The judicialization of the public sphere in israel

Israel Law Review

Volumn 37, Issue 2-3, 2004, Pages 500-542

  Galnoor, Itzhak ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 85014321963     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S002122370001253X     Document Type: Article

References (131)

1. Based on the ruling handed down by Judge Gideon Ginat in the Haifa District Court, Case no. 6655/02 Visuli v. the Hebrew Reali High School, Haifa (10.5.02), application by the pupils' parents on 9 May 2002
2. and the press reports: David Ratner, “Parents: Cancel the School Play that Calls for Refusal to Serve,” Haaretz, 10.5.2002
3. David Ratner, “Hair Presented at the Reali High School Despite Protest,” Haaretz, 12.5.2002
4. Eliran Tal, “Minister of Education: The Reali High School and its Educational Personnel Have Failed,” Yediot Haifa, 13.7.2002.
5. Chester Neal Tate, “Why the Expansion of Judicial Power?” in Chester Neal Tate and Torbjorn Vallidner, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 27, at 28–32.
6. A further aspect of social judicialization is the “depth of litigation.” For example: The number of lawyers and the quantity of cases being dealt with in the courts - in proportion to the size of the population. By these two indicators, Israeli society has become very litigious. An interesting debate has been taking place recently in the United States on the question of who is authorized to give legal advice. The proposal of the American Bar Association to forbid persons who are not lawyers to give legal advice has raised objections by organizations, the mass media, business and the Federal government regulation agencies. See: Adam Liptak, “US Proposal to Limit Who May Give Legal Advice” New York Times, 3.2.2003, at 11.
7. On “deviations” in the political system see Itzhak Zamir, “Public Law - Revolution or Development?” (1990) 19 Mishpatim 563, at 563 [in Hebrew].
8. See Itzhak Galnoor, “Israeli Democracy at the Crossroads,” in Shmuel Stampler, ed. People and State - The Israeli Society (Tel Aviv, Ministry of Defense, 1989) 9, at 9–20 [in Hebrew].
9. See Itzhak Galnoor, The Beginnings of Israeli Democracy: Model of Political Communication (Tel Aviv, Am Oved, 1985) 272–283 [in Hebrew].
10. In my usage, “politics” is an absolutely neutral term - a means for translating the multiple desires and interests in society into authoritative decisions, in order to attain common goals. Many jurists who have defined their understanding of “politics” have inserted some negative connotations between the lines (see for example, Aharon Barak, “The Essence of Judicial Activism” (1993) 5 lyyunei Mishpat 5, at 15 [in Hebrew].
11. Even Ariel Rosen-Zvi, who differed with conventional norms in legal perceptions, ignored the goals of politics and considered it only as “a means for control and struggle over positions of power” (January 1993) 17 (3) lyyunei Mishpat 689, at 705 [in Hebrew].
12. On the limits of jurisdiction as compared with the limits of law and the implications for politics see, Ariel Bendor, “Are there any Limits to Justiciability?” (1997) 7 Ind. Int'l & Comp. L. Rev. 311, at 313.
13. The above definition is similar to that proposed by Itzhak Zamir for “judicial activism”: a readiness to find a judicial solution for a new problem (Itzhak Zamir, “Judicial Activism: Decision to Decide” (1993) 17 Iyyunei Mishpat 647, at 647 [in Hebrew]). However, “judicial activism” is a restricted term connected more to the temperament of the judge than to the manner in which the system functions.
14. See Aharon Barak, “The Essence of Judicial Activism” (1993) 17 Iyyunei Mishpat 475, at 476 [in Hebrew].
15. For a survey of the various approaches to this matter see Gad Barzilai, “Judicial Hegemony, Political Polarization and Social Changes” (1999) 2 Politika 31, at 32–34 [in Hebrew]
16. For a theoretical discussion see: Alec Stone Sweet, “Judicialization and the Construction of Governance” (1992) 2 Comparative Political Studies 147, at 147–148
17. Adi Parush, “Judicial Activism, Judicial Positivism and Natural Law -Judge Barak and the Doctrine of the Omnipotent Knesset” (1993) 17 Iyyunei Mishpat 717, at 717 [in Hebrew]
18. Asher Maoz, “On the Limits of Jurisdiction: Knesset, Government, Law Court” (2000) 8 Plilim 389, at 413 [in Hebrew].
19. Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago, University Press of Chicago, 1986), at 1–64.
