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Published online by Cambridge University Press: 12 February 2016
Close to one billion people, a third of the total population of the world, live under systems of government broadly defined as liberal-democratic, of which it can be said that authority rests on public opinion and is accountable to it. Out of the said number, only sixty million, i.e., 6%, live in states which have no formal written constitution. Great Britain is a notable example. New Zealand is another. Israel is a third in this exclusive company. In these countries it falls to the Courts, fortified as they are by the traditions of the Common law, to be the mainstay of the liberties of the individual. The English Common law, however, is “just like an English oak. You cannot transplant it to (another) continent and expect it to retain the tough character which it has in England. It will flourish indeed but it needs careful tending”. (per Lord Justice Denning).
The application of western principles of the rule of law to the reborn Jewish State was more in the nature of a grafting than of a transplantation. It was a combination which offered an interesting legal experiment. While drawing upon ancient legal traditions and heritage, the Israel courts were vitalized through their access to the legal experience of English-speaking countries, especially so since the Common law in its mother country exemplified the adaptations of old principles to new needs long before it was exported abroad.
1 Nyali v. A.G. (1956) 1 Q.B. 1.
2 Franck, Thomas, Comparative Constitutional Process (1968) xxix.Google Scholar
3 Miron v. Minister of Labour (1970) (I) (24) P.D. 340.
4 United States v. Butler 297 U.S. 1, 78–79.
5 Archer Reay, Freedom at Stake (1966) 12.
6 Sanhedrin, 19.
7 Heuston, Essays in Constitutional Law (2nd ed., 1971) 55.
8 Shalit v. The Minister of Interior (1969) (II) 23 P.D. 477, 600.
9 Cassin, René, “Reflections on the Rule of Law” (1963) 4 Journal of Int. Comm. of Jurists 205.Google Scholar
10 Heuston, op. cit. supra n. 7 at p. 7.
11 Ibid., at p. 7.
12 Knesset and Local Authorities Elections (5730) (Financing, Limitation of Expenses and Audit) Law, 1969 (23 L.S.I. 53).
13 Bergmann v. Minister of Finance and the State Comptroller (1969) (I) 23 P.D. 693, 699.
14 Knesset and Local Authorities Elections (5730) (Financing, Limitation of Expenses and Audit) (Amendment) Law, 1969 (23 L.S.I. 218).
15 Eli v. Minister of Transport (1972) (I) 26 P.D. 105.
16 Amiel v. State of Israel (1970) (II) 24 P.D. 113.
17 Hamama and Bason v. The Mayor and the Local Planning and Building Commission, Petah-Tikva (1971) (I) 25 P.D. 113.
18 Moniot Ha'uma Ltd. v. The Controller of Transportation (1971) (II) 25 P.D. 479, 483.
19 J. Miller, Engineer (Agencies and Import) Ltd. v. Minister of Transportation and other (1961) (III) 15 P.D. 1989.
20 Ulpanei Hasratta BeIsrael Ltd. v. Geri and The Films and Plays Censorship Board, Ministry of Interior (1962) (II) 16 P.D. 2407–2415.
21 Kenan v. Films and Theatre Censorship Board (1971) (II) 26 P.D. 811, 814. [For further comments on this case see Levy, P., “Restriction of Freedom of Expression” (1973) 8 Is.L.R. 591Google Scholar (Ed.)].
22 Omer v. State of Israel (1970) (I) 24 P.D. 408, 411.
23 H.G. Pollak Ltd. v. The Minister of Commerce and Industry (1971) (II) 25 P.D. 3.
24 The Israel Consumers' Board v. The Chairman of the Commission of Inquiry Concerning Gas Services and Others (1961) (I) 15 P.D. 32.
25 Estate of Pitel v. Holon Municipal Assessment Board (1967) (I) 21 P.D. 169, 171.
26 Shemesh and Bikel v. The Registrar of Companies (1971) (I) 25 P.D. 505, 513.
27 Kardash v. The Registrar of Companies (1961) (II) 15 P.D. 1151.
28 The Registrar of Companies v. Kardash (1962) (II) 16 P.D. 1209.
29 El-Ard Ltd. v. Northern District Commissioner (1964) (II) 18 P.D. 340.
30 Jiries v. Haifa's District Commissioner (1964) (IV) 18 P.D. 673, 677.
31 Jiries v. Military Commander Area A (1965) (I) 19 P.D. 260, 261.
32 J. Yardor v. Chairman of the Central Elections Committee to the 6th Knesset (1965) (III) 19 P.D. 365, 368.
33 The Israel Communist Party v. The Mayor of Jerusalem (1961) (II) 15 P.D. 1723, 1728.
34 The Electricity Corp., Jerusalem District Ltd. v. Minister of Defence and others (1973) (I) 27 P.D. 124, 138.
35 (1950) 4 L.S.I. 114.
36 Oswald Rufeisen v. The Minister of Interior (1962) (IV) 16 P.D. 2428.
37 1952 (6 L.S.I. 50) sec. 5(a)(2).
38 Norman, & Zucker, Naomi, The Coming Crisis in Israel (1973).Google Scholar
39 Miron v. Minister of Labour (1970) (I) 24 P.D. 337.
40 Yehuda Elizur and others v. The Broadcasting Authority (1970) (II) 24 P.D. 649.
41 Israel Peretz v. Local Council Kefar Shemaryahu (1962) (III) 16 P.D. 2103, 2107, 2115, 2116.
42 Hugim Léumiim, (registered association) v. The Minister of Police (1970) (II) 24 P.D. 141, 166, 167, 168. [See also Klein, “The Temple Mount Case” (1971) 6 Is.L.R. 257 (Ed.)].
43 Benjamin Shalit (in hu name and for his children) v. The Minister of Interior and Registration Clerk, Haifa (1969) (II) 23 P.D. 477.
44 Ibid., 573, 587, 526, 540, 543, 568.
45 [Cf. Akzin, “Who is a Jew? A Hard Case” and Ginossar, , “Who is a Jew?: A Better Law?” (1970) 5 Is.L.R. 259Google Scholar (Ed.)].
46 7 L.S.I. 139.
47 Leviticus, 21:7.
48 Cohen-Bouslik v. A.G. (1954) (I) 8 P.D. 4.
49 Ganor v. A.G. (1954) (I) 8 P.D. 833.
50 Gurfinkel and Haklai v. The Minister of Interior (1963) (III) 17 P.D. 2048.
51 Sigev, Reichert v. The Rabbinical Court, Safed (1967) (II) 21 P.D. 505.
52 Rudnicki v. The Rabbinical Court of Appeal (1970) (I) 24 P.D. 704.
53 Supra n. 51.
