiming their debts in court and, instead, provided for a special rehabilitator with the authority to substantially reduce
the amount of the overall debt to be paid. The District Court held that this
The Politics of Rights in Israeli Constitutional Law •
93
statute was unconstitutional because it violated the property rights of banks.
The Supreme Court overturned the lower court’s ruling, holding that while
the statute was, indeed, in violation of the right to property, this particular
violation adhered to the terms of the limitations clause in the Basic Law.82
Justice Barak stated that he had come very close to holding the statute
unconstitutional, but, in the end, decided to allow its validity. In this
particular case, Barak interpreted the right to property in a “possessive,”
rather than “distributive,” sense; that is to say, he adopted a conception of
the right to property in terms of “keeping”—maintaining the status quo of
holdings—and not in terms of “having”—requiring that each member of
society possess a minimum amount of property.83 According to Barak’s
opinion, property is infringed upon when there is a decline in the possessive
value of interests vis-à-vis its value before legislation.84 This would seem to
imply a possessive understanding of the right to property.
As Frank Michelman argues, property in its possessive (“keeping”)
sense is used as an anti-redistributive principle, opposed to governmental
interventions in the extant regime of holdings toward distributive ends.
Michelman contends that this understanding of property is incomplete
without a distributive concern regarding property.85
This point can be considered on the backdrop of comparative constitutional history. Two hundred years after the ratiWcation of the American
Constitution, the Wrst statute to be held unconstitutional by an Israeli court
pursuant to the 1992 Basic Laws was a debtor relief law—precisely the kind
of law that the Madisonian constitution (which replaced the earlier Articles
of Confederation) sought to prevent. Although this decision was overturned by the Supreme Court and the statute was determined to be constitutional, the ground was laid for a possessive understanding of the
constitutional right to property. Below, I will show the negative eVects of
recognizing possessive economic interests as rights under the 1992 Basic
Laws, even if the challenged statutes pass the test of the limitations clause.
Freedom of Contract. A second right with economic implications that is
not explicitly mentioned in the 1992 Basic Laws, but which can also be
interpreted as falling within the scope of their protected rights, is “freedom
of contract.” As noted, Justice Barak has expressed the opinion, both in his
academic writings86 and in his judicial opinions,87 that the right to “human
dignity” protects the autonomy of free will, and, accordingly, freedom of
contract is a right protected under Basic Law: Human Dignity and Liberty.88 In viewing the concept of autonomy of free will as the rationale for
guaranteeing constitutional protection for freedom of contract, Barak ap-
94 • israel studies, volume 3, number 2
pears to adhere to a “will”-based understanding of contract. This particular
conception was discredited, to a great extent, by American Legal Realism as
part of the criticism its adherents directed at the Lochner doctrine.89 Since it
is beyond the scope of this article to discuss the problematics of the “will
theory,” I will say just the following: law should create the conditions that
allow individuals to act upon their genuine free will, rather than assume that
all existing contracts reXect free will. Regulation of contractual relationships may, in fact, be warranted in order to ensure such conditions. Hence,
laws that intervene in contractual relations in order to protect relatively
weak parties should be understood as supporting genuine “free will” and
not as infringing thereupon. Accordingly, they should not be perceived as
violating rights protected under the 1992 Basic Laws—even if allowed
under the limitations clauses, but, rather, as not infringing on fundamental
rights to begin with.
Freedom of Occupation. Freedom of occupation has been recognized in
Israeli law as a right since the early years of the State.90 However, over the
years, the contents of this right have changed and expanded. In its original
form, this right protected the freedom of individuals to freely choose a
profession, work in that profession, and earn a living therefrom.91 I shall call
this the “personal” understanding of freedom of occupation. However, the
scope of the right changed over time, and the Supreme Court began to
conceive the right as also protecting the individual’s freedom to engage in
the profession of his/her choice without any limitation or regulation. Under this understanding, which I shall call the “competition” understanding
of the right, protection is extended to the ways in which the individual
engages in his/her chosen profession, as well as his/her right to compete in
the market. The latter understanding of freedom of occupation appeared
in case law even prior to the enactment of Basic Law: Freedom of
Occupation.92 However, since 1992 and the legislation of the Basic Law, this
understanding seems to be expanding and has received constitutional
status.
The implications of this development are clear in the Clal Insurance
Company vs. Minister of Finance decision.93 This case involved two insurance
companies, Clal and Migdal, that wanted to enter the pension funds market. The Ministry of Finance opposed such a move, since the pension
market was in danger of collapsing and the Ministry was planning a major
reform. Accordingly, the Ministry initiated legislation of a law that made it
unfeasible for new companies to enter the market. The companies petitioned the Supreme Court, arguing that the law was unconstitutional on
The Politics of Rights in Israeli Constitutional Law
•
95
the grounds that it infringed on the freedom of occupation. The Court
rejected the petition by a majority of two to one. Although all three justices
agreed that freedom of occupation was violated by this statute, two justices
held that the violation did sustain the scrutiny of the limitations clause of
Basic Law: Freedom of Occupation. The most elaborate discussion of what
is included in the scope of freedom of occupation appeared in the dissenting
opinion; since the majority justices did not disagree on this point, it is
worthwhile noting the determination arrived at in the dissenting opinion,
given by Justice Dov Levin. According to Justice Levin, an important
principle inherent to freedom of occupation is the possibility of free competition between individuals, and this possibility, stated Levin, had been
infringed upon by the relevant statute.94
The most explicit elaboration on this new competitive understanding
of freedom of occupation can be found in the academic writings of Professor Barak. These writings are the most comprehensive and inXuential writings to date on the interpretation of the 1992 Basic Laws, and they may serve
as an indication of how the Supreme Court will interpret the Laws under
Barak’s leadership. I will also focus on Barak’s scholarly writings, because
the issues dealt with therein have yet to be addressed by the Supreme Court.
Barak has written that the concept of freedom of occupation derives
from the constitutional principle of the development of the individual’s
personality, which is entrenched in Basic Law: Human Dignity and Liberty.
Therefore, freedom of occupation, Barak says, concerns both the freedom
to enter into the profession of one’s choice and the right to freely exercise
that profession.95 This statement is signiWcant insofar as it implies that Barak
views freedom of occupation not only in the sense of guaranteeing the
individual’s ability to fulWll him/herself via free choice of profession, but
also in the sense of allowing unrestricted exercising of the profession. To my
mind, it remains unclear how the second sense of freedom of occupation
relates to the conception of freedom of occupation as a basic human right
deriving from the concept of human dignity and Liberty.96 Barak has stated
“[t]ake away an individual’s freedom of occupation, and you take away his/
[her] self-image and meaning of life.”97 While I understand how this statement can relate to the paramount importance that choosing a profession has
in the individual’s life, I do not think that this warrants an economiccompetitive interpretation of freedom of occupation. Yet this is the understanding that Barak gives to this right.
Barak also emphasizes that the right to work does not derive from
freedom of occupation. Moreover, in his opinion, a law that requires to
employ—e.g., legislation that stipulates employment of people with dis-
96 • israel studies, volume 3, number 2
abilities—infringes on freedom of occupation and must undergo the scrutiny of the limitations clause.98 (I shall discuss below the implications of this
point for Israel’s equal employment law.)
According to Barak, “free competition is at the heart of freedom of
occupation. If the State intervenes in free competition, it infringes on
freedom of occupation, and it must justify this intervention in accordance
with the limitations clause [of Basic Law: Freedom of Occupation].”99 For
Barak, the upshot is that any arrangement that sets limits on the freedom to
exercise a profession is a limitation on freedom of occupation. In this
context, Barak points to limitation or regulation of prices, of production
rates, of marketing, and of wages. It should be noted that, under Barak’s
approach, Israel’s price regulation laws, as well as its minimum wage laws,
would be considered in violation of freedom of occupation; according to
Barak, the same is true with regard to legislation restricting work hours and
conditions.100 Furthermore, any licensing regulation is an infringement of
freedom of occupation insofar as it limits competition in executing one’s
profession.
