Judicial Activism in Israel

Abstract

Judicial activism has become increasingly significant to law and politics in Israel. The evolution of Israeli jurisprudence since the establishment of the State in 1948 includes an expanding role for the judiciary in determining the shape and content of the law. In this chapter I will discuss this phenomenon in relation to another frequently observed development — the growing use by Israeli judges of American legal precedents and scholarship. The purpose is not to suggest a causal relationship between the two, but to provide a point of reference with which to discuss some aspects of the character and implications of judicial activism in Israel. Also, while legal transplantation has figured prominently in many of the activist decisions of the Israeli Supreme Court, my focus will not be on the specific doctrinal importations that have been applied in these cases, but on the broader theory that has, in the United States, and to a lesser (but growing) extent in Israel provided jurisprudential support for judicial activism. The concern of the chapter is judicial activism in Israel; the approach will be to examine the fit between constitutional theory and constitutional adjudication where the two have evolved in separate and different political contexts.