20. Jacqueline Lucienne Lafon, “France,” in Chester Neal Tate and Torbjorn Vallidner, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 289,289–305
21. Martin Shapiro and Alec Stone Sweet, On Law, Politics and Judicialization (Oxford, Oxford University Press, 2002), at 79–83.
22. Maurice Sunkin, “The United Kingdom” in Chester Neal Tate and Torbjorn Vallidner, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995), at 67.
23. John Griffith attributes this to the loss of respect and power by the judicial system in GB, in Judicial Politics Since 1920, (Oxford, Blackwell, 1993), at 191.
24. Lisa Conant, Justice Contained: Law and Politics in the European Union (Ithaca, New York, Cornell University Press, 2002).
25. On the idea of parliamentary autonomy in Europe and in Germany and Spain as opposed to England, see Suzie Navot, “Twenty Years after the ‘Sarid’ test: Judicial Review of Parliamentary Processes Revisited” (2003) 19 Mehkarei Mishpat 721, at 727–743 [in Hebrew].
26. The reference is to the internal domestic law of the states of Europe. However, the European Union has developed an indirect mechanism of judicial review of legislation and administrative actions in the national courts, based on European legislation. This mechanism has been accepted through the development of jurisprudence by of the European High Court of Justice, under which the national law courts have the authority to carry out judicial review based on European legislation. Article 234 of the Amsterdam Convention established that the guiding principle is that the European Court of Justice (ECJ) has the supreme authority in interpreting the Union's Convention and thus adopted the European mechanism of Preliminary Ruling in constitutional matters. The advantage of Article 234 is the broad standing rights given each individual, corporation or company to raise constitutional issues concerning the relationship between the European law and national law, through the national law courts. The use of an indirect mechanism led - through adjudication and gradual change - to a situation whereby the European and national courts fulfill a central role in shaping the European Union, and in raising the status of the national courts. This is a double innovation. First, judicial review now exists in every EU court, deviating from the previous European point of view of either not allowing judicial review, or in constitutional law courts only. Second, a country whose laws have been annulled finds it most difficult to change the court's ruling since it is bound by the supremacy of European legislation, changes to which require broad inter-nation agreement. See Anne-Marie Slaughter, Alec Stone Sweet and Joseph H. H. Weiler, eds. The European Court and National Courts - Doctrine and Jurisprudence (Oxford, Hart Press, 1998).
27. In the Netherlands, whose regime is similar in many ways to that of Israel, the expansion of judicialization has not changed the regime and the division of powers between the branches of government. The expansion has been in the main an outcome of the European Convention (see note 15 above) that increased the involvement of the High Court of Justice in defending the civil rights of the citizens. See Jan Ten Kate and Peter J. Van Koppen, “The Netherlands: Toward a Form of Judicial Review” in Chester Neal Tate and Torbjorn Vallidner, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 369, at 369–380.
28. For a concise presentation, see Dan Avnon, “Referendum in the Era of Upheaval of the Regime” (2000) 5 Politika 29, at 28 [in Hebrew].
29. For a comparison of different types of regimes, see Juan Jose Linz and Arturo Valenzuela, eds. The Failure of Presidential Democracy (Baltimore, The John Hopkins University Press, 1994).
30. See the statement of Supreme Court President Barak: “Can the judge be recognized as a minor partner linking the law and the public in interpreting legislation?” The answer to this question is not at all simple. The main controversy is between the model of partnership - even a minor partnership - and the model of the agency. According to the model of the agency, the judge is the agent of the legislator. He is obligated to function according to his instructions. He is like a junior officer obligated to carry out his commander's orders. This approach is completely erroneous. In my opinion, the judge is not an agent receiving orders, and the legislator is not an agency giving orders to his emissary. Both are organs of the state fulfilling duties: one legislates and the other interprets. Indeed, legislation creates law, and this law should serve as a link between the law and life”, (November 2003) Iggeret 25 The National Academy of Sciences, 10–13, at 11 [in Hebrew].
