The Institutional Role of the Judiciary in Israel’s Constitutional Democracy

Abstract

Since Israel became a constitutional democracy in the 1990s, following the passage of human rights basic laws, the Judiciary had faced growing criticism pertaining to its role in the constitutionalization process. While some of the criticism leveled against the Judiciary is warranted, one should be mindful of the unique institutional role of the Judiciary in the Israeli democracy due to two background factors: the vulnerability of Israel’s system of human rights protections and the weak state of other potential checks and balances. Under these particular circumstances, the Supreme Court plays a pivotal role in preserving Israel as a liberal constitutional democracy. It fulfills such a role both directly, through upholding human rights via judicial review it exercises in defense of politically marginalized groups, and indirectly, through influencing the political discourse on human rights taking place within the other branches of government. Still, the Supreme Court has shifted in recent years towards a more restrained stance vis-a-vis the political system, offsetting thereby much of the earlier criticism directed against it for overreaching.