Israel Studies Volume 10 Issue 3 2005 (Doi 10.2307 - 30245765) Aharon Barak - The Right in Israel - Begin and The Rule of Law

Begin and the Rule of Law
Author(s): Aharon Barak

Source: Israel Studies, Vol. 10, No. 3, The Right in Israel (Fall, 2005), pp. 1-28
Published by: Indiana University Press
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Aharon Barak*
Begin and the Rule of Law'
I WOULD LIKE TO DISCUSS THE rule of the law and the supremacy of
the constitution, analyze these terms, and look at their contribution to
the government's democratic character.2 I do so today, five years after
the demise of Prime Minister Menachem Begin. Rule of law character-
ized his social outlook. Supremacy of the constitution-or as he termed
it "supremacy of the law"-is taken from his writings. Supremacy of the
constitution (law) expressed his worldview. I was the government's legal
advisor when he was elected prime minister, and worked alongside him. I
brought him the legal rulings on domestic social matters and foreign policy
issues. In all of these matters, I saw the reflection of a leader in whose blood
flowed the rule of law and whose soul was governed by the supremacy of
the law. Not once did he dispute the consequence demanded of him by
the law. On occasion he may have been displeased with the court's verdict
on an issue close to his heart, but he always complied. "There are judges in
Jerusalem"-he would say, and it reverberated throughout the state. I will
begin with the principle of the rule of law and conclude with the supremacy
of the constitution. My thesis is simple: in a democratic state the principle
of rule of law must be upheld and, to achieve this, the supremacy of the
constitution must be ensured.
THE RULE OF LAW
I. COMPLEXITY OF THE TERM
The rule of law-or more correctly: the rule of justice-is a complex, multi-
meaning, ambiguous term. Professor Amnon Rubenstein has correctly
noted that, "few terms used so frequently, are so little understood, as the
rule of law."3 Everyone agrees on its essence. But the further we move away
from its core, the hazier the picture becomes. Differences in terminology
also contribute to this. The English speak of the Rule ofLaw, an expression
2 * ISRAEL STUDIES, VOLUME IO, NUMBER 3
foreign to Americans who prefer the term Government under Law. The
Germans use the term Rechtsstaat, while the French refer to the principle
of Legalite. Behind these various terms lie different ethical connotations.
The term "rule of law" seems to generate major problems. Does the
law really rule over man? Is not the law really man's creation? Does the
law determine that man-rather than the law-rules? Is it correct to state
that the rule of law is the law of rules?4 Does not the rule of law stymie
the freedom of the individual? Should every law-no matter what its
content-prevail? What about an unjust law?
In order to understand the complexities of the rule of law principle
we have to differentiate between three basic aspects of the rule of law:
the formal aspect (the formal rule of law); the jurisprudential aspect (the
doctrinal rule of law); and the essential aspect (the essential rule of law).
The borderlines between the three are blurry. Considerable overlap exists.
Nevertheless, there is a basic difference among them, and each will be
discussed in turn.
2. THE FORMAL ASPECT
(a) An Overview
In its formal sense the rule of law means, "that all the elements in the
state, whether individuals, associations, or branches of the state, must act
according to the law, and an action contrary to the law must be met with
sanctions organized by society. In this sense the meaning of the rule of law
is two-fold: legality of the government and domination of the law. This is
a formal principle that takes no interest in the content of the law only in
its need to dominate, whatever its content may be. In this sense the rule of
law is detached from the nature of the regime but linked to the principle
of public order."'
Chief Justice Shamgar stated: "A government will not be described
as orderly if it does not endeavor to uphold the rule of law, because it is
responsible for building the defense wall against anarchy and guaranteeing
the preservation of state order."6 This is the formal view of the rule of law.
It focuses only on the law itself and places a demand on the rule: respect
for the law (even if its content is unworthy of respect).
(b) The Rule of Law and the Individual
This formal perspective is directed first and foremost toward individuals in
the state. We must act only according to the law. The rule of law begins in
each person's home. Our power to demand of another person to uphold the
law is built on our abiding by the law. This is incumbent on every one of us.
Begin and the Rule of Law * 3
No one is exempt from this obligation. We must pay taxes honestly, abide
by the building code, and obey traffic laws. Parallel with the rights of man
are the obligations of man. We must fulfill our obligations. Everyone must
obey the precepts of the law. A person must not violate the law, even if the
point in question runs counter to his worldview. Ideological transgression
is the same as criminal transgression, and sometimes even more serious.
This recalls Socrates' dilemma and his decision not to escape from prison.7
He respected the law even if the law did not respect him. He stressed that
we derive benefits from the laws, and we would be displaying ingratitude
not to comply with them when they do not suit us. He pointed to social
agreement as the source of obedience to the law. The law must be obeyed
because we have agreed to obey it. He explained that the law had to be
obeyed because this is the only way to preserve the social framework that
guarantees the individual's happiness. This is the only way to maintain
social equity among the members of society.
(c) The Rule of Law and the State
The main significance of the (formal) rule of law relates to the state. The
state must conduct its activities within the limitations of the law. The state
was established by the law. It has no existence without the law. Therefore,
the state must act according to the law. It must be a law-abiding state. In
seventeenth-century England the king was the personification of the state.
The rule of law was expressed in the famous maxim of Justice Cook: "The
king is not subordinate to man. He is subordinate to God and the Law"
(Quod rex non debet sub homine, edsub deo et lege).
The state operates by means of official institutions. Each of the gov-
ernment's agencies is subordinate to the law. This is government by the rule
of law. The president symbolizes the nation's sovereignty. He stands at the
head of the state. He is subordinate to the law. Although the law grants him
immunity, it does not exonerate him from upholding the law.
The rule of law is directed to the legislative authority. According
to Justice Zilberg-this is "rule of law by the legislator."s An excellent
example of this is found in the Talmud's fable ofAkhnai's oven where God
himself-who gave the Torah-is subordinate to man's interpretation of it.
The rule of law principle means that the laws of the conventional legislator
must fit the constitution: "When a given adjudicative system has a constitu-
tion, the 'rule of law' requires the preservation of the rule of constitution."9
This is rule of law by the legislator. Even in the absence of constitutional
limitations the legislator is obligated to obey the laws. True, the legislator
makes the law and is allowed to change it, but as long as the law has not
been changed, the legislator is subordinate to the fruit of his making: ".
a king who took a yard or field from one of his subject[s] not according to
a law that he made, is stealing."'o The king himself is subordinate to the
regulation that he decreed. When the Knesset (Israeli parliament) operates
as a sub-legislator, it must respect the limitations that it placed on itself in
the main legislation. When the Knesset makes decisions that are not laws
or ordinances, it must ascertain that these decisions do not negate its own
laws. Also, when a verdict is given on a Knesset matter, the Knesset must
respect it. Former Chief Justice Shamgar averred:
Whoever hands down a verdict must obey it in letter and spirit. The obliga-
tion comes from the law, and is an expression of the necessity to organize the
social life according to basic norms that permit the existence of an organized
framework in which the rule of law dominates ... It is not the status of the
court that is being tested here, it is the Knesset's honor. It is inconceivable
that the chairman of the Knesset's obligation to the court, which has the
authority of adjudication, will not be respected or will be twisted for tactical
purposes. The house of legislature's status is liable to be damaged if a faulty
explanation develops that its obligation to abide by the judgment is different
from that of any other authority or individual in the state."
The rule of law in its formal sense is directed toward the judicial
authority. This is rule of law by the judge. "On matters of adjudication
there is no [higher] authority over whoever has the authority to adjudicate,
other than the authority of the law."12 The authority of the law governs
the judge. Like everyone else, the judge too is forbidden to violate the law.
Therefore the judge is bound, in his interpretation, to the rules of inter-
pretation. "The power to interpret laws"-wrote Justice Agranat-"that is
given to the judge, is a limited and restricted power, and there are borders
and areas that he is forbidden to pass."'3 The judge must act objectively.
His subjective values and personal considerations must not be reflected,
only the objective sense of the law [can be stated]. Justice Zilberg correctly
noted:14
If the judge is allowed to choose his personal 'preference' over the 'preference'
of the legislator, then the neutrality, impartiality, and non-partisanship of
the state's judges will no longer exist and the law will become a 'function' of
the judge. There is only one guarantee to sanitize the judge's adjudication:
his total surrender to the express will of the law.
This injunction is incumbent upon every judge, including those at the
highest level of the court. We all feel the shackles of the law. In this way