31. To the warranted questions: what is the meaning of “difficult times” and who decides that there is “much” to be corrected, I will reply that my purpose is only to present the corrective role of the courts in contrast to those who consider them as “the architects of societal changes.” See Aharon Barak, “The Rule of Law” in Shimon Shetreet, ed. Lectures at Study Days for Judges 1976: Innovations and Developments in Legislation and Law (Jerusalem, The Sacher Institute, 1977) 15, at 25.
32. Dan Avnon, “‘The Enlightened Public’: Jewish and Democratic or Liberal and Democratic?” (1996) 3 Mishpat u'Mimishal 417, at 417–451 [in Hebrew].
33. Aharon Barak, “The Constitutional Revolution: Basic Rights Protected” (1992) 1 Mishpat u'Mimshal 9, at 15 [in Hebrew].
34. Conversely, the corrective role is in keeping with the important recommendation of President of the Israeli Supreme Court: “If one wishes to maintain democracy, one must struggle for it” Barak, Mishpat u'Mimshal n. 19. From this it can perhaps be understood that the increase of judicial review is in the main a byproduct of the defense of democracy and human rights.
35. Gavison, Kremnitzer and Dotan, Mishpat u'Mimshal n. 1, at 149–151.
36. Basic Law: Jerusalem, The Capital of Israel 1980, L.S.I. 186
37. The Good Samaritan Law (in Hebrew: “Do not profit by the blood of your fellow,”) L.S.I. 5758–1998, 245
38. Basic Law: The Government (Amendment No. 10), 5761–2001, L.S.I. 48
39. Law for the Early Liberation of Prisoners (Law Amendment), 5762–2001, L.S.I. 138
40. Law for Liberation on Probation (Amendment), 5762 2001, L.S.I. 47
41. The Galilee Law, 5748–1987, L.S.I. 42, at 17
42. The Citizenship and Entry into Israel Law -temporary provision SH 1901 5763–2003,544.
43. On governmental illegality that leads to civil illegality and influences the general atmosphere of the lack of culture of governance by law see, Ariel Rosen-Zvi “Culture of Law” (1993) 17 (3) lyyunei Mishpat at 713 [in Hebrew].
44. See: Dan Avnon, “The Israel Basic Laws, (Potentially) Fatal Flaw” (1999) 32 (4) 1s. L.R. at 535–566. In my opinion too, the judgments handed down thus far have not contributed to the clarification of the issue. On the contrary: they may have contributed to the public discourse that presumes the existence of an apparent contradiction between “Jewish” and “democratic.”
45. Regarding the latter matter, see H.C.J. 96/4446 the Movement for Quality of Government and Itzhak Galnoor v. the Government of Israel, P.D. 50 (3) 705 [in Hebrew].
46. On the possibility of political review on the constitutionality of law, see Aharon Barak “Judicial Review of the Constitutionality of Law” (1996) 3 Mishpat u'Mimshal 403, at 405 [in Hebrew].
47. A pertinent example that occurred in the new political system of Russia is the recent struggle between the parliament and the constitutional court. See Robert Sharlet, “Russia's Second Constitutional Court: Politics, Law and Stability” in Victoria E. Bonnell and George W. Breslauer, eds. Russia in the New Century (Boulder Colorodo, Westview Press, 2001) 59, at 59–77. My thanks to Prof. Itzhak Brodni who brought this to my attention.
48. H.C.J. 1601/90 Schalit v. Peres P.D. 44(3) 353.
49. The Law of Government, 5761–2001, L.S.I. 168, was passed adjunct to the Basic Law: the Government. Daphna Barak-Erez has written on the obligation of disclosure, that the ruling by the High Court of Justice has made a certain positive contribution to public life, but not to the extent of the implementation of political agreements, “The Judiciability of Politics” (2000) 8 Plilim 367, at 374 [in Hebrew].
