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January 1974 - March 2016
Publications
Publications (54)
A path-breaking analysis of the concept of privacy as a question of access to the individual and to information about him. An account of the reasons why privacy is valuable, and why it has the coherence that justified maintaining it as both a theoretical concept and an ideal. Finally, the paper looks into the move from identifying the grounds of th...
Independent courts are very central elements of the rule of law and democracy. At the same time, criticism of judicial performances may be legitimate and even justified. Courts are not elected powers. Their legitimacy stems from the fact that they are the ones who enforce the laws and protect the citizens from arbitrary power. But the function of m...
The essay revisits the question of the meaning of the term ‘Jewish’ in the description of Israel as ‘a Jewish and democratic state’, and the justification that Israel maintains this identity. It examines some of the standard arguments that claim that it is impossible for Israel to be both Jewish and democratic and that its continued existence as th...
I take the school in Neve Shalom/Wahat-el-Salam as a test case for the educational implications of one of the most central problems of life in Israel – the relationships between its Jewish and Arab Citizens. I chose this school because it is a unique institution in which Jews and Arabs study together on terms of equal dignity and representation, ag...
The essay describes the complex reality in Israel on Days of Rest and Worship, concentrating on the internal Jewish debate between orthodox and non-orthodox Jews. Claims of rights are made by both sides, but mainly it is the liberals who seek to invoke human rights and court decisions that will invalidate restriction imposed on Saturdays which they...
The article examines some of the arguments against the Jews’ right to statehood. It claims that Jews are a nation; that as such they are entitled to national rights, including the right to national self-determination; that the locus of that right, at least since the mid 20th century, is the territory between the Jordan River and the Sea; and that t...
The Law of Return, passed unanimously by the Knesset with much excitement and elation in 1950 on the day commemorating Theodor Herzl, establishes the principle that 'every Jew is entitled to come to this country as an Oleh' and lays the foundation for the preference given to Jews in Aliyah and in the acquisition of citizenship in Israel. The law is...
This is a chapter in a book in which a number of legal philosophers answer the same five questions about their role and perception of their field and their place in it. Gavison talks about what attracts her to legal philosophy, how she combines the attempt to understand the law and the way it functions and political and social activism, and what sh...
Recent years have seen the emergence in Israel of a public debate over whether to adopt a formal constitution, what values and institutions such a constitution ought to enshrine, and how to go about formulating and ratifying it. While any serious answer to these questions must take Israel’s unique circumstances and political tradition into account,...
Serious social and legal concern with privacy is a relatively modern matter, though themes of privacy and its importance form part of all known human civilization.
Israel is a country where constitutional debates center not on the questions whether it should have a constitution and what should be in it but on whether it has one. This undesirable and anomalous situation results from the fact that constitutional reality in Israel has been the result of a long process characterized in recent decades by legislati...
In this chapter I wish to defend the thesis that the idea of a state both Jewish and democratic, is - under some conceptions - both coherent and feasible. Furthermore, such a state can be morally justified.
This is the second book symposium of the second issue of The Jerusalem Review of Legal Studies. The symposium consists of a discussion of Will Kymlicka’s book “Multicultural Odysseys” (Oxford University Press, 2007). It includes critical comments by Dr. Shlomi Segall, Prof. Chaim Gans and Prof. Ruth Gavison, to which Prof. Kymlicka then responds.
This is Ruth Gavison's contribution to the symposium on Will Kymlicka’s book “Multicultural Odysseys.”
The main thesis of this Article is that the tendency to sweepingly use the human rights discourse in immigration contexts may be misguided. Moreover, the expansion of the human rights discourse beyond its natural and critical scope may have negative results and encourage states to act in ways that may harm important interests of immigrants. The uns...
עלייה יהודית וקיבוץ גלויות היו שתיים מן המטרות העיקריות של המפעל הציוני ושל מדינת ישראל. חוק השבות התש"י-1950 היה הכלי המדיני והמשפטי שבאמצעותו ביקשה מדינת ישראל לממש אידאלים אלה. החוק נתפס בעיני רבים כאחד הביטויים העיקריים ליהדותה של המדינה. חוק השבות משמש מוקד בולט לחילוקי דעות הן בעניין ההצדקה של העדפת יהודים בהגירה לישראל, הן בעניין הפנים-יהודי...
Introduction Days of rest have not been given a central place in discussions of modern societies. However, regulation of days of rest provides a fascinating illustration of a variety of central issues in such societies. In Western societies, the issue of days of rest has usually been seen as concerned with the relationship between state and religio...
The paper presents the jurisprudential basis for the debate concerning the use of international law and foreign law when interpreting a country's laws and constitution in general and in the context of human rights in particular.
The two excerpts above where quoted to illustrate that debates over state and religion in general, and over the status of
religious “days of worship” in particular, are anything but marginal in contemporary Israel.
All constitutions seek to enable government, structure its powers, and limit them. To do this effectively, constitutions must enjoy a legitimacy which is broader and deeper than that enjoyed by any specific organ of government or any specific policy or piece of legislation. A constitution's fundamental nature is supposed to provide elements of the...
