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The Values of the State of Israel as a Jewish and Democratic Stateby Aharon Barak*(August 2009)The Importance of the Values of a Jewish and Democratic StateDespite a common misconception, Israel does have a formal constitution [1] as well as judicial review of constitutionality. [2] The Constitution is embodied in several documents called the Basic Laws. Two of these basic laws –Basic Law: Dignity and Libert [3] and Basic Law: Freedom of Occupation [4] – were constituted in 1992. Their main focus is human rights and they serve as the Israeli equivalent of the Bill of Rights When the Basic-Law: Human Dignity and Liberty and the Basic-Law: Freedom of Occupation were constituted, new language was introduced into Israel’s legal and social culture: [5]
This expression’s importance is two-fold. First, it determines the general purposes that lie beneath these two basic laws: To protect human dignity and liberty and the freedom of occupation, “in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic State.” [6] These values serve, therefore, as an interpretive criterion in determining to what extent the provisions of the Basic Law apply. For example, protection of property and privacy was intended “to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic State.” [7] There is, however more to the matter than this. It is only natural that the interpretive guideline of the values of the State of Israel as a Jewish and democratic state should not be restricted merely to the basic laws about human rights. It is inconceivable that for the purposes of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation The values of the State of Israel as a Jewish and democratic State must be recognized, whereas for other purposes, beyond the scope of the basic laws that refer to human rights, the values of the State of Israel would be different. In fact, doing so would lead to differential constitutional interpretation. Purposive constitutional interpretation relates to provisions of the constitution as a unity. [8] If the values of the State of Israel as a Jewish and democratic state are enshrined in the basic laws that refer to human rights, they must also apply outside the scope of these basic laws in interpreting all of the provisions of the Israeli constitution and statutes. [9] Second, the importance of the expression “the values of the State of Israel as a Jewish and Democratic State” goes beyond interpretive influence. The values of the State of Israel are not merely a criterion for interpreting our human rights, but they are also constitutional criteria for limitations on human rights. The limitation formula in the Basic Law: Human Dignity and Liberty (a similar one can be found in the Basic Law: Freedom of occupation) states: “The
rights under this Basic Law may only
be affected by a law that is befitting
the values of the State of Israel, is
intended for a proper purpose, and to
an extent that is not excessive or by
regulation enacted by virtue of express
authorization in such law.”
[10]
Within the framework of this clause, the values of the State of Israel serve as a criterion for the constitutionality of a statute that limits human rights enshrined in the Basic Laws. A statute that limits human rights is constitutional only if it meets several requirements. One of these requirements is that the statute befits the values of the State of Israel as a Jewish and democratic state. Indeed, a statute that limits a protected human right will be unconstitutional, even if it is not excessive, if the limitation of the human right does not befit the values of the State of Israel as a Jewish and democratic state. [11] It
follows that the importance of the values
of the State of Israel as a Jewish and
democratic state is two-fold. They constitute
criteria for a purposive interpretation
of the provisions of the Basic Laws. This
purposive interpretation is what determines
the extent to which the Basic Laws apply.
All laws are interpreted in accordance
with this interpretation. In addition,
the values of the State of Israel as a
Jewish and democratic state constitute
an essential condition for the validity
of a statute that limits a constitutional
human right. It should be remembered that
the normative status attributed to the
values of the State of Israel as a Jewish
and democratic state is not the same as
the status of other values that constitute
a part of the Israeli legal system. The
normative status of the values of the State
of Israel as a Jewish and democratic state
is a constitutional supra-legislative normative
status. Ordinary legislation that limits
a constitutional human right will be declared
unconstitutional if it does not befit the
values of the State of Israel as a Jewish
and democratic state. Therefore the expression ‘the
values of the State of Israel as a Jewish
and democratic State’ is of great
legal importance. It has constitutional
status. It is not merely a verbal formula
that contains no normative message. This
formula has an important normative significance.
It influences both the determination of
the scope of human rights and the protection
given to them under Israeli law.
