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Comparative Public Law Research in Israel: A Gaze Westwards

Published online by Cambridge University Press:  30 July 2019

Margit COHN
Margit COHN*
Affiliation:
Hebrew University of Jerusalem, Israelmargit.cohn@mail.huji.ac.il
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Abstract

This article offers a typology of comparative law research and assesses the state of this body of research in one Asian country – the State of Israel. To identify the work that should be considered ‘comparative’, I classify studies into three groups. Following a short overview of Israel's political and legal system, I assess the ways comparative public law is addressed in the country. Relying on a first-of-its-kind quantitative study of Israeli legal scholarship in English in the field of public law that compares at least two systems, the article shows that the compared systems in Israeli comparative legal research are predominantly western, and that materials from the United States by far outweigh all other sources. The article then considers several possible reasons for the limited gaze eastwards and beyond the United States, granting special attention to the cultural ‘Americanization’ of Israel. Directions for future research are considered in the conclusion, including the expansion of the findings from public law to other fields of law; the comparison of these findings with those of similar systems in Asia and beyond; and the possible ways legal education may promote the development of eastern-bound comparative exercises.

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Type
Article
Information
Asian Journal of Comparative Law , Volume 14 , Supplement S1 , October 2019 , pp. S11 - S27
Copyright
Copyright © National University of Singapore, 2019 

This article offers a typology of comparative law research and assesses the state of this body of research in one Asian country – the State of Israel. In addition to a survey of the state of comparative law research in Israel, I consider the reasons for its limited reach eastwards, that is, into Asia. The first part of the article is dedicated to a functional analysis of three different streams in comparative law research. The first stream comprises single-system overviews. In my view, these studies are improperly considered comparative as they do not contain any comparative element. The second stream comprises studies that are concerned with explicating and determining the nature, contours, and application of specified legal doctrines, in which the analysis is enriched with examples garnered from different legal systems. This type of work is comparative, but the comparative element is used as a means to an end, and is not committed to an all-inclusive analysis of the studied doctrine as embedded in the legal systems compared. ‘Proper’ comparative research must be inclusive, and represent in full the ways the legal systems discussed treat the aspect or doctrine being compared. In the context of the third stream, two methodologies can be followed. Large-n, usually empirically-inspired comparisons, consist of studies of a specific question in a large number of systems. Broad in their remit, but almost necessarily less detailed, these are distinct from small-n research, which offers qualitative in-depth studies of a small number of systems.

On this basis, Part II offers a descriptive assessment of comparative public law research in Israel, starting with an overview of the state's political and legal system. A former British Mandate territory, Israel's geographical location at the western end of Asia offers an example of a westernized culture. Never exclusionist, the volume of comparative legal research in Israel has grown exponentially during past decades, joining a continuing trend of the judiciary citing foreign sources. Earlier on, these were mostly British; currently, a general preference for sources from the United States (US) and, in some cases, European sources, is evident. To date, the comparative exercise retains a limited link with other Asian countries, even those that share a common colonial history. Israeli scholars could have benefited from the study of Asian countries, especially those that share a similar colonial history, possibly more so with respect to those that maintain a link with the English language. Yet, to date, the systems compared in Israeli comparative legal research are predominantly western. This conclusion is reached in the first section of Part III, and is supported by a first-of-its-kind quantitative study of publications in English in the field of public law that compare at least two systems.

In the final part of the article, I consider possible reasons for the limited gaze eastwards. First, different national characteristics might have been influential; for example, India's growing population and federal structure cannot be easily compared to Israel's population and unitary polity. Yet under these parameters, Israel is not directly comparable to the US or the European Union (EU). A second explanation concerns economic characteristics, such as the rise of the ideology of neo-liberal economics, but this factor does not appear sufficient by itself to explain the impact that has been observed on academic research in law and the humanities. A third explanation points at Israel's political extrication from Asia, which has led to some alienation, especially in the past. The fourth explanation lies in cultural and economic aspirations. Finally, I focus on the dominant influence of the US over Israel's culture and political economy. The influence of US legal research on Israel's academia is by far the most pervasive; ‘Americanization’ is central to the current general culture of Israel, as it is in a growing group of countries. In Israeli academia, publication in US law journals, mostly student-edited law reviews, is more than encouraged; Israeli journal rankings reflect this as well. As for books, elite British publishers have retained their reputation, but these publishers, too, have partially integrated into the US market. I conclude by pointing out directions for future research, including the expansion of the findings in Israel's public law scholarship to other fields of law; the comparison of these findings with those of similar systems in Asia and beyond; and the possible ways in which legal education may promote the development of eastern-oriented comparative exercises.

