The most frightening debacle of democracy is not caused by a revolution or a coup d'etat but by the creeping process of delegitimization, in which the Giant's leap (“Quantensprung”) is hardly conceivable. The most notorious example to date is the Weimar Republic, as the German Reich was called between 1918/9–1933. This example has served as a constant warning for all democratic systems since then, and is therefore always present and relevant.

It is not for a social or cultural historian to intervene in a purely professional discussion of jurists or legal historians concerning the question of constitution, law and democracy. His aim is to concentrate on the complex relationship between the social and cultural contexts and the constitutional text and subtext.

In the 1939 edition of Meyers Lexikon the following item appears:

Kelsen, Hans, Staatsrechtlehrer, Jude, * 11.10.1881 Prag, 1919 Prof. in Wien, 1930 in Köln, 1933 in Genf, seit 1936 in Prag, schrieb u. a. ≫Allg. Rechtslehre≪ 1925, ≫Théorie générale du droit international≪ 1932, ≫The legal process and international order≪ 1934; radikaler Vertreter der ≫Reinen Rechtslehre≪, die typischer Ausdruck jüdisch zersetzenden Geistes in der Nachkriegszeit auf dem Gebiete der Rechts- und Staatslehre ist. In der völligen Entleerung seiner allg. Formalbegriffe von jedem Wirklichkeitsgehalt leugnet K. jede Substanz des Rechts und Staats. Seine gemeinschaftszerstörenden Auffassungen stehen als polit. Nihilismus im schärfsten Gegensatz zur nat.-soz. Anschauung. Heute noch in der rechtsphilos. Logistik nachwirkend.

For generations the question of the political form worthy of its apparent telos has occupied the best legal, philosophical and rabbinical minds of the Jewish tradition. Resolution of the political question presupposes resolution of the theological question of whether the Jewish people indeed have a unique telos, and whether this telos is linked to a particular political or social form. This ongoing deliberation is one of the defining features of the inter-generational dialogue within the Jewish heritage.

When the Zionist movement declared its intention to initiate the founding of a Jewish State in Zion, this decision caused unprecedented turmoil in Jewish communities. For some, the creation of a political entity in the Land of Israel signaled a brash and unwelcome rejection of the Orthodox belief that the return will occur only in the days of the Messiah, until which time political inaction is the appropriate conduct.

The problem of democracy and judicial review is a problem engendered by successful constitutional courts. For where courts are not successful in establishing veto powers over legislation, no problem or only a very limited problem occurs. Of course any court interpreting statutes in the process of applying them does some law making. How much this law making interferes with democracy depends on how easy it is for the legislature to legislate. Where legislatures can amend statutes easily, they can easily correct “errors” of judicial statutory interpretation. Judicial review of the lawfulness of administrative action essentially involves the same power of statutory interpretation with the same potential for legislative correction.

Most of the nations of the world that do not have successful constitutional courts are not democracies. Indeed, no state without considerable claims to democracy has successful judicial review. These facts are clues to the obvious. Constitutional government is limited government. In the real world we do not encounter nondemocratic limited governments although we encounter many shades of more or less democratic, more or less constitutional governments. So there is some affinity between democracy and constitutionalism.

The Italians have a word for what I want to say about modern constitutionalism: “gattopardesco,” that is “leopardesque”, not as in the animal but as in the novel The Leopard by Tomasi di Lampedusa. The novel is about a noble Sicilian family at the time of the unification of Italy in the mid-nineteenth century. Italian unification was mainly a matter of the northern Savoy monarchy of Piemonte conquering the peninsula and vanquishing the various other monarchs, princes, etc., including the Bourbon rulers of Sicily and Naples. But there were other elements about and stirring up trouble, anti-monarchist and even socialist elements. In a scene early in the novel, the Sicilian Prince of Salina, the main character, is shocked to learn that his favourite nephew, Tancredi Falconeri, is off to join the invading northerners. He remonstrates with the boy:

La. I clear it thus out of Sir Edw. Coke 1 Inst. Sect. 138. that this [Legal Reason] is to be understood of an artificial perfection of Reason gotten by long Study, Observation and Experience, and not of every Mans natural Reason; for Nemo nascitur Artifex. This Legal Reason is summa Ratio; and therefore if all the Reason that is to be dispersed into so many several heads were united into one, yet could he not make such a Law as the Law of England is, because by so many successions of Ages it hath been fined and refined by an infinite number of Grave and Learned Men.