[12]
That is why it is
so important to answer the questions:
What are the values of the State of Israel
as a Jewish and democratic state? How
are they determined? What are their weights?
And what is the relationship between
the values of the State of Israel as
a Jewish state and its values as a democratic
state?
[13]
A Solution Through ConsensusThe expression ‘the
values of the State of Israel as a Jewish
and democratic state’ is a vague
expression.
[14]
The text does not
supply an unambiguous answer. Determining
the scope of this expression’s
application will require a significant
amount of ‘our’ attention
in the future. When I say ‘our’ attention,
I am referring to the whole of Israeli
society, and not merely the legal profession.
Indeed, the expression
‘the values of the State of Israel
as a Jewish and democratic state’ in
the Basic Laws reflects the uniqueness
of the State of Israel and Israeli society.
We are not like other people; we are not
like other nations. We are a democracy,
and our values are the values of every
democracy. But we are also
a Jewish State, and therefore our values
are the values of a Jewish State. All of
Israeli society will need to face this
duality. Philosophers and researchers,
rabbis and professors, yeshiva students
and university students – all the
strata of Israeli society – will
need to ask themselves what are the values
of the State of Israel as a Jewish and
democratic state. We also expect the contribution
of philosophers and researchers from around
the world.
The values of the State of Israel as a Jewish StateWhat are the values of
the State of Israel as a Jewish state?
Indeed, the values of the State of Israel
as a Jewish state distinguish it from all
other democratic states. There are many
democratic states in the world, but only
the State of Israel is a state that is
not only democratic, but also Jewish. It
is worth noting the words of Israel’s Declaration of Independence:
In Israel arose the Jewish people, there their spiritual, religious, and political character was formed, there they lived as a state, there they created cultural assets for the nation and for all of humanity, and bequeathed the eternal book of books to the whole world. [15] A “Jewish state” is, then, a state of the Jewish people. “The natural right of the Jewish people is to be independent in their own sovereign state.” [16] This is the state to which every Jew has the right to move and to become a citizen; the ingathering of exiles is one of its basic values. [17] A “Jewish state” is a state whose history is integrated and intertwined with the history of the Jewish people, whose main language is Hebrew, and whose holy days reflect the Jewish heritage. [18] A “Jewish state” is a state that perpetuates the memory of the Jews massacred in the Holocaust, and that was designed to be “the solution to the Jewish problem, resulting from a lack of both a homeland and independence, by renewing the Jewish state in the land of Israel.” [19] A “Jewish state” is a state which cultivates Jewish culture and Jewish education. [20] A “Jewish state” is the “realization of the aspiration of generations for the redemption of Israel” [21] is a state in which the values of "freedom, justice, equity, and peace of Israel's heritage,” [22] are its values. A “Jewish state” is a state whose values are also drawn from its religious tradition, a tradition in which the Bible is the most basic book, and the prophets of Israel are the foundations of its ethics. [23] A “Jewish state” is a state in which the values of the Torah of Israel, the values of the Jewish heritage, and the values of the Halacha(religious law) are among its most basic values. [24] This interpretation of “the values of the State of Israel as a Jewish state,” leads to the conclusion that the values of the State of Israel have two primary aspects. One is the Zionist aspect. The other is the aspect of heritage, or tradition. The Zionist aspect is expressed, for example, in the right of every Jew to move to Israel, and become an Israeli citizen – a right guaranteed in the Law of Return (1950). [25] The heritage aspect is expressed, for example, in the law which states that a gap (lacunae) in legislation, which cannot be filled by analogy, [26] must be completed according to the “principles of freedom, justice, equity, and peace of Israel's heritage.” [27] Indeed, it would be a one-dimensional vision if we were to only equate the values of the State of Israel as a Jewish State to the heritage-law aspect. Zionism, on the one hand, and Jewish heritage, on the other hand, has stamped their seal on the Jewish character of the state of Israel. It may be pointed out that there is a tight connection between the Zionist aspect and the heritage aspect. There is also a connection between these two and the values of the State of Israel as a democratic state. Nevertheless, an objective perspective must be based on the distinction between these various elements, even if the interpretive trend must synthesize them. A Jewish State: The Heritage AspectWhat are the values of the State of Israel as a Jewish state from the heritage aspect? We learn about these values from the “world of Halacha” (religious law). They include the values of the State of Israel as a Jewish state in various levels of abstraction; from a specific law on a certain issue to abstract values such as “love your neighbor as yourself” [28] or “do that which is honest and good.” [29] It contains particular and universal values; it contains values developed over generations throughout the history of the Jewish people. [30] There are values which compliment each other and values which contradict each other. A Jewish State: The Zionist AspectWhat are the values of
the State of Israel as a Jewish State from
the Zionist aspect? The
world of Zionism views the state of Israel
as a national home for the Jewish people;
it is the Law of Return, that enables every
Jew in the world to view Israel as his
or her home;
[31]
it is the revival
of the Hebrew language and the development
of Hebrew culture;
[32]
all these and more
make Israel a Jewish state, even for
a non religious Jew.
