¹ Dicey, , Introduction to the Study of the Law of the Constitution (8th ed., 1915) 41.Google ScholarStreet, , Freedom, the Individual and the Law (2nd ed., 1967) 299Google Scholar: “Parliamentary sovereignty in Britain ensures that Parliament can change any law, however fundamental, by the same process as, say, a law which increases the amount which a local authority may charge for dustbins”.

² We shall not examine here the special normative quality of the four so-called Basic Laws (and particularly the entrenched clauses therein) already adopted by the Knesset in Israel. On that question see, inter alia: Rubinstein, , The Constitutional Law of the State of Israel (1969, in Hebrew) 167–178Google Scholar; Bergmann v. Minister of Finance et al. (1969) (I) 23 P.D. 693; Nimmer, , “The Uses of Judicial Review in Israel's Quest for a Constitution” (1970) 70 Colum. L.R. 1217, 1221–1223, 1227–1240CrossRefGoogle Scholar; Klein, , “A New Era in Israel's Constitutional Law” (1971) 6 Is.L.R. 376, 377 n. 3.Google Scholar

³ Holt, C. J. alludes with sarcasm to the invulnerability of the legislature: “An Act of Parliament can do not wrong, though it may do several things that look pretty odd”. City of London v. Wood (1701) 12 Mod. 682, 687.

⁴ Per Berinson J. in Ezuz v. Ezer (1963) 17 P.D. 2541, 2547. See also: Cohen v. Minister of Defence (1962) 16 P.D. 1023, 1029; Tobis et al. v. Government of Israel et al. (1973) (I) 27 P.D. 757, 759; Kaniel v. Minister of Justice et al. (1973) (I) 27 P.D. 794, 798; Witkon, , “Justiciability” (1966) I Is.L.R. 40, 53–56.Google Scholar Parliamentary omnipotence is not an ideal one should strive to promote. See also id. at 58–59, “A sound democratic system—separation of powers notwithstanding—does not mean parliamentary absolutism. There is room for checks and balances. For this we have organs of State which are not created on a democratically elective basis. Foremost amongst these are the courts”.

⁵ See infra n. 51.

⁶ See e.g., “Kol Ha'am” Ltd. et al. v. Minister of the Interior (1953) 7 P.D. 871; Filming Studios in Israel Ltd. v. Gerri and Films and Plays Censorship Board (1962) 16 P.D. 2407 (majority opinion of Landau and Silberg JJ.).

⁷ See e.g., Abu-Gosh Kiriat-Ye'arim Music Festival v. Minister of Education and Culture et al. (1971) (II) 25 P.D. 821 (majority opinion of Kister and Sussmann JJ.); Amos Keinan v. Films and Plays Censorship Board (1972) (II) 26 P.D. 811. Hilu et al. v. Government of Israel (1973) (II) 27 P.D. 169 [For a detailed discussion of this case see Zemach, , “The Non-Justiciability of Military Measures” (1974) 9 Is.L.R. 128Google Scholar (Ed.)]; Rubinstein, , “Need for Amendment of Defence Regulations” (1973) 28 HaPraklit 486, 491–5.Google Scholar

⁸ Yeridor v. Chairman of the Central Elections Committee (1965) (III) 19 P.D. 365, 377, 379. See also: Bejarano et al. v. Minister of Police et al. (1949) 2 P.D. 79, 82; El Khouri v. Chief of Staff et al. (1950) 4 P.D. 34a, 37; Sheib v. Minister of Defence (1951) 5 P.D. 399, 411–412; Askel et al. v. Mayor of Natania (1954) 8 P.D. 1524, 1531; Halifi v. Minister of Justice (1973) I() 27 P.D. 719, 723. This rudimentary tenet of individual freedom faithfully represents the liberal tradition of Anglo-American law. Street, supra n. 1 at pp. 10, 298 points out that: “The citizen may do as he likes unless he clashes with some specific restriction on his freedom. The law does not say: ‘You can do that’; it says: ‘You cannot do this’, which means that you can do everything else except that which it says you cannot do … The legal concept of liberty is that there are residual areas of great importance where man is free to act as he likes without being regulated by law. Both in Britain and the U.S.A. what is not forbidden is permitted”.

