Fantasies of Liberalism and Liberal Jurisprudence: State Law, Politics, and the Israeli Arab-Palestinian Community

2000 ◽  
Vol 34 (3) ◽  
pp. 425-451 ◽  
Author(s):  
Gad Barzilai
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Judicial Review ◽  
Legal Culture ◽  
Social Needs ◽  
Judicial Activism ◽  
New Era ◽  
Basic Law ◽  
The Social ◽  
The Supreme Court

Some thirty years after the Bergman decision, Israel's constitutional structure and legal culture are still not responsive to minority needs or, more broadly, to the social needs of deprived communities. The liberal language and judicial review of Knesset legislation that were empowered by Bergman have not reconciled this problematic discrepancy between jurisprudence and social needs.The Bergman ruling signified the onset of a new era in Israel jurisprudence — the era of liberalism, in that it generated the notion of judicial counter-majoritarianism as the center, however problematic, of democracy. It was a modest ruling and a careful one, dwelling only on procedural deficiencies as cause for judicial abrogation of parliamentary legislation. Later on, after 1992, and propelled by the spirit of judicial activism, the Supreme Court adopted a more expansive judicial policy. It asserted the need for much more active judicial review of the substance of Knesset legislation and even the possibility of annulling it if it fell within the provisions of the Basic Law: Human Dignity and Freedom and the Basic Law: Freedom of Occupation.

The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

1999 ◽  
Vol 33 (3) ◽  
pp. 678-719 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Social Background ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Evidence ◽  
The Impact

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

Enforcement of Divorce Judgments in Jewish Courts in Israel: The Interaction Between Religious and Constitutional Law

2012 ◽  
Vol 4 (1) ◽  
pp. 1-68 ◽  
Author(s):  
Yehiel S. Kaplan
Keyword(s):  
Policy Analysis ◽  
Supreme Court ◽  
Human Dignity ◽  
Constitutional Law ◽  
The State ◽  
Coercive Measures ◽  
Basic Law ◽  
The Supreme Court ◽  
State Of Israel ◽  
Do So

In the State of Israel, Rabbinical courts are granted sole jurisdiction in the adjudication of marriage and divorce of Jews. In these courts, the husband presents the divorce writ of Jews, the get, to his wife on the occasion of their divorce at the end of the adjudication process. When Jews sue for divorce in Rabbinical courts, the courts occasionally determine that the man should grant his wife a get or that the wife should accept the get granted by her husband. Sometimes one spouse disobeys the ruling. Although the Rabbinical courts occasionally impose sanctions in an attempt to enforce divorce judgments, they are generally reluctant to do so. The implementation of inappropriate measures can lead to the conclusion that a given divorce is in fact a legally ineffectual coerced divorce. Consequently, the Jewish courts occasionally delay the imposition of these sanctions out of concern that inappropriate coercive measures invalidate the get, rendering the couple still legally married. The Supreme Court of Israel has ruled, though, that the Rabbinical courts in Israel should act in light of the constitutional principles in Basic Law: Human Dignity and Freedom. However, the Supreme Court of Israel has not clearly or specifically addressed the balance between the rights and obligations of the husband and wife in the process of enforcing divorce judgments, neither before nor after the enactment of the of the two important constitutional Basic Laws enacted in 1992. A detailed policy analysis of the sanctions against recalcitrant spouses in Rabbinical courts in Israel—in light of the principles of Jewish and constitutional law in the country—has not yet been undertaken. The aim of this essay is therefore to present the appropriate formula pertaining to the imposition of sanctions against recalcitrant spouses given the principles of Jewish and constitutional law. The formula is presented in light of constitutional law in Israel. However, it is also applicable in other countries with similar constitutional legislation, such as Canada, where legislation sometimes allows for the civil enforcement of Jewish divorce.

