Friday, December 15, 2006

On the Contemporary Challenges to Judicial Review

About a year ago the Knesset (the Israeli parliament) passed one of the most despicable laws ever enacted by it. Despite its innocent sounding name "The Civil Damages Law (State Responsibility), Amendment 7," this law sweepingly denies any Palestinian residents living in areas defined by the defense minister as confrontation zones of the right to compensation, apart from a few exceptions. Thus, for example, a Palestinian passerby who is blinded by negligent Israel Defense Forces' gunfire (a bullet accidentally discharged during non-operational activities, for example), and who lost his livelihood due to the incident, will receive no compensation. Even if it is proved that the bullet was fired maliciously, the victim will receive no compensation unless the guilty soldier is found and convicted, which is highly unlikely.

A few days ago, the Israeli Supreme Court found the law unconstitutional. In addition to the regular protests against the so-called activism of the Israeli Supreme Court, Israeli politicians ignorant of the changes brought by the basic laws in 1992 have challenged the power of the Court to declare laws unconstitutional. This power was not explicitly specified in the basic laws passed in 1992. Yet, in 1995 the Supreme Court declared it has such a power on the basis of the provisions of the basic laws.

Even if the Court was wrong in its decision in 1995, the power to review legislation has become since then a basic feature of the Israeli system. Challenging this important declaration is equivalent to challenging the American decision in Marbury v. Madison. Debates concerning the scope of the justified interference in legislative decision-making are of course important and legitimate. It is undesirable however that the question of whether courts have the power to review statutes is still debatable. Furthermore, unlike the American Constitution, Israeli basic laws can be amended relatively easily. If politicians wish to deprive the Court of its powers to review legislation, they can do so. Fundamental debates concerning the power of the Court undermine the legitimacy of the legal system as a whole.

13 comments:

Michael W. Dowdle said...

"It is undesirable however that the question of whether courts have the power to review statutes is still debatable. . . . Fundamental debates concerning the power of the Court undermine the legitimacy of the legal system as a whole."

I'm uncomfortable with this statement. Perhaps is not experience as a comparativist, but I don't think any particular feature of a constitutional system should be removed from the light of critical inquiry and investigation, no matter how fundamental. I think that no matter how fundamental, removing such a feature from the possibility of critical inquiry ultimately does much more damage to its legitimacy then the inquiry itself.

Alon Harel said...

Just to clarify my point. I do not think it ought to be removed from "the light of critical inquiry". I do not suggest censoring anybody.

I do not think all debates are equally fertile. It is unreasonable to expect judges to dismiss the constitutional tradition which has been established for 15 years. Legally speaking this question is moot.

The opponents ought to say that it is undesirable that there is judicial review and try to change it democratically. They have the legal means of doing it under the Israeli scheme.

Michael W. Dowdle said...

Thanks for this, it is very helpful. But I'm still a bit confused where you say that "it is unreasonable to expect judges to dismiss constitutional tradition which has been established for 15 years." Why? Didn't some of the greatest cases in American constitutional history do exactly that?

One possible response, and I don't know if this is what you mean, is to say that judges should not really engage in 'critical' inquiry. I actually think that this position is defensible -- it is certainly consistent with Ackerman's notion that judging is and should be an innately conservative act (conservatism is a form of ideology, and this buffers the role of critical inquiry). Is this what you mean? Of did you have something else in mind?

Alon Harel said...

I suspect there are different stages in the development of a legal system where some fundamental axioms have to be accepted. The nature of these axioms differ and the criteria for making such a determination are complex.

If the opponents of judicial review thought that judicial review is such an outrgeous practice equivalent to slavery I suspect there would be a good reason to fight against it even if it is judicially established.

I suspect however that this is not what the opponents believe. What they believe is that it is better not to have it. In a system like Israel where the basic laws can be easily changed they can pursue this agenda in the Parlaiment.

What I saying is there are two ways to fight judicial decisions one opposes. One is to claim that it is not law and the other is to claim that it is law but an undesirable law. This is the choice I am speaking of

Derek said...

Larry Kramer in *The People Themselves* argues that up until about 30 years ago, there was, and always had been, vigorous debate in the U.S. about whether judicial review should be understood as judicial supremacy (where the court has the last word) or departmentalism (where the court has the power of review, but can't trump the other branches with its own interpretation).

Is there a similar debate in Israel? That is, are the critics of Israeli judicial review critical of judicial supremacy, or of the power of the court to review legislation period?

Alon Harel said...

The politicians in Israel do not draw this distinction. I think their statements fall into the category of rejecting judicial review as such.

The issue raises a broader question. When one opposes a legal doctrine or a legal principle when should they argue that it is not law at all and when they should argue that it is an undesirable law. My criticism was not directed towards those who believe that judicial review is not desirable but against those who argue that the Israeli legal system does not grant such powers to the courts.

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