The Freedom to Exclude: The Case of the Israeli Society
Israel Law Review 49(1), 2016, Forthcoming
40 Pages Posted: 30 Dec 2015
Date Written: December 29, 2015
The phenomenon of social exclusion in Israel is a vivid demonstration of the Basic Laws’ failure to fulfill their integrative role. Despite the “constitutional revolution” and the Supreme Court’s ongoing endeavor over the last two decades to instill a bill of rights through its jurisprudence, the Israeli society has failed to fully internalize values of equality. In terms of legal jargon, individuals continue to claim and exercise “sole and despotic dominion” over their private property in order to avoid contact with individuals belonging to certain minority groups. In many cases, such behavior in the private sphere results in exclusion from the public sphere.
This phenomenon is especially astonishing considering the fact that many laws in Israel apply the right to equality to the private sphere. Furthermore, the Israeli Supreme Court has developed comprehensive human rights jurisprudence applicable to the private sphere. The gap between the law in the books and the law in action illustrates that effective implementation of human rights in the private sphere cannot be achieved solely by specific legislation or by human-rights-sensitive-jurisprudence. This argument is backed by several recent bills that preserve and enforce exclusion of minorities, particularly of Arabs, from the public sphere. These bills illustrate that exclusion is indeed a growing phenomena in the Israeli society that cannot be overlooked. Moreover, they underscore the urgent need to entrench a direct obligation to apply human rights to the private sphere on a constitutional level. This will only be achieved once Israel adopts a full constitution.
Keywords: exclusion; basic laws; sole and despotic dominion; human rights in private law; constitution’s integrative role
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