I. COMPARATIVE LAW RESEARCH: A TYPOLOGY

General analyses of the comparative law discipline often focus, after preliminary definitional discussions, on the methodology of the comparative study or its purposes. Setting aside methodology, I take a different angle to the definitional and purposes discourse. In their seminal work on the nature of comparative law, Konrad Zweigert and Hein Kötz identify six ‘benefits’, or purposes, of embarking on comparative law research. Comparison may be part of the pursuit of knowledge; designed to aid legislatures; to operate as a tool of construction; to be part of the academic curriculum; to be a tool for the unification of law; and to serve as a tool for the development of a shared common law.Footnote 1 To these benefits, one might add additional purposes, such as the promotion of a tool in negotiations over treaties or other transnational agreements, and the use of comparative law as a persuasive reasoning aid for policymakers and judiciaries alike. My focus on academic research, however, focuses on the first benefit: the development of knowledge.

In this context, different streams of research can be found. Studies of single legal systems in the first stream, even if these systems are exotic or hitherto unknown, should not qualify as comparative, as these are merely snapshots of a single system. The comparative element could be added to such a collection of country reviews through an analysis of the findings. In this case only, comparison is indeed part of the endeavour.

The second stream is closer to our instinctive understanding of comparative law, but it is still distinct from its main body. Some theoretical and conceptual works, concerned with explicating and determining the nature, contours, and application of legal doctrines, supplement their analyses with examples garnered from different legal systems. For example, a normative study of the nature of the proportionality doctrine could provide examples of the workings of the doctrine in different systems to show how the elements of the normative model either operate, or fail to operate in practice. My work on the theory of the executive branch is now being advanced in a sole-authored monograph, showing the workings of some of the elements of the theory in two legal systems, the US and the United Kingdom.Footnote 2 This type of work is comparative. It can also offer examples of the ways shared problems are treated in different systems, an important element of comparative work. Yet the comparative element is used as a means to an end, and is not committed to all-inclusiveness. The examples brought forth in such studies need not necessarily be a complete rendition of the ways the systems discussed treat the issue addressed. Rather, they are offered as real-life examples of the operation of a theory or a model.

The dividing line between such work and ‘proper’ comparative law is fuzzy. Still, the latter must follow several rules that the former need not. First, proper comparison between legal systems must be inclusive, and represent in full the ways the systems discussed treat the aspect or doctrine being compared. True to Zweigert and Kötz's principle of functionality, this inclusiveness must expand beyond formal elements, texts, or case-law to legal culture, traditions, and structural elements.Footnote 3

Comparison within the third stream follows two methodological templates. Large-n, or empirically-inspired comparisons, consist of studies of a specific question in a large number of systems. Broad in their remit, but almost necessarily less detailed, these are distinct from small-n research, which offers qualitative in-depth studies of a small number of systems. Functionality is more likely to be applied in small-n research. Due to the cost involved in in-depth studies, large-n studies typically study written rules. They can present a broad view of a studied element, albeit one of a lesser resolution.

II. COMPARATIVE PUBLIC LAW RESEARCH IN ISRAEL

A. Israel: A Brief Overview

The State of Israel is located at the western edge of Asia. Its location at the eastern edge of the Mediterranean Sea with land contact with Asia, and its proximity both to Europe and Africa, have contributed to its strategic importance throughout western history.Footnote 4 This strategic position, further enhanced by being a religious centre for the three major monotheistic religions, has contributed to a rich and complex history fraught with difficult challenges. Currently, the population of Israel nears nine million, concentrated in an area of up to 22,145 square kilometres.Footnote 5

The territory's strategic location has shaped its history since the Middle Ages. In modern times, the territory served as a colonial strongpoint, first for the Ottoman Empire (largely during 1516–1917). Following the First World War, the territory became part of the British Empire as a Mandate territory. The unilateral departure of the British, and the United Nations’ (UN) decision to create two states in November 1947, were followed by the declaration of independence of the State of Israel on 14 May 1948 and the 1948–49 war. The State was admitted as a member of the UN in May 1949.

