Israeli Constitutional Law in the Making (Hart Studies in Comparative Public Law)

Israeli Constitutional Law in the Making (Hart Studies in Comparative Public Law)

By Gideon Sapir, Daphne Barak-Erez, Aharon Barak 

In the domain of comparative constitutionalism, Israeli constitutional law is a fascinating case-study constituted by 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, and social rights, as well as structural questions of judicial review. The book features contributions by leading scholars of Israeli constitutional law, with comparative comments by leading scholars of constitutional law from the US and Europe. (Series: Hart Studies in Comparative Public Law – Vol. 2)

Product Details

  • ISBN-13: 9781849464093
  • Publisher: Hart Publishing UK
  • Publication date: 7/14/2013
  • Series: Hart Studies in Comparative Public Law
  • Pages: 605

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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 1
Gideon Sapir, Daphne Barak-Erez and Aharon Barak
Part 1 Towards a Full-Fledged Constitution
2. Why a Constitution – in General and in Particular in the Israeli Context? 9
Gideon Sapir
3. The Right to Judicial Review: The Israeli Case 25
Alon Harel
4. The Purpose of the Israeli Constitution 41
Ariel L Bendor
5. Consensus, Dissensus, and Constitutionalism 59
Sanford Levinson
Part 2 Models of Judicial Review in Israeli Constitutional Law
6. Majestic Constitutionalism? The Notwithstanding Mechanism in Israel 73
Tsvi Kahana
7. Constitutional Adjudication and Political Accountability: Comparative
Analysis and the Peculiarity of Israel 91
Yoav Dotan
8. Justifying Judicial Review: The Changing Methodology of the Israeli
Supreme Court 105
Joshua Segev
9. The Democratic Case for Diffuse Judicial Review in Israel 121
Ori Aronson
10. Constitutional Adjudication in Israel: Some Comments 139
Víctor Ferreres Comella
Part 3 Global Impacts on Israeli Constitutional Law
11. The Use of Foreign Law in Israeli Constitutional Adjudication 151
Iddo Porat
12. The Israeli Case of a Transformative Constitutionalism 173
Moshe Cohen-Eliya
13. Proportionality in Israel and Beyond: Four Aspects 189
Margit Cohn
14. Constitutional Law in an Age of Globalization 205
Vicki C Jackson
Part 4 Balancing in Israeli Constitutional Law
15. Constitutional Proportionality: (Appropriate) Guidelines 225
Mordechai Kremnitzer
16. The Deficiencies of Balancing: Restricting Speech due to Offence to Feelings 239
Yaacov Ben-Shemesh
17. Proportionality: Comparative Perspectives on Israeli Debates 255
Sujit Choudhry
Part 5 ‘Unenumerated Rights’ in Israeli Constitutional Law
18. Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in
Israel: Definitions and Parameters 267
Tamar Hostovsky Brandes
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 285
Sharon Weintal
20. Perpetual Constitutional Moments: A Reply to Hostovsky Brandes and Weintal 303
David Fontana
Part 6 Social Rights in Israel
21. In Search of the Right to Health in Israeli Constitutional Law 311
Aeyal Gross
22. The Fiscal Objection to Social Welfare Rights: A Closer Look 333
Amir Paz-Fuchs
23. Constitutional Review of ‘Eligibility Conditions’ in Social Rights Litigation 349
Neta Ziv
24. The New Consensus on Enforcing Social Welfare Rights: Comments on
Three Papers 369
Mark Tushnet
Part 7 Constitutional Rights and Private Law
25. Constitutional Rights and Private Law 379
Aharon Barak
26. Human Rights in Private Law: Hybridization of the Balancing Tests 401
Michal Tamir
27. Private Actors and Constitutional Rights 419
Stephen Gardbaum
Part 8 Constitutional Rights and ‘State of Emergency’
28. The National Security Constitution and the Israeli Condition 429
Daphne Barak-Erez
29. The Role of the Legislature in Determining Legitimate Responses to
Security Threats: The Case of Israel 445
Barak Medina
30. Of Law, Constitutions and Security 461
Adam Tomkins
Part 9 Israel – ‘Jewish and Democratic’
31. Jewish and Democratic: Three Zionisms and Post-Zionism 473
Chaim Gans
32. A Jewish Nation-State: A Discussion in Light of the Family Reunification Case 487
Aviad Bakshi and Gideon Sapir
33. National Identity and Religion–State Relations: Israel in Comparative
Perspective 503
Gila Stopler
34. The Dilemmas of Identity in a Jewish and Democratic State: A Comparative
Constitutionalist Perspective on Bakshi and Sapir, Gans, and Stopler 517
Susanna Mancini and Michel Rosenfeld
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