Constitutional Principles and Criminal Law

1993 ◽  
Vol 27 (1-2) ◽  
pp. 84-99 ◽  
Author(s):  
Mordechai Kremnitzer
Keyword(s):  
Criminal Law ◽  
Human Dignity ◽  
Judicial Review ◽  
Constitutional Law ◽  
Human Beings ◽  
New Era ◽  
Basic Law ◽  
Penal Law ◽  
The Subject ◽  
The Relationship

The enactment of Basic Law: Human Dignity and Freedom marks the beginning of a new era in Israeli law. This is a fitting opportunity to sketch an initial outline for the relationship between the constitution and the substantive criminal law, and the effect of constitutional principles on penal law. The truth be told, the constitutional principles already existed prior to the enactment of the Basic Law. And if, for example, we examine Prof. Feller's approach to criminal law, we cannot but be impressed by the highly developed constitutional element. Nevertheless, Basic Law: Human Dignity and Freedom does provide an excellent excuse for addressing the subject. Moreover, its enactment paves the way for certain interpretive changes in Israeli penal law, and because it allows for judicial review of the legislature of the future, some clarification is called for as to the limits of legislative power in the field of criminal law in light of fundamental constitutional principles.Basic to constitutional law and criminal law is a shared image of human beings. It is a conception of human beings as “morally” autonomous, with the basic faculty to understand reality and distinguish right from wrong, able to contribute to developing social norms and to understand and internalize them, competent to decide how to act and capable of realizing that decision.

scholarly journals Judicial Review, Judicial Revisionism and Judicial Responsibility

2019 ◽  
Vol 17 (1-2) ◽  
pp. 169-216
Author(s):  
Brian A. Langille
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Early Years ◽  
Supreme Court Of Canada ◽  
New Era ◽  
Second Best ◽  
Labour Relations ◽  
The Supreme Court ◽  
History Of ◽  
The Law

Judicial review of the decisions of labour relations boards has been a nagging problem for the Supreme Court of Canada for decades. The decision of the Court in Le Syndicat des Employés de Production du Québec et de L’Acadie v. Canada Labour Relations Board et al. provides an opportunity for and indeed provokes review of the work of the Court in dealing with this recurring problem. This essay begins by placing in perspective the concrete issue posed in the L’Acadie decision. But the particular facts of that case are used only as a vehicle to explore the nature of the problem of judicial review of labour decisionmakers and the history of the Court's handling of it. A fundamental thesis of this essay is that the Court's work can be best understood as comprising two distinct periods, the early years (pre-1979) and the new era (1979-1984?). This essay articulates the view that during the early years the Court developed a law of judicial review which was wholly inadequate both in functional and doctrinal terms. In the new era the Court simplified and reformed the law of judicial review of labour boards and labour arbitrators. It is only from the perspective of the Court's previous handling of the issue that the decision in L’Acadie can be truly understood. When so viewed the decision is perfectly inadequate. The case creates a new distinction based upon the old confusion of “jurisdiction”. This essay then develops the view that no theory of judicial review which revolves around the notion of “jurisdiction” can ever satisfactorily deal with the issues presented. In this respect the Court's own cases from the “new era” represent a much more sensible, if still a second best approach. Finally, suggestions for a legislative solution to the problem posed by L’Acadie are briefly explored.

scholarly journals When “Creeping Jurisdiction” Goes Awry: The Social Action Litigation to Ban Surrogacy

2018 ◽  
Author(s):  
Sital Kalantry
Keyword(s):  
Sexual Harassment ◽  
Supreme Court ◽  
Social Action ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Constitutional Democracy ◽  
Judicial Appointments ◽  
The Social ◽  
The Supreme Court ◽  
Scholarly Attention

Significant scholarly attention has focused on the strong role played by the Supreme Court in the Indian constitutional democracy. Exercising its powers of judicial review, the Court will invalidate legislation if determines it to be in violation of the constitution. In the judicial appointments case, for example, it invalidated legislation that would have reformed the judicial appointments system. When there is no law, but the Court finds that certain circumstances in society violate the fundamental rights of certain groups of people, it may issue its own legislative-like guidelines. It did this in the internationally famous Vishaka case, in which it created guidelines on sexual harassment.

