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The Judicialization of the Public Sphere in Israel*

Published online by Cambridge University Press:  04 July 2014

Itzhak Galnoor
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Abstract

Judicialization in this article is the predisposition to find a solution in adjudication to types of dispute that had been settled previously in a socio-economic-political framework. “Legislative judicialization” (or over-legalization) is also a predisposition according to which the variegated spheres of our lives need to be regulated through a formal code of laws. In the political arena the questions relating to judicialization are: Is the assumption that legal decisions are able to save politics – mainly democratic values and abiding by the derived rules of the game – a valid one? Can one institution of the political system (broadly defined) – the law court – rescue the two other, the parliament and the government, in difficult times? Assuming that “successful” intervention by the judicial institution will cause the other two to abide strictly by the rule of law, could it at the same time curb their effective steering capacity, which is their main task? And conversely, if the steering capacity and the leadership ability to make “good” decisions are so flimsy – would it not be desirable to have judicial review to ensure that the political institutions at least make “proper” decisions that are not extremely unreasonable? These are the main questions discussed in this article.

The findings regarding the judicialization of politics point out not only to the eagerness of the law courts, but mainly to the weakening of the political system, to the point where the Knesset, the Government and the political parties find it most difficult to function without the assistance given them by the law courts. And yet, did the judicial branch “save” the other two branches? Obviously, this has not happened thus far. In Israel, a profound democratic deficit exists in the political system due to the fact, among other things, that the political institutions are incapable of coping with the continuing internal and external crises. In Israeli society, judicialization is but a symptom of a wide-ranging predicament that requires a richer bill of fare than more laws and more adjudication. It consists of: the social grounding of democratic values; renewal of trust and confidence in the political institutions; strengthening the political parties; recognition of the contribution of civil organizations and the media; strengthening the local authorities, and more. This is the real arena, because there is a breaking point to the over-judicialization of the public sphere beyond which lies total anarchy.

Type
Research Article
Information
Israel Law Review , Volume 37 , Issue 2-3: Special Issue in Memory of Haim H. Cohn , Summer–Fall 2004 , pp. 500 - 542
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

**

Herbert Samuel Professor of Political Science, Hebrew University of Jerusalem; Senior Fellow, The Van Leer Institute, Jerusalem.

I was assisted in writing the English version of this article by Advocate Amnon Cavari, a graduate student at the Department of Political Science, Hebrew University of Jerusalem. I would like to thank the Levi Eshkol Institute at The Hebrew University for providing assistance for this research.

References

1 Based on the ruling handed down by Judge Gideon Ginat in the Haifa District Court, Case no. 6655/02 Visuli v. the Hebrew Reali High School, Haifa (10.5.02), application by the pupils' parents on 9 May 2002; and the press reports: Ratner, David, “Parents: Cancel the School Play that Calls for Refusal to Serve,” Haaretz, 10.5.2002 Google Scholar; Ratner, David, “Hair Presented at the Reali High School Despite Protest,” Haaretz, 12.5.2002 Google Scholar; Tal, Eliran, “Minister of Education: The Reali High School and its Educational Personnel Have Failed,” Yediot Haifa, 13.7.2002 Google Scholar.

2 Tate, Chester Neal, “Why the Expansion of Judicial Power?” in Tate, Chester Neal and Vallidner, Torbjörn, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 27, at 28–32 Google Scholar.

3 A further aspect of social judicialization is the “depth of litigation.” For example: The number of lawyers and the quantity of cases being dealt with in the courts – in proportion to the size of the population. By these two indicators, Israeli society has become very litigious. An interesting debate has been taking place recently in the United States on the question of who is authorized to give legal advice. The proposal of the American Bar Association to forbid persons who are not lawyers to give legal advice has raised objections by organizations, the mass media, business and the Federal government regulation agencies. See: Liptak, Adam, “US Proposal to Limit Who May Give Legal Advice” New York Times, 3.2.2003, at 11 Google Scholar.

4 On “deviations” in the political system see Zamir, Itzhak, “Public Law – Revolution or Development?” (1990) 19 Mishpatim 563, at 563 [in Hebrew]Google Scholar.

5 See Galnoor, Itzhak, “Israeli Democracy at the Crossroads,” in Stampler, Shmuel, ed. People and State – The Israeli Society (Tel Aviv, Ministry of Defense, 1989) 9, at 9–20 [in Hebrew]Google Scholar.