the public's trust in the judiciary process is guaranteed. Without this trust,
it is impossible to carry out proper adjudication or rule of law. Indeed, the
court cannot function without public trust. The judge has neither sword
nor money-purse. He has only the public's trust in him. I have discussed
this in a previous case:
The public trust is a vital condition for an independent, uncontrolled judicial
authority. T1his is the public's belief that adjudication is being carried out
equitably according to the law. This is the public's trust in fair and neutral
adjudication that gives an equal hearing to the sides without any blemish of
personal bias in the verdict. This is the public's faith in the highest moral level
of adjudication. Without public trust the judicial authority cannot function
... the public's trust in the judicial authority is the most valuable asset this
authority possesses. It is also one of the nation's most valuable assets. There
is Balzac's famous saying that distrust of adjudication marks the onset of
society's demise ... The need for public trust does not refer to popularity.
The need to guarantee trust refers the need to maintain the public's feel-
ing that adjudication is being carried out fairly, objectively, neutrally, and
without bias. The plaintiff's identity is irrelevant; it is the weight of the
arguments that determines the verdict. This means acknowledging that the
judge is not a party in the legal struggle, and is not vying for power but for
the rule of law.'5
The judge is granted independence and autonomy to perform his
function. It is a personal prerogative. It is also institutional independence.
Indeed, if we wish to maintain independent, unconstrained adjudication
that can actualize the (formal) rule of law principle, then the judge must
be guaranteed personal and institutional independence in adjudicating.
Personal independence is guaranteed in Israel. Basic Law: The Judiciary
determines that "A person vested with judicial power shall not, in judicial
matters, be subject to any authority but that of the Law" (section 2). The
institutional independence of the judiciary as an organization does not
exist in Israel. The court system is a "subordinate unit" of the Justice
Ministry. The courts are part of the executive authority. This is a serious
flaw in our constitutional law. Just as the attorney general is guaranteed
institutional independence, the courts too should be guaranteed institu-
tional independence. The rule of law requires that alongside the personal
independence of the individual judge, the judiciary as an organization
should be institutionally independent.
(d) The Rule of Law and Executive Authority
The main significance of the rule of law principle is its supremacy over
executive authority. This is the principle of governmental or administrative
legality. The executive authority has no powers except for those granted to
it by the law: "In a state in which the Law rules ... the Law determines the
government's manner of conduct, the Law and not a particular coalition
agreement."'6 The executive authority must act within the boundaries of
the laws that established it and gave it the breath of life. This is how the
difference between the individual and government is expressed. The indi-
vidual is granted freedom unless legally denied. The government has no
power unless legally granted it. Hence the executive authority is obligated
to abide by the law: "Its agencies have no rights, powers, or immunities
unless granted them by the law. Hence a government official, as such, has
no extra rights, powers, or immunities than any other person in the state."'7
The following passage is by Professor Dicey, the spiritual father of the rule
of law principle in England: "With us every official, from the Prime Min-
ister down to a constable or tax-collector, is under the same responsibility
for every act done without legal justification as any other citizen."18
Every official must respect the law-in peaceful periods as well as in
times of crisis. "When the canons roar, the muses are silent. When the
canons roar, rule of law must be maintained. Society's strength lies in its
ability to face its enemies with the awareness that the values it is fighting
for are worth defending. Rule of law is one of these values."" Indeed, with-
out law there is no security. The rule of law is a factor in national security.
The security services are the products of the law. They must respect the
law. Security considerations may sometimes influence the determination
of the substance of the law, but what determines this substance obligates
the (formal) rule of law to uphold the law, without employing security
consideration as a justification for violating the law. Justice Haim Cohen
emphasized this point:
In a state in which the law prevails, the rights of man will not be denied,
whether he is the most dangerous criminal or despicable traitor, unless in
accordance with the law . . . The Knesset is the legislative authority, and
grants authorization to its adjudicators, if it so wishes, to judge a man accord-
ing to his behavior and the results of his actions. In the absence of such
authorization by the legislator, neither reason, exigency, love of homeland,
nor any other consideration-can justify his taking the law into his own
hands and denying another person his rights.20
Indeed, the government is subordinate to the law. No man or govern-
ment body is above the law.21 "King Yanai"-said Simon ben Shatach-
"stand on your feet and be judged. You are not standing before us, but
him before Whom you will always stand."22 The executive authority and
all its branches are subordinate to the law. Every public figure-whether
in the central or municipal government-must realize that the law is as
incumbent upon him as it is upon every citizen. The government authority
is not permitted to violate the law. "It is forbidden for any man to violate
the law. All the more so a public figure that should be setting an example
for the entire public. Violation of the law by a public figure undermines
the public's trust in public authorities."23
Justice Olshen ruled on this issue in the first year of the state when
Israel was fighting for its survival in the War of Independence: "The author-
ities are subordinate to the law just as every citizen in the state is. The rule
of law is one of the state's strongest foundations. It would be a serious blow
to both the public and the state if the authorities wield the power granted
by the legislator, even temporarily, while totally disregarding the legislator's
limitations on the manner of wielding this power."24
In another case, decided in 1961, President Olshen expounded:
The Law exists not only for the citizen. It exists for the authorities too. More-
over, every government whose duty is to see that the citizen obeys the Law
must itself first of all serve as an example of obedience to the Law. The Law
was created by the legislator for the state to abide by, and the government
cannot demand a special status for itself as though it is above the Law. This
is one of the basic principles of the 'rule of law'.25
(e) The Rule of Law and Preservation of the Law
The rule of law in its formal sense means the supremacy of the law. The
(formal) rule of law will remain a dead letter if institutional norms are not
determined whose purpose is to realize this principle. According to Chief
Justice Shamgar:
The rule of law has not been created ex nihilo and is not an abstraction. It
must be a tangible daily expression of obligatory normative arrangements,
their practical implementation vis-i-vis each citizen in realizing basic free-
doms, safeguarding equality, and creating a general atmosphere of trust and
security.26
Hence, the rule of law requires that enforcement arrangements include
the following three provisions: first, sanctions against violating the prin-
ciples of the rule of law; second, independent institutions that determine
the definition of a violation and the exaction of sanctions; third, the
practical enforcement of sanctions.
The rule of law requires that an action (physical or normative) that
runs counter to the (formal) rule of law will incur consequences that are
negative from the perpetrator's point of view. Violation of the rule of law
principle incurs a sanction; the demise of this principle spells the end of the
rule of law. Rule of law requires supremacy of the law. Hence, we reach the
conclusion that a law that contradicts the constitution is unconstitutional
and can be declared null and void. Therefore, "when the legal system has a
constitution, the 'rule of law' demands the preservation of the rule of con-
stitution."27 In Israel, the constitution is made up of Basic Laws that exist
on the highest normative level. They are above ordinary laws. "In order
to have this Knesset arrangement work, conventional legislature that runs
counter to a Basic Law has to be repealed."28 When the court declares that
a law that contradicts a Basic Law is voided null and void, then it fulfils
the Basic Law. If parliament passes a conventional law that contradicts a
Basic Law, it violates the rulings of its constitution. Declaring the annul-
ment of such a law amends this violation. It avoids a situation in which
any body-including the acknowledged legislator-stands above the law.
According to the legislator's rule of law principle, the repeal of a law that
runs counter to a Basic Law must be announced. A similar approach is to
be taken regarding the annulment of an amendment that contradicts a
conventional law.
The sanction against a violation of the law is not done only by declar-
ing the violating act null and void. The sanction can be either a criminal
or civil act. For example, the United States ruled that a government official
who conducts a search that runs counter to the rulings of the constitution
is required to compensate the injured party financially. In Israel, if a person
violates a legislated obligation, he commits a civil crime.
The enforcement of a sanction-that is required according to the
formal rule of law principle-is effective only if it derives from bodies
and institutions that enjoy independence and autonomy. If the person
who transgresses the law has the authority to enforce the law, then the
rule of law is damaged. This independence is two-fold: the independence
