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The Freedom to Exclude: The Case of Israeli Society

Published online by Cambridge University Press:  26 May 2016

Michal Tamir
Michal Tamir*
Affiliation:
Associate Professor, Academic Center of Law and Science; Tikvah Fellow-in-Residence, 2012–13, NYU.
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Abstract

The phenomenon of social exclusion in Israel is a vivid demonstration of the Basic Laws' failure to fulfil their integrative role. Despite the ‘constitutional revolution’ and the Supreme Court's ongoing endeavour over the last two decades to instil a bill of rights through its jurisprudence, Israeli society has failed to fully internalise values of equality. In terms of legal jargon, individuals continue to claim and exercise ‘sole and despotic dominion’ over their private property in order to avoid contact with individuals belonging to certain minority groups. In many cases, such behaviour in the private sphere results in exclusion from the public sphere.

This phenomenon is especially astonishing considering the fact that many laws in Israel apply the right of equality to the private sphere. Furthermore, the Israeli Supreme Court has developed comprehensive human rights jurisprudence applicable to the private sphere. The gap between the law in the books and the law in action illustrates that effective implementation of human rights in the private sphere cannot be achieved solely by specific legislation or by jurisprudence that is sensitive to human rights. This argument is backed by several recent bills which preserve and enforce the exclusion of minorities, particularly of Arabs, from the public sphere. These bills illustrate that exclusion is indeed a growing phenomenon in Israeli society that cannot be overlooked. Moreover, they underscore the urgent need to entrench a direct obligation to apply human rights to the private sphere at the constitutional level. This will be achieved only when Israel adopts a full constitution.

Keywords

exclusionbasic lawssole and despotic dominionhuman rights in private lawconstitution's integrative role
Type
Articles
Information
Israel Law Review , Volume 49 , Issue 2 , July 2016 , pp. 237 - 266
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2016 

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References

1 Eli Ashkenazi, ‘Safed Rabbis Urge Jews to Refrain from Renting Apartments to Arabs’, Ha'aretz, 20 October 2010, http://www.haaretz.com/print-edition/news/safed-rabbis-urge-jews-to-refrain-from-renting-apartments-to-arabs-1.320118.

2 ‘Kiryat Malachi Neighborhood Bans Ethiopians’, The Jerusalem Post, 3 January 2012, http://www.jpost.com/Headlines/Article.aspx?id=252063.

3 Kobi Nachshoni, ‘50 Rabbis: Not to Rent Apartments to Arabs’, YNET, 7 December 2010, http://www.ynet.co.il/articles/0,7340,L-3995411,00.html (in Hebrew).

4 Nir Hason, ‘Appeal to the High Court of Justice: Enable Advertising Pictures of Women on Buses in Jerusalem’, Ha'aretz, 27 December 2012, http://www.haaretz.co.il/news/education/1.1606679 (in Hebrew).

5 Omri Meniv, ‘Exclusion of Girls in Basketball: The Association Will Consider Changing the Regulations’, NRG, 2 January 2013, http://www.nrg.co.il/online/3/ART2/426/258.html?hp=1&cat=620&loc=4 (in Hebrew).

6 William Blackstone, Commentaries on the Laws of England, Vol 2 (Dawsons of Pall Mall 1966) 2 (on the subject of property); David B Schorr, ‘Community and Property: How Blackstone Became a Blackstonian’ (2009) 10 Theoretical Inquiries in Law 103 (discussing this concept).

7 Lorenz Fastrich, ‘Human Rights and Private Law’ in Katja S Ziegler (ed), Human Rights and Private Law: Privacy as Autonomy (Hart 2007) 23, 30 (‘In substance, private law must accept that individuals may act according to their own will. If this is accepted, there is a conflict in private law between individual freedom on the one hand and application of human rights on the other hand. The application of human rights tends to restrict private law in pursuing objective values. Private law, in contrast, must accept that individuals pursue objective values and pursue their own happiness. If we do not accept private values in private law we deny freedom of autonomy’).

8 Stewart Macaulay, ‘The New Versus the Old Legal Realism: “Things Ain't the Way They Used to Be”’ [2005] Wisconsin Law Review 365, 367 (describing the history of studying the law in action).

9 In an earlier article, I argued that the only constitutional moment in Israel was embodied in the Declaration of Independence, which cannot be replaced by successive Basic Laws, but only by a full constitutional project: Tamir, Michal, ‘The Declaration of Independence as a Transitional Constitution: The Case of Israel’ (2016) 8 Middle East Law and GovernanceCrossRefGoogle Scholar (forthcoming, doi: 10.1163/18763375-00801003).

10 Grimm, Dieter, ‘Integration by Constitution’ (2005) 3 International Journal of Constitutional Law 193, 193Google Scholar.

11 Gavison, Ruth and others, ‘Round Table: Israeli Constitutionalism’ (2005) 6 Yale Israel Journal 25Google Scholar, 27 (describing the constitutional revolution).

12 Bendor, Ariel L, ‘Is It a Duck? On the Israeli Written Constitution’ (2005) 6 Yale Israel Journal 53Google Scholar (explaining that the status of the Basic Laws rose to the top of the legal agenda only after the enactment of the two human rights Basic Laws, which Chief Justice Aharon Barak addressed extensively in his publication entitled ‘The Constitutional Revolution: Israel's Basic Laws’, Yale Law School Legal Scholarship Repository, Paper 3697, 1 January 1993, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4700&context=fss_papers).

13 Basic Law: Human Dignity and Liberty, 1992.

14 Basic Law: Freedom of Occupation, 1994.

15 Daniel Friedman and Daphne Barak-Erez, ‘Introduction’ in Daniel Friedman and Daphne Barak-Erez (eds), Human Rights in Private Law (Hart 2001) 1, 1 (explaining that human rights were originally conceived as rights and freedoms vis-à-vis the state and other public authorities).

16 cf Itzhak Zamir, ‘Administrative Law’ in Itzhak Zamir and Sylviane Colombo (eds), The Law of Israel: General Surveys (Harry and Michael Sacher Institute for Legislative Research and Comparative Law and Hebrew University of Jerusalem 1995), 51, 53–54 (discussing in detail how constitutional law was developed through the principles of administrative law, case by case). An infringement of a human right by a statute enacted by the Knesset – whether designed to regulate relations in the private or the public sphere – could be justified only if it purported to do so explicitly: Aharon Barak, Interpretation in Law, Vol 3 (Nevo 1994) 651–52 (in Hebrew) (discussing the legal situation before the enactment of the Basic Laws and explaining why the issue of ‘human rights in private law’ arose in Israel).

