Developments in Israeli Public Administration by Moshe Maor

Author:Moshe Maor [Maor, Moshe]
Language: eng
Format: epub
Tags: Political Science, International Relations, General
ISBN: 9780714682631
Google: nqqOIEvVwJAC
Goodreads: 3078725
Publisher: Routledge
Published: 2002-01-15T08:11:25+00:00

Robert Schwartz is a lecturer in the Department of Political Science at Haifa University.

Judicial Accountability in Israel:

The High Court of Justice and the Phenomenon of Judicial Hyperactivism

Yoav Dotan

Introduction

Widespread consensus exists that law, courts and politics are important for three sets of activities that are central to every modern state: policymaking, social control and regime legitimation. The role of courts in society and the relationship between the judiciary and the other branches of government vary in different states and cultures. While no widely accepted paradigms exist which model the relationship between law, courts and politics in a cross-national context, it is widely acknowledged that the role of judicial institutions is becoming ever more central to processes of policy-making both in the context of various national states and in the international arena. The phenomenon known as judicial activism was once viewed as a uniquely American practice. It is now, however, clear that judicial activism is rising in many countries across the globe.1

This article has a dual purpose: first, I intend to describe the general characteristics of the judicial system in Israel and its relationship with other social institutions in the Israeli society. Second, I will describe a model of society within which the courts (and, in particular, the Supreme Court) play a paramount social role by routinely intervening in the practices of the public administration as well as in the business of other governmental and non-governmental institutions, and thereby bringing about a judicialization of society. By the term ‘judicialization’ I mean not only that the courts intervene – on an almost routine basis – in decisionmaking processes of other institutions, but also that this widespread intervention brings about a process of adaptation to patterns of legal thinking and judicial decision-making by many other administrative institutions. I will call this model of highly intensive judicial intervention ‘judicial hyperactivism’.

Judicial Review in Israel: An Overview

Historical Background

Israel has no complete, formal constitution. When Israel was established in 1948 after 30 years of British Mandate, the question of forming a constitution was self-evident. The promise of a constitution was even mentioned in the Declaration of the Establishment of the State of Israel (1948) – the first official document of the state. Accordingly, the declaration vested in the first elected Knesset the power to form a constitution for the state. Owing to the strong disagreement between different political forces and against the background of national security crisis following the 1948 war, the first Knesset declined to form any constitution. Instead, it was decided, in 1950, that the constitution would be enacted gradually, chapter by chapter in the form of ‘Basic Laws’ in the future. While the Knesset did use its power to enact Basic Laws during the first 45 years of independence, most of these dealt with the institutional aspects of Israel’s constitutional system, and did not include entrenched clauses. Therefore, the power of the courts to review ordinary legislation on the ground of unconstitutionality was not regarded as a valid constitutional principle, and the English concept of parliamentary supremacy presided over jurisprudential thinking for more than four decades.

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