Ph. […] I grant you that the knowledge of the Law is an Art, but not that any Art of one Man, or of many how wise soever they be, or the work of one and more Artificers, how perfect soever it be, is Law. It is not Wisdom, but Authority that makes a Law. […] That the Law hath been fined by Grave and Learned Men, meaning the Professors of the Law is manifestly untrue, for all the Laws of England have been made by the Kings of England, consulting with the Nobility and Commons in Parliament, of which not one of twenty was a Learned Lawyer.

In the search for democracy, are judges allies or subversives? Until very recently, British constitutional law appeared to present a relatively straightforward answer to this perennial dilemma: judges are only allies if their power is clearly subordinate to that of Parliament. In terms of constitutional theory, this faith in the political process and corresponding distrust of the judiciary is expressed through the principle of parliamentary sovereignty. However, the imminent enactment of a Human Rights Act in Britain compels a reconsideration of this response. It is true that the judiciary has always played a significant role in law-making through the common law and statutory interpretation. It is true, too, that non-constitutional judicial review has developed vigorously in the past few decades. Yet it has always been possible to assert, not least by the judiciary, that law-making of this sort is subordinate to parliamentary law-making and is justifiable by and legitimated in terms of parliamentary intent. Parliamentary sovereignty has, of course, been challenged explicitly by membership of the European Union. Faced with the confident assertion by European Community institutions of the sovereignty of European Community law, the judiciary has gradually shifted its allegiance from Parliament and acknowledged the supremacy of EC law in its sphere of operation. This shift of allegiance is revolutionary in one way. Nevertheless, judicial law-making remains subordinate, although to a differently constituted legislature.

The second half of the 20th century has been a period of innovation in medical technology, with much significance for the social relations of reproduction. The invention of the contraceptive pill changed our attitudes towards the control and prevention of pregnancy, and allowed us to differentiate between female sexual and reproductive activities. The development of blood-typing and genetic tests radically altered the legal procedures for proving paternity, and deeply influenced our understanding of the uncertainty of biological fatherhood. The innovation of various methods of medical imaging gave concrete and human shape to the image of the fetus in its mother's womb. The very moment of conception was transformed, by means of in vitro fertilisation, from a mysterious event taking place in the hidden spaces of a woman's body to an overt and exposed occurrence in a laboratory petri-dish.

The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.

Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.

Sentencing reform has been the subject of much debate over the past two decades in North America, Europe and Australia. Among the concerns spurring this widespread reconsideration of sentencing principles and practices, there is the need to promote consistency in sentencing, the crisis in public confidence in the criminal justice system, and the constitutional argument for more legislative intervention in the area of sentencing. The reforms implemented in various jurisdictions to address these concerns have taken numerous forms: at the federal level in the United States, “base sentences” were assigned to each offense category, the final sentence being fixed in the light of the offender's prior criminal history and aggravating and mitigating circumstances; at the state level, several jurisdictions adopted a less detailed system of numerical guidelines, schematized by a two-dimensional grid of sentence ranges defined by classes of offenses and the offender's criminal record. Other jurisdictions, such as Canada, Britain and Sweden, eschewed the use of numerical guidelines as a vehicle to structure judicial discretion in favour of simpler statutory statements of principles in sentencing.

“Self-determination” is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril.

The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize its danger until too late to check those who attempt to put the principle in force. What a calamity that the phrase was ever uttered. What misery it will cause!

On February 24, 1998, the government submitted the International Treaties (Approval by the Knesset) Bill, 1998 to the Knesset. This governmental bill represents the culmination of fifty years of exchange between the Executive and the Legislature concerning the constitutional authority to conclude international agreements on behalf of the State of Israel.

Normally, it would have been preferable to await the completion of the enactment process before commenting on the new legislative arrangements. Due to the constitutional importance of the Bill and the fact that it raises several important questions, the regular practice will be abandoned in this case.

Despite the availability of an abundance of materials on the treatymaking practice of the State of Israel and the status of treaties under municipal Israeli law both in English and in Hebrew, an in-depth analysis of the Bill requires an extensive exposition de lex lata on both these questions. Only then will the provisions of the Bill be presented. This will take the form of an issue-by-issue analysis, with conclusions drawn in each segment. The review will conclude with several additional observations de lege ferenda.

