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Israeli Administrative Law at the Crossroads: Between the English Model and the American Model

Published online by Cambridge University Press:  04 July 2014

Daphne Barak-Erez
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Abstract

Administrative law in Israel is at the crossroads. Historically, Israeli administrative law was born from English administrative law and like its English counterpart was developed against the background of two significant factors: the relative dearth of constitutional law concerning the protection of human rights on the one hand, and the power of the central government on the other. These two factors had traditionally contributed to the centrality of administrative law that underwent a radical change. First, constitutional law is now an independent source for the recognition and enforcement of human rights following the enactment of new basic laws on human rights—Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Second, privatization has changed completely the scope and pattern of activities conducted by administrative agencies in both countries.

This Article discusses the developments in Israeli administrative law as a result of these changes. In this context, it also evaluates the potential recourse to American administrative law, which has grown in the context of a well developed constitutional law and a relatively low level of government activity in the economic sphere.

The Article argues that the main focus of administrative law—in contrast to constitutional law—should be on the protection of interests (that are not considered human rights), on distributive justice, on procedural justice (in the context of bureaucratic decision-making) and on a broader scope of review (not limited to the protection of human rights), with a special emphasis on the executive branch. In the context of adapting to privatization, it also argues that administrative law should strengthen its focus on the challenge of regulation, on the protection of social rights and on the duties of “mixed” bodies, which are, in many cases, the product of privatization.

Type
Research Article
Information
Israel Law Review , Volume 40 , Issue 1 , Spring 2007 , pp. 56 - 71
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Stewart and Judy Colton Professor of Law, Chair of Law and Security, Faculty of Law, Tel-Aviv University.

I thank Jerry Mashaw and Susan Rose-Ackerman for discussing this Article with me.

References

1 Human Rights Act, C. 42 1998 (Eng.).

2 Basic Law: Freedom of Occupation, 1992, S.H. 90.

3 Basic Law: Human Dignity and Liberty, 1992, S.H. 150.

4 For discussions related to the relationship between the President and the agencies, see Kagan, Elena, Presidential Administration, 114 Harv. L. Rev. 2245 (2001)CrossRefGoogle Scholar; Calabresi, Steven G. & Prakash, Saikrishna B., The President's Power to Execute the Laws, 104 Yale L. J. 541 (1994)CrossRefGoogle Scholar; Stack, Kevin M., The President's Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263 (2006)Google Scholar.

5 See HCJ 1/49 Bejerano v. the Minister of Police [1949] IsrSC 2 80; HCJ 144/50 Shaib v. the Minister of Defense [1951] IsrSC 5 399; HCJ 5100/94 Public Committee against Torture v. the Government of Israel [1999] IsrSC 53(4) 817.

6 See HCJ 3/58 Berman v. the Minister of Interior [1958] IsrSC 12 1493.

7 HCJ 98/54 Lazarovitz v. the Food Supervisor of Jerusalem [1956] IsrSC 10 40.

8 The leading precedent in the area of judicial review of legislation is CA 6821/93 United Hamizrahi Bank Ltd. v. Migdal Kfar Shitufi [1995] IsrSC 49(4) 221. For more background, see Barak-Erez, Daphne, From an Unwritten to a Written Constitution: the Israeli Challenge in American Perspective, 26 Colum. Hum. Rts. L. Rev. 309 (1995)Google Scholar.

9 See, e.g., FH HCJ 4466/94 Nuseiba v. the Minister of Finance [1995] IsrSC 49(4) 68, 87-91; HCJ 5016/96 Horev v. the Minister of Transportation [1997] IsrSC 51(4) 1, 40-42. For the impact of the Human Rights Act on English administrative law, cf. Craig, Paul, The Courts, the Human Rights Act and Judicial Review, 117 L.Q.R. 589, 594–96 (2001)Google Scholar; Austin, R. C., The Impact of the Human Rights Act 1998 Upon Administrative Law, 52 Current Legal Problems 200 (1999)CrossRefGoogle Scholar.

10 This emphasis on interests is exemplified too by the relatively new development of protecting substantive legitimate expectations also in English Law. See Thomas, Robert, Legitimate Expectations and Proportionality in Administrative Law (2000)Google Scholar; Schonberg, Soren, Legitimate Expectations in Administrative Decision-Making (2000)CrossRefGoogle Scholar.

11 This distinction between rights and interests is not contrary to the view that rights also represent interests. In other words, I accept the observation suggested by Raz that: “[t]o say that a person has a right is to say that an interest of his is sufficient ground for holding another to be subject to a duty….” Raz, Joseph, Ethics in the Public Domain 243 (1994)Google Scholar. Still, once some interests are recognized as rights, they are treated by the legal system differently and enjoy a presumptive advantage when they contradict with other interests.

12 The leading Israeli precedent which regards distributive justice as a fundamental principle in the area of administrative decision-making is HCJ 244/00 Association of New Dialogue for Democratic Dialogue v. the Minister of National Infrastructures [2002] IsrSC 56(6) 25.

13 For the concern with the bureaucratization of administrative authorities, see also Freedman, James O., Crisis and Legitimacy in the Administrative Process, 27 Stan. L. Rev. 1041, 1064–68 (1975)CrossRefGoogle Scholar.

