Israel’s “Constitutional Revolution”: A Thought from Political Liberalism
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Frank I. Michelman
Abstract
In his book The Purse and the Sword: The Trials of Israel’s Legal Revolution, Daniel Friedmann brings under critical inspection what he names as a legal revolution in Israel. Friedmann gives us, under that name, an account of a shift of certain major and sensitive state powers from elected leaders and legislators to politically insulated officials and judges. The Supreme Court’s construction of two Basic Law enactments of the twelfth Knesset into a justiciable, substantive “formal constitution” for Israel figures in Friedmann’s book as one component of the revolution, along with other judicial developments, including purposive interpretation of constitutional and other laws, an intensified form of common-law review of administrative actions for unreasonableness, and expansionary revisions to standing and justiciability. In all these developments, Aharon Barak took a leading part as judge and as scholar. I here consider to what extent these developments may be understood as responsive to promptings from a “political-liberal” conception of a justificational burden and need for substantive constitutional law. I reflect here on the possible pull of this conception in a political-cultural setting of a persisting widespread attachment to an idea of Israel as a member of the family of liberal constitutional states, and hence on Barak’s understanding of the role and responsibility of the Supreme Court. I speculate briefly about how far that pull may extend also to Professor Friedmann in his role of critic of the judicial handiwork of Barak and the Court on which he served.
© 2018 by Theoretical Inquiries in Law
Articles in the same Issue
- Frontmatter
- Introduction
- The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin
- Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources
- Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty
- Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space
- The “Commons” Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s “Tragedy”
- Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory
- Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)
- Indigenous Peoples, Political Economists and the Tragedy of the Commons
- Commons and Cognition
- Confronting Hardin: Trends and Approaches to the Commons in Historiography
- Give Us Back Our Tragedy: Nonrivalry in Intellectual Property Law and Policy
- Re-romanticizing Commons and Community in Israeli Discourse: Social, Economic, and Political Motives
- Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances
- Israel’s “Constitutional Revolution”: A Thought from Political Liberalism
Articles in the same Issue
- Frontmatter
- Introduction
- The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin
- Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources
- Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty
- Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space
- The “Commons” Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s “Tragedy”
- Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory
- Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context (1970-1990)
- Indigenous Peoples, Political Economists and the Tragedy of the Commons
- Commons and Cognition
- Confronting Hardin: Trends and Approaches to the Commons in Historiography
- Give Us Back Our Tragedy: Nonrivalry in Intellectual Property Law and Policy
- Re-romanticizing Commons and Community in Israeli Discourse: Social, Economic, and Political Motives
- Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances
- Israel’s “Constitutional Revolution”: A Thought from Political Liberalism
