The Use of Foreign Law in Israeli Constitutional Adjudication

Abstract

Israel's Supreme Court is amongst the leading courts in the world in citing foreign law. It therefore provides a fascinating comparative perspective for the American foreign law debate. This article summarizes existing empirical evidence for the use of foreign law in Israeli constitutional law, explains the reasons for this extensive use, and assesses it. Among the explanations for this extensive use, the article points out the fact that Israel has no written constitution, but a very active judiciary that has relied on foreign law to develop a judge-made set of constitutional rights, and the fact that Israel is geopolitically isolated and wishes to break this isolation through the use of foreign law. As to assessment, the article argues that American-based objections to the use of foreign law, such as those based on originalism, are largely irrelevant to Israeli constitutional culture. There are, however, valid objections to the use of foreign law in Israel based on the effects of globalization. Analogizing to a similar phenomenon identified in New Zealand ,the article argues that the use of foreign law in Israel has a ratcheting up effect with regard to the scope of constitutional rights, and involves the Israeli Court in a race to the top over the protection of rights vis a vis different constitutional court. Having no solid textual basis to rely on, nor strong public support, this move poses dangers for the legitimacy of the Israeli Supreme Court.