The Israeli judiciary-centered constitutionalism

Abstract

Abstract The article argues that over the years a series of gradual developments has taken place in the judicial review policies of Israel’s Supreme Court, whereby the Court expanded its ad hoc discretion in determining the constitutional limits that apply to primary legislation. Israeli constitutionalism has become judiciary-centered. The article suggests that judicial discretion that the Israeli Supreme Court tends to exercise in constitutional matters is of two types: substantive judicial discretion, which concerns the interpretation or application of the law; and adjudicative discretion, which includes both the discretion to deny in limine petitions in which the Court does not deem it necessary to grant relief according to considerations such as standing or delay; and the Court’s discretion in the manner of the hearing. The article suggests three illuminations of Israeli judiciary-centered constitutionalism: expenditure of the justices’ awareness of their discretion; the decline of the rules structuring judicial discretion; and a re-rise of the justices’ recognition of legitimacy of adjudicative discretion due to the expansion of substantive judicial discretion.