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Notes
Yoram Rabin is a senior lecturer in the School of Law, the College of Management, Academic Studies Division. Yuval Shany is the Hersch Lauterpacht Chair in Public International Law, Law Faculty, Hebrew University of Jerusalem.The authors thank Prof. Barak Medina and Prof. David Enoch for their insightful comments on an earlier draft of this article.
1. See Linda M. Keller, ‘The American Rejection of Economic Rights as Human Rights and the Declaration of Independence: Does the Pursuit of Happiness Require Basic Economic Rights?’, N.Y.L. Sch. J. Hum. Rts., Vol. 19 (2003), pp. 557, 561.
2. See Maurice Cranston, ‘Human Rights, Real and Supposed’, in D.D. Rapheal (ed.), Political Theory and the Rights of Man, London, 1967, pp. 43, 49.
3. See Michael J. Dennis and Dennis P. Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: Should There be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’, Am. J. Int'l. L., Vol. 98 (2004), pp. 462, 472.
4. See International Covenant on Economic, Social and Cultural Rights, 16 December 1966, art. 2(1), 993 U.N.T.S. 3 (hereinafter, ICESCR).
5. Louis Henkin, ‘Revolutions and Constitutions’, La. L. Rev., Vol. 49 (1989), pp. 1023, 1054–1055; Herman Schwartz, ‘Do Economic and Social Rights Belong in a Constitution?’, Am. U.J. Int'l L. & Pol'y, Vol. 10 (1995), p. 1233.
6. Andrei Marmor, ‘Bikoret Shiputit Be-Yisrael’ (Judicial Review in Israel), Mishpat U-Mimshal, Vol. 4 (1997–1998), p. 133; Ali Zaltzberger and Alexander Kedar, ‘Ha-Ma'hapecha Hashketa—Od Al Bikoret Shiputit Lefi Hukei Hayesod Hahadashim’ (The Silent Revolution—More on Judicial Review under the New Basic Laws), Mishpat U-Mimshal, Vol. 4 (1997–1998), pp. 489, 504.
7. Ran Hirschl, ‘Israel's Constitutional Revolution: The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order’, Am. J. Comp. L., Vol. 46 (1998), pp. 427, 432.
8. See National Insurance Law (Consolidated Version), 1995; Compulsory Education Law, 1949; National Health Insurance Law, 1994; Work and Leisure Hours Law, 1951; Annual Leave Law, 1951. One should note in this regard that Israel ratified in 1991 the ICESCR and that some notable Supreme Court decisions reaffirmed the importance of social rights. See e.g. H.C.J. 164/97, Contram Ltd. v. Ministry of Finance—Custom and VAT Department, 52(1) P.D. 289; H.C.J. 4905/98, Gamzu v. Yeshayau, 55(3) P.D. 360; H.C.J. 2599/00, YATED—Association for Parents of Downs Syndrome Children v. Minister of Education, 56(5) P.D. (2002) 843; H.C.J. 6973/03, Marciano v. Minister of Finance, 58(2) P.D. 270.
9. Ruth Gavison, Mordechai Kremnitzer and Yoav Dotan, Activism Shiputi—Be'ad Ve-Neged (Judicial Activism—For and Against), Jerusalem, 2000.
10. Yoav Dotan, ‘Beit Hamishpat Ha-Elyon Ke-Magen Zchuyot Hevratiot’ (The Supreme Court as the Protector of Social Rights), in Yoram Rabin and Yuval Shany (eds.), Zchuyot Kalkalyot, Hevratiot Ve-Tarbutiot Be-Yisrael (Economic, Social and Cultural Rights in Israel), Tel Aviv, 2004, pp. 69, 72–73 (hereinafter Rights in Israel).
11. Yoram Rabin and Yuval Shany, ‘The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?’, Is. L.R., Vol. 38 (2005), p. 299; Yoram Rabin and Yuval Shany, ‘Zchuyot Hevratiot—Ra'ayon She-higia Zmano’ (Social Rights—An Idea Whose Time has Come), in Rabin and Shany, Rights in Israel, pp. 11, 18.
12. 5 DK 1743 (1950).
