The struggle for hegemony: Understanding judicial empowerment through constitutionalization in culturally divided polities

Stanford Journal of International Law

Volumn 36, Issue 1, 2000, Pages 73-116

  Hirschl, Ran ^a,b,c  

^a UNIVERSITY OF TORONTO   (Canada)

^b YALE UNIVERSITY   (United States)

^c TEL AVIV UNIVERSITY   (Israel)

Author keywords

[No Author keywords available]

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EID: 0034394293     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (271)

1. See generally BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION (1992) (arguing that constitutionalization is crucial to achieve the goals of democratic revolution, particularly in post1989 Eastern Europe).
2. James L. Gibson et al., On the Legitimacy of National High Courts, 92 AM. POL. SCI. REV. 343, 343 (1998).
3. C. Neal Tate & Torbjörn Vallinder, The Global Expansion of Judicial Power: The Judicialization of Politics, in THE GLOBAL EXPANSION OF JUDICIAL POWER 1, 5 (C. Neal Tate & Torbjörn Vallinder eds., 1995).
4. See id at 28-29, 33. It seems reasonable to conclude that politics is more likely to be judicialized when judicial review is founded in a constitutional bill of rights. If the constitution does not pronounce material rights for individuals against the state, judicial review is often confined to procedural matters. In these circumstances, the probability of intervention by the judiciary in highly political issues is ordinarily rather low. The existence of a constitutional bill of rights, on the other hand, provides the necessary institutional conditions for judicial review to expand its boundaries to substantive political issues central to the polity. The rise of a "politics of rights" following the constitutionalization of rights further facilitates the process whereby political disputes are judicialized. When legitimacy is accorded to a politics of rights, it spills over to the procedures associated with the work of courts, who become key players in this politics. Given their new legitimacy, these procedures can become archetypes available for use in the many seemingly nonjudicial forums into which the politics of rights penetrates.
5. Including Hungary, Romania, Bulgaria, Poland, the Czech Republic, and Slovakia. See Andáds Sajó & Vera Lonsone, Rule By Law in East Central Europe: Is the Emperor's New Suit a Straitjacket?, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 321, 321, 326-28 (Douglas Greenberg et al. eds., 1993).
6. Such as new democracies in Southern Europe (Greece, 1975; Portugal, 1976; Spain, 1978); new democracies in Africa (Mozambique, 1990; Zambia, 1991; Uganda, 1992; Ghana, 1993; Ethiopia, 1995; South Africa, 1993 and 1996); new independent countries in Africa (Zimbabwe, 1980; Namibia, 1990; Eritrea, 1993); new democracies in Asia (the Philippines, 1987); Pacific Islands (Papua New Guinea, 1975; Solomon Islands, 1978; Cook Islands, 1981; Niue, 1994; Fiji, 1997); and new democracies in Latin America (Nicaragua, 1987; Brazil, 1988; Colombia, 1991; Peru, 1993; Bolivia, 1994).
7. Examples include Sri Lanka, 1978; Egypt, 1980; Canada, 1982; Turkey, 1982 and 1995; Belgium, 1985; New Zealand, 1990; Israel, 1992; Peru, 1993; and Fiji, 1997.
8. To these three common constitutionalization scenarios one might add, of course, the constitutionalization of rights through supranational treaties, and its impact upon constitutional reforms in member countries of such supranational regimes. For example, Denmark incorporated the provisions of the European Convention on Human Rights into its domestic law in 1993, followed by Sweden in 1995. Even the United Kingdom, one of the last bastions of the Westminister system, has recently enacted the Human Rights Act, 1998, which formally incorporates the provisions of the European Charter on Human Rights into British constitutional law.
9. See, e.g., AREND LUPHART, DEMOCRACY IN PLURAL SOCIETIES 36-38 (1977); Arend Lijphart et. al., Separation of Powers and Cleavage Management, in Do INSTITUTIONS MATTER? GOVERNMENT CAPABILITIES IN THE UNITED STATES AND ABROAD 302, 302-06, 320 (R. Kent Weaver & Bert A. Rockman eds., 1993) [hereinafter DO INSTITUTIONS MATTER?].
10. See, e.g., AREND LUPHART, DEMOCRACY IN PLURAL SOCIETIES 36-38 (1977); Arend Lijphart et. al., Separation of Powers and Cleavage Management, in Do INSTITUTIONS MATTER? GOVERNMENT CAPABILITIES IN THE UNITED STATES AND ABROAD 302, 302-06, 320 (R. Kent Weaver & Bert A. Rockman eds., 1993) [hereinafter DO INSTITUTIONS MATTER?].
11. See infra notes 17-40 and accompanying text.
12. See infra notes 44-47 and accompanying text.
13. R. Kent Weaver & Bert A. Rockman, Assessing the Effects of Institutions, in Do INSTITUTIONS MATTER?, supra note 9, at 1, 31. See also George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism, 25 BRIT. J. POL. Sci. 289, 323 (1995) (stating that "courts are more important and independent in systems with multiple incongruent and cohesive veto players").
14. R. Kent Weaver & Bert A. Rockman, Assessing the Effects of Institutions, in Do INSTITUTIONS MATTER?, supra note 9, at 1, 31. See also George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism, 25 BRIT. J. POL. Sci. 289, 323 (1995) (stating that "courts are more important and independent in systems with multiple incongruent and cohesive veto players").
15. See Weaver & Rockman, supra note 12, at 26,31.
16. David Vogel, Representing Diffuse Interests in Environmental Policymaking, in Do INSTITUTIONS MATTER?, supra note 9, at 237, 266-68.
17. See, e.g., Cass R. Sunstein, Constitutions and Democracies: An Epilogue, in CONSTITUTIONALISM AND DEMOCRACY 327, 327-29 (Jon Elster & Rune Slagstad eds., 1988); JANERIK LANE, CONSTITUTIONS AND POLITICAL THEORY 152-160 (1996).
18. See, e.g., Cass R. Sunstein, Constitutions and Democracies: An Epilogue, in CONSTITUTIONALISM AND DEMOCRACY 327, 327-29 (Jon Elster & Rune Slagstad eds., 1988); JANERIK LANE, CONSTITUTIONS AND POLITICAL THEORY 152-160 (1996).
19. See Lijphart et al., supra note 9, at 302-06, 320.
20. See PETER STEIN, LEGAL EVOLUTION: THE STORY OF AN IDEA 122 (1980); see also Donald L. Horowitz, The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change, 42 AM. J. COMP. L. 233, 244-47 (1994).
21. See PETER STEIN, LEGAL EVOLUTION: THE STORY OF AN IDEA 122 (1980); see also Donald L. Horowitz, The Qur'an and the Common Law: Islamic Law Reform and the Theory of Legal Change, 42 AM. J. COMP. L. 233, 244-47 (1994).
22. Horowitz, supra note 17, at 244.
23. See Id. at 244-15.
24. See generally S.N. EISENSTADT, MODERNIZATION: PROTEST AND CHANGE 25 (1966) (arguing that the "development of autonomous legal systems" is an important feature of societal evolution); TALCOTT PARSONS, SOCIETIES: EVOLUTIONARY AND COMPARATIVE PERSPECTIVES (1966) (identifying occupational differentiation, including the emergence of a legal profession, as an inherent feature of modernization).
25. See generally S.N. EISENSTADT, MODERNIZATION: PROTEST AND CHANGE 25 (1966) (arguing that the "development of autonomous legal systems" is an important feature of societal evolution); TALCOTT PARSONS, SOCIETIES: EVOLUTIONARY AND COMPARATIVE PERSPECTIVES (1966) (identifying occupational differentiation, including the emergence of a legal profession, as an inherent feature of modernization).
26. See generally RONALD DWORKIN, A BILL OF RIGHTS FOR BRITAIN (1990) (arguing that the United Kingdom should incorporate the European Convention of Human Rights into its domestic law); RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTIUTION 1-38 (1996) (arguing that a polity's freedom is enhanced, not dimished, by a written bill of rights).
27. See generally RONALD DWORKIN, A BILL OF RIGHTS FOR BRITAIN (1990) (arguing that the United Kingdom should incorporate the European Convention of Human Rights into its domestic law); RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTIUTION 1-38 (1996) (arguing that a polity's freedom is enhanced, not dimished, by a written bill of rights).
28. See DWORKIN, FREEDOM'S LAW, supra note 21, at 32-35.
29. Horowitz, supra note 17, at 245.
30. See MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLICAL ANALYSIS 96-111 (1981).
31. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 26-29 (5th ed. 1998).
32. This view is often associated with the Chicago school of economic analysis of the law. See SUSAN ROSE-ACKERMAN, RETHLNKING THE PROGRESSIVE AGENDA 14-27 (1993) (criticizing the systemic efficiency-driven process of legal transformation); PAUL H. RUBIN, BUSINESS FIRMS AND THE COMMON LAW: THE EVOLUTION OF EFHCIENT RULES 173, 178-80 (1983).
33. This view is often associated with the Chicago school of economic analysis of the law. See SUSAN ROSE-ACKERMAN, RETHLNKING THE PROGRESSIVE AGENDA 14-27 (1993) (criticizing the systemic efficiency-driven process of legal transformation); PAUL H. RUBIN, BUSINESS FIRMS AND THE COMMON LAW: THE EVOLUTION OF EFHCIENT RULES 173, 178-80 (1983).
34. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS (1970) (considering how tort law can most effectively deter costly behavior and allocate risk).
35. See, e.g., Anthony T. Kronman, Specific Performance, 45 U. CHI. L. REV. 351, 354, 369-76 (1978) (stating that Calabresi's and Melamed's views "have had little influence in shaping our law of contract remedies" and arguing in favor of remedying breach of contract with specific per-formance); Paul H. Rubin, Unenforceable Contracts: Penalty Clauses and Specific Performance, 10 J. LEGAL STUD. 237, 246-47 (1981) ("Economists have been unable to explain the unwillingness of the courts to enforce penalty clauses, arguing that such willingness was inefficient.").
36. See, e.g., Anthony T. Kronman, Specific Performance, 45 U. CHI. L. REV. 351, 354, 369-76 (1978) (stating that Calabresi's and Melamed's views "have had little influence in shaping our law of contract remedies" and arguing in favor of remedying breach of contract with specific per-formance); Paul H. Rubin, Unenforceable Contracts: Penalty Clauses and Specific Performance, 10 J. LEGAL STUD. 237, 246-47 (1981) ("Economists have been unable to explain the unwillingness of the courts to enforce penalty clauses, arguing that such willingness was inefficient.").
37. See DOUGLASS C. NORTH & ROBERT PAUL THOMAS, THE RISE OF THE WESTERN WORLD: A NEW ECONOMIC HISTORY 9-18 (1973). The authors illustrate this argument through analysis of the demise of feudalism in Europe. During the Middle Ages, feudalism remained stable as long as land remained the scarce resource. Although lords could offer more attractive rights to serfs, it was not in their interests to do so. Following the Black Death, labor became the scarce resource. Lords facing competition for labor for the first time attempted to attract labor by offering more attractive bargains to workers, thereby causing labor force mobility and destroying feudalism in Western Europe.
38. See LUPHART, supra note 9, at 36-38.
39. See id. at 37 ("By giving to each interest, or portion, the power of self-protection, all strife and struggle between them for ascendency is prevented, and thereby... every feeling calculated to weaken the attachment to the whole is suppressed."); see also Abso I. Baaklini, Legislative Structure and Constitutional Viability in Societies Undergoing Democratic Transition, in DESIGNS FOR DEMOCRATIC STABILITY: STUDIES IN VIABLE CONSTITUTIONALISM 141-142 (Abdo I. Baaklini & Helen Desfosses eds., 1997) (describing the advantages of horizontally structured legislatures as "conducive to the positive image and legitimacy of the legislature").
40. In the last decade, the Israeli Supreme Court has become one of the busiest courts in the world. According to the 47 STAT. ABSTRACT OF ISR. 462 (1996), the Court heard a total of 4741 cases in 1988, 6007 cases in 1991, 6965 in 1994, and 10,529 cases in 1996 (an increase of more than 120% in the total number of cases brought before the Court since 1988). See generally AMNON RUBINSTFIN, CONSTITUTIONAL LAW OF ISRAEL (1996) (surveying recent decisions illustrating the Israeli Supreme Court's intrusion into the prerogatives of the legislative and executive branches in Israel). For preliminary attempts to explain the expansion of judicial power in Israel, see generally Gad Barzilai, The Supreme Court in Israeli Legal Cultue, 152 INT'LSOC. Sci. J. 193 (1997) (stating that increasing polarization in Israeli politics has led to greater judicial power), and Martin Edelman, The Judicialization of Politics in Israel, 15 INT'LPIL. SCI. REV. 177, 184 (1994) ("The default of Israel's democratically elected leadership has produced a vacuum; and the people have turned to the courts to resolve an ever increasing range of problems.") [hereinafter, Edelman, Judicialization].
41. In the last decade, the Israeli Supreme Court has become one of the busiest courts in the world. According to the 47 STAT. ABSTRACT OF ISR. 462 (1996), the Court heard a total of 4741 cases in 1988, 6007 cases in 1991, 6965 in 1994, and 10,529 cases in 1996 (an increase of more than 120% in the total number of cases brought before the Court since 1988). See generally AMNON RUBINSTFIN, CONSTITUTIONAL LAW OF ISRAEL (1996) (surveying recent decisions illustrating the Israeli Supreme Court's intrusion into the prerogatives of the legislative and executive branches in Israel). For preliminary attempts to explain the expansion of judicial power in Israel, see generally Gad Barzilai, The Supreme Court in Israeli Legal Cultue, 152 INT'LSOC. Sci. J. 193 (1997) (stating that increasing polarization in Israeli politics has led to greater judicial power), and Martin Edelman, The Judicialization of Politics in Israel, 15 INT'LPIL. SCI. REV. 177, 184 (1994) ("The default of Israel's democratically elected leadership has produced a vacuum; and the people have turned to the courts to resolve an ever increasing range of problems.") [hereinafter, Edelman, Judicialization].