and autonomy of the individual judge in passing verdict and the indepen-
dence of the judiciary as a branch of government. The judge's personal
independence is guaranteed in Israel: "Regarding adjudication there is no
authority above the person who has been given adjudicative prerogative
other than the authority of the law." Israel does not have an independent
judiciary authority. Adjudicative instances are part of the executive author-
ity and are dominated by it. This is a serious flaw in Israel's constitutional
legal framework and a serious violation of the rule of law principle.
The main bodies responsible for enforcing the law are the police and
legal authorities. For the rule of law to function properly, the police and
prosecution must act objectively. A police officer has no authority other
than the authority of the law. The police are a civil body, not a political
one. They are not the government's police force; they are the state's police
force. They must act efficiently and justly. They are not required to look
for incriminating material; they are required to look for the truth. State
prosecution-headed by the attorney general-is the main authority for
enforcing the law. It too has to act objectively and with independent judg-
ment. Hence, it is our view that the attorney general is not a political figure,
but a civil servant. He is not subordinate to the political authorities, even
though he is appointed by them. His independence must be protected.
The prosecution of the law requires the practical implementation of
sanctions. It calls for a court with the authority to judge legal violations.
Thus, any attempt to curtail the courts' authority-whether legislatively or
by judicial self-restraint-injures the rule of law. "In the absence of judicial
criticism, the rule of law is not being upheld ... The effective existence of
the Law requires the maintenance of effective judicial criticism."'29 Hence,
there is judicial criticism of the law's legality. Hence, there is judicial criti-
cism, even if partial, of the lawfulness of the Knesset's decisions. Hence,
there is judicial criticism of the legality of public administration. Further-
more, it is not enough that a judicial institution has authoritative powers if
it closes the door to those who come to complain about the violation of the
law. Hence, the view that a person can turn to the highest court of justice
and ask for its intervention, even if personal interest has not been hurt and
the complaint refers to a serious breech in the rule of law. "Where the court
does not intervene, the rule of law is impaired. A government that knows it
will not come under judicial criticism, is a government unlikely to enforce
the law and one that will probably cause its violation."30 Thus, the court's
role is to guarantee that the rule of law principle is carried out in practice. A
closed door in the face of a plaintiff, who comes without personal interest to
warn of illegal government activity, impairs the dominance of the law. This
is a case of "no judge and no law." The ability to petition the court is the
IO * ISRAEL STUDIES, VOLUME IO, NUMBER 3
cornerstone of the rule of law. Therefore, "in order to guarantee the court's
function as a guarantor of the rule of law in the government, it [the court]
must adopt a "generous" attitude-not a formalistic or pedantic one."31
At the basis of implementation of the law, and at the basis of rule of
law, lies the principle that the enforcement of the law-whatever its sub-
stance-will be done equitably. This is an integral part of the formal rule of
law, though it is also necessary because of the broader (jurisprudential and
essential) aspects of the rule of law. According to Chief Justice Shamgar:
The fulfillment of rights, in practice, is expressed by honoring them through
their practical realization, equally and without unaccepted bias. The value
and strength of the law granting rights lie in the fact that they are not merely
in the realm of abstract ideas, befitting the spirit of the law, and objective,
but that according to the letter [of the law] they are tangible and accessible,
and are enforced according to standards of equality among equals, with no
deviation [from this principle] due to improper reasons . . . that in cases of
infringement upon the rights each injured party will gain equal and identical
treatment [emphasis in original].32
Therefore, bias in carrying out the law spells the ruin of the rule of
law33 Therefore the authorities must carry out the law equally--an equal
attitude among equals, and a different attitude for different people.
The rule of law does not exist if it differentiates among equals ... When
we investigate one person and not another of equal status, the principle of
the rule of law is impaired; when we pardon one and not someone of equal
status, the principle of the rule of law is impaired; when we grant one person
the full possibility to defend himself and furnish his version and deny this to
someone of equal status, the rule of law principle is impaired.34
Justice Michael Cheshin has justifiably stated that, "the rule of law
principle reflects the principle of legality," and he adds that "it reflects the
need for enforcing the law equitably and without bias according to known
and established rules, without arbitrariness and accident."35
2. THE JURISPRUDENTIAL ASPECT
(a) General
The rule of law in its formal sense is a necessary condition for understand-
ing the rule of law. But it is not a sufficient condition. Take a law that
determines that regulations based on it are effective even if they have not
Begin and the Rule of Law * II
been published. Take a law that determines that an act perpetrated in the
past, when such perpetration was legal, retroactively becomes a criminal
act; take a law that determines that a certain area of life will be arranged
according to the individual decisions of a government official; take a law
that determines what is prohibited and permitted, but defies understanding;
take a legal system whose laws are interminably contradictory and that are
constantly in flux. In all of these cases implementation of the law is liable
to correspond with the formal rule of law. But does the principle of rule
of law apply in a court system where such laws are in force? The accepted
opinion is to answer this question negatively. Legal philosophers-and
among them Rawls,36 Fuller,37 and Raz38-emphasized that the rule of
law principle has a jurisprudential meaning. Professor Fuller calls this
the "internal morality of the law." These are the minimum demands; the
requirements that guarantee what Rawls terms "formal justice." Therefore,
at the heart of the jurisprudential aspect stands the question: what effect
does the social framework have on the legal system?
In what way is the legal system different from a gang ruled by a tyran-
nical leader? Naturally, legal thinkers disagree over the answers to these
questions. Professor Fuller's list is illustrative of the dilemma: the law must
be general, known, and published; the law must be clear and comprehen-
sible; the law must be stable; retroactive legislation must be forbidden; laws
cannot be contradictory; the law cannot demand acts to be carried out
that are physically impossible; there must be a viable enforcement system
of the government authorities responsible for law enforcement. Rawls list
is just as long. He demands, first, that the prohibition that the law entails
is doable, since it is the result of activity of the legislative, executive, and
judicial authorities that have acted honestly and are regarded as such by
the citizens. Second, the principle of equality is maintained. Only if like
cases receive like solutions will a person be able to function positively in
society. Third, a criminal act has not been committed unless a law defines
it as such. The law must be known and published; retroactive legislation is
prohibited; the law must be clear and understandable. Fourth, the rules of
natural justice must be maintained. Raz's list is shorter. The law must be
realizable, published, clear, and relatively stable; the judicial authority must
be autonomous; the rule of natural justice must prevail; the court must be
a supervisory authority and there must be easy accessibility to the court.
In his book on constitutional law, Israel's Professor Rubenstein discerns
"three practical principles that the rule of law cannot repeal: equality before
the law; clarity of the law . .. publication of the law."'39 Some of these mat-
ters-equality before the law, implementation of the law, independence of
the judicial authority, supervisory authority for adjudication, and acces-
sibility to the court-have been already been discussed in the analysis of
the formal rule of law. Indeed, the borderlines between the different aspects
of the rule of law overlap, and certain subjects can be classified either this
way or that. A number of additional matters are perceived as integral parts
of the rule of law in its jurisprudential sense.
(b) Publication and Clarity of the Law
Of prime importance is the publication of the law. The rule of law requires
publication of the law before it goes into force. A person-considered
knowledgeable of the law-must be able to conduct himself according to
the law: "It is forbidden to obey a law if the law is obscure.""40 Justice Haim
Cohen correctly noted that,
Legislation that is made obscure and registered in hidden archives, is one
of the signs of a totalitarian regime, and does not correspond with the rule
of law.41
The principle of publishing legislation lies at the heart of the rule of law
... since the law... according to its definition is supposed to be known in
advance. And the law will not be given and announced ahead of time as a
law designed for the public unless the law has been published for the public.
Thus, a person is forewarned of the norms of conduct that he is obligated
to abide by, and in this way can conduct himself according to those norms
that have been decided on and brought to his knowledge in advance.42
Secret-legislature detracts from the foundation of the rule of law.
(c) Clarity of the Law
Clarity of the law is second. The law must be clear and comprehensible. A
person must be able to understand the law by reading it and-with pro-