13. Basic Law: The Knesset, 12 LSI 85 (1958); Basic Law: The Government, 22 LSI 257 (1969); Basic Law: The President of the State, 18 LSI 111 (1964); Basic Law: The Judicature, 38 LSI 101 (1984); Basic Law: The State Comptroller, SH 1988, No. 1237, p. 30 (1988); Basic Law: Israeli Land, 14 LSI 48 (1960); Basic Law: State Economy, 29 LSI 273 (1975); Basic Law: The Armed Forces, 30 LSI 150 (1976); Basic Law: Jerusalem, the Capital of Israel, 34 LSI 209 (1980).
14. See H.C.J. 292/83, Mount Temple Faithful Association v. Chief of the Jerusalem District Police, 38(2) P.D. 449, 454; H.C.J. 680/88, Shnitzer v. Chief Military Censor, 42(4) P.D. 617, 627.
15. See H.C.J. 7/48, Al-Karbutli v. Minister of Defence, 2 P.D. 5.
16. See H.C.J. 1/49, Bejerano v. Minister of Police, 2 P.D. 80.
17. See H.C.J. 73/53, Kol Ha‘am v. Minister of Interior, 7 P.D. 871. For an English version, see Selected Judgments of the State of Israel, Vol. 1 (1953), p. 90.
18. See H.C.J. 262/62, Peretz v. Local Council of Kfar Shmaryahu, 16 P.D. 2101. For an English version, see Selected Judgments of the State of Israel, Vol. 4 (1962), p. 191.
19. See H.C.J. 509/80, Younes v. Director General of the Office of the Prime Minister, 35(3) P.D. 589; H.C.J. 953/87, Poraz v. Mayor of Tel Aviv-Yaffo, 42(2) P.D. 309, 332–333.
20. See H.C.J. 3/58, Berman v. Minister of the Interior, 12 P.D. 1493. For an English version, see Selected Judgments of the State of Israel, Vol. 3 (1958), p. 29. Judge-made rights have sometimes been also referred to as the Israeli ‘judicial bill of rights’. See H.C.J. 112/77, Fogel v. Israel Broadcasting Authority, 31(3) P.D. 657, 664.
21. H.C.J. 2599/00, YATED.
22. See H.C.J. 6488/02, National Committee of Heads of Arab Municipalities in Israel v. Committee of Ministry Directors for Specific Action in Municipalities (not yet published); H.C.J. 2814/97, Supreme Supervisory Council for Arab Education in Israel v. Ministry of Education, Culture and Sport, 54(3) P.D. 233; H.C.J. 727/00, National Committee of Heads of Arab Municipalities in Israel v. Minister of Construction and Housing, 56(2) P.D. 79. One could also claim that the court's affirmative jurisprudence contributes to the closing of social gaps. See e.g. H.C.J. 2671/98, Israeli Woman's Network v. Minister of Labour and Welfare, 52(3) P.D. 630; H.C.J. 6924/98, Association for Civil Rights in Israel v. Government of Israel, 55(5) P.D. 15. For a theoretical discussion of the right to economic equality, see Andrei Marmor, ‘The Intrinsic Value of Economic Equality’, in Lukas H. Meyer, Stanley L. Paulson and Thomas W. Pogge (eds.), Rights, Culture and the Law—Themes from the Legal and Political Philosophy, Oxford, 2003, p. 127.
23. See C.A. 6871/99, Rinat v. Rom, 56(4) P.D. 72, 92; 482; V.C.P 4459/94, Salmonov v. Sharbani, 49 P.D. 479, 482; C.A. 524/88, Pri Ha'Emek—Agricultural Cooperative Association Inc. v. Sde Ya'akov—Workers Cooperative Village, 48(4) P.D. 529, 561; H.C.J. 693/91, Efrat v. Population Registry Supervisor, Ministry of the Interior, 47(1) P.D. 749, 763; Yoram Rabin, Hazchut Lehinuch (The Right to Education), Jerusalem, 2003, p. 339.
24. Basic Law: Human Dignity and Liberty, 1992, S.H. 150, translated in Is. L.R., Vol. 31 (1997), p. 21.
25. Basic Law: Freedom of Occupation, 1992, S.H. 114, translated in Is. L.R., Vol. 31 (1997), pp. 21–25.
26. A prior example of a constitutional supremacy arrangement may be found in article 4 of the Basic Law: The Knesset, which pronounces, among other things, the right to equality in voting to the Knesset. This article contains a so-called ‘entrenchment clause’ providing that its provisions shall not be amended except by a special majority vote in the Knesset. In 1969, the Supreme Court invalidated legislation conflicting with the entrenchment provision since it was not adopted by the requisite majority. See H.C.J. 98/69, Bergman v. Minister of Finance, 23 P.D. 639, translated and abridged in Isr L.R., Vol. 4 (1969), p. 577.
