Democracy and the new constitutionalism in Israel

Israel Law Review

Volumn 33, Issue 2, 1999, Pages 259-321

  Mandel, Michael ^a  

^a YORK UNIVERSITY   (Canada)

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EID: 8844246883     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700015995     Document Type: Article

References (226)

1. Michael Mandel, “A Brief History of the New Constitutionalism, or ‘How We Changed Everything So That Everything Would Remain the Same’”, (1998) 32 Isr. L.R. 250.
2. R.A. Hasson, “How to Hand Weapons to Your Enemies — The Charter of Rights Fiasco”, (June, 1982) 5 Steelshots.
3. See, for example, Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Thompson Educational Publishers, rev. ed., 1994)
4. more recently, Law, Politics and the Supreme Court: The Quebec Secession Case (The Hebrew University of Jerusalem Halbert Center for Canadian Studies, 1998).
5. Michael Mandel,“Legal Politics Italian Style”, in C. Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power (New York University Press, 1995).
6. A full account can be found in Claude Klein, La Démocratie D'Israël (Editions du Seuil, 1997)
7. a briefer one in David Kretzmer “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?”
8. “The Supreme Court and Parliamentary Supremacy”, in Itzhak Zamir and Allen Zysblat, eds., Public Law in Israel (Clarendon Press, 1996) 141 and 303.
9. A. Bergman v. Minister of Finance and State Comptroller, in Zamir and Zysblat, Public Law in Israel., at 310.
10. (1992) 47(v) P.D. 485.
11. Ha'aretz (Eng. ed.), March 19, 1998, at 3.
12. See the official government website and Appendix to Daniel J. Elazar, ed., Constitutionalism: The Israeli and American Experiences (University Press of America, 1990) 211
13. Eton Rishmi 14.5.1948 Vol. 1, p. 1, at p. 2.
14. Ha'aretz (Eng. ed.), February 6, 1998, at 1.
15. Ha'aretz (Eng. ed.), June 23, 1998, at 3.
16. United Mizrahi Bank Ltd., et al. v. Migdal Cooperative Village, et al. (1995) 49(iv) P.D. 221, opinion of the President of the Court, Justice Aharon Barak.
17. Infra n. 79.
18. Association of Investment Management in Israel v. The Minister of Finance.
19. Ha'aretz (Eng. ed.), June 18, 1998.
20. Peter Y. Medding, The Founding of Israeli Democracy, 1948–1967 (Oxford University Press, 1990) 64.
21. Meir Michaelis, Mussolini and the Jews (Clarendon Press) 86–87.
22. “When liberal thought flourished it was said of the state's authority that it ought to be limited to the role of ‘night watchman’. That period is past, and every free man prays that we will not be forced to admit that it has gone forever”. Knesset Debates, February 1,1950 reprinted in Itamar Rabinovitch and Jehuda Reinharz, Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations 1948-Present (Oxford University Press, 1984) 45.
23. See also Amos Perlmutter, The Life and Times of Menachem Begin (Doubleday & Co., 1987) 250ff.
24. Medding, The Life and Times of Menachem Begin, at 39.
25. Don Peretz and Gideon Doron, The Government and Politics of Israel, (Westview Press, 3rd ed., 1997) 108.
26. The notion of Mapai as a party of the Left is sometimes hard for Israelis to accept, given its control of government and its general hegemony for the first 20 years of the State's existence, not to mention its encouragement of private capital and its antipathy to the Soviet Union. However, its labour-oriented and social democratic policies and ideology — a welfare state with extensive union rights and most of the economy in public or union hands — as well as its membership and constituency put it firmly in the camp of contemporary European socialist parties. As in most of Western Europe, the social democratic parties were the leading parties of the working class with the communist parties very much junior partners. Where the communist parties were dominant, they were non-revolutionary and reformist as well. See Donald Sassoon, One Hundred Years of Socialism: The West European Left in the Twentieth Century (Fontana Press, 1997).
27. Medding, One Hundred Years of Socialism: The West European Left in the Twentieth Century, at 39.
28. Nathan Yanai, “Politics and Constitution-making in Israel: Ben-Gurion's Position on the Constitutional Debate Following the Foundation of the State”, in Elazar, One Hundred Years of Socialism: The West European Left in the Twentieth Century, at 107.