6 See Galnoor, Itzhak, The Beginnings of Israeli Democracy: Model of Political Communication (Tel Aviv, Am Oved, 1985) 272–283 [in Hebrew]Google Scholar.

7 In my usage, “politics” is an absolutely neutral term – a means for translating the multiple desires and interests in society into authoritative decisions, in order to attain common goals. Many jurists who have defined their understanding of “politics” have inserted some negative connotations between the lines (see for example, Barak, Aharon, “The Essence of Judicial Activism” (1993) 5 Iyyunei Mishpat 5, at 15 [in Hebrew]Google Scholar. Even Ariel Rosen-Zvi, who differed with conventional norms in legal perceptions, ignored the goals of politics and considered it only as “a means for control and struggle over positions of power” (January 1993) 17(3) Iyyunei Mishpat 689, at 705 [in Hebrew]Google Scholar. On the limits of jurisdiction as compared with the limits of law and the implications for politics see, Bendor, Ariel, “Are there any Limits to Justiciability?” (1997) 7 Ind. Int'l & Comp. L. Rev. 311, at 313 Google Scholar.

8 In its early stages, Israeli law was mainly based on British law, from which it also inherited jurisprudence and the legal system, as well as the clear separation between the spheres of “politics” and “law”. Over the years, original Israeli laws have developed with some influence of continental law, and strong influence by American law. The structure of the legal system in Israel is hierarchical, uniform and centralized, with the Supreme Court at the top of the legal pyramid, dominating the development of the law. The Supreme Court also fulfills the unique role of the High Court of Justice – the principal and final instance in all matters relating to government and administration affairs.

The legal system in Israel is first and foremost not corrupt. It is not tied to political-parties, has broad independent jurisdiction and enjoys credibility and prestige within the Israeli public, compared with all other public institutions. The process of appointing judges – through a special Appointment Committee of which the three branches of power are represented – stresses the professional qualifications of the judges and further contributes to their autonomous status.

Politics in Israel has developed along different lines, influenced mainly by the rapid tempo of events and the increasing difficulties to attain authoritative and binding decisions. Israel does not have a written constitution, and relies instead on a number of Basic Laws that provide “constitutional” rules. The existing Israeli law is mostly based on primary and secondary legislation and to a lesser extent on the rulings of the Supreme Court. Israel is a parliamentary democracy. Its House of Representatives, the Knesset, is elected for a period of four years by a system of proportional representation. The social heterogeneity and the election system have resulted in a multitude of political parties, forcing all the governments in Israel since the establishment of the state, to be based on coalitions. Over the years, and as a consequence of changes within the society and the economy, the political system has become unstable, especially as a result of the weakening of the political parties. In 1992 an attempt was made to strengthen the power of the executive and to strengthen governance through the direct popular election of the Prime Minister. This regime change led to the opposite result – increased instability and added further difficulties to governability. It also increased the number of petitions to the High Court of Justice regarding political issues. Thus, in 2001, less than ten years after the reform, direct election was annulled and Israel returned to the previous parliamentary regime.

9 The above definition is similar to that proposed by Itzhak Zamir for “judicial activism”: a readiness to find a judicial solution for a new problem ( Zamir, Itzhak, “Judicial Activism: Decision to Decide” (1993) 17 Iyyunei Mishpat 647, at 647 [in Hebrew])Google Scholar. However, “judicial activism” is a restricted term connected more to the temperament of the judge than to the manner in which the system functions. See Barak, Aharon, “The Essence of Judicial Activism” (1993) 17 Iyyunei Mishpat 475, at 476 [in Hebrew]Google Scholar. For a survey of the various approaches to this matter see Barzilai, Gad, “Judicial Hegemony, Political Polarization and Social Changes” (1999) 2 Politika 31, at 32–34 Google Scholar [in Hebrew] For a theoretical discussion see: Sweet, Alec Stone, “Judicialization and the Construction of Governance” (1992) 2 Comparative Political Studies 147, at 147–148 Google Scholar; Parush, Adi, “Judicial Activism, Judicial Positivism and Natural Law – Judge Barak and the Doctrine of the Omnipotent Knesset” (1993) 17 Iyyunei Mishpat 717, at 717 [in Hebrew]Google Scholar; Maoz, Asher, “On the Limits of Jurisdiction: Knesset, Government, Law Court” (2000) 8 Plilim 389, at 413 [in Hebrew]Google Scholar.

10 Shapiro, Martin, Courts: A Comparative and Political Analysis (Chicago, University Press of Chicago, 1986), at 1–64 Google Scholar.