scholarly journals ENTRE O ATIVISMO E (IN) OPERÂNCIA LEGISLATIVA: DELIBERAÇÃO E LEGITIMIDADE DAS DECISÕES DO SUPREMO TRIBUNAL FEDERAL EM SEDE DE CONTROLE DE CONSTITUCIONALIDADE EM UM CONTEXTO DE NOVOS ARRANJOS INSTITUCIONAIS E DE REVISÃO DA TEORIA DA SEPARAÇÃO DOS PODERES

2014 ◽  
pp. 104
Author(s):  
Bruno Denis Vale Castro ◽  
Paulo Roberto Barbosa Ramos
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Institutional Arrangements ◽  
Judicial Activism ◽  
Revision Theory ◽  
The Supreme Court ◽  
The Creation ◽  
New Devices

O presente artigo se propõe a analisar a deliberação interna e legitimidade das decisões do Supremo Tribunal Federal em sede de Controle de Constitucionalidade, observada uma conjuntura de revisão da Teoria da Separação dos Poderes e necessidade de criação de novos arranjos institucionais. Neste aspecto, tem-se como objetivo geral repensar o papel do Supremo Tribunal Federal em um modelo de controle de constitucionalidade, bem como sua legitimidade, justificação de suas decisões e deliberação interna, superando a dicotomia ativismo judicial/ deferência ao legislativo, tendo em vista a necessidade de readequação da Teoria da Separação dos Poderes, de modo que se leve a Constituição a sério e se responda ao anseio de desenvolvimento democrático-social brasileiro.Por fim, considera-se que a necessidade de que algum órgão delibere em sede de controle de constitucionalidade não significa que esta deva ser permanente ou que não possa haver alguma espécie de diálogo entre os poderes, concebendo assim, que Supremo Tribunal Federal não detém o monopólio da guarda da Constituição, havendo a possibilidade de um papel mais protagonista do legislativo, a partir da utilização dos mecanismos já existentes ou mesmo da criação de novos dispositivos que permitam diálogos institucionais.Palavras-chave: Ativismo judicial. Diálogos institucionais. Controle de constitucionalidadeBETWEEN THE ACTIVISM AND LEGISLATIVE (IN) EFFICIENY: DELIBERATION AND LEGITIMACY OF DECISIONS OF THE SUPREME COURT IN OFFICE OF JUDICIAL REVIEW IN THE CONTEXT OF NEW INSTITUTIONAL ARRANGEMENTS AND REVIEW OF THE THEORY OF SEPARATION OF POWERSABSTRACT: This article aims to analyze the internal deliberation and legitimacy of decisions of the Supreme Court in place of Judicial Review, observed a conjuncture Revision Theory of Separation of Powers and the need to create new institutional arrangements. In this respect, it has the general objective to rethink the role of the Supreme Court in a model of judicial review, as well as its legitimacy, justification of their decisions and internal deliberation, overcoming the dichotomy judicial activism /deference to the legislature, with a view the need to readjust the Theory of Separation of Powers, so that light the Constitution seriously and respond to the yearning of Brazilian democratic and social de-velopment. Finally, it is considered that the need for some body deliberates on seat of judicial review does not mean that it must be permanent or may not be some sort of dialogue between the powers, conceived so that the Supreme Court does not hold monopoly of safeguarding the Constitution , with the possibility of a more protagonist role of the legislature, from the use of existing or even the creation of new devices that allow institutional dialogue mechanisms.KEYWORDS: Judicial activism. Institutional dialogues. Judicial review.ENTRE EL ACTIVISMO Y LA (IN) OPERANCIA LEGISLATIVA: DELIBERACIÓN Y LA LEGITIMIDAD DE LAS DECISIONES DE LA CORTE SUPREMA EN LA SEDE DE CONTROL DE CONSTITUCIONALIDAD, EN UN CONTEXTO DE NUEVOS ARREGLOS INSTITUCIONALES Y LA REVISIÓN DE LA TEORÍA DE LA SEPARACIÓN DE PODERESRESUMEN: El articulo intenta analizar la deliberación interna y la legitimidad de las decisiones del Supremo Tribunal Federal en sede de Control de Constitucionalidad, observada una coyuntura de revisión de la Teoría de la Separa-ción de los Poderes y la necesidad de creación de nuevas relaciones institucionales. En ese aspecto, tiene como objetivo general pensar de otra forma el papel del Supremo Tribunal Federal en un modelo de control de constitu-cionalidad, y también su legitimidad, justificación de sus decisiones y deliberación interna, con la superación de la dicotomía activismo judicial/deferencia al legislativo, teniendo en vista la necesidad de readecuación de la Teoría de la Separación de los Poderes, de forma que se lleve a Constitución en serio y se presenta una respuesta a los deseos de desarrollo democrático-social brasileño. Al final, tiene en consideración la necesidad de que algún órgano delibere en sede de control de constitucionalidad no significa que este debe ser permanente o que no pueda haber alguna suerte de dialogo entre los poderes, concibiendo así, que el Supremo Tribunal Federal no detiene el mono-polio de la guardia de la constitución, habiendo la posibilidad de un papel más protagonista do legislativo, a partir de la utilización de los mecanismos ya existentes o mismo de la creación de nuevos dispositivos que vengan a permitir diálogos institucionales.PALABRAS CLAVE: Activismo judicial. Diálogos institucionales. Control de constitucionalidad

Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment

1997 ◽  
Vol 31 (4) ◽  
pp. 754-802 ◽  
Author(s):  
Omi
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Supreme Court Decision ◽  
Court Decision ◽  
District Court ◽  
Conditional Release ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
State Of Israel

Ganimat v. The State of Israel (1995) 49(iv) P.D. 589.The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His detention was requested on the grounds that he posed a “danger to society”. The Magistrate Court agreed to his arrest, holding that a custom has been established whereby custody may be justified in crimes which have become “a nationwide scourge”, including car theft. The District Court rejected the appeal. The appellant was granted permission to appeal the decision in the Supreme Court (decision of Dorner J. and Barak J.; Cheshin J. dissenting) and his conditional release was ordered. However, it was decided to hold Special Proceedings in order to discuss some of the important issues raised by the case. The principal constitutional question raised by the case was whether the Basic Law: Human Dignity and Liberty influences the interpretation of the existing law, in the present case, the law of arrest as regulated by the Law of Criminal Procedure.

Judicial Review and the Power of the Purse

2005 ◽  
Vol 23 (2) ◽  
pp. 451-458
Author(s):  
Michele Landis Dauber
Keyword(s):  
Supreme Court ◽  
New Deal ◽  
Judicial Review ◽  
Veto Power ◽  
Federal Spending ◽  
Opportunity To Respond ◽  
The Social ◽  
The Supreme Court ◽  
Social Security Act ◽  
History Of

Howard Gillman is unconvinced by my argument that New Deal lawyers turned to the history of federal disaster relief in support of key spending measures, such as the Social Security Act. Likewise, he is unpersuaded by Justice Stone's suggestion to Frances Perkins that she could “do anything under the taxing power.” I understand why Stone's comment grates on Gillman's modern ear; it grated on mine too. What is Stone talking about, and how could his comment be squared with our understanding of the pre–New Deal period as one of sharp limits to federal power imposed by the courts? Gillman's conviction that, in this era, the Supreme Court exercised substantial veto power over federal spending leads him to some critical misreadings of key cases and misstatements of fact. I appreciate the opportunity to respond to his comments and, in particular, to include some details regarding Supreme Court developments for which there was no space in the article itself.

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