27. Basic Law: Freedom of Occupation even subjected antecedent legislation to its provisions. Basic Law: Freedom of Occupation, art. 8.
28. Basic Law: Human Dignity, article 8; Basic Law: Freedom of Occupation, article 4. Basic Law: Freedom of Occupation also contains in article 7 a ‘procedural entrenchment clause’, which requires an absolute majority in the Knesset in order to amend the Basic Law.
29. The term ‘constitutional revolution’ had been coined by Professor Aharon Barak—then a Justice of the Israeli Supreme Court and subsequently the President of the Supreme Court—in an article published in 1992. Aharon Barak, ‘Ha-Ma'hapecha Ha-Hukatit: Zchuyot Adam Muganot’ (The Constitutional Revolution: Protecting Human Rights), Mishpat U-Mimshal, Vol. 1 (1992), p. 9. See also Aharon Barak, ‘The Constitutionalization of the Israeli Legal System as Result of the Basic Laws and its Effect on Procedural and Substantive Criminal Law’, Is L.R., Vol. 31 (1997), p. 3. But see Ruth Gavison, ‘A Constitutional Revolution?’, in Antonio Gambaro and Mordechai Rabello (eds.), Towards a New European Ius Commune, Jerusalem, 1999, p. 517.
30. See CA 6821/93 Bank Hamizrachi Hameuhad Ltd. v. Migdal Cooperative Village, 49(4) P.D. 221, 567 (Heshin, J., dissenting).
31. See CA 6821/93 Bank Hamizrachi Hameuhad Ltd. v. Migdal Cooperative Village, pp. 352–355.
32. H.C.J. 1715/97, Israeli Investment Managers Bureau v. Minister of Finance, 51(5) P.D. 367; H.C.J. 6055/95, Tsemach v. Minister of Defence, 53(5) P.D. 241; H.C.J. 1030/99, Oron v. Chairman of Knesset, 56(3) P.D. 640; Gaza Beach Regional Council v. Knesset of Israel, 59(2) P.D. 481; H.C.J. 8276/05 Adalah—Legal Centre for Arab Minority Rights v. Minister of Defence, judgment of 12 December 2006.
33. This could be attributed to the opposition of powerful Jewish religious parties in the Knesset to the competence of post-‘constitutional revolution’ courts to strike down legislation protecting religious interests. See Lili Galili, ‘Benizri: Nitnaged Gam Le-Aseret Ha-Dibrot Ke-Hok Yesod’ (Benizri: We Will Also Oppose the Ten Commandments as a Basic Law), Ha'aretz Online, (available at www.haaretz.co.il), 3 July 1997.
34. Draft Basic Law: Social Rights, 1994, S.H. 326.
35. H.C.J. 453/94, Israel Women's Network v. Government of Israel, 48(5) P.D. 501 (per Maza, J.); H.C.J. 4541/94, Miller v. the Minister of Security, 49(4) P.D. 94 (per Dorner, J.).
36. H.C.J. 2481/93, Dayan v. Vilk, 48(2) P.D. 456.
37. H.C.J. 5016/96 Horev v. Minister of Transportation, 51(4) P.D. 1; H.C.J. 4298/93, Jabbarin v. Minister of Education, 48(5) P.D. 199; H.C.J. 3261/93, Menning v. Minister of Justice, 47(3) P.D. 282.
38. C.A. 6024/97, Shavit v. Hevra Kadisha GHSA Rishon Le Zion, 53(3) P.D. 600, 649; H.C.J. 6111/94, Committee of Tradition Protectors v. Israel Supreme Rabbinical Council, 49(5) P.D. 95, 106.
39. C.A. 239/92, Egged—Israel Transportation Cooperative Union Ltd. v. Mashiah, 48(2) P.D. 66, 72; Gabriela Shalev, Dinei Hozim (The Law of Contracts), 2nd edition, Jerusalem, 1995, p. 25.
40. See e.g. Hillel Sommer, ‘Mi-Yaldut Le-Bagrut: Sugiot Ptuchot Be-Yisuma Shel Ha-Ma'hapecha Ha-Hukatit’ (From Childhood to Adulthood: Open Questions in the Application of the Constitutional Revolution), Mishpat Ve-Asakim, Vol. 1 (2004), pp. 59, 66.