11 Lafon, Jacqueline Lucienne, “France,” in Tate, Chester Neal and Vallidner, Torbjörn, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 289, 289–305 Google Scholar; Shapiro, Martin and Sweet, Alec Stone, On Law, Politics and Judicialization (Oxford, Oxford University Press, 2002), at 79–83 CrossRefGoogle Scholar.

12 Sunkin, Maurice, “The United Kingdom” in Tate, Chester Neal and Vallidner, Torbjörn, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995), at 67 Google Scholar. Griffith, John attributes this to the loss of respect and power by the judicial system in GB, in Judicial Politics Since 1920, (Oxford, Blackwell, 1993), at 191 Google Scholar.

13 Conant, Lisa, Justice Contained: Law and Politics in the European Union (Ithaca, New York, Cornell University Press, 2002)Google Scholar. On the idea of parliamentary autonomy in Europe and in Germany and Spain as opposed to England, see Navot, Suzie, “Twenty Years after the ‘Sarid’ test: Judicial Review of Parliamentary Processes Revisited” (2003) 19 Mehkarei Mishpat 721, at 727–743 [in Hebrew]Google Scholar.

14 The reference is to the internal domestic law of the states of Europe. However, the European Union has developed an indirect mechanism of judicial review of legislation and administrative actions in the national courts, based on European legislation. This mechanism has been accepted through the development of jurisprudence by of the European High Court of Justice, under which the national law courts have the authority to carry out judicial review based on European legislation. Article 234 of the Amsterdam Convention established that the guiding principle is that the European Court of Justice (ECJ) has the supreme authority in interpreting the Union's Convention and thus adopted the European mechanism of Preliminary Ruling in constitutional matters. The advantage of Article 234 is the broad standing rights given each individual, corporation or company to raise constitutional issues concerning the relationship between the European law and national law, through the national law courts. The use of an indirect mechanism led – through adjudication and gradual change – to a situation whereby the European and national courts fulfill a central role in shaping the European Union, and in raising the status of the national courts. This is a double innovation. First, judicial review now exists in every EU court, deviating from the previous European point of view of either not allowing judicial review, or in constitutional law courts only. Second, a country whose laws have been annulled finds it most difficult to change the court's ruling since it is bound by the supremacy of European legislation, changes to which require broad inter-nation agreement. See Slaughter, Anne-Marie, Sweet, Alec Stone and Weiler, Joseph H. H., eds. The European Court and National Courts – Doctrine and Jurisprudence (Oxford, Hart Press, 1998)Google Scholar.

15 In the Netherlands, whose regime is similar in many ways to that of Israel, the expansion of judicialization has not changed the regime and the division of powers between the branches of government. The expansion has been in the main an outcome of the European Convention (see note 15 above) that increased the involvement of the High Court of Justice in defending the civil rights of the citizens. See Kate, Jan Ten and Van Koppen, Peter J., “The Netherlands: Toward a Form of Judicial Review” in Tate, Chester Neal and Vallidner, Torbjörn, eds. The Global Expansion of Judicial Power (New York, NewYork University Press, 1995) 369, at 369–380 Google Scholar.

16 For a concise presentation, see Avnon, Dan, “Referendum in the Era of Upheaval of the Regime” (2000) 5 Politika 29, at 28 [in Hebrew]Google Scholar. For a comparison of different types of regimes, see Linz, Juan Jose and Valenzuela, Arturo, eds. The Failure of Presidential Democracy (Baltimore, The John Hopkins University Press, 1994)Google Scholar.

17 See the statement of Supreme Court President Barak: “Can the judge be recognized as a minor partner linking the law and the public in interpreting legislation?” The answer to this question is not at all simple. The main controversy is between the model of partnership – even a minor partnership – and the model of the agency. According to the model of the agency, the judge is the agent of the legislator. He is obligated to function according to his instructions. He is like a junior officer obligated to carry out his commander's orders. This approach is completely erroneous. In my opinion, the judge is not an agent receiving orders, and the legislator is not an agency giving orders to his emissary. Both are organs of the state fulfilling duties: one legislates and the other interprets. Indeed, legislation creates law, and this law should serve as a link between the law and life”, (November 2003) Iggeret 25 The National Academy of Sciences, 10–13, at 11 [in Hebrew].

