Jurisprudence

1. Legal interpretation usually aims to give meaning to the law, that is, to serve as the mouthpiece for the legislator. Sometimes interpretation goes further in filling gaps in the law and gives the court a significant role in determining the values that will prevail in the country and in deciding how resources will be allocated within the state. This approach is called judicial activism. Judicial activism is highly controversial among scholars in Israel. The standard-bearer of judicial activism in Israel was Supreme Court President Judge Aharon Barak, while prominent opponents of this approach include Supreme Court President Judge Moshe Landau, Supreme Court President Judge Meir Shamgar, and Deputy President of the Supreme Court Judge Menachem Elon. Opposition to judicial activism also exists among members of the Knesset (e.g., Michael Eitan) and among scholars (e.g., Prof. Ruth Gavison), who view this approach as an intrusion of the judiciary into the domain of the legislative branch. On the other hand, imposing restrictions on the Supreme Court's authority by the Knesset also constitutes a violation of the principle of separation of powers in Israel. Even among supporters of judicial activism, there are differing opinions regarding its appropriate extent.

The term "judicial activism" entered Israeli discourse following the constitutional revolution, but some argue that judicial activism itself led to the revolution.And not the other way around. Critics argue that Judge Aharon Barak led the constitutional revolution; the Basic Laws: 'Human Dignity and Liberty' and 'Freedom of Occupation' were granted supreme status. (Supporters of judicial activism argue that the special status of the Basic Laws was already recognized in the Bergman case.) Moreover, unlike previous Basic Laws, these laws included provisions that explicitly granted them supreme status by the legislator. Judge Barak distinguishes, in purposive interpretation, between the purpose of the norm – a normative (objective) matter – and the intention of the creator, which is a psychological-human (subjective) matter. In statutory interpretation, one must consider the purpose of the law, aiming to achieve a certain social change, and regarding intention – one should examine the legislator's intent. If the purpose of a constitution is to lay the foundation for a social structure and realize certain fundamental values, the intention is to bring about social change. Barak interprets the term 'the purpose that the norm is meant to achieve' as a normative concept. The interpreter (the court) determines the purpose the norm is meant to fulfill. A norm may change over time, so the moment for determining the norm is at the time of interpretation, not at its creation. The creator of the norm does not determine the purpose; the creator's understanding (subjective) is not binding, alongside which there exists the objective purpose and the providing of interpretation that changes from time to time. This method of interpretation isObjective-functional, although similar to purposive interpretation in that it fulfills the norm, it does not examine what the creator's intention was. Essentially, there is a complete separation between the creator and the interpretation, unlike purposive interpretation, which seeks to interpret according to the creator's intention. If we examine the laws in a democratic system with respected fundamental principles, any law enacted is seen as aiming to fulfill these principles, even if the legislator did not intend that. In fact, even old laws with no legislative history, or where it is not accessible, one can learn from the purpose about the intention. Constitution – its intention is to ensure a proper structure of law and governance, the separation of powers, and human rights. For understanding, an example was provided: the legislator enacts a law prohibiting vehicles from entering a certain area. Did the legislator intend to prohibit a specific car or a motorcycle—perhaps, by way of example, a tank might be allowed? It is clear that the legislator's intention was, among other things, to prevent noise; therefore, dynamic interpretation might apply even to things not considered when the law was created. What happens if there is a contradiction between the intention (subjective) and the objective purpose? Barak states that the interpreter's determination should be based on the purpose (subjective) of the historical legislator—the interpreter (the court)—but if it contradicts the objective purpose, then...The hand of objectivity is dominant even if it contradicts the subjective purpose of the historical legislator. Unless the legislator has explicitly, clearly, and unequivocally expressed it in the language of the norm, this is not the case in the interpretation of a will, where indeed the goal is the distribution of property, but there is also concern for the purpose of the testator's intent. Therefore, the approach will change according to the characterization of the norm, the age of the norm (old/new), the reliability of the information regarding the subjective purpose, and additional considerations of the interpreter. Regarding the language of the text, Barak believes that the language of the law should be given its understood meaning, a text according to the understanding of the general public, unlike a will