The Values of Israel as a Democratic StateThe values of the State of Israel as a democratic state are the same values that, at any given time, reflect the basic perceptions of the modern democracy. [33] This democracy is built, in essence, on two foundations. First, it is a government of the people. A democratic regime is a one in which the people determine their own destiny. The people act through their representatives, and the representatives make decisions by a majority vote. Democracy, in this sense, identifies itself with majority rule. The other foundation upon which democracy is built is separation of powers, [34] the rule of law, [35] independence of the judiciary [36] and human rights. [37] Only a combination of these two foundations leads to true democracy. Indeed, a regime in which the majority deprives the minority of basic rights is a majoritarian regime, but it is not a democratic regime. Democracy cannot be established without human rights. Democracy is a delicate balance between majority rule and human rights. [38] The Relationship Between the Various ComponentsThere may be tensions and contradictions between the values of Israel as a Jewish state and the values of Israel as a democratic state. [39] There may also be a contradiction between the values of Israel as a Jewish state, from the aspect of heritage, and the values of Israel as a Jewish state, from the Zionist aspect. [40] An appropriate analysis does not have to intensify these contradictions. On the contrary, a purposeful analysis, based on constitutional unity and normative harmony, aspires to find that which is unifying and common, while preventing contradictions and reducing points of friction. We must strive to find the common denominator and synthesis between the values of Israel as a Jewish state and the values of Israel as a democratic state. [41] Indeed, we must search
for an integration between the different
values of the State of Israel – as
a Jewish and democratic state – in
an attempt to create a homogeneous and
inclusive perception. This is possible.
One does not have to come at the expense
of the other. Through mutual concessions,
it is possible to find the proper balance.
Thus, for example, if within the world
of Halacha, there is a stream of
particularism and a stream of universalism,
it would be appropriate for the interpreter
to adopt the stream of universalism, since
this stream is more easily integrated with
the values of Israel as a democratic state.
[42]
Similarly, if from
the perspective of democracy, there are
various ways of viewing interpersonal
relationships, it is appropriate to choose
that approach that is similar to the
values of Israel as a Jewish state.
[43]
The Failure of Completeness and Harmony – What Next?The interpreter aims for completeness and harmony between the values of the State of Israel as a Jewish State and its values as a democratic state. We can expect there to be cases where this ambition will not be realized: the various attempts to find a common denominator are likely to fail; the values may be so diametrically opposed to one another that a synthesis between them is impossible, or becomes irrelevant for the solution of the problem that requires a decision. What should the judge do in such a situation? This is a matter for judicial discretion. [44] In exercising this judicial discretion, judges may not toss a coin; they must act rationally; they must act objectively; they must choose the solution, which more than any other solution, is in accord with the general structure of the legal system; they must provide a solution that is in accord with the other purposes that underlie the Basic Laws, according to which: Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel. [45] They must provide the
solution that is consistent with our constitutional
history; they must provide the solution
that is consistent with the consensus of
Israeli society; they must provide the
solution that connects with the past and
creates a basis for development in the
future. All of these impose a heavy burden
on the judiciary. They are accustomed to
discharging it. They discharge it in other
situations where they must exercise their
discretion. They will discharge it also
in this special situation.