41. See H.C.J. 4905/98, Gamzu; H.C.J. 4128/02 Adam, Teva Va-Din v. Prime Minister of Israel, 58(3) P.D. 503; H.C.J. 1384/04, B'tsedek—American–Israel Centre for Promotion of Justice in Israel v. Minister of the Interior, at para. 14 (not yet published); H.C.J. 5578/02 Manor v. Minister of Finance, 59(1) P.D. 729; H.C.J. 494/03, Physicians for Human Rights v. Minister of Finances, 59(3) P.D. 322; H.C.J. 366/03, Association for Commitment to Peace and Social Justice v. Minister of Finance (not yet published).
42. H.C.J. 4542/02, Hotline for Workers v. Government of Israel (not yet published). Note that the free choice of employment may also be covered by Basic Law: Freedom of Occupation.
43. H.C.J. 494/03, Physicians for Human Rights, at para. 18.
44. We have discussed elsewhere some possible explanations for the court's relative lack of interest in promoting social rights. Rabin and Shany, ‘The Israeli Unfinished Constitutional Revolution’.
45. However, there is little evidence in practice that the Supreme Court has been reluctant until now to limit civil and political rights in order to further social interests. See H.C.J. 450/97, Tnuffa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs, 52(2) P.D. 433. See also Dotan, ‘Supreme Court as Protector’, pp. 113–119.
46. See Ruth Ben-Israel, ‘Dinei Avoda’ (Labour Laws), Israel Yearbook of Law (1992–1993), p. 433; Aeyal Gross, ‘Ha-Huka Ha-Yisraelit: Kli Le'Tzedek Halukati o Kli Negdi?’ (The Israeli Constitution: A Tool for Distributive Justice, or A Tool Which Prevents It?), in Menachem Mautner (ed.), Tsedek Halukati Be-Yisrael (Distributive Justice in Israel), Tel Aviv, 2000, pp. 79–96.
47. See Frank E.L. Deale, ‘The Unhappy History of Economic Rights in the United States and Prospects for their Creation and Renewal’, How. L.J., Vol. 43 (2000), p. 281; Cass R. Sunstein ‘Why Does the American Constitution Lack Social and Economic Guarantees?’, Chicago Public Law and Legal Theory Working Paper (2003), p. 36, available at www.law.uchicago.edu/academics/publiclaw/resources/36.crs.constitution.pdf.
48. Constitution of Ireland, article 45.
49. German Basic Law, article 20(1) (‘The Federal Republic of Germany is a democratic and social federal state’). For discussion of the status of social rights under the German Basic Law, see Peter E. Quint, ‘The Constitutional Guarantees of Social Welfare in the Process of German Unification’, Am. J. Comp. L, Vol. 47 (1999), p. 303.
50. Indian Constitution, art. 36–51.
51. Jamie Cassels, ‘Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?’, Am. J. Comp. L., Vol. 37 (1989), p. 495; Guy Seidman, ‘Zchuyot Hevratiot: Mabat Hashva-ati Le-Hodu Ve-Le-Drom Africa’ (Social Rights: A Comparative Look at India and South Africa), in Rabin and Shany, Rights in Israel, pp. 347, 356–374.
52. Constitution of the Republic of South Africa, article 23–30. See discussion in Pierre De Vos, ‘Pious Wishes or Directly Enforceable Human Rights? Social and Economic Rights in South Africa's 1996 Constitution’, South Africa Journal of Human Rights, Vol. 13 (1997), p. 67; Albie Sachs, ‘The Creation of South Africa's Constitution’, N.Y.L. Sch. L. Rev., Vol. 41 (1997), p. 669.
53. Constitution of Finland, art. 16–20.
54. Declaration on the Establishment of the State of Israel (‘The State shall maintain complete equality in social and political rights to all of its citizens, without distinction … It shall ensure freedom of religion, conscience, language, education and culture’) (emphasis added).
55. In addition to the South African and Finnish Constitutions, one may note, for example the following instruments: Charter of Basic Rights and Fundamental Freedoms (Czech Republic), art. 26–35; Constitution of Poland, art. 64–78; Interim Iraqi Constitution, art. 14; Constitution of the Democratic Republic of East Timor, ss. 50–61.
