Israeli Constitutional Law in the Making

Israeli Constitutional Law in the Making


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In the domain of comparative constitutionalism, Israeli constitutional law is a fascinating case study constituted of many dilemmas. It is moving from the old British tradition of an unwritten constitution and no judicial review of legislation to fully-fledged constitutionalism endorsing judicial review and based on the text of a series of basic laws. At the same time, it is struggling with major questions of identity, in the context of Israel's constitutional vision of 'a Jewish and Democratic' state. Israeli Constitutional Law in the Making offers a comprehensive study of Israeli constitutional law in a systematic manner that moves from constitution-making to specific areas of contestation including state/religion relations, national security, social rights, as well as structural questions of judicial review. It features contributions by leading scholars of Israeli constitutional law, with comparative comments by leading scholars of constitutional law from Europe and the United States.

Product Details

ISBN-13: 9781849464093
Publisher: Hart Publishing
Publication date: 07/14/2013
Series: Hart Studies in Comparative Public Law Series , #2
Pages: 578
Product dimensions: 6.14(w) x 9.21(h) x 0.86(d)

About the Author

Gideon Sapir is a Professor of Constitutional Law at the Faculty of Law of Bar-Ilan University.Daphne Barak-Erez is a Justice of the Supreme Court of Israel. She was formerly Dean of the Faculty of Law at Tel Aviv University.Aharon Barak served as the President of the Supreme Court of Israel and is currently Professor of Law at the IDC.

Table of Contents

Acknowledgements v

List of Contributors xi

Table of Cases xiii

Table of Legislation and Documents xxvii

1 Introduction: Israeli Constitutional Law at the Crossroads Gideon Sapir Daphne Barak-Erez Aharon Barak 1

Part 1 Towards a Full-Fledged Constitution

2 Why a Constitution - in General and in Particular in the Israeli Context? Gideon Sapir 9

3 The Right to Judicial Review: The Israeli Case Alon Harel 25

4 The Purpose of the Israeli Constitution Ariel L Bendor 41

5 Consensus, Dissensus, and Constitutionalism Sanford Levinson 59

Part 2 Models of Judicial Review in Israeli Constitutional Law

6 Majestic Constitutionalism? The Notwithstanding Mechanism in Israel Tsvi Kahana 73

7 Constitutional Adjudication and Political Accountability: Comparative Analysis and the Peculiarity of Israel Yoav Dotan 91

8 Justifying Judicial Review: The Changing Methodology of the Israeli Supreme Court Joshua Segev 105

9 The Democratic Case for Diffuse Judicial Review in Israel Ori Aronson 121

10 Constitutional Adjudication in Israel: Some Comments Víctor Ferreres Comella 139

Part 3 Global Impacts on Israeli Constitutional Law

11 The Use of Foreign Law in Israeli Constitutional Adjudication Iddo Porat 151

12 The Israeli Case of a Transformative Constitutionalism Moshe Coben-Eliya 173

13 Proportionality in Israel and Beyond: Four Aspects Margit Cohn 189

14 Constitutional Law in an Age of Globalization Vicki C Jackson 205

Part 4 Balancing in Israeli Constitutional Law

15 Constitutional Proportionality: (Appropriate) Guidelines Mordechai Kremnitzer 225

16 The Deficiencies of Balancing: Restricting Speech due to Offence to Feelings Yaacov Ben-Shemesh 239

17 Proportionality: Comparative Perspectives on Israeli Debates Sujit Choudbry 255

Part 5 'Unenumerated Rights' in Israeli Constitutional Law

18 Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in Israel: Definitions and Parameters Tamar Hostovsky Brandes 267

19 The Inherent Authority of Judges in a Three-Track Democracy to Recognise Unenumerated Constitutional Rights: The Israeli Story of a Judicial Mission with No Ammunition Sharon Weintal 285

20 Perpetual Constitutional Moments: A Reply to Hostovsky Brandes and Weintal David Fontana 303

Part 6 Social Rights in Israel

21 In Search of the Right to Health in Israeli Constitutional Law Aeyal Gross 311

22 The Fiscal Objection to Social Welfare Rights: A Closer Look Amir Paz-Fuchs 333

23 Constitutional Review of 'Eligibility Conditions' in Social Rights Litigation Neta Ziv 349

24 The New Consensus on Enforcing Social Welfare Rights: Comments on Three Papers Mark Tushnet 369

Part 7 Constitutional Rights and Private Law

25 Constitutional Rights and Private Law Aharon Barak 379

26 Human Rights in Private Law: Hybridization of the Balancing Tests Michal Tamir 401

27 Private Actors and Constitutional Rights Stephen Gardbaum 419

Part 8 Constitutional Rights and 'State of Emergency'

28 The National Security Constitution and the Israeli Condition Daphne Barak-Erez 429

29 The Role of the Legislature in Determining Legitimate Responses to Security Threats: The Case of Israel Barak Medina 445

30 Of Law, Constitutions and Security Adam Tomkins 461

Part 9 Israel - 'Jewish and Democratic'

31 Jewish and Democratic: Three Zionisms and Post-Zionism Chaim Gans 473

32 A Jewish Nation-State: A Discussion in Light of the Family Reunification Case Aviad Bakshi Gideon Sapir 487

33 National Identity and Religion-State Relations: Israel in Comparative Perspective Gila Stopler 593

34 The Dilemmas of Identity in a Jewish and Democratic State: A Comparative Constitutionalist Perspective on Bakshi and Sapir, Gans, and Stopler Susanna Mancini Michel Rosenfeld 517 517

Index 531

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