42. In the last decade, the Israeli Supreme Court has become one of the busiest courts in the world. According to the 47 STAT. ABSTRACT OF ISR. 462 (1996), the Court heard a total of 4741 cases in 1988, 6007 cases in 1991, 6965 in 1994, and 10,529 cases in 1996 (an increase of more than 120% in the total number of cases brought before the Court since 1988). See generally AMNON RUBINSTFIN, CONSTITUTIONAL LAW OF ISRAEL (1996) (surveying recent decisions illustrating the Israeli Supreme Court's intrusion into the prerogatives of the legislative and executive branches in Israel). For preliminary attempts to explain the expansion of judicial power in Israel, see generally Gad Barzilai, The Supreme Court in Israeli Legal Cultue, 152 INT'LSOC. Sci. J. 193 (1997) (stating that increasing polarization in Israeli politics has led to greater judicial power), and Martin Edelman, The Judicialization of Politics in Israel, 15 INT'LPIL. SCI. REV. 177, 184 (1994) ("The default of Israel's democratically elected leadership has produced a vacuum; and the people have turned to the courts to resolve an ever increasing range of problems.") [hereinafter, Edelman, Judicialization].
43. In the last decade, the Israeli Supreme Court has become one of the busiest courts in the world. According to the 47 STAT. ABSTRACT OF ISR. 462 (1996), the Court heard a total of 4741 cases in 1988, 6007 cases in 1991, 6965 in 1994, and 10,529 cases in 1996 (an increase of more than 120% in the total number of cases brought before the Court since 1988). See generally AMNON RUBINSTFIN, CONSTITUTIONAL LAW OF ISRAEL (1996) (surveying recent decisions illustrating the Israeli Supreme Court's intrusion into the prerogatives of the legislative and executive branches in Israel). For preliminary attempts to explain the expansion of judicial power in Israel, see generally Gad Barzilai, The Supreme Court in Israeli Legal Cultue, 152 INT'LSOC. Sci. J. 193 (1997) (stating that increasing polarization in Israeli politics has led to greater judicial power), and Martin Edelman, The Judicialization of Politics in Israel, 15 INT'LPIL. SCI. REV. 177, 184 (1994) ("The default of Israel's democratically elected leadership has produced a vacuum; and the people have turned to the courts to resolve an ever increasing range of problems.") [hereinafter, Edelman, Judicialization].
44. See Edelman, Judicialization, supra note 32, at 184. See generally Yitzhak Zamir, Political Contracts, 26 ISR. L. REV. 461 (1992) (describing the importance, nature, history, and enforceability of political agreements).
45. See Edelman, Judicialization, supra note 32, at 184. See generally Yitzhak Zamir, Political Contracts, 26 ISR. L. REV. 461 (1992) (describing the importance, nature, history, and enforceability of political agreements).
46. The Israel Central Bureau of Statistics announced that the current population of Israel as of May 1998 was estimated at 5.94 million. Of the total population in 1998, approximately 4.76 million (about 80%) were Jews and 1.18 million (about 20%) were non-Jews (mainly Arab-Israelis). Of the Jewish population, about 55% were Ashkenazi Jews (Jews of European descent, mainly from Eastern Europe, and Jews from other Western societies); and about 45% were Mizrahi or Sephardi Jews (mainly from Mediterranean, North African or Asian countries). See Israel at 50: A Statistical Glimpse, (visited Sept. 22, 1999). For recent detailed accounts of the ethnic and cultural cleavages in Israeli society, see ASHER ARIAN, THE SECOND REPUBLIC: POLITICS IN ISRAEL 19-42 (1998) and YAGIL LEVI, TRIAL AND ERROR 166-212 (1997).
47. The Israel Central Bureau of Statistics announced that the current population of Israel as of May 1998 was estimated at 5.94 million. Of the total population in 1998, approximately 4.76 million (about 80%) were Jews and 1.18 million (about 20%) were non-Jews (mainly Arab-Israelis). Of the Jewish population, about 55% were Ashkenazi Jews (Jews of European descent, mainly from Eastern Europe, and Jews from other Western societies); and about 45% were Mizrahi or Sephardi Jews (mainly from Mediterranean, North African or Asian countries). See Israel at 50: A Statistical Glimpse, (visited Sept. 22, 1999). For recent detailed accounts of the ethnic and cultural cleavages in Israeli society, see ASHER ARIAN, THE SECOND REPUBLIC: POLITICS IN ISRAEL 19-42 (1998) and YAGIL LEVI, TRIAL AND ERROR 166-212 (1997).
48. The Israel Central Bureau of Statistics announced that the current population of Israel as of May 1998 was estimated at 5.94 million. Of the total population in 1998, approximately 4.76 million (about 80%) were Jews and 1.18 million (about 20%) were non-Jews (mainly Arab-Israelis). Of the Jewish population, about 55% were Ashkenazi Jews (Jews of European descent, mainly from Eastern Europe, and Jews from other Western societies); and about 45% were Mizrahi or Sephardi Jews (mainly from Mediterranean, North African or Asian countries). See Israel at 50: A Statistical Glimpse, (visited Sept. 22, 1999). For recent detailed accounts of the ethnic and cultural cleavages in Israeli society, see ASHER ARIAN, THE SECOND REPUBLIC: POLITICS IN ISRAEL 19-42 (1998) and YAGIL LEVI, TRIAL AND ERROR 166-212 (1997).
49. This is the basic rationale behind Edelman's analyses. See Edelman, Judicialization, supra note 32, at 181-83.
50. For a recent account of the implications of the constitutional revolution on this unique form of judicial r?view in Israel, see Menahem Hofnung, The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel, 44 AM. J. COMP. L. 585, 601-04 (1996) (describing the gradual establishment of constitutional review and its crucial role in situations of political stalemate).
51. Mark Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. IN AM. POL. DEV. 35, 35-38 (1993).
52. See Edelman, Judicialization, supra note 32, at 181.
53. Barzilai, supra note 32, at 196.
54. Edelman, Judicialization, supra note 32, at 177. See also Martin Edelman, The Judicial Elite of Israel, 13 INT'LPOL. Sci. REV. 235, 246 (1992) ("In the highly polizicized democracy that is Israel, authority-and a fair amount of political power-has flowed towards its premier nonpartisan institution. The separation of law and politics thus has worked to the political advantage of the Supreme Court.").
55. Edelman, Judicialization, supra note 32, at 177. See also Martin Edelman, The Judicial Elite of Israel, 13 INT'LPOL. Sci. REV. 235, 246 (1992) ("In the highly polizicized democracy that is Israel, authority-and a fair amount of political power-has flowed towards its premier nonpartisan institution. The separation of law and politics thus has worked to the political advantage of the Supreme Court.").
56. A useful definition of the credible commitments problem is as follows: [I]n order to extract rents, rational legislators will want to commit themselves to longterm statutory bargains; they will not be able to do so without institutional constraints because of their incentive to renege after the fact. To extort money, they will want to promise credibly that the statutes they enact will stay in force for some minimal amount of time. Once they have collected the money, however, they necessarily have an incentive to renege. Knowing their representatives have that incentive, constituents will pay less cash at the outset. J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN'S POLITICAL MARKETPLACE 145 (1993). See also Douglas North & Barry Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, in EMPIRICAL STUDIES IN INSTITUTIONALCHANGE (John Alston et al. eds., 1996). According to North and Weingast, the self-constraint of a ruler's arbitrary authority to confiscate wealth was the key political factor underpinning economic growth and the development of markets in early capitalist Europe. Making credible commitments through self-enforcing institutional mechanisms (such as developing private property rights enforceable in parliament ana removing the ruler's control of the judiciary) established the legal security of expectations and allowed rulers to borrow capital from lenders who were protected by law from arbitrary seizure of their capital. In other words, by constraining the establishment of new institutions that limited their flexibility, rulers were able to maintain their long-term economic survival. For recent accounts of this problem, see, e.g., David M. Kreps, Corporate Culture and Economic Theory, in PERSPECTIVES ON POSITIVE POLITICAL ECONOMY 90, 106-11 (James E. Alt & Kenneth A. Shepsle eds., 1990) (using game theory to describe the inter-relationship between trust and reputation, short-term vs. repeat participants, and enforcement mechanisms .in the context of choosing whether or not to renege on a bargain); Mancur Olson, Dictatorship, Democracy, and Development, 87 AM. POL. SCI. REV. 567, 570-71 (1993) (describing the incentives of obtaining majority support, which causes political leaders in democracies to balance tax levies and wealth redistribution); Barry R. Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. INSTITUTIONAL & THEORETICAL ECON. 286, 306-07 (1993) (exploring what makes limits on state action credible, through a study of market preserving federalism in the United States and England); and Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245, 245 (1997) (presenting three examples to illustrate how "democracy's limits are enforced").
57. A useful definition of the credible commitments problem is as follows: [I]n order to extract rents, rational legislators will want to commit themselves to longterm statutory bargains; they will not be able to do so without institutional constraints because of their incentive to renege after the fact. To extort money, they will want to promise credibly that the statutes they enact will stay in force for some minimal amount of time. Once they have collected the money, however, they necessarily have an incentive to renege. Knowing their representatives have that incentive, constituents will pay less cash at the outset. J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN'S POLITICAL MARKETPLACE 145 (1993). See also Douglas North & Barry Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, in EMPIRICAL STUDIES IN INSTITUTIONALCHANGE (John Alston et al. eds., 1996). According to North and Weingast, the self-constraint of a ruler's arbitrary authority to confiscate wealth was the key political factor underpinning economic growth and the development of markets in early capitalist Europe. Making credible commitments through self-enforcing institutional mechanisms (such as developing private property rights enforceable in parliament ana removing the ruler's control of the judiciary) established the legal security of expectations and allowed rulers to borrow capital from lenders who were protected by law from arbitrary seizure of their capital. In other words, by constraining the establishment of new institutions that limited their flexibility, rulers were able to maintain their long-term economic survival. For recent accounts of this problem, see, e.g., David M. Kreps, Corporate Culture and Economic Theory, in PERSPECTIVES ON POSITIVE POLITICAL ECONOMY 90, 106-11 (James E. Alt & Kenneth A. Shepsle eds., 1990) (using game theory to describe the inter-relationship between trust and reputation, short-term vs. repeat participants, and enforcement mechanisms .in the context of choosing whether or not to renege on a bargain); Mancur Olson, Dictatorship, Democracy, and Development, 87 AM. POL. SCI. REV. 567, 570-71 (1993) (describing the incentives of obtaining majority support, which causes political leaders in democracies to balance tax levies and wealth redistribution); Barry R. Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. INSTITUTIONAL & THEORETICAL ECON. 286, 306-07 (1993) (exploring what makes limits on state action credible, through a study of market preserving federalism in the United States and England); and Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245, 245 (1997) (presenting three examples to illustrate how "democracy's limits are enforced").
58. A useful definition of the credible commitments problem is as follows: [I]n order to extract rents, rational legislators will want to commit themselves to longterm statutory bargains; they will not be able to do so without institutional constraints because of their incentive to renege after the fact. To extort money, they will want to promise credibly that the statutes they enact will stay in force for some minimal amount of time. Once they have collected the money, however, they necessarily have an incentive to renege. Knowing their representatives have that incentive, constituents will pay less cash at the outset. J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN'S POLITICAL MARKETPLACE 145 (1993). See also Douglas North & Barry Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, in EMPIRICAL STUDIES IN INSTITUTIONALCHANGE (John Alston et al. eds., 1996). According to North and Weingast, the self-constraint of a ruler's arbitrary authority to confiscate wealth was the key political factor underpinning economic growth and the development of markets in early capitalist Europe. Making credible commitments through self-enforcing institutional mechanisms (such as developing private property rights enforceable in parliament ana removing the ruler's control of the judiciary) established the legal security of expectations and allowed rulers to borrow capital from lenders who were protected by law from arbitrary seizure of their capital. In other words, by constraining the establishment of new institutions that limited their flexibility, rulers were able to maintain their long-term economic survival. For recent accounts of this problem, see, e.g., David M. Kreps, Corporate Culture and Economic Theory, in PERSPECTIVES ON POSITIVE POLITICAL ECONOMY 90, 106-11 (James E. Alt & Kenneth A. Shepsle eds., 1990) (using game theory to describe the inter-relationship between trust and reputation, short-term vs. repeat participants, and enforcement mechanisms .in the context of choosing whether or not to renege on a bargain); Mancur Olson, Dictatorship, Democracy, and Development, 87 AM. POL. SCI. REV. 567, 570-71 (1993) (describing the incentives of obtaining majority support, which causes political leaders in democracies to balance tax levies and wealth redistribution); Barry R. Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. INSTITUTIONAL & THEORETICAL ECON. 286, 306-07 (1993) (exploring what makes limits on state action credible, through a study of market preserving federalism in the United States and England); and Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245, 245 (1997) (presenting three examples to illustrate how "democracy's limits are enforced").