18 To the warranted questions: what is the meaning of “difficult times” and who decides that there is “much” to be corrected, I will reply that my purpose is only to present the corrective role of the courts in contrast to those who consider them as “the architects of societal changes.” See Barak, Aharon, “The Rule of Law” in Shetreet, Shimon, ed. Lectures at Study Days for Judges 1976: Innovations and Developments in Legislation and Law (Jerusalem, The Sacher Institute, 1977) 15, at 25 Google Scholar.

19 Avnon, Dan, “‘The Enlightened Public’: Jewish and Democratic or Liberal and Democratic?” (1996) 3 Mishpat u'Mimishal 417, at 417–451 [in Hebrew]Google Scholar.

20 Barak, Aharon, “The Constitutional Revolution: Basic Rights Protected” (1992) 1 Mishpat u'Mimshal 9, at 15 [in Hebrew]Google Scholar. Conversely, the corrective role is in keeping with the important recommendation of President of the Israeli Supreme Court: “If one wishes to maintain democracy, one must struggle for it” Barak, supra n. 19. From this it can perhaps be understood that the increase of judicial review is in the main a byproduct of the defense of democracy and human rights.

21 Gavison, Kremnitzer and Dotan, supra n. 1, at 149–151.

22 I will not deal here with the related issue – the court's review of the legality of legislation.

23 Basic Law: Jerusalem, The Capital of Israel 1980, L.S.I. 186; The Good Samaritan Law (in Hebrew: “Do not profit by the blood of your fellow,”) L.S.I. 5758–1998, 245; Basic Law: The Government (Amendment No. 10), 5761–2001, L.S.I. 48; Law for the Early Liberation of Prisoners (Law Amendment), 5762–2001, L.S.I. 138; Law for Liberation on Probation (Amendment), 5762 2001, L.S.I. 47; The Galilee Law, 5748–1987, L.S.I. 42, at 17; The Citizenship and Entry into Israel Law -temporary provision SH 1901 5763–2003, 544.

24 On governmental illegality that leads to civil illegality and influences the general atmosphere of the lack of culture of governance by law see, Rosen-Zvi, Ariel “Culture of Law” (1993) 17(3) Iyyunei Mishpat at 713 [in Hebrew]Google Scholar.

25 See: Avnon, Dan, “The Israel Basic Laws, (Potentially) Fatal Flaw” (1999) 32(4) Is. L.R. at 535–566 CrossRefGoogle Scholar. In my opinion too, the judgments handed down thus far have not contributed to the clarification of the issue. On the contrary: they may have contributed to the public discourse that presumes the existence of an apparent contradiction between “Jewish” and “democratic.”

26 Regarding the latter matter, see H.C.J. 96/4446 the Movement for Quality of Government and Itzhak Galnoor v. the Government of Israel, P.D. 50 (3) 705 [in Hebrew].

27 On the possibility of political review on the constitutionality of law, see Barak, Aharon “Judicial Review of the Constitutionality of Law” (1996) 3 Mishpat u'Mimshal 403, at 405 [in Hebrew]Google Scholar.

28 A pertinent example that occurred in the new political system of Russia is the recent struggle between the parliament and the constitutional court. See Sharlet, Robert, “Russia's Second Constitutional Court: Politics, Law and Stability” in Bonnell, Victoria E. and Breslauer, George W., eds. Russia in the New Century (Boulder Colorodo, Westview Press, 2001) 59, at 59–77 Google Scholar. My thanks to Prof. Itzhak Brodni who brought this to my attention.

29 H.C.J. 1601/90 Schalit v. Peres P.D. 44(3) 353.

30 The Law of Government, 5761–2001, L.S.I. 168, was passed adjunct to the Basic Law: the Government. Daphna Barak-Erez has written on the obligation of disclosure, that the ruling by the High Court of Justice has made a certain positive contribution to public life, but not to the extent of the implementation of political agreements, "“The Judiciability of Politics” (2000) 8 Plilim 367, at 374 [in Hebrew]Google Scholar. For a different approach that does not consider political agreements as contracts that can be enforced by the court, see Galnoor, Itzhak, “Political Agreements” (1993) 38 Mimshal veYachasim Beinleumiim, at 97 [in Hebrew]Google Scholar; and Maoz, supra n. 10, at 414–423.

31 L.S.I. 5751–1998, L.S.I. 226. See Galnoor, Itzhak, introduction to Dan Caspi and Yehiel Limor, (1993) 7 Hametavchim 9 Google Scholar; Segal, Ze'ev, The Right to Know in the Light of the Freedom of Information Law (Tel Aviv, The Israel Bar Association, 2000) [in Hebrew]Google Scholar.

