Abstract
Judicial activism has become increasingly significant to law and politics in Israel. The evolution of Israeli jurisprudence since the establishment of the State in 1948 includes an expanding role for the judiciary in determining the shape and content of the law. In this chapter I will discuss this phenomenon in relation to another frequently observed development — the growing use by Israeli judges of American legal precedents and scholarship. The purpose is not to suggest a causal relationship between the two, but to provide a point of reference with which to discuss some aspects of the character and implications of judicial activism in Israel. Also, while legal transplantation has figured prominently in many of the activist decisions of the Israeli Supreme Court, my focus will not be on the specific doctrinal importations that have been applied in these cases, but on the broader theory that has, in the United States, and to a lesser (but growing) extent in Israel provided jurisprudential support for judicial activism. The concern of the chapter is judicial activism in Israel; the approach will be to examine the fit between constitutional theory and constitutional adjudication where the two have evolved in separate and different political contexts.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
Article 46 of the Palestine Order-in-Council of 1922 had assumed that local statute law was incomplete and thus in need of fortification from external law, namely English common law and equity. This provision was retained in the 1948 law. See in this regard G. Tedeschi and Y. S. Zemach, ‘Codification and Case Law in Israel,’ in Joseph Dainow (ed.), The Role of Judicial Decisions and Doctrine in Civil and Mixed Jurisdictions (Baton Rouge: Louisiana State University Press, 1974).
Jordan B. Cherrick, ‘“Constitutional” Adjudication in Israel? The High Court Speaks Out for Prisoner’s Rights,’ International and Comparative Law Quarterly 30 (1981): 839.
A. M. Apelbom, ‘Common Law A L’Americaine,’ Israel Law Review 1 (1966): 565.
See for example, Bradley C. Canon, ‘A Framework for the Analysis of Judicial Activism,’ in Stephen C. Halpem and Charles M. Lamb (eds), Supreme Court Activism and Restraint (Lexington: D. C. Heath and Company, 1982). Canon enumerates six dimensions for the assessment of judicial activism that, when applied to Dworkin’s work, reveal an unmistakable pattern of judicial activism.
Arthur S. Miller, ‘In Defense of Judicial Activism,’ in Halpem and Lamb (eds), Supreme Court Activism and Restraint, p. 169. This notion that the Constitution is a document to be shaped by judges in light of social needs, suggests a legislative and discretionary assignment distasteful to theorists such as Dworkin, whose denial of judicial discretion is predicated on the assumption that judicial statesmanship is a matter of discerning the contemporary implications of a principled and determinate Constitution. The emphatic rejection of judicial activism is more pronounced in Dworkin’s recent writing than in his earlier work. Thus, despite the fact that on matters of stare decisis, original intent, and deference to popularly created law, Dworkin fits unambiguously within the activist tradition, he nevertheless views ‘activism as a virulent form of legal pragmatism.’ Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), p. 378.
Aharon Barak, Judicial Discretion (New Haven: Yale University Press, 1989), p. 30.
Michael J. Perry, Morality, Politics, and Law: A Bicentennial Essay (Oxford: Oxford University Press, 1988);
Sotirios A. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984);
Sanford Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988);
David A. J. Richards, Toleration and the Constitution (Oxford: Oxford University Press, 1986).
I have discussed this comparison in detail elsewhere. See Gary J. Jacobsohn, ‘Alternative Pluralisms: Israeli and American Constitutionalism In Comparative Perspective,’ The Review of Politics 51 (1989).
Charles S. Liebman, ‘Conception of “State of Israel” in Israeli Society,’ Jerusalem Quarterly 47 (1988).
Daniel J. Elazar, Israel: Building a New Society (Bloomington: Indiana University Press, 1986);
Moshe Lissack, ‘Pluralism in Israeli Society,’ in Michael Curtis and Mordechai Chertoff (eds), Israel: Social Structure and Change (New Brunswick, N.J.: Transaction Books, 1973);
David K. Shipler, Arab and Jew: Wounded Spirits In A Promised Land (New York: Penguin Books, 1986).
Sammy Smooha, Israel: Pluralism and Conflict (Berkeley: University of California Press, 1978). In Israel, ethno-religious groups compete with the State for the right to exercise coercive authority over individuals whom the group views as its members and whom the State recognizes as citizens of one polity. No such competition is permitted within the pluralism of the United States, where the ethnic or religious group is required to function in the much more limited fashion of the voluntary association.
The best discussion of this subject is found in S. Zalmon Abramov, Perpetual Dilemma: Jewish Religion in the Jewish State (Rutherford, N.J.: Fairleigh Dickinson University Press, 1976).
Louis Henkin, ‘Infallibility Under Law: Constitutional Balancing,’ Columbia Law Review 78 (1978): 1047–8
Patrick M. McFadden, ‘The Balancing Test,’ Boston College Law Review 29 (1988): 641.
Eugene Rostow, The Sovereign Prerogative: The Supreme Court and the Quest For Law (New Haven: Yale University Press, 1962), pp. 167–8;
Richard Funston, A Vital National Seminar: The Supreme Court in American Political Life (Palo Alto: Mayfield Publishing Company, 1978).
Ralph Lemer, ‘The Supreme Court as Republican Schoolmaster,’ in Philip B. Kurland (ed.), Supreme Court Review (Chicago: University of Chicago Press, 1967).
See for example, Suzanna Sherry, ‘The Founders’ “Unwritten Constitution,”’ University of Chicago Law Review 54 (1987).
D. David Gotein (ed.), Selected Judgments of the Supreme Court of Israel, Vol. 1 (Jerusalem: The Ministry of Justice, 1962), p. 72.
Theodore J. Lowi, The End of Liberalism Ideology, Policy, and the Crisis of Public Authority (New York: W. W. Norton & Co., 1969), p. 314.
On this point, see Michal Shamir and John L. Sullivan, ‘The Political Context of Tolerance: The United States and Israel,’ American Political Science Review 11 (1983).
Gary J. Jacobsohn, ‘Modem Jurisprudence and the Transvaluation of Liberal Constitutionalism,’ Journal of Politics 41 (1985): 414.
Editor information
Editors and Affiliations
Copyright information
© 1991 Kenneth M. Holland
About this chapter
Cite this chapter
Jacobsohn, G.J. (1991). Judicial Activism in Israel. In: Holland, K.M. (eds) Judicial Activism in Comparative Perspective. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-11774-1_6
Download citation
DOI: https://doi.org/10.1007/978-1-349-11774-1_6
Publisher Name: Palgrave Macmillan, London
Print ISBN: 978-1-349-11776-5
Online ISBN: 978-1-349-11774-1
eBook Packages: Palgrave Political & Intern. Studies CollectionPolitical Science and International Studies (R0)