The political origins of judicial empowerment through constitutionalization: Lessons from Israel's constitutional revolution

Comparative Politics

Volumn 33, Issue 3, 2001, Pages 315-335

  Hirschl, Ran ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0039011701     PISSN: 00104159     EISSN: None     Source Type: Journal    
DOI: 10.2307/422406     Document Type: Review

References (64)

1. The most prominent proponent of this line of thought is Ronald Dworkin. See, for example, Ronald Dworkin, A Bill of Rights to Britain (London: Chatto and Windus, 1990).
2. Kent Weaver and Brett Rockman, eds., Do Institutions Matter? Government Capabilities in the United States and Abroad (Washington, D.C.: The Brookings Institution, 1993), pp. 26, 31, 105, 266.
3. In 1996, for example, the Israeli supreme court heard a total of 10,529 cases (an increase of more than 80 percent from the total number of cases brought before the court in 1990). Between 1994 and 1999 alone more than 150 petitions were filed in the Israeli supreme court by MKs against decisions of the Knesset itself, the government, and other state authorities.
4. In December 1999 Israel's population was estimated at 6.2 million, of which approximately 5 million (80 percent) were Jews and 1.2 million (20 percent) were non-Jews (mainly Arab-Israelis). Of the Jewish population, approximately 55 percent were Ashkenzi Jews (Jews of mainly European descent), and approximately 45 percent were Mizrahi or Sepharadi Jews (Jews of mainly North African or Asian descent).
5. Gad Barzilai, "The Supreme Court in Israeli Legal Culture," International Social Science Journal, 152 (1997), 193-208; Martin Edelman, "The Judicialization of Politics in Israel," International Political Science Review, 15 (1994), 177-86.
6. Gad Barzilai, "The Supreme Court in Israeli Legal Culture," International Social Science Journal, 152 (1997), 193-208; Martin Edelman, "The Judicialization of Politics in Israel," International Political Science Review, 15 (1994), 177-86.
7. Barry Weingast, "Constitutions as Governance Structures: The Political Foundations of Secure Markets," Journal of Institutional and Theoretical Economics, 149 (1993), 286-311; Oliver Williamson, "Credible Commitments - Using Hostages to Support Exchange," American Economic Review, 73 (1983), 519-40.
8. Barry Weingast, "Constitutions as Governance Structures: The Political Foundations of Secure Markets," Journal of Institutional and Theoretical Economics, 149 (1993), 286-311; Oliver Williamson, "Credible Commitments - Using Hostages to Support Exchange," American Economic Review, 73 (1983), 519-40.
9. Matthew McCubbins and Thomas Schwartz, "Congressional Oversight Overlooked: Police Patrols versus Fire Alarms," American Journal of Political Science, 28 (1984), 165-79; Matthew McCubbins et al., "Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies," Virginia Law Review, 75 (1989), 431-82.
10. Matthew McCubbins and Thomas Schwartz, "Congressional Oversight Overlooked: Police Patrols versus Fire Alarms," American Journal of Political Science, 28 (1984), 165-79; Matthew McCubbins et al., "Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies," Virginia Law Review, 75 (1989), 431-82.
11. Mark Ramseyer, "The Puzzling (In)Dependence of Courts: A Comparative Approach," Journal of Legal Studies, 23 (1994), 721-47; also, William Landes and Richard Posner, "The Independent Judiciary in an Interest-Group Perspective," Journal of Law and Economics, 18 (1975), 875-901.
12. Mark Ramseyer, "The Puzzling (In)Dependence of Courts: A Comparative Approach," Journal of Legal Studies, 23 (1994), 721-47; also, William Landes and Richard Posner, "The Independent Judiciary in an Interest-Group Perspective," Journal of Law and Economics, 18 (1975), 875-901.
13. Terry Moe, "Political Institutions: The Neglected Side of the Story," Journal of Law, Economics and Organization, 6 (1990), 213-53; Jack Knight, Institutions and Social Conflict (New York: Cambridge University Press, 1992).
14. Terry Moe, "Political Institutions: The Neglected Side of the Story," Journal of Law, Economics and Organization, 6 (1990), 213-53; Jack Knight, Institutions and Social Conflict (New York: Cambridge University Press, 1992).