17 CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 1995 PD 49(4) 221, http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf.

18 cf Chantal Mak, Fundamental Rights in European Contract Law: A Comparison of the Impact of Fundamental Rights on Contractual Relationships in Germany, the Netherlands, Italy and England (Kluwer Law International 2008) xx (describing the introduction of important international fundamental rights documents after the Second World War, and explaining that ‘it did not take long for the question to arise whether these international and constitutional rights, written for the protection of citizens against the state, could also affect relations between citizens, in which equally serious infringements were considered to take place’).

19 cf Aharon Barak, ‘Constitutional Human Rights and Private Law’ in Friedman and Barak-Erez (eds) (n 15) 13, 13, and the related footnotes (determining that the applicability of constitutional human rights within the sphere of private law is an issue of major importance, which has arisen in most legal systems).

20 See ‘the limitation clause’, Basic Law: Human Liberty and Dignity (n 13) s 8; Basic Law: Freedom of Occupation (n 14) s 4. See also the ‘respecting clause’, Basic Law: Human Liberty and Dignity (n 13) s 11; Basic Law: Freedom of Occupation (n 14) s 5.

21 eg, Defamation Law, 1965 (regulating the conflict between reputation and freedom of expression); Equal Opportunity in Employment Law, 1988, s 2 (regulating the issue of equality in private employment relations and prohibiting an employer from discriminating against employees or job seekers on grounds set out in the law); Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000 (prohibiting any person or private body who sells a product or public service from discriminating against a person on grounds set out in that law).

22 cf Mak (n 18) 3 (explaining that while the legislator should take fundamental rights into account when drafting rules, judges might be presented with cases that address the interpretation of these rules).

23 cf Benkler, Yochai, ‘Non-Discrimination in Housing: Scope, Applicability and Remedies for Enforcement in Israeli Law’ (1991) 16 Iyuney Mishpat [Tel Aviv University Law Review] 131, 132Google Scholar (in Hebrew) (noting that there is no law in Israel that forbids discrimination in housing matters).

24 Such challenges arise, for example, with regard to the prohibited grounds of discrimination listed in the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law (n 21). The law prohibits any person or private body selling a product or managing a public service from discriminating against a person on the grounds set out in the law – namely, race, religion or religious group, nationality, country of origin, gender, sexual orientation, opinion, political affiliation, age, personal status or parenthood. Although the explanatory note attached to the law states that the primary aim of the law is to tackle discrimination against people with a Mizrahi appearance with regard to entering places of entertainment, and notwithstanding the fact that most of the claims filed under the law were on this ground, the list of prohibited grounds does not include ‘Mizrahi’, or other applicable category. This has led to difficulties on the part of plaintiffs in citing appropriate grounds for discrimination and has contributed to the development of inconsistent case law on the matter: Bitton, Yifat, ‘Mizrahis and Law: Absence as Existence’ (2011) 41 Hebrew University Law Review 455, 486–87Google Scholar (in Hebrew). A further example concerns the implications of freedom of occupation, which is enshrined in Basic Law: Freedom of Occupation. The constitutionality of contractual provisions which limit competition are reviewed in court through the vague concept of ‘public order’, the interpretation of which produces considerable legal uncertainty.

25 Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd edn, Duke University Press 1997) 361–69; Christian Starck, ‘Human Rights and Private Law in German Constitutional Development and in the Jurisdiction of the Federal Constitutional Court’ in Friedman and Barak-Erez (eds) (n 15) 97, 97–99.

26 The doctrine was developed in the landmark Lüth decision (BVerfGE 7 198) in which the German Federal Court ruled that the civil law judge is obliged to mediate the relationship between individuals on the basis of fundamental rights, if applicable, and not exclusively on the Civil Code. This is grounded in the notion that the obligation of the civil judge is to interpret the general clauses of the Civil Code ‘in the light of’ the constitutional provisions. The German Constitution, art 1(3), provides that ‘basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law’. Since this provision does not explicitly determine whether the application of basic rights to non-state actors is direct or indirect, two opposing schools of thought have emerged within German legal scholarship; ultimately the indirect model has prevailed in the case law: Chirwa, Danwood Mzikenge, ‘The Horizontal Application of Constitutional Rights in a Comparative Perspective’ (2006) 10(2) Law, Democracy and Development 21, 30–34Google Scholar.

27 Chirwa, Danwood Mzikenge, ‘In Search of Philosophical Justifications and Suitable Models for the Horizontal Application of Human Rights’ (2008) 8 African Human Rights Law Journal 294, 308Google Scholar (including courts in Italy, Spain, Switzerland, Japan, and the European Court of Human Rights).

28 CA 294/91 Jerusalem Community Burial Society GHSA v Kastenbaum 2003 PD 46(2) 464, 530 (in Hebrew). For a comprehensive and recent survey of the case law, see Barak-Erez, Daphne and Gilead, Israel, ‘Human Rights in the Laws of Contracts and Torts: The Quiet Revolution’ (2009) 8 Kiryat Hamishpat 11 (in Hebrew)Google Scholar.

29 ibid, Justice Barak, paras 28–29.

30 The judgment in the case of former Supreme Court Chief Justice Barak signifies a positive turning point in the application of human rights in private law: Barak-Erez and Gilead (n 28) 15.

31 Barak-Erez, Daphne, ‘Public Law and Private Law – Overlaps and Mutual Influences’ (1999) 5 Mishpat Umimshal [Law and Government] 95, 96–99Google Scholar (in Hebrew); Bendor, Ariel and Tamir, Michal, ‘Constitutional Clichés: Between Public Expression and Private Dignity’ (2002) 32 Hebrew University Law Review 623, 632–39 (in Hebrew)Google Scholar.

32 eg CA 3414/93 On v Diamond Exchange 1995 PD 49(3) 196 (in Hebrew). See also Benvenisti, Eyal, ‘The Applicability of Administrative Law to Private Bodies’ (1994) 2 Mishpat Umimshal [Law and Government] 11, 32 (in Hebrew)Google Scholar. Thus, for example, another argument in the burial society case was the society's nature as a hybrid body, which generates the need to balance the right to human dignity and the value of the Hebrew language: Jerusalem Community Burial Society (n 28) 492, 517.

