Israeli Supreme Court

Abstract Jewish law on the “end of life” teaches that nobody is expected to suffer and that for certain individuals, death might be better than life. However, these observations need to be illustrated on the backdrop of the prohibitions of direct killing, the public interest in the preservation of life and the integrity of medicine. Although Israeli law is a secular legal system, a hybrid of common law and con-tinental law, it has developed similar lines of reasoning to Jewish law on matters pertaining to the “end of life”. Israeli judicial processes address “end of life” issues by means of primary legislation, which is quite elaborate. Case law has also developed original and flexible interpretations to ceasing life support in order to benefit certain patients even though it may shorten their lives at times. Contemporary Israeli law contains elaborate structures of proxy and assisted decision making. While these are not formally connected to Jewish law, we argue that rabbinic law is influential in these contexts as well. The paper analyzes the development of Israeli law along these lines, demarcating three major tracks: Jewish Law, Case law and Primary Legislation.
Keywords End of life · Jewish law · Competence · Israeli law · Patient near death

On November 19, 2009, Israel’s High Court of Justice (HCJ) ruled, by an eight to one majority, that Amendment 28 to the Prison Ordinance (2004), which authorized the construction of the first privately-run prison in the country, was unconstitutional. The main reason given by the Court for its globally unprecedented decision was that the very fact of being incarcerated by a private, for-profit corporation, regardless of the quality of service provided by that private institution, was an excessive violation of the prisoners’ rights to freedom and to human dignity and thus contradicted the provisions of Basic Law: Human Dignity and Freedom. The main opinion in the case, written by Supreme Court President Dorit Beinisch, has been criticized as incoherent, in that it confused the institutional argument – based on the non-delegation doctrine – with the argument from human rights. Beinisch explicitly stated that the concern that prisoners’ rights are more likely to be infringed in a private than in a public prison was not sufficiently strong to warrant the finding that the amendment was unconstitutional. Still, she concluded that the very fact that the power to deprive a person of her liberty rested with a private for-profit entity was, in and of itself, an excessive violation of the prisoners’ rights to freedom and to human dignity. She also argued that this finding rendered considering the issue of the delegation of core governmental functions to a private entity superfluous in this case.1 The Court’s liberal critics have pointed out that the president failed to provide a persuasive argument for her decision. An argument from human rights, they claimed, should have been able to show some reason to believe that the prisoners’ rights were more likely to be infringed in a private than in a public institution. Alternatively, the president could have argued against the delegation of core governmental functions.2 Having declined to take either of these courses, her decision amounted to no more than an unsubstantiated assertion. Moreover, while the Supreme Court spoke its lofty rhetoric, prisoners were languishing in public prisons in awful conditions. To the extent that these prisoners may have preferred to be housed in a more comfortable private prison, the Court could also be said to have violated their rights of free choice and personal autonomy.3 In this paper, we argue that while Beinisch’s decision was indeed incoherent and unjustified when viewed from a liberal perspective, which was her avowed perspective, it is perfectly coherent and justified from a civic republican perspective. We further argue that, in general, a coherent moral argument against private incarceration must necessarily rest on civic republican foundations. The question of the relations between liberalism and civic republicanism, especially between their respective conceptions of freedom, has become salient over the last three decades following the renewal of interest in the civic republican tradition. An argument heard with increasing frequency in recent years, however, claims that the differences between the two conceptions of freedom are minor in reality and that every worthy moral position

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Emptied Lands investigates the protracted legal, planning, and territorial conflict between the settler Israeli state and indigenous Bedouin citizens over traditional lands in southern Israel/Palestine. The authors place this dispute in historical, legal, geographical, and international-comparative perspectives, providing the first legal geographic analysis of the "dead Negev doctrine" used by Israel to dispossess and forcefully displace Bedouin inhabitants in order to Judaize the region. The authors reveal that through manipulative use of Ottoman, British and Israeli laws, the state has constructed its own version of terra nullius. Yet, the indigenous property and settlement system still functions, creating an ongoing resistance to the Jewish state.Emptied Lands critically examines several key land claims, court rulings, planning policies and development strategies, offering alternative local, regional, and international routes for justice.