56. See Judy Siegel, ‘Health Basket Expanded by NIS 150m, but Won't get Automatic Yearly Update’, Jerusalem Post, 22 March 2005.
57. Israel Democracy Institute, Sugiyat Ha-Igun Shel Zchuyot Hevratiot Ba-Huka: Hakinus Ha-Tshiy'i (The Question of Incorporation of Social Rights in the Constitution: Proceedings of the 9th Session of the Public Council), Jerusalem, 2003, 76.
58. See Committee on Constitutional, Legislative and Legal Affairs, Huka Be-Haskama Rehava (Constitution by Wide Consensus), Jerusalem, 2006, art. 17–20, available through www.knesset.gov.il/huka/.
59. Avi Ben-Bassat and Momi Dahan, Zchuyut Hevratiot Ba-Huka Ve-Mediniyut Kalkalit (Social Rights in the Constitution and Economic Policy), Jerusalem, 2004, p. 102. It should be noted however that Ben-Bassat and Dahan are of the view that there is no direct link between constitutionalization of social rights and government spending on social programmes. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change?, Chicago, 1991, p. 336.
60. Israel Democracy Institute, Hatza'a Le-Huka Be-Haskama (Proposal for a Constitution by Consensus), (2005), Chapter Two: Fundamental Human Rights, http://www.e-q-m.com/clients/Huka/huka_01.html (hereinafter IDI Draft Constitution). The full article provides: ‘Rights protected by the Constitution shall not be impaired, but through legislation compatible with the values of the State of Israel, designed for a worthy purpose, and not excessive, or through by-laws specifically authorized by such legislation, which preserves, to the largest possible degree, the essence of the right’ (unofficial translation).
61. IDI Draft Constitution, chapter 2, art. 32 provides that: ‘(a) The State of Israel shall endeavour to promote the personal and economic welfare of its citizens and residents out of recognition of human dignity. b) The scope of the social rights enumerated in articles 33–36 shall be specified in legislation or secondary legislation.’ Article 33 provides that ‘The State of Israel shall act to promote social security’; article 34 provides that: ‘The State of Israel shall ensure public health and shall guarantee the provision of health service’; article 35 provides that: ‘(a) The State of Israel shall diligently advance education out of recognition of its value and importance to the development of human spirit and talent and to ensure equal opportunities to all of its residents; (b) ensure thirteen years of free education, the first eleven being compulsory’; article 36 provides: ‘The State of Israel shall act to maintain decent conditions of work out of recognition of the value of work.’
62. IDI Draft Constitution, chapter 2, art. 15(a) (‘everyone has the right to life, body integrity and dignity’). See also chapter 2, art. 31 (the right to strike); chapter 2, art. 37(a) (children's right to basic subsistence and development).
63. Significantly, the position of the IDI echoes a 1998 government-sponsored draft Basic Law: Social Rights, which also included mere hortatory reference to the need to protect social interests. Draft Basic Law: Social Rights, article 3, in Ministry of Justice, Basic Laws Memorandum, 25 January 1998 (copy with authors) (‘The State of Israel shall diligently promote and develop the conditions necessary to ensure its residents’ subsistence in human dignity, including in the fields of labour, education, health, social welfare and environmental protection. All as determined in law, or according to law or governmental decisions’).
64. See Guy Mundlak, ‘Zchuyot Hevratiot-Kalkaliot Ba-Siah Hachukati Ha-Hadash: Mi-Zchuyot Hevratiot La-Meimad Ha-Hevrati Shel Zchuyot Ha-Adam’ (Socio-Economic Rights in the New Constitutional Discourse: From Social Rights to the Social Dimension of Human Rights), Shnaton Mishpat Ha-Avoda, Vol. 7 (1999), p. 65; Ruth Ben-Israel, ‘Hashlachot Hukei Ha-Yesod Al Hukei Ha-Avoda’ (The Impact of the Basic Laws on Labour Law), Shnaton Mishpat Ha-Avoda, Vol. 4 (1994), pp. 27, 31; Gross, ‘The Israeli Constitution: A Tool for Distributive Justice’; Michael Atlan, ‘Zchuyot Ha-Adam Ve-Haezrach Be-Yisrael—Mikra'a’ (Human and Civil Rights in Israel—A Text Book), Mishpatim, Vol. 22 (1993), p. 251; Anat Maor, ‘Hor Paur Be-Sefer Hahukim: Hatza'at Hok Yesod Zchuyot Hevratiot: Chronika Shel Kishlon Ha-Hakika’ (A Gaping Hole in the Law Gazette: Draft Basic Law: Social Rights—Chronicle of a Legislative Failure), in Rabin and Shany, Rights in Israel, p. 195; IDI, Question of Incorporation, pp. 67–68, 70–72, 78–79, 99–100, 105–106.