59. A useful definition of the credible commitments problem is as follows: [I]n order to extract rents, rational legislators will want to commit themselves to longterm statutory bargains; they will not be able to do so without institutional constraints because of their incentive to renege after the fact. To extort money, they will want to promise credibly that the statutes they enact will stay in force for some minimal amount of time. Once they have collected the money, however, they necessarily have an incentive to renege. Knowing their representatives have that incentive, constituents will pay less cash at the outset. J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN'S POLITICAL MARKETPLACE 145 (1993). See also Douglas North & Barry Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, in EMPIRICAL STUDIES IN INSTITUTIONALCHANGE (John Alston et al. eds., 1996). According to North and Weingast, the self-constraint of a ruler's arbitrary authority to confiscate wealth was the key political factor underpinning economic growth and the development of markets in early capitalist Europe. Making credible commitments through self-enforcing institutional mechanisms (such as developing private property rights enforceable in parliament ana removing the ruler's control of the judiciary) established the legal security of expectations and allowed rulers to borrow capital from lenders who were protected by law from arbitrary seizure of their capital. In other words, by constraining the establishment of new institutions that limited their flexibility, rulers were able to maintain their long-term economic survival. For recent accounts of this problem, see, e.g., David M. Kreps, Corporate Culture and Economic Theory, in PERSPECTIVES ON POSITIVE POLITICAL ECONOMY 90, 106-11 (James E. Alt & Kenneth A. Shepsle eds., 1990) (using game theory to describe the inter-relationship between trust and reputation, short-term vs. repeat participants, and enforcement mechanisms .in the context of choosing whether or not to renege on a bargain); Mancur Olson, Dictatorship, Democracy, and Development, 87 AM. POL. SCI. REV. 567, 570-71 (1993) (describing the incentives of obtaining majority support, which causes political leaders in democracies to balance tax levies and wealth redistribution); Barry R. Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. INSTITUTIONAL & THEORETICAL ECON. 286, 306-07 (1993) (exploring what makes limits on state action credible, through a study of market preserving federalism in the United States and England); and Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245, 245 (1997) (presenting three examples to illustrate how "democracy's limits are enforced").
60. A useful definition of the credible commitments problem is as follows: [I]n order to extract rents, rational legislators will want to commit themselves to longterm statutory bargains; they will not be able to do so without institutional constraints because of their incentive to renege after the fact. To extort money, they will want to promise credibly that the statutes they enact will stay in force for some minimal amount of time. Once they have collected the money, however, they necessarily have an incentive to renege. Knowing their representatives have that incentive, constituents will pay less cash at the outset. J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN'S POLITICAL MARKETPLACE 145 (1993). See also Douglas North & Barry Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, in EMPIRICAL STUDIES IN INSTITUTIONALCHANGE (John Alston et al. eds., 1996). According to North and Weingast, the self-constraint of a ruler's arbitrary authority to confiscate wealth was the key political factor underpinning economic growth and the development of markets in early capitalist Europe. Making credible commitments through self-enforcing institutional mechanisms (such as developing private property rights enforceable in parliament ana removing the ruler's control of the judiciary) established the legal security of expectations and allowed rulers to borrow capital from lenders who were protected by law from arbitrary seizure of their capital. In other words, by constraining the establishment of new institutions that limited their flexibility, rulers were able to maintain their long-term economic survival. For recent accounts of this problem, see, e.g., David M. Kreps, Corporate Culture and Economic Theory, in PERSPECTIVES ON POSITIVE POLITICAL ECONOMY 90, 106-11 (James E. Alt & Kenneth A. Shepsle eds., 1990) (using game theory to describe the inter-relationship between trust and reputation, short-term vs. repeat participants, and enforcement mechanisms .in the context of choosing whether or not to renege on a bargain); Mancur Olson, Dictatorship, Democracy, and Development, 87 AM. POL. SCI. REV. 567, 570-71 (1993) (describing the incentives of obtaining majority support, which causes political leaders in democracies to balance tax levies and wealth redistribution); Barry R. Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. INSTITUTIONAL & THEORETICAL ECON. 286, 306-07 (1993) (exploring what makes limits on state action credible, through a study of market preserving federalism in the United States and England); and Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245, 245 (1997) (presenting three examples to illustrate how "democracy's limits are enforced").
61. A useful definition of the credible commitments problem is as follows: [I]n order to extract rents, rational legislators will want to commit themselves to longterm statutory bargains; they will not be able to do so without institutional constraints because of their incentive to renege after the fact. To extort money, they will want to promise credibly that the statutes they enact will stay in force for some minimal amount of time. Once they have collected the money, however, they necessarily have an incentive to renege. Knowing their representatives have that incentive, constituents will pay less cash at the outset. J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN'S POLITICAL MARKETPLACE 145 (1993). See also Douglas North & Barry Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, in EMPIRICAL STUDIES IN INSTITUTIONALCHANGE (John Alston et al. eds., 1996). According to North and Weingast, the self-constraint of a ruler's arbitrary authority to confiscate wealth was the key political factor underpinning economic growth and the development of markets in early capitalist Europe. Making credible commitments through self-enforcing institutional mechanisms (such as developing private property rights enforceable in parliament ana removing the ruler's control of the judiciary) established the legal security of expectations and allowed rulers to borrow capital from lenders who were protected by law from arbitrary seizure of their capital. In other words, by constraining the establishment of new institutions that limited their flexibility, rulers were able to maintain their long-term economic survival. For recent accounts of this problem, see, e.g., David M. Kreps, Corporate Culture and Economic Theory, in PERSPECTIVES ON POSITIVE POLITICAL ECONOMY 90, 106-11 (James E. Alt & Kenneth A. Shepsle eds., 1990) (using game theory to describe the inter-relationship between trust and reputation, short-term vs. repeat participants, and enforcement mechanisms .in the context of choosing whether or not to renege on a bargain); Mancur Olson, Dictatorship, Democracy, and Development, 87 AM. POL. SCI. REV. 567, 570-71 (1993) (describing the incentives of obtaining majority support, which causes political leaders in democracies to balance tax levies and wealth redistribution); Barry R. Weingast, Constitutions as Governance Structures: The Political Foundations of Secure Markets, 149 J. INSTITUTIONAL & THEORETICAL ECON. 286, 306-07 (1993) (exploring what makes limits on state action credible, through a study of market preserving federalism in the United States and England); and Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 AM. POL. SCI. REV. 245, 245 (1997) (presenting three examples to illustrate how "democracy's limits are enforced").
62. Similar arguments have been made by scholars with regard to central bank independence. Although central banks can offer assurances that they will refrain from generating inflation, for example, the credibility of those assurances will be undermined to the degree the bank responds to politicians, who are known to be sensitive to electoral pressures that might incline them toward a more expansionary policy. Rendering the central bank more independent of political control will increase the credibility of its assurances that monetary policy will remain tight. See JOHN GOODMAN, MONETARY SOVEREIGNTY: THE POLITICS OF CENTRAL BANKING IN WESTERN EUROPE 4-5 (1992) ("In countries with independent central banks... governments have, by definition, little influence over the formulation of monetary policy, [which thus remains] largely insulated from such political factors.").
63. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. Sci. 165, 176 (1984); see also Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 481 (1989) (arguing that administrative procedure creates an "early warning" system, imposes delay, and allows politicians to adjust an agency's course prior to implementation of policy changes, which redress the need for ex ante constraints); McNollgast, Positive and Normative Models of Procedural Rights: An Integrative Approach to Administrative Procedures, 6 J. L. ECON. & ORG. 307, 315-18 (Special Issue 1990) (describing "how courts might function as an independent source" of control over administrative procedures).
64. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. Sci. 165, 176 (1984); see also Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 481 (1989) (arguing that administrative procedure creates an "early warning" system, imposes delay, and allows politicians to adjust an agency's course prior to implementation of policy changes, which redress the need for ex ante constraints); McNollgast, Positive and Normative Models of Procedural Rights: An Integrative Approach to Administrative Procedures, 6 J. L. ECON. & ORG. 307, 315-18 (Special Issue 1990) (describing "how courts might function as an independent source" of control over administrative procedures).
65. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. Sci. 165, 176 (1984); see also Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 481 (1989) (arguing that administrative procedure creates an "early warning" system, imposes delay, and allows politicians to adjust an agency's course prior to implementation of policy changes, which redress the need for ex ante constraints); McNollgast, Positive and Normative Models of Procedural Rights: An Integrative Approach to Administrative Procedures, 6 J. L. ECON. & ORG. 307, 315-18 (Special Issue 1990) (describing "how courts might function as an independent source" of control over administrative procedures).
66. See RAMSEYER & ROSENBLUTH, supra note 41, at 147-50 (explaining the fire alarm and police patrol mechanisms for monitoring the bureaucracy). Legislators routinely allow bureaucrats discretion over programs. In the process, however, they must try to ensure that the bureaucrats implement the programs as they intended. Hypothetically, they could constrain the bureaucrats by monitoring them routinely through what McCubbins and Schwartz call "police-patrol" monitoring. Instead, they often find it more efficient to give constituents ways to publicize their complaints through what they call "fire alarm" monitoring. Id. at 147.
67. See William M. Landes & Richard A. Posner, The Independent Judiciary in an InterestGroup Perspective, 18 J. L. & ECON. 875, 877 (1975).
68. See id. at 879.
69. For attempts to test the Landes and Posner hypothesis empirically, see Gary M. Anderson et al., Behind the Veil: The Political Economy of Constitutional Change, in PREDICTING POLITICS: ESSAYS IN EMPIRICAL PUBLIC CHOICE 89, 90-98 (W. Mark Grain & Robert D. Tollison eds., 1990); Robert D. Tollison & W. Mark Crain, Constitutional Change in an Interest-Group Perspective, 8 J. LEGAL STUD. 165, 175 (1979) (finding that their hypothesis is a "very good predictive theory in explaining constiutional change at the state level in the United States").
70. For attempts to test the Landes and Posner hypothesis empirically, see Gary M. Anderson et al., Behind the Veil: The Political Economy of Constitutional Change, in PREDICTING POLITICS: ESSAYS IN EMPIRICAL PUBLIC CHOICE 89, 90-98 (W. Mark Grain & Robert D. Tollison eds., 1990); Robert D. Tollison & W. Mark Crain, Constitutional Change in an Interest-Group Perspective, 8 J. LEGAL STUD. 165, 175 (1979) (finding that their hypothesis is a "very good predictive theory in explaining constiutional change at the state level in the United States").
71. See J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. LEGAL STUD. 721, 746-47 (1994); see also RAMSEYER & ROSENBLUTH, supra note 41, at 142-61 (describing how Japanese judges are so subject to legislative control and manipulation such that the "potential virtues flowing from judicial independence" does not materialize).
72. See Ramseyer, supra note 48, at 722.
73. In a similar vein, John Goodman argues that the independence of central banks in advanced industrial countries is simply a function of politicians' time horizons. The longer the horizon of their time in power, the more fervently politicians will desire the greatest possible control over economic policy, which implies a consequent loss of independence for the central bank. By this logic, short horizons or forthcoming elections can lead politicians who fear losing their office to increase central bank independence in order to limit the future options of their political opponents. See GOODMAN, supra note 42, at 6-10, 211-16.
74. For a similar approach in the context of Roman society, see ALAN WATSON, THE EVOLUTION OF LAW 23, 69-75 (1985).
75. See North & Weingast, supra note 41.
76. My argument here finds striking parallels in the literature regarding the political sources of empowerment of other semi-autonomous institutions similar in nature to judicial review of bills of rights, such as central banks and supranational tribunals. For example, in her study of the political sources of central bank authority in developing countries, Sylvia Maxfield argues that the interests and capacities of early central banking institutions in such countries are "shaped by the financial interests of those in a position to delegate authority to central banks: government politicians and private banks." Sylvia Maxfield, Financial Incentives and Central Bank Authority in Industrializing Nations, 46 WORLD POL. 556, 557 (1994). See also SYLVIA MAXHELD, GATEKEEPERS OF GROWTH 19-34 (1997). Another example is the intergovemmentalist thesis, which suggests that member states are the central institution builders of the European Community (EC), and that they provide the political sources of autonomy for the European Court of Justice (ECJ) to serve their own purposes. According to this approach, self-conscious, interest-maximizing actors (member states) create (and selectively abide by the limits imposed by) supranational institutions because these institutions help them surmount collective action problems and overcome domestic political problems. The political power version of this thesis suggests that national governments from the European Union (EU) member-states have not been passive and unwilling victims of European legal integration. Instead, they consciously delegated power to the Court, and where the ECJ has been proactive, the member governments have supported this. See Geoffrey Garrett, The Politics of Legal Integration in the European Union, 49 INT'L ORG. 171, 172-73, 189-90 (1995). See generally Geoffrey Garrett, International Cooperation and Institutional Choice: The European Community's Internal Market, 46 INT'L ORG. 533 (1992) (describing the incentives that led member states to create the particular European Community institutions and rules that now exist).
77. My argument here finds striking parallels in the literature regarding the political sources of empowerment of other semi-autonomous institutions similar in nature to judicial review of bills of rights, such as central banks and supranational tribunals. For example, in her study of the political sources of central bank authority in developing countries, Sylvia Maxfield argues that the interests and capacities of early central banking institutions in such countries are "shaped by the financial interests of those in a position to delegate authority to central banks: government politicians and private banks." Sylvia Maxfield, Financial Incentives and Central Bank Authority in Industrializing Nations, 46 WORLD POL. 556, 557 (1994). See also SYLVIA MAXHELD, GATEKEEPERS OF GROWTH 19-34 (1997). Another example is the intergovemmentalist thesis, which suggests that member states are the central institution builders of the European Community (EC), and that they provide the political sources of autonomy for the European Court of Justice (ECJ) to serve their own purposes. According to this approach, self-conscious, interest-maximizing actors (member states) create (and selectively abide by the limits imposed by) supranational institutions because these institutions help them surmount collective action problems and overcome domestic political problems. The political power version of this thesis suggests that national governments from the European Union (EU) member-states have not been passive and unwilling victims of European legal integration. Instead, they consciously delegated power to the Court, and where the ECJ has been proactive, the member governments have supported this. See Geoffrey Garrett, The Politics of Legal Integration in the European Union, 49 INT'L ORG. 171, 172-73, 189-90 (1995). See generally Geoffrey Garrett, International Cooperation and Institutional Choice: The European Community's Internal Market, 46 INT'L ORG. 533 (1992) (describing the incentives that led member states to create the particular European Community institutions and rules that now exist).
