Gad Barzilai, “How Far Do Justices Go: The Limits of Judicial Decisions” in Alan Dowty (ed.) Critical Issues in Israeli Society (London and Westport: Praeger, 2004) pp. 55-67.

How Far Do Justices Go: The Limits of Judicial Decisions

Abstract

When one tells the political genealogy of Israel, since its formal inception in 1948 until 2003, a telling conceptual lesson may be drawn from the adjudication of Israel’s hectic public and political life. The almost unparalleled prominence of its Supreme Court sitting as a High Court of Justice [hereafter-HCJ] is intriguing and fascinating from comparative perspective, as well since the number of cases debated before the Court is about several thousands every year beginning from the 1980s. Furthermore, in the outset of the 21st century there is almost no political public controversial affair in Israel that has not formally been named as a legalistic and litigious matter, and debated in the HCJ.
In most democratic regimes, e.g., Germany and the USA, such an extensive judicial engagement of the federal constitutional courts in public and political affairs is impossible due to structural constitutional barriers. Only several dozen cases are annually debated on docket in these courts following careful and some preliminary legalistic selective procedures. In other democratic political regimes, like Japan, cultural reasons of lack of belief in litigation as a major avenue for resolving sociopolitical and economic conflicts discourage massive judicial engagement of the Court in public life. Hence, while Israel is only one of many comparative examples

around the globe of extensive litigation, the judicial engagement of its HCJ, which has
to discuss several thousands appeals every year, deserves a special conceptual attention in the junction of political science and law.
The purpose of this article is nor to document the emergence of the HCJ to its current public dominant position, neither to describe series of its rulings. These topics have already been discussed and analyzed in the professional literature. Rather, in this article I would like to point to the main causes and analyze the main ramifications of the Court’s judicial engagement in public life, within a theoretical framework.

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