32 H.C. J. 3094/93 The Movement for Quality of Government in Israel v. the Government of Israel, P.D. 47(5) 404, at 422.

33 In Israel, the disqualification of political parties comes within the authority of the Central Elections Committee, whose composition reflects the party composition of the Knesset. The High Court of Justice maintains control over decisions of the Central Elections Committee. I originally supported a restricted approach to the Political Parties Law, see Galnoor, Itzhak, “The Need for a Political Parties Law: A Legal Framework for Parties in Israel,” (Jerusalem, Knesset Publications, 1988) 29–37 Google Scholar.

34 This clause outlines the threats as perceived at that time and in accordance with the “dangerous” political parties that contested the elections in the 1980s. Accordingly, in the following elections of 1988 (and in elections after that), the participation of the Kach political party was not permitted on the grounds specified in clause 7a (2) and (3) of Basic Law: The Knesset (LC 1/88 Neiman v Chairman of the Elections Committee for the 12th Knesset P.D. 42(4), 177]. Recently, clause 7a of Basic Law: The Knesset was amended in three matters that reflect a change of attitude toward the “threat” to Israeli politics. For instance, the additional preventative regarding support of armed struggle against the State of Israel. Following this amendment, the Court has considered the disqualification of political parties and candidates, but in all these cases ruled that the prevention of participation in the elections can be denied only when there is an “almost definite threat” to the existence of the State (H.C.J. 11280/02 The Central Elections Committee et al v. Knesset Member Ahmad Tibi et.al. P.D. 57(4) 1, at 1318.

35 C.A. 189/76 Israel Labor Party v. Levin et. al. P.D. 31(2) 265.

36 H.C.J. 5364/94 Wellner v. Chairman of the Israel Labor Party, P.D. 49(1) 758. Another aspect of this issue was raised in cases when the court was required to intervene in coalition agreements and other politiC.A.l agreements between parties.

37 At that time, I supported a restrictive approach to the Political Parties Law, see Galnoor, Itzhak, “The Need for a Political Parties Law,” in A Legal Framework for Political Parties in Israel (Jerusalem, Knesset Publication, 1988) at 29–37 [in Hebrew]Google Scholar.

38 Rahat, Gideon and Sher-Hadar, Netta, How are Knesset Members Elected? (Jerusalem, The Israel Democracy Institute, 1999) especially 205–228 [in Hebrew]Google Scholar. Serious irregularities in the primary elections in the Likud party prior to the 2003 Knesset elections led to a police investigation and prosecution of Knesset Member Naomi Blumental.

39 This does not imply agreement with the statement of Justice Moshe Landau that it was this tendency that brought about the “raising of the law court to the epitome of the governing apparatus of the state” ( Landau, Moshe, “Judicial Activism” (2002) 7 Hamishpat 535, at 536 [in Hebrew]Google Scholar.

40 In the adjudication relating to MK Pinhasi, the court presented a number of approaches that constitute a consistent conceptualization. H.C. J. 1843/93 Pinhasi v. Knesset Israel, P.D. 48(4) 492 annulled the ruling of the Knesset plenary to revoke his immunity on the procedural grounds that the Knesset Members had not fully examined the relevant material. Although this was a review of the semi-judicial function of the Knesset, the directive to Knesset Members to “do their homework” diligently was a needless intervention. After they had read the material, the Knesset Members reacted by deciding not to revoke the immunity of MK Pinhasi. However, in H.C.J. 7637/97 The Movement for Quality of Government v. the Attorney General P.D. 52(4) 547, the Court decided not to intervene in the Knesset decision to appoint MK Pinhasi, who in the meantime had been convicted of “crimes with dishonor”, to the position of chairman of the Knesset Committee. Since the statutes of the Knesset have no restricting directives regarding the office of chairmen of committees, the court preferred to maintain the division of powers with the Knesset and to leave the convicted chairman in his position. Prior to this, in H.C.J. 4267/93 Amitai – Citizens for Proper Administration and Integrity v. the Prime Minister P.D. 47(5) 441, ruled that MK Pinhasi should be deposed from his position as Deputy Minister because an indictment had been drawn up against him (for the same crimes). This adjudication by the High Court of Justice was considered as over–readiness to intervene in the discretionary domain of the executive branch, rather than of the legislative (Segal, supra, n. 32, at 342). It is difficult to justify the court's distinction between the task of chairman of the Knesset Committee and that of Deputy Minister, since the government functions with the confidence of the Knesset, including Deputy Ministers who must be Knesset Members. See Gavison, Kremnitzer and Dotan, supra n. 1, at 39–40; Navot, Suzie, “From the Ginossar Affair to the Pinhasi Affair: On Eligibility and Discretion” (2001) 5 Hamishpat, at 85–115 [Hebrew]Google Scholar.