14 Cf. Frug, Gerald E., The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276 (1984)CrossRefGoogle Scholar; Frug, Jerry, Administrative Democracy, 40 U. Toronto L. J. 559, 583 (1990)CrossRefGoogle Scholar.

15 These procedures include the notice and comment procedure set by the original provisions of the American Administrative Procedure Act, 5 U.S.C. § 553(b) (1946), as well as more advanced procedures such as negotiated rule making (reg-neg), recognized by the Negotiated Rulemaking Act, 5 U.S.C. §§ 561-70 (1990). The classical article on the opening of the American administrative process to participation and interest representation is Stewart, Richard B., The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975)CrossRefGoogle Scholar.

16 Freedom of Information Law, 1998, S.H. 226.

17 Although, unfortunately, this awareness is, still, at its first steps. See Rabin, Yoram & Peled, Roy, Between FOI Law and FOI Culture: The Israeli Experience, 1(2) Open Gov't: J. Freedom Info. 41 (2005)Google Scholar. In this context as well there is much to learn from the experience of the American Freedom of Information Act, 5 U.S.C. § 552 (1966).

18 In Israel, the constitutional right to equality is part of the constitutional protection of the right to human dignity. See HCJ 6427/02 The Movement for Quality Government in Israel v. the Knesset [November 5, 2006] (not yet published), and HCJ 7052/03 Adalah—The Legal Center for Arab Minority Rights v. the Minister of Interior [May 14, 2006] (not yet published).

19 See, e.g., HCJ 509/80 Yunas v. the General Director of the Prime Minister's Office [1981] IsrSC 35(3) 589.

20 HCJ 389/80 Dapey Zahav Ltd. v. the Broadcasting Authority [1980] IsrSC 35(1) 421.

21 For example, the Israeli Supreme Court used the proportionality principle for the review of the decisions regarding Israel's security barrier. See HCJ 2056/04 Beit Sourik Village Council v. the Government of Israel [2004] IsrSC 58(5) 807; HCJ 7957/04 Mara'abe v. the Prime Minister of Israel [September 15, 2005] (not yet published).

22 In some cases, they are even used alternatively. See Horev v. the Minister of Transportation, supra note 9.

23 This critique is largely valid concerning the understanding of other areas of law as well. In a similar manner, the study of private law is usually based on cases considered to be precedents rather than on decisions of lower courts. An interesting comparison worth mentioning here is the critique raised in the United States against the focus on federal administrative law (which is mainly concerned with powerful federal bodies), while ignoring the important area of state administrative law, which is highly relevant to most lawyers (in contrast to Washington lawyers). See Bonfield, Arthur Earl, State Law in the Teaching of Administrative Law: A Critical Analysis of the Status Quo, 61 Tex. L. Rev. 95 (1982)Google Scholar.

24 See Pound, Roscoe, Law in Books and Law in Action, 44 Am. L. Rev. 12 (1910)Google Scholar; Abel, Richard L., Law Books and Books About Law, 26 Stan. L. Rev. 175, 187 (1973)CrossRefGoogle Scholar.

25 On the gap between administrative law doctrines and the administrative reality, see Rawlings, H. F., Judicial Review and the “Control of Government,” 64 Pub. Adm. 135 (1986)CrossRefGoogle Scholar; Kerry, Michael, Administrative Law and Judicial Review—The Practical Effects of Developments Over the Last 25 Years on Administration in Central Government, 64 Pub. Admin. 163 (1986)CrossRefGoogle Scholar; Cranston, Ross, Reviewing Judicial Review, in Administrative Law & Government Action—The Courts and Alternative Mechanisms of Review 45, 69–75 (Richardson, Genevra & Genn, Hazel eds., 1994)Google Scholar; Richardson, Genevra & Sunkin, Maurice, Judicial Review: Questions of Impact, 22 Public Law 79 (1996)Google Scholar; Harlow, Carol & Rawlings, Richard, Law and Administration 565–73 (2nd ed. 1997)Google Scholar; Le Sueur, Andrew & Sunkin, Maurice, Public Law 470–4 (1997)Google Scholar; Sunkin, Maurice & Pick, Kathryn, The Changing Impact of Judicial Review: The Independent Review Service of the Social Fund, Pub. L. 736 (2001)Google Scholar.

26 For the significance of tribunals, see also Harlow & Rawlings, supra note 25, at 456-94.

27 Peter Strauss, a prominent scholar of administrative law in the United States, quoted a Washington lawyer specializing in this area, who claimed that most of his professional activity is in the informal area of negotiating with the government. See Strauss, Peter L., Teaching Administrative Law: The Wonder of the Unknown, 33 J. Legal Educ. 1, 8 (1983)Google Scholar. Another argument raised in this context is that the cases reaching judicial review represent “pathological” situations and, therefore, are not representative of public administration in general. See Bouchard, Mario, Administrative Law Scholarship, 23 Osgoode Hall L. J. 411, 414 (1985)Google Scholar.