50. For a different approach that does not consider political agreements as contracts that can be enforced by the court, see Itzhak Galnoor, “Political Agreements” (1993) 38 Mimshal veYachasim Beinleumiim, at 9.7 [in Hebrew]
51. and Maoz, Mimshal veYachasim Beinleumiim n. 10, at 414–423.
52. L.S.I. 5751–1998, L.S.I. 226. See Itzhak Galnoor, introduction to Dan Caspi and Yehiel Limor, (1993) 7 Hametavchim 9
53. Ze'ev Segal, The Right to Know in the Light of the Freedom of Information Law (Tel Aviv, The Israel Bar Association, 2000) [in Hebrew].
54. H.C.J. 3094/93 The Movement for Quality of Government in Israel v. the Government of Israel, P.D. 47(5) 404, at 422.
55. In Israel, the disqualification of political parties comes within the authority of the Central Elections Committee, whose composition reflects the party composition of the Knesset. The High Court of Justice maintains control over decisions of the Central Elections Committee. I originally supported a restricted approach to the Political Parties Law, see Itzhak Galnoor, “The Need for a Political Parties Law: A Legal Framework for Parties in Israel,” (Jerusalem, Knesset Publications, 1988) 29–37.
56. This clause outlines the threats as perceived at that time and in accordance with the “dangerous” political parties that contested the elections in the 1980s. Accordingly, in the following elections of 1988 (and in elections after that), the participation of the Kach political party was not permitted on the grounds specified in clause 7a (2) and (3) of Basic Law: The Knesset (LC 1/88 Neiman v Chairman of the Elections Committee for the 12'h Knesset P.D. 42(4), 177].
57. Recently, clause 7a of Basic Law: The Knesset was amended in three matters that reflect a change of attitude toward the “threat” to Israeli politics. For instance, the additional preventative regarding support of armed struggle against the State of Israel. Following this amendment, the Court has considered the disqualification of political parties and candidates, but in all these cases ruled that the prevention of participation in the elections can be denied only when there is an “almost definite threat” to the existence of the State (H.C.J. 11280/02 The Central Elections Committee et al v. Knesset Member Ahmad Tibi et.al. P.D. 57(4) 1, at 1318.
58. C.A.189/76 Israel Labor Party v. Levin et. al. P.D. 31(2) 265.
59. H.C.J. 5364/94 Wellner v. Chairman of the Israel Labor Party, P.D. 49(1) 758. Another aspect of this issue was raised in cases when the court was required to intervene in coalition agreements and other politiC.A.l agreements between parties.
60. At that time, I supported a restrictive approach to the Political Parties Law, see Itzhak Galnoor, “The Need for a Political Parties Law,” in A Legal Framework for Political Parties in Israel (Jerusalem, Knesset Publication, 1988) at 29–37 [in Hebrew].
61. Gideon Rahat and Netta Sher-Hadar, How are Knesset Members Elected? (Jerusalem, The Israel Democracy Institute, 1999) especially 205–228 [in Hebrew]. Serious irregularities in the primary elections in the Likud party prior to the 2003 Knesset elections led to a police investigation and prosecution of Knesset Member Naomi Blumental.
62. This does not imply agreement with the statement of Justice Moshe Landau that it was this tendency that brought about the “raising of the law court to the epitome of the governing apparatus of the state” (Moshe Landau, “Judicial Activism” (2002) 7 Hamishpat 535, at 536 [in Hebrew].
63. In the adjudication relating to MK Pinhasi, the court presented a number of approaches that constitute a consistent conceptualization. H.C.J. 1843/93 Pinhasi v. Knesset Israel, P.D. 48(4) 492 annulled the ruling of the Knesset plenary to revoke his immunity on the procedural grounds that the Knesset Members had not fully examined the relevant material. Although this was a review of the semi-judicial function of the Knesset, the directive to Knesset Members to “do their homework” diligently was a needless intervention.