33 Dichotomies between the private and the public spheres were already discernible in the early 1980s in the judgment delivered by Israeli Supreme Court Justice Menachem Elon, one of Israel's foremost scholars on Jewish law. Elon used Jewish law to demonstrate that the meaning of the terms ‘private domain’ (reshut hayahid) and ‘public domain’ (reshut harabim) may change depending on the context and the purpose, and that there is a spectrum of grey area between the clear-cut extreme cases. Accordingly, he determined that the ‘private domain’ in the Law of Lost and Found Property, 1973 needs to be interpreted based not only on ownership but also based on control and, as such, a safety deposit vault in a bank is not ‘private property’: FH 13/80 Hendels v Bank Kupat AM 1981 PD 35(1) 785.

34 Dagan, Hanoch, ‘Values: The Limited Autonomy of Private Law’ (2008) 56 American Journal of Comparative Law 809, 828–32Google Scholar.

35 For a general survey, see Lehavi, Amnon, ‘The Public Domain of Private Property’ (2006) 9 Mishpat Umimshal [Law and Government] 619, 621–23 (in Hebrew)Google Scholar; Gardbaum, Stephen, ‘Law, Politics, and the Claims of Community’ (1992) 90 Michigan Law Review 685Google Scholar.

36 Hanoch Dagan, Property: Values and Institutions (Oxford University Press 2011).

37 Mautner, Menachem, ‘Judicial Intervention in the Contents of Contracts and the Question of the Development of Israel Contract Law’ (2005) 29 Iyuney Mishpat [Tel Aviv University Law Review] 17, 26–40 (in Hebrew)Google Scholar.

38 eg, Hershkoff, Helen, ‘“Just Words”: Common Law and the Enforcement of State Constitutional Social and Economic Rights’ (2011) 62 Stanford Law Review 1521, 1582Google Scholar (‘Justice Aharon Barak of the Israel Supreme Court has described the practice of indirect constitutional effect as one in which “[p]rotected human rights do not directly permeate private law”, but rather do so “by means of private law doctrines” (either through existing doctrines or through new doctrines created for the purpose of public law “absorption”) … In this spirit, I have suggested that state common law courts recognize state constitutional socioeconomic provisions as interpretive material that is critical to the future development of private law principles. The principle of indirect constitutional effect has the advantage of fitting comfortably with the common law practice of looking to policy in its decision making processes’).

39 Yair Ronen, Israel Doron and Vered Slonim-Nevo (eds), Human Rights and Social Exclusion in Israel (Ramot and Tel Aviv University 2008).

40 These include concerns over the extent to which horizontal application involves judges in moral reasoning, upholding separation of powers, and the imposition of unjustified duties on private persons: Friedman, Nick, ‘The South African Common Law and the Constitution: Revisiting Horizontality’ (2014) 30 South African Journal on Human Rights 63Google Scholar; Horwitz, MJ, ‘The History of the Public/Private Distinction’ (1982) 130 University of Pennsylvania Law Review 1423CrossRefGoogle Scholar, 1424 (arguing that the attack on the public/private distinction was the result of a widespread perception that so-called private institutions were acquiring coercive power which had formerly been reserved to governments). See also Stone, Christopher D, ‘Corporate Vices and Corporate Virtues: Do Public/Private Distinctions Matter?’ (1982) 130 University of Pennsylvania Law Review 1441, 1424–25CrossRefGoogle Scholar.

41 Friedman and Barak-Erez (n 15).

42 cf Raymond Geuss, Public Goods, Private Goods (Princeton University Press 2001) 106 (arguing that there is no single clear distinction between the public and private spheres but rather a series of overlapping contrasts, and thus that distinction between public and private should not be taken to have the significance often attributed to it).

43 cf Chemerinsky, Erwin, ‘Rethinking State Action’ (1985) 80 Northwestern University Law Review 503, 505Google Scholar (‘It is time to again ask why infringements of the most basic values – speech, privacy, and equality – should be tolerated just because the violator is a private body rather than the government’).

44 cf Stephan Gardbaum, ‘The “Horizontal Effect” of Constitutional Rights’ (2003) 102 Michigan Law Review 388, 395 (explaining that one of the rationales for the horizontal effect of human rights is that the autonomy of racists, sexists, and harmful speakers is categorically preferred to that of those harmed or excluded by their actions, without any obvious justification in terms of an overall assessment of net gains and losses in autonomy).

45 cf Eyal Peleg, Privatization as Publicization: Privatized Bodies in Public Law (Ramot and Tel Aviv University 2005) 43–80 (in Hebrew) (discussing the justification for applying public law principles on privatised bodies that perform government–public activity). See also Chirwa (n 27) 297 (‘non-state actors (especially TNCs) now exert increasing influence on international and state policies with both a direct and indirect impact on the enjoyment of human rights than was the case when this theory was being formulated. This development has undercut the assumption that the private sphere is made up of equal parties and thus bolstered the argument for extending the application of human rights to this sphere’).

46 François du Bois, ‘Social Purposes, Fundamental Rights and the Judicial Development of Private Law’ in Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart 2012) 89, 93.

47 eg Equal Opportunity in Employment Law (n 21); Equal Wage for Men and Women Law, 1996. Additionally, in 2011 the Knesset passed the Law to Strengthen the Enforcement of Labour Laws, 2011, the purpose of which is to strengthen the enforcement of labour laws by imposing gradual economic sanctions on employers who infringe the laws.

48 Ministry of Economy and Industry, ‘Equal Employment Opportunity Commission’, http://www.moital.gov.il/CmsTamat/Rsrc/Shivyon/Shivyon.html (in Hebrew).

49 Shuki Handels, ‘The Feeling of Discrimination among Job Seekers and Employers and What Does the Public Think About It’, Research & Economy Administration, Ministry of Industry, Trade & Labor, February 2010, http://www.tamas.gov.il/NR/rdonlyres/CD099D08-6BD1-4995-9656-C9DC800E60BF/0/X9841.pdf (in Hebrew).

50 The evidentiary difficulties can be divided roughly into two categories: (i) situations in which the claimant has no evidence at all since she has no access to the reasoning that preceded the final decision being challenged; and (ii) situations in which the considerations involved in the challenged decision are in part permissible and in part prohibited: cf Rabin-Margaliot, Sharon, ‘The Elusive Case of Discrimination at Work – How To Prove Its Existence’ (1999) 44 Hapraklit 529 (in Hebrew)Google Scholar.

