Another problem Kremnitzer raises is the Knesset’s sorry record of passing vaguely worded laws, which invite and sometimes even compel the court to fill in the gaps. He notes, for instance, that for years the legislature refrained from defining the circumstances under which it is legitimate to remand a suspect until the end of his trial, which left the court with little choice but to devise its own guidelines. Similarly, the Knesset failed to state clearly what extenuating circumstances can constitute a defense against certain criminal charges, thus forcing the court to do so in its stead. Indeed, this negligence on the Knesset’s part has been a frequent target of Kremnitzer’s own public activities: During the 1993 Knesset debates over a new penal code, for example, a Knesset subcommittee argued that there was no need to write explicitly that mild parental spanking does not constitute criminal assault, as the legislators could rely on the courts to uphold this defense even if it did not appear in the law. In vain Kremnitzer lobbied vigorously against this stance in the committee hearings, arguing that “The fact that the courts can continue… to create categories of legal exceptions is not a reason to invite the legislature to divest itself of its responsibility to impose legal order. If I ask myself which body ought to make the determination on this matter, a determination on a question of values of the first rank… it seems to me that it has to be the legislature.”

Perhaps the most serious example of this problem, one which Krem­nitzer does not cite, was the passage in 1992 of two seminal laws on human rights, Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Freedom. Both enumerate sweeping, absolute rights that, if not checked by a countervailing principle, would preclude the exercise of any governmental powers at all. Basic Law: Human Dignity and Freedom, for instance, states that “there shall be no violation of the property of a person,” effectively ruling out taxation, and “there shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition, or otherwise,” effectively ruling out police powers. Basic Law: Freedom of Occupation forbids any infringement on a person’s right to engage in any type of work, thereby prohibiting, for instance, the licensing of medical practitioners. In order to permit the government to function, each basic law also includes a clause stating that these enumerated rights can be abrogated by legislation “befitting the values of the State of Israel” as a “Jewish and democratic state,” which is “enacted for a proper purpose” and infringes on these rights “to an extent no greater than is required.” However, neither law offers a hint as to what purposes ought to be considered proper, nor does either one offer guidance on how to weigh the extent of infringement that can be considered legitimate.

Moreover, the laws make no effort to define Israel’s Jewish and democratic values. The result is that innumerable government actions can be declared illegal unless they can be shown to meet these tests and to accord with Israel’s “Jewish and democratic” character; but because the Knesset did not define these terms, the court has no way of adjudicating any challenge to these government actions without constructing its own definitions. And if the court has frequently advanced a different understanding of the “Jewish” side of the equation than the legislators intended, there is no doubt that at bottom, the Knesset itself is largely to blame.

Finally, Kremnitzer notes the undeniable fact that neither the legislature nor the voters in Israel provide effective supervision over government actions. This is partly a function of political culture, but it also stems from a number of institutional flaws. For instance, he notes, the Knesset has virtually no budget and no staff with which to conduct its own research, and is therefore largely dependent on the information it receives from the government—a situation that obviously makes for poor supervision. And though Kremnitzer does not dwell on this issue at length, it is not hard to think of other structural problems to add to his list. For instance, a very large portion of the Knesset consists of government ministers or deputy ministers—fully a third in the current Knesset—and they are unlikely to offer effective supervision of themselves. Given the combination of structural impediments and the lack of a tradition of oversight, Kremnitzer concludes, the choices essentially boil down to supervision by the courts or no supervision at all.

This is most obvious in his discussion of the Knesset’s failure to serve as a check on the executive. Though Kremnitzer himself acknowledges that this is partly the result of institutional weaknesses, he never raises the possibility of structural reform as an alternative to judicial activism. For instance, if the Knesset were given an appropriate budget for the purpose, it would be able to conduct independent research that could challenge the government’s assertions, just as other Western legislatures do. Similarly, a number of proposals have been made in recent years for ameliorating the problems caused by the fact that such a large proportion of Knesset members serve as ministers or deputy ministers. These include adoption of what is known as the Norwegian Law, under which ministers and deputy ministers would have to resign from the Knesset and be replaced by other representatives from their party; and increasing the number of Knesset members from 120 to 180.

But even with respect to problems that are less amenable to solution by legislative or budgetary action, Krem­nitzer is far too quick to conclude that the court is the only answer. Israel’s lack of a culture of “it’s just not done,” for instance, can certainly not be solved by legislation alone. But as Gavison correctly points out in her essay, it is far from clear that it can be solved by court intervention either. Indeed, court intervention might even make the development of an appropriate political culture less likely.

One of the points Gavison comes back to repeatedly is that once the court asserts the right to declare actions it deems immoral to be illegal as well, the linkage also begins to run the other way. A verdict that a given action was legal becomes tantamount to a declaration that the justices believe it also meets basic standards of public morality. “The rejection of petitions against governmental authorities is often interpreted not only as a determination of the legality [of these actions],” she writes, “but also, by implication, as the granting of a seal of moral-public approval.” And this, in turn, can dampen public outrage at an immoral action. To many people, a stamp of moral legitimacy from a body as august as the Supreme Court is a persuasive argument that what was done is acceptable.

One of her favorite examples is the policy of blowing up terrorists’ houses—something the court has upheld as legal in numerous rulings throughout the years, since it was explicitly permitted by the Emergency Regulations which Israel inherited from the British Mandate. Gavison believes that public opposition to this policy, which she considers an immoral punishment of an innocent wife and children for the crimes of the guilty, has largely been muted precisely because many people see the court’s rulings not as mere affirmations of legality, but also as affirmations of morality.

Another excellent example, though one that Gavison does not cite, can be seen in the 1997 Bar-On affair, in which it emerged that Justice Min­ister Tzahi Hanegbi had misled cabinet members into believing that Supreme Court President Aharon Barak approved of his nominee for attorney general, Roni Bar-On, when in fact Barak opposed this choice. Initially, as one would expect, opposition MKs demanded Hanegbi’s resignation. But then Bar-On’s replacement, Attorney General Elyakim Rubinstein, announced that such behavior, though despicable, was not a criminal offense—and was backed in this view by the High Court, which was asked to rule on a petition to overturn Rubin­stein’s decision and force the prosecution to bring criminal charges. In the wake of the court’s decision, calls for Hanegbi’s resignation virtually disappeared overnight. A handful of opposition legislators, including Labor whip Ra’anan Cohen, continued their efforts to oust him, but were unable to muster support in the Knesset to do so. Senior Justice Ministry officials openly praised Hanegbi’s performance as minister, describing him as “smart, hard-working, quick on the uptake, and pleasant to work with”; and even some opposition MKs chimed in: Amnon Rubin­stein (Me­retz), for instance, said that though he disapproved of Hanegbi’s behavior in the Bar-On affair, the new minister had proven “hard-working and able despite his lack of experience.” In the wake of the court’s decision, such minor matters as lying to the cabinet could apparently be dismissed as unimportant.