According to Barak, any law that limits or infringes freedom of occupation as described here must survive the scrutiny of the limitations clause
in Basic Law: Freedom of Occupation, regardless of whether the infringement is direct or indirect in nature. Therefore, any economic measure taken
by the government that aVects market competition may be considered to be
a limit on freedom of occupation, and its constitutionality has to be determined according to the stipulations of the limitations clause. Barak uses, as
an example, the subsidizing of a speciWc kind of economic activity as infringing on freedom of occupation in the sense of violating equal competition
for all economic activities. Taxes, direct or indirect, may act to limit freedom
of entry into or performance of an occupation and, therefore, must also pass
the scrutiny of the limitations clause.101
In fact, Barak’s interpretation of freedom of occupation and the implications thereof illustrates that shifts in the understanding of this right
actually can place at risk its primary meaning of protecting the free choice of
profession and the freedom to earn a living therefrom. Consider, for example, Israel’s Equal Opportunity Employment Act. Under the “personal”
understanding of the right, this statute actually serves to guarantee the
right: it guarantees equal enjoyment of freedom of occupation by making it
illegal to deny, on discriminatory grounds, the individual’s ability to be
employed and to earn a living. Under Barak’s interpretation, however, this
law may violate freedom of occupation, since the right to work is not
The Politics of Rights in Israeli Constitutional Law •
97
included in the scope of freedom of occupation, whereas the right not to
employ is included therein.
This analysis does not mean to imply, of course, that, according
to Barak, the Equal Opportunity Employment Act is unconstitutional; I
would assume that it could survive the constitutional scrutiny of the limitations clause. Nonetheless, in my opinion, it is still signiWcant that this law is
considered a violation of freedom of occupation at all and that its validity is
only accepted because it can sustain the scrutiny of the limitations clause. I
shall discuss below a few reasons why I think this is signiWcant. These
reasons are also relevant to my critique of the possessive understanding of
the right to property insofar as they demonstrate the problematics of the
interpretation of economic rights that I am arguing against and the overall
eVect of the “Lochnerization” of Israeli constitutional law.
The Lochnerization E
Vect: Risks Entailed in the Protection of Economic
EV
Rights. The following are the problems that I envision arising if the Supreme Court upholds social legislation because it survives scrutiny under
the limitations clauses of the Basic Laws, but, nonetheless, deems the
legislation in violation of economic rights. I call this the manifestation of
the Lochnerization eVect in Israeli constitutional law:
1. The risk that all legislation of this kind will be reshaped by the judiciary
in a way that narrows it, since it is considered a violation, albeit a
permitted one, of a protected constitutional right.102
2. The “chilling eVect” on the legislature, already extremely cautious with
regard to legislating regulatory laws, out of fear of the Court’s scrutiny.
3. The symbolic signiWcance of a judicial determination that legislation
such as the Equal Opportunity Employment Act infringes on basic
human rights. What message does this convey? It would be unfortunate if the Court were to uphold the validity of laws guaranteeing equal
employment or minimum wage for the sole reason that they withstand
the scrutiny of a limitations clause and are deemed, therefore, valid
violations of human rights. It is my contention that such legislation in
fact protects human rights, whereas the message conveyed by the
judiciary would be animosity toward such legislation.
4. The trivialization of the concept of human rights:103 rights that are not
conceived as basic human rights, such as economic rights, will be
classiWed as such, rendering the whole concept of a distinct set of basic
human rights meaningless. Moreover, such a broad understanding of
the scope of basic human rights will necessarily entail the development
98 • israel studies, volume 3, number 2
of a very lenient interpretation of the limitations clauses. Consequently,
infringing on truly important human rights will become a rather easy
prospect.
5. The creation of an illusion or a myth that the Israeli constitutional
system eVectively protects human rights, whereas, in reality, various
economic rights will be protected while many important human rights
issues will be neglected by the judiciary. This would mask the reality of
the broad and expanding inequality in Israeli society, both in the sense
of political inequality between Palestinian-Israelis and Jewish-Israelis
and in the sense of rising economic inequality. It is diYcult to maintain
that such inequalities are an indication that there is something fundamentally amiss in the social infrastructure when the “myth of rights”
prevails. The response likely to be given to any such criticism is that all
such social wrongs are handled by the judiciary, which enforces rights
in accordance with the principles of “human dignity and liberty” as
enshrined in the Basic Law.
At this stage, the “double-edged sword”104 character that the rights
discourse in Israel has begun to take since the “constitutional revolution”
should be clear. Rights may now serve not only to promote progressive
causes, but also to hinder such causes. This is what I have termed the risk of
“Lochnerization” of Israeli constitutional law, since, as was the case with the
Lochner decision, this understanding of constitutional law perpetuates the
economic status quo in a way that is tilted against redistribution105 and
against regulatory or protective labor legislation.
Justice Barak argued in the Gal Law case that “[t]he American Lochner
trauma should not freeze Israeli constitutional law.” I agree that nothing
should “freeze” Israeli constitutional law, but lessons can be drawn from the
history of Lochnerism in the U.S. If we strive to make Israeli constitutional
law committed to substantial values of equality and to human rights, the
interpretation of the right to property, freedom of occupation, and freedom
of contract must be changed.
Justice Barak perhaps best articulated the potential of the 1992 Basic
Laws. In the last paragraph of his Gal Law opinion, he praised the “constitutional revolution” with the following comment:
Indeed, the opportunity has arisen to internalize the constitutional change;
human rights will become the “daily bread” of each young woman and young
man, and public awareness of rights—the rights of the child, the disabled, the
elderly, the sick, the worker, minorities, and of women—will increase, and we
shall be more sensitive to the rights of a person as a person . . . [t]he opportu-
The Politics of Rights in Israeli Constitutional Law
•
99
nity [has arisen] to enhance the prestige of human rights and for the “meeting
of hearts” between human beings, who were all made in the image of the
Creator.
These are noble words, indeed, but I fail to see the connection between this
powerful rhetoric and the protection of the economic rights discussed
above. Take, for example, the rights of the creditors in the Gal Law case: do
they fall under the category of the type of basic human rights that warrant
a constitution? How would protecting such rights assist the least disadvantaged social groups mentioned by Barak? Moreover, the form of protection
of economic rights that I have described may actually lead to a rights
discourse that damages the interests of the worker, the disadvantaged, and
so on.106
D EVELOPMENTS
IN THE
T HE 1992 M OVE :
P ROTECTION OF E QUALITY
AND
L IBERTY
The Basic Laws have, thus far, had a notable inXuence in two additional
areas, as outlined below.
Due Process and the Changing Nature of the Israeli Rights Discourse.
Although only modest headway has been made so far in protecting human
rights in this context pursuant to the legislation of the 1992 Basic Laws, this
progress has not been insigniWcant. The Supreme Court has held that, even
those laws and regulations that are not subject to scrutiny under Basic Law:
Human Dignity and Liberty should be interpreted in light of its provisions
to as great an extent as possible. This understanding has been manifested in
two important cases. In one, the Supreme Court voided a regulation that
allowed the incarceration of debtors who failed to pay court-ordered payments.107 The regulation allowed the head of the Execution OYce (the
oYcial department that oversees implementation of court judgments) to
issue an arrest warrant without checking the Wnancial capability of the
debtor to pay the debt. The Court found the regulation in question to be
ultra vires, since it denied liberty in too broad a way.108
By following the principle that pre-existing legislation should be interpreted in light of the Basic Law, the Court also limited the grounds on
which courts can hold persons in remand during criminal trials. In deciding
this case, the Court focused on the change in the normative status of human
rights in Israel. This status is enhanced now, held Justice Barak, and even if
Basic Law: Human Dignity and Liberty cannot aVect the validity of preexisting laws, it can aVect their interpretation.109 Accordingly, the Court held
100 • israel studies, volume 3, number 2
that the Basic Law requires that the criminal procedure laws be interpreted
in a way that restricts arrests on remand.110
Enhancing Equality. The 1992 Basic Laws also might have played a role in
enhancing the conception of equality in the Supreme Court decisions. The
Court recently handed down three important decisions, all of which gave
equality a broad and substantive interpretation. Not one of the three decisions involved judicial review of a statute, and in fact, two dealt with the
implementation of speciWc statutes that guarantee equality. However, some
of the justices presiding in these cases examined Basic Law: Human Dignity
and Liberty and held that the enhanced status that equality now enjoys as
part of human dignity shapes the outcome in these cases.
The Wrst case dealt with a law that mandated the appointment of
women to sit on the boards of government-owned corporations, where
women are under-represented. A petition was brought before the Supreme
Court on the basis of this statute challenging a decision to appoint male
directors to an already all-male government corporation board of directors.
The Court held in the petitioners’ favor and ordered the cancellation of the
appointments of the male directors.111 Justice Matza, in his decision, strongly
defended aYrmative action as part of an enhanced understanding of equality, for which he found support, inter alia, in Basic Law: Human Dignity
and Liberty.112 Justice Zamir, who concurred with Justice Matza in terms of
the Wnal result, dissented on this point. Zamir agreed that the law must be
interpreted in light of the principle of equality, but this, he said, is a longstanding principle in Israeli law. Therefore, the ramiWcations of Justice
Matza’s dictum on equality being protected under the Basic Law (we should
recall that equality is not explicitly mentioned in the Basic Law, but is
considered by some to be included under the right to “human dignity”) are
the establishment of the possibility of judicial review of statutes if they
violate equality. This conclusion, said Zamir, was uncalled for in this case,
and it was unnecessary to decide on this matter in an obiter dictum.
