The Status of Fundamental Individual Rights in the Absence of a Written Constitution

To reconcile the true boundaries between the individual and the community is the highest problem that thoughtful consideration of human society has to solve. Jellinek,The Declaration of the Rights of Man and of Citizens(1901). The legislative authority in Israel is all-powerful. Like the English Parliament, the Knesset “can do everything but make a woman a man, and a man a woman”. In the absence of a formal written Constitution, the Legislature enjoys legislative supremacy: the laws of the Knesset stand at the top of the normative legal order of the State, paramount in the prevailing legal system. Ranged against such a Legislature-giant, whose power knows no formal restraint, the Courts often feel like Lilliputians facing a Gulliver. There is, indeed, justification for this sense of inferiority harboured by the Judiciary. It is undoubtedly true that in the process of adjudicating disputes—between two individuals and between an individual and the authorities—judges apply, construe, and develop the existing rules of law and impart life to them.