The Israeli-Palestinian conflict, largely shaped by those occurrences and exacerbated after 1967, remains a central world conflict. The Israeli nation's seventy years of history largely revolve around a series of wars and conflicts. The state has never been free from conflict, and the formal declaration of a state of emergency, made in 1948, is still in force.Footnote 6 The state has undergone several major wars and a large number of events, periods of terrorism, and warlike operations, with all parties to the conflict involved.Footnote 7 The occupation of the West Bank and the Gaza Strip in 1967 created additional serious points of conflict, and has much to do with the escalation of the conflict. Peace efforts brokered by international forces, mainly the US, have had some success, but have yet to reach a permanent solution.Footnote 8 Despite the Israeli withdrawal from some of the occupied territories (the Sinai Peninsula, Egypt in 1982, and the Gaza Strip in 2005 under the Unilateral Disengagement Plan), and the establishment of the Palestinian Authority (under the Oslo Accords in 1994), stability is still far from being achieved. Hamas’ political victory in the Gaza Strip in 2006, continuing missile attacks against southern and northern Israeli localities, Israeli reprisals and interference, and the civil war in Syria, all signify the difficulties still standing in the way of achieving some kind of normalization. Initiatives supported or brokered by the US continue.

Before the British Mandate period (1922–48), the domestic law of the territory was Ottoman, influenced in its later period by continental law. The survival of Ottoman law was ensured by the British authorities who, upon the establishment of the British Mandate, retained the continuity of existing law. Diminishing remnants of this legislation still remain in force today; most saliently, despite reforms and statutory amendments, the basis of the arrangements regarding religious jurisdiction in matters of personal law (mainly marriage and divorce) follows the principle of religious jurisdiction introduced in Ottoman law. During the Mandate period, some of the Ottoman laws were replaced, but more importantly, an extensive body of law was implanted in addition to the existing, rather unmodernized, legal system. This was supplemented by an extensive body of emergency regulations, first due to internal conflicts and later during the Second World War, touching on national security, war powers, and the regulation of the economy.Footnote 9 Similar to other post-colonial states, on its independence, Israel formally retained colonial law.Footnote 10 Most Mandate legislation has since been extensively modified by legislation, with much of it entirely replaced. The legacy of the Mandate remains central to the legal system, but Israel is now recognized as one of the several mixed systems of law, with a strong influence of continental law, mainly in its private law.Footnote 11

As for its polity, the State of Israel can be described as a western democracy ‘with a difference’, or several differences. From inception, the state was committed to the ideals of social-liberal democracy. Israel's western-type democracy has been maintained throughout its existence. Its Supreme Court is often viewed as one of the most activist courts in the western world, and its decisions have followed liberal-democratic tenets, such as the protection of human rights and liberties.Footnote 12 At the same time, Israel was established as a Jewish state, and in this duality lies the basis for one of the state's most serious social tensions, or rather, dangerous rifts. Like many modern states, Israel is a multi-faith and multi-cultural nation, but the tensions inherent in composite nations are evident in Israel in the internal Jewish context, where different alternative streams struggle against state preference for orthodox and ultra-orthodox streams.Footnote 13 Further, the serious tension arising from the Israeli-Palestinian conflict has shaped much of the state's history, culture, and law.Footnote 14

Moving to the state's constitutional law, Israel does not have a single document identified as its formal written constitution. In 1948, on the independence of the state, no formal constitution was introduced, although a written constitution was part of the new state's credo and was embedded in the international consensus embodied in the 1947 UN partition decision.Footnote 15 Two years after its inception, Israel postponed the idea of enacting a full formal written constitution. Instead, the Knesset (the Israeli Parliament) decided to enact piecemeal Basic Laws that would eventually become chapters of the Constitution. The first Basic Law of Israel,Footnote 16 enacted in 1958, related to the Knesset. To date, Israel has fourteen Basic Laws, two of which, enacted in 1992, incorporate some human rights and liberties.Footnote 17 Briefly, these two Basic Laws define and protect several human rights, including freedom of occupation, dignity, liberty, property, and freedom of movement out of the state; they however do not explicitly recognize equality, freedom of speech, and freedom of religion, absences that have been largely filled by judicial inclusion through the right to dignity. Both Basic Laws contain a limitation clause that allows a breach of a protected right, largely on the basis of proportionality and in accordance with the state's main values. The Basic Law: Freedom of Occupation also contains an override clause.Footnote 18