64. After they had read the material, the Knesset Members reacted by deciding not to revoke the immunity of MK Pinhasi. However, in H.C.J. 7637/97 The Movement for Quality of Government v. the Attorney General P.D. 52(4) 547, the Court decided not to intervene in the Knesset decision to appoint MK Pinhasi, who in the meantime had been convicted of “crimes with dishonor”, to the position of chairman of the Knesset Committee.
65. Since the statutes of the Knesset have no restricting directives regarding the office of chairmen of committees, the court preferred to maintain the division of powers with the Knesset and to leave the convicted chairman in his position. Prior to this, in H.C.J. 4267/93 Amitai - Citizens for Proper Administration and Integrity v. the Prime Minister P.D. 47(5) 441, ruled that MK Pinhasi should be deposed from his position as Deputy Minister because an indictment had been drawn up against him (for the same crimes).
66. This adjudication by the High Court of Justice was considered as over-readiness to intervene in the discretionary domain of the executive branch, rather than of the legislative (Segal, P.D., n. 32, at 342). It is difficult to justify the court's distinction between the task of chairman of the Knesset Committee and that of Deputy Minister, since the government functions with the confidence of the Knesset, including Deputy Ministers who must be Knesset Members.
67. See Gavison, Kremnitzer and Dotan, P. D. n. 1, at 39–40
68. Suzie Navot, “From the Ginossar Affair to the Pinhasi Affair: On Eligibility and Discretion” (2001) 5 Hamishpat, at 85–115 [Hebrew].
69. H.C.J. 5973/92 The Human Rights Association in Israel v. The Minister of Defense P.D. 47(1) 267.
70. See also, the discussion in Maoz, P. D., n. 10, at 429–431
71. Bendor, P. D., n. 8, at 350–351.
72. For a similar approach see Mordechai Kremnitzer, “Deport the Deportation: Some Comments on the Judgment on Deportation, the High Court of Justice, Law, Politics and Ethics” (1994) Plilim 17, at 29 [in Hebrew].
73. In the past, prior to the era of “activism,” the court did fulfill this role, as pointed out by Judge Landau: “the High Court judgment laid the foundation for many valuable principles of our administrative law, but never abandoned the firm ground of positive law and in the absence of such a law, its creative judgment filled open ‘gaps’ in the existing law” (Landau, Plilim, n. 40, at 537).
74. On this subject too, I will not be able to discuss many issues, such as the multiplicity of State Inquiry Commissions; the expansion of the function of the State Comptroller, including the authority to punish transgressions related to political party financing; the status of the binding opinions issued by the Attorney General; the expanding roles of Legal Advisors in the government Ministries; the trend of Ministries to augment legislation and secondary legislation. On the initial stages of this phenomenon see Itzhak Galnoor, “Changes in the Israeli Political System since the Yom Kippur War” (1977) 11 Medina Umimshal VeYahasim Beinleumiim, at 5 [in Hebrew].
75. When referring to senior civil servants, other issues arise. See e.g H.C.J. 7074/93 Swissa v. the Attorney General P.D. 48(2) 749.
76. See High Court of Justice judgment regarding building on Mt. Scopus (H.C.J. 394/72 French Hill Hotel Corporation v. Local Council, P.D. 27(2) 325
77. and the matter of Miron (H.C.J. Simha Myron v. the Minister of Labor, the Broadcasting Authority and the Minister of Posts, P.D. 24(1) 337) that rejected the petitions due to absence of personal interest.