29. Pnina Lahav, “Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy”, (1990) 24 Isr. L.R. 211, at 226.
30. Medding, Isr. L.R., at 171–174.
31. This is why the provision invoked in Bergman (1969), enacted in 1958, had the special majority requirement; it was put there to protect proportional representation: Klein, Isr. L.R., at 163.
32. Yisrael Bar-Yehudah (Mapam), Knesset Debates February 1, 1950, Isr. L.R., at 44 (emphasis added).
33. “The left (Mapam) and right (Herut) were in uneasy — and often acrimonious — alliance over the need for a constitution or bill of rights: the one, to enshrine its labor ideology as a national heritage, the other, to protect itself and other minorities from deviation from constitutional freedoms through a parliamentary “mechanical majority”. Avraham Avi-hai, Ben Gurion State-Builder: Principles and Pragmatism 1948–1963 (John Wiley and Sons, 1974) 251.
34. Pnina Lahav, “The Supreme Court of Israel: Formative Years 1948–1955”, (1990) 11 Studies in Zionism 45, at 49.
35. H.C.L. Merrillat, Land and the Constitution in India (Columbia University Press, 1970) 37–51.
36. Rabinovitch and Reinharz, Land and the Constitution in India.
37. Asher Arian, The Second Republic: Politics in Israel (Chatham House, 1998) 26.
38. Martin Gilbert, Israel: A History (Doubleday, 1998) 502.
39. Amnon Rubinstein, “The Struggle Over a Bill of Rights in Israel” in Elazar, Israel: A History, at 141.
40. Ha'aretz (Eng. ed.), February 6, 1998, at 1.
41. Arian, Ha'aretz, at 59.
42. Yair Aharoni, “The Changing Political Economy of Israel”, Annals of the American Academy of Political and Social Sciences (1998) 127, at 132.
43. Ami Ben-Porat, The State and Capitalism in Israel (Greenwood Press, 1993).
44. Israel, in its founding period, was “the country with the largest amount of governmental influence on the detailed operation of the economy among all western-type democratic states”. It was characterized by a “relative weakness of private employers” who were “effectively… represented by the government”: Medding, The State and Capitalism in Israel, at 109, 116.
45. Sassoon, The State and Capitalism in Israel, at 27–59; 117–36.
46. Mandel, The State and Capitalism in Israel.
47. As Ben Guirion told Mapam in 1949: “We will eventually establish a socialist regime, but for the immediate years ahead our concern must be immigrant absorption. Our national income is very small. It must be increased by raising productivity, using more modern machinery, introducing improved management techniques, and restraining the greed of the capitalists — all this demands planning”. David Ben Gurion, Israel: A Personal History (Funk & Wagnalls, 1971) 344.
48. “We are the sons of a people whose fate differs from that of all other peoples, and we are faced with a task that was not imposed upon the workers of any other country”. Gilbert, Israel: A Personal History, at 251.
49. Mandel, Israel: A Personal History, at 269.
50. “Further examination of the attitude of the parties of the Left in Western Europe to constitutional questions confirms that virtually all of them were united in their unashamed centralism… But they were all also ‘parliamentarism they were not in favour of presidential systems… nor were they in favour of a strong constitutional court or a second chamber which would weaken the powers of the main chamber. This is not surprising: the Jacobin tradition of the centralist state had been incorporated lock, stock and barrel to the continental socialist tradition. Socialists assumed that a move away from capitalism would require a firm use of the state machine: there was no point in limiting its powers. Constitutional courts gave power to senior judges and the Left — quite understandably — did not trust judges… The allergy of the British Labour Party to any constitutionalism originated in the same fear: any obstacle to parliamentary sovereignty would be used by its opponents to block reforms and socialism”. Sassoon, Israel: A Personal History, at 131.
51. Klein, Israel: A Personal History, at 324.
52. Peretz and Doron, Israel: A Personal History, at 105.
53. Rubinstein, Israel: A Personal History, at 139.
54. Ira Sharkansky, “Israel's Political Economy”, in Ehud Sprinzak and Larry Diamond, eds., Israeli Democracy Under Stress (Lynne Rienner Publishers, 1993) 154.
55. Klein, Israeli Democracy Under Stress, at 326.
56. Gadi Wolfsfeld, “The Politics of Provocation Revisited: Participation and Protest in Israel,” in Sprinzak and Diamond, Israeli Democracy Under Stress.
