Only a brief interval separated the signing into law of the two Basic Laws of 1992 and the rhetorical elevation of that moment to revolutionary significance. However, use of the term “constitutional revolution” to describe the addition of the Basic Laws on Freedom of Occupation and Human Dignity and Freedom to the corpus of Israeli fundamental law was destined to have more than rhetorical significance. Had the characterization been made by someone other than the next President of the Supreme Court, it might have attracted a modicum of public attention before fading from view, perhaps to be remembered only as a felicitous example of wishful thinking.

The tension between the norms of gender equality and religious freedom is a major focus of international human rights debate. States that adopt religious law contend that gender discriminatory religious practices are protected under international law guaranteeing rights of cultural autonomy and religious freedom. Others argue that only discriminatory practices that are not the product of State action but, rather, take place in the private realm of civil society should be accorded such protection. Many women's rights activists, on the other hand, urge the State to actively reform religious law and restructure cultural practices even in the private realm, “not only as a means of ending gender-based restrictions on specific human rights but also as an essential step toward dismantling systematic gender inequality” perpetuated in traditionalist cultures. The larger philosophic issue underlying this debate, how to reconcile universal human rights and multiculturalism, understood as the primacy of group cultural identity as a morally and politically significant category, is complex, but not new. It is the age-old one, as Joseph Raz has put it, “of how to combine the truth of universalism with the truth in particularism.”

The earliest political and legal documents inaugurating the era of constitutionalism in the late 18th century already emphasized the principles of liberty and equality. The first one, the American Declaration of Independence of 1776, attributes the liberty and equality of human beings to the Creator, thus giving a religious explanation for its postulates. The second one, the French Declaration of the Rights of Man and Citizen of 1789, plainly states in its first article that humans are born and remain free and equal in rights, which are defined as natural rights serving the public good and thereby put in a more secular context, although the Déclaration also recognizes the presence and protection of the “Supreme Being”. Ever since, the religious and the secular explanations have been competing with and supplementing each other in ensuring the effective protection of human rights. And ever since, liberty and equality have been competing with and supplementing each other in keeping the proper balance between the interests of society and the aspirations of the individual.

In modern evidence theory two main theories of legal factfinding have emerged. One of these is the mathematical probabilistic approach, which claims that the universal rules of mathematics apply to legal factfinding as to any other rational decision-making. The opposite approach, of Tribe, Nesson and others, contests this view. Those opposing the mathematical theory have done so mostly on grounds of legal policy, which I shall not be concerned with. However, some of the sharpest criticism, at least from the point of view of the adherents of the mathematical explanation, has been of the soundness of the mathematical explanation. In certain instances typical to the legal process, the mathematical approach has been claimed to lead to absurd results which contradict common sense and legal doctrine.

In this paper I will claim that the rules of mathematical probability must apply to legal factfinding and if fallacies in its application are exposed, their existence must be due to error in the way in which the rules have been applied. I will argue and try to prove that the concept of relevance, an essential concept to any theory of legal factfinding, has been disregarded in mathematical probability theory.