65. See Draft Basic Law: Social Rights (P1634) (submitted 1 December 2003); Draft Basic Law: Social Rights (P2581) (submitted 5 March 2001).
66. Ruth Gavison, ‘Al Ha-Yahasim Bein Zchuyot Ezrahiot-Mediniot U-Bein Zchuyot Kalkaliot-Hevratiot’ (On the Relations between Civil-Political Rights and Socio-Economic Rights), in Rabin and Shany, Rights in Israel, pp. 25, 66. For similar positions, see Jeremy Waldron, Law and Disagreement, Oxford, 1999, pp. 255–312; Mark Tushent, Taking the Constitution Away from the Courts, Princeton, NJ, 1999, pp. 129–176.
67. See Robert Nozick, Anarchy, State and Utopia, New York, 1974. According to Nozick, taxation could be justified only if it is designed to sustain the state's function as a ‘night watchman’; taxation designed to serve re-distributional agendas violates fundamental human rights—because it compels taxed individuals to labour for the welfare of others, it constitutes a form of slavery. For support, see Samuel Scheffler, ‘Natural Rights, Equality and the Minimal State’, in Paul Jeffrey (ed.), Reading Nozick: Essays on Anarchy, State and Utopia, Oxford, 1981, p. 148; Chandran Kukathas and Philip Petit, Rawls—A Theory of Justice and its Critics, Stanford, CA, 1990, p. 76. Naturally, the Nozikian model has also attracted considerable criticism. G.A. Cohen, Self-Ownership Freedom and Equality, Cambridge, 1995, pp. 19–37. In addition, it had been argued that the provision of public services and the empowerment of weak groups, facilitated by taxation, could promote the general welfare, including that of the taxpayers (it might be more efficient to fight crime through welfare programmes than through policing). See also John Rawls, A Theory of Justice, Cambridge, 1971, p. 303 (the ‘maximin’ moral principle supports a policy of assisting society's least favoured segments); Ronald Dworkin, Taking Rights Seriously, London, 1977, p. 227 (Liberal thought should protect some notion of equality).
68. Gavison, ‘On the Relations Between Rights’. See also Waldron, Law and Disagreement; Tushent, Taking the Constitution Away.
69. Tim Murphy, ‘Economic Inequality and the Constitution’, in Tim Murphy and Patrick Twomey (eds.), Ireland's Evolving Constitution, Oxford, 1988, pp. 163, 169 (‘The main reason … why the Constitution should not Confer [such rights] is that these are essentially political matters which, in a democracy, it should be the responsibility of the elected representatives of the people to address and determine. It would be a distortion of democracy to transfer decisions on major issues of policy … from the government … elected to represent the people and do their will, to an unelected judiciary’).
70. Aharon Barak, ‘Ha-Huka Hakalkalit Shel Medinat Yisrael’ (The Israeli Economic Constitution), Mishpat U-Mimshal, Vol. 4 (1998), p. 357 (‘The Constitution is not a political manifesto … Market economy or centralized economy may find living space within it … From this perspective, one may refer to the neutrality of our Constitution’) (unofficial translation); Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States parties' obligations, (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), at para. 8 (‘the [ICESCR] is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach’).
71. John H. Ely, Democracy and Distrust: A Theory of Judicial Review, Cambridge, MA, 1980, p. 103.
72. Dotan, ‘Supreme Court as Protector’, pp. 85–87.
73. Dotan, ‘Supreme Court as Protector’, p. 84.
74. Dotan, ‘Supreme Court as Protector’, p. 84
75. Gavison, ‘On the Relations Between Rights’, p. 29.
76. Basic Law: Human Dignity and Liberty, art. 7.
77. Basic Law: Human Dignity and Liberty, art. 3.
78. H.C.J. 5100/94 Public Committee against Torture v. Government of Israel, 53(4) P.D. 817.
79. See Aharon Barak, ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’, Harv. L. Rev., Vol. 116 (2002), pp. 16, 44–45 (‘Most central of all human rights is the right to dignity. It is the source from which all other human rights are derived. Dignity unites the other human rights into a whole’); Margaret J. Radin, Reinterpreting Property, Chicago, 1993.
