Judicial Deference to the Administration in Israel

Abstract

This article offers a conceptual analysis of the term “judicial deference”, as distinguished from other forms of judicial restraint. On this basis, first offers an overview of reliance on deference “stricto sensu” in the jurisprudence of the Supreme Court when deciding on challenges to administrative action. Using textual analysis, it is shown that very few decisions consider the doctrine as such as the basis of the rejection of an application: the reasoning processes in Israel thus do not find “deference” the only, or the main, basis for refraining to interfere. This textual search leads to a definition of three theoretical justifications to deference/restraint. The subsequent qualitative study of four fields of action is followed by an assessment of the possible future of deference, which relies on two recent decisions that convey opposing possible future developments.

Keywords: judicial review, deference, administrative law, Israel, public law, judicial restraint, judicial activism