In the second case, the Supreme Court held that El-Al Israel Airlines
must give the same-sex partner of a Xight attendant the same beneWts that
are granted to heterosexual partners.113 This decision was based on Israel’s
Equal Opportunity Employment Act, which prohibits discrimination on
grounds of, inter alia, sexual orientation. In this instance as well, the decision was grounded in the speciWc statute involved, but Justice Barak, one of
the majority justices, also referred to Basic Law: Human Dignity and
Liberty. In discussing the importance of the principle of equality, Barak
referred to its constitutional status as part of human dignity.114 Justice
The Politics of Rights in Israeli Constitutional Law •
101
Dorner concurred with regard to the Wnal result, adding that she could have
reached the same result based on the general principle of equality in Israeli
law, even without the Equal Opportunity Employment Act. Nonetheless,
Justice Dorner did not base her opinion on the Basic Law.115
In the third case, the Court granted the petition of a young woman to
be allowed to participate in the entrance exams for the Israeli Air Force pilot
training course.116 There was no directly applicable statute in this case, and
so the Court had to decide the case on the basis of general principles of
equality. Justice Matza, one of the three majority justices, relied, inter alia,
on Basic Law: Human Dignity and Liberty.117 Justice Dorner also relied on
the Basic Law, but indicated that she is not certain whether equality falls
within the scope of the Basic Law’s protected rights. She nevertheless held
that discrimination against women qua women should be considered an
infringement of human dignity.118 In sum, the majority employed the rhetoric of commitment to a substantive and broad understanding of equality
and arrived at a corresponding outcome.
It is hard to assess the contribution of Basic Law: Human Dignity and
Liberty to the outcome of these three equality cases. In the Wrst two cases,
the outcome was decided on the basis of the relevant speciWc statutes, and
there was no necessity for grounding the decision in the Basic Laws; similarly, the outcome in the third case also did not derive, nor need to derive,
from the provisions of the Basic Laws, since the constitutionality of a statute
was not being reviewed and, furthermore, the Court chose to grant protection to the principle of equality on the grounds that it is included within the
scope of the judicial bill of rights. However, it may be that the enhanced
equality rhetoric in some of the opinions is partly a result of the spirit of the
“constitutional revolution” and the reinforced status of human rights in the
Israeli legal system.
It should be noted at this point that the developments described in this
section have, to date, been limited to cases involving discrimination on
grounds of gender or sexual orientation. The Court has regularly rejected
petitions involving equality claims brought by minority Israeli-Arabs, resorting to a narrow and formal interpretation of equality and, in cases
subsequent to the Basic Laws, ignoring their potential.119
T HE 1992 L EGISLATION : A N E VALUATION
It may be too soon to assess the overall inXuence of the 1992 Basic Laws on
Israeli constitutional law, but rights discourse in Israel is already undergoing a major transformation. Economic rights, in the form of the right to
property, freedom of contract, and an economic-competitive interpretation
102 • israel studies, volume 3, number 2
of freedom of occupation, have been introduced into the constitutional
discourse on civil and human rights. In the Israeli context, the discourse on
civil rights had previously been a subversive idea in a society where the
culture of the self was considered subversive.120 As mentioned earlier, rights
usually served to promote progressive causes. When rights discourse failed
in attempts to promote a progressive cause, it was because some other
interest, such as “security” or “public good, welfare, and safety,” stood in the
way. With the introduction of economic rights into the constitutional
discourse, the representatives of big business interests seem to be trying to
appropriate the rights discourse for their own purposes. In the years to
come, we may witness the rights discourse frequently promoting business
causes.
This inclination is reXected in the growing number of cases where the
conXict is not between rights and some collective interest, but between two
diVerent rights. One case dealt with the conXict between the freedom of
speech of journalists and the property rights of a newspaper owner. A
journalist who had resigned from her position at a newspaper demanded
severance pay. In her petition, the journalist argued that the editorial
changes in the newspaper, which prevented her from freely expressing her
opinion, created circumstances whereby her resignation became tantamount to being Wred and, therefore, eligible for severance pay. The National
Labor Court upheld the journalist’s right to receive severance pay, but it
based its ruling on the newspaper’s contractual obligation toward the journalist. The court, therefore, did not Wnd it necessary to decide whether the
journalist had a right to severance pay under law. However, the court did
address this issue in the obiter dictum, remarking that, in this case, not only
freedom of speech should be considered, but also the right to property,
which is guaranteed under Basic Law: Human Dignity and Liberty. The
newspaper owner has the right to determine the contents of his newspaper,
especially in the case of a private newspaper. More generally, the court
discussed the right to property under the Basic Law as allowing an employer
to run his/her business in whichever way he/she sees Wt, as long as he/she
does not violate any law or infringe on a guaranteed fundamental right.121
In guaranteeing property rights, Basic Law: Human Dignity and Liberty has provided these rights with the legitimacy they once lacked, to a
certain extent, to be participants in the constitutional discourse on civil
rights.122 When property rights conXict with other rights, such as freedom of
speech in the example above, property interests may prevail over or limit the
basic human rights.
And how has the so-called “constitutional revolution” aVected the
The Politics of Rights in Israeli Constitutional Law •
103
darker side of the Israeli civil rights discourse; namely, the approach taken
with regard to the civil rights of Palestinians both in Israel and in the
Occupied Territories? Will the 1992 Basic Laws help enhance the rights of
the Arab citizens of Israel, and will they be applied to protect the basic
human rights of the Palestinian residents of the Occupied Territories? With
regard to Israeli Arabs, the Court has yet to expand its broad equality
jurisprudence to include these citizens of the State. Moreover, the deWnition of the State of Israel in the Basic Laws as a “Jewish and democratic
state” may serve to legitimize laws that discriminate in favor of Jews. Prof.
Barak has written that a “Jewish state” is a state “that the settlement of Jews
in its Welds, cities, and villages are at the focus of its interests.”123 Since land,124
housing, and budget allocation are major areas of discrimination, it is hard
to see how such an understanding of the “Jewish state” clause in the Basic
Laws can serve to challenge existing discrimination. Moreover, the protection of property rights may serve to legitimize the “baseline” that masks
itself as “status-quo neutrality.”125 Therefore, the entrenchment of the right
to property in Basic Law: Human Dignity and Liberty will serve the property regime that is the result of major expropriations of land from Arabs.126
Hence, the 1992 legislation must be seen in the context of Israel’s position
vis-à-vis the Palestinians: it is possible to protect rights, especially property
rights, once a certain de facto reality has been established; speciWcally, a long
history of land expropriation from Palestinians.127 The prevailing regime of
land holdings in Israel, which is the result of the transfer of lands mostly
from Arab hands to Jewish hands,128 is now protected by Israeli constitutional law on the basis of the guaranteed right to property under Basic Law:
Human Dignity and Liberty.
Despite all its rhetoric on the elevated status of the right to property,
the Supreme Court recently decided to reject the petition of an Arab family
whose land was expropriated in 1968. The petition was based on the argument that, in 1968, the expropriation had not been designed to serve any
public objective and that it was only in 1986 that a plan for the land was
deposited in accordance with the land planning laws, designating it for
commercial use. A panel of three justices found in the petitioner’s favor, but
the Court overturned this decision in a further hearing held before a panel
of seven, by a majority of four to three. The dissenting justices in the further
hearing relied, inter alia, on the enhanced protection of property in Basic
Law: Human Dignity and Liberty. The majority decision, however, was a
blow to the possibility of the return of land expropriated from Arabs that
had not been used for a signiWcant period following expropriation.129
With regard to the protection of human rights for Palestinians in the
104 • israel studies, volume 3, number 2
Occupied Territories, to date, the 1992 Basic Laws have had no eVect in this
sphere either. Petitions brought by Palestinians in the Territories concerning human rights issues do not usually raise the need for judicial review of
primary legislation, but, rather, the need to scrutinize administrative action.
As a result, such review was possible even prior to the 1992 legislation.