80. John Rawls, ‘Distributive Justice: Some Addenda’, in Samuel Freedman (ed.), Collected Papers, London, 1999, pp. 154, 166.
81. Mundlak, ‘Socio-Economic Rights in the New Constitutional Discourse’, p. 100.
82. See Daphne Barak-Erez, ‘Dunam Po Ve-Dunam Sham: Minhal Mekarke'ei Yisrael Be-Zvat Ha-Interesim’ (A Dunam Here and a Dunam There: Israel's Land Administration Caught between Interests), Iyunei Mishpat, Vol. 21 (1998), pp. 613, 617–620; Barak Medina, ‘Hovata Shel Hamdina Lesapek Zrahim Bsisi'yim: Mi-Siah Shel Zchuyot Le-Teoria Shel Mimun Ziburi’ (The State's Duties to Provide Basic Needs: From a ‘Discourse of Rights’ to a ‘Public Finance Theory’), in Rabin and Shany, Rights in Israel, pp. 131, 144–146. However, it has been argued that conflicts between competing interest groups may introduce sufficient checks and balances. Einer R. Elhauge, ‘Does Interest Group Theory Justify More Intrusive Judicial Review?’ Yale L. Rev. Vol. 101 (1991), p. 31.
83. ICESCR, art. 2(1) (‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’); Committee on Economic, Social and Cultural Rights, General Comment 9, The domestic application of the Covenant, (Nineteenth session, 1998), U.N. Doc. E/C.12/1998/24 (1998), at para. 10.
84. Mundlak, ‘Socio-Economic Rights in the New Constitutional Discourse’, p. 91 ff.
85. H.C.J. 240/98, Adalah—The Legal Centre for the Rights of the Arab Minority in Israel v. Minister of Religious Affairs, 52(5) P.D. 167, 190 (per Cheshin, J.) (‘[N]ullifying budgetary legislation and ordering the redistribution of the budget total—and this is the petition of the petitioners—might lead to a kaleidoscope-like activity: the shifting of one sand-stone results in the automatic shifting of other sand-stones and to a radical change of the total picture…’) (unofficial translation). See also H.C.J. 3472/92, Brand v. Minister of Communication, 47(3) P.D. 143, 153.
86. See Waldron, Law and Disagreement, p. 233; Michael MacMillan, ‘Social Versus Political Rights’, Canadian Journal of Political Science, Vol. 19 (1986), pp. 283, 303; Mathew C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development, Oxford, 1995, p. 15. See also Rabin, The Right to Education, pp. 60–64; Yuval Shany, ‘Beiti Eino Mivzari: Alimut Ba-Mishpaha Ke-Sug Shel Inuy Asur Al-Pi Hamishpat Ha-BeinLeumi’ (My Home is Not My Castle: Domestic Violence as a Form of Torture under International Law), Hamishpat, Vol. 7 (2002), pp. 151, 165–167. For a survey of Israeli case law on positive aspects of civil and political rights, see Mundlak, ‘Socio-Economic Rights in the New Constitutional Discourse’, pp. 94–96.
87. Jeremy Waldron, ‘Liberal Rights—Two Sides of the Coin’, in Jeremy Waldron, Liberal Rights— Collected Papers, Cambridge, 1993, pp. 339, 343 (‘Reflection on the rights of the citizen also undermines the other claim about individualism—the claim that first generation rights call only for inaction, rather than collective intervention, by the state. In fact, rights to democratic participation require much more than mere omissions by the state. They require officials to approach their task in a certain spirit, and they require the establishment of political structures to provide a place for popular participation and to give effect to people's wishes, expressed by voting and other forms of pressure … Even with regard to those first generation rights which are not participatory, it is seldom merely inaction that is called for. As I argued … we set governments up according to traditional liberal theory, not only to respect our rights (what would be the point of that?), but to protect, uphold, and vindicate them. That involves positive collective action, action which makes use of scarce manpower and resources. It involves the operation of police force, law courts, and so on, which are certainly not inconsiderable expenditures on the part of the state and of society collectively’). See also Mundlak, ‘Socio-Economic Rights in the New Constitutional Discourse’, p. 344.