51 The failure to internalise equality and respect for human rights of disempowered social groups is illustrated in the exclusion of many social groups in Israel – for example, the exclusion of Druze women who chose to pursue academic studies and in turn suffer alienation and even boycott by their communities: Weiner-Levy, Naomi, ‘The Flagbearers: Israeli Druze Women Challenge Traditional Gender Roles’ (2006) 37 Anthropology and Education Quarterly 217CrossRefGoogle Scholar; Weiner-Levy, Naomi, ‘“… But It Has Its Price”: Cycles of Alienation and Exclusion among Pioneering Druze Women’ (2009) 29 International Journal of Educational Development 46Google Scholar; the exclusion of Bedouin communities resulting from the state's denial to give formal recognition to their settlements: Nevo, Isaac, ‘The Politics of Un-recognition: Bedouin Villages in the Israeli Negev’ (2003) 4 Hagar: Studies in Culture, Polity and Identities 183Google Scholar; discrimination against children and the elderly based on their age (ageism): see (respectively) Ronen, Yair and Gilat, Israel Zvi, ‘Does Israeli Children's Rights Discourse do Justice with Children and Their Families?’ (2006) 22 Hamishpat 87 (in Hebrew)Google Scholar; Doron, Israel, ‘Aging in the Shadow of Law: Elder Guardianship in Israel’ (2004) 16 Journal of Aging and Social Policy 59Google Scholar.

52 n 21.

53 ibid.

54 Bitton (n 24) 486 (the explanatory note attached to the law explicitly states that people of Mizrahi appearance were indeed the primary targets of the selection process).

55 ibid 488.

56 ibid 507.

57 The Tel-Aviv Magistrates Court has recently issued a ruling in favour of a young man of ‘Mizrahi descent’ who made two failed attempts to enter a night club and was rejected on grounds of implicit discrimination: CC (TA) 35199-09-12 Ben-Moshe v Rotshild (unpublished, 12 July 2015).

58 Draft Bill, Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places (Amendment – Prohibition of Separation) 2012 P/18/4382; Draft Bill, Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places (Amendment – Prohibition of Separation in Public Transportation) 2008 P/17/3672; Draft Bill, Criminal Code (Amendment – Prohibition on Exclusion of Women from the Public Sphere) 2013 P/19/3 2013.

59 A survey conducted by the Organisation for Economic Co-operation and Development (OECD) in 2011 among member states showed that the gender wage gap for a full-time position was on average 15% and in Israel 21%. According to data of the European Commission for that year, the average gender wage gap by hour is 17%. In this respect, Israel ranked between states such as Germany, Austria and Ireland, in which the gap exceeds 20% and states such as Slovenia, Poland, and Luxembourg, where the gap is less than 10%: Noga Dagan-Buzaglo and Yael Hasson, ‘Narrowing the Gender Pay Gap: Lessons from Around the World’, Adva Center – Information on Equality and Social Justice in Israel, November 2014, 7, http://adva.org/wp-content/uploads/2015/06/Policy_guide_mail1.pdf (in Hebrew).

60 For Israel as a multicultural state, see Menachem Mautner, Law and the Culture of Israel (Oxford University Press 2011) 181–200.

61 For accurate numbers, see Central Bureau of Statistics, http://www.cbs.gov.il/reader (in Hebrew).

62 Population and Immigration Authority, http://www.piba.gov.il/Pages/default.aspx (in Hebrew).

63 For an analysis of the unique influence of neoliberal economic ideology on the organisation of civic action, see Mautner (n 60) 11–110.

64 Gershon Gontovnik, Discrimination in Housing and Cultural Groups (Bar-Ilan 2014) (in Hebrew).

65 Basic Law: Human Dignity and Liberty (n 13) s 1; Basic Law: Freedom of Occupation (n 14) s 2.

66 Gershon Gontovnik addresses the multicultural ‘challenge’, or ‘dilemma’ facing liberal states and the State of Israel with regard to the allocation of public resources: Gontovnik, Gershon, ‘The Right to Culture in a Liberal Society and in the State of Israel’ (2003) 27 Iyuney Mishpat [Tel Aviv University Law Review] 23 (in Hebrew)Google Scholar.

67 HCJ 392/72 Berger v District Planning and Building Committee 1973 PD 27(2) 746; HCJ 114/78 Burkan v Minister of Finance 1978 PD 32(2) 800; HCJ 528/88 Avitan v Israel Land Administration 1989 PD 43(4) 297.

68 HCJ 6698/95 Qaadan v Israel Land Administration 2000 PD 54(1) 258, official translation at http://elyon1.court.gov.il/files_eng/95/980/066/a14/95066980.a14.pdf.

69 93% of the land in Israel is in the public domain – that is, either property of the state, the Jewish National Fund (JNF) or the Development Authority. The Israel Land Administration (ILA) is the government agency responsible for managing this land: Israel Land Authority (the former Israel Land Administration changed its name to ‘Israel Land Authority’), http://www.mmi.gov.il/envelope/indexeng.asp?page=/static/eng/f_general.html.

70 In the wake of the verdict, several changes occurred in the patterns of land allocation; however, various legal struggles are still ongoing: Neta Ziv and Hen Tirosh, ‘The Legal Struggle against Selection Committees in Community Settlement’ in Amnon Lehavi (ed), Gated Communities: Law, Society and Culture (Nevo Press 2010) 311, 341–47 (in Hebrew).

71 eg Fair Housing Act, 42 USC §3601 (1968) (US); Race Relations Act 1976 (UK). See also Dagmar Coester-Waltjen, ‘Discrimination in Private Law – New European Principles and the Freedom of Contract’ in Ziegler (n 7) 117 (dealing with the situation in Europe; noting that whereas the Race Discrimination Directive expressly refers to housing and does not otherwise limit offers to the public, the Directive on Equal Treatment of Men and Women in Access to Goods and Services does not mention housing specifically, though the legislative history shows that housing was intended to be included).

72 For the Prohibition of Discrimination in Housing Bill and its failure, see Association for Civil Rights in Israel, ‘Prohibition of Discrimination in Housing’, 6 February 2012, http://www.acri.org.il/he/?p=19473 (in Hebrew).

73 HCJ 7052/03 Adalah – Legal Centre for Arab Minority Rights in Israel v Minister of Interior ILDC 393 (IL 2006); HCJ 6427/02 Movement for Quality Government in Israel v Knesset (unpublished, 11 May 2006), President Barak, paras 52–43. The successful establishment of the Bill of Rights in 1992 can partly be attributed to a political compromise in which the important human rights around which the political debate revolved – such as equality, freedom of religion, and freedom of speech – were omitted from the Basic Laws: Karp, Judith, ‘Basic Law: Human Liberty and Dignity: A Biography of Struggles between Forces’ (1993) 1 Mishpat Umimshal [Law and Government] 323, 338–40 (in Hebrew)Google Scholar.

74 Lehavi (n 35) 624.

75 eg CA 3901/96 Local Committee for Planning and Construction v Horowitz 2002 PD 56(4) 913, Justice Barak, para 8 (explaining the perception of the Italian Constitution, according to which private property has a social role and the owner of the property has a social responsibility).