I view with mixed feelings the fact that in the years 1992-1994, the expression 'a Jewish and democratic state' was incorporated into the Basic Laws of Israel. On one hand, there is no question that this encouraged public discourse on the coherence of the combination and its desirability. On the other hand, it thrust the legal and judicial dimensio...
The paper analyses the development of the constitutional process in Israel since 1950, and especially since the 1992 basic laws. It argues that this process should be viewed within a frameworks distinguishing between three stages of constitution-making: the initial enactment of a constitution, amendments of the constitution, and application and int...
The paper starts from the fact that Israel is described as a 'Jewish and Democratic' state. It opens with a rejection of some preliminary charges that Israel cannot be both Jewish and democratic or that maintaining its Jewish particularity is in principle unjustified. The main part of the paper analyzes various issues, such as the right to particip...
International and human rights law are often invoked to condemn Israel. While Israel must obey these norms, it is important to see that they are often ambiguous, ineffective, inadequate, politicized and overextended. Attention to these features of international and human rights law will make them more credible and a better guide for action and crit...
These two papers (one in English and one in Hebrew) describe the unique educational experience of the Neve Shalom school, which is a fully integrated Jewish-Arab school within a system where Jews and Arabs regularly study in separate schools and languages. They are similar but have different emphases since the audiences are expected to be different...
Israel's Declaration of the Foundation of the State of 14 May 1948 specified, as required by UN Resolution 181, that Israel be a constitutional democracy. The constituent assembly was only elected in 1949, after the 1948 war, and made itself into the first Knesset, thus conflating constitution-making and regular legislative authority. In 1950, the...
Is it possible to justify the existence of a Jewish state? This question, raised with increased frequency in recent years, is not just a theoretical one. Israel will endure as a Jewish state only if it can be defended, in both the physical and the moral sense. Of course, states may survive in the short term through sheer habit or the application of...
The essay argues that the content of constitutions should derive from its political functions: granting stability and legitimacy to government. There are three main candidates for inclusion in constitutions: regime arrangements, human rights, and general credo. All constitutions must include institutional arrangements. The level of detail and entre...
Israel Studies 4.1 (1999) 44-72
Growing awareness of tensions between Jewish and democratic elements in Israel's regime abounds in the scholarship of Israeli society of the last two decades. This may be surprising, since the tensions were not created recently. They have accompanied the Zionist movement and its idea of a Jewish state from the very b...
Admires and critics alike concede that Holmes was a great man and a great jurist. One hundred years after the publication of 'The Path of the Law,' this classic article, and Holmes heritage in general, are very much alive. The path is indeed an amazing piece. In lass than twenty pages, Holmes sets out in his dazzling way the skeleton of his thought...
It has been fashionable to expend the list of villains in social, political, and legal thought. The list now includes not only criminals and malfeasors of all sorts, but also theoretical perspectives and complex human practices such as language and science. In this paper I want to examine, in some detail, the identification of one such villain: the...
Before I consider Frederick's Schauer's 'Rules and the Role of Law' in detail, let me emphasize the way in which I agree with him. I have sympathy with Schauer's theoretical agenda and agree with most of his theses. I believe that it is both important and true to say that rules can bind and that they often do, in law and in life; that not all decis...
The debate about theories justifying punishment has been continuing for centuries now. Many questions are involved, and all must be answered by a complete theory justifying punishment. But the two questions which must be answered by any attempt at justifying punishment are who should be punished (and why) and what the measure and mode of that punis...
The symposium on 40 years of Israeli law presented the principal speakers with a formidable task, as one cannot do justice to the developments that have taken place in an entire branch of law over 40 years within the confines of a short lecture. This is perhaps especially true of Israeli constitutional law, which contains a wealth of matters deserv...
A Matter of Principle. By Ronald Dworkin [Cambridge, Harvard University Press, 1985, 417 pp.]. - Volume 22 Issue 3 - Ruth Gavison
This article is a synopsis of a monograph which will be published shortly (in Hebrew) by the Harry Sacher Institute for Legislative Research and Comparative Law. I dedicate it to Professor Tedeschi because he was the one who triggered it ten years ago, with his suggestion that the study of law, and especially the study of contexts of discretion in...
Chaim Perelman — In Memoriam - Volume 19 Issue 1 - Shalev Ginossar, Ruth Gavison
Analyse du cas suivant de surdetermination causale: A et B veulent tuer C, qui va dans le desert| A remplit son jerrycan de poison, mais B le perce de trous, en sorte que C meurt de soif dans le desert| qui a cause sa mort? Les A. proposent une solution du probleme a l'aide des concepts de remplacement causal effectif ou non-effectif: tout depend d...
Taking Rights Seriously. By Ronald Dworkin [Harv. U.P., 1977, enlarged edition, 1978]. - Volume 14 Issue 3 - Ruth Gavison
In recent years there has been a growing concern about privacy in many countries. Consequently demands are being made that the law should afford privacy a more adequate protection. This new concern about privacy may seem surprising when we recall that people have always gossipped, that individuals have always sought information about others for var...
To establish the implications, if any, of jurisprudential theories for the election, selection, and accountability of judges, we need to establish links between typical answers to questions of legal theories presented by various theories of law, and criteria for choosing judges and for holding them accountable.But when we read the literature on the...