On EqualityOne of the significant
aspects of the values of Israel as a democratic
state is the value of equality.
[46]
This was expressed
in the Declaration of Independence, among
other places, which states that "the
State of Israel . . . will establish
equal social and political rights for
all its citizens without distinguishing
on the basis of religion, race or gender."
[47]
Indeed, the state
must honor each individual's basic right
to equality. There is no democracy without
equality.
All rights, upon which
democracy is based, are built on equality.
[48]
Equality lies at the
foundation of social existence. An individual
integrates into the general fabric of
society and plays his part in the construction
of society with the knowledge that others
are doing the same. The need to guarantee
equality is natural to the human being.
It is based on considerations of justice
and decency. A person who asks for recognition
of his rights must also acknowledge the
right of others to receive similar recognition.
Nothing is more destructive to society
than the feeling of its sons and daughters
that they are being treated in a discriminatory
manner. The feeling of discrimination
is one for the most difficult feelings.
[49]
It strikes at the
uniting forced within society and harms
each person's right to self-determination.
Do the values of Israel
as a Jewish state detract from the principle
of equality? The answer is negative. As
values of the State of Israel as a Jewish
state are also values of a democratic state,
they support the principle of equality.
From the heritage aspect of the State of
Israel, equality is a basic value. It is
expressed in the imperative "you shall
have only one law, the stranger shall be
as a citizen"
[50]
. Justice Elon rightly
stated:
The very foundation in the religious world is the idea that every person is created in the image of God (Genesis 1:27). Thus begins the Jewish Bible, and from it Jewish law derives the basic principles with regard to the value of the human being – each person as he is – his equality and his love. [51] This idea is also part
of the Zionist aspect of the state. Israel
is a Jewish state, because the Jewish people
congregated there, and it is the solution
to their problems. Every Jew has the right
to move to Israel and to become a citizen.
[52]
This does not offend
the essence of equality.
[53]
Thus, when the purpose
underlying the foundation of the state
is that it serve as a home for all Jews
as Jews, the right of every Jew to move
to Israel does not constitute discrimination
against those who are not Jewish. Rather,
it recognizes those differences demanded
by equality. However, since the establishment
of the state, it must treat its citizens
equally. True, a special key to enter
the home was given to the Jewish people.
However, once the individual is inside
the house, he enjoys the same rights
as every other member of the house. There
is no discrimination between the members
of the house.
[54]
Zionism was born to negate
racism. It learned the extent to which
racist treatment, dictated by religious
or national belonging, can degrade human
character. Thus Zionism is opposed to any
patterns of discrimination on the basis
of religion or nationality. Justice Barezon
spoke on this subject when he said:
Thus, Zionism came to
establish a Jewish state and it succeeded.
There is no doubt that Israel is a Jewish
state according to its heritage, symbols,
holidays, language, culture and other indicators.
Like other nation-states, Israel acknowledges
that it must treat every person in its
midst equally, even if he is part of a
non-Jewish minority.
Equality Without Regard for Religion, Race and GenderEquality extends across all aspects of life within the state. Therefore, there must be equality between members of different nations, communities, races, parties, genders, ages, viewpoints and bodies. [56] It should be noted that this list is not exhaustive. I will focus on one aspect of equality – equality between Jews and Arabs. [57] This is discussed in the Declaration of Independence which states that the State of Israel will uphold equality between its citizens "without regard for religion, nationality, or gender." [58] Hence, every citizen, without regard for religion or nationality, is entitled to equality. A state may not discriminate between its citizens on the basis of religion or race. On this background, we must also understand the decision by the Supreme Court according to which the state must treat Jews and Arabs equally in the allocation of state lands. [59] This is an elementary demand of equality. An Arab seeking to acquire an apartment in Upper Nazareth from the state has a right to the same terms and conditions that the state offers to Jews. There is nothing special about this apartment that justifies different treatment to Jews and Arabs. Zionism is not based on
discrimination between Jews and Arabs.