76 eg Dagan (n 36) (arguing that property can, and should, serve a pluralistic set of liberal values. These property values include not only autonomy and utility, which are emphasised by many contemporary scholars, but also labour, personhood, community and distributive justice).

77 HCJ 262/62 Peretz v Kfar Shmariahu 1962 PD 16 2101, 2114.

78 Ashkenazi (n 1).

79 Tamir (Itzhaki), Michal, ‘Equality of Gays and Lesbians’ (2000) 45 Hapraklit 94, 109–11Google Scholar (in Hebrew) (explaining the difference between ‘constitutional equality’ and ‘administrative equality’). See also Benkler (n 23) 160 (explaining the difference between the substantive and the procedural sense of equality).

80 HCJ 953/87 Poraz v Mayor of Tel Aviv 1988 PD 42(2) 309, 332 (‘equality must be upheld between persons who belong to religions, nations, denominations, races and parties who subscribe to different points of view espoused by entities and groups. Needless to say, this list is not exhaustive’).

81 cf Ariel Bendor, ‘Equality and Governmental Discretion – On Constitutional Equality and Administrative Equality’ in Michal Lutzki, Ron Vered and Kfir Mizrahi (eds), Shamgar Book, Vol 1 (Israel Bar Association 2003) 287, 302–03 (defining the right to ‘administrative equality’ as ‘the right to consistency’).

82 APA 343/09 The Open House in Jerusalem to Pride and Tolerance v Jerusalem Municipality 2010 PD 64(2) 1, Justice Hayut, para 1 (‘I am not convinced that when assessing the legality or plausibility of the authority's activity, it is appropriate to make a distinction between, and conduct a progressive – if merely rough – assessment of the considerations pertaining to equality through a constitutional prism and the considerations pertaining to equality through an administrative prism. Equality is equality and, as far as I am concerned, there is no – and there should not be any – dichotomist distinction between “constitutional equality” and “administrative equality” since both legal branches – the constitutional and the administrative – aim to protect the same basic values, including the right to equality’).

83 Recently, for example, a holding company, which owns several buildings in the mixed Jewish-Arab city Lod has called for a residents’ assembly in order to caution Jewish home-owners against selling their apartments to Arabs, for fear that it will lead to a decrease in the value of the neighbourhood. In a letter circulated among the residents, the company stated that it would not approve such transactions, provided that the residents do not raise any objections to this decision. Needless to say, the holdings company does not have any legal competence to approve or reject the transactions: Dana Yarkatzi, ‘They're Trying to Prevent Arabs from Buying Apartments in Lod, but It Doesn't Bother the Residents’, Walla, 17 July 2015, http://news.walla.co.il/item/2873624 (in Hebrew).

84 Samuel Scheffler, for example, argues for a moral conception according to which agents are always permitted, but not always required, to produce the best outcomes. He introduces the concept of distributive consequentialism, according to which ‘the claims of those who are worse off often take priority over the claims of those who are better off, even if higher total utility could be achieved by benefitting the latter’. Although this view gives much greater weight to benefiting those who are worse off, it does not give absolute priority to that. The lower a person's level of relative well-being, the greater the weight attributed to the person's need: Samuel Scheffler, The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (revised edn, Oxford University Press 1982) 31, 115 (calling this perception ‘hybrid agent-centred’).

85 Segev, Re'em, ‘Making Sense of Discrimination’ (2014) 27(1) Ratio Juris 47, 48Google Scholar.

86 ibid.

87 ibid 54 (‘The answer to the question of which facts are morally significant and which are not is determined by the applicable moral standard with respect to the pertinent type of action’).

88 ibid 59 (‘distributive injustice … namely a pro tanto consideration in favor of allocating a (limited) benefit equally among persons who are equally well off, or giving it to the worse off person among persons who are not equally well off’).

89 ibid 64.

90 Joseph Raz, ‘Multiculturalism: A Liberal Perspective’ in Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics 155, 169 (Clarendon Press 1994) (claiming that some forms of intolerance are intolerable, and hence we should tolerate cultures only if it is possible to neutralise their oppressive aspects); cf Stopler, Gila, ‘Contextualizing Multiculturalism: A Three Dimensional Examination of Multicultural Claims’ (2007) 1 Law and Ethics of Human Rights. 309, 310–11Google Scholar (‘multicultural claims should be analyzed in the political, social and economic context in which they are made and should not be detached from or given precedence over other dimensions of justice’).

91 APA 1789/10 Saba v Israel Land Administration (unpublished, 7 November 2010), Justice Beinish, para 9 (‘The question of whether allocating land to a group with unique social or religious characteristics constitutes discrimination is complex and requires a balance between the constitutional right and equality between other rights such as the right to life in a cultural community’).

92 cf Fraser, Nancy, ‘Recognition without Ethics’ (2001) 18(2–3) Theory, Culture & Society 21, 38Google Scholar (suggesting the expansion of the concept of justice so as ‘to encompass distribution and recognition as two mutually irreducible dimensions’).

93 On the other hand, it could be argued that a transportation company should be regarded as a ‘public–private hybrid body’ (at least in areas where it is the sole or main transportation provider) because it provides a vital service and enjoys state subsidisation. The recognition of the bus company's hybrid nature involves the imposition on it of a wider set of administrative law obligations, including prohibiting discrimination: see texts at n 32.

94 The author was one of the lawyers who represented the Yerushalmim movement: HCJ 39/12 Yerushalmim Association v State of Israel, Ministry of Transport (2014).

95 Eventually the parties to the case agreed on a compromise whereby the State of Israel agreed to compensate the bus company for any damage caused to its buses as a result of vandalism: ‘Excluded, For God’s Sake: Gender Segregation and the Exclusion of Women in the Public Sphere in Israel, 2013–2014’, Israel Religious Action Centre and Israel Movement for Reform and Progressive Judaism, 65–66, http://failedmessiah.typepad.com/files/2015-irac-gender-report.pdf.

96 On the development in Israel of diverse types of urban and non-urban community, including the concept of the gated community, see Ziv and Tirosh (n 70) 325–34. On the need to rethink a normative framework in order to regulate the allocation of land to these communities and their discretion to accept and reject candidates, see Lehavi, Amnon, ‘New Residential Communities in Israel: Between Privatization and Separation’ (2006) 2 Haifa Law Review 63 (in Hebrew)Google Scholar.