41 H.C.J. 5973/92 The Human Rights Association in Israel v. The Minister of Defense P.D. 47(1) 267.

42 See also, the discussion in Maoz, supra, n. 10, at 429–431; Bendor, supra, n. 8, at 350–351.

43 For a similar approach see Kremnitzer, Mordechai, “Deport the Deportation: Some Comments on the Judgment on Deportation, the High Court of Justice, Law, Politics and Ethics” (1994) Plilim 17, at 29 [in Hebrew]Google Scholar.

44 In the past, prior to the era of “activism,” the court did fulfill this role, as pointed out by Judge Landau: “the High Court judgment laid the foundation for many valuable principles of our administrative law, but never abandoned the firm ground of positive law and in the absence of such a law, its creative judgment filled open ‘gaps’ in the existing law” (Landau, supra, n. 40, at 537).

45 On this subject too, I will not be able to discuss many issues, such as the multiplicity of State Inquiry Commissions; the expansion of the function of the State Comptroller, including the authority to punish transgressions related to political party financing; the status of the binding opinions issued by the Attorney General; the expanding roles of Legal Advisors in the government Ministries; the trend of Ministries to augment legislation and secondary legislation. On the initial stages of this phenomenon see Galnoor, Itzhak, “Changes in the Israeli Political System since the Yom Kippur War” (1977) 11 Medina Umimshal VeYahasim Beinleumiim, at 5 [in Hebrew]Google Scholar.

46 When referring to senior civil servants, other issues arise. See e.g H.C.J. 7074/93 Swissa v. the Attorney General P.D. 48(2) 749.

47 See High Court of Justice judgment regarding building on Mt. Scopus (H.C.J. 394/72 French Hill Hotel Corporation v. Local Council, P.D. 27(2) 325 and the matter of Miron (H.C.J. Simha Myron v. the Minister of Labor, the Broadcasting Authority and the Minister of Posts, P.D. 24(1) 337) that rejected the petitions due to absence of personal interest.

48 H.C.J. 65/51 Ari Jabotinsky et al v. Prof. Dr Ch. Weitzman P.D. 5(1) 801; H.C.J. 186/65 Gideon Reiner v. Prime Minister et. al. P.D. 19(2) 485. H.C.J. 561/75 Motti Ashkenazi v. Minister of Defense et. al. P.D. 30(3), 309.

49 Based on Barak, Aharon, “Judicial Review of Administrative Decisions and Administrative Discretion,” lecture at the annual convention of public administration (5 February 1996) at 14–15 Google Scholar; Gavison, Kreminitzer and Dotan, supra n. 1, at 16–28. Hoffnung prefers to call it “formal criteria.” See Hoffnung, Menahem, “Authority, Power and Separation of Governmental Branches – Judicial Review in Israel in Comparative Perspective” (1997) 28 Mishpatim 211, at 217 [in Hebrew]Google Scholar. On the removal of restrictions prior to hearing, see Segal, Zeev, The Right of Standing in the High Court of Justice (Tel Aviv, Papirus, 2nd edition, 1993) [in Hebrew]Google Scholar.

50 Vallidner, Torbjörn, “When the Courts Go Marching In” in Tate, Chester Neal and Vallidner, Torbjörn, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 12, at 16 Google Scholar. “Internal judicialization,” not discussed here, is important and essential, but it also has negative implications, especially upon the lack of administrative creativity. Judicialization intensely increases the aversion of decision makers to risk and encourages taking decisions that are considered as coming within the realm of legal defense. See Galnoor, Itzhak, Rosenbloom, David and Yaroni, Alon “Creating New Public Management Reforms” (1998) 30 Administration and Society 4, at 393–420 CrossRefGoogle Scholar.

51 H.C.J. 3299/93 Wekzelbaum v. Minister of Defense P.D. 49(2) 195, at 211–308.

52 Mautner, Menahem, “The Resonableness of Politics” (1994) 5 Teoria u'Bikoret (Theory and Control) 25 [in Hebrew]Google Scholar.

53 Barak, supra, n. 50, at 9.

54 H.C. J. 910/86 Ressler v. Minister of Defense P.D. 42(2), 441.

55 H.C.J. 6163/92 Eisenberg v. Minister of Building and Housing P.D. 47(2) 229. See the discussion in Hoffnung, supra, n. 50, at 220–222; Gavison et all, supra n. 1, at 145–149, 208–214.