fessional help-understand what is forbidden and permitted. Indeed, the
law needs to be worded in such a way that whoever reads it knows what
is permitted and forbidden. This does not correspond with the rule of law
in determining the nature of a crime-as we define it in the criminal law
(Section 198)-as committing "an act liable to result in a public infringe-
ment." A ruling such as this is neither certain nor clear. The rule of law
(in its jurisprudential sense) demands its annulment. Hence, this is also
forbidden retroactively, or retrospectively, especially in the criminal sphere.
Furthermore, the law has to be stable. It is forbidden to introduce new
changes whimsically. The rule of law calls for a certain degree of stability in
the legislative system. This is the only way that proper social arrangements
can be maintained. And finally, contradictory legislation must be avoided,
otherwise how can a person conduct himself properly? Naturally, the need
for clarity of the law is only relative. Every text requires interpretation. A
text is comprehensible only after it has been interpreted. Sometimes inter-
pretation is a simple matter, other times a complicated one. Clarity requires
that the law is comprehensible after interpretation.
2. THE RULE OF LAW AND GOVERNMENT CONSIDERATIONS
Against this background we may ask whether the rule of law in its juris-
prudential sense negates government considerations. The rule of law con-
cept frequently appears as the antithesis of the rule of man. This view is
enshrined in the writing of Locke43 and has influenced the constitutional
perspective in England. The English perceive the rule of law that we are
discussing as the rule of law and not the rule of man. In Israel too this
expression holds sway. According to Justice Shamgar:
The main expression of the rule of law is that it is not the rule of men-with
their unlimited decisions, considerations, and aspirations-but that it rests
on the directives of stable norms that are equal for everyone and that obligate
everyone identically.44
In similar spirit Justice Michael Cheshin noted:
We are filled with praise for the principle of the rule of law, and by praising
it we wish to posit the rule of law vis-h-vis the rule of man. The Law-not
man-will control us ... The rule of man is basically tyranny ... This is
the rule of man-while facing it stands the rule of law. Furthermore, a law
is the product of man's spirit, and as such-as different from man-by its
very definition it should be given and known in advance."45
Hence, the view that Justice Olshen stated in the early 1950s:
According to the 'rule of law' principle, the legislator must legally determine
and specify the cases in which licenses may be granted or refused, in such
a manner that the executive authority will be able to implement the law's
rulings in practice. Thus, the job of legislation must be done in such a way
that the citizen can find in the body of the law the answer to the question
of what is forbidden and what permitted, and will not be dependent on this
matter on the opinion of the executive authority.46
Indeed, we should strive to have the normative arrangement cor-
respond with the language of the law. Security, clarity, and generality are
impaired if the normative arrangement is derived from the employment
of administrative opinion rather than from the law's directives. How-
ever, this goal cannot be realized in the modern welfare-state. The chief
lawmaker cannot determine all the normative arrangements in the main
legislation. The task would be too great a burden for him. Nevertheless,
we should strive to safeguard the rule of law and not the rule of man. This
can be accomplished by restricting the administrative opinion. Professor
Klinghoffer pointed out:
This integration of liberal and democratic elements, that characterizes the
rule of law, leads to the rule of law's main demand: the restriction of the
administrative authority will be as intensive as possible.47
This can be attained by adopting the following three arrangements:
First, the primary legislation will determine the main arrangements,
whereas the secondary legislation and individual acts will deal with imple-
mentation arrangements.48 Professor Klinghoffer discussed this issue in an
important essay published several decades ago:
We must discern between the theoretical concept of administrative legal-
ity, that is satisfied with the law's formal restriction of the administrative
authority, and the concept of specific legality, that demands flexibility in
the rule of law, a concept that means the law's maximum restriction of the
administrative authority. Maximum restriction means that every admin-
istrative act, whether secondary legislation or an individual act, must be
determined by the substance of all its main parts, by a norm whose design
is that of the law. In this sense we may state that a state in which the rule of
law dominates, the authority for determining first (primary) arrangements
is given to the legislator, while the administrative organizations are allowed
to determine secondary arrangements only within the framework of the law
. . The rule of law ... does not allow the legislator to surrender his author-
ity to determine primary arrangements to the administrative authority ...
Any transfer of such authority to the administrative authority runs counter
to the rule of law.49
Second, the administrative opinion never will be absolute. Power
tends to corrupt. Absolute power tends to corrupt absolutely. Hence, the
rule of law calls for the crystallization of a normative system that will
restrain governmental opinion. Indeed, the war against the imperiousness
of administrative opinions is not for the annulment of such opinion, but
for determining a framework for its proper implementation. Therefore the
rules of administrative law-the basic and adjudicative ones-were devel-
oped by the high court of justice and determine that a religious doctrine
will be used in governmental opinion. The opinion must be made in such
a way that it takes into consideration all the relevant factors. Thus, it must
not be arbitrary; it must be made without bias; it must be made reasonably,
that is, after carefully weighing the relevant considerations; it must not be
tainted by a conflict of interests; it must listen to the injured party; it must
explain every decision, and it must carry out a precise, fair, and systematic
examination50 of the factual infrastructure before giving an opinion. The
more the range of governmental opinion increases the more these guide-
lines must be expanded and supplemented. This has taken place recently,
as we have learned-following European law-of (proportional) measur-
ability as another consideration for guiding administrative authority.
Third, effective adjudicative criticism of the implementation of admin-
istrative opinion must be guaranteed. True, the court does not have to
replace the government's opinion with its own opinions; the court does
not have to ask itself how it would decide a particular case if it had the
government's opinion. Adjudicative criticism is one of legality-not of
reason or efficiency. But in the areas of legal criticism, the court has to insist
that the administrative authority remains within the realm of consideration
given to it. And the more that administrative decision infringes upon the
rights of the individual, the more vigorous the adjudicative criticism has
to be. The court has to see itself as the defender of the rights of man and
protector of the borderlines of administrative consideration.
4. THE ESSENTIAL ASPECT
(a) General
The rule of law in its jurisprudential aspect enhances the concept of the
rule of law. Nevertheless, there is nothing in it-together with the formal
aspect-to illustrate the full richness of this term. If the rule of law exists
only in its formal and jurisprudential aspects, then the corrupt rule of
law (lex corrupta) may also be included in it. Indeed, the weakness of the
formal and jurisprudential aspects for the rule of law is that for the most
part, they take no interest in the substance of the law that the rule of law
wants to dominate and implement. They are satisfied with the existence
of the law and that it fulfills a number of jurisprudential demands such
as generality, stability, clarity, and absence of rhetoric. But why should we
praise legislation that grants the government-publicly, unambiguously,
and generally-the authority to infringe upon the rights of man as an
unworthy and unnecessary objective? What use is there in encouraging the
government not to prejudice the enforcement of law when its substance is
prejudicial? Should we be satisfied with the concept of the rule of law, when
its formal and jurisprudential characteristics may exist in a totalitarian
state? Haim Cohen justifiably pointed out that the "rule of the law"-is
our regime of law-
This does not mean only that the governments that rule a state act according
to the law: totalitarian governments also act according to the law of their
states, according to the laws that they themselves legislated for their goals
and according to their conventions. An example of this is the Nazis who
came to power according to the laws and who committed the majority of
their crimes according to the authority of the specific laws that they seized
for this reason. Nobody would say that "the rule of law" prevailed in Nazi
Germany and nobody would disagree that a rule of crime prevailed.51
Indeed, it would be a mistake to identify the rule of law principle
with the legitimacy of the administration principle, with the addition of
jurisprudential demands. Professor Zamir has noted:
The principle of administrative legitimacy in a democratic state is an obliga-
tory principle, but not an adequate one. First, it fails to discern between a
democratic state and other types of states. A police state too, under a military,
party, or religious regime seeks to uphold the principle of administrative
legitimacy. The difference between a democratic society and a police state lies
not in the obligation to act according to the law, but mainly according to the
letter of the law. Second, the legitimacy of the administration principle is not
enough to guarantee that a democratic state upholds its purpose. The main
purpose of the democratic state is to serve man. This purpose depends, first
