Democracy, Judicial Review and the Rule of Law in the Age of Terrorism: The Experience of Israel-A Comparative Perspective

Abstract

Academic discourse has generally focused on the question of whether the doctrine of judicial review promotes democracy or whether it is anti-majoritarian and therefore undemocratic. Professor Ruth Gavison claims that democracy neither prohibits nor requires judicial review. I shall contend next that in a war against terrorism, for a democracy like the United States or Israel, judicial review fails to protect the goals of the rule of law, and, in turn, creates undemocratic results. Jewish values recognize the dignity of every person, including the enemy, and links this human right to the concept of justice in the execution of war. Professor Sheleff is correct in his observation that the Supreme Court of Israel generally fails to consider Jewish values in the judicial review process in cases that address individual rights. Endowing GSS investigators with the authority to apply physical force during the interrogation of suspects suspected of involvement in hostile terrorist activities, thereby harming the latters' dignity and liberty, raise basic questions of law and society, of ethics and policy, and of the Rule of Law and security. Judicial review must continue to promote the Rule of Law and individual rights; otherwise the enemies of democracy, and the terrorists, will win.

JEL Classification: K00