97 Directive No 1195 updated Directive No 1064 of 27 July 2005. Both Directive No 1195 and Amendment No 8 of the Cooperative Society Ordinance were passed in response to several petitions filed at the High Court of Justice concerning Directive No 1064: UN Economic and Social Council, ‘Implementation of the International Covenant on Economic, Social and Cultural Rights [ICESCR]: List of Issues to be Taken up in Connection with the Consideration of the Third Periodic Reports of Israel concerning Articles 1 to 15 of the Covenant (E/C.12/ISR/3)’, 2 March 2012, UN Doc E/C.12/ISR/Q/3/Add.1, para 76.

98 ibid para 73.

99 Cooperative Societies Ordinance (Amendment No 8), 2011, s 2.

100 The Admission Committees comprise five members: one representative of the bodies relevant to the community (the Jewish Agency or the Zionist Organization), three representatives from the community's inhabitants and the relevant settlement movement of the community, and one representative of the relevant Regional Council.

101 Cooperative Societies Ordinance (Amendment No 8) (n 99) s 6C(C).

102 Implementation of the ICESCR (n 97) para 74.

103 Nir-Binyamini, Adi and Ganor, Tal, ‘Under the Radar: Concealed Exclusion Mechanisms in Israeli Housing Selection Processes’ (2013) 5 Maasei Mishpat 143, 146Google Scholar.

104 In a recent 5:4 ruling the Supreme Court dismissed various petitions filed by human rights groups against the Cooperative Society Ordinance (Amendment No 8). The Court upheld the law, claiming that the petition was premature; the Court therefore could not yet determine if the law violated constitutional rights: HCJ 2311/11 Ori Sabach v The Knesset (unpublished, 17 September 2014). On the tension inherent in law between its potential to uphold and reaffirm existing political dynamics on one hand, and to serve as a means of social reform on the other – in the context of selection committees in Israeli community settlements, see Ziv and Tirosh (n 70) 341–47.

105 Adalah, ‘“Admissions Committees Law” – Cooperative Societies Ordinance, Amendment No. 8’, http://www.adalah.org/en/law/view/494.

106 In the Israeli context of housing regulation, Gershon Gontovnik makes the distinction between social separation and legal separation. Gontovnik argues that even in the absence of formal legal separation, social barriers between groups exist as a matter of fact. Therefore, the realisation of the right to cultural autonomy does not necessarily require establishing a formal legal framework. By making social separation the default position, Gontovnik proceeds to argue that when the state wishes to put up legal barriers to ensure the right of communities to cultural autonomy, it has to meet a high threshold to justify the need to further embed barriers that exist anyway. Accordingly, the state should refrain from legal intervention and be very cautious in the adoption of legal measures that prohibit individuals from discriminating with regard to private property. Rather, this issue should be left to informal regulation by the social sphere (by not intervening legally in social separation). Whereas legal separation is prima facie suspicious, social barriers also entail positive aspects, namely, respect for multiculturalism. An individual should not be coerced into being in contact with another, even if she lacks reasonable grounds for her aversion. Gontovnik therefore argues that in the Israeli context equal treatment should not be imposed on individuals. However, the reasons underlying the need to refrain from imposing restrictions on individual preferences do not pertain to the regulation of the housing ‘market’. As opposed to personal choice regarding individuals' private property, the state has a strong legitimate claim in regulating the housing market. Accordingly, those who work in the housing market (such as contractors, estate agents, insurance companies and investment banks) should be obligated to adhere to the principle of equality and be prohibited from discriminating: Gontovnik (n 64) 113–62.

107 Grimm (n 10) 193.

108 ibid (‘In this sense, integration may be viewed as the condition for both unity and collective action in polities that do not endeavor to eliminate forcibly the plurality of opinions and interests existing in them’).

109 ibid 195.

110 ibid.

111 ibid 199 (‘A constitution will have an integrative effect only if it embodies a society's fundamental value system and aspirations, and if the society perceives that its constitution reflects precisely those values with which it identifies and which are the source of its special character’).

112 ibid 199 (Perception is not necessarily in correlation with the legal quality of the constitutional provisions. Therefore, ‘constitutions can acquire or forfeit integrative power without prior textual changes to, or altered interpretations of, their content’).

113 ibid 199–200.

114 ibid 200 (suggesting that constitutions which are linked to an authoritative institution, such as a constitutional court, have greater potential to achieve an integrative power).

115 ibid 201.

116 ibid 206.

117 Allan Beever, ‘Our Most Fundamental Rights’ in Nolan and Robertson (n 46) 63, 63–64.

118 cf Weill, Rivka, ‘Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care’ (2012) 30 Berkeley Journal of International Law 349Google Scholar (asserting that rather than struggle with the existence or lack thereof of a formal Israeli Constitution, the polity should debate what type of formal constitution Israel is developing).

119 Karp (n 73) 365–67.

120 Such restraint was foreseen by Menachem Mautner, who argued that the constitutional revolution would ultimately lead to a more conservative court, predominantly because of its reluctance to come into direct conflict with the Parliament by striking down legislation: Mautner (n 60) 175.

121 cf Bassok, Or, ‘A Decade to the “Constitutional Revolution”: Israel's Constitutional Process from a Historical-Comparative Perspective’ (2003) 6 Mishpat UmimshalGoogle Scholar [Law and Government] 451, 495 (in Hebrew) (arguing that the Basic Laws gain status and legitimation by an evolutionary process).

122 cf Ackerman, Bruce, ‘The Lost Opportunity’ (1990) 10 Tel Aviv Studies in Law 53, 58Google Scholar (explaining that monism – the position that lawmaking authority is given to the winners of the last general election – perceives constitutional judicial review as a counter-majoritarian problem).

123 Somer, Hillel, ‘The Non-Enumerated Rights: On the Scope of the Constitutional Revolution’ (1997) 28 Hebrew University Law Review 257 (in Hebrew)Google Scholar.

124 HCJ 4908/10 Bar-On v Israeli Knesset 2011 PD 64(3) 275, President Beinish, para 24, official translation at http://elyon1.court.gov.il/files_eng/10/080/049/n08/10049080.n08.pdf (explaining the difficulties in deciding whether a constitutional amendment is itself constitutional, given the lack of a Basic Law: Legislation in Israel).

125 Ruth Gavison, ‘Opening Remarks: Lessons from the Constitutional Process of the 16th Knesset’, The Knesset, http://main.knesset.gov.il/Activity/Constitution/Pages/ConstOpening3.aspx (in Hebrew).

126 Gideon Sapir, Constitutional Revolution in Israel: Past, Present and Future (Bar-Ilan University 2010) 12 (in Hebrew).

127 ibid.