of all, on the letter of the law and not on observance of the laws. Observance
of the laws guarantees order and stability but not freedom and welfare. The
faithful enforcement of corrupt laws does not serve the dignity of man; on
the contrary, it will probably demoralize man. Only the implementation of
laws designed to serve man can justify the purpose of democracy.52
Thus, we should not be satisfied with what Professor Darken terms
the "rule-book conception" of the rule of law.53 The rule of law refers to
more than the legitimacy of the government. The rule of law must be
broadened to the substantive aspect that Professor Dworkin terms the rule
of law's "right conception."54 This is also the acceptable approach in today's
international legal community.
(b) A Proper Balance Between the Society and the Individual
There is no agreement on this question. Professor Dworkin notes that the
recognition of the rights of man-whether in mutual relationships or in
their relations with the government-lies at the basis of the rule of law's
essential aspect. Haim Cohen perceived the recognition of the rights of
man as an aspect of the desire to achieve justice. "There is no rule of law
other than the restoration of justice."55 I agree with all of the above. Still,
I believe this viewpoint should be delved into more deeply.
Democratic government is the starting point of this basic perspective
of the rule of law. The rule of law is meaningless in a totalitarian or auto-
cratic state. The democratic state is made up of two characteristics: one,
it is a regime based on representative government that acts according to
the will of the majority. This is the formal aspect of democracy. Second,
it is a regime that upholds the rights of man and ensures that the political
framework is the means for defending these rights. This is the essential
aspect of democracy. The essential rule of law is the rule of that law that is
made according to the rules of formal democracy (the majority principle)
and meets the demands of essential democracy (the defense of the rights
of man). Therefore, a state where the laws are not made according to the
majority principle is not a state where the rule of law principle prevails.
The person or institution that makes the laws, dominates the state.
Furthermore, in a state where the laws are made according to the majority
principle, but the laws violate the rights of man, the rule of law principle
does not prevail. When the majority removes the basic rights of man from
the minority, rule of law is truncated. Therefore, rule of law is the just and
proper rule of law. The rule of law is not only public order but also social
justice based on social order. Indeed, the formal meaning and essential
meaning of the rule of law are inseparable. The two are intrinsically bound.
The law exists to guarantee a viable social life. Without the law social life
is impossible. But social life alone is not a goal. It is designed to enable the
individual to develop. Society does not exist for itself, but for its individu-
als. Hence, a strong connection exists between the two aspects of the rule
of law.
The rule of law does not exist in a totalitarian state even if the rule of
law prevails, since such law refutes the rule of law principle. Thus, the rule
of law principle resembles a three-tiered structure: at its base is the rule of
Is * ISRAEL STUDIES, VOLUME IO, NUMBER 3
law in its essential meaning, founded on the rights of the individual and on
the individual as part of the social collective (termed "state") that functions
democratically and expresses the will of the majority. The second tier is the
jurisprudential level. Only a law that upholds these demands protects the
principle of the rule of law.
The rule of law in its formal sense stands at the highest level. The law is
just and proper when it comes from the essential workshop, passes through
the jurisprudential level, enjoys the formal rule, and acquires everyone's
respect. If the foundation is destroyed, then the heights no longer exist.
I fear that by overemphasizing the rule of law in the sense of domination
of the law and its respect, we blur the basic assumptions on which the law
and its regime are built. T-hese assumptions are a democratic government
in whose center stand man and the social entity-the state-and where
the individual reaches fruition when the state operates through a regime
of representatives based on the majority's decision. I shall now discuss a
number of factors in the essential rule of law.
(c) The Essential Rule of Law and the Rights of Man
In the center of the perspective of the essential rule of law stands man.
The dignity of man is a basic value in every society. The dignity of man is
derived from the Jewish tradition according to which man was created in
the image of God. "Happy is the man who was born in the image [of the
Lord]; a greater love is intended for him who was born in the image [of
the Lord]." The dignity of man is the dignity of all men. Therefore, even
the dignity of a prisoner and detainee must be safeguarded. This ethical
standard is so precious to us that we are sometimes willing to sacrifice on its
altar another important value-Truth. Thus, we forbid the use of violence
for pressuring suspects to tell the truth during interrogation. The principle
of equality is derived from the dignity of man. Everyone is equal before the
law. According to the United Nations Charter: "Every man is born free and
equal with regard to dignity and rights." Israel's Declaration of Indepen-
dence states that the State of Israel will uphold the full social and political
equality of all its citizens, without distinction of race, creed, or sex.
Indeed, equality is a supreme value in Israel. I have spoken on this in
the past:
Equality is a basic value in every democratic society .. . The individual
becomes integrated into the general network and participates in the build-
ing of society, realizing that others are doing likewise. The natural need for
man to safeguard equality is based on considerations of justice and probity.
A person who wants his rights respected must recognize the rights of others.
The need to preserve equality is vital for society and the social agreement
upon which it is constructed. Equality safeguards the government from
tyranny. Indeed, no factor more destructive to society than its sons and
daughters' feeling that they are being treated unfairly. The sense of inequality
is one of the harshest feelings. It detracts from the forces that unite society.
It injures man's self-identity.56
Freedom of expression is another value cherished by the Israeli regime:
through it the truth is revealed and man realizes himself. It is the basis of
a democratic regime. Indeed, the free exchange of information, opinions,
and views-not dictated by the government-is a vital condition for the
preservation of a democratic regime based on the rule of the people, by
the people, and for the people. This is the only way to guarantee that every
individual in society receives the greatest amount of data needed to decide
on matters of the regime and government. The free flow of ideas enables an
organized change in the structure of powers that make up the government.
Without freedom of expression, democracy loses its soul.
I have dealt with a number of basic principles concerning the rights
of man. But the list is still incomplete. More principles need to be added
such as freedom of movement, freedom of conscience and religion, freedom
to organize, right of possession, and so forth. A look at these basic rights
shows that they are shared by all members of society. Sometimes they clash
among themselves. My freedom of expression may infringe upon your dig-
nity of man; my freedom of movement may impair your right of possession.
Indeed, "all or nothing" does not exist in an organized society. There is
"give and take" and balance among various interests. Thus, the basic rights
are not absolute; they are relative. The right of one person is limited in order
to protect the right of another. My right to extend my hand in front of
me ends where my friend's nose begins. The individual does not stand by
his own right. He lives within the framework of society that is obliged to
guarantee the rights of all its members. Thus, the need to limit the rights
of the individual so that society can uphold the rights of all its members
means that we possess not only rights, but also obligations.
Along with the rights of man we recognize public peace, the security
and survival of the state are interests that a democratic state must protect.
This is the only way in which the survival of society and the rights of its
members can be preserved. The rights of man must not lead to the destruc-
tion of the state that was designed to safeguard them. Hence, the rights
of man cannot be a formula for national annihilation. Democracy does
not have to commit suicide in order to prove its vitality. Freedom does not
mean dereliction of responsibility.
In this light, the main expression of the essential rule of law principle
is the correct balance between the values and interests that need to be
protected. The question is-how justified are we in limiting the right of
the individual in order to safeguard the survival of society that is intended
to protect the rights of all the individuals? This is the complex dialectic
involved in the essential rule of law.
THE SUPREMACY OF THE LAW
I. RULE OF LAW THROUGH SUPREMACY OF THE CONSTITUTION
How can the formal, jurisprudential, and essential rule of law be guaran-
teed? Obviously, as long as the lawmaker is free to legislate a law that the
majority wants, then the three aspects of the rule of law principle cannot
be realized. On this assumption the lawmaker can legislate a law that
deviates from the formal, jurisprudential, and essential requirements of
the rule of law. But the interpretation has its limitations. A lawmaker who
wants to achieve results that deviate from the rule of law principle can do
so. The rule of law will become merely a political tool for the lawmaker: if
he wants to-he can realize it; if he prefers-he can avoid it. How can such
a situation be prevented? The answer is that in order to guarantee all the
aspects of the rule of law, the lawmaker must be legally forced to respect