⁹ See Yeridor, cit. supra n. 8.

¹⁰ See e.g., Shtreit v. The Chief Rabbi of Israel et al. (1964) (I) 18 P.D. 598, 612; Yeridor, cit. supra n. 8. See also Loubin v. Municipality of Tel-Aviv (1958) 12 P.D. 1041.

¹¹ See e.g., Rogosinsky et al. v. The State of Israel (1972) (I) 26 P.D. 129, 135, 136 (per Berinson J.).

¹² See e.g., Aksel et al. v. Mayor of Natania (1954) 8 P.D. 1524, 1531–1532 (per Olshan J.); Filming Studios in Israel Ltd. v. Gerri and Films and Plays Censorship Board (1962) 16 P.D. 2407 (per Landau J.); Peretz et al. v. The Council of Kfar Shemariahu (1962) 16 P.D. 2101, 2116 (per Sussmann J.); “The American European Beit-El Mission” v. Minister of Welfare (1967) (II) 21 P.D. 325, 333 (per H. Cohn J.); Rogosinsky et al. v. The State of Israel (1972) (I) 26 P.D. 129, 136 (per Berinson J.); Ha'uma Taxis Ltd. v. Transport Controller (1971) (II) 25 P.D. 479, 483 (per H. Cohn J.); Kremer et al. v. Municipality of Jerusalem et al. (1971) (I) 25 P.D. 767, 782 (per Etzioni J.); Abu-Gosh Kiriat Ye'arim Music Festival v. Minister of Education and Culture et al. (1971) (II) 25 P.D. 821; Halifi v. Minister of Justice (1973) (I) 27 P.D. 719, 723 (per Berinson J.).

¹³ On this matter see: Yadin, , “On the Interpretation of the Laws of the Knesset” (1957) 13 HaPraklit 305Google Scholar; Yadin, , “More on the Interpretation of the Laws of the Knesset” Jubilee Book in Honour of P. Rosen (1962, in Hebrew) 125Google Scholar; Yadin, , “Again on the Interpretation of the Laws of the Knesset” (1970) 26 HaPraklit 190, 358.Google Scholar On the far-reaching potential of interpretation as a law-making process see the thought provoking utterances of Bishop Hoadly: “… Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them”. Sermon preached before the King, 1717, quoted in Gray, , The Nature and Sources of the Law (2nd ed., 1921) 125.Google Scholar

¹⁴ See Sussmann, , “A Spoonful of Interpretation Delicatessen” Jubilee Book in of P. Rosen (1962, in Hebrew) 147, 156–157.Google Scholar

¹⁵ See e.g. Bergmann v. Minuter of Finance et al. (1969) (I) 23 P.D. 693, 698 (per Landau J.); Rogosinsky et al. v. The State of Israel (1972) (I) 26 P.D. 129, 136 (per Berinson J.).

¹⁶ See e.g. “Kol Ha'am Ltd. et al. v. Minister of the Interior (1953) 7 P.D. 871, 884 (per Agranat J.); Yeridor v. The Chairman of the Central Elections Committee (1965) (III) 19 P.D. 365, 381 (per H. Cohn J.); Shemesh et al. v. Registrar of Companies (1971) (I) 25 P.D. 505, 513 (per Etzioni J.).

¹⁷ See, e.g., “Kol Ha'am Ltd., cit. supra n. 16.