Hence, the Supreme Court’s failure to act in this area cannot be attributed
to the lack of a written bill of rights—anyone who expects the “spirit” of the
“constitutional revolution” to aVect the Court’s jurisprudence on this level
will undoubtedly be disappointed. Consider, for example, petitions regarding the investigative practices of the Israeli General Security Services [Shin
Bet]. In one instance, the petitioners argued that General Security Services
regulations permitted torture, and they invoked the right to guaranteed
protection of human dignity under Basic Law: Human Dignity and Liberty.
The Court held that it would not review the merits of the case, but, instead,
would wait for speciWc, concrete cases before expressing an opinion.130 Yet in
speciWc cases brought before the Court, when Palestinian petitioners asked
for a temporary injunction instructing the General Security Services not to
apply physical pressure during an investigation, the Court rejected the
petitions, usually in very short opinions, stating that “we have been convinced”131 that use of such measures is necessary.
It is unfortunate that the Court seems to view these matters as less
pressing from the perspective of “human dignity” than the right of insurance companies to enter the pension funds market or of banks to collect
debts. When the Court devotes 367 pages to writing extensively on human
rights and the protection thereof in cases such as Gal Law and then later
dismisses petitions involving torture in two- to three-page long decisions,
one is left with the sense that the Court’s decisions with regard to which
issues are important human rights issues that warrant a lot of attention and
which ones should be dismissed summarily, are quite problematic.
Some petitions from the Occupied Territories have raised serious questions regarding the newly-elevated right to property. It has been the practice
of the Israeli military to demolish the homes of the families of Arab terrorists.132 Homes are demolished even if innocent family members, including
children, reside there. These cases are exemplary of the types of circumstances that mandate constitutional protection of property rights. In such
cases, the property infringed upon is the very roof over the individual’s
head. In Professor Michelman’s words, these are cases wherein the property
violation results in “exposure to sudden changes in the major elements and
crucial determinants of one’s established position in the world.”133 Moreover, when a house is demolished, the terrorist’s family members remain
The Politics of Rights in Israeli Constitutional Law •
105
homeless and suVer the humiliating experience of being punished for something they did not do. Indeed, this violation of the right to property
amounts to an infringement of human dignity.
When the issue of the demolition of homes came before the Court after
the enactment of Basic Law: Human Dignity and Liberty, the case involved
the demolition of the home of a suicide bomber who blew up a bus in
downtown Tel-Aviv, killing twenty-two civilians. The Israeli army decided
to demolish part of the house and seal the rest; the terrorist’s father, mother,
and Wve of his siblings resided in the section to be demolished. By a four to
one majority, the Court ruled against the petition brought by the family and
allowed the demolition. Only toward the end of his decision did Justice
Matza, who wrote the majority opinion, address the argument made by the
petitioners premised on Basic Law: Human Dignity and Liberty, saying, in
one, brief sentence, that the Basic Law was not applicable in this case, since
the regulations that authorized the demolition of homes predated the
enactment of the Basic Law and, therefore, were not subject to the scrutiny
of Article 10 of the Law.134
Missing from this and decisions in similar cases was the Court’s usual
rhetoric on how the Basic Laws should aVect the interpretation of laws even
when those laws cannot be voided under the Basic Laws. Why does the
protection of property under the Basic Law not play any role in the Court’s
decisions with regard to the demolition of Palestinian homes? It is unfortunate that, in this case—perhaps the epitome of cases that warrant constitutional protection of property—the Court chose to waive discussion of the
Basic Law in one sentence and not to devote the same amount of attention
to property rights as it did in the Gal Law case in the context of the right of
banks to recover debts.
The outcome has been similar in other cases involving home demolitions. One case dealt with the expropriation and sealing of the homes of
terrorists who were involved in the kidnapping and murder of an Israeli
soldier. The terrorists resided in these homes with their parents. The Court
rejected the petition brought by the family. All that Justice Dorner, who
wrote the majority opinion, had to say was that “the authority was given to
the military commander in legislation that preceded Basic Law: Human
Dignity and Liberty. The Basic Law, as provided in Article 10, does not
infringe on the validity of such legislation.”135 The Court refrained from
repeating its rhetoric on how the Basic Laws aVect the interpretation of preexisting legislation and from conducting its standard discussion on the
importance of property rights.
The question then is what changes have been generated by the new
106 • israel studies, volume 3, number 2
Basic Laws thus far? It seems that the introduction of economic rights into
the civil rights discourse and the restriction of the rules for arrest on remand
are the main areas where an impact has been made. In addition, the Basic
Laws may have played a role in the expansion of the Court’s equality
doctrine, but it still remains to be seen whether the Court will, eventually,
apply the same standards to cases of discrimination against Arabs as it does
for example, to cases of discrimination against women. However, these
Basic Laws are not likely to have any eVect on Israel’s most severe human
rights problem—namely, the violation of human rights in the Occupied
Territories—nor are they likely to aVect the complex issue of religion and
State, which also raises serious human rights issues, especially due to the
requirement to marry and divorce in Israel according to the law of one’s
religion. Indeed, the 1992 move, hailed as the “constitutional revolution,”
does not mitigate Israel’s most burning human rights issues.
CONCLUSION
The civil rights discourse in Israel has undergone changes over the last few
decades, and this evolution is linked to the broader social changes that Israel
has experienced during this period. These changes have diverse ramiWcations. It is now commonplace to refer to the “privatization” of Israeli
society, in its broadest sense, with the focus placed on the individual at the
expense of the collective. This has allowed for some progressive developments, but it also has presented a threat to both existing social and labor
legislation, and to legislative initiative in these areas. Moreover, the beneWts
of this new focus on the individual have been limited to the Jewish public.
Hence, although the concept of rights in Israel is more individual-centered
today, it still is, to a large extent, the individual qua member of a particular
ethnic group, with clear preference given to the members of the hegemonic
ethnic group.
A substantive, egalitarian understanding of human rights is required in
order to put the rights discourse in Israel on the right track. Obviously,
“more rights” is not a suYcient and satisfactory agenda if there is no adherence to a substantive concept of rights, such as the concept of the equal
opportunity of all to beneWt from these rights.136 Additionally, the entry of
economic rights into the civil rights discourse and the Supreme Court’s
jurisprudence with regard to civil and political rights for Israeli Jews (which
is of great signiWcance and makes an important contribution to the protection of those rights137) serve to create a “myth of rights” in Israel. However,
The Politics of Rights in Israeli Constitutional Law •
107
as noted, many important human rights issues are still overlooked by the
Supreme Court, especially with respect to upholding the civil rights of
Arabs. Constitutionalism may serve as the vehicle for Israel’s brand of neoliberalism,138 but it is a liberalism that is restricted to the country’s Jewish
majority.
From the perspective of the most disadvantaged in Israeli society—the
weak groups that Barak discussed in his Gal Law opinion139—the current
Israeli rights discourse may be not only ineVectual, but also may actually
work as a hindering force.
What can be done in order to thwart these problems? One important
step would be to grant constitutional recognition to social rights. It is not
clear why “human dignity” embraces all civil rights (including freedom of
contract), but not social rights. Indeed, social and economic rights are, in
Jeremy Waldron’s words, two sides of the same coin.140 The provision in
Article 1 of Basic Law: Human Dignity and Liberty in fact recognizes these
rights in stating that the fundamental rights shall be respected in the spirit
of the principles appearing in the Declaration of Independence. An interpretation of human dignity in light of this reference should include, therefore, the “social rights” mentioned in the Declaration.141 Moreover, the
Knesset should Wnalize the legislation of Basic Law: Social Rights. This
Basic Law has become, to a certain extent, the victim of the general hiatus
that the legislature has taken in the constitution-drafting process. It is
currently uncertain whether it will be possible to enact additional Basic
Laws in the foreseeable future, mainly due to political objection to such
legislation, especially from the religious parties. Regardless, it seems that,
even over the course of the discussions in the Knesset’s committee dealing
with the Basic Laws, this particular proposed Basic Law initially received
least favorable treatment.142 Indeed, a recent proposal submitted by the
Ministry of Justice for legislating a set of three additional Basic Laws on
human rights included only a very impoverished, declaratory version of the
originally proposed Basic Law: Social Rights.