This is not how Zionism was viewed by the
Declaration of Independence, which states
that "all members of the Arab people
who are residents of the State of Israel
must maintain the peace and play their
part in the construction of the state on
the basis of full and equal citizenship."
[60]
This is not how Zionism
was viewed by the Founding Fathers – Herzl,
Jabotinsky, Ben-Gurion, and others – who
stressed time and time again that the
state of the Jews is a state in which
full equality between Jews and Arabs
will prevail.
[61]
This is not how Zionism
was viewed by the Supreme Court. From
its very beginning, the Court stressed
time and time again the equality between
Israel's citizens on the basis of religion,
nationality and gender.
[62]
Therefore, the court’s
decision that the allocation of state lands
to Jews and Arabs must be done on the basis
of equality, is neither an anti-Zionist
nor post-Zionist decision. It is a Zionist
decision in the fullest sense of the word.
It is the fulfillment of Zionism, which
views Israel as a national home for Jews,
inside whose walls equality prevails amongst
all its residents. Thus, only in a national
home built on the principles of equality,
can the dignity of man can stand the test
of time. Only a state that treats all its
members equally can be accepted into the
family of nations supporting freedom. Only
a society based on the foundations of equality
can live in peace with itself.
* President (ret.) of Israeli Supreme Court, Visiting Professor of law, Yale law School; Professor of law, Interdisciplinary Center (IDC)Herzliya, Israel.
[1]
See
CA 6821/93, United Mizrahi Bank Ltd v.
Migdal Cooperative Village, PD 49(4),
221 (1995); HCJ 212/03 Herut National Movement v. Chairman of the
Central Elections Committee of the Knesset,
PD 57(1) 750 (2003). See also Daphna
Barak-Erez, From an Unwritten to a
written Constitution: The Israeli Challenge
in American Perspective, Colum. Hum.
Rts .L. Rev., 309
(1995); Aharon
Barak, The Judge in a Democracy 20
(2006); Suzie
Navot, The Constitutional Law of Israel 42
(2006); Aharon Barak, Human rights
in Israel,39 Isr.
L. Rev. 12 (2006); Gidon Sapir, The
Israeli Constitutional Revolution - How
Did it Happen?, Bar Ilan Univ. Pub
Law Working Paper No. 08-02 (2008) available
at SSRN: http://ssrn.com/abstract=1082230;
Amnon Rubinstein, Israel's Partial
Constitution, in (this book).
[2]
See Mizrahi Bank, id;
HCJ 1715/97 Israel Investment Managers
Association v. Finance Minister, PD 51(4)
367 (1997); HCJ 6055/95 Tzemah v. defense
minister PD 53(5) 241 (1999); HCJ 1030/99
Oron v. Chairman of the Knesset, PD 56(3)
640 (2002); HCJ 7052/03 Adalah v. Minister
of Interior [2006] (1) IsrLR 443. See
also Aharon Barak, The Constitutional
Revolution- 12th Anniversary, 1 Law and Business,
3 (2004) [Hebrew]; Navot, id,
at 45.
[3] Basic Law: Human Dignity and Liberty, Sefer Ha-Chukkim (17 March 1992) at 150, available at: http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm [4] Basic Law: Freedom of Occupation, Sefer Ha-Chukkim (10 March 1994) at 90, available at: http://www.knesset.gov.il/laws/special/eng/basic4_eng.htm [5] Sec. 1A Basic Law: Human Dignity and Liberty; Sec. 2 Basic Law: Freedom of Occupation. See also Amnon Rubinstein, Can Israel be both Democratic and Jewish?, (To be published by the Institute of History of the Polish Academy of Sciences,2009) available at: http://amnonrubinstein.com/index.php?option=com_content&task=view&id=687&Itemid=101 [6] Sec. 2 Basic Law: Freedom of Occupation. [7] Sec. 1A Basic Law: Human Dignity and Liberty. [8] See Aharon Barak, Purposive Interpretation in Law 370 (2005).