57. Ha'aretz (Eng. ed.), May 19, 1998, at 6.
58. Ha'aretz.
59. Ha'aretz (Eng. ed.), June 2, 1998, at 6.
60. Ha'aretz (Eng. ed.), July 6, 1998, at 1.
61. Aharoni, Ha'aretz, at 137–139.
62. Ha'aretz., at 132.
63. Ran Hirschl, “Israel's ‘Constitutional Revolution’: The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order”, (1998) 46 American Journal of Comparative Law 427, at 432–433.
64. Arian, American Journal of Comparative Law, at 66.
65. American Journal of Comparative Law., at 70–71.
66. American Journal of Comparative Law., at 70.
67. Yossi Beilin, Israel: A Concise Political History (St. Martin's Press, 1992) 214.
68. See also Yitzhak Rabin's speech to the Knesset on July 13, 1992: “Rabin made it clear that the Labour Party was finally turning its back on its Socialist legacy. His government would, he pledged, increase economic growth by ‘retooling the economy for open management, free of administrative restrictions and superfluous government involvement’. There was, he said, ‘too much paperwork, not enough production’”: Gilbert, A Concise Political History, at 551.
69. Ha'aretz (Eng. ed.), February 4, 1998, at 1.
70. Klein, Ha'aretz, at 145: “Le débat actuel porte done sur le portrait type du juge a la Cour supreme, présénté comme ashkénaze, liberal et laique. La vérité est que la grande majorité des juges nommés correspondent bien à ce modéle”.
71. Allen Zysblat, “The System of Government”, in Zamir and Zysblat, Ha'aretz, 1 at 15.
72. Mandel, Ha'aretz.
73. Parlamento italiano, commissione bicamerale, Testo approvato il 4 novembre 1997: Progetto di legge costituzionale.
74. Mandel, Testo approvato il 4 novembre 1997: Progetto di legge costituzionale.
75. Amnon Rubinstein, “The Benefits of Direct Elections” Ha'aretz (Eng. ed.), June 2, 1998, at 6.
76. See also Bernard Susser, “The Direct Election of the Prime Minister: A Balance Sheet”, in Daniel J. Elazar and Shmuel Sandler, eds., Israel at the Polls 1996 (Frank Cass, 1998) 237, at 239: “to avoid the demoralizing spectacle of coalition-making parties abjectly prostrating themselves to their potential junior coalition partners”.
77. Ha'aretz (Eng. ed.), March 19, 1998, at 3. Meretz is a small party based around peace and civil rights, made up of the tiny remnant of Mapam, the civil rights party Ratz, and Shinui. It received 7.4% of the vote in 1996.
78. Klein, Ha'aretz, at 73.
79. Naturally, the percentage is disputed. There is some participation in religious practices even by those who define themselves as secular: Yochanan Peres and Ephraim Yuchtman-Yaar, Trends in Israeli Democracy: The Public View (Lynne Rienner Publishers, 1992) 28.
80. On the other hand 56% of Israeli Jews never attend synagogue on the Sabbath: Daniel J. Elazar and Shmuel Sandler, “Introduction: The Battle over Jewishness and Zionism in the Post-Modern Era”, in Elazar and Sandler, eds., Trends in Israeli Democracy: The Public View, at 15.
81. Klein, Trends in Israeli Democracy: The Public View, at 77. Perhaps it is relevant here to add that I define myself as a secular Jew and that I find it absurd that civil marriages are not permitted in Israel.
82. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Harvard University Press, 1996) 19
83. United Mizrahi Bank, Freedom's Law: The Moral Reading of the American Constitution, at 122.
84. Dworkin, Freedom's Law: The Moral Reading of the American Constitution., at 8. The point can be illustrated by the failure of a Labour-sponsored attempt in July 1998 to end the exemptions from compulsory military service granted to ultra-orthodox Jews
85. Ha'aretz (Eng. ed.), July 8, 1998, 1.
86. United Mizrahi Bank, Ha'aretz, at 79–80.
87. Ha'aretz., at 120–121.
88. Ha'aretz., at 123.
89. “Hatsiduk lekach hu b'kfifuto shel hamchokek lehora'ot chukatiot-alchukiot, shehu atzmo kav'an”, Association of Investment Managers, Ha'aretz, para. 19.
90. For similar remarks in the Canadian context see Vriend v. The Queen (Supreme Court of Canada, April 2, 1998), para. 132. The Canadian Court also marshalled the democracy-of-ends-not-of-means argument (para. 176).