¹⁸ See Hameretz Ltd. v. Grive et al. (1973) (I) 27 P.D. 423, 431 (per Etzioni J.). Albert, , “Constitutional Adjudication without a Constitution: The Case of Israel” (1969) 82 Harv. L.R. 1245, 1247, 1248, 1249.CrossRefGoogle Scholar “… [W]here a court adds requirements to a statutory scheme … or when it bends language away from its ordinary meaning to conform to some suprastatutory norm … it has taken upon itself a much more significant function … In the United States … as in England, the Court adds, ignores or modifies language to make a statute conform to suprastatutory standards … The role the Israeli Court has undertaken in construing statutes in the light of suprastatutory principles articulated by the Court is similarly based both on traditional techniques and on techniques which have something of a ‘constitutional’ status”. Witkon, op. cit. supra n. 4 at p. 58: “…[T]he legislator himself…nowadays frames his laws in terms that leave more and more of the policy decisions to the discretion of the courts… [I]t is not only the citizen who puts his confidence in the courts, often the legislator himself invites the judges to share his task”. See also, Landau, , “A Constitution as the Supreme Law of the State?” (1971) 27 HaPraklit 30, 38.Google Scholar

¹⁹ See Shapira, , “The Problem of ‘Judicial Discretion’ in the Border-Line Cases” (1970) 2 Mishpatim 57, 62–64.Google Scholar

²⁰ See Zim Lines Ltd. et al. v. Mazaar (1963) 17 P.D. 1323, 1333 (per Silberg J.); Witkon, , “Law in a Developing Country”, Jubilee Book in Honour of P. Rosen (1962, in Hebrew) 66, 76.Google Scholar

²¹ (1965) (III) 19 P.D. 365.

²² Id. at 369.

²³ Basic Law: The Knesset, 1958 (12 L.S.I. 85), Amendments (13 L.S.I. 155, 167, 228); Knesset Elections Law, 1951 (5 L.S.I. 99), Amendments (9 L.S.I. 16, 12 L.S.I. 90, 13 L.S.I. 121, 66, 156, 108, 157).

²⁴ (1965) (III) 19 P.D. 381, 382.

²⁵ Id. at 386.

²⁶ Id. at 390.

²⁷ Ziv v. Tel-Aviv District Commissioner et al. (1948) 1 P.D. 85, 89.

²⁸ El Khouri v. Chief of Staff et al. (1950) 4 P.D. 34, 37.

²⁹ “Kol Ha'am” Ltd. et al. v. Minister of the Interior (1953) 7 P.D. 871, 884.

³⁰ Loubin v. Municipality of Tel-Aviv (1958) 12 P.D. 1041, 1051, 1059.

³¹ Peretz et al. v. The Local Council of Kfar Shemariahu (1962) 16 P.D. 2101, 2113 (per Witkon J.).

³² Id. at 2116 (per Sussmann J.).

³³ Shtreit v. The Chief Rabbi of Israel et al. (1964) (I) 18 P.D. 598, 612.

³⁴ Filming Studios in Israel Ltd. v. Gerri and Films and Plays Censorship Board (1962) 16 P.D. 2407, 2415.

³⁵ Yeridor v. Chairman of the Central Elections Committee (1965) (III) 19 P.D. 365, 385 (per Agranat J.).

³⁶ Id. at 389–90 (per Sussmann J.).

³⁷ Bergmann v. Minister of Finance et al. (1969) (I) 23 P.D. 693, 698.

³⁸ Abu-Gosh Kiriat-Ye'arim Music Festival v. Minister of Education and Culture et al. (1971) (II) 25 P.D. 821, 828.

³⁹ Witkon, op. cit. supra n. 20 at p. 76.

⁴⁰ See Yeridor v. Chairman of the Central Elections Committee (1965) (III) 19 P.D. 365, 390 (per Sussmann J.)—but see id. at 382 (per H. Cohn J.); Witkon, op. cit. supra n. 4 at p. 58; Nimmer, op. cit. supra n. 2 at pp. 1224–1227.