[9]
See
HCJ 6698/95 Ka’adan v. Israel Lands
Authority, PD 54(1) 258 (2000); HCJ 2859/99
Mkarina v. Minister of Interior, PD 59
(6) 721 (2005).
[10] See Sec. 8 Basic Law: Human Dignity and Liberty; Sec. 4 Basic Law: Freedom of Occupation. [11] See Mizrahi Bank, supra note 1 at 354; See HCJ 5026/04 Design 22 - Sark Dloks Furniture Ltd. v. Head Branch of permits work on Saturday - Division of Supervision Ministry of Labor and Social Affairs, PD 60(1) 38, 53 (2005). [12] See Mizrahi Bank, supra note 1.
[13]
See
Asa Kasher, Jewish and democratic
state - philosophical sketch, 19 Theoretical
in Law 729 (1995)
[Hebrew]; Asher Maoz, values of the
Jewish and democratic state, 19 Theoretical
in Law 547 (1995)
[Hebrew]; Avigdor Lbontin , Jewish
and democratic state, 19 Theoretical
in Law 521 (1995) [Hebrew]; Ruth
Gabizon, Israel as a Jewish and democratic
state: tensions and risks (1999)
[Hebrew].
[14]
See Menachem Elon, The
Values of a Jewish and Democratic State
- the Task of Reaching a Synthesis,
3 Hum.
Rts. Rev. 36 (2002).
[15]
Declaration
of the Establishment of the State of
Israel (14.5.1948) available at:
[16] id. [17] See The Law of Return 5710 (1950) with the supplement of Citizenship Law, 5712 (1952). See also HCJ 72/62 Rufeisen v. Minister of Interior, PD 16 2428 (1962); Claude Klein, The right of return in Israeli law, 13 Tel Aviv U. Stud. L. 53 (1997); Mkarina, , supra note 9, at 733; Alexander Yacobson & Amnon Rubinstein, Israel and the Family of Nations (2009).
[18]
See EA 11280/02 Central Elections
Committee of the Knesset v. Tibi, PD
57(4) 1, 22 (2003).
[19] Declaration of the Establishment of the State of Israel, supra note 15.
[20]
See
sec. 2 State Education Law, 5713 (1953).
[21] Declaration of the Establishment of the State of Israel, supra note 15. [22] Sec. 1 Foundations of Law 5740 (1980).
[23]
See
HCJ 5016/96 Horev v. Minister of Transportation,
PD 51(4) 1, 43 (1997); CrimA 10687/02
Hndiman Do it yourself, Ltd. v. State
of Israel, PD 57(3) 1, 5 (2003).
[24]
See
CA 191/51 Skornik v. Skornik, PD 8(1)
141 (1954). On the role of Jewish law
in the state of Israel see Menachem Elon, Sources
and nature of Jewish law and its application
in the State of Israel, 2 ISR.
L. Rev. 515 (1967); Menachem
Elon, Sources and nature of Jewish
law and its application in the State
of Israel part II, 3 Isr.
L. Rev. 88 (1968); Izhak Englard, Problem
of Jewish law in a Jewish state,
3 Isr.
L. Rev. 254 (1968); Menachem Elon, Sources
and nature of Jewish law and its application
in the State of Israel part III, 3 Isr.
L. Rev. 416 (1968); Menachem Elon, Sources
and nature of Jewish law and its application
in the State of Israel part IV, 4 Isr.
L. Rev. 80 (1969); Haim H Cohn, Jewish
law in Israel, in Jewish
Law in Legal History and the Modern World 124
(Bernard S. Jackson ed.,
1980); Sinai Deutch, Jewish law in
the State of Israel, 1 Justice 21
(1994).