128 Gross, Aeyal M, ‘The Constitution, Reconciliation, and Transitional Justice: Lessons from South Africa and Israel’ (2004) 40 Stanford Journal of International Law 47, 63–64Google Scholar.

129 Mautner (n 60).

130 Tamir (n 9).

131 A recent bill, which has been approved by the Ministerial Committee on Legislation, proposes the amendment of Basic Law: Human Dignity and Freedom, making it possible to pass a law that undermines the rights guaranteed by the Basic Law, as long as it states that it is valid notwithstanding the Basic Law and is passed with a majority of 61 Knesset members. ‘The clause, known as the “overriding the limitations clause”, also states that such a law would expire after four years from the date it goes into effect, unless an earlier date is specified. This makes it possible to re-legislate laws that the High Court of Justice has struck down as unconstitutional, like the amendment to the Prevention of Infiltration Law that allowed asylum seekers to be detained without trial and was the trigger for the support for the bill. Under the bill, judicial review can be blocked in advance for any law legislated under this clause, as long as it states that it is valid “despite what is stated” in the basic law’: Aeyal Gross, ‘Analysis Knesset Bids to Override Those Pesky Human Rights’, Ha'aretz, 27 October 2014, http://www.haaretz.com/news/national/.premium-1.622896.

132 Budget Foundations Law (Amendment No 40), 2011, 686.

133 ibid.

134 Mordechai Kremnitzer and Amir Fuchs, ‘The Nakba Bill: A Test of the Democratic Nature of the Jewish and Democratic State’, The Israel Democracy Institute, 21 March 2011, http://en.idi.org.il/analysis/articles/the-nakba-bill-a-test-of-the-democratic-nature-of-the-jewish-and-democratic-state.

135 Draft Basic Law Bill: Israel – the Nation-State of the Jewish People, P/20/1989, s 1.

136 Draft Basic Law Bill: Israel – the Nation-State of the Jewish People, P/3541/18, s 4(b) (in Hebrew), available at: http://index.justice.gov.il/StateIdentity/ProprsedBasicLaws/Pages/DichtersProposal.aspx.

137 ibid s 9(B).

138 On ‘unconstitutional constitutional amendments’, namely, amendments that have been made pursuant to the formal requirements of the constitution but that deviate from its basic structure: Barak, Aharon, ‘Unconstitutional Constitutional Amendments’ (2011) 44 Israel Law Review 321Google Scholar.

139 As a result of strong criticism, the law that was eventually passed was a ‘softened’ version compared with the initial proposal: Barak Ravid, Jonathan Lis and Jack Khoury, ‘Netanyahu Pushing Basic Law Defining Israel as Jewish State’, Ha'aretz, 1 May 2014, http://www.haaretz.com/news/national/1.588478. For the objections of the Israeli Association for Civil Rights (ACRI) to the proposed Basic Law: Israel – The Nation-State of the Jewish People, see ‘Knesset Roundup June 17: Defining Israel as the Nation State of the Jewish People’, ACRI, 19 June 2014, http://www.acri.org.il/en/2014/06/19/kru16jun14. For ACRI's objections to the Nakba Law, see Hagai El-Ad and Hassan Jabareen, ‘“The Nakba Law” and its Implications’, ACRI, 15 May 2011, http://www.acri.org.il/en/2011/05/15/%E2%80%9Cthe-nakba-law%E2%80%9D-and-its-implications. For the Israel Democracy Institute (IDI) position on the Basic Law proposal and the Nakba Law, see, respectively Amir Fuchs and Mordechai Kremnitzer, ‘Basic Law: Israel as the Nation State of the Jewish People – A Danger to the Zionist Enterprise’, IDI, 12 May 2014, http://en.idi.org.il/analysis/articles/basic-law-israel-as-the-nation-state-of-the-jewish-people; Mordechai Kremnitzer and Roy Konfino, ‘Implications of the “Nakba Law” on Israeli Democracy’, IDI, 22 June 2009, http://en.idi.org.il/analysis/articles/implications-of-the-nakba-law-on-israeli-democracy. Researchers at the Institute for Zionist Strategies, on the other hand, promote the Basic Law proposal: Aviad Bakshi, ‘Basic Law Proposal: Israel as the Nation State of the Jewish People, the Liberal Justification’, The Institute for Zionist Strategies, http://www.izs.org.il/eng/?father_id=205&catid=451.

140 A survey conducted in 2014 found that 58% of the Jewish public in Israel support the Nakba Law and only about one-third oppose it: Chanan Cohen, ‘Israeli Public Opinion on Reducing Funding to Organizations that Mark Independence Day as the “Nakba”’, IDI, 7 May 2014, http://en.idi.org.il/analysis/articles/public-opinion-on-reducing-funding-to-organizations-that-mark-independence-day-as-the-nakba.

141 Draft Bill, Benefits for Those Who Contribute to the State, 2013, P/18/1596, s 5.

142 ibid s 2.

143 See the opinion of IDI researchers: Talya Steiner and Mordechai Kremnitzer, ‘The Contributors to the State Bill: Contributing to the Jewish-Arab Divide’, IDI, 29 October 2013, http://en.idi.org.il/analysis/articles/the-contributors-to-the-state-bill-contributing-to-the-jewish-arab-divide.

144 ibid.

145 A timely example is Basic Law: Referendum, 2014 (passed on 12 March 2014), which is the first new Basic Law since the constitutional revolution. The Basic Law requires holding a referendum on any treaty that involves giving up land to which Israeli law applies, including the Golan Heights and east Jerusalem, although not the West Bank. However, if more than 80 Knesset members support the treaty, it can be ratified without a referendum; if fewer than 61 Knesset members back the treaty, it will be rejected without the nation voting on it. It is noteworthy that the referendum will take place only in the event that such an agreement has been approved by the Knesset and the government (s 1). Under such circumstances, the public may either confirm or veto the agreement. However, in the event that the Knesset and the government vote against an agreement, the law does not stipulate a requirement to hold a referendum, and the public cannot voice its opinion on the matter in this way. The law was passed with a majority of 66 (out of 120 Knesset members). A law establishing the referendum had already been passed in 2010 as a regular law. Two months after its enactment, the High Court of Justice was petitioned to scrutinise the constitutionality of binding the discretion of future Knessets through a regular law. The High Court granted the government 90 days in which to present its reasons as to why it should not strike down the law. The Basic Law was passed within this time frame, accompanied by government members' critique of the Court's intervention in the legislation process.