Dumping is defined, basically, as the sale of goods to an export market at a price below that charged for comparable goods in the exporter's home market. The General Agreement on Tariffs and Trade (GATT) does not forbid such action, not even when injurious to the competing domestic industry. However, it has taken the view that dumping constitutes an unfair trade practice. Under GATT, Article VI Contracting Parties (or Members, as they are now termed in the GATT 1994 Agreements) are authorized, as an exception to other GATT obligations, to unilaterally impose antidumping (hereinafter: AD) duties to counteract the effects of dumping. The duties should create a level playing field in which producers all over the world will be able to compete fairly with each other. The principles sound simple and straightforward, yet their application is one of the most contentious topics in international trade law.

The economic coherence of AD rules is controversial. In international trade, price discrimination between national markets is typically made possible when the exporter has a powerful position in the home market and re-exportation to that market is not feasible. In the domestic arena price discrimination is countered by the laws of competition and antitrust. International trade law offers states a very different remedy, that first and foremost protects the competing local industry, regardless of the procompetitive or anticompetitive effects of dumping on the market as a whole.

Countries all over the world, from Angola to Afghanistan, from Cambodia to Nicaragua, are littered with uncleared mines. In 1994, it was estimated that more than 100 million anti-personnel mines (hereinafter: AP mines) were scattered wantonly in over sixty countries. In 1997, over 110 million mines were deployed and another 100 million stockpiled around the world. Mines can be scattered over large areas by airplanes or delivered by rockets and do not need to be laid manually.

AP mines were originally designed to slow down the advancement of enemy troops and to defend territory. For thirty years, AP mines have injured large numbers of civilians, although this remained practically unreported up until the 1980s, when these mines were used increasingly as a deliberate military strategy to spread terror among civilians.

For the last two years, a five-party mechanism consisting of delegations of Israel, the United States, France, Syria and Lebanon, charged with implementing an Israeli-Lebanese understanding concerning South Lebanon has been in operation. Away from the public eye, this forum has thus far held around fifty sessions, each of which concluded with the producing of an agreed Report. Despite its limited powers and narrowly defined mandate, the significance of this forum cannot be ignored; its existence and the mode of its operations also gives rise to several important legal questions.

This review will start by describing the historical and legal circumstances leading up to the April 1996 Understanding and the establishment of the Israel-Lebanon Monitoring Group. Thereafter, the operation of the Monitoring Group, its composition, functions, procedure and decision-making process will be presented. Then I will discuss the major legal questions arising from the existence and operation of the Monitoring Group. The documents relative to the work of the Monitoring Group are annexed to this review.

Israel Women's Network v. The Government of Israel (1994) 48(v) P.D. 501

The petitioner, the Israel Women's Network, petitioned the Supreme Court of Justice against the appointment of a new member to the Ports and Railways Council and against the appointment of two new directors on behalf of the State to the board of directors of the State-controlled Oil Refinery. All three of the new appointees were men, such that neither of the two councils included a single woman in their composition. The petitioner disputed the constitutionality of these appointments arguing that in the particular circumstances and in line with sec. 18A of the Government Companies Law, the appointees ought to have been women. By a majority decision the Supreme Court held that the respondent did not fulfill the duty of affirmative action required by sec. 18A of the Law, and that the cancellation of the appointments made was justified.

The State of Israel v. Aprofim Housing and Enterprise (1991) Ltd. (1995) 49(ii) P.D. 265

In 1990, following the wave of immigration from the former Soviet Union at the end of the 80's, the Government decided to promote construction of apartments for new immigrants and other persons entitled to government housing aid. A plan was drawn up whereby land would be allocated to contractors for building purposes by the Israel Lands Authority, while the Housing Ministry (hereinafter, “the Appellant”) undertook to purchase the apartments from the contractors after construction.

A standard form agreement was drawn up which served as the basis for the contracts signed between the Appellant and the various building contractors and entrepreneurs. The Appellant undertook in these contracts to purchase from the contractor, upon request, any apartments which had been built but not sold on the open market. In desirable locations, the Appellant was under an obligation to purchase up to 50% of the apartments built. In development areas the Appellant was bound to purchase all of the apartments. The contractor was entitled to demand that the Appellant exercise its obligation to purchase the apartments in the desirable locations, at the earliest, on completion of construction; whereas, in the case of apartments in the development areas the contractor could make its demand on completion of the frame and internal walls of the building. The contract did not limit the time in which the contractor had to present its demand for performance of the obligation to purchase, but any delay in presenting a demand beyond the times stated would influence the contractor's right to receive the full price for the apartments from the Appellant.