This collection of essays is written by some of the world's leading experts in international human rights law, and corresponds to the main junctures in the professional life of Professor David Kretzmer, a leading human rights academic and practitioner. The different essays focus on contemporary human rights protection challenges. They address conceptual problems such as differences between limits and restrictions, and application of human rights standards to businesses and international organizations; legal doctrinal responses to changing realities in the field of surveillance and identity politics; the weakness of monitoring institutions engaged in standard-setting; and the practical difficulties in applying international human rights law to the Israeli-Palestinian conflict in a manner sensitive to gender dimensions and the particular political dynamics of the situation. Collectively, the essays offer a rich picture of the current potential shortcomings of international human rights law in addressing complex problems of law, politics and ethics.

With the ever-growing significance of international law both domestically and internationally, courts mediate much of the give-and-take between the international system and the national political arenas, thus acting in settings where global and local are mixed. Such a pivotal position, I argue, lends courts the ability to maximize a twofold utility; firstly, on the international level judicial institutions play an increasingly important role and form what is essentially a transnational epistemic community. Secondly, on the domestic level, courts capitalize on this pivotal position to become increasingly central in the decision making process, forming alliances with other domestic players, and thereby securing the implementation of judicial rulings. Utilities on those two levels are inextricably linked. A case study of decisions of the Israeli Supreme Court concerning the security fence Israel built around the Occupied Palestinian Territories is offered here as an empirical test for the Court-Pivot Dual Utility Model.

On November 19, 2009, Israel’s High Court of Justice (HCJ) ruled, by an eight to one majority, that Amendment 28 to the Prison Ordinance (2004), which authorized the construction of the first privately-run prison in the country, was unconstitutional. The main reason given by the Court for its globally unprecedented decision was that the very fact of being incarcerated by a private, for-profit corporation, regardless of the quality of service provided by that private institution, was an excessive violation of the prisoners’ rights to freedom and to human dignity and thus contradicted the provisions of Basic Law: Human Dignity and Freedom. The main opinion in the case, written by Supreme Court President Dorit Beinisch, has been criticized as incoherent, in that it confused the institutional argument – based on the non-delegation doctrine – with the argument from human rights. Beinisch explicitly stated that the concern that prisoners’ rights are more likely to be infringed in a private than in a public prison was not sufficiently strong to warrant the finding that the amendment was unconstitutional. Still, she concluded that the very fact that the power to deprive a person of her liberty rested with a private for-profit entity was, in and of itself, an excessive violation of the prisoners’ rights to freedom and to human dignity. She also argued that this finding rendered considering the issue of the delegation of core governmental functions to a private entity superfluous in this case.1 The Court’s liberal critics have pointed out that the president failed to provide a persuasive argument for her decision. An argument from human rights, they claimed, should have been able to show some reason to believe that the prisoners’ rights were more likely to be infringed in a private than in a public institution. Alternatively, the president could have argued against the delegation of core governmental functions.2 Having declined to take either of these courses, her decision amounted to no more than an unsubstantiated assertion. Moreover, while the Supreme Court spoke its lofty rhetoric, prisoners were languishing in public prisons in awful conditions. To the extent that these prisoners may have preferred to be housed in a more comfortable private prison, the Court could also be said to have violated their rights of free choice and personal autonomy.3 In this paper, we argue that while Beinisch’s decision was indeed incoherent and unjustified when viewed from a liberal perspective, which was her avowed perspective, it is perfectly coherent and justified from a civic republican perspective. We further argue that, in general, a coherent moral argument against private incarceration must necessarily rest on civic republican foundations. The question of the relations between liberalism and civic republicanism, especially between their respective conceptions of freedom, has become salient over the last three decades following the renewal of interest in the civic republican tradition. An argument heard with increasing frequency in recent years, however, claims that the differences between the two conceptions of freedom are minor in reality and that every worthy moral position