78. My argument here finds striking parallels in the literature regarding the political sources of empowerment of other semi-autonomous institutions similar in nature to judicial review of bills of rights, such as central banks and supranational tribunals. For example, in her study of the political sources of central bank authority in developing countries, Sylvia Maxfield argues that the interests and capacities of early central banking institutions in such countries are "shaped by the financial interests of those in a position to delegate authority to central banks: government politicians and private banks." Sylvia Maxfield, Financial Incentives and Central Bank Authority in Industrializing Nations, 46 WORLD POL. 556, 557 (1994). See also SYLVIA MAXHELD, GATEKEEPERS OF GROWTH 19-34 (1997). Another example is the intergovemmentalist thesis, which suggests that member states are the central institution builders of the European Community (EC), and that they provide the political sources of autonomy for the European Court of Justice (ECJ) to serve their own purposes. According to this approach, self-conscious, interest-maximizing actors (member states) create (and selectively abide by the limits imposed by) supranational institutions because these institutions help them surmount collective action problems and overcome domestic political problems. The political power version of this thesis suggests that national governments from the European Union (EU) member-states have not been passive and unwilling victims of European legal integration. Instead, they consciously delegated power to the Court, and where the ECJ has been proactive, the member governments have supported this. See Geoffrey Garrett, The Politics of Legal Integration in the European Union, 49 INT'L ORG. 171, 172-73, 189-90 (1995). See generally Geoffrey Garrett, International Cooperation and Institutional Choice: The European Community's Internal Market, 46 INT'L ORG. 533 (1992) (describing the incentives that led member states to create the particular European Community institutions and rules that now exist).
79. My argument here finds striking parallels in the literature regarding the political sources of empowerment of other semi-autonomous institutions similar in nature to judicial review of bills of rights, such as central banks and supranational tribunals. For example, in her study of the political sources of central bank authority in developing countries, Sylvia Maxfield argues that the interests and capacities of early central banking institutions in such countries are "shaped by the financial interests of those in a position to delegate authority to central banks: government politicians and private banks." Sylvia Maxfield, Financial Incentives and Central Bank Authority in Industrializing Nations, 46 WORLD POL. 556, 557 (1994). See also SYLVIA MAXHELD, GATEKEEPERS OF GROWTH 19-34 (1997). Another example is the intergovemmentalist thesis, which suggests that member states are the central institution builders of the European Community (EC), and that they provide the political sources of autonomy for the European Court of Justice (ECJ) to serve their own purposes. According to this approach, self-conscious, interest-maximizing actors (member states) create (and selectively abide by the limits imposed by) supranational institutions because these institutions help them surmount collective action problems and overcome domestic political problems. The political power version of this thesis suggests that national governments from the European Union (EU) member-states have not been passive and unwilling victims of European legal integration. Instead, they consciously delegated power to the Court, and where the ECJ has been proactive, the member governments have supported this. See Geoffrey Garrett, The Politics of Legal Integration in the European Union, 49 INT'L ORG. 171, 172-73, 189-90 (1995). See generally Geoffrey Garrett, International Cooperation and Institutional Choice: The European Community's Internal Market, 46 INT'L ORG. 533 (1992) (describing the incentives that led member states to create the particular European Community institutions and rules that now exist).
80. This assumption is based primarily on the courts' record of adjudication and on the justices' ideological preferences.
81. For analyses of the political aspects of the abortion debate in the United States, see Graber, supra note 37, at 53-61. See also EH M. Salzberger, A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary?, 13 INT'L REV. L. & ECON. 349, 363 (1993).
82. As recent studies have shown, landmark decisions of the U.S. Supreme Court, for example, have not been either merely apolitical jurisprudence, or a reflection of the Justices' ideological preferences, but also a reflection of their strategic behavior as rational actors who seek to preserve or improve the Court's institutional position vis-à-vis other major national decision-making bodies. See Lee Epstein & Thomas G. Walker, The Role of the Supreme Court in American Society: Playing the Reconstruction Game, in CONTEMPLATING COURTS 315, 322-24 (Lee Epstein ed., 1995). LEE EPSTEIN & JACK KNIGHT, CHOICES JUSTICES MAKE (1998)
83. As recent studies have shown, landmark decisions of the U.S. Supreme Court, for example, have not been either merely apolitical jurisprudence, or a reflection of the Justices' ideological preferences, but also a reflection of their strategic behavior as rational actors who seek to preserve or improve the Court's institutional position vis-à-vis other major national decision-making bodies. See Lee Epstein & Thomas G. Walker, The Role of the Supreme Court in American Society: Playing the Reconstruction Game, in CONTEMPLATING COURTS 315, 322-24 (Lee Epstein ed., 1995). LEE EPSTEIN & JACK KNIGHT, CHOICES JUSTICES MAKE (1998)
84. For detailed discussions of the Supreme Court's use of the terms "the enlightened public" and "the reasonable person," see Dan Avnon, The Enlightened Public: Jewish and Democratic or Liberal and Democratic, 3 MISHPAT U'MIMSHAL [LAW & GOVERNMENT] 417, 427 (1996); and Ronen Shamir, The Politics of Reasonableness: Reasonableness and Judicial Power at Israel's Supreme Court, 5 TE'ORYAH U-VIKORET [Theory and Criticism] 7, 198 (1994) (describing the use of "reasonableness" to exclude disenfranchised groups from legal goods) [English abstract of Hebrew text]. See also Israel's Other Barak, ECONOMIST, Apr. 10, 1999, at 43.
85. For detailed discussions of the Supreme Court's use of the terms "the enlightened public" and "the reasonable person," see Dan Avnon, The Enlightened Public: Jewish and Democratic or Liberal and Democratic, 3 MISHPAT U'MIMSHAL [LAW & GOVERNMENT] 417, 427 (1996); and Ronen Shamir, The Politics of Reasonableness: Reasonableness and Judicial Power at Israel's Supreme Court, 5 TE'ORYAH U-VIKORET [Theory and Criticism] 7, 198 (1994) (describing the use of "reasonableness" to exclude disenfranchised groups from legal goods) [English abstract of Hebrew text]. See also Israel's Other Barak, ECONOMIST, Apr. 10, 1999, at 43.
86. For detailed discussions of the Supreme Court's use of the terms "the enlightened public" and "the reasonable person," see Dan Avnon, The Enlightened Public: Jewish and Democratic or Liberal and Democratic, 3 MISHPAT U'MIMSHAL [LAW & GOVERNMENT] 417, 427 (1996); and Ronen Shamir, The Politics of Reasonableness: Reasonableness and Judicial Power at Israel's Supreme Court, 5 TE'ORYAH U-VIKORET [Theory and Criticism] 7, 198 (1994) (describing the use of "reasonableness" to exclude disenfranchised groups from legal goods) [English abstract of Hebrew text]. See also Israel's Other Barak, ECONOMIST, Apr. 10, 1999, at 43.
87. See Ran Hirschl, Israel's 'Constitutional Revolution': The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-liberal Economic Order, 46 AM J. COMP. L. 427, 448-50 (1998).
88. Among the forces which publicly supported Israel's constitutional revolution were leading economic figures in addition to the country's major economic organizations, such as the Chambers of Commerce and Manufacturing.
89. See Ran Hirschl, The "Constitutional Revolution" and the Emergence of a New Economic Order in Israel, ISR. STUD., Spring 1997, at 136
90. See Ran Hirschl, The "Constitutional Revolution" and the Emergence of a New Economic Order in Israel, ISR. STUD., Spring 1997, at 136 (examining the effects of the enactment of the Basic Laws and concluding that they have resulted in the emergence of a free enterprise worldview and a new economic order); see also Aeyal Gross, The Politics of Rights in Israeli Constitutional Law, ISR. STUD., Fall 1998, at 80 (discussing the "Lochnerization" of Israeli law).
91. See generally, e.g., Yair Aharoni, The Changing Political Economy of Israel, 555 ANNALS OF THE AM. ACAD. POL. & Soc. Sci. 127 (1998) (analyzing the major changes in Israel's political economy, and discussing some of their reasons and consequences).
92. See generally Michael N. Barnett, Israel in the World Economy: Israel as an East Asian State?, in ISRAEL IN COMPARATIVE PERSPECTIVE 107 (Michael N. Barnett ed., 1996) (examining Israel's rapid economic development).
93. Examples of these two processes are the recent privatization of health, media and telecommunication services, as well as the privatization of Israel's largest bank, Bank Ha'Poalim, in August 1997; the gradual deregulation of the land market; the extensive deregulation of the foreign currency market (completed in May 1998); and the emergence of private medical services and private higher education institutions. In addition, the local market has been opened to multinationals and imported goods; consumption patterns have become Americanized; and a "stock exchange culture" has arisen. In short, individualism, consumerism, and the market values of competition and efficiency have gained the status of cultural totems. These transitions have been accompanied by changes in the traditional power bases of the Labor Movement and by a reorganization of the Histadrut. According to the 1997/98 report of the U.N. International Labour Organization, there was a 75.7% drop in trade union membership in Israel from 1985 to 1995-the sharpest drop in labor union membership in the world during this period. See INTERNATIONAL LABOUR OFFICE GENEVA, WORLD LABOUR REPORT 1997-98 at 8, 235-36 (1997). The shift toward a neoliberal position in present-day Israel is also evident in the labor and welfare spheres. It is estimated that approximately 200,000 foreign workers have entered Israel since the late" 1980s. Of these foreign workers, less than 85,000 have entered the country lawfully. As of 1998, foreign workers account for about 10% of Israel's civilian labor force. See ISRAEL DEMOCRACY INSTITUTE, FOREIGN WORKERS IN ISRAEL (1998) (on file with author); 46TH ANNUAL REPORT OF THE STATE'S COMPTROLLER 475-96 (1996) (reporting on the problem of foreign workers in Israel). Entrepreneurship and private employment services have increased; individual and special labor contracts have proliferated; collective bargaining agreements have become less common; and minimum-wage and other mandatory social security laws are no longer rigorously enforced. All of these phenomena are indicators of Israel's movement toward a variant of the neoliberal market economy. For a general discussion of this trend, see Aharoni, supra note 61.
94. Examples of these two processes are the recent privatization of health, media and telecommunication services, as well as the privatization of Israel's largest bank, Bank Ha'Poalim, in August 1997; the gradual deregulation of the land market; the extensive deregulation of the foreign currency market (completed in May 1998); and the emergence of private medical services and private higher education institutions. In addition, the local market has been opened to multinationals and imported goods; consumption patterns have become Americanized; and a "stock exchange culture" has arisen. In short, individualism, consumerism, and the market values of competition and efficiency have gained the status of cultural totems. These transitions have been accompanied by changes in the traditional power bases of the Labor Movement and by a reorganization of the Histadrut. According to the 1997/98 report of the U.N. International Labour Organization, there was a 75.7% drop in trade union membership in Israel from 1985 to 1995-the sharpest drop in labor union membership in the world during this period. See INTERNATIONAL LABOUR OFFICE GENEVA, WORLD LABOUR REPORT 1997-98 at 8, 235-36 (1997). The shift toward a neoliberal position in present-day Israel is also evident in the labor and welfare spheres. It is estimated that approximately 200,000 foreign workers have entered Israel since the late" 1980s. Of these foreign workers, less than 85,000 have entered the country lawfully. As of 1998, foreign workers account for about 10% of Israel's civilian labor force. See ISRAEL DEMOCRACY INSTITUTE, FOREIGN WORKERS IN ISRAEL (1998) (on file with author); 46TH ANNUAL REPORT OF THE STATE'S COMPTROLLER 475-96 (1996) (reporting on the problem of foreign workers in Israel). Entrepreneurship and private employment services have increased; individual and special labor contracts have proliferated; collective bargaining agreements have become less common; and minimum-wage and other mandatory social security laws are no longer rigorously enforced. All of these phenomena are indicators of Israel's movement toward a variant of the neoliberal market economy. For a general discussion of this trend, see Aharoni, supra note 61.
95. Examples of these two processes are the recent privatization of health, media and telecommunication services, as well as the privatization of Israel's largest bank, Bank Ha'Poalim, in August 1997; the gradual deregulation of the land market; the extensive deregulation of the foreign currency market (completed in May 1998); and the emergence of private medical services and private higher education institutions. In addition, the local market has been opened to multinationals and imported goods; consumption patterns have become Americanized; and a "stock exchange culture" has arisen. In short, individualism, consumerism, and the market values of competition and efficiency have gained the status of cultural totems. These transitions have been accompanied by changes in the traditional power bases of the Labor Movement and by a reorganization of the Histadrut. According to the 1997/98 report of the U.N. International Labour Organization, there was a 75.7% drop in trade union membership in Israel from 1985 to 1995-the sharpest drop in labor union membership in the world during this period. See INTERNATIONAL LABOUR OFFICE GENEVA, WORLD LABOUR REPORT 1997-98 at 8, 235-36 (1997). The shift toward a neoliberal position in present-day Israel is also evident in the labor and welfare spheres. It is estimated that approximately 200,000 foreign workers have entered Israel since the late" 1980s. Of these foreign workers, less than 85,000 have entered the country lawfully. As of 1998, foreign workers account for about 10% of Israel's civilian labor force. See ISRAEL DEMOCRACY INSTITUTE, FOREIGN WORKERS IN ISRAEL (1998) (on file with author); 46TH ANNUAL REPORT OF THE STATE'S COMPTROLLER 475-96 (1996) (reporting on the problem of foreign workers in Israel). Entrepreneurship and private employment services have increased; individual and special labor contracts have proliferated; collective bargaining agreements have become less common; and minimum-wage and other mandatory social security laws are no longer rigorously enforced. All of these phenomena are indicators of Israel's movement toward a variant of the neoliberal market economy. For a general discussion of this trend, see Aharoni, supra note 61.
96. See Aharon Barak, A Constitutional Revolution: Israel's Basic Laws, in 4 CONST. F. 83, 83-84 (1993); GUY BECHOR, HUKAH LE'ISRAEL: SIPURO SHEL MA'AVAK [A CONSTITUTION TO ISRAEL: A STORY OF A FIGHT] (1996) [Hebrew].