the rule of law principle. This can be realized by a normative arrangement
that grants the rule of law's three aspects a supreme legal status according
to which every law of the conventional lawmaker is obligated to uphold the
formal, jurisprudential, and essential requirements of the rule of law. From
this we may conclude that in order to guarantee the rule of law, it must be
enshrined in the state's constitution-in Israel, the Basic Laws-that grant
the rule of law's three-way principle a constitutional-extra-legal status.
Menachem Begin (1913-1992; prime minister, 1977-1983) dealt with the
need to guarantee what he termed "the supremacy of the law." This was his
position in the Constituent Assembly-that is, the First Knesset-during
discussion on the state's constitution. Begin asked:
Can we be satisfied with the government's laws or does our state require the
rule of law? This is the difference and it is what determines the question of
the constitution.57
He returned to this position in an article published in 1952 dealing
with an outlook on life and a national outlook:
What is the supremacy of the law? If the nation determined for itself through
its elected representatives a basic law that defines its status and the mutual
relationships between the legislative, executive, and judicial authorities; [a
law] that defines not only the government representatives' rights and authori-
ties but also their obligations; [a law] that defines not only these obligations
but also the citizen's rights and his political, spiritual, and economic free-
doms; after the nation has determined for itself such a Basic Law then all
the rest of the laws, and not only the orders of the executive authority, must
coincide and be adapted to the Basic Law. And they cannot disaffirm it.58
How can the supremacy of the constitution-in Begin's term: "the
supremacy of the law"-guarantee the rule of law? By dint of the rulings
of the constitution-which is a constitutional-extra-legal norm-the law-
maker is obligated to legislate laws that correspond with the rule of law's
jurisprudential aspect. The lawmaker is not free to legislate any law that
he wishes; the lawmaker is not free to determine that a law is in force that
has not been published; the lawmaker is not free to determine a vague law;
the lawmaker is not free to determine criminal legislation retroactively.
But more than this, conventional legislation has to correspond with the
essential aspect of the rule of law; legislation cannot infringe upon the
rights of man without justifying it for the preservation of the proper bal-
ance between the rights of the individual and the needs of society; legisla-
tion cannot harm the dignity and freedom of man unless it is necessary
to preserve the social structure that safeguards the dignity and freedom of
man. Indeed, the lawmaker is not free to make laws that injure the rights
of man unless these too have a proper objective, and the injury they cause
does not go beyond what is necessary.
In this light, the rule of law cannot be guaranteed without enshrining
it in the law. Whoever wants to uphold all the aspects of the rule of law
must introduce a constitution whose strength stands above conventional
legislature and that includes the rule of law principle in all its aspects.
According to Professor Zamir:
In order to guarantee the rule of law, especially the rule of law in the essential
sense, a constitution is necessary... The majority in the house of legislation,
even if it represents the people is not allowed to exploit its status in order to
injure society's basic values. The laws that it legislates must serve these values,
and under no circumstances are they allowed to contradict them.59
Indeed, enshrining the rule of law in the state's constitution is a stipu-
lation for realizing the rule of law in all its aspects. The guarantee of rule of
law requires constitutional democracy. It requires a constitutional system in
which political struggles are controlled by the constitutional arrangements
that inherently contain the rights of man.
2. JUDICIAL CRITICISM OF THE LAWS CONSTITUTIONALITY
Is a constitutional ruling on the rule of law principle in all its aspects
adequate? The answer is negative. A constitution is a necessary condition.
An independent element, outside the conventional lawmaker, is needed
which has the authority to judge that constitutional rulings on the rule
of law have been violated, and that such a law is rescinded. Juridical criti-
cism of the law's constitutionality is necessary. Without such criticism the
constitution will become a political document lacking sufficient normative
power to guide the lawmaker. The rule of law will revert to merely a politi-
cal slogan and cease to be a normative guideline that the lawmaker must
follow. Begin discussed this principle too in the aforementioned article:
The supremacy of the law will be expressed in a panel of independent judges
that will be given the authority to determine, in the case of a complaint, the
legal justification of the administrative order or regulation of the executive
government's institutions, as well as the authority to decide, in the case of a
complaint, if the laws that are accepted by parliament (are accepted as we
have seen [thus in the original] with the government's great or decisive influ-
ence) fit the Basic Law or contradict the rights of the citizen that were deter-
mined in it. The right to submit a legal complaint regarding the 'laws' should
be granted to every citizen [emphasis in the original], if he considers himself
directly or indirectly injured by them, and the legal issue prevails.60
Mr. Begin asked whether it is fitting that the judges, who have been
elected, annul laws. And the answer was positive:
We have learned that the elected parliamentary majority can be a tool in the
hands of groups of rulers and cover up their tyranny. Therefore, the nation, if
it votes freely, has to determine its rights vis-ai-vis parliament lest the major-
ity in it, which serves the government more than it oversees it, repeals these
rights. This is possible only via 'supremacy of the law,' that is, by determining
civil freedoms as a 'Basic Law' or 'higher law' and giving authority to the
panel of judges to annul the force of a law that contradicts the Basic Law
[because it] runs counter to the civilian freedoms.61
Naturally, Begin recognized the judge's weaknesses. A judge may err,
but his main advantage lay in his "absolute independence":
History teaches that as long as the rule of a tyrant has failed to eradicate the
Law; has failed to turn the court room into a cabaret with the secret police
pulling the strings behind the scenes; [and] as long as there is a 'public
atmosphere' for safeguarding the sanctity of the judge's consciousness and
the Law's independence-[then] the judges have known how to resist the
tyrants and prefer the calling of their conscience to the pressures or ulterior
dictates of the authorities; have known how to overcome the fear of persecu-
tion, have acted 'without bias,' have not been motivated by special favors,
and have adjudicated equitably.62
3. THE CONSTITUTION AND BASIC LAWS
Begin died on March 9, 1992. In the same month the Knesset passed the
Basic Law: The Dignity of Man and Liberty, and the Basic Law: Freedom
of Occupation. The Supreme Court dealt with the constitutional status
of these two basic laws in its verdict on Aleph Bank Mizrachi (CA).63 We
learn from combined activity of the Knesset and the Supreme Court that
Israel's basic laws are in effect the state's constitution; they are a constitu-
tional-extra-legal norm; a regular Knesset law cannot injure, amend, or
refute the basic laws; a law that refutes a basic law is illegal; the Israeli court
is allowed to decree the annulment of an illegal law.
Although we have gained the supremacy of the constitution, does this
provide enough constitutional protection for the rule of law principle in
all its aspects? There is no specific ruling in the basic laws requiring the
rule of law to be upheld. This is most unfortunate. Constitutions exist that
specifically define the state as a state of law or one in which the principle
of the rule of law takes precedence. But this is pointless. From the rest of
the constitution's rulings we may conclude that the formal, jurisprudential,
and essential rule of law principle in Israel has been given a constitutional-
extra-legal status. The basic laws dealing with the rights of man determine
that man's constitutional right must not be impaired, "unless legally." In
this way, the formal principle and jurisprudential aspect of the rule of law
have been given expression. The constitutional principle that is enshrined
in this ruling deals with more than formal legality. The ability to injure the
rights of man "legally" means-as comparative law has determined-that
the law has to be public, unambiguous, understandable, and clear.
The essential rule of law principle comes to expression in the ruling of
the two new basic laws regarding the rights of man which states that it is
forbidden to violate the constitutional rights of man unless through a law
"that corresponds with the State of Israel's values, and was intended for a
fitting objective, and does not overstep what is necessary."64
This ruling-termed "the limitation clause"-serves as a main conduit
for introducing the essential rule of law into Israel's constitutional struc-
ture. A corrupt law (lex corrupta) in a democratic state, or a law that injures
the rights of man to an intolerable degree, cannot uphold the requirements
of the limitation section. It is not a just objective and its injury is intolerable
(out of proportion).
Thus, forty-five years after Menachem Begin first broached the idea of
"the supremacy of the law," the Knesset accepted this view. In Israel, the
law is supreme in the sense that the constitutional principles that determine
the basic laws (Israel's constitution) enjoy normative, constitutional-extra-
legal power, and the Knesset itself must respect them, as the two basic laws
regarding the rights of man have determined: "Every government authority
must respect the rights according to this basic law."65
4. THE SUPREMACY OF THE LAW IN THE FUTURE
The rule of law-in its three aspects-is protected in Israel. It is more
than a policy to be followed; it is a legal norm that demands respect. The