⁴¹ See e.g., the cases cited supra nn. 27, 28, 29, 30, 31, 34, 35; Rogosinsky et al. v. The State of Israel (1972) (I) 26 P.D. 129, 135; Rubinstein, op. cit. supra n. 2 at pp. 6–19; Akzin, , “Israel's Proclamation of Independence”, Jubilee Book in Honour of P. Rosen (1962, in Hebrew) 52, 57–58, 60–61Google Scholar; Albert, op. cit. supra n. 17 at pp. 1245–1247; Yadin, , “Again on the Interpretation of the Laws of the Knesset” (1970) 26 HaPraklit 190, 209–210.Google Scholar

⁴² See e.g., Landau, , “Rule and Discretion in the Administration of Justice” (1969) 1 Mishpatim 292, 304, 305, 306, 307.Google Scholar

⁴³ Unlike English, French distinguishes between “droit” and “loi” and German differentiates “Recht” from “Gesetz”.

⁴⁴ See Dworkin, , “The Model of Rules” (1967) 35 U. Chi. L.R. 14, 39.CrossRefGoogle Scholar

⁴⁵ Lon Fuller in The Law in Quest of Itself (1940) 136Google Scholar, voices such a view, and adds: “This whole ‘extra-legal’ body of moral precepts is to a large extent a creature compounded of … philosophic imagination … those rules of morality which have enough teeth in them to act as serious deterrents … far from being ‘extra-legal’ they are intimately and organically connected with the functioning of the legal order”.

⁴⁶ See Dworkin, supra n. 44 at pp. 22–29; Shapira, supra n. 19 at pp. 62–66.

⁴⁷ Compare the notions of “validity” and “acceptance” elaborated by Hart, H.L.A. in his book, The Concept of Law (Oxford University Press, 1961).Google Scholar

⁴⁸ See Landau, supra n. 18 at p. 40; Albert, supra n. 18, at p. 1265.

⁴⁹ See Witkon, supra n. 20 at p. 76; Yadin, supra n. 41 at p. 209.

⁵⁰ “Report of the Virginia Resolutions” in Writings of Madison (ed. by Hunt, ) vol. 6, pp. 386–387.Google Scholar Robert H. Jackson, the celebrated American Supreme Court Justice, formulated the raison d'être of entrenched constitutional guarantees in like manner: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 (1943).

⁵¹ The Knesset Constitutional, Legislative and Judicial Committee has recently completed a draft Basic Law: The Rights of the Individual and the Citizen (1973) H.H. no. 1085, p. 448. The Bill is now pending before the Knesset.

⁵² On the various aspects of constitutional safeguarding of fundamental rights see Shapira, and Bracha, , “The Constitutional Status of Individual Freedoms” in (1972) 2 Israel Yearbook on Human Rights, 211.Google Scholar

⁵³ Id. at pp. 234–244. See also: Nimmer, supra n. 2 at pp. 1257–1260.

⁵⁴ Douglas, , The Anatomy of Liberty (New York, Simon and Shuster, 1963) 102.Google Scholar Street, op. cit. supra n. 1 at p. 300, confronts the American bench with its English counterpart, letting the former emerge triumphant from such confrontation: “American experience shows that judges become much more important where there is a written constitution; they have to immerse themselves in major political questions; they see law as a positive instrument of national policy … On the contrary the British judge has trained himself as an umpire, avoiding clashes with the Government of the day, cutting himself off from politics whenever possible, and divesting his judgments of social, economic and political reference to the utmost”. Id. at pp. 10–11, 297, 298, 299, he declines to hide his critical view of the state of English law in the area of civil liberties and his preference for the kind of constitutional protection accorded by American law to individual freedoms: “Does the practical, piecemeal improvisation suit us better than the formal high-sounding manifesto? Or do we pay too high a price in more uncertainty about the precise limits of our freedom? … Civil liberties in Britain have been shown to be a patchwork. Some of them rest on the chance that citizens have sued each other and given the Courts the opportunity to declare some isolated legal rule. Some rest on sporadic legislation, often passed to meet some specific emergency, real or imaginary … If a country enshrines its freedoms in a constitutional document, its citizens respond emotionally. The American cherishes many of his liberties the more because they are in the Bill of Rights—public opinion is effectively mobilized in their defence … Because English lawyers have comparatively few chances to participate in cases affecting civil liberties, there is little interest in the subject professionally … and the dearth of case law makes the universities also inactive in research”.