97. See Aharon Barak, A Constitutional Revolution: Israel's Basic Laws, in 4 CONST. F. 83, 83-84 (1993); GUY BECHOR, HUKAH LE'ISRAEL: SIPURO SHEL MA'AVAK [A CONSTITUTION TO ISRAEL: A STORY OF A FIGHT] (1996) [Hebrew].
98. See Gershon Shafir & Yoav Peled, Citizenship and Stratification in an Ethnic Democracy, 21 ETHNIC AND RACIAL STUD. 408, 417-18 (1998); see also ELIEZER BEN-RAFAEL & STEPHEN SHAROT, ETHNICITY, RELIGION AND CLASS IN ISRAELI SOCIETY 81-84 (1991) (discussing opposition to the "Ashkenization" of the religious sphere). See generally SHLOMO SWIRSKI, ISRAEL THE ORIENTAL MAJORITY(1989) (exploring ethnic divisions and activism in Israel).
99. See Gershon Shafir & Yoav Peled, Citizenship and Stratification in an Ethnic Democracy, 21 ETHNIC AND RACIAL STUD. 408, 417-18 (1998); see also ELIEZER BEN-RAFAEL & STEPHEN SHAROT, ETHNICITY, RELIGION AND CLASS IN ISRAELI SOCIETY 81-84 (1991) (discussing opposition to the "Ashkenization" of the religious sphere). See generally SHLOMO SWIRSKI, ISRAEL THE ORIENTAL MAJORITY(1989) (exploring ethnic divisions and activism in Israel).
100. See Gershon Shafir & Yoav Peled, Citizenship and Stratification in an Ethnic Democracy, 21 ETHNIC AND RACIAL STUD. 408, 417-18 (1998); see also ELIEZER BEN-RAFAEL & STEPHEN SHAROT, ETHNICITY, RELIGION AND CLASS IN ISRAELI SOCIETY 81-84 (1991) (discussing opposition to the "Ashkenization" of the religious sphere). See generally SHLOMO SWIRSKI, ISRAEL THE ORIENTAL MAJORITY(1989) (exploring ethnic divisions and activism in Israel).
101. It is estimated that between 1989 and 1997 about 700,000 immigrants came to Israel from the Soviet Union, and about 50,000 from Ethiopia. In 1990 alone, 185,200 Jews arrived from the former Soviet Union. In 1991, an additional 147,800 arrived. See Ayelet Shachar, Whose Repub-lic? Citizenship and Membership in the Israeli Polity, 13 GEO. IMMIGR. L.J. 233, 244 (1999); Israel at 50: After Zionism, ECONOMIST, Apr. 25, 1998, at 3; ARIAN, supra note 34, at 28-29.
102. It is estimated that between 1989 and 1997 about 700,000 immigrants came to Israel from the Soviet Union, and about 50,000 from Ethiopia. In 1990 alone, 185,200 Jews arrived from the former Soviet Union. In 1991, an additional 147,800 arrived. See Ayelet Shachar, Whose Repub-lic? Citizenship and Membership in the Israeli Polity, 13 GEO. IMMIGR. L.J. 233, 244 (1999); Israel at 50: After Zionism, ECONOMIST, Apr. 25, 1998, at 3; ARIAN, supra note 34, at 28-29.
103. SeeTHE NATIONAL INSURANCE INSTITUTE, ANNUAL REPORT ON POVERTY (1998); HA'ARETZ (English edition), Dec. 1, 1998 . The original text in Hebrew is on file with the author; see also Yiftachel, supra note 34, at 510.
104. SeeTHE NATIONAL INSURANCE INSTITUTE, ANNUAL REPORT ON POVERTY (1998); HA'ARETZ (English edition), Dec. 1, 1998 . The original text in Hebrew is on file with the author; see also Yiftachel, supra note 34, at 510.
105. THE NATIONAL INSURANCE INSTITUTE, supra note 67.
106. Relly Sa'ar, Numbers Unchanged, But Poor Get Poorer, Ha'aretz, Dec. 1, 1998, available at (visited Apr. 2, 1999)
107. See Yoav Peled, Towards a Redefinition of Jewish Nationalism in Israel? The Enigma of Shas, 21 ETHNIC & RACIALSTUD. 703, 709 (1998).
108. Id.
109. Id.
110. Id. at 710.
111. For a detailed account of the ethnic cleavages in Israel, changes in public opinion, and attitudes toward the peace process, see Shafir & Peled, supra note 65, at 409 (discussing the emergence of a "New Israel" in light of such changes).
112. In 1981, this bloc of 95 Members of Knesset (MKs) included 47 MKs representing the Labor Party, 43 Likud MKs representing a secular bourgeois policy agenda, 3 MKs representing CRM/ShinuL/Meretz, and 2 other MfS representing the secular bourgeoisie policy agenda (the Ometz faction). In 1996, this bloc totalled 62 MKs, including 34 MKs representing the Labor Party, 15 Likud MKs representing a secular bourgeois policy agenda, 9 MKs representing CRM/Shinui/Meretz, and 4 MKs representing The Third Way. The Labor Party's list for the 1996 general elections included Knesset members representing policy preference oi Mizrahi Jews in development towns and poor neighborhoods (e.g., E. Ben-Menahem and A. Peretz), as well as a Knesset member representing the small community of Ethiopian Jews (A. Masalla). But since in general the Labor Party has long been identified with the policy preferences of the secular Ashkenazi bourgeoisie, I count all Labor MKs in this category. Counting these Knesset members as representing the interests of peripheral groups in the Israeli society would further strengthen my point. Moreover, all of the above 3 MKs lost their seats in the Labor Party's list for the 1999 general elections. See ARIAN, supra note 34, at 208-09; DON PERETZ & GIDEON DORON, THE GOVERNMENT AND POLITICS OF ISRAEL, 105-11 (1997). Note also that Likud (Union) was established as an alliance between Herat (Freedom) - a nationalist party - and the Liberal Party, and has been led by a group of ideologically diverse personalities. Therefore, Likud has always been a very loose alliance between politicians officially committed to different and sometimes opposing policy preferences. See ARIAN, supra note 34, at 85, 118-27; PERETZ & DORON, 105-11. Note, however, that most of Likud's dominant figures since the party's establishment have been secular Ashkenazi leaders like M. Begin, Y. Shamir, A. Sharon, and B. Netanyahu.
113. In 1981, this bloc totalled 25 MKs, including 13 MKs representing religious parties (NRP, Aguda parties, Shas, and Tami); 3 MKs representing extreme right-wing parties (Tehiya); 4 MKs representing Arab and Communist lists; and 5 Likud MKs identified primarily with Mizrahi Jews' policy agenda. See ARIAN, supra note 34, at 127-33; PERETZ & DORON, supra note 75, at 111-16. In 1996, this bloc totalled 58 MKs, including 23 MKs representing religious parties (the NRP, Aguda parties and Shas); 10 MKs representing extreme right-wing parties (Tzomet and Moledet); 9 MKs representing Arab and communist lists; 7 MKs representing immigrants lists (Israel Ba'Alia); and 9 Likud MKs identified primarily with Mizrahi Jews' policy agenda (a category that includes Likud Knesset members identified with the policy preferences of Mizrahi Jews in development towns and poor neighborhoods). This section comprises, inter alia, the Levi-Magen faction which was established in the mid-1980s and eventually left the Likud in 1995 to form Gesher (Bridge). Gesher formed a united list with the Likud for the 1996 elections and got seven seats as part of the Likud list. In 1997, however, Gesher left the coalition, accusing Netanyahu's government of jg-noring the policy preferences of blue-collar Mizrahi voters. Note also that even if we classify Tzomet (a small party established in 1984 that represents extreme right-wing views regarding the peace process, combined with a secularist agenda) as belonging to the bloc representing established interests and constituencies, the decline in the relative power of the these interests is still significant (from 95 MKs in 1981 to 68 MKs in 1996). See ARIAN, supra note 34, at 118-127.
114. Note that while most upper-middle-class Mizrahi Jews have been voting Likud for the past 25 years, poor Mizrahi Jews have increasingly been shifting their vote to Gesher and Shas. See Peled, supra note 70, at 703.
115. See generally ARIAN, supra note 34, at 344-50 (noting that although the national government dominates the Israeli political sphere, local government is also influential, and that shifts in local power are often indicative of broader political trends).
116. For detailed accounts of these issues, see ETHNIC FRONTIERS AND PERIPHERIES: LANDSCAPES OF DEVELOPMENT AND INEQUALITY IN ISRAEL (Oren Yiftachel & Avinoam Meir eds., 1998).
117. See Ruth Gavison, The Controversy over Israel's Bill of Rights, 15 ISRAELI YEARBOOK ON HUMAN RIGHTS 113, 113-17 (1985) (setting out a brief history of Israel and its legal system); Giora Goldberg, Religious Zionism and the Framing of a Constitution for Israel, 3 ISR. STUD. 211, 213-217 (1998) (analyzing political parties' attitudes towards an Israeli constitution before, and in the year after, Israeli statehood).
118. See Ruth Gavison, The Controversy over Israel's Bill of Rights, 15 ISRAELI YEARBOOK ON HUMAN RIGHTS 113, 113-17 (1985) (setting out a brief history of Israel and its legal system); Giora Goldberg, Religious Zionism and the Framing of a Constitution for Israel, 3 ISR. STUD. 211, 213-217 (1998) (analyzing political parties' attitudes towards an Israeli constitution before, and in the year after, Israeli statehood).
119. See Gavison, supra note 80, at 119 (explaining that some of the Basic Laws are specifi-cally entrenched).
120. See Baruch Susser, A Proposed Constitution for Israel, in CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES 179, 191-92 (Daniel J. Elazar ed., 1990) (describing the Basic Laws); CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES app. at 219-216 (Daniel J. Elazar ed., 1990) (reproducing the text of Basic Laws then enacted).
121. See Baruch Susser, A Proposed Constitution for Israel, in CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES 179, 191-92 (Daniel J. Elazar ed., 1990) (describing the Basic Laws); CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES app. at 219-216 (Daniel J. Elazar ed., 1990) (reproducing the text of Basic Laws then enacted).
122. In the years before 1992, the Knesset passed nine Basic Laws, primarily covering the powers invested in the various branches of government. See CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES, supra note 82, app. at 219-216 (reproducing the text of Basic Laws then enacted). None of these laws, however, provided any sort of constitutional protection for human rights or civil liberties. See Susser, supra note 82, at 192.
123. See Gavison, supra note 80, at 116.
124. See Goldberg, supra note 80, at 216.
125. See, e.g., Goldberg, supra note 80, at 215 ("An additional argument against a constitution was that it could be a trigger for a Kulterkampf between secular and religious circles...."). For discussions of the historical and sociopolitical roots of the continuous failure to constitutionally entrench basic rights and liberties in Israel 1948-1992, see generally id. (examining the role of religious political parties in attempts to create an Israeli constitution); and Gavison, supra note 80 (assessing the possibility and desirability of the creation of an Israeli Bill of Rights).
126. See Gavison, supra note 80, at 147 (" [I]t seems a powerful argument against a constitution was the usual reluctance by the majority to impose limits on itself.").
127. See Goldberg, supra note 80, at 216-17.
128. The first nine Basic Laws are: The Knesset (1958, amended 1985); Israel Lands (1960); The President of the State (1964); The Government (1968; replaced by Basic Law: The Government in 1992); The State Economy (1975); The Army (1976); Jerusalem, Capital of Israel (1980); Judicature (1984); and The State Comptroller (1988). See CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES, supra note 82, app. at 219-261. In general, these Basic Laws do not enjoy a normative preference over other legislation. See Susser, supra note 82, at 192. Yet some Basic Laws include "entrenched clauses." See Gavison, supra note 80, at 119.
129. See, e.g., Philippa Strum, The Road Not Taken: Constitutional Non-Decision Making in 1948-1950 and Its Impact on Civil Liberties in the Israeli Political Culture, in ISRAEL: THE FIRST DECADE OF INDEPENDENCE (S. Ilan Troen & Noah Lucas eds., 1995) 83, 89-90.
130. See, e.g., MARTIN EDELMAN, COURTS, POLITICS, AND CULTURE IN ISRAEL 8 (1994) (positing the division between religious and secular political parties about the role of Jewish Law in the new state as one of the obstacles to a written constitution).
131. Michael Mandel, Democracy and the New Constitutionalism in Israel 33 ISR. L. REV. 259, 260 (2000) (arguing that proponents of judicial review "changed everything... so that everything ... would remain the same").
132. See David Kretzmer, The New Basic Laws on Human Rights: A Revolution in Israeli Constitutional Law?, 26 ISR. L. REV. 238, 243 (1992) (setting out tensions that have arisen between the tenets of Israel as a democratic state and Israel as a Jewish state).
133. For a detailed discussion of Ben-Gurion's attitude toward constitutionalization of rights in Israel, see Nathan Yanai, Politics and Constitution-Making in Israel: Ben-Gurion's Position in the Constitutional Debate Following the Foundation of the State, in CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES, supra note 82, at 101; Schlomo Aronson, David Ben-Gurion and the British Constitutional Model, 3 ISR. STUD. 193 (1998); and Ilan Pelee, Israel's Constitutional Order and the Kulturkampf: The Role of Ben-Gurion, 3 ISR. STUD. 230 (1998).
134. For a detailed discussion of Ben-Gurion's attitude toward constitutionalization of rights in Israel, see Nathan Yanai, Politics and Constitution-Making in Israel: Ben-Gurion's Position in the Constitutional Debate Following the Foundation of the State, in CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES, supra note 82, at 101; Schlomo Aronson, David Ben-Gurion and the British Constitutional Model, 3 ISR. STUD. 193 (1998); and Ilan Pelee, Israel's Constitutional Order and the Kulturkampf: The Role of Ben-Gurion, 3 ISR. STUD. 230 (1998).
