Public Law in Israel

By Itzhak Zamir; Allen Zysblat | Go to book overview

SECTION 2: NON-STATUTORY HUMAN RIGHTS

3
Protecting Fundamental Rights in Israel without a Written Constitution
ALLEN ZYSBLAT
1. Introduction
2. The Basic Principle
3. Statutory Interpretation
4. The Normative Sources
5. Scope of Judicial Review

1. Introduction

For the first forty-five years of its existence, Israel lived without a written constitution or any other written statement of the basic rights and freedoms of its citizens. The decision of Israel's Knesset to postpone the attempt to forge a legislative balance between public authority and individual freedoms1 meant that the task of safeguarding the basic liberties in Israel -- as in England -- was left to the courts.2

This judicial task was an especially daunting one in Israel. From the very beginning, Israel has been a 'democracy under siege'.3 The constant security crisis, the endemic social and ethnic tensions, as well as the

____________________
1
In the Harari Resolution of 1950. On this development see generally, R. Gavison, "The Controversy over Israel's Bill of Rights" ( 1985) 15 Is. YB on HR113.
2
For more detailed analysis of this phenomenon, see B. Bracha, "The Protection of Human Rights in Israel" ( 1982) 12 Is. YB on HR110; A. Shapira, "The Status of Fundamental Individual Rights in the Absence of a Written Constitution" ( 1974) 9 Is.LR497; G. Hausner, "The Right of the Individual in Court" ( 1974) 9 Is.LR477; J. Albert, "Constitutional Adjudication Without a Constitution: The Case of Israel" ( 1969) 82 Harvard LRev.1245; S. Shetreet, "The Reflections on the Protection of the Rights of the Individual: Form and Substance" ( 1977) 12 Is. LR32; I. Zamir, Rule of Law and Civil Liberties in Israel ( 1988) 7 CJQ64; A. Maoz, "Defending Civil Liberties Without a Constitution -- The Israeli Experience" ( 1988) 16 Melbourne University LR815.
3
Bracha, n. 2 above, at 110.

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