[25] See the sources that cited in supra note 17. [26] See Barak, Purposive Interpretation in Law, supra note 8, at 66. [27] Sec. 1 Foundations of Law 5740 (1980).
[28]
Leviticus
19:18.
[29]
Deuteronomy
6:18.
[30]
See
Menachem Elon, Basics Law: The legislation
and Interpretation- How and where?,
12 Studies
in Law 253 (1995)
[Hebrew].
[31]
See
the sources that cited in supra note
17. See also EA 2 /88 Ben Shalom v. Central
Elections Committee of the Knesset, PD
43(4) 221, 230 (1989).
[32] See Design, supra note 11, at 53-54. [33] See Robert Dahl, On Democracy (1998); Barak, The Judge in a Democracy, supra note 1, at 23. [34] See Barak, The Judge in a Democracy, id, at 35.
[35]
See
Joseph Raz, The Rule of Law and its
Virtue, in The
Authority of Law: Essays on Law and Morality 210
(1979); Richard Fallon, The Rule of
Law as a Concept in Constitutional Discourse, 97
Colum. L. Rev.1 (1997); Democracy
and the Rule of Law (José María
Maravall & Adam Przeworski eds.,
2003); Brian
Tamanaha, On The Rule of Law: History,
Politics, Theory (2004);
Jeremy Waldron, The Concept and the
Rule of Law, 43 Ga.
L. Rev. 1 (2008).
[36]
See Judicial
Independence, the Contemporary Debate (Shimon
Shetreet & J. Deschênes eds.,
1985); Martin L Friedland,
A place apart: Judicial independence
and accountability in Canada (1995);
Stephen Breyer, Judicial Independence
in the United States, 40
St. Louis U. L.J.
989 (1996) Robert
Stevens, The English Judges: Their Role
in the Changing Constitution (2002); Judicial
Independence at the Crossroads: An Interdisciplinary
Approach (Stephen
B. Burbank & Barry Friedman eds.,
2002).
[37] See Barak, The Judge in a Democracy, supra note 1, at 81. See also Ronald Dworkin, Taking Rights Seriously (1977); Louis Henkin, The Age of Rights (1990); N. Bobbio, The Age of Rights (1995); Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998); Lorraine Weinrib, The Supreme Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights under Canada's Constitution, 80 Can. Bar Rev. 699 (2001). [38] On balancing see Barak, The Judge in a Democracy, id, at 164.
[39]
See Aharon
Barak, Interpretation in Law, vol. 3:
Constitutional Interpretation 323
(1994) [Hebrew]; Ruth
Gabizon ,Jewish and democratic state:
a political identity, ideology and Law, 19 Theoretical
in Law 631 (1995) [Hebrew]; Gabizon,
Israel as a Jewish and democratic state:
tensions and risks, supra note
13.; Elon, The
values of a Jewish and democratic state
- the task of reaching a synthesis, supra note 14; Rubinstein, Can
Israel be both Democratic and Jewish?, supra note
5.
[40]
See EA 2/84 Neiman v. Central
Elections Committee of the Knesset, PD
39(2) 225, 293 (1985):" It
is common knowledge that abundant differences
of opinion and conflicting approaches
mark also Jewish thought throughout the
ages - even the Halacha system itself….
It goes without saying that all these
views and approaches have contributed
together to deepening and enriching Jewish
thought at all times. But whoever embarks
upon the quest for knowledge must distinguish
between statements made for particular
times and circumstances and statements
made for all times, between a generally
accepted view and an exceptional one,
and the like distinctions and implications.
From this vast and abundant treasure,
it is possible to gather much that is
significant for the requirements of one's
own generation and age, so as to answer
contemporary needs and at the same time
replenish the treasure of Jewish thought
and the heritage of Israel." (Judge Menachem
Elon).
