Fantasies of Liberalism and Liberal Jurisprudence: State Law, Politics, and the Israeli Arab-Palestinian Community

Abstract

Some thirty years after the Bergman decision, Israel's constitutional structure and legal culture are still not responsive to minority needs or, more broadly, to the social needs of deprived communities. The liberal language and judicial review of Knesset legislation that were empowered by Bergman have not reconciled this problematic discrepancy between jurisprudence and social needs.The Bergman ruling signified the onset of a new era in Israel jurisprudence — the era of liberalism, in that it generated the notion of judicial counter-majoritarianism as the center, however problematic, of democracy. It was a modest ruling and a careful one, dwelling only on procedural deficiencies as cause for judicial abrogation of parliamentary legislation. Later on, after 1992, and propelled by the spirit of judicial activism, the Supreme Court adopted a more expansive judicial policy. It asserted the need for much more active judicial review of the substance of Knesset legislation and even the possibility of annulling it if it fell within the provisions of the Basic Law: Human Dignity and Freedom and the Basic Law: Freedom of Occupation.