56 Ibid., at 148.

57 Ibid., at 186.

58 Rosen-Zvi wrote that the cause of reasonableness adds only “rhetorical nuance” and: “Experience so far shows that reasonableness as a criterion for jurisdiction and for the examination of discretion in ‘political’ matters cannot compete with the complexity of the issued to be decided,” supra n. 9, at 699.

59 Landau, Moshe., “On Justiciability and Consideration in Administrative Law” (1949) 14 Iyyunei Mishpat, at 5 [in Hebrew]Google Scholar.

60 Gavison, Kremnitzer and Dotan, supra n. 1, at 137.

61 Ibid., at 114.

62 Segal, supra, n. 32, at 321.

63 Gavison, Kremnitzer and Dotan, supra n. 1 at 231.

64 Ibid., at 232.

65 According to this approach, a State Inquiry Commission is not a legal entity and its recommendations – both in personal and institutional matters – have most important public validity, but not obligatory legal validity.

66 Barak, supra, n. 50, at 10.

67 In January 1997, Advocate Bar-On was appointed Attorney General by the Cabinet headed by Benjamin Netanyahu, and two days later he resigned from the position. Channel One of Israel Television reported suspicion of illegal acts related to Bar-On's appointment, including the promise by the candidate to assist MK (Member of Knesset) Derry in his court case in exchange for the support of his Shas party in the retreat from Hebron. In a legal opinion given on 18 April 1997 by Elyakim Rubinstein, the Attorney General appointed in place of Bar-On, he states: “The police investigation raised suspicions of transgressions related to the appointment of Advocate Bar-On to the position of Attorney General. From the material, it transpires that MK Derry, Advocate Hotter-Yishai and businessman David Appel, who have social and business contacts, desired to arrange the appointment of Advocate Bar-On as Attorney General”. Further on it states: “Unfortunately, from the evidence the suspicion arises that persons who had been brought to criminal trial had conspired to determine who would be the Attorney General, because of personal interests, through the use of personal contacts and political power, and even succeeded in so doing”.

68 Over-judicialization expands the meaning of “judicial activism,” to make the point that the definition of “judicialization” as a predisposition, postulated at the beginning of this article, also applies to the courts when they have to determine whether a certain dispute brought before them should be returned to the social-economic-political frameworks from which they stemmed. I will add further, that a court that is not “activist” is in my opinion a natural situation and therefore I will not discuss the contrary argument put forward frequently of “under-judicialization,” whereby the courts do not intervene sufficiently in certain areas.

69 Barzilai terms it “the transition from party hegemony to judicial hegemony.” Barzilai,, supra n. 10.

70 Bilski, Leora, “Law and Politics: the Case of Yigal Amir” (2000) 8 Plilim 13, at 14 [Hebrew]Google Scholar. In note 3 she refers to Shklar, Judith N., Legalism (Cambridge Mass., Harvard University Press, 1986)Google Scholar. See also, Sprinzak, Ehud, Every Man for Himself: Illegalism in Israeli Society (Tel Aviv, Sifriat Poalim, 1986) [in Hebrew]Google Scholar.

71 Barak, supra, n. 8, at 491. Zannoti stresses in his study on Italy and the United States that the origin of judicialization is in “response to social demand” that has increased among other reasons because of the efforts of lobbies to obtain by way of the courts what could not be obtained through the legislative and executive branches. See, Zannoti, Francesca, “The Judicialization of Judicial Salary Policy in Italy and the United States” in Tate, Chester Neal and Vallidner, Torbjörn, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995), at 181 Google Scholar.

72 Mautner, Menachem “The Decline of Formalism and the Rise of Values in the Israeli Law” in Porat, Ariel, ed. Judicial Activism (Tel Aviv, Ramot, 1993) 33, at 33–126 [in Hebrew]Google Scholar; Hoffhung, supra, n. 50 at 217.

73 Lahav, Pnina, “Valor and Office: The High Court of Justice During the First Decade of its Existence” (1999) 14 Iyyunei Mishpat 479, at 479–502 [in Hebrew]Google Scholar.

74 Gavison, Kremnitzer and Dotan, supra n. 1, at 37, 65.

75 The traces of this approach can be found in Aharon Barak's comment: “And the land shall be filled with law. Thus any issue can be ‘litigated,’ that is—there is a judicial norm addressing it.” Aharon Barak, supra, n. 50, at 15. The original Biblical verse is: “For the land shall be filled with devotion to the Lord as water covers the sea” Isaiah 11, 9).

