LAW OR POLITICS: ISRAELI CONSTITUTIONAL ADJUDICATION AS A CASE STUDY

A frequently asserted claim among American constitutional scholars is that constitutional adjudication is not law, but politics; more precisely, that the judicial process of interpreting the constitution and then of bringing the interpreted constitution to bear in resolving the conflict at hand, is...

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Bibliographic Details
Published in:UCLA journal of international law and foreign affairs 2001-04, Vol.6 (1), p.169-205
Main Author: Sapir, Gidon
Format: Article
Language:English
Online Access:Get full text
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Summary:A frequently asserted claim among American constitutional scholars is that constitutional adjudication is not law, but politics; more precisely, that the judicial process of interpreting the constitution and then of bringing the interpreted constitution to bear in resolving the conflict at hand, is not a legal process but a political one. Taking, as a case study, Israeli constitutional adjudication on religion and state, especially regarding freedom of religion, this article aims to illustrate that Israeli constitutional adjudication is indeed, to a large degree, politics and not law. A close examination of several Supreme Court decisions involving religion-and-state disputes will reveal that the justices different backgrounds and worldviews have consistently led them to differing opinions regarding the exact meaning and scope of freedom of religion. If the proposed description of the Israeli perspective is indeed true, it demonstrates the importance of recognizing the inevitable political nature of judicial decisions, and therefore of making them more responsive to the democratic will. I shall make several initial suggestions regarding changes and adaptations that can and should be executed with a view to achieving this goal.
ISSN:1089-2605
2169-7833