91. Ha'aretz (Eng. ed.), June 18, 1998.
92. Klein, Ha'aretz, at 134.
93. United Mizrahi Bank, Ha'aretz, at 80.
94. For another example see Justice Barak's minimalization of the importance of the failure to enact a Basic Law on criminal procedure where constitutional due process is concerned: 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”, (1997) 31 Isr. L.R. 3, at 17.
95. United Mizrahi Bank, Isr. L.R., at 67.
96. Here Justice Barak was just following Ronald Dworkin, Isr. L.R., at 11, who put it this way: “The moral reading asks them to find the best conception of constitutional moral principles — the best understanding of what equal moral status for men and women really requires for example — that fits the broad story of America's historical record”.
97. “We are under a Constitution, but the Constitution is what the Judges say its is”. United States Supreme Court Justice, later Chief Justice, Charles Evans Hughes, speaking in 1907, to be quoted and popularized by President Franklin D. Roosevelt, in his radio talk of 1937: David M. O'Brien, ed., Constitutional Law and Politics. Volume Two: Civil Rights and Civil Liberties (Norton & Co., 2nd ed., 1995) 69.
98. Mandel, Constitutional Law and Politics. Volume Two: Civil Rights and Civil Liberties, at 106–126.
99. United Mizrahi Bank, Constitutional Law and Politics. Volume Two: Civil Rights and Civil Liberties, at 126.
100. Constitutional Law and Politics. Volume Two: Civil Rights and Civil Liberties., at 127.
101. Karl Marx and Friedrich Engels, The German Ideology [1846] (Progress Publishers, 1976), 70–71: “Whilst in ordinary life every shopkeeper is very well able to distinguish between what somebody professes to be and what he really is, our historiography has not yet won this trivial insight. It takes every epoch at its word and believes that everything it says and imagines about itself is true”.
102. United Mizrahi Bank, The German Ideology, at 1.
103. Ha'aretz (Eng. ed.), February 4, 1998, at 1.
104. “Hebrew-speaking goyim” is the way one religious politician described secular Jews.
105. Ha'aretz (Eng. ed.), February 6, 1998, at 1.
106. Ha'aretz (Eng. ed.), June 10, 1998, at 1.
107. Deri himself has been charged with several counts of corruption and editorialist Ze'ev Segal argued in Ha'aretz a few days after the outburst by Cohen that Shas was merely trying “to trample faith in the legal system — the same legal system in which several Shas members have been interrogated, suspected and charged with offences”: Ha'aretz (Eng. ed.), February 8, 1998, at 6.
108. Ha'aretz (Eng. ed.), June 11, 1998, at 6.
109. Ze'ev Segal, “Judges in the crosshairs”, Ha'aretz (Eng. ed.), May 25,1998, at 6.
110. Justice Barak was subject to a particularly crude death threat in 1996 from a telephone caller who said: “You'll rot next to Rabin's grave, then you will understand”. He now has a 24-hour armed guard: Gilbert, Ha'aretz, at 595.
111. See also Ha'aretz (Eng. ed.), June 12, 1998, at 3.
112. Klein, Ha'aretz, at 143.
113. See Ha'aretz.
114. According to a 1992 poll, only 40% of the ultra-orthodox appear to think that a democratic government they disagree with is preferable to a non-democratic government, while seculars favour democracy by 73% and observant Jews who are not ultra-orthodox favour democracy by 60%. The same discrepancies can be seen in attitudes to Arabs. Agreement with the statement “the State of Israel belongs to the Jews and only to the Jews” was expressed by 76% of the ultra-orthodox, 56% of observant Jews and 28% of secular Jews: Ha'aretz (Eng ed.), June 2, 1998, at 3.
115. See Ha'aretz.
116. Ha'aretz (Eng. ed.), March 26, 1998, at 1.
117. Ha'aretz
118. Kol Ha'am Company Limited v. Minister of Interior in Zamir and Zysblat, Ha'aretz.
119. Meir Schnitzer and Others v. The Chief Military Censor and Others (1989), English translation in Zamir and Zysblat, Ha'aretz, at 108.
120. Uri Ganor, Advocate and others v. The Attorney General (1990), Ha'aretz, at 334.
121. The Movement for Quality in Government in Israel & Others (1993) 47(v) P.D. 404, 10 Selected Judgments of the Supreme Court of Israel 258.