146 Tamir (n 9).

147 cf Moshe Cohen-Eliya, ‘The Israeli Case of Transformative Constitutionalism’ in Gideon Sapir, Daphne Barak-Erez and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart 2013) 173, 173 (explaining that in transformative constitutions provisions are usually broadly formulated).

148 Constitution of the Republic of South Africa, 1996, s 8. See also Stuart Woolman, ‘Application’ in Stuart Woolman and Michael Bishop (eds), Constitutional Law of South Africa, Vol 2 (2nd edn, Juta 2006) 31–1, 31–62, 31–74 (describing the current legal situation and recommending changes).

149 Constitution of the Federal Constitution of the Swiss Confederation, 1999, art 35(3).

150 Constitution of India, art 15(2), prohibits discrimination on grounds of religion, race, cast, sex or place of birth with regard to services and places that serve the general public. It is noteworthy to mention that while the Constitution of Ireland does not include an explicit provision allowing for the horizontal application of constitutional rights, art 40(3) provides that the state has a duty to ‘defend and vindicate personal rights of the citizen’. This duty has been interpreted by the Irish courts to mean that non-state actors are bound by constitutional rights. The courts have thereby accepted constitutional claims alleging violations by non-state actors of these rights. That stated, constitutional claims of this kind are admissible only in circumstances in which common law remedies are inadequate or non-existent. Within this framework, the courts can develop the law to give full effect to the right complained of: Chirwa (n 26) 46.

151 Frank I Michelman, ‘Constitutions and the Public/Private Divide’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 298, 311.

152 ibid.

153 ibid.

154 Notwithstanding the relative clarity of s 8, controversy concerning the nature of the horizontal application (in/direct) has arisen among South African scholars. This is largely because of the interpretation of s 39(2) of the Constitution, especially when considered in relation to s 8. s 39(2) states that ‘when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’. Whereas some scholars interpret this provision as meaning that the constitutional rights can be applied to private conduct only indirectly, through interpretation of private law provisions, others have argued that s 39(2) does not exclude the model of direct applicability as constituted in s 8, but is an additional avenue. Analysing the leading case law on the issue, Chirwa concludes that s 39(2) should be read under s 8(3), the latter referring to the consideration of constitutional values in the development of common law: Chirwa (n 26) 39–43. Meiring concludes that there exists a broad consensus acknowledging that the final Constitution ‘allows limited scope for direct horizontality and rather broader scope for indirect horizontality’: Meiring, JJ, ‘A Revolution Deferred: The Impact of the South African Constitution on the Law of Contract’ (2011) 22(4) European Business Law Review 451, 451Google Scholar. For more on the heated academic debate concerning the interpretation of s 39(2), see Cornell, Drucilla and Friedman, Nick, ‘In Defence of the Constitutional Court: Human Rights and the South African Common Law’ (2011) 5(1) Malawi Law Journal 1Google Scholar.

155 Constitution of the Republic of South Africa (n 148) s 9(4) reads as follows: ‘No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination’. On a general note, the equality clause in the South African Constitution (s 9) is far more detailed than the US Fourteenth Amendment, the former including principles of protection, anti-discrimination, affirmative action and private action: Wing, Adrien K, ‘The South African Constitution as a Role Model for the United States’ (2008) 24 Harvard Black Letter Law Journal 73, 75Google Scholar.

156 Pursuant to s 9(4), several anti-discrimination laws have been passed, including the Film and Publication Act of 1996, the South African Schools Act of 1996, the Culture Promotion Amendment Act of 1998, the National Empowerment Fund Act of 1998, the Refugees Act of 1998, the Employment Equity Act of 1999, and the Promotion of Equality and the Prevention of Unfair Discrimination Act of 2000: Wing (n 155) 77–78.

157 ibid 74 (‘The notion of positive state duties implies that the government must do more to remedy injustice than wait until a plaintiff sues upon facing discrimination. The state must be proactive instead of reactive, realizing that inequality is structural as well as individual in nature’).

158 Minister of Finance & Another v Van Heerden 2004 (11) BCLR 1125 (CC), para 26 (‘The jurisprudence of this Court makes plain that the proper reach of the equality right must be determined by reference to our history and the underlying values of the Constitution. As we have seen, a major constitutional object is the creation of a non-racial and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights. From there emerges a conception of equality that goes beyond mere formal equality and mere non-discrimination which requires identical treatment, whatever the starting point or impact’).

159 Friedman (n 40).

160 ibid.

161 Meiring (n 154) 464.

162 ibid 452.

163 ibid 453.

164 That stated, a small strand of case law attributed an independent meaning to the concept of bona fides: ibid 453–54.

165 For an analysis of the case law on this matter, see ibid 454–58 (concluding that ‘by the time the new constitutional dispensation dawned in South Africa in 1994 its common law of contract was in substance and in method generally rigorous and conservative. It was a system firmly premised upon the notions that a man of legal capacity was best placed to protect his own interests and to augment his own estate and that judges were entitled only in very limited circumstances to dirty their feet in the dust of the contractual arena’).

166 ibid 460–63.

167 ibid 463–65, referring to the case of Barkhuizen v Napier 2007 (5) SA 323 (CC) (concerning the constitutionality of a time-bar clause in a short-term insurance contract, which the applicant argued to be contrary to public policy because it afforded an unreasonable time frame within which to institute action. The applicant also argued that the clause violated s 34 of the Constitution, which protects the right of access to courts).

168 ibid 465 (‘For the majority, members of the ruling white elite, the rules-based approach provided a safe haven in which they did not need to engage with greater, more demanding questions of the justice of a situation’).

169 ibid 465.

170 ibid.

171 Mautner identifies three ‘far-reaching changes’ in the Israeli Supreme Court's jurisprudence that occurred during the 1980s and the 1990s: first, the rise of judicial activism; second, the development of a new style of judicial reasoning, which entails an open discussion of the law's normative meaning and distributive implications (Mautner has coined this ‘the decline of formalism and the rise of values’); third, the change in the Court's self-perception: from a professional institution (the primary role of which is to settle disputes) to a political institution, participating in the shaping of values and in decisions involving distributive justice: Mautner (n 60) 54, 75.

172 ibid 85–96.

173 Catharine A Mackinnon, ‘Gender in Constitutions’ in Rosenfeld and Sajó (n 151) 397, 406–07 (Thus, for example, the constitutions of the People's Republic of China, the Dominican Republic, Iran, Yemen, and Zambia ‘rank up and down the sex inequality scale with little to no discernible relation between equality of the sexes in life and the strength of constitutional language’).

174 ibid 407.

175 For the analysis of this trend and its critique, see Mautner (n 60) 3–10.

176 Bitton (n 24) 488.