28 Barak-Erez, Daphne, Applying Administrative Law to Privatization in Israel, in Israeli Reports to the XVI International Congress of Comparative Law 47 (Rabello, Alfredo Mordechai ed., 2006)Google Scholar.

29 For the purposes of regulation, see Breyer, Stephen, Regulation and its Reform 15–35 (1982)Google Scholar; Ogus, Anthony I., Regulation—Legal Form and Economic Theory 27–54 (1994)Google Scholar. For the practice of regulation in England, see Prosser, Tony, Regulation, Markets, and Legitimacy, in The Changing Constitution 229 (Jowell, Jeffrey & Oliver, Dawn eds., 4th ed. 2000)Google Scholar.

30 For arguments in favor of a focus on regulation, see Rabin, Robert L., Administrative Law in Transition: A Discipline in Search of an Organizing Principle, 72 NW. U. L. Rev. 120 (1977)Google Scholar; Tomain, Joseph P. & Shapiro, Sidney A., Analyzing Government Regulation, 49 Admin. L. Rev. 377 (1997)Google Scholar. This new focus must include also reference to the possibility of exploitation of administrative powers of regulation for purposes other than the attainment of its original goals, by organized interest groups, a process described and analyzed public choice theorists. See Ogus, supra note 29, at 55-75; Farber, Daniel A. & Frickey, Philip P., Law and Public Choice—A Critical Introduction (1991)CrossRefGoogle Scholar; Symposium on Public Choice, 74 Va. L. Rev. 167, 167–518 (1988)Google Scholar. For the need to highlight this perspective in the study of administrative law in England, see also McAuslan, Patrick, Public Law and Public Choice, 51 Mod. L. R. 681 (1988)CrossRefGoogle Scholar; Harlow, Carol, Changing the Mindset: The Place of Theory in English Administrative Law, 14 Oxford J. Legal Stud. 419, 433 (1994)CrossRefGoogle Scholar.

31 See Galligan, D. J., Judicial Review and the Textbook Writers, 2 Oxford J. Legal Stud. 257 (1982)CrossRefGoogle Scholar.

32 For discussions of the regulatory new reality, see Commercial Regulation & Judicial Review (Black, Julia et al. eds., 1998)Google Scholar.

33 See HCJ 7721/96 Union of Insurance Assessors v. the Inspector of Insurance [2001] IsrSC 55(3) 625.

34 See Rabin, Yoram & Shany, Yuval, The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?, 37 Isr. L. Rev. 299 (2004)CrossRefGoogle Scholar; Barak-Erez, Daphne & Gross, Aeyal M., Social Citizenship: The Neglected Aspect of Israeli Constitutional Law, in Exploring Social Rights: Theory and Practice (Barak-Erez, Daphne & Gross, Aeyal M. eds., forthcoming 2007)Google Scholar.

35 See Forbath, William E., The Constitution and the Obligations of Government to Secure the Material Preconditions for a Good Society—Constitutional Welfare Rights: A History, Critique and Reconstruction, 69 Fordham L. Rev. 1821 (2001)Google Scholar.

36 See Diller, Matthew, The Revolution in Welfare Administration: Rules, Discretion, and Entrepreneurial Government, 75 N. Y. U. L. Rev. 1121 (2000)Google Scholar; Barak-Erez, Daphne, The Israeli Welfare State: Growing Expectations and Diminishing Returns, in The Welfare State, Globalization and International Law 103 (Benvenisti, Eyal & Nolte, Georg eds., 2004)CrossRefGoogle Scholar.

37 Compulsory Education Law, 1949, S.H. 287.

38 See HCJ 2599/00 Yated v. the Ministry of Education [2002] IsrSC 56(5) 834; HCJ 6973/03 Marzianno v. the Minister of Finance [2003] IsrSC 58(2) 270.

39 Provided by the National Health Insurance Law, 1994, S.H. 156.

40 For this new reality of public administration, see also Freeman, Jody, Private Parties, Public Functions and the New Administrative Law, in Recrafting the Rule of Lawc: The Limits of Legal Order 331 (Dyzenhaus, David ed., 1999)Google Scholar.

41 See HCJ 731/86 Micro Daf v. the Israeli Electricity Company Ltd. [1987] IsrSC 41(2) 449; HCJ 294/91 Hevra Kadisha “Jerusalem Community” v. Kastenbaum [1992] IsrSC 46(2) 464.

42 See, e.g., Barak-Erez, Daphne, A State Action Doctrine for an Age of Privatization, 45 Syracuse L. Rev. 1169 (1995)Google Scholar; Minow, Martha, Partners, Not Rivals—Privatization and the Public Good (2002)Google Scholar; Metzger, Gillian E., Privatization as Delegation, 103 Colum. L. Rev. 1367 (2003)CrossRefGoogle Scholar. For an administrative law focused analysis see Freeman, Jody, Collaborative Government in the Administrative State, 45 UCLA L. Rev. 1 (1997)Google Scholar.

43 “Administrative law theory has struggled to keep pace with changes in public administration, unsure whether to treat them merely as the context for a relatively self-contained system of administrative law… or categorize them as innovations to the structure and values of administrative law.” Harlow & Rawlings, supra note 25, at 150.