135. For a detailed discussion of Ben-Gurion's attitude toward constitutionalization of rights in Israel, see Nathan Yanai, Politics and Constitution-Making in Israel: Ben-Gurion's Position in the Constitutional Debate Following the Foundation of the State, in CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES, supra note 82, at 101; Schlomo Aronson, David Ben-Gurion and the British Constitutional Model, 3 ISR. STUD. 193 (1998); and Ilan Pelee, Israel's Constitutional Order and the Kulturkampf: The Role of Ben-Gurion, 3 ISR. STUD. 230 (1998).
136. Cited in Pnina Lahav, Rights and Democracy: The Court's Performance, in ISRAELI DEMOCRACY UNDER STRESS 125,131 (Ehud Sprinzak & Larry Diamond eds., 1993).
137. Cited in Pnina Lahav, Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy, 24 ISR. L. REV. 211, 226 (1990).
138. Basic Law: Human Dignity and Liberty, 1992, S.H. 60, available in site of Israel Ministry of Foreign Affairs, (visited Jan. 22, 2000).
139. Basic Law: Freedom of Occupation, 1992, S.H. 114, repealed and replaced by Basic Law: Freedom of Occupation, 1994, S.H. 90, available in site of Israel Ministry of Foreign Affairs, (visited Jan. 22, 2000).
140. Basic Law: Freedom of Occupation, 1992, S.H. 114, repealed and replaced by Basic Law: Freedom of Occupation, 1994, S.H. 90, available in site of Israel Ministry of Foreign Affairs, (visited Jan. 22, 2000).
141. Basic Law: The Government, 1992, S.H. 214, available in site of Israel Ministry of Foreign Affairs, (visited Jan. 22, 2000).
142. Basic Law: Human Dignity and Liberty, supra note 97, §8; Basic Law: Freedom of Occupation, supra note 98, § 4.
143. Basic Law: Human Dignity and Liberty, supra note 97, §8; Basic Law: Freedom of Occupation, supra note 98, § 4.
144. The dominant members of this group were law professors A. Rubinstein (Meretz) and D. Libai (Labor), Minister of Justice, D. Meridor (Likud), U. Linn (Likud), A. Poraz (Meretz), M. Shahal (Labor), and S. Aloni (Meretz). Each of these professors possesses advanced legal credentials. The dominant figures in Israel's legal academia took a strong position in favor of the enactment of the new Basic Laws, and supported the political attempt to enact major civil liberty legislation. Among the dominant academic figures who enthusiastically supported the new Basic Laws were law professors U. Reichman, B. Bracha, D. Friedman, K. Mann, A. Maoz, A. Shapira, and A. Rozen-Zvi; business professor D. Pekelman; and political science professors D. Elazar and B. Zisser. See D.K. (1991-1992)
145. See id.
146. Aharon Barak, The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law, 31 IsR. L. REV. 3, 3 (1997).
147. For a discussion of the function of the two new Basic Laws as Israel's bill of rights, see generally, Kretzmer, supra note 93 (evaluating the two Basic Laws and their contributions to human rights in Israel).
148. See id. at 240, 242 (arguing that in providing a basis for judicial review over legislation that is inconsistent with human rights, the two Basic Laws enhance the status of basic rights in Israel).
149. See, e.g., Lee Epstein & Thomas G. Walker, The Role of the Supreme Conn in American Society: Playing the Reconstruction Game, in CONTEMPLATLNG COURTS 315, 322 (Lee Epstein ed., 1995) (proposing a rational choice theory of judicial decision making); William Mishler & Reginald S. Sheehan, The Supreme Court as a Countennajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 AM. POL. Sq. REV. 87, 90-96 (1993) (examining the relationship between public opinion and Supreme Court opinions).
150. See, e.g., Lee Epstein & Thomas G. Walker, The Role of the Supreme Conn in American Society: Playing the Reconstruction Game, in CONTEMPLATLNG COURTS 315, 322 (Lee Epstein ed., 1995) (proposing a rational choice theory of judicial decision making); William Mishler & Reginald S. Sheehan, The Supreme Court as a Countennajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 AM. POL. Sq. REV. 87, 90-96 (1993) (examining the relationship between public opinion and Supreme Court opinions).
151. See Mishler & Sheehan, supra note 106, at 96 ("[T]he evidence suggests that public opinion exercises important influence on the decisions of the court... .").
152. Dahl, supra note 106, at 291.
153. Graber, supra note 37, at 36.
154. See Allen Zysbladt, The System of Government, in PUBLIC LAW IN ISRAEL 1, 14-15 (Itzhak Zamir & Allen Zysblat eds., 1996).
155. This list includes Y. Modai, M. Nisim, A. Rubinstein, D. Meridor, D. Libai, and Z. Hanegbi. These political figures, representing four different political parties, were among the main initiators and supporters of the 1992 "constitutional revolution" in Israel. See, e.g.. Allen Shapiro, A Revolution Whose Time Has Come, JERUSALEM POST, June 19, 1992, available in 1992 WL 1051120; Allen Shapiro, Politics Isn't a Dirty Word, JERUSALEM POST, Jan. 17, 1997, available in 1997 WL 79457949.
156. This list includes Y. Modai, M. Nisim, A. Rubinstein, D. Meridor, D. Libai, and Z. Hanegbi. These political figures, representing four different political parties, were among the main initiators and supporters of the 1992 "constitutional revolution" in Israel. See, e.g.. Allen Shapiro, A Revolution Whose Time Has Come, JERUSALEM POST, June 19, 1992, available in 1992 WL 1051120; Allen Shapiro, Politics Isn't a Dirty Word, JERUSALEM POST, Jan. 17, 1997, available in 1997 WL 79457949.
157. Ten were born in Poland, nine in Germany, eight in Israel, six in Russia and Lithuania, and one each in Iraq, England, and the United States. See EDELMAN, supra note 91, at 36-37.
158. Professor Yitzhak Englard was appointed in 1997. He replaced Justice Tal who was a tough objector to the constitutionalization of rights and the expansion of judicial power in Israel. Batsheva Tsur, Englard Elected to Supreme Court, JERUSALEM POST, July 14, 1997, available in 1997 WL 7957197.
159. This was done through the elevation of the "enlightened public" and the "reasonableness" concepts to the status of quasi-scientific methods for scrutinizing legislative initiatives and administrative acts. For further discussion of these developments, see Avnon, supra note 57, at 427; and Menahem Mautner, The Reasonableness of Politics, in 5 TEORIA VEBIKORET [Theory and Criticism] 25, 197 (English abstract of Hebrew text) (1994) (noting that professional reasoning, legal reasoning, and a " super legal norm" helped establish the power of the Israeli Judiciary).
160. See H.C. 3094/93, Movement for Government Quality v. Prime Minister, 47(5) Piskey Din 404 (Supreme Court Decisions 1993) [Hebrew]; H.C. 1843/93, Pinhasi v. The Knesset, 49(1) Piskey Din 661 (Supreme Court Decisions 1995) [Hebrew].
161. See H.C. 3872/93, Meatrael Ltd. v. Prime Minister and Minister of Religious Affairs, 47(5) Piskey Din 485 (Supreme Court Decisions 1993) [Hebrew]. Following this decision, Basic Law: Freedom of Occupation was amended by the Knesset in 1994. In the spirit of the famous Canadian "notwithstanding" override clause, CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedom), § 33, it allows for future modifications by ordinary laws in the instance of an absolute majority of Knesset members supporting the amendment. Basic Law: Freedom of Occupation, 1994, S.H. 90 § 8. See Bayard Reeson, THE CANADIAN CONSTITUTION IN HISTORICAL PERSPECTIVE 379-80 (1992) (stating that section 33 of the 1982 Canadian Constitution Act allows the Legislature to override the Bill of Rights). Such an amendment forbidding the im-port of non-Kosher meat was subsequently enacted. Based on the new Meat Law the government renewed its refusal to license the import of non-Kosher meat. In reaction, an importer of non-Kosher meat - the Meatrael company - appealed again to the Court in 1996, arguing for its right to engage in any legal economic initiative and for the unconstitutionality of lhe new Meat Law. As a result of immense political pressure, this time the Court ruled against the company, based on the reasonableness of the new Meat Law, given the conditions for modification mentioned in Section 8 of the amended Basic Law. H.C. 4676/94, Meatrael Ltd. v. The Knesset, 50(5) Piskey Din 15 (Supreme Court Decisions 1996) [Hebrew].
162. See H.C. 3872/93, Meatrael Ltd. v. Prime Minister and Minister of Religious Affairs, 47(5) Piskey Din 485 (Supreme Court Decisions 1993) [Hebrew]. Following this decision, Basic Law: Freedom of Occupation was amended by the Knesset in 1994. In the spirit of the famous Canadian "notwithstanding" override clause, CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedom), § 33, it allows for future modifications by ordinary laws in the instance of an absolute majority of Knesset members supporting the amendment. Basic Law: Freedom of Occupation, 1994, S.H. 90 § 8. See Bayard Reeson, THE CANADIAN CONSTITUTION IN HISTORICAL PERSPECTIVE 379-80 (1992) (stating that section 33 of the 1982 Canadian Constitution Act allows the Legislature to override the Bill of Rights). Such an amendment forbidding the im-port of non-Kosher meat was subsequently enacted. Based on the new Meat Law the government renewed its refusal to license the import of non-Kosher meat. In reaction, an importer of non-Kosher meat - the Meatrael company - appealed again to the Court in 1996, arguing for its right to engage in any legal economic initiative and for the unconstitutionality of lhe new Meat Law. As a result of immense political pressure, this time the Court ruled against the company, based on the reasonableness of the new Meat Law, given the conditions for modification mentioned in Section 8 of the amended Basic Law. H.C. 4676/94, Meatrael Ltd. v. The Knesset, 50(5) Piskey Din 15 (Supreme Court Decisions 1996) [Hebrew].
163. See H.C. 3872/93, Meatrael Ltd. v. Prime Minister and Minister of Religious Affairs, 47(5) Piskey Din 485 (Supreme Court Decisions 1993) [Hebrew]. Following this decision, Basic Law: Freedom of Occupation was amended by the Knesset in 1994. In the spirit of the famous Canadian "notwithstanding" override clause, CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedom), § 33, it allows for future modifications by ordinary laws in the instance of an absolute majority of Knesset members supporting the amendment. Basic Law: Freedom of Occupation, 1994, S.H. 90 § 8. See Bayard Reeson, THE CANADIAN CONSTITUTION IN HISTORICAL PERSPECTIVE 379-80 (1992) (stating that section 33 of the 1982 Canadian Constitution Act allows the Legislature to override the Bill of Rights). Such an amendment forbidding the im-port of non-Kosher meat was subsequently enacted. Based on the new Meat Law the government renewed its refusal to license the import of non-Kosher meat. In reaction, an importer of non-Kosher meat - the Meatrael company - appealed again to the Court in 1996, arguing for its right to engage in any legal economic initiative and for the unconstitutionality of lhe new Meat Law. As a result of immense political pressure, this time the Court ruled against the company, based on the reasonableness of the new Meat Law, given the conditions for modification mentioned in Section 8 of the amended Basic Law. H.C. 4676/94, Meatrael Ltd. v. The Knesset, 50(5) Piskey Din 15 (Supreme Court Decisions 1996) [Hebrew].
164. See H.C. 1000/92, Bavli v. The Grand Rabbinical Court, 48(2) Piskey Din 6 (Supreme Court Decisions 1992) [Hebrew].
165. See H.C. 721/94, El Al Airlines Ltd. v. Danilowitch et al., 48(5) Piskey Din 749 (Supreme Court Decisions 1994) [Hebrew].
166. See H.C. 5364/94, Veiner et. al v. Rabin et. al., 49(1) Piskey Din 758 (Supreme Court Decisions 1995) [Hebrew].
167. See H.C. 1074/93, Attorney-General v. National Labor Court, 49(2) Piskey Din 485 (Supreme Court Decisions 1995) [Hebrew].
168. See C.A. 6821/93, United Mizrahi Bank v. Migdal Cooperative Village, 49(4) Piskey Din 195 (Supreme Court Decisions 1995) [Hebrew].
169. See H.C. 1031/93, Pessaro et al. v. Ministry of Interior, 49(4) Piskey Din 661 (Supreme Court Decisions 1995) [Hebrew].
170. See H.C. 2463/96, Meretz Movement et al. v. Municipality of Jerusalem, 50(4) Piskey Din 837 (Supreme Court Decisions 1996) [Hebrew].
171. See H.C. 1554/95, G.I.L.A.T. v. Minister of Education, 50(3) Piskey Din 2 (Supreme Court Decisions 1996) [Hebrew]. These decisions are discussed in greater detail in Hirschl, supra note 58, at 445-47. Note that this short list of recent decisions does not include the Israeli Supreme Court decisions on security issues, in which the Court's adjudication has clearly been supportive of the hegemonic national meta-narratives. See id, supra note 58, at 446 n.65.
172. See H.C. 5507/95 Amir v. Haifa District Court, 50(3) Piskey Din 321 (Supreme Court Decisions 1996) [Hebrew].
173. See H.C. 1715/97, Association of Investment Management in Israel v. Minister of Finance et al., available in 97(3) TAKDIN-ELYON 721 (Sept. 25, 1997) (on file with the Stanford Journal of International Law) [Hebrew].
174. See H.C. 5016/96, Horev v. Minister of Transportation, available in 97(2) TAKDINELYON 611 (Aug. 5, 1997) (on file with the. Stanford Journal of International Law) [Hebrew].
175. See H.C. 5227/97, David v. Great Rabbinical Court, available in 98(3) TAKDIN-ELYON 443 (Sept. 15, 1998) (on file with the Stanford Journal of International Law) [Hebrew].