[41]
See
Tibi, supra note 18, at 19; Design, supra note
11, at 54: [T]he constitutional interpreter
should make an effort to achieve an accord
and harmony between the values of the
State of Israel as a Jewish state and
its values as a democratic state. Indeed,
the expression ‘the values of the
State of Israel as a Jewish and democratic
state’ should be regarded as one
idea that is comprised of two elements
(Jewish and democratic). Between the
two there should be a synthesis and compatibility. ‘Judges,
as faithful interpreters of the constitutional
text, should do everything in order to
achieve this synthesis’ .The interpreter
should find what is common to both and
what unites them. (Judge Aharon
Barak). See also CA 506/88 Shefer v. State
of Israel, PD 48(1) 87, 167 (1994):"It
is in the nature of such a synthesis
that it seeks what is common to both
systems, the Jewish and the democratic,
the principles that are common to both,
or at least that can be reconciled with
them"(Judge Menachem Elon).
[42] See Ka’adan, ,supra note 9. [43] See Shefer, supra note 41.
[44]
On
judicial discretion see Aharon Barak, judicial
discretion (1989)
[45] See Sec. 1 Basic Law: Human Dignity and Liberty; Sec. 1 Basic Law: Freedom of Occupation. [46] See HCJ 98/69 Bergman v. Minister of Finance, PD 23(1) 693 (1969); HCJ 114/78 Burkan v. Minister of Finance, PD 32(2) 800 (1979); HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa, PD 42(2) 309 (1988); Ka’adan, ,supra note 9; HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv-Jaffa Municipality, PD 56(5) 393 (2002); Adalah, supra note 2, at 483. See also Itzhak Zamir & Moshe Sobel, Equality before the Law, 5 Mishpat u Mimshal [Law and Government] 165 (1999) [Hebrew]. [47] Declaration of the Establishment of the State of Israel, supra note 15. [48] See Ronald Dworkin, Sovereign Virtue - The Theory and Practice of Equality (2000).
[49]
See Poraz, supra note
46, at 332; HCJ 7111/95 Local Government
Centre v. Knesset, PD 50(3) 485, 503
(1996).
[50] Leviticus 24:22.
[51]
CrimA
3632/92 Gabay v. State of Israel, PD
46(4) 487, 490 (1992).
[52] See the sources that cited in supra note 17. [53] See Ka’adan, ,supra note 9, at 281. [54] id, at 282.
[55]
HCJ 392/72 Berger
v. Regional Committee for Planning and
Construction, Haifa Region,
PD 27(2) 764, 771 (1973).
[56] See Zamir & Sobel, supra note 46.
[57]
See
HCJ 6924/93 Association for Civil Rights
in Israel v. Government of Israel, PD
55(5) 15, 27 (2001). See also Elyakim,
Rubinstein, On Equality for Arabs
in Israel, in Paths
of Government and Law: Issues in Israeli
Public Law 278 (2003)
[Hebrew]; Itzhak Zamir, Equal rights
to Arabs in Israel, 9 Mishpat
u Mimshal [Law and
Government] 11 (2005) [Hebrew].
[58] Declaration of the Establishment of the State of Israel, supra note 15. [59] See Ka’adan,supra note 9. [60] Declaration of the Establishment of the State of Israel, supra note 15.
[61]
See Yacobson
& Rubinstein, supra note
17.See also David
Ben-Gurion, We and Our Neighbors 32
(1931) [Hebrew]; Ze'ev
Jabotinsky, Eretz Israel- Two Nationality,
in Revisionist
Zionism 131 (1985) [Hebrew].
[62] See HC 35/48 Breslov & Partners Ltd. v. Trade and Industry Minister, PD 2 330, 334 (1949); HCJ 30/55 Committee for Protection of Expropriated Nazareth Land v. Minister of Finance, PD 9 1261(1955); HCJ 301/63 Streit v. Chief Rabbi, PD 18(1) 598, 612 (1964); Berger, supra note 55; HCJ 328/88 Avitan v. Israel Land Administration, PD 43(4) 297 (1989); HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs , PD 54(2) 164 (2000). |
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