On November 19, 2009, Israel’s High Court of Justice (HCJ) ruled, by an eight to one majority, that Amendment 28 to the Prison Ordinance (2004), which authorized the construction of the first privately-run prison in the country, was unconstitutional. The main reason given by the Court for its globally unprecedented decision was that the very fact of being incarcerated by a private, for-profit corporation, regardless of the quality of service provided by that private institution, was an excessive violation of the prisoners’ rights to freedom and to human dignity and thus contradicted the provisions of Basic Law: Human Dignity and Freedom. The main opinion in the case, written by Supreme Court President Dorit Beinisch, has been criticized as incoherent, in that it confused the institutional argument – based on the non-delegation doctrine – with the argument from human rights. Beinisch explicitly stated that the concern that prisoners’ rights are more likely to be infringed in a private than in a public prison was not sufficiently strong to warrant the finding that the amendment was unconstitutional. Still, she concluded that the very fact that the power to deprive a person of her liberty rested with a private for-profit entity was, in and of itself, an excessive violation of the prisoners’ rights to freedom and to human dignity. She also argued that this finding rendered considering the issue of the delegation of core governmental functions to a private entity superfluous in this case.1 The Court’s liberal critics have pointed out that the president failed to provide a persuasive argument for her decision. An argument from human rights, they claimed, should have been able to show some reason to believe that the prisoners’ rights were more likely to be infringed in a private than in a public institution. Alternatively, the president could have argued against the delegation of core governmental functions.2 Having declined to take either of these courses, her decision amounted to no more than an unsubstantiated assertion. Moreover, while the Supreme Court spoke its lofty rhetoric, prisoners were languishing in public prisons in awful conditions. To the extent that these prisoners may have preferred to be housed in a more comfortable private prison, the Court could also be said to have violated their rights of free choice and personal autonomy.3 In this paper, we argue that while Beinisch’s decision was indeed incoherent and unjustified when viewed from a liberal perspective, which was her avowed perspective, it is perfectly coherent and justified from a civic republican perspective. We further argue that, in general, a coherent moral argument against private incarceration must necessarily rest on civic republican foundations. The question of the relations between liberalism and civic republicanism, especially between their respective conceptions of freedom, has become salient over the last three decades following the renewal of interest in the civic republican tradition. An argument heard with increasing frequency in recent years, however, claims that the differences between the two conceptions of freedom are minor in reality and that every worthy moral position

במאמר זה מתוארים ממצאים ראשונים שהופקו מתוך מאגר נתונים על פסיקתו של בית-המשפט העליון שפורסמה בשנים 1994-1948. ממצאים אלה מתייחסים לדפוסי הכתיבה של בית-המשפט ונוהגי ההסתמכות שלו על מקורות משפטיים שונים. ניתוחם של נתוני המאגר נעשה לפי שלושה מאפיינים עיקריים : השפעתם של הזמן והתקופה, נטייתם של שופטים אינדיבידואליים ואיפיונייהם של ענפים ותחומים משפטיים. א. ניתוחים כמותיים בספרות. ב. מאגר הנתונים. ג. נוהגי אזכור - ניתוח על-פי זמן ד. נוהגי אזכור - ניתוח על-פי שופטים. ה. נוהגי אזכור - ניתוח על-פי ענפים ותחומים. *הגופים הבאים השתתפו במימונו של מחקר זה : הפקולטה למשפטים, מכון טאובנשלאג למשפט פלילי והמכון למחקר עסקים בפקולטה לניהול - כולם באוניברסיטת תל-אביב. אנו מודים לגופים אלה על עזרתם. בהקמת המאגר ובעיבוד הנתונים עזרו אנשים רבים. ראויים לציון ותודה מיוחדת לורי דישטניק, טל רובינצ'יק, אביב רוה וברק אורבך, המלווים את המחקד לאורך רוב שלביו. טיוטות של המחקר הוצגו בסמינרים מחלקתיים במרכז הבין תחומי בהרצליה, באוניברסיטת תל-אביב ובאוניברסיטה העברית בירושלים. אנו מודים למשתתפים בסמינרים אלה על הערותיהם. הערותיהם של משה בורנובסקי, אירית חביב-סגל, הלל סומד ורון שפירא הביאו אותנו לעיבודו של המקור ולכתיבה מחדש של כמה חלקים. ** ביה"ס למשפטים, המרכז הבינתחומי לעסקים, משפט וטכנולוגיה, הרצליה. *** מרצה, הפקולטה למשפטים, אוניברסיטת תל-אביב. **** הפקולטה לניהול, אוניברסיטת תל-אביב. © זכויות היוצרים שייכות למחברים.