15. See, for example, Lee Epstein and Jack Knight, The Choices Justices Make (Washington, D.C.: CQ Press, 1998).
16. Also among the forces that publicly supported Israel's constitutional revolution were the country's major economic organizations, such as the chambers of commerce and manufacturing, and leading economic figures.
17. See, for example, Aharon Barak, "A Constitutional Revolution: Israel's Basic Laws," Constitutional Forum, 4 (1993), 83-84.
18. The National Insurance Institute, Annual Report on Poverty (1998).
19. In 1981 this bloc comprised forty-seven MKs representing the Labor Party, forty-three Likud MKs representing a secular bourgeois policy agenda, three MKs representing CRM/Shinui/Meretz, and two MKs representing the Ometz faction. In 1996 it comprised thirty-four MKs representing the Labor Party, fifteen Likud MKs representing a secular bourgeois policy agenda, nine MKs representing CRM/Shinui/Meretz, and four MKs representing The Third Way. The Labor Party's list for the 1996 general elections included MKs representing policy preferences of Mizrahi Jews in development towns and poor neighborhoods (MKs Ben-Menahem and Peretz), as well as an MK representing the small community of Ethiopian Jews (MK Masalla). But since the Labor Party has long been identified with the policy preferences of the secular Ashkenazi bourgeoisie, I count all Labor's MKs in this category. Seeing these MKs as representing the interests of peripheral groups in the Israeli society would further strengthen my point. Also, the Likud (Union) was established as an alliance between Herut (Freedom), a nationalist party, and the Liberal Party and has had an ideologically diverse group of leaders. Therefore, Likud has always been a very loose alliance between politicians officially committed to different, sometimes opposing policy preferences. The section of Likud that represents, by and large, the policy agenda of the secular right-wing bourgeoisie includes leading figures such as MKs Meridor and Milo (now with the Center Party), Olmert, Livnat, Ha'Negbi, Rivlin, Arens, Linn, Aridor, Erlich, Modai, Nissim, Pat, Shoval, Sharir, Grupper, and Horowitz who represent explicitly secular, neoliberal policy preferences. Most of Likud's dominant figures since the party's establishment have been secular Ashkenazi leaders, including Begin, Shamir, Sharon, and Netanyahu.
20. In 1981 this bloc comprised thirteen MKs representing religious parties (for example, the NRP, Aguda parties, Shas, and Tami); three MKs representing extreme right-wing parties (for example, Tehiya); four MKs representing Arab and Communist lists; and five Likud MKs identified primarily with the Mizrahi Jews' policy agenda. In 1996 this bloc comprised twenty-three MKs representing religious parties (the NRP, Aguda parties and Shas); ten MKs representing extreme right-wing parties (Tzomet and Moledet); nine MKs representing Arab and Communist lists; seven MKs representing immigrant lists (Israel Ba'Alia); and nine Likud MKs identified primarily with the Mizrahi Jews' policy agenda (this category includes Likud Knesset members explicitly identified with the policy preferences of residents of development towns and poor neighborhoods such as the Levi-Magen faction, which was established in the mid 1980s and left the Likud in 1995 to form Gesher). Even if Tzomet (which combines extreme right-wing views regarding the peace process with a secularist agenda) is classified as belonging to the bloc representing established interests and constituencies, the decline in the relative power of these interests is still significant, from ninety-five MKs in 1981 to sixty-eight MKs in 1996.
21. While most upper middle class Mizrahi Jews have been voting Likud for the past twenty-five years, poor Mizrahi Jews have increasingly been shifting their vote to Gesher and Shas.
22. Knesset Records (1950), 1743.
23. Pnina Lahav, "Rights and Democracy: The Court's Performance," in Ehud Sprinzak and Larry Diamond, eds., Israeli Democracy under Stress (Boulder: Lynne Rienner, 1993), p. 131.
24. Pnina Lahav, "Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy," Israel Law Review, 24 (1990), 226.
25. Basic Law: Freedom of Occupation was officially enacted on March 3, 1992, and amended on March 9, 1994. Basic Law: Human Dignity and Liberty was officially enacted by the Knesset on March 17, 1992.