76 Shapiro and Sweet, supra, n. 12, at 176.

77 Ariel Rosen-Zvi wrote: “Can we today talk about the judicialization of life? … coping with systems of relationships and areas of activity through judicial instruments introduces a dimension of formalism into life and leads to confronting value issues with formal tools.” “Culture of Law,” supra, n. 25, at 701.

78 Barak, Aharon, “The Task of the High Court of Justice in a Democratic Society” in Cohen-Almagor, Raphael, ed. Basic Issues in Israeli Democracy (Tel Aviv, Sifriat Hapoalim, 1999) 129, at 141–189 [in Hebrew]Google Scholar.

79 Ibid., at 129. In a different version he stated: “the Knesset is the first among equals.” See Barak, supra, n. 50 at 2, 10.

80 See also, Barak, Aharon, Interpretation in Law, Legalistic Interpretation (Jerusalem, Nevo, Vol. 3, 1994), at 38 [in Hebrew]Google Scholar.

81 Barak, Aharon, “Judicial Review of the Constitutionality of the Law” (1996) 3 Mishpat u'Mimshal 403, at 403–415 [in Hebrew]Google Scholar.

82 Barak, supra n. 10, at 497. For an approach that also compares the United States and Israel see: Tribe, Laurence, Five Reigning Myths about Constitutionalism and Judicial Review (Jerusalem, Israeli Academy of Sciences, 1993)Google Scholar; Benvenisti, Eyal, “Checks and Balances under the Patronage of the Court” (2001) 31 Mishpatim, at 797–819 [in Hebrew]Google Scholar.

83 Based on the deliberations of a committee chaired by Justice Kedmi that examined the administrative status of the courts. During the discussions in the committee, I asked Chief Justice Barak about public accountability: “Let us say that a certain file went astray in a court in Tiberias, and a parliamentary question about this is raised in the Knesset, who is responsible? Would it be the Chief Justice, who – according to your proposal – should be the head of the administrative system of the courts? And if this is a grave matter, would it then be possible to demand the dismissal of the Chief Justice as the person having the overall administrative responsibility? What public sanction would exist?” Chief Justice Barak replied that we should think about other definitions and different criteria for accountability. After all, judges come under public scrutiny and perhaps accountability should be given a more thorough examination. My reply: “this is not a matter of thinking creatively, because it is not by chance that in democratic regimes public accountability rests with the elected representatives and sanctions against them must therefore be political. The only alternative, that fortunately no one is proposing for Israel, is that judges too will be elected. And by the way, this is also the reason why it is not exact to say that in a Parliamentary regime there are three branches with equal status. See, Report of the Committee for the Examination of an Independent Judicial Authority (The Justice Kedmi Committee) (April 1996).

84 Tate, Chester Neal, “Why the Expansion of Judicial Power,” in Tate, Chester Neal and Vallidner, Torbjörn, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 27, at 28–33 Google Scholar. See also, “Judicial Review” in Smelser, Neil J. and Baltes, Paul B., eds. International Encyclopedia of the Social and Behavioral Sciences, (Mass, Harvard University, Vol. 12, 2001) at 8020 Google Scholar.

85 Tate, supra, n. 85, at 33.

86 See the Knesset resolution to call upon the Supreme Court to refrain from intervening in value-related issues, matters of Jewish law, ideological and political issues, and the laws the Knesset legislated, 14 December 1999. See also, Gorali, Moshe, “What Happened to Barak's Power of Deterrence?,” Ha'aretz newspaper, 29.7.02, p. 4b [in Hebrew]Google Scholar.

87 Tate, Chester Neal and Vallidner, Torbjörn, “Judicialization and the Future of Politics and Policy,” in Tate, Chester Neal and Vallidner, Torbjörn, eds. The Global Expansion of Judicial Power (New York, New York University Press, 1995) 515, at 527 Google Scholar.

88 The late Ariel Rosen-Zvi's comment written over a decade ago presents a comparable approach: “It is the obligation of the legal community to undertake the creation of that climate that will enable the law to shape the image of society and to motivate values. We must infuse the awareness that law strides with various values and not in the opposite direction. We must deride the harmful sentiment that the law is a succession of unnecessary obstacles and restrictions”. Ariel Rosen-Zvi, supra n. 25, at 716.