78. H.C.J. 65/51 AH Jabotinsky et al v. Prof. Dr Ch. Weitzman P.D. 5(1) 801
79. H.C.J. 186/65 Gideon Reiner v. Prime Minister et. al. P.D. 19(2) 485.
80. H.C.J. 561/75 Motti Ashkenazi v. Minister of Defense et. al. P.D. 30(3), 309.
81. Based on Aharon Barak, “Judicial Review of Administrative Decisions and Administrative Discretion,” lecture at the annual convention of public administration (5 February 1996) at 14–15
82. Gavison, Kreminitzer and Dotan, lecture at the annual convention of public administration n. 1, at 16–28.
83. Hoffnung prefers to call it “formal criteria.” See Menahem Hoffnung, “Authority, Power and Separation of Governmental Branches - Judicial Review in Israel in Comparative Perspective” (1997) 28 Mishpatim 211, at 217 [in Hebrew].
84. On the removal of restrictions prior to hearing, see Zeev Segal, The Right of Standing in the High Court of Justice (Tel Aviv, Papirus, 2nd edition, 1993) [in Hebrew].
85. Torbjörn Vallidner, “When the Courts Go Marching In” in Chester Neal Tate and Torbjbrn Vallidner, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 12, at 16. “Internal judicialization,” not discussed here, is important and essential, but it also has negative implications, especially upon the lack of administrative creativity. Judicialization intensely increases the aversion of decision makers to risk and encourages taking decisions that are considered as coming within the realm of legal defense.
86. See Itzhak Galnoor, David Rosenbloom and Alon Yaroni “Creating New Public Management Reforms” (1998) 30 Administration and Society 4, at 393–420.
87. H.C.J. 3299/93 Wekzelbaum v. Minister of Defense P.D. 49(2) 195, at 211–308.
88. Menahem Mautner, “The Resonableness of Politics” (1994) 5 Teoria u'Bikoret (Theory and Control) 25 [in Hebrew].
89. Barak, Teoria u'Bikoret (Theory and Control), n. 50, at 9.
90. H.C.J. 910/86 Ressler v. Minister of Defense P.D. 42(2), 441.
91. H.C.J. 6163/92 Eisenberg v. Minister of Building and Housing P.D. 47(2) 229.
92. See the discussion in Hoffnung, P. D., n. 50, at 220–222
93. Gavison et all, P. D. n. 1, at 145–149, 208–214.
94. P. D., at l48.
95. P. D., at 186.
96. Rosen-Zvi wrote that the cause of reasonableness adds only “rhetorical nuance” and: “Experience so far shows that reasonableness as a criterion for jurisdiction and for the examination of discretion in ‘political’ matters cannot compete with the complexity of the issued to be decided,” P. D. n. 9, at 699.
97. Moshe. Landau, “On Justiciability and Consideration in Administrative Law” (1949) 14 Iyyunei Mishpat, at 5 [in Hebrew].
98. Gavison, Kremnitzer and Dotan, Iyyunei Mishpat n. 1, at 137.
99. Iyyunei Mishpat, at 114.
100. Segal, Iyyunei Mishpat, n. 32, at 321.
101. Gavison, Kremnitzer and Dotan, Iyyunei Mishpat n. 1 at 231.
102. Iyyunei Mishpat, at 232.
103. Barak, Iyyunei Mishpat, n. 50, at 10.
104. Barzilai terms it “the transition from party hegemony to judicial hegemony.” Barzilai, Iyyunei Mishpat n. 10.
105. Leora Bilski, “Law and Politics: the Case ofYigal Amir” (2000) 8 Plilim 13, at 14 [Hebrew].
106. In note 3 she refers to Judith N. Shklar, Legalism (Cambridge Mass., Harvard University Press, 1986).
107. See also, Ehud Sprinzak, Every Man for Himself: Illegalism in Israeli Society (Tel Aviv, Sifriat Poalim, 1986) [in Hebrew].
108. Barak, Every Man for Himself: Illegalism in Israeli Society, n. 8, at 491. Zannoti stresses in his study on Italy and the United States that the origin of judicialization is in “response to social demand” that has increased among other reasons because of the efforts of lobbies to obtain by way of the courts what could not be obtained through the legislative and executive branches.
109. See, Francesca Zannoti, “The Judicialization of Judicial Salary Policy in Italy and the United States” in Chester Neal Tate and Torbjörn Vallidner, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995), at 181.
