Israeli Constitutional Law in the Making (Hart Publishing, 2013)
24 Pages Posted: 10 Oct 2011 Last revised: 19 Feb 2015
Date Written: October 9, 2011
This paper examines the role the concept of Human Dignity has played in constitutional rights jurisprudence in Israel since the enactment of Basic Law: Human Dignity and Liberty, in particular with regard to the recognition of rights not explicitly included in the Basic Law.
The right to Human Dignity has served as the primary source of recognition of unenumerated rights in Israel. This paper examines the methods employed by the Supreme Court in determining which unenumerated rights fall within the scope of the Basic Law. It examines the theories of interpretation applied by the Court when recognizing unenumerated rights and the judicial rhetoric used throughout the years to justify recognition of unenumerated rights.
The paper examines the historical background for the enactment of the Basic Law and argues that use of the term Human Dignity was a result of an inability to reach political agreement on rights perceived as controversial such as the right to equality, freedom of expression and freedom of religion. The use of the term Human Dignity, however, did not solve the controversy but merely passed it on to the Court. The paper argues that while discrepancies between judges regarding recognition of particular unnamed rights are presented as deriving from different theories of interpretation, such discrepancies are actually rooted in different value-based worldviews regarding the essence of Human Dignity. While some judges view the right to Human Dignity as protecting personal autonomy, others perceive the right to Human Dignity as protection against humiliation. The paper argues that a legal concept of Human Dignity should be based not on a particular world view of what the essence of humanity is but rather on a list of acts and treatments that amount to disrespect to such essence according to different worldviews. That being said, clearer tests should be developed for identification of such treatments. While the suggested concept of Human Dignity still supports recognition of unnamed rights where such rights are justified as means of ensuring that certain acts and treatments do not take place, unnamed rights are, under the suggested model, secondary, instrumental rights, rather than intrinsic components of the right to Human Dignity.
Keywords: Human Dignity, Israel, Unnamed Rights, Implied Rights, Unenumerated Rights, Israeli Constitutional Law, the Constitutional Revolution
Suggested Citation: Suggested Citation
Brandes, Tamar Hostovsky, Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in Israel: Definitions and Parameters (October 9, 2011). Israeli Constitutional Law in the Making (Hart Publishing, 2013). Available at SSRN: https://ssrn.com/abstract=1941332 or http://dx.doi.org/10.2139/ssrn.1941332