where the testator's language is decisive. Nevertheless, the purposive approach does not distinguish between a 'clear' and 'unclear' text as long as it is not interpreted; therefore, external sources can be used for its interpretation. Furthermore, as long as it is not explicitly, clearly, and unequivocally stated, the purpose (subjective) will not be given effect, even if the language of the text allows for the realization of the purpose. Arguments of the opponents: In a state governed by law, government authorities are allowed to act only according to an explicit law, and there is no explicit law permitting judicial activism. This creates a violation of the separation of powers, whereby the judicial authority is not allowed to be active in the legislative domain. In public value disputes, it is appropriate to decide through political compromise.The party negotiations and election results. Therefore, it is not appropriate for the court to take over the powers of the elected authority. The court ruled that political issues such as the 'legality of the Oslo Agreement' are beyond its jurisdiction. This should also apply to others. The stated goal of enacting the Basic Laws was to increase social consensus. Therefore, the Supreme Court must not rule on their behalf in a judgment that increases social division. Arguments of the supporters: Legal interpretation expresses the values of society and fundamental perceptions of society. Specifically, a judge who enjoys judicial independence is capable of expressing these perceptions. When a question comes before the court, it cannot avoid ruling on it, because this is also a type of decision. When a law is struck down by the court due to its violation of fundamental principles, it does not constitute harm to the legislature, as sovereignty is always limited. The court’s authority to annul laws was 'inherited' from the English concept and developed against the current reality. 2. Barak’s vision that a day may come when the court will take it upon itself to annul a Knesset law that contradicts the fundamental values of the democratic system—even if these values are not enshrined in a constitution. His position is that the court has the power to protect human rights even if Israel does not have a constitution that formalizes their authority. His vision was partially realized, with legislation  Two Basic Laws—the Human Dignity and Liberty and Freedom of Occupation. Barak recognizes the Knesset's second hat as a constituent authority authorized to enact entrenched Basic Laws. In the Mizrahi Bank case, it was established that all Basic Laws in the State of Israel have constitutional normative status, and in this sense, they are "superior" laws in relation to all other Knesset legislation, which cannot contradict them unless they meet the conditions in which the Basic Law itself allows deviation. In cases of contradiction, a petition to the court against the contradictory law will lead to its annulment or a call for its swift amendment. This move has been met with severe and prolonged criticism both from the political system and from academic circles and scholars. Judge Landau sees laws that have already been defined as the basis for a constitution in Israel as an improper step, and the court has used them to obtain the authority to strike down primary legislation of the Knesset, essentially placing the court in the position of interpreting the constitution and invalidating decisions it deems unlawful. He asserts that not everything is justiciable! Professor Gavison expresses herself even more strongly and defines the current court (Barak) as an egotist acting as a "philosopher king," declaring what the correct values are. Moreover, the court represents old elites whose influence has been pushed out of the political and public spheres, and they are "entrenched" in the court, strengthening its power in an attempt to blockthe democratic process. Gavison warns against the feeling that one group is using lawful procedures to protect its own interests against democratic processes. The main arguments of the opponents were: a. The position of the court was undertaken without authority, as the Basic Laws were not originally anchored by a constituent authority as laws with constitutional status (this argument is supported by 2 sub-arguments: 1. The Knesset no longer has constituent authority, and therefore the Basic Laws have the status of ordinary laws. 2. Even if the Knesset has constituent authority, it did not intend to grant constitutional normative status to the Basic Laws. b. The implications of the new ruling will lead to inappropriate interference of the judiciary in the activities of the executive branch, a situation that will harm the principle of separation of powers. c. The move leads to the formation of a partial and fragmented constitution, without mandatory public discourse. In practice, the constitutional status granted to the Basic Laws by the court does not make the State of Israel a country with a formal constitution. For several reasons. First, most of the Basic Laws are not "entrenched." That is, they can be amended and changed relatively easily, which is impossible for a formal constitution. Second, all the Basic Laws are separate chapters that do not coalesce into a unified and coherent constitution as required and expected from a formal constitution.