26. Basic Law: The Government (1992).
27. Basic Law: Human Dignity and Liberty, § 8; Basic Law: Freedom of Occupation, § 4.
28. See Knesset Records (1991-1992).
29. 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," Israel Law Review, 31 (1997), 3.
30. See, for example, Aharon Barak, "The Israeli Constitution - Past, Present and Future," Ha'Praklit, 43 (1996), 5-24 [in Hebrew]; David Kretzmer, "The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?," Israel Law Review, 26 (1992), 238-46. See also C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195, where the court for the first time struck down primary legislation enacted by the Knesset.
31. See, for example, Aharon Barak, "The Israeli Constitution - Past, Present and Future," Ha'Praklit, 43 (1996), 5-24 [in Hebrew]; David Kretzmer, "The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?," Israel Law Review, 26 (1992), 238-46. See also C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195, where the court for the first time struck down primary legislation enacted by the Knesset.
32. See, for example, Aharon Barak, "The Israeli Constitution - Past, Present and Future," Ha'Praklit, 43 (1996), 5-24 [in Hebrew]; David Kretzmer, "The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?," Israel Law Review, 26 (1992), 238-46. See also C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195, where the court for the first time struck down primary legislation enacted by the Knesset.
33. Menahem Hofnung, Democracy, Law and National Security in Israel (Aldershot: Dartmouth, 1996); Ilan Peleg, Human Rights in the West Bank and Gaza: Legacy and Politics (Syracuse: Syracuse University Press, 1995); Ronen Shamir, "Suspended in Space: Bedouins under the Law of Israel," Law and Society Review, 30 (1996), 231-57; David Kretzmer, The Legal Status of the Arabs in Israel (Boulder: Westview, 1990).
34. Menahem Hofnung, Democracy, Law and National Security in Israel (Aldershot: Dartmouth, 1996); Ilan Peleg, Human Rights in the West Bank and Gaza: Legacy and Politics (Syracuse: Syracuse University Press, 1995); Ronen Shamir, "Suspended in Space: Bedouins under the Law of Israel," Law and Society Review, 30 (1996), 231-57; David Kretzmer, The Legal Status of the Arabs in Israel (Boulder: Westview, 1990).
35. Menahem Hofnung, Democracy, Law and National Security in Israel (Aldershot: Dartmouth, 1996); Ilan Peleg, Human Rights in the West Bank and Gaza: Legacy and Politics (Syracuse: Syracuse University Press, 1995); Ronen Shamir, "Suspended in Space: Bedouins under the Law of Israel," Law and Society Review, 30 (1996), 231-57; David Kretzmer, The Legal Status of the Arabs in Israel (Boulder: Westview, 1990).
36. Menahem Hofnung, Democracy, Law and National Security in Israel (Aldershot: Dartmouth, 1996); Ilan Peleg, Human Rights in the West Bank and Gaza: Legacy and Politics (Syracuse: Syracuse University Press, 1995); Ronen Shamir, "Suspended in Space: Bedouins under the Law of Israel," Law and Society Review, 30 (1996), 231-57; David Kretzmer, The Legal Status of the Arabs in Israel (Boulder: Westview, 1990).
37. Ran Hirschl, "Negative Rights vs. Positive Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order," Human Rights Quarterly (forth-coming); Ran Hirschl, "The Great Economic-Juridical Transformation: The Legal Arena and the Transformation of Israel's Economic Order," in Greshon Shafir and Yoav Peled, eds., The New Israel (Boulder: Westview Press, 1999); Aeyal Gross, "The Politics of Rights in Israeli Constitutional Law," Israel Studies, 3 (1998), 80-119.
38. Ran Hirschl, "Negative Rights vs. Positive Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order," Human Rights Quarterly (forth-coming); Ran Hirschl, "The Great Economic-Juridical Transformation: The Legal Arena and the Transformation of Israel's Economic Order," in Greshon Shafir and Yoav Peled, eds., The New Israel (Boulder: Westview Press, 1999); Aeyal Gross, "The Politics of Rights in Israeli Constitutional Law," Israel Studies, 3 (1998), 80-119.