The Israeli concept of democracy has come a long way since the formal
understanding of democracy in the early years of the State. Today, says
Justice Barak, Israel is no longer a formal democracy, but a “real” democracy, a constitutional democracy,143 and constitutional rights aVect all spheres
of law, public and private.144
Will this new concept of democracy deliver on its promises? Under the
Israeli “myth of rights,” the Supreme Court is the bastion of civil rights. In
the Israeli “politics of rights,” the Court has always been strong in defending
108 • israel studies, volume 3, number 2
the civil and political rights of Israeli Jews, but weak in protecting the rights
of Palestinians, both Israeli citizens and those residing in the Territories,
and the 1992 legislation apparently has not altered this reality. Furthermore,
this legislation created the new economic rights discourse, which, as mentioned above, threatens existing and future progressive legislation. In addition, the economic rights discourse is having broader implications for the
concept of human rights insofar as the “unbearable lightness” (the trivialization of the idea of rights) with which various interests are being
declared human rights, on one hand, and with which infringements of
genuinely important human rights are being permitted (due to the light
scrutiny under the limitations clause), on the other. In addition, as I mentioned earlier, Gad Barzilai claims that the Supreme Court makes its decisions within the conWnes of the Jewish nationalism and national security
narratives and does not examine and challenge these narratives. The institutional supremacy that the Court has now been granted, together with its
engagement with ethnic nationalism and the security myth, may reinforce
regressive tendencies in Israeli society, and the Basic Laws will only
strengthen, rather than weaken, this tendency.145
This article began with a discussion of the Zionist approach with
regard to rights. The changes in Israeli society discussed in this article are
sometimes referred to as part of the shift into the post-Zionist era. Perhaps
this new rights discourse should be understood as developing against the
backdrop of the post-Zionist zeitgeist. But post-Zionism as an era (as distinguished from post-Zionism as an academic trend), which focuses on the
“privatization” of Israel, does not erode the fundamental ethnic nature of
the Israeli democracy, nor has it eliminated the “religion of security” so
prevalent in Israel. Yet, even if these phenomena have, in fact, undergone a
certain erosion, the changes seem to be more in the direction of a shift
toward greater individualism within and for the members of the Jewish
collective. This shift in itself, from the progressive perspective, has both
positive and negative aspects. The “privatization” of Israel seems to entail
not only a growing concern for the individual, but also a decline in the
notion of social solidarity. It allows for more pluralism and for greater
equality for previously excluded groups, but it is also biased in favor of
protecting business interests as opposed to labor interests. The question
remains whether the new rights discourse pursuant to the 1992 Basic Laws
can successfully avoid the pitfalls I have discussed here and whether the
Israeli Supreme Court will show a truly egalitarian commitment to human
rights.
The Politics of Rights in Israeli Constitutional Law
•
109
N OTES
*I would like to express my gratitude to Daphna Barak-Erez, Assaf Likhovski, and Ronen Shamir, who read and commented on earlier versions of this article,
and to Duncan Kennedy and Frank Michelman for their inspiration. I wish to also
thank Uzi Rosha for his research assistance, and Dana Rothman for providing her
editing and language skills. Very special thanks to Pnina Lahav, for her advice,
support and friendship.
The research for this article has been supported by a grant from the Cegla
Institute for Comparative and Private International Law.
1. I follow here Stuart Scheingold’s suggestion from 1974 that “[t]he direct
linking of rights, remedies, and change that characterizes the myth of rights must,
in sum, be exchanged for a more complex framework, the politics of rights, which
takes into account the contingent character of rights in the American system.”
Stuart A. Scheingold, The Politics of Rights (New Haven, CT, 1974) 7.
2. Aharon Barak, “The Constitutional Revolution: Protected Human Rights,”
Mishpat Umimshal, 1 (1992) 9–35 [Hebrew]; for criticism of the description of the
1992 move as a constitutional revolution, see Menachem Elon, “The Basic Laws:
Legislation and Interpretation,” Mechkarey Mishpat, 12 (1995) 253–307 [Hebrew];
Moshe Landau, “The Giving of a Constitution to Israel by the Supreme Court,”
Mishpat Umimshal, 3 (1996) 697–712 [Hebrew]; Ruth Gavison, “The Constitutional Revolution: A Reality or a Self-FulWlling Prophesy?” Mishpatim, 28 (1997)
21–147 [Hebrew]; the opinions of Justice Heshin and Justice Zamir, pp. 468–571 in
Supreme Court of Appeals 6821/93, United Mizrahi Bank vs. Migdal Cooperative
Village, Piskey Din [Supreme Court Decisions], 49(4) (1993) 221–588 [Hebrew]
(hereinafter Gal Law case).
3. Lochner vs. New York, U.S., 198 (1905) 45–76.
4. 14 May 1948.
5. Ruth Gavison, “The Controversy over Israel’s Bill of Rights,” Israel Year Book
of Human Rights, 15 (1985) 113–54.
6. See, e.g., ibid.; also, Peter Y. Medding, The Founding of Israeli Democracy
1948–1967 (New York, 1990) 57; pp. 58–68 in George M. Moss, “The Constitutional
Question in Israel,” in Daniel Elazar (ed), Constitutionalism—The Israeli and American Experiences (Lanham, MD, 1990) 51–86; Nathan Yanai, “Politics and Constitution-Making in Israel; Ben-Gurion’s Position in the Constitutional Debate Following the Foundation of the State,” in Daniel Elazar (ed), Constitutionalism, 101–14;
th
Dafna Sharfman, Living Without a Constitution—Civil Rights in Israel (5 edn)
(Armonk, NY, 1996) 51–3; Yonatan Shapiro, “The Historical Origins of Israeli
Democracy,” in Ehud Sprinzak and Larry Diamond (eds), Israeli Democracy under
Stress (Boulder, CO, 1993) 65–80; Moshe Negbi, Above the Law: The Constitutional
Crisis in Israel (Tel-Aviv, 1987) 25–46 [Hebrew].
7. Yanai, “Politics and Constitution-Making in Israel”; p. 68 in “The Law
Committee Report,” The State Constitution (Jerusalem, 1950) [Hebrew].
110 • israel studies, volume 3, number 2
8. So called after Lochner vs. New York, in which the U.S. Supreme Court held as
unconstitutional a New York statute regulating the working hours of bakers. For a
discussion on the age of Lochnerism, see Laurence H. Tribe, American Constitutional Law (2d edn) (Mineola, MN, 1988) 567–8; Morton Horwitz, The Transformation of American Law 1870–1960—The Crisis of Legal Orthodoxy, v2 (New York, 1992)
32–6.
9. Gavison, “The Controversy over Israel’s Bill of Rights,” 140.
10. See p. 131 in Pnina Lahav, “Rights and Democracy: The Court’s Performance, in Israeli Democracy Under Stress,” in Sprinzak and Diamond (eds), Israeli
Democracy under Stress (1993) 125–52.
11. If we look at the prevailing ideologies at the time of the State’s establishment, as reXected in the dominant versions of political Zionism, we will see as
follows: Labor Zionism, the most dominant political group and the one that
enjoyed hegemony until 1977, focused on socialist ideals, although it also took part
in the secular nationalist ideology; Religious Zionism focused on Jewish religion;
Revisionism focused on nationalism; and only General Zionism on liberalism,
mainly in the economic context. For a general introduction to Zionist thought, see
Shlomo Avineri, The Making of Modern Zionism—The Intellectual Origins of the
Jewish State (London, 1981). On the relative weakness of General Zionism, see S.
Zalman Abramov, A Party That Failed—Its Idea Prevailed (Tel-Aviv, 1995) 58–62
[Hebrew]. General Zionism was actually a strong party in the Diaspora before 1948,
but was weaker in Palestine; see also Medding, The Founding of Israeli Democracy
1948–1967, 57.
12. See Lahav, “Rights and Democracy,” 130. For a discussion of the connection
between Zionist collectivist ideology and the development of rights, see also
Sharfman, Living without a Constitution.
13. Shapiro, “The Historical Origins of Israeli Democracy,” 65–6; Yonatan Shapiro, Democracy in Israel (Ramat-Gan, 1977) 19 [Hebrew]. See Dafna Sharfman’s
discussion of the preference given in Labor Zionism to organizational rights over
personal rights. Sharfman, Living without a Constitution, 24. Accordingly, universal
suVrage was granted in 1948, and social rights were recognized in an impressive set
of statutes enacted in the 1950s, in a way that made Israel a leader amongst other
nations in establishing rights and protective mechanisms for employees and in the
implementation of international employment standards. See pp. 674–5 in Frances
Raday, “Trends in Labour Law—Forty Years of Israeli Law,” Israel Law Review, 24
(1988) 674–701. See also Lahav, “Rights and Democracy,” 130.
The laws legislated in Israel’s Wrst decade as a state include a law prohibiting
baking at night (in 1951), the Law of Work and Rest Hours (1951), Annual Vacation
Law (1951), Youth Employment Law (1953), Women’s Employment Law (1954),
Collective Bargaining Law (1957), and Protection of Wages Law (1958). See Ruth
Ben-Israel, Labor Law (Tel-Aviv, 1989) 29–30 [Hebrew].