demand for this respect stems from the enshrinement of the rule of law
principle in Israel's basic laws. This arrangement, however, is partial and
truncated. The supremacy of the law exists only for a number of limited
constitutional rights, and the Knesset can change a basic law with relative
ease. Indeed, what the Knesset is prevented from doing by conventional
legislation-deviating from the rule of law principle-it can attain by
amending the basic laws. This state of affairs calls for further consider-
ation. If we want to realize the rule of law principle in Israel-in its three
aspects-then we should follow the spirit of Menachem Begin's reasoning
and make it difficult to change in the basic laws.
CONCLUSION
The formal constitution, that maintains a proper balance between the
rights of the individual, the needs of society, a democratic legislator, a law-
abiding executive authority, an autonomous judicial system, and indepen-
dent enforcement mechanisms-are all necessary conditions for maintain-
ing the rule of law and supremacy of the constitution. Nevertheless, these
conditions are insufficient in themselves. The rule of law and supremacy
of the constitution will protect us only if we protect them. The rule of
law and the supremacy of the constitution will be preserved only if the
members of Israeli society preserve them and demand their preservation.
The rule of law and the supremacy of the constitution will flourish only
if they are engrained in the heart of every citizen. Indeed, the rule of law
and supremacy of the constitution are only legal concepts. They are social
values. They are part of the nation's culture. The rule of law-like the
supremacy of the constitution-has to be struggled for. "The struggle for
the law continues. The need to maintain a watch over the rule of law never
ends. Trees that took years and generations to grow can be cut down in one
fell swoop. Never desist in defending the rule of law."66 It is a daily struggle.
Only when the members of Israeli society internalize the values of the rule
of law and supremacy of the constitution will these principles be reborn
in Israel. Rhetoric is not enough. The practical side must be guaranteed.
According to former Prime Minister Menachem Begin:
"TIhe idea of 'supremacy of the law' is not a 'naive,' 'romantic,' or
theoretical idea. If the 'public atmosphere' in society and state gives the
law the status of unconditional independence; if the judge is acknowledged
both legally and internally [emphasis in original] as a fair and indepen-
dent judge, then the public atmosphere and internal acknowledgement
will determine the prevalence of the "supremacy of the law" as a practical
guarantor of the freedom of the individual and as a link between man's
liberty and the rectification of society.67
NOTES
* President of Israel's Supreme Court
I. This first appeared as a lecture delivered on March 19, 1997 in the Knesset
plenum commemorating the fifth year of Menachem Begin's passing. It was later
published as an article under the title, "Shilton ha'hok ve, elyanut hahoka" in
Mishpat Umimshal (2000) 375-379.
2. On the rule of law, see Amnon Rubenstein, Constitutional Law ofthe State
of Israel, 5th edition (Tel-Aviv, 1997) 227 [Hebrew]; Aharon Barak, "T-he Rule
of Law," in An Anthology of Lectures (Delivered on a Professional Day for Judges)
(1976) 15 [Hebrew]; Yitzhak Zamir, "The Rule of law in the State of Israel," in
editors Hapraklit, Special Edition in Honor of the 25 Years of the Bureau of
Attorneys (1962-1987) (1987) 61 [Hebrew]; Leon Shelef, "From 'The Rule of Law'
to the 'Authority of the Law'-Re-thinking a Basic Concept," Iyunei Mishpat 16
(1991-1992) 559 [Hebrew]. See also The Rule ofLaw, Ian Shapiro (ed) (New York,
1994); The Rule of Law-Ideal or Ideology, Allan C. Hutchinson and Patrick
Monahan (eds) (Toronto, 1987).
3. See Rubenstein, Constitutional Law of the State oflsrael, 227.
4. See Antonin Scalia, "The Rule of Law as a Law of Rules," University of
Chicago Law Review, 56 (1989), 1175.
5. Chief Justice Barak in the Supreme Court Decision 428/86, MAHCJ
320/86 Barzilai v. Israeli Government, P.D. 40 (3) 505.
6. Ibid., 555.
7. See Plato's "Criton" in Eric H. Warmington and Philip G. Rouse, Great
Dialogues ofPlato (New York, 1956) 456, 455.
See then Socrates, whether we are speaking the truth when we say that you do
wrong to us now in this attempt. We who brought you into being, who brought
you up, educated you, gave you and all the other citizens a share of all the beautiful
things we could ... Then the Laws will say to Socrates, at least he thought so in
examining with Criton the possibility of his escape from prison. And regarding
his statements they say:
Any of the Athenians who asks that when he passes the muster and sees the public
business and us the Laws, anyone who does not like us has leave to take what is
his and go where he will ...
But if any one of you remains, we say that he has now agreed in fact to do what
we command ... (456)
And further we said, 'Tell me so, what have you in mind to do? I'm trying to do
this, can't you see that you are trying to destroy us, the Laws, and the whole state,
as far as you can do it? Or do you think it possible that a city can exist and not be
overturned, where sentence given has no force but is made null by private persons
and destroyed? (p. 455)
8. Moshe Zilberg, This is the Way of the Talmud (Jerusalem, 1962) 70
[Hebrew].
9. CA, 6921/93, see CA, 1908/94, et al. Bank Hamizrachi Hameuchad Ltd., et
al. v. Migdal Collective Village, et al., P.D. 49 (4) 221 420.
10. Maimonides, Stealing and Loss, decisions 5, 13.
II. Supreme Court Decision 5711/91 Poraz, et al. v. the Chairman ofthe Knesset,
et al., P.D. 46 (i) 299, 308.
12. Section/Paragraph 2 of the Basic Law: Adjudication, 68, 1984, 78.
13. CA, I5o//o Kaufman v. Margins, P.D. 6 1005, 1033.
14. Criminal Law 3/62 Interior Minister v. Musa, P.D. 16 2467, 2471.
15. Supreme Court Ruling 732/84 Tzaban v. The Minister of Religious Affairs,
et al., FH 4o (4) 141, I48.
16. Justice M. Cheshen in Supreme Court Ruling 3872/93 Mitral Ltd. v. The
Prime Minister and Minister ofReligious Affairs, et al., P.D. 47 (5) 485, 512.
17. Supreme Court Ruling, Barzilai (note 5 above), 621.
18. See Albert V. Dicey, Introduction to the Study ofthe Law ofthe Constitution,
Ioth ed. (London, 1953) 193
19. See Supreme Court Ruling 168/91 Murcus v. The Defense Minister, et al.,
P.D. 45 (I) 467, 470.
20. CA, 1/65 Yardod v. The Chairman and Central Election Committee to the
Sixth Knesset, 19(3) P.D., 365, 379.
21. See Supreme Court Ruling 1843/93 Pinchasi v. The Israeli Knesset, etal., P.D.
49 (i) 66i.
22. Sanhedrin i9, CA.
23. Supreme Court Ruling 5151/95 Cohen v. The Attorney General, et al., P.D.
49 (5) 245, 254.
24. Supreme Court Ruling 7/48 Al-Karbutali v. The Defense Minister, et al.,
P.D. B 5, T5.
25. CA 421/61 The State oflsrael v. Haas, P.D. 15 2193, 2200.
26. Supreme Court Ruling Barzilai (note 5 above) 554.
27. CA, Bank Hamizrachi (note 9 above) 420.
28. Idem.
29. Supreme Court Ruling 294/89 The National Insurance Institute v. 7he
Appeals Committee according to Paragraph II of the Law for Compensation for
Victims of Hostile Activity, 1970 et al., P.D. 45 (5) 445, 450.
30. Supreme Court Ruling 217/80 Segel v. 7he Minister of the Interior, P.D. 34
(4) 429, 441.
31. Supreme Court Ruling 2148/94 Gelbert, etal. v. 7he President ofthe Supreme
Court and Chairman of the Investigation Committed for Investigating Massacre
Incidents, et al., P.D. 48 (3) 573, 603.
32. Page 2 2/84 Neuman, etal. v. The Chairman and Central Election Committee
to the Eleventh Knesset, P.D. 39 (2) 225, 262.
33. See Supreme Court Ruling 953/87 Poraz, et al. v. The Mayor of Tel-Aviv-
Jaffa, et al., P.D. 42 (2) 309, 332.
34. Supreme Court Ruling Barzilai (note 5 above) 622.
35. Page 80 o 3520/91 Turjeman v. 7he State oflsrael, P.D. 47 (I) 441, 456.
36. John Rawls, A Theory offustice (Cambridge, MA, 1971) 235.
37. Lon L. Fuller, 7he Morality of Law, rev. ed. (New Haven and London,
1969) 33.
38. Joseph Raz, "The Rule of Law and its Virtue," Law Quarterly Review, 93
(197 7), I5.
39. See Rubenstein, Constitutional Law of the State ofhsrael, 245.
40. See SCR 4950/90, in Shagatz, 1644/91 Parnas, et al. v. The Defense Minister,
et al., P.D. 47 (3) 36, 42.
41. CA Haas (note 25 above) 2205.
42. Ra"af, 1127/93 The State oflsrael v. Kleiman, et al., P.D. 48 (3) 485, 515 [here-
after: LCRIMA Klein].
43. John Locke, Two Treaties of Government, Peter Laslette (ed) (Cambridge
UK, 1988) Second Treatise, paragraph 136.
44. Page 2, Neuman (note 32 above) 261.
45. LCRIMA Klein (note 42 above) 515.
46. Supreme Court Ruling II3/52 Zachs v. The Minister of Commerce and Indus-
try, P.D. 6, 696, 702.
47. Yitzhak H. Klinghoffer, "The Rule of Law and Secondary Legislation," in
Yitzhak Zamir (ed) The Klinghoffer Book ofPublic Law (Jerusalem, 1993) 105, io8
[Hebrew].
48. See CA, 524/88 "Pree Ha'emek, "et al.-The Cooperative AgriculturalAssocia-
tion Ltd. v. Sadeh Yaakov-Workers'Moshav of Hapoel Hamizrachi for Collective
Agricultural Settlement Ltd., et al., P.D. 45 (4) 529.
49. Klinghoffer, "The Rule of Law and Secondary Legislation," Io8.
50o. ChiefJustice Shamgar in Supreme Court Ruling 297/82 Berger, etal. v. The
Interior Minister, P.D. 37 (3) 29, 48.
5I. Haim H. Cohen, The Law (Eilat, 1992) 143 [Hebrew].
52. Yitzhak Zamir, The Administrative Authority, vol. I (Nevo, 1996) 59
[Hebrew].
53. See Ronald Dworkin, A Matter ofPrinciple (Cambridge, MA, 1985) II.
54. Idem.
55. Cohen, The Law, 144
56. Supreme Court Ruling Poraz (note 33 above) 332.
57. Knesset Protocols 4 (1950) 737.
58. Menachem Begin, Life Perspective and National Outlook-Basic Lines,
(Ba'Saar, 1952) 28 [Hebrew].
59. Zamir, The Administrative Authority, 61.
6o. Begin, Life Perspective and National Outlook-Basic Lines, 29.
61. Idem.
62. Ibid., 30.
63. CA, Bank Hamizrachi (note 9 above).
64. Paragraph 8 of the Basic Law: Dignity of Man and Liberty, SH 1992 150o;
paragraph 4 Basic Law: Freedom of Occupation, SH 1992 114.
65. Paragraph ii of the Basic Law: Respect of Man and Liberty; paragraph 5
of the Basic Law: Freedom of Occupation.
66. Supreme Court Ruling 5364/94 Velner, et al. v. The Chairman of the Israeli
Labor Party, et al., P.D. 49 (i) 758, 808.
67. Begin, Life Perspective and National Outlook--Basic Lines, 3I.