110. Menachem Mautner “The Decline of Formalism and the Rise of Values in the Israeli Law” in Ariel Porat, ed. Judicial Activism (Tel Aviv, Ramot, 1993) 33, at 33–126 [in Hebrew]
111. Hoffhung, Judicial Activism, n. 50 at 217.
112. Pnina Lahav, “Valor and Office: The High Court of Justice During the First Decade of its Existence” (1999) 14 Iyyunei Mishpat 479, at 479–502 [in Hebrew].
113. Gavison, Kremnitzer and Dotan, Iyyunei Mishpat n. 1, at 37, 65.
114. The traces of this approach can be found in Aharon Barak's comment: “And the land shall be filled with law. Thus any issue can be ‘litigated,’ that is–there is a judicial norm addressing it.” Aharon Barak, Iyyunei Mishpat, n. 50, at 15.
115. The original Biblical verse is: “For the land shall be filled with devotion to the Lord as water covers the sea” Isaiah 11, 9).
116. Shapiro and Sweet, Isaiah, n. 12, at 176.
117. Ariel Rosen-Zvi wrote: “Can we today talk about the judicialization of life?… coping with systems of relationships and areas of activity through judicial instruments introduces a dimension of formalism into life and leads to confronting value issues with formal tools.” “Culture of Law,” Isaiah, n. 25, at 701.
118. Aharon Barak, ‘The Task of the High Court of Justice in a Democratic Society” in Raphael Cohen-Almagor, ed. Basic Issues in Israeli Democracy (Tel Aviv, Sifriat Hapoalim, 1999) 129, at 141–189 [in Hebrew].
119. Basic Issues in Israeli Democracy, at 129.
120. In a different version he stated: “the Knesset is the first among equals.” See Barak, Basic Issues in Israeli Democracy, n. 50 at 2,10.
121. See also, Aharon Barak, Interpretation in Law, Legalistic Interpretation (Jerusalem, Nevo, Vol. 3, 1994), at 38 [in Hebrew].
122. Aharon Barak, “Judicial Review of the Constitutionality of the Law” (1996) 3 Mishpat u'Mimshal 403, at 403–415 [in Hebrew].
123. Barak, Mishpat u'Mimshal n. 10, at 497.
124. For an approach that also compares the United States and Israel see: Laurence Tribe, Five Reigning Myths about Constitutionalism and Judicial Review (Jerusalem, Israeli Academy of Sciences, 1993)
125. Eyal Benvenisti, “Checks and Balances under the Patronage of the Court” (2001) 31 Mishpatim, at 797–819[in Hebrew].
126. Chester Neal Tate, “Why the Expansion of Judicial Power,” in Chester Neal Tate and Torbjorn Vallidner, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 27, at 28–33.
127. See also, “Judicial Review” in Neil J. Smelser and Paul B. Baltes, eds. International Encyclopedia of the Social and Behavioral Sciences, (Mass, Harvard University, Vol. 12, 2001) at 8020.
128. Tate, International Encyclopedia of the Social and Behavioral Sciences, n. 85, at 33.
129. See the Knesset resolution to call upon the Supreme Court to refrain from intervening in value-related issues, matters of Jewish law, ideological and political issues, and the laws the Knesset legislated, 14 December 1999. See also, Moshe Gorali, “What Happened to Barak's Power of Deterrence?,” Ha'aretz newspaper, 29.7.02, p. 4b [in Hebrew].
130. Chester Neal Tate and Torbjorn Vallidner, “Judicialization and the Future of Politics and Policy,” in Chester Neal Tate and Torbjorn Vallidner, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 515, at 527.
131. The late Ariel Rosen-Zvi's comment written over a decade ago presents a comparable approach: “It is the obligation of the legal community to undertake the creation of that climate that will enable the law to shape the image of society and to motivate values. We must infuse the awareness that law strides with various values and not in the opposite direction. We must deride the harmful sentiment that the law is a succession of unnecessary obstacles and restrictions”. Ariel Rosen-Zvi, The Global Expansion of Judicial Power n. 25, at 716.