39. Ran Hirschl, "Negative Rights vs. Positive Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order," Human Rights Quarterly (forth-coming); Ran Hirschl, "The Great Economic-Juridical Transformation: The Legal Arena and the Transformation of Israel's Economic Order," in Greshon Shafir and Yoav Peled, eds., The New Israel (Boulder: Westview Press, 1999); Aeyal Gross, "The Politics of Rights in Israeli Constitutional Law," Israel Studies, 3 (1998), 80-119.
40. Dan Avnon, "The Enlightened Public: Jewish and Democratic or Liberal and Democratic," Mishpat U'Mimshal, 3 (1996), 113-49 [in Hebrew]; Ronen Shamir, "The Politics of Reasonableness: Reasonableness and Judicial Power at Israel's Supreme Court," Teoria U'Vikoret, 5 (1994), 7-24 [in Hebrew].
41. Dan Avnon, "The Enlightened Public: Jewish and Democratic or Liberal and Democratic," Mishpat U'Mimshal, 3 (1996), 113-49 [in Hebrew]; Ronen Shamir, "The Politics of Reasonableness: Reasonableness and Judicial Power at Israel's Supreme Court," Teoria U'Vikoret, 5 (1994), 7-24 [in Hebrew].
42. Ministers of Justice Modai, Nisim, Rubinstein, Meridor, Libai, Ha'Negbi, and Beilin.
43. 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 Martin Edelman, "The Judicial Elite of Israel," International Political Science Review, 13 (1992), 235-48.
44. Professor Yitzhak Englard was appointed in 1997 to replace Justice Tal, who strongly objected to the expansion of judicial power in Israel.
45. H.C. 1074/93 Attorney-General v. National Labor Court, 49(2) P.D. 485.
46. C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195.
47. H.C. 1554/95 G.I.L.A.T. v. Minister of Education, 50(3) P.D. 2.
48. H.C. 1715/97 Association of Investment Management in Israel v. Minister of Finance (publication forthcoming).
49. C.A. 294/91 Hevra Kadisha v. Kastenbaum 46(2) P.D. 464.
50. H.C. 3094/93 Movement for Government Quality v. Prime Minister, 47(5) P.D. 404; H.C. 1843/93 Pinhasi v. The Knesset, 49(1) P.D. 661.
51. H.C. 3872/93 Meatrael Ltd. v. Prime Minister and Minister of Religious Affairs, 47(5) P.D. 485. Following immense political pressure on the court not to allow the further erosion of the status of Jewish values as Israel's most fundamental norms, as well as the amendment by the Knesset of Basic Law: Freedom of Occupation in the spirit of the famous Canadian "notwithstanding" override clause (§ 33 of the Canadian charter), the court reversed its decision. See H.C. 4676/94 Meatrael Ltd. v. The Knesset, 50(5) P.D. 15.
52. H.C. 1000/92 Bavli v. Grand Rabbinical Court, 48(2) P.D. 6.
53. H.C. 721/94 El Al Airlines Ltd. v. Danilowitch 48(5) P.D. 749.
54. H.C. 5364/94 Velner v. Rabin, 49(1) P.D. 758.
55. H.C. 1031/93 Pessaro v. Ministry of Interior, 49(4) P.D. 661.
56. H.C. 2463/96 Meretz Movement v. Municipality of Jerusalem, 50(4) P.D. 837.
57. The most recent of these decisions was given on December 3, 1998 (publication forthcoming). In November 1999 the court stated that, if sides failed to reach a settlement on conversion by April 2000, an expanded panel of eleven judges would address it.
58. H.C. 3267/97 Rubinstein v. Minister of Defense (publication forthcoming).
59. See Gad Barzilai et al., The Israeli Supreme Court and the Israeli Public (Tel-Aviv: Papyrus, 1994).
60. Ibid., pp. 67-73, 207-24. The data rely on a scientific poll that was conducted by the authors in July 1991 among a representative sample of the adult Jewish population in Israel.
61. International Social Science Program, Study 2150 (Cologne: Zentralarchiv für Empirische Sozialforschung, May 1993).
62. Ibid.
63. Yohanan Peres and Ephraim Yuchtman-Yaar, Between Consent and Dissent: Democracy and Peace in the Israeli Mind (Jerusalem: Israeli Democracy Institute, 1998).
64. H.C. 5016/96 Horev v. Minister of Transportation (publication forthcoming).