88. Mundlak, ‘Socio-Economic Rights in the New Constitutional Discourse’, p. 99.
89. Medina, ‘The State's Duties to Provide Basic Needs’, p. 133.
90. See e.g., Basic Law: Freedom of Occupation; H.C.J. 4363/00 Upper Puria Committee v. Minister of Education, 56(4) P.D. 203.
91. Shany, ‘My Home is Not My Castle’.
92. Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health (22nd session, 2000), U.N. Doc. E/C.12/2000/4 (2000), at para. 35.
93. Equal Opportunities in Employment Law, 1988; Prohibition of Discrimination in Products, Services and Entry to Entertainment and Public Places, 2000.
94. Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States parties' obligations (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), at para. 10 (establishing a ‘minimum core’ which states must comply with, in almost all circumstances).
95. H.C.J. 4905/98, Gamzu; H.C.J. 4128/02, Adam, Teva Va-Din; H.C.J. 366/03, Association for Commitment to Peace.
96. Aharon Barak, ‘Hakdama’ (Introduction), in Rabin and Shany, Rights in Israel, pp. 5, 8.
97. See Medina, ‘The State's Duties to Provide Basic Needs’, pp. 154–157.
98. C.A. 6281/93 Bank Hamizrachi Hameuhad Ltd. v. Migdal Cooperative Village, 49(4) P.D. 221, 331 (per Shamgar, C.J.) (‘the court does not nullify economic or other legislation because it deems it unwise or if its contours seem to entail in the eyes of the court undesirable economic implications. The court examines the constitutional aspect, i.e., the human rights aspect … I support the position of the German Constitution interpreters, according to which no intervention is warranted unless the approach taken is clearly and obviously erroneous, so that it may not be considered a reasonable basis for legislative action’); H.C.J. 389/80 Dapei Zahav Ltd. v. Israel Broadcasting Authority, 35(1) P.D. 425, 443; Handyside v. UK, 1976 Eur. Ct. H.R. (Ser. A), No. 24.
99. H.C.J. 987/94, Euronet Golden Line (1992) Ltd. v. Minister of Communication, 48(5) P.D. 412; 5042/96, Cohen v. Israel Land Administration, 53(1) P.D. 743. See also Yoav Dotan, ‘Shnei Musagim Shel Svirut’ (Two Reasonableness Concepts), Sefer Shamgar: Ma'amarim (Liber Amicorum Shamgar: Articles), Vol. 1, Tel Aviv, 2003, p. 417. It remains to be seen whether in the future courts would assert their authority to also supervise the legislative decision-making process, e.g. whether the Knesset accorded due consideration to legislation compromising constitutionally protected social rights. Cf. H.C.J. 3106/04, Association for Civil Rights in Israel v. The Knesset (not yet published) (identifying serious deficiencies in budgetary legislation, though refusing to nullify the legislation).
100. Dan T. Coenen, ‘A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue’, Wm. and Mary L. Rev., Vol. 42 (2001). 1575.
101. Cf. H.C.J. 3267/97, Rubinstein v. Minister of Defence, 52(5) P.D. 481 (court referred to the Knesset the decision on the legality of the exemption given to ultra-orthodox youth from military service). In H.C.J. 161/94, Attari v. State of Israel, 94(1) Takdin-Supreme 1283, the court recommends that the Minister of Health regulate by way of regulations or the introduction of legislation legal limits on trade in body organs.
102. H.C.J. 3239/02, Mar'ab v. IDF Judea and Samaria Commander, 57(2) P.D. 349 (published) (delaying for six months the entry into force of a decision annulling a military ordinance). Cf. Baker v. Vermont, 774 A.2d 864, 889.
103. See declarations of incompatibility under Human Rights Act, 1998.
104. The original ‘Brandeis Brief’ was submitted in 1908 to the US Supreme Court and surveyed the social implications of minimum-hours legislation governing women's work. Muller v. Oregon, 208 U.S. 412 (1908). For discussion, see e.g. Mundlak, ‘Socio-Economic Rights in the New Constitutional Discourse’, pp. 100–101.
105. H.C.J. 366/03, Association for Commitment to Peace and Social Justice v. Minister of Finance, interim decision of 5 January 2004 (not yet published) (ordering the state to specify dignified subsistence standards). The interim order was revoked on 16 March 2004 and replaced by a general order instructing the state to provide a detailed response to the petition against welfare benefit cuts.