122. Shalit v. Peres & Others (1990) 44(iii) P.D. 353, 10 Selected Judgments of the Supreme Court of Israel 204.
123. Nevo v. National Labour Court and Others (1990) 44(iv) P.D. 749, 10 Selected Judgments of the Supreme Court of Israel 136.
124. El Al v. Danilevitch (1994) 48(v) P.D. 749
125. discussed in Klein, P.D., at 140, n. 1.
126. Shakdiel v. Minister for Religious Affairs (1988) 42(ii) P.D. 221
127. abridged in 24 Isr. L.R. 129
128. Poraz v. Mayor of Tel Aviv (1988) 42(ii) P.D. 307.
129. Hoffman v. City Council of Jerusalem (1994) 48(i) P.D. 678.
130. See also recently the decision of the High Court of Justice reported in Ha'aretz (Eng. ed.), November 24, 1998.
131. Raskin v. Religious Council of Jerusalem (1990) 44(ii) P.D. 673
132. abridged in 26 Isr. L.R. 77.
133. Menucha Nechona Society v. Minister of Religious Affairs H.C. 397/88.
134. The Galilee Experience v. Mayor of Tiberias (1991) 45(iv) P.D. 58.
135. Hitachdut Hasefaredim Shomrei Torah v. Director of Population Registry (1989) 43(ii) P.D. 727
136. discussed in David Kretzmer, “Constitutional Law”, in Amos Shapira and Keren C. DeWitt-Arar, eds., Introduction to the Law of Israel (Kluwer Law International, 1995) 39, at 43.
137. Gideon Levy, Ha'aretz (Eng. ed.), January 25, 1998, at 6.
138. See, also, Klein, Ha'aretz, at 140, n. 2 (“ore a pu dire que I'activisme de la Cour supreme s'arretait a la ligne verte”)
139. Tom Segev, Ha'aretz (Eng. ed.), February 6, 1998 at 8: “As it approaches its 50th birthday, it should be commended for its positions on civil rights, but it must be said that the court does not do a good job defending the human rights of Arab residents of the territories”.
140. Izat Muhamed Mustafa Dwaikat and others v. The State of Israel and others (the “Eton Moreh Case”) (1979) Zamir and Zysblat, Ha'aretz, at 379.
141. Association, for Civil Rights in Israel v. Central District Commander and Another (1989), 9 Selected Judgments of the Supreme Court of Israel 1
142. Turkeman v. Minister of Defence (1994) 48(i) P.D. 217.
143. Marcus v. Minister of Defence (1991) 45(i) P.D. 467.
144. National Council for the Child's Welfare v. Minister of Labour and Welfare (1993) 47(i) P.D. 148
145. discussed in Asher Maoz, “Constitutional Law”, in I. Zamir and S. Colombo, eds., The Law of Israel: General Surveys (Sacher Institute for Legislative Research on Comparative Law) 5.
146. David Kretzmer, “Forty Years of Public Law”, (1990), 24 Isr. L.R. 341, at 355, n. 54.
147. Asser Al Aziz, Aid Al Aziz, Abd Al Afri and others v. Commander of IDF Forces in the Judea and Samaria Region (1988), Zamir and Zysblat, Isr. L.R. 341, at 410.
148. Association for Civil Rights in Israel v. Minister of Defence (1993) 47(ii) P.D. 267; 10 Selected Judgments of the Supreme Court of Israel 168. However it must be said that in this case the Court granted a retrospective right to an in-person hearing for those wishing to have one, even if the application was made from outside Israel.
149. Burkan v. Minister of Finance (1978) 32(ii) P.D. 800.
150. Yeredor v. Chairmen of the Central Elections Committee for the Sixth Knesset (1965) 19(iii) P.D. 365
151. discussed in David Kretzmer, P.D., at 41.
152. Neiman v. Chairmen of Central Elections a Committee for the 11th Knesset (1984) 39(ii) P.D. 225
153. discussed in Claude Klein, The Defence of the State and the Democratic Regime in the Supreme Court”, (1985) 20 Isr. L.R. 397.
154. Movement for Progressive Judaism in Israel Fund v. Minister of Religious Affairs (1989) 43(ii) P.D. 661
155. abridged in (1991) 25 Isr. L.R. 110.
156. Ressler & Others v. Minister of Defence (1988) 42(ii) P.D. 441; 10 Selected Judgments of the Supreme Court of Israel 1. In December, 1998 the Supreme Court ruled the discrimination formally illegal without taking a position on the merits. This is discussed below.
