Essay by Shimon Shetreet
The interplay of law and religion constitutes a great challenge for the Israeli judicial system. These challenges are reflected in the legislative corridors and in the judicial arena, which is the main focus of this Essay. As a result of the dissatisfaction with the Supreme Court, particularly after the Basic Laws 1992, the Court came under heavy attack. The thesis of this Essay is that in order to resolve the issue of the confidence crisis in the Israeli Supreme Court there is a need for reform.
The first Part of this Essay discusses Israel's character as a Jewish and democratic state. The Essay also offers an analysis of the judicial review of decisions relative to matters of national security and military affairs. Next, the Essay considers the proposals that have been advanced to resolve the controversy over the form and legitimacy of constitutional adjudication. Finally, the Essay proposes a new method of deciding constitutional questions in order to reinstate the public's faith in the courts.
According to the proposal, the Knesset would have the authority to declare that a law contradicts a Basic Law, or to nullify a law. The Supreme Court would rule on constitutional issues in a special tribunal that would be based on the reflection principle, which is the principle of the reflection of society. Following the recent developments of the severe and continuing struggle of the role of the courts in society, it is argued that this reform should be carried out by the legislature.
About the Author
Shimon Shetreet. LL.B., LL.M., Hebrew University; M.C.L., D.C.L., University of Chicago; Greenblatt Professor of Public and International Law, Faculty of Law, Hebrew University of Jerusalem; Jay Altmayer Distinguished Visiting Professor of Law, Tulane Law School, Winter 2002. Former Israeli Cabinet Minister, the Late Rabin Government and, subsequently, the Peres Government, 1992-96.
Citation
77 Tul. L. Rev. 659 (2003)