176. See H.C. 4247/97 Meretz Party, Jerusalem City Hall v. Minister of Religion, available in 98(4) TAKDIN-ELYON 20 (Dec. 3, 1998) (on file with the Stanford Journal of International Law) [Hebrew].
177. See H.C. 3267/97, Rubinstein and Oron v. The Minister of Defense et al., available in 98(4) TAKDIN-ELYON 112 (December 8, 1998) (on file with the Stanford Journal of International Law) [Hebrew].
178. An illustration of these calls was the vigorous critique of the Supreme Court by the Deputy Religious Affairs Minister, Aryeh Gamliel, blaming the Court for interfering in religious issues. See Amy Klein et al., Religious Pluralism Still on Hold in Halte, JERUSALEM POST, Jan. 7, 1999, available in 1999 WL 8998023.
179. For a comprehensive discussion of the Israeli Supreme Court's status as perceived by the Israeli public, see GAD BARZOAI ET AL., THE ISRAELI SUPREME COURT AND THE ISRAELI PUBLIC VII-X (1994) (stating that the Israeli Supreme Court has been supported by 75% of the public). More recently, the Knesset passed a resolution, eventually repealed, that called on the court to prevent intervening in matters concerning religious outlook. See Nina Gilbert, Knesset Shows Support for Judicial Review, JERUSALEM POST, Dec. 15, 1999, available in 1999 WL 9012383.
180. For a comprehensive discussion of the Israeli Supreme Court's status as perceived by the Israeli public, see GAD BARZOAI ET AL., THE ISRAELI SUPREME COURT AND THE ISRAELI PUBLIC VII-X (1994) (stating that the Israeli Supreme Court has been supported by 75% of the public). More recently, the Knesset passed a resolution, eventually repealed, that called on the court to prevent intervening in matters concerning religious outlook. See Nina Gilbert, Knesset Shows Support for Judicial Review, JERUSALEM POST, Dec. 15, 1999, available in 1999 WL 9012383.
181. See BARZILAI et al., supra note 132, at 69. The data relies on a scientific poll which was conducted by the authors in July 1991 among a representative sample of the adult Jewish popula-tion in Israel.
182. See id.
183. International Social Science Program, Study 2150 (Köln, Germany: Zentralarchiv fur Empiriche Sozial Forschung, May 1993) (on file with the Stanford Journal of International Law). The International Social Science Program investigated the level of citizens' trust in the rule of law and the court systems in their countries. This comparative study was based on a representative sample of the adult population in eight western countries. On a scale of 1 to 5 (1=absolute confidence in the legal system and 5=no confidence), Israelis' average faith in the legal system was ranked first (2.21). Germany was ranked third (2.65); the United States fifth (3.03); and Britain sixth (3.13).
184. Id. 29% of the respondents had ¿absolute confidence¿ in the legal system and 38.6% of the respondents had ¿confidence¿ in the legal system.
185. See YOHANAN PERES & EPHRAIM YUCHTMAN-YAAR, BETWEEN CONSENT AND DISSENT: DEMOCRACY AND PEACE IN THE ISRAELI MIND (1998).
186. The Constitution Act is the Canada Act, 1982, Schedule B (U.K.). The full text, including the Charter of Rights and Freedoms, is reproduced in PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 1335-68 (3rd ed. 1992). The partitioning process, which lasted 115 years, started with the enactment of the B.N. A. Act in 1867.
187. The Constitution Act is the Canada Act, 1982, Schedule B (U.K.). The full text, including the Charter of Rights and Freedoms, is reproduced in PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 1335-68 (3rd ed. 1992). The partitioning process, which lasted 115 years, started with the enactment of the B.N. A. Act in 1867.
188. For a general discussion of the judicialization of politics in Canada, see MICHAEL MANDEL, THE CHARTER OF RIGHTS AND THE LEGALIZATION OF POLITICS IN CANADA 1-38 (2d ed. 1994); and Christopher Manfredi, The Judicialization of Politics: Rights and Public Policy in Canada and the United States, in DEGREES OF FREEDOM: CANADA AND THE UNITED STATES IN A CHANGING WORLD 310,339 (Keith Banting et al. eds., 1997).
189. For a general discussion of the judicialization of politics in Canada, see MICHAEL MANDEL, THE CHARTER OF RIGHTS AND THE LEGALIZATION OF POLITICS IN CANADA 1-38 (2d ed. 1994); and Christopher Manfredi, The Judicialization of Politics: Rights and Public Policy in Canada and the United States, in DEGREES OF FREEDOM: CANADA AND THE UNITED STATES IN A CHANGING WORLD 310,339 (Keith Banting et al. eds., 1997).
190. See Jeff Sallot, How the Charter Changes Justice, THE GLOBE & MAIL, Apr. 17, 1992, at All.
191. See, e.g., the "implied bill of rightstable presented theory developed by Chief Justice Duff in the Alberta Press case; CAN. CONST. CHARTER (The Victoria Charter, 1971), reprinted in CANADA'S CONSTITUTION ACT 1982 & AMENDMENTS: A DOCUMENTARY HISTORY 214, 223 (Anne F. Bayefsky ed., Vol. 1 1989); HOGG, supra note 138, at 775.
192. See, e.g., the "implied bill of rightstable presented theory developed by Chief Justice Duff in the Alberta Press case; CAN. CONST. CHARTER (The Victoria Charter, 1971), reprinted in CANADA'S CONSTITUTION ACT 1982 & AMENDMENTS: A DOCUMENTARY HISTORY 214, 223 (Anne F. Bayefsky ed., Vol. 1 1989); HOGG, supra note 138, at 775.
193. For a general discussion of this process, see MANDEL,' supra note 139; KENNETH MCROBERTS, MISCONCEIVING CANADA: THE STRUGGLE FOR NATIONAL UNITY (1997); and Jeremy Webber, REIMAGINING CANADA: LANGUAGE, CULTURE, COMMUNITY, AND THE CANADIAN CONSTTTUTION (1994). The full text of the 1982 Constitution Act and the Charter appears in many books dealing with Canadian constitutional law and politics. See, e.g., HOGG, supra note 138, at 1335-75.
194. For a general discussion of this process, see MANDEL,' supra note 139; KENNETH MCROBERTS, MISCONCEIVING CANADA: THE STRUGGLE FOR NATIONAL UNITY (1997); and Jeremy Webber, REIMAGINING CANADA: LANGUAGE, CULTURE, COMMUNITY, AND THE CANADIAN CONSTTTUTION (1994). The full text of the 1982 Constitution Act and the Charter appears in many books dealing with Canadian constitutional law and politics. See, e.g., HOGG, supra note 138, at 1335-75.
195. See Peter H. Russell, The Political Purposes of the Canadian Charter of Rights and Freedoms, 61 CAN. B. REV. 30, 31-43 (1983).
196. See id.
197. See, e.g., JANET HIEBERT, LIMITING RIGHTS: THE DILEMMA OF JUDICIAL REVIEW 52 (1996) ("The Charter of Rights and Freedoms has changed the way decisions are made about the scope of citizens' rights by giving to courts much of the responsibility, formerly held by legislatures, for determining the appropriate limits on rights."); Russell, supra note 143, at 31-43.
198. See generally Alan C. Cairns, Reflections on the Political Purposes of the Charter: The First Decade, in RECONFIGURATIONS: CANADIAN CITIZENSHIP AND CONSTITUTIONAL CHANGE 194 (Douglas E. Williams ed., 1995); ALLAN HUTCHINSON, WAITLNG FOR CORAF: A CRITIQUE OF LAW AND RIGHTS (1995); MANDEL, supra note 139.
199. See generally Alan C. Cairns, Reflections on the Political Purposes of the Charter: The First Decade, in RECONFIGURATIONS: CANADIAN CITIZENSHIP AND CONSTITUTIONAL CHANGE 194 (Douglas E. Williams ed., 1995); ALLAN HUTCHINSON, WAITLNG FOR CORAF: A CRITIQUE OF LAW AND RIGHTS (1995); MANDEL, supra note 139.
200. 47 See Cairns, supra note 146, at 194.
201. See Cairns, supra note 146, at 194; see also Manfredi, supra note 139, at 339 (discussing the expansion of judicial power in Canada over the past two decades).
202. PIERRE E. TRUDEAU, FEDERALISM AND THE FRENCH CANADIANS 197 (1968).
203. CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 23 provides: (1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received instruction is the language of the English or French linguistic minority population of the province, have the right to receive primary and secondary school instruction in that language in that province. (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.
204. See MANDEL, supra note 139, at 140-45; MCROBERTS, supra note 142, at 176-88.
205. See Ford v. Attorney-General Quebec [1988] 2 S.C.R. 712, 714 (invalidating a Quebec statute requiring that all public signs be solely in French); Attorney General of Quebec v. Blaikie [1979] 2 S.C.R. 1016, 1019 (stating that the Quebec legislature could not unilaterally modify the British North America Act (BNA); Attorney General of Québec v. Québec Protestant School Board [1984] 10 D.L.R. (4th) 321, 322 (invalidating a law forcing the children of the English speaking minority in Quebec to be taught in French). The Québec Bill 101 (Charte de la Langue Française), enacted by the Parti Québécois government in 1977, is generally aimed to promote the use of French in Québec by restricting the use of English in business and schools in the province.
206. See Reference re Secession of Québec [1998] 2 S.C.R. 217.
207. See id.
208. See Joseph Fletcher & Paul Howe, Canadian Attitudes Toward the Charter and the Court: Results of a Recent IRPP Survey, in Comparative Perspective 17 (unpublished paper presented at the annual meeting of the Canadian Political Science Association, Université de Sherbrooke, June 8, 1999) (on file with the Stanford Journal of International Law).
209. See Joseph Fletcher & Paul Howe, Canadian Attitudes Toward the Charter and the Court: Results of a Recent IRPP Survey, in Comparative Perspective 17 (unpublished paper presented at the annual meeting of the Canadian Political Science Association, Université de Sherbrooke, June 8, 1999) (on file with the Stanford Journal of International Law).
210. See id.
211. See id. at 16; Peter H. Russell, Canada's Charter: A Political Report, PUB. L. 385, 398 (1988).
212. See, e.g., HOGG, supra note 138, at 205.
213. See, e.g., JOEL BAKAN, JUST WORDS: CONSTITUTIONAL RIGHTS AND SOCIAL WRONGS 103 (1997); W. A. BOGART, COURTS AND COUNTRY: THE LIMITS OF LITIGATION AND THE SOCIAL AND POLITICAL LIFE OF CANADA 111 (1994); David Beatty, The Canadian Chaner of Rights: Lessons and Laments, 60 MOD. L. REV. 481, 481-98 (1997).
214. See, e.g., JOEL BAKAN, JUST WORDS: CONSTITUTIONAL RIGHTS AND SOCIAL WRONGS 103 (1997); W. A. BOGART, COURTS AND COUNTRY: THE LIMITS OF LITIGATION AND THE SOCIAL AND POLITICAL LIFE OF CANADA 111 (1994); David Beatty, The Canadian Chaner of Rights: Lessons and Laments, 60 MOD. L. REV. 481, 481-98 (1997).
215. See, e.g., JOEL BAKAN, JUST WORDS: CONSTITUTIONAL RIGHTS AND SOCIAL WRONGS 103 (1997); W. A. BOGART, COURTS AND COUNTRY: THE LIMITS OF LITIGATION AND THE SOCIAL AND POLITICAL LIFE OF CANADA 111 (1994); David Beatty, The Canadian Chaner of Rights: Lessons and Laments, 60 MOD. L. REV. 481, 481-98 (1997).
216. See RICHARD MULGAN, POLITICS IN NEW ZEALAND 309-28 (1997) (discussing the influence of economic performance on pluralist politics); Chris Rudd, The Welfare State, in NEW ZEALAND POLITICS IN TRANSITION 256, 256-60 (Raymond Miller ed., 1997) (discussing the evolution of the welfare state); Jack H. Nagel, Social Choice in a Pluralitarian Democracy: The Politics of Market Liberalization in New Zealand, 28 BRIT. J. POL. Sci. 223, 228-41 (1998) (discussing the underlying reasons for economic liberalization under the Labour Party).
217. See RICHARD MULGAN, POLITICS IN NEW ZEALAND 309-28 (1997) (discussing the influence of economic performance on pluralist politics); Chris Rudd, The Welfare State, in NEW ZEALAND POLITICS IN TRANSITION 256, 256-60 (Raymond Miller ed., 1997) (discussing the evolution of the welfare state); Jack H. Nagel, Social Choice in a Pluralitarian Democracy: The Politics of Market Liberalization in New Zealand, 28 BRIT. J. POL. Sci. 223, 228-41 (1998) (discussing the underlying reasons for economic liberalization under the Labour Party).
218. See RICHARD MULGAN, POLITICS IN NEW ZEALAND 309-28 (1997) (discussing the influence of economic performance on pluralist politics); Chris Rudd, The Welfare State, in NEW ZEALAND POLITICS IN TRANSITION 256, 256-60 (Raymond Miller ed., 1997) (discussing the evolution of the welfare state); Jack H. Nagel, Social Choice in a Pluralitarian Democracy: The Politics of Market Liberalization in New Zealand, 28 BRIT. J. POL. Sci. 223, 228-41 (1998) (discussing the underlying reasons for economic liberalization under the Labour Party).
219. See Nagel, supra note 160, at 223-67 (discussing the radical liberalization between 1984 and 1993).
220. See id.
221. see Nagel, supra note 160, at 234 (listing data on the 1943-93 period). The data provided by Nagel was updated by the author to include the results of the 1996 elections.
222. See Maori Seats in Parliament, THE EVENING POST (Wellington), Feb. 28, 1995, available in LEXIS (News/ By Country & Region/ New Zealand).
223. See MMP is the Clear Winner, Clark on Course to Become First Woman Prime Minister, THE EVENING POST (Wellington), Oct. 14, 1996, available in LEXIS (News/By Country & Region/New Zealand).