 Third, various rights that constitute an integral part of a formal constitution are not enshrined in the basic laws of rights. The enshrined rights do not provide what is required from a proper formal constitution. In addition, these claims: Without a formal and rigid constitution, judicial review has no legal basis to rely on. There is no explicit authorization in the law granting the court the power to conduct judicial review. The basic laws that have been enacted are partial and ambiguous. Israel is not a liberal-democratic state and therefore cannot accept judicial review. The composition of the court is homogeneous and does not reflect prevalent tendencies in Israeli society; therefore, granting this authority to this body diminishes public trust in the court. Judicial review is not "tempered" by mechanisms to reduce tension between the branches of government. 3.2 Barak's innovations in the L.A.R ruling: It is possible to strike down a law that does not meet the requirements of the constitution. It is possible to strike down a law that does meet the requirements of the constitution. A. The principle of equality is a "super-principle," and a law that contradicts such a principle is to be invalidated even if it meets the formal requirements of entrenchment. Barak argues that there is no obstacle to striking down a law if it contradicts the principle of equality or another "super-principle." Barak adds that restraint should be exercised because the tradition of the Israeli court is not to annul Knesset laws. Barak in approach A restrained judicial approach accepts the non-positivist conception. According to the positivist approach, one should act only in accordance with the law, that is, to reject the law. The innovation in Barak's opinion: he presents a far-reaching doctrine according to which basic laws stand above regular laws, but above the basic laws are the "fundamental principles of the system," and any law that contradicts them can be annulled. This may even apply to a basic law, as there is no legislation immune from scrutiny based on the "fundamental principles." The standard for annulling a law by the court is actually stricter than the standard in a constitution. From his perspective, the preliminary reading does not require a special majority. B. In the Supreme Court case L.A.V.R., Justice Barak argues that the court can declare a law void even in the absence of a constitution if the law contradicts the "fundamental principles of the system." Any law that contradicts these fundamental principles can be annulled, even if it is not entrenched and even if it was passed with the required majority. However, Barak chooses, at this stage, to leave the decision on this matter to the Knesset ("In light of the socio-legal perceptions prevailing in Israel, it is not appropriate for the court to deviate from the accepted approach, which reflects the political-legal tradition, and it is not appropriate to adopt a new approach that recognizes its power to declare a law void – which does not contradict an entrenched provision in a Basic Law – that contradicts fundamental principles").Of the system. It seems that the public perception is that such an important and profound decision should be made—at this stage of national life—by the people and their elected representatives. According to Barak, the public is not ready for this yet. Barak states obiter that he is embarrassed by the claim that the violation of equality is contrary to our legal system, and that he did not accept the non-intervention in the legislative discretion of the legislative authority, as the court has done in all previous cases. He argues that, in principle, a law can be invalidated even in the absence of a constitution. He does not go beyond this because he lacks public support, but essentially, in what he writes in the judgment, he is trying to rally such support. Barak is essentially signaling to the legislative authority that it should begin advancing the matter of the constitution, otherwise it will become irrelevant. But here there is another major innovation, which is that the court is authorized to determine that this standard is not sufficient, to invalidate legislation even if it meets the standard set in it. A. When a law is invalidated based on a supreme constitution that is clear, even if done by a single judge, this is probably not considered a return to natural law because the judge is not acting on the basis of higher values, but on the basis of a supreme positive law. In contrast, when the constitution speaks in terms of values such as equality, freedom, life, etc., and when courts are viewed as institutions that And the constitution is a supreme positive law that can be changed. Everything done in the name of the constitution, including the annulment of a law by a single judge, falls within the framework of positive law. On the other hand, since the constitution is often historical and not subject to change, the annulment of laws based on principles written in the constitution resembles, practically speaking, classical natural law. A single judge invalidates a law on the grounds that it contradicts higher values. At first glance, this seems to contradict the three values we mentioned on which positivists rely: diversity of opinions, the authority of the representative parliament, and separation of powers. Nevertheless, in practice, it is not entirely natural law for the following reasons: there is an approach that constitutional interpretation should be restrictive and return to the original meaning written by the framers. There are countries in which constitutional interpretation is entrusted to the parliament or a parliamentary committee, and once the parliament or committee determines that a law aligns with constitutional values, the validity of the law cannot be challenged (a list of countries is detailed in Dr. Yitzhak Herzog's article). Also, in most of the democratic world, where an external body invalidates laws, it is not the highest authority nor a single judge. According to natural law, the fundamental moral principles of the system hold a quasi-constitutional (and even supra-legal) legal status. On the other hand, according to the positivist approach, fundamental principles do not have A similar stance. But according to Barak's conclusion, this does not depend on this dispute. In his view, in principle, from a legal-theoretical perspective, there is no obstacle to the court invalidating Knesset laws based on fundamental principles. Practically, he refrained from this due to the established convention in the Israeli system. This conclusion does not depend on the jurisprudential-theoretical dispute and is possible even according to a positivist approach. For example, according to Hart's approach, which is willing to recognize the status of fundamental principles in the system, they can be used to critique legislative laws. In summary, judicial activism may be related to the range of legal tools available to a court. A court acting according to a positivist-formalist approach, that is, according to statutory law and precedents, will rarely adopt an activist stance. In contrast, a court that uses values and principles will be more activist. However, the use of principles is not limited to the natural law approach. There are positivist approaches (such as Hart's) that allow the use of principles, and therefore it does not require the court to adhere to a natural law theory or another non-positivist theory. Regarding the 'fundamental principles,' Justice Barak states that his position is that these are not principles standing above the law. They are principles that permeate the law and emerge from it. 

His approach does not rely on a 'natural law' or 'constitutional law' that seeks to nullify legislation. His approach is positivist, 'examining the nature of the law and interpreting it according to accepted interpretive standards.' In other words, the principles in question are not designed in our system to nullify or override a law; rather, they are a means that 'penetrates' it and serves as a tool for its interpretation.