14. The Basic Laws enacted up until 1992 were as follows: Basic Law: The
Knesset; Basic Law: The Government; Basic Law: The Army; Basic Law: The State
President; Basic Law: The Administration of Justice; Basic Law: The State Comp-
The Politics of Rights in Israeli Constitutional Law
•
111
troller; Basic Law: The State Economy; Basic Law: Israel’s Lands; Basic Law:
Jerusalem—Capital of Israel. As I shall discuss further on, in 1992, Basic Law:
Human Dignity and Liberty and Basic Law: Freedom of Occupation, the Wrst Basic
Laws to deal with human rights, were added to this set of Laws.
15. The Knesset has no quorum requirement for votes, and a law normally may
pass by any majority of the voting Knesset members. The requirement under Article
4 is for a majority of Knesset members; i.e., at least sixty-one out of the 120
members.
16. H.C. 231/73, Bergman vs. Minister of Finance, Piskey Din [Supreme Court
Decisions], 27(2) (1973) 785–90 [Hebrew].
17. H.C. 246, 260/81, Derech Eretz Association vs. Israel Broadcast Authority, Piskey
Din [Supreme Court Decisions], 35(4) (1981) 1–30 [Hebrew], translated in 9 Selected Judgments of the Israeli Supreme Court (Jerusalem, 1992) 21–51; H.C. 141/
82, Rubinshtein vs. Knesset Speaker, Piskey Din [Supreme Court Decisions], 37(3)
(1982) 141–63 [Hebrew], translated in 9 Selected Judgments of the Israeli Supreme
Court (Jerusalem, 1992) 60–82.
18. 107/73, Negev—Car Service Station vs. State of Israel, Piskey Din [Supreme
Court Decisions], 28(1) (1973) 640–44 [Hebrew].
19. For a general discussion on the system of judicial review in Israel prior to
1992, see Amos Shapira, “Judicial Review without a Constitution: The Israeli
Paradox,” Temple Law Quarterly, 56 (1983) 405–62. For an excellent discussion in far
greater detail than is possible within the scope of this article on the history of rights
discourse in the Israeli Supreme Court up to 1992, see Lahav, “Rights and Democracy.”
20. S.N. Eisenstadt, The Transformation of Israeli Society (Boulder, CO, 1985) 189;
Shapiro, Democracy in Israel, 38; Menachem Mautner, The Decline of Formalism and
the Rise of Values in Israeli Law (Tel-Aviv, 1993) 122–3 [Hebrew].
21. H.C. 73/53, Kol Ha’am vs. Minister of Interior, Piskey Din [Supreme Court
Decisions], 7(2) (1953) 871–99 [Hebrew], translated in 1 Selected Judgments of the
Israeli Supreme Court (1948–1953) 90–124. For a detailed discussion of this decision
and its intellectual history, see Pnina Lahav, “Foundations of Rights Jurisprudence
in Israel—Chief Justice Agranat’s Legacy,” Israel Law Review, 24 (1990) 211–69. For
an earlier civil rights case decided by the Court, see H.C. 1/49 Bezerano vs. Minister
of Police, Piskey Din [Supreme Court Decisions], 2 (1949) 80–4 [Hebrew].
22. See Amos Shapira, “The Supreme Court as the Defender or Fundamental
Civil Rights in Israel—A Protected Fortress or a Paper Tiger?” Iyunei Mishpat, 3
(1973) 625–39 [Hebrew].
23. The exception being the Bergman case, discussed above. See note 16.
24. That is, the question arises as to whether there is an eVective diVerence
between review of administrative action— which holds that the Minister can use his
authority when there is “near certainty” of danger to public safety—and review of a
statute—which holds that the statute is unconstitutional if it allows the Minister to
use his authority when there is no such danger.
25. For a discussion on the development of this kind of judicial review, see Pnina
112 • israel studies, volume 3, number 2
Lahav, Judgment in Jerusalem—Chief Justice Simon Agranat and the Zionist Century
(Berkeley, CA, 1997) 79–117.
26. Supreme Court of Appeals 450/70, Rogzinski et al. vs. State of Israel, Piskey
Din [Supreme Court Decisions], 26(1) (1970) 129–40 [Hebrew].
27. E.A. 1/65, Yeredor vs. Chairman of the Central Elections Committee to the Sixth
Knesset, Piskey Din [Supreme Court Decisions], 19(3) (1965) 365–90 [Hebrew]. For
a discussion of this case, see pp. 436–7 in Yoav Peled, “Ethnic Democracy and the
Legal Construction of Citizenship: Arab Citizens of the Jewish State,” American
Political Science Review, 86 (1992) 432–72.
28. Lahav, “Rights and Democracy,” 137–8.
29. Ibid., 139–141.
30. For a discussion of the Court’s judicial review practice at this period, see
Ze’ev Segal, “A Constitution without a Constitution: The Israeli Experience and
the American Impact,” Capital University Law Review, 21 (1992) 1–62, especially pp.
19–36 ; Shapira, “The Supreme Court as the Defender . . .” For a general discussion,
see also Martin Edelman, Courts, Politics and Culture in Israel (Charlottesville, VA,
1994) 6–30.
31. Yitzhak Galnoor, “Israeli Democracy in Transition,” in Peter Y. Medding
(ed), Studies in Contemporary Jewry, v5 (New York, 1988) 126–47.
32. On the signiWcance of this event, when single hegemony was replaced by a
state of rift and rivalry between two major political blocs, see Uri Ram, The Changing Agenda of Israeli Sociology (Albany, NY, 1996) 14.
33. In addition to these groups, the Society for the Protection of Personal
Rights, Israel’s main gay rights group, was formed in 1975, and the new Israeli
feminist movement started to develop in the 1970s. On the latter, see pp. 294–301 in
Barbara Swirski, “Israeli Feminism New and Old,” in Barbara Swirski and Marilyn
P. SaWr (eds), Calling the Equality BluV (New York, 1991) 285–302.
34. Lahav, “Rights and Democracy,” 142.
nd
35. Ze’ev Segal, Standing in the High Court of Justice (2 edn) (Tel-Aviv, 1993)
[Hebrew]; David Kretzmer, “Forty Years of Public Law,” Israel Law Review, 24
(1990) 341–67.
36. Ibid., 343.
37. Segal, “A Constitution without a Constitution,” 22.
38. See, e.g., H.C. 620/85, Mi’ari vs. Speaker of the Knesset, Piskey Din [Supreme
Court Decision], 41(4) (1985) 169–290 [Hebrew].
39. See, e.g., H.C. 852/86, Aloni vs. Minister of Justice, Piskey Din [Supreme Court
Decisions], 41(2) (1986) 1–94 [Hebrew].
40. See, e.g., H.C. 1635/90, Zarzevski vs. Prime Minister, Piskey Din [Supreme
Court Decisions], 45(1) (1990) 749–867 [Hebrew].
41. As described by Amnon Rubenstein in a series of articles in the Ha’Aretz
newspaper in 1987 (beginning on 7 June 1987).
42. Mautner, The Decline of Formalism and the Rise of Values in Israeli Law, 121; pp.
321–322 in Daphne Barak-Erez, “From an Unwritten to a Written Constitution: The
The Politics of Rights in Israeli Constitutional Law
•
113
Israeli Challenge in American Perspective,” Columbia Human Rights Law Review, 26
(1995) 309–55.
43. H.C. 14/86, Laor et al. vs. The Board for Film and Theater Censorship, Piskey
Din [Supreme Court Decisions], 41(1) (1986) 421–45 [Hebrew].
44. Amnon Rubenstein and Barak Medina, The Constitutional Law of the State of
th
Israel, v2 (5 edn) (Jerusalem and Tel-Aviv, 1996) 1067 [Hebrew].
45. See Dan Simon, “The Demolition of Homes in the Israeli Occupied Territories,” Yale Journal of International Law, 19 (1994) 1–79; David Kretzmer, “Judicial
Review over Demolition and Sealing of Houses in the Occupied Territories,” in
Izhaq Zamir (ed), KlinghoVer Book on Public Law (Jerusalem, 1993) 305–57 [Hebrew].
46. See Leon Shelef, “The Green Line is the Border of Activism,” Iyunei Mishpat,
177 (1993) 757–809 [Hebrew]; Ronen Shamir, “Landmark Cases and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice,” Law and Society
Review, 14 (1990) 781–805; David Kretzmer, “The Enforcement and Interpretation
of the Geneva IV Convention—The Supreme Court’s Route,” Mishpatim, 26 (1995)
49–96 [Hebrew].