157. For example the Government Companies Law of 1975 (as amended in 1993) provides for affirmative action for women in the directorships of public companies. Opposition to discrimination against women can be found in the earliest legislation of the State. E.g., the Women Equal Rights Law, 1951 (5 L.S.I. 171) provided that “any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect”.
158. Avitan v. Israel Lands Administration (1989) 43(iv) P.D. 297
159. discussed in Maoz, P.D., at 32, in which discrimination in favour of Bedouins over Jews in the matter of subsidized land was upheld.
160. Member of Knesset Rabbi Meir Kahane and the “Kach” Movement v. The Executive Board of the Broadcasting Authority and Others (1985) Zamir and Zysblat, P.D., at 74.
161. Neiman et al., P.D.
162. To these cases, one might perhaps add the much milder one of Universal City Studios Inc. & Others v. Film & Theatre Censorship Board & Others (1989) 43(ii) P.D. 22, 10 Selected Judgments of the Supreme Court of Israel 229, where the Court overturned the ban on the film “The Last Temptation of Christ” which offended many Christians, as well as being a thoroughly bad movie.
163. This is also the case for several recent high-profile interventions: the disqualification of a Jewish party from running in municipal elections on the grounds of racism reported in Ha'aretz (Eng. ed.), October 30, 1998, was a straightforward application of the Municipal Elections Act.
164. The acquittal of kibbutzniks for charges of working on the Sabbath used traditional rules of statutory interpretation (Ha'aretz (Eng. ed.), December 6, 1998).
165. Alon Harel, “The Rule of law in Israel: Philosophical Aspirations and Institutional Realities” (1998, unpublished manuscript in the possession of the author) at 7: “Others believe that a written constitution may lead to greater caution on the part of the judges and therefore may eventually be detrimental to the protection of human rights… Courts which have to defend their very constitutional powers to review statutes are less able vigorously to defend human rights. Ironically, it is therefore the Courts' declaration of de jure constitutional power which weakens their de facto political power and consequently undermines their ability and commitment to the protection of human rights”.
166. See unpublished manuscript in the possession of the author.
167. United Mizrahi Bank, unpublished manuscript in the possession of the author, at 163.
168. Association of Investment Management, unpublished manuscript in the possession of the author, at paragraph 15.
169. Ha'aretz (Eng. ed.), June 17, 1998, at 1.
170. Ha'aretz (Eng. ed.), March 11, 1998, at 1.
171. Ha'aretz (Eng. ed.), July 24, 1998, at 6.
172. Ze'ev Segal, “Cleverly crafted judicial restraint”, Ha'aretz (Eng. ed.), December 10, 1998.
173. Orit Shohat, “A cowardly decision”, Ha'aretz (Eng. ed.), December 11, 1998.
174. The Jerusalem Post, December 10,1998.
175. Other recent examples of judicial reticence are the refusal to intervene in the appointment of a Shas MK with a criminal record to the Chair of a Knesset committee (Ha'aretz (Eng. ed.), October 20,1998)
176. the rejection of a petition to provide handicapped voters with access to polling stations (Ha'aretz (Eng. ed.), October 30, 1998).
177. International Herald Tribune, March 5, 1998, at 1.
178. Gideon Levy, Ha'aretz (Eng. ed.), March 8, 1998, at 6.
179. International Herald Tribune, May 19, 1998, at 3.
180. International Herald Tribune, May 21,1998, at 10. In September 1999, as I corrected the page proofs to this article, the Supreme Court finally ordered what amounted to a temporary stop to the practice of torturing prisoners. The decision is discussed below
181. Ha'aretz (Eng. ed.), November 27,1998 reported that the poverty rate for 1997 among non-jews was 30.3%, compared to a poverty rate for the total population of 16.2%.
182. Ha'aretz (Eng. ed.), November 27, 1998.
183. Ha'aretz (Eng. ed.), April 7, 1998, at 6.
184. Ha'aretz (Eng. ed.), April 9, 1998, at 6.
185. Ha'aretz (Eng. ed.), March 17, 1998, at 2; April 7, 1998, at 6.
186. Ha'aretz (Eng. ed.), April 9, 1998, at 2.
187. Ha'aretz (Eng. ed.), March 10, 1998, at 6; March 13, 1998, at 1.
188. International Herald Tribune, March 2, 1998, at 2.
189. Ha'aretz (Eng. ed.), March 29, 1988, at 6 (“The ‘nation’ in discrimination”).
190. United Mizrahi Bank, Ha'aretz, at 126.
191. An obvious example of the dependence of the Court on the legislature for political direction is the equality case of Neuo (women's age of retirement), Ha'aretz, which merely applied the Knesset initiative of the Equal Age of Retirement for Men and Women (1987) retroactively.
