Human Rights in Private Law: The Israeli Case

תקציר

The protection of human rights in Israeli private law has to be understood in the context of the broader framework of Israeli constitutional law. The history of Israel’s written constitution is unique. When the State of Israel was established, the first elected Parliament (the Knesset) was expected to adopt a written Constitution for the new state. It soon became apparent that the needed consensus could not be reached. The ideological rifts and gaps were unbridgeable. It was therefore decided that Israel’s Constitution should be written in piecemeal manner, chapter-by-chapter. The enactment of these chapters, entitled "Basic Laws", was deferred to future times. By the dawn of the 1990s, ten basic laws had been enacted. Yet, these dealt with the structure and powers of governmental institutions such as the Knesset, the government and the courts. None of these actually dealt with human rights and freedoms. During this long period, the Israeli Supreme Court has recognized and enforced human rights relying on unwritten constitutional principles. This judicial recognition of human rights was not merely empty rhetoric, but rather an operative one in the sense that the Court enforced those rights when they were infringed by actions taken by government authorities. The main limitation of this form of judicial protection of human rights was only its loyalty to traditional views regarding legislative sovereignty, which means that it was short of invalidating infringing legislation. A major step toward the creation of a formal constitutional bill of rights took place in 1992 with the enactment of two additional basic laws - Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. These Basic Laws declare that their purpose is to safeguard the rights enumerated in them, "in order to anchor in a Basic Law the values of the State of Israel as Jewish and Democratic state". Basic Law: Freedom of Occupation deals with the relatively specific "right to engage in any occupation, profession or trade", whereas Basic Law: Human Dignity and Liberty protects several basic rights, including the right to life, bodily integrity and human dignity, the right to property, the right to personal liberty, the right to freely enter and leave the country and the right to privacy. Notably, these two basic laws were soon interpreted by the Supreme Court as empowering the courts to carry out judicial review of primary legislation. Unfortunately, however, the project of enacting a complete bill of rights for Israel has not yet been completed. The controversy as to whether the basic laws empower the courts to conduct judicial review of legislation and their interpretation by the Supreme Court, stalled the completion of a full bill of rights by additional basic laws, and it is doubtful whether they will be enacted in the foreseeable future.