47. See, e.g., H.C. 200/83, Watad vs. Ministry of Treasury, Piskey Din [Supreme
Court Decision], 38(3) (1983) 113–25 [Hebrew]; H.C. 114/79, Burkan vs. Mister of
Finance, Piskey Din [Supreme Court Decision], 32(2) (1979) 800–08 [Hebrew];
Ronen Shamir, “Legal Discourse, Media Discourse, and Speech Rights: The Shift
from Content to Identity—The Case of Israel,” International Journal of the Sociology
of Law, 19 (1991) 45–65; David Kretzmer, The Legal Status of the Arabs in Israel
(Boulder, CO, 1990).
48. See p. 5 in Gad Barzilai, “The Constitutional Revolution,” Lecture at the
Meeting of the Israeli Political Science Association, 28 May 1995 [Hebrew]. See also
pp. 87, 91 in Gad Barzilai, “Political Institutions and ConXict Resolution—The
Israeli Supreme Court and the Peace Process,” in Ilan Peleg (ed), The Middle East
Peace Process—Interdisciplinary Perspectives (Albany, NY, 1998) 87–105.
49. Lahav, “Rights and Democracy,” 126.
50. See p. 391 in Sammy Smooha, “Minority Status in an Ethnic Democracy:
The Status of the Arab Minority in Israel,” Ethnic and Racial Studies, 13 (1990) 389–
413. On Israel as an ethnic democracy, see also, Yoav Peled, “Ethnic Democracy and
the Legal Construction of Citizenship,” 432–5; Azmi Bashara, “On the Palestinian
Minority in Israel,” Teoria veBikoret, 3 (1993) 7–30 [Hebrew].
51. See p. 397 in Morton Horwitz, “Rights,” Harvard Civil Rights—Civil Liberties Law Review, 23 (1988) 393–406.
52. Dred Scott vs. Sandford, U.S., 393–633 (1857) 60 (19 How.).
53. Lochner vs. New York (see note 3, above).
54. Buckley vs. Valeo, U.S., 424 (1976) 1–294.
55. First National Bank of Boston vs. Belotti, U.S., 435 (1978) 765–828.
56. On rights as harmful, see p. 1386 in Mark Tushnet, “An Essay on Rights, Texas
Law Review, 62 (1984) 1363–1403.
114 • israel studies, volume 3, number 2
57. H.C. 5973/92, A.C.R.I. vs. Minister of Defense, Piskey Din [Supreme Court
Decisions], 47(1) (1992) 267–91 [Hebrew].
58. H.C. 142/82, Laor Movement vs. Speaker of the Knesset, Piskey Din [Supreme
Court Decisions], 44(3) (1982) 529–74 [Hebrew].
59. Ibid., 551–4.
60. The Wrst major attempt to introduce a bill of rights into the Israeli constitutional system was in 1964. This attempt failed as did several subsequent ones. For a
discussion on these failed attempts to pass a bill of rights, see Gavison, “The
Controversy over Israel’s Bill of Rights,” 123–4; Rubenstein and Medina, The
Constitutional Law of the State of Israel, v2, 704–07; pp. 333–8 in Judith Karp, “Basic
Law: Human Dignity and Liberty—A Biography of Power Struggles,” Mishpat
Umimshal, 1 (1993) 323–84 [Hebrew]; Sharfman, Living Without a Constitution,
158–63.
61. Karp, “Basic Law: Human Dignity and Liberty.”
62. Bruce Ackerman, We the People (Cambridge, MA, 1991).
63. Member of Knesset Shevach Weiss, quoted in Karp, “Basic Law: Human
Dignity and Liberty,” 339.
64. Cited in ibid., 327.
65. See pp. 124–5 in Claude Klein, “Basic Law: Human Dignity and Liberty—An
Initial Normative Appreciation,” HaMishpat, 1 (1993) 123–9 [Hebrew]. For criticism of this form of constitution-making, see Gavison, “The Constitutional Revolution.”
66. For the English version of this speech, see Aharon Barak, “A Constitutional
Revolution: Israel’s Basic Laws,” Constitutional Forum, 4 (1993) 83–4.
67. Barak, “The Constitutional Revolution: Protected Human Rights,” 261.
68. For a further discussion of the issue of the non-enumerated rights and which
of those rights should be regarded as included in human dignity, see Hillel Somer,
“The Non-Enumerated Rights: On the Scope of the Constitutional Revolution,”
Mishpatim, 26 (1997) 257–340 [Hebrew]; Daphne Barak-Erez, “From an Unwritten
to a Written Constitution,” 342–4.
69. Ruth Ben-Israel, “The EVect of the Basic Laws on Labor Law and the Labor
Relations System,” Labor Law Yearbook, 4 (1994) 27–47 [Hebrew].
70. See p. 285 in Aharon Barak, “Human Dignity as a Constitutional Right,”
Hapraklit, 41 (1994) 271–90 [Hebrew]. Barak repeats this view on pp. 422–3 in his
book, Interpretation in Law, v3: Constitutional Interpretation (Jerusalem, 1994) [Hebrew].
71. H.C. 1554/95, Shocheri G.I.L.A.T vs. Minister of Education, Piskey Din [Supreme Court Decisions], 50(3) (1995) 2–34 [Hebrew].
72. Ben-Israel, “The EVect of the Basic Laws on Labor Law and the Labor
Relations System,” 31–33, 35, 38–46.
73. See pp. 873, 885 in Cass Sunstein, “Lochner’s Legacy,” Columbia Law Review,
87 (1987) 873–919.
74. Jeremey Waldron, “A Rights-Based Critique of Constitutional Rights,” Oxford Journal of Legal Studies, 13 (1993) 18–51.
The Politics of Rights in Israeli Constitutional Law
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115
75. Ibid.
76. See pp. 132–3 in Judith Karp, “A Few Questions on Human Dignity According to Basic Law: Human Dignity and Liberty,” Mishpatim, 25 (1995) 129–59 [Hebrew].
77. H.C. 7111, 8195/95, The Local Government Center et al. vs. The Knesset et al.,
Piskey Din [Supreme Court Decisions], 50(3) (1995) 485–510 [Hebrew].
78. Since the legislation of the two Basic Laws, “human dignity” has been
invoked inside and outside the Supreme Court in a variety of diVerent contexts. The
Court has deliberated arguments based on the “human dignity” clause in the
context of, inter alia, free speech, alimony, the right to die, rehabilitation of convicted criminals, and so on.
79. Felix Cohen, “Transcendental Nonsense and Functional Approach,” Columbia Law Review, 35 (1935) 809–49.
80. I discuss the issue of the constitutional right to property in further detail in
Aeyal Gross, “Property as A Constitutional Right and Basic Law: Human Dignity
and Liberty,” Iyunei Mishpat, 21 (1997) 405–47 [Hebrew]
81. The Gal Law case (see note 2, above).
82. On the limitations clause, see above under The 1992 Basic Laws
Laws.
83. Frank I. Michelman, “Possession vs. Distribution in the Constitutional Idea
of Property,” Iowa Law Review, 72 (1987) 1319–50.
84. Gal Law case, 279.
85. Michelman, “Possession vs. Distribution,” 1319–20.
86. Barak, “Interpretation in Law,” 428 in H.C. 1554/95 (see note 70, above).
87. Supreme Court of Appeal 294/91, Kadisha G.H.S.A. Company vs. L. A.
Kestenbaum, Piskey Din [Supreme Court Decisions], 46(2) (1991) 464–538 [Hebrew].
88. On the Implications of recognizing a contract as a constitutional right, see
Laurence H. Tribe’s discussion in his book, Constitutional Choices (Cambridge, MA,
1985) 165.
89. See p. 560 in Morris Cohen, “The Basis of Contract,” Harvard Law Review, 46
(1933) 553–92; Roscoe Pound, “Liberty of Contract,” Yale Law Journal, 18 (1909)
454–87; Horwitz, The Transformation of American Law 1870–1960, 33–63 ; pp. 500–1
in Joseph Singer, “Legal Realism Now,” California Law Review, 76 (1988) 465–544.
90. Bezerano vs. Minister of Police (see note 21, above).
91. Ibid., 83.
92. See, e.g., Supreme Court of Appeal 4/74, Berman vs. OYce for Shipment of
Trucks Pardes-Hana—Carcur and the Area Amal Ltd., Piskey Din [Supreme Court
Decisions], 29(2) (1974) 718–23 [Hebrew]; H.C. 256/88, Medinavest Medical Center
Herzliya Ltd. vs. The Director General of the Ministry of Health, Piskey Din [Supreme
Court Decisions], 44(1) (1988) 19–51 [Hebrew].