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Israel Studies Volume 10 Issue 3 2005 (Doi 10.2307 - 30245765) Aharon Barak - The Right in Israel - Begin and The Rule of Law

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Begin and the Rule of Law

Author(s): Aharon Barak

Begin and the Rule of Law'

the constitution, analyze these terms, and look at their contribution to

the government's democratic character.2 I do so today, five years after

the demise of Prime Minister Menachem Begin. Rule of law character-

ized his social outlook. Supremacy of the constitution-or as he termed

it "supremacy of the law"-is taken from his writings. Supremacy of the

constitution (law) expressed his worldview. I was the government's legal

Jerusalem"-he would say, and it reverberated throughout the state. I will

of the constitution. My thesis is simple: in a democratic state the principle

constitution must be ensured.

THE RULE OF LAW

I. COMPLEXITY OF THE TERM

meaning, ambiguous term. Professor Amnon Rubenstein has correctly

of Legalite. Behind these various terms lie different ethical connotations.

law determine that man-rather than the law-rules? Is it correct to state

content-prevail? What about an unjust law?

In order to understand the complexities of the rule of law principle

we have to differentiate between three basic aspects of the rule of law:

Nevertheless, there is a basic difference among them, and each will be

2. THE FORMAL ASPECT

state, whether individuals, associations, or branches of the state, must act

is two-fold: legality of the government and domination of the law. This is

Chief Justice Shamgar stated: "A government will not be described

as orderly if it does not endeavor to uphold the rule of law, because it is

for the law (even if its content is unworthy of respect).

(b) The Rule of Law and the Individual

This formal perspective is directed first and foremost toward individuals in

point in question runs counter to his worldview. Ideological transgression

is the same as criminal transgression, and sometimes even more serious.

we derive benefits from the laws, and we would be displaying ingratitude

guarantees the individual's happiness. This is the only way to maintain

social equity among the members of society.

(c) The Rule of Law and the State

seventeenth-century England the king was the personification of the state.

king is not subordinate to man. He is subordinate to God and the Law"

(Quod rex non debet sub homine, edsub deo et lege).

The state operates by means of official institutions. Each of the gov-

ernment's agencies is subordinate to the law. This is government by the rule

of law. The president symbolizes the nation's sovereignty. He stands at the

immunity, it does not exonerate him from upholding the law.

The rule of law is directed to the legislative authority. According

to Justice Zilberg-this is "rule of law by the legislator."s An excellent

himself-who gave the Torah-is subordinate to man's interpretation of it.

This is rule of law by the legislator. Even in the absence of constitutional

a law that he made, is stealing."'o The king himself is subordinate to the

regulation that he decreed. When the Knesset (Israeli parliament) operates

as a sub-legislator, it must respect the limitations that it placed on itself in

respect it. Former Chief Justice Shamgar averred:

court that is being tested here, it is the Knesset's honor. It is inconceivable

authority of adjudication, will not be respected or will be twisted for tactical

purposes. The house of legislature's status is liable to be damaged if a faulty

explanation develops that its obligation to abide by the judgment is different

from that of any other authority or individual in the state."

authority. This is rule of law by the judge. "On matters of adjudication

there is no [higher] authority over whoever has the authority to adjudicate,