192. Ruth Gavison, “The Role of Courts in Rifted Democracies”, a paper delivered in Jerusalem at the International Colloquium “Democracy and the Courts sponsored jointly by the Faculty of Law of the Hebrew University of Jerusalem and the Isr. L.R., June 30, 1998.
193. See Ha'aretz.
194. Ronen Shamir, “‘Landmark Cases' and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice”, (1990) 24 Law and Society R. 781.
195. Law and Society R., at 786.
196. Law and Society R., at 789. I was informed by a member of the Dwaiket clan (though I cannot confirm this) that even the land in dispute in the Elon Moreh case was ultimately lost in a subsequent expropriation by the Israeli government for which the courts afforded no relief. This phenomenon is very old.
197. Douglas Hay, in his justly famous study of the death penalty in 18th century England, noted how just one case of the execution of a nobleman served to legitimate the vast number of executions of poor people for a century: Douglas Hay, “Property, authority and the Criminal Law”, in D. Hay, et al., eds., Albion's Fatal Tree: Crime and Society in Eighteenth Century England (Allen Lane, 1975).
198. Maoz, Albion's Fatal Tree: Crime and Society in Eighteenth Century England, at 49.
199. Albion's Fatal Tree: Crime and Society in Eighteenth Century England.
200. Gideon Levy, Ha'aretz (Eng. ed.), January 25, 1998, at 6.
201. Mandel, Ha'aretz, at 256
202. Ha'aretz.
203. Michael Mandel,“Legal Politics Italian Style” in C. Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power (New York University Press, 1995) 261, at 276–279
204. The Global Expansion of Judicial Power, at 220–228.
205. Mandel, The Global Expansion of Judicial Power, at 223.
206. See Ha'aretz (Eng. ed.), September 8–10,1999, for the quotes in this footnote.
207. Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977) 85–92.
208. Mandel, Taking Rights Seriously.
209. Mandel, Taking Rights Seriously, at 54.
210. Ha'aretz (Eng. ed.), April 12,1998, at 2. Arabs constitute 18% of the citizens of Israel and 4.5% of all its judges. There are fourteen judges on the Supreme Court.
211. Ha'aretz (Eng. ed.), March 22, 1998, at 3.
212. Yair Sheleg, “The High Court and a constitution”, Ha'aretz (Eng. ed.), June 14, 1998, at 6.
213. Mandel, Taking Rights Seriously, at xi.
214. Mandel, Taking Rights Seriously.
215. Evgeny B. Pashukanis, Law and Marxism: A General Theory (Pluto Press, 1989) 149, n. 21.
216. United Bank Mizrahi, Law and Marxism: A General Theory, at 133–134.
217. Gerald Cohen, “Capitalism, Freedom and the Proletariat”, in Alan Ryan, ed., The Idea of Freedom: Essays in Honour of Isaiah Berlin (Oxford University Press, 1979).
218. United Mizrahi Bank, The Idea of Freedom: Essays in Honour of Isaiah Berlin, at 155, 159.
219. Association of Investment Management in Israel, The Idea of Freedom: Essays in Honour of Isaiah Berlin.
220. Arian, The Idea of Freedom: Essays in Honour of Isaiah Berlin, at 70–71.
221. Shachar Goldman, “The Israeli Supreme Court as a social change agent, its actual role and possible implications on democratic values: the case of equality between women and men” (unpublished paper in the possession of the author), citing Women's Lobby in Israel, Women in Israel: Information and Data (Jerusalem, 1997) 24
222. The Comptroller of State of Israel, An Account on Nomination of Directors to Governmental Companies (Jerusalem, 1998) 25
223. State Treasury, An Annual Account of Revenues (Jerusalem, 1997).
224. Meatrael v. Rabin (1992) An Annual Account of Revenues.
225. Ze'ev Sternhell, “Clinging to the rabbi's coattails”, Ha'aretz (Eng. ed.), April 10,1998, at 7.
226. Mandel, Ha'aretz, at 313–327.