93. H.C. 726, 878/94, Clal Insurance Company et al. vs. Minister of Finance et al.,
(the Clal case), Piskey Din [Supreme Court Decisions], 48(5) (1994) 441–88 [Hebrew].
94. Ibid., 448–83.
116 • israel studies, volume 3, number 2
95. See p. 200 in Aharon Barak, “Basic Law: Freedom of Occupation,” Mishpat
Umimshal, 2 (1994) 195–217 [Hebrew]. See also Barak, “Interpretation in Law,” 582
(note 70, above).
96. Barak, “Basic Law: Freedom of Occupation,” 201–202.
97. Ibid., 200.
98. Barak, “Interpretation in Law,” 330–331 (see note 70, above).
99. Barak, “Basic Law: Freedom of Occupation,” 202.
100. cf. Lochner vs. New York (see note 3, above).
101. Barak, “Basic Law: Freedom of Occupation,” 203.
102. cf. p. 1733 in Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review, 89 (1976) 1685–1778.
103. On this, see also Alon Harel, “Rights as Trivia,” Davar Rishon, 18 April 1996
[Hebrew].
104. For a discussion of rights as a “double-edged sword” in the American contexts, see Horwitz, “Rights.”
105. Tribe, Constitutional Choices, 165.
106. Ben-Israel, “The EVect of the Basic Laws on Labor Law and the Labor
Relations System.”
107. Interestingly enough, in this way, protection of creditors’ rights was narrowed, instead of expanding those rights on the basis of the economic rights
discussed above.
108. H.C. 53044/92, Perach 1992 Assistance to the Ones Hurt By Laws and Regulations for Another Israel vs. Minister of Justice et al., Piskey Din [Supreme Court
Decisions], 47(4) (1992) 715–65 [Hebrew]. See Ron Harris, “The Fall and Rise of
Imprisonment for Debt,” Iyunei Mishpat, 20 (1996) 439–509 [Hebrew].
109. D.C.R. 537/95, Genimat vs. State of Israel, Piskey Din [Supreme Court Decisions], 49(3) (1995) 355–440 [Hebrew].
110. Ibid., 410–411, 430; C.F.H. 2316/95, Genimat vs. State of Israel, Piskey Din
[Supreme Court Decisions], 49(4) (1995) 589–655 [Hebrew].
111. H.C. 453, 454/94, Israel Women’s Network vs. The Government of Israel et al.,
Piskey Din [Supreme Court Decisions], 48(5) (1994) 501–42 [Hebrew].
112. Ibid., 516–21.
113. H.C. 721/94, El-Al Israel Airlines Ltd. vs. Yonathan Danilowitz et al., Piskey
Din [Supreme Court Decisions], 48(5) (1994) 749–84 [Hebrew].
114. Ibid., 759.
115. Ibid., 778–9.
116. H.C. 4541/94, Alice Miller vs. Minister of Defense et al., 49 (4) Piskey Din
[Supreme Court Decisions] 94–145 [Hebrew].
117. Ibid., 109–10.
118. Ibid., 131–6.
119. H.C. 3491/90, M.C. Agabria vs. Minister of Education, Piskey Din [Supreme
Court Decisions], 45(1) (1990) 221–4 [Hebrew]; H.C. 3954/91, M.C. Agabria vs.
Minister of Education, Piskey Din [Supreme Court Decisions], 45(5) (1991) 472–8
The Politics of Rights in Israeli Constitutional Law
•
117
[Hebrew]; H.C. 4251/94, The Arabic Council for Education vs. Minister of Education
[Decided 29 March 1995; not published yet].
120. See p. 267 in Yaron Ezrahi, “Democratic, Politic and Culture in Modern
Israel: Recent Trends,” in Sprinzak and Diamond (eds), 255–72.
121. L.C.A. ng/3–223, Palestine Post Ltd. vs. Joanna Yechiel [Decided 17 October
1994); not published yet].
122. On the clash between property and freedom of speech, see pp. 422–437 in
Ilana Dayan, “The Democratic Model of Speech Freedom,” Iyunei Mishpat, 20(2)
(1996) 377–437 [Hebrew]. On the clash between right to property and other rights
in general, see pp. 255–275 in Migel Deutsch, Property 1 (Tel-Aviv, 1997) [Hebrew].
123. Barak, “Interpretation in Law,” 331 (see note 70, above).
124. Kretzmer, “Judicial Review.”
125. These terms are taken from Cass Sunstein, The Partial Constitution (Cambridge, UK, 1993) 68.
126. cf. with the discussion of the situation in the United States vis-à-vis Native
Americans on p. 229 in Joseph Singer and Jack Beerman, “The Social Origins of
Property,” Canadian Journal of Law and Jurisprudence, 6 (1993) 217–48.
127. Sandy Kedar, “Majority Time, Minority Time: Land, Nation and the Law of
Adverse Possession in Israel,” Iyunei Mishpat, 21 (1998) 665–746.
128. Menahem Hofnunug, Israel—Security Needs vs. The Rule of Law, 1948–1991
(Jerusalem, 1991) 159–174 [Hebrew].
129. F.H. (H.C.) 4466/94, Maazen Hassan Zaki Nusseibeh et al. vs. Finance Minister et al., Piskey Din [Supreme Court Decisions], 49(4) (1994) 68–93 [Hebrew].
130. H.C. 2581/91, Murad Adnan Salhat et al. vs. The Government of Israel et al.,
Piskey Din [Supreme Court Decisions], 47(4) (1991) 837–45 [Hebrew].
131. H.C. 8049/91, Hamdan vs. G.S.S. [not published] [Hebrew]; H.C. 3124/69,
Mubarak vs. G.S.S. [not published] [Hebrew].
132. Simon, “The Demolition of Homes in the Israeli Occupied Territories”;
Kretzmer, “Judicial Review.”
133. See p. 304 in Frank Michelman, “Mr. Justice Brennan: A Property Teacher’s
Appreciation,” Harvard Civil Rights—Civil Liberties Law Review, 15 (1980) 296–308.
134. H.C. 6026/94, Abed el-Rahim Hasan Nazal vs. The IDF Commander in Judea
and Samaria, Piskey Din [Supreme Court Decisions], 48(5) (1994) 338–52 [Hebrew].
135. H.C. 6189, 6196, 6190/94, Taisir Ben Yousuf Abdul Nebi Natahsa et al. vs.
Minister of Defense et al. [Decided 22 December 1994; not published] [Hebrew].
136. For a discussion on the need to ground rights theory in a substantive conception of the good society, see Horwitz, “Rights,” 404. See also John Rawls’s discussion of the need for a “fair value” of the basic liberties in his book, Political Liberalism
(New York, 1993) 289–371.
137. Thus I object to Andrei Marmor’s description of the Court’s cases that dealt
with the protection of equality rights for women and for gays as being “sensational”
judgments that protect “piquant” rights. See pp. 138, 141 in Andrei Marmor, “Judicial Review in Israel,” Mishpat Umimshal, 4 (1997) 133–60 [Hebrew].
118 • israel studies, volume 3, number 2
138. For discussion of the Basic Laws as part of neo-liberal free market zeitgeist in
Israel, see p. 711 in Ronen Shamir, “Society Judaism and Democratic Fundamentalism—On the Social Roots of Judicial Interpretation,” Iyunei Mishpat, 19 (1995)
699–716 [Hebrew]; Ben-Israel, “The EVect of the Basic Laws on Labor Law and the
Labor Relations System,” 30–33; Ran Hirschel, “The ‘Constitutional Revolution’
and the Emergence of a New Economic Order in Israel,” Israel Studies, 2 (1997)
136–55.
139. The Gal Law case, 448 (see note 2, above).
140. Jeremey Waldron, Liberal Rights: Collected Papers 1 (Cambridge, UK, 1993).
141. The Declaration says that Israel will guarantee “full equality of political and
social rights . . .”
142. See, e.g., Evelyn Gordon, “Committee Passes Bills for Basic Law on Human
Rights,” The Jerusalem Post, 16 November 1993, p. 2.
143. Barak, “The Constitutional Revolution: Protected Human Rights,” 398–9,
424.
144. Ibid., 447.
145. The deWnition of the values of the State as “Jewish and democratic” conditions the liberties, says Barzilai, on the ethnic-national membership to the Jewish
group; see Barzilai, “The Constitutional Revolution.” See also Barzilai, “Political
Institutions and ConXict Resolution,” 99, where he argues that the new Basic Laws
“reXected, articulated, generated and empowered Jewishness as the dominant national narrative for Court rulings.”