224. See id.
225. Geoffrey Palmer, A Bill of Rights for New Zealand, in ESSAYS ON HUMAN RIGHTS 106, 106(KJ. Keith ed., 1968).
226. Id. at 107.
227. These politicians include former Prime Minister Geoffrey Palmer (formerly the Minister of Justice during the Lange government), Roger Douglas (the Minister of Finance), and David Caygill (the Associate Finance Minister who left the National Party in the 1970s with Palmer). See Nagel, supra note 160, at 235-247.
228. P.T. Rishworth, Human Rights and the Bill of Rights, N.Z. L. REV. 298, 298 (1996).
229. For detailed accounts of the history of the NZBOR Act 1990, see GEOFFREY PALMER & MATTHEW PALMER, BRIDLED POWER: NEW ZEALAND GOVERNMENT UNDER MMP 264-77 (1997) (discussing legislative and judicial history); and P.T. Rishworth, The Birth and Rebirth of the Bill of Rights, in RIGHTS AND FREEDOMS: THE NEW ZEALAND BILL OF RIGHTS ACT 1990 AND THE HUMAN RIGHTS ACT 1993 1-35 (Grant Huscroft & Paul Rishworth eds., 1995).
230. For detailed accounts of the history of the NZBOR Act 1990, see GEOFFREY PALMER & MATTHEW PALMER, BRIDLED POWER: NEW ZEALAND GOVERNMENT UNDER MMP 264-77 (1997) (discussing legislative and judicial history); and P.T. Rishworth, The Birth and Rebirth of the Bill of Rights, in RIGHTS AND FREEDOMS: THE NEW ZEALAND BILL OF RIGHTS ACT 1990 AND THE HUMAN RIGHTS ACT 1993 1-35 (Grant Huscroft & Paul Rishworth eds., 1995).
231. This party is led by Bob Jones (accurately described by Nagel as a Ross Perot-like self-made millionaire). See Nagel, supra note 160, at 239.
232. In a recent verdict, for example, the court observed that lack of entrenchment and constitutional status of the NZBOR "makes no difference to the strength of the law where it is to be applied." Simpson v. Attorney-General [1994] 3 N.Z.L.R. 667, 706. This and other recent decisions of the Court of Appeal indicate that the Bill of Rights, though unentrenched, will gradually gain sufficient legal and political authority to allow the courts to practically exercise most of the powers of scrutiny and control they would have had under a system of full-scale judicial review. See MULGAN, supra note 160, at 179-80.
233. See generally Ivor Richardson, Rights Jurisprudence - Justice for All?, in ESSAYS ON THE CONSTITUTION 61 (Philip A. Joseph ed., 1995) (discussing the jurisprudence following the enactment of the NZBOR).
234. See generally, B. Harris, The Law-Making of the Judiciary, in ESSAYS ON THE CONSTITUTION, supra note 174 (discussing the appropriate and inappropriate use of judicial power in New Zealand).
235. For detailed accounts of the rise of judicial review in New Zealand in the last decade, see Rodney Harrison, Judicial Review: Recent Trends, N.Z.L.J. 264 (1999) (reviewing judicial review of administrative actions); and Philip A. Joseph, Constitutional Review Now, N.Z. L. REV. 85 (1998) (identifying grounds for judicial review).
236. For detailed accounts of the rise of judicial review in New Zealand in the last decade, see Rodney Harrison, Judicial Review: Recent Trends, N.Z.L.J.
237. The Human Rights Act of 1993 prohibits discrimination on the basis of sex, marital status, religious belief, ethical belief, color, race, ethnic or national origin, disability, age, political opinion, employment status, or family status. The Privacy Act of 1993 aims to protect individuals by regulating the disclosure of information. For detailed discussions of the new legal nexus protecting rights and liberties in New Zealand, see Rishworth, supra note 171.
238. see Philip A. Joseph, The New Zealand Bill of Rights, 7 PUB. L. REV. 162, 162-64 (1996).
239. See Rishworth, supra note 171, at 18. The Treaty of Waitangi (1840, amended 1975) has been an important symbolic source of New Zealand's constitutional law. Constitutional government is commonly said to have begun with the signing of the Treaty of Waitangi in 1840. In that year, New Zealand became a British colony and the Parliament in Westminster could make laws that applied in New Zealand. Thus, the Treaty of Waitangi is often claimed to be a "founding document," a "fundamental charter" which brought about the foundation of the state. The Maori perception, in particular, is that the treaty is a "basic document" since it recognizes the rights of the indigenous people of New Zealand. Thus, its alleged breach by the colonizers is the legal basis for Maori land claims. For many Maori, the entrenchment of the Treaty of Waitangi would have demeaned the document and exposed it to change through the bill's amending procedure (a 75% majority vote of the members of the House of Representatives or a referendum). See Joseph, supra note 176, at 93-108.
240. The literature dealing with the constitutional aspects of the abolition of apartheid in South Africa is vast. For a broad survey of the road to general suffrage in South Africa, see generally J.D. Omer-Cooper, South Africa, in AFRICA SOUTH OF THE SAHARA 860, 860-70 (25th ed. 1996) (discussing recent history). For general accounts of the struggle over the new constitution in South Africa, see SIRI GLOPPEN, SOUTH AFRICA: THE BATTLE OVER THE CONSTITUTION (1997) (discussing the South African constitution as a compromise between political expediency and normative struc-ture).
241. The literature dealing with the constitutional aspects of the abolition of apartheid in South Africa is vast. For a broad survey of the road to general suffrage in South Africa, see generally J.D. Omer-Cooper, South Africa, in AFRICA SOUTH OF THE SAHARA 860, 860-70 (25th ed. 1996) (discussing recent history). For general accounts of the struggle over the new constitution in South Africa, see SIRI GLOPPEN, SOUTH AFRICA: THE BATTLE OVER THE CONSTITUTION (1997) (discussing the South African constitution as a compromise between political expediency and normative struc-ture).
242. see generally T. DUNBAR MOODIE, THE RISE OF AFRIKANERDOM: POWER, APARTOEID, AND THE AFRIKANER CIVIL RELIGION (1975) (giving a historical analysis of Afrikanerdom).
243. Alfred Cockrell, The South African Bill of Rights and the 'Duck/Rabbit, '60 MOD. L. REV. 513, 517 (1997).
244. See Richard Goldstone, The South African Bill of Rights, 32 TEX. INT'L L.J. 451, 455.
245. See Johan van der Walt, The Human Rights Debate in South Africa: A Historical and Historicist Perspective, in HUMAN RIGHTS AND PROPERTY: A BILL OF RIGHTS IN A CONSTITUTION FOR A NEW SOUTH AFRICA 14, 29-31 (Recht en Kritiek No. 393, Roel de Lange et al. eds., 1993).
246. Cockrell, supra note 182, at 517-20.
247. See SOUTH AFRICAN LAW COMMISSION, WORKING PAPER 25, PROJECT 58: GROUP AND HUMAN RIGHTS 290-321, 450-51, 471-80 (1989).
248. Id. at 296; see also Michael Mandel, A Brief History of the New Constitutionalism, or "How We Changed Everything so That Everything Would Remain the Same," 32 ISR. L. REV. 250, 278 (1998).
249. The South African Bill of Rights provisions are amendable only by two-thirds vote of the National Assembly, and in some cases amendment requires a three-quarters vote as well as the support of six provinces. See S. AFR. CONST. § 74.
250. Mandel, supra note 187, at 278.
251. See id.; see also Linda Van Buren, South Africa: Economy, in AFRICA SOUTH OF THE SAHARA 870, 871 (25th ed. 1994).
252. See Mandel, supra note 187, at 278.
253. Id.
254. The Freedom Charter was adopted by the Congress of the People in 1955. An excerpt from its preamble reads: THE PEOPLE SHALL SHARE IN THE COUNTRY'S WEALTH! The national wealth of our country, the heritage of all South Africans, shall be restored to the people; The mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole; All other industries and trade shall be controlled to assist the well-being of the people.... The Land shall be Shared among those who Work it! Restriction of land ownership on racial basis shall be ended, and all the land re-divided amongst those who work it, to banish famine and land hunger. Cited in NELSON MANDELA, LONG WALK TO FREEDOM: THE AUTOBIOGRAPHY OF NELSON MANDELA 152-53 (1994).
255. See Ian Shapiro, On the Normalization of South African Politics, DISSENT, Winter 1999, at 29. Shapiro argues: Some political commentators excoriate the ANC for having sold out on the revolution in South Africa. To me these critics seem to miss that fact that there never was a revolution. There was instead a negotiated settlement, designed in no small part to head off the possibility of revolution. The political pact that led to the transition seems underwritten by an implicit social contract between the new political elite and those with economic power: the still overwhelmingly white landed and business elites. The government avoids putting large-scale expropriation or increases in taxation on the table, it does not interfere with the self-protection of gated communities, and it largely toes the line so far as neo-liberal economic reform is concerned. Id. at 33.
256. See 2 MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 637-40 (1968).
257. North & Weingast, supra note 52.
258. See Statute of the Supreme Constiutional Court, No. 48 (1979) (Egypt), in HUMAN RIGHTS AND DEMOCRACY: THE ROLE OF THE SUPREME CONSTITUTIONAL COURT OF EGYPT 321 (Kevin Boyle & Adel Omar Sherif eds., 1996) [hereinafter HUMAN RIGHTS AND DEMOCRACY].
259. See generally Awad Mohammed El-Morr, et al., The Supreme Constiutional Court and Its Role in the Egyptian Judicial System, in HUMAN RIGHTS AND DEMOCRACY, supra note 197 at 37 (giving a detailed account of the status of judicial review in Egypt under the 1979 constitutional amendment).
260. See JOHN L. ESPOSITO & JOHN O. VOLL, ISLAM AND DEMOCRACY 173-91 (1996); JOHN L. ESPOSITO, ISLAM AND POLITICS 235-60 (4th ed. 1998).
261. See JOHN L. ESPOSITO & JOHN O. VOLL, ISLAM AND DEMOCRACY 173-91 (1996); JOHN L. ESPOSITO, ISLAM AND POLITICS 235-60 (4th ed. 1998).
262. See FREEDOM OF RELIGION AND BELIEF: A WORLD REPORT 32 (Kevin Boyle & Juliet Sheen eds., 1997) (discussing the use of Al-Azhar to censor books and art). See generally Steven Barraclqugh, Al-Azhar: Between the Government and the Islamists, 52 MIDDLE E. J. 236 (1998) (discussing the development of Al-Azhar as a third force in Egyptian politics).
263. See FREEDOM OF RELIGION AND BELIEF: A WORLD REPORT 32 (Kevin Boyle & Juliet Sheen eds., 1997) (discussing the use of Al-Azhar to censor books and art). See generally Steven Barraclqugh, Al-Azhar: Between the Government and the Islamists, 52 MIDDLE E. J. 236 (1998) (discussing the development of Al-Azhar as a third force in Egyptian politics).
264. The original text of Article 2 of the 1971 Egyptian Constitution reads "Islam is the religion of the State, Arabic is its official language, and the principles of Islamic Sharia are a principal source of legislation." On May 22, 1980, the text of Article 2 was changed to "Islam is the religion of the State, Arabic is its official language, and the principles of Islamic Shari'a are the principal source of legislation" (emphasis added). The full text of the 1980 Constitution is available at (visited Feb. 8, 2000).
265. See ESPOSITO, supra note 199, at 244; FREEDOM OF RELIGION AND BELIEF: A WORLD REPORT, supra note 200, at 34.
266. See Hatem Aly Labib Gabir, The Interpretation of Article Two of the Egyptian Constitution by the Supreme Constitutional Court, in HUMAN RIGHTS AND DEMOCRACY supra note 197, at 217, 227.
267. See Wassel v. Minister of Education, No. 8 of the 17th judicial year (Egypt May 18, 1996), translated in 3 Y.B. OF ISLAMIC AND MIDDLE E.L. 177, 178-80. See also FREEDOM OF RELIGION AND BELIEF: A WORLD REPORT, supra note 200, at 33, for a description of the Egyptian government's ban on certain religious dress by schoolgirls.
268. See Wassel v. Minister of Education, No. 8 of the 17th judicial year (Egypt May 18, 1996), translated in 3 Y.B. OF ISLAMIC AND MIDDLE E.L. 177, 178-80. See also FREEDOM OF RELIGION AND BELIEF: A WORLD REPORT, supra note 200, at 33, for a description of the Egyptian government's ban on certain religious dress by schoolgirls.
269. see Moustafa v. President of the Republic, No. 18 of the 14th judicial year (Egypt May 3, 1997), translated in 4 Y.B. OF ISLAMIC AND MIDDLE E.L. 249, at 250-52.
270. See Ahmed Fathay Sorour, Preface, in HUMAN RIGHTS AND DEMOCRACY, supra note 198, at iii.
271. The Court's inclination to support the interests of Egypt's high-income, secular elites is also reflected in its recent constitutional jurisprudence pertaining to economic deregulation and privatization. In a recent landmark judgment, for example, the Court upheld the constitutionality of a new law that provides for the possibility of privatizing public business sector companies, despite the explicit wording of Article 30 of the Constitution which provides that "public ownership is the ownership of the people and it is confirmed by the continuous consolidation of the public sector... ." Badr v. President of the Republic No. 7 of the 16th judicial year (Egypt Feb. 1, 1997) reprinted in EGYPT (Kosheri, Rashed & Riad, tr.) 4 Y.B. OF ISLAMIC AND MIDDLE E. L. 249, 249-50. The Court based its ruling on a flexible interpretation of Article 30, stating that constitutional texts "must not be interpreted as being the ultimate and eternal solutions of economic situations that have been overtaken by the passage of time, and... those texts have to be interpreted in the light of higher values that aim at freeing the nation and the citizens politically and economically."