Israel's administrative law was created in the British image.Footnote 19 While retaining the conceptual and structural elements of its mother body of law, the doctrines and rules of Israel's administrative law have been dramatically reshaped by an activist judiciary. Article 46 of the Palestine Order in Council 1922 under which domestic law was to be applied in conformity with English law, was formally repealed in 1980 but the gradual process of alienation from English sources began much earlier.Footnote 20 The Israeli courts have also developed new avenues of review that are substantively removed from their origins, despite a remaining affinity with the original structure. In its first years, decades before the adoption of human rights legislation, the High Court of Justice (HCJ) recognized human rights as key elements of the public sphere. This was effected, inter alia, through a strict judge-made rule of legality, under which interference with human rights required explicit statutory authorization and could not rely on a general grant of powers.Footnote 21 The Court also gradually expanded its review; first, by rejecting concepts of absolute discretion and ruling that all forms of discretion were amenable to review; second, by practically eliminating the threshold grounds of standing and justiciability; third, by introducing a strong version of balancing in human rights contexts; and fourth, by creating a new purposive theory of interpretation, under which all statutes embraced general constitutional principles as part of their legislative purposes.Footnote 22 Balancing tests were adopted early on,Footnote 23 and later on, a substantive transformation of the doctrine of unreasonableness and the subsequent development of proportionality explored below are two additional examples of these far-reaching developments in Israel's administrative law.Footnote 24

B. Comparative Public Law Research in Israel by Streams: 2007–2017

This section, a survey of contributions of Israeli public law scholars published in English between 2007 and 2017, relies on the above distinction between large-n (quantitative) and small-n (qualitative) studies, both concept-specific and general. Israeli scholars have joined this stream of comparative research, sometimes without a focus on Israel.Footnote 25

Within the concept-specific group, theoretical and conceptual analyses of a variety of legal doctrines and contexts, for example studies of the nature of legal transplants, human dignity, and proportionality, are supported by examples from different systems.Footnote 26 In the large-n group, some studies of a large number of systems focus on diverse issues such as constitutional structures, constitutional amendments, and human dignity, and sometimes use quantitative methods.Footnote 27 Most of the work belongs to the small-n group, and spans all aspects of public law, including comparisons of constitutions, constitutional judicial review, and bills of rights;Footnote 28 discussions on unconstitutional constitutional amendments;Footnote 29 analyses of human dignity,Footnote 30 proportionality,Footnote 31 religious freedom,Footnote 32 and other rights;Footnote 33 analyses of anti-terrorism measures;Footnote 34 political and election laws;Footnote 35 executive powers;Footnote 36 and different aspects of administrative law.Footnote 37 As we shall see below, many of these studies compare Israel with the US, sometimes in collaboration with a US scholar,Footnote 38 but comparisons with other systems do exist.Footnote 39

III. GAZING WESTWARDS: ASSESSING COMPARATIVE LAW RESEARCH IN ISRAEL

What is the extent of Israeli comparison with Asian systems, and how can the emerging patterns be explained? No quantitative studies of Israeli comparative research in public law or elsewhere, or studies of trends in these fields, exist. In their absence, I first consider the existing work on judicial citation practices, which has received attention. I then offer a first-of-its-kind quantitative study of publications in English in the field of public law. The findings overwhelmingly support the assumption that comparison with the US is the most prevalent form of comparative research of public law in Israel.

A. Patterns of Comparison in Public Law Research

In the absence of existing quantitative analysis of comparative studies in Israel, tracing the existing trends can first be assisted by a consideration of three existing quantitative studies of judicial output, which consider citation practices of foreign law by Israel's Supreme Court,Footnote 40 and by two recent assessments of these practices.Footnote 41

The first two studies do not focus on public law decisions; they span the entire output of the Supreme Court. These studies rely on the database developed by a group led by Professor Yoram Shachar, consisting of 7,147 decisions of the Israel Supreme Court, originally delivered between 1948 and 1994 and randomly chosen from all formally published decisions. In our context, the authors of the first article in 1996 found a general decrease in reliance on foreign sources, from 25.6 per cent of all judicial citations in 1948 to 9.5 per cent in 1994. They further found a clear move from citation of British and Commonwealth sources (24.4 per cent in 1948 to 4 per cent in 1994) to US sources (from 0 per cent to 5.1 per cent).Footnote 42

Shachar's 2008 study expands the database by a decade and sets out to check, inter alia, the ‘Americanization’ of Israeli judicial decision-making. Focusing on the eighty longest decisions published each year (1950 to 2004), the author finds, alongside a general increase of usage of domestic sources, a decrease in reliance on sources from the UK and the Commonwealth (from almost 100 per cent in 1950 to about 43 per cent in 2004) and an increase of US sources cited, reaching more than 50 per cent of all citations of foreign sources.Footnote 43

In his 2008 article, Shachar classifies the studied decisions into three fields (private, public, and penal), and finds that reliance on foreign sources in public law decisions is distinctly lower than in the other two fields.Footnote 44 Yet, in public law, the ratio of citation of US sources out of all foreign sources was about 70 per cent in the last years studied, in contrast to a lower ratio in the other two fields.Footnote 45 This study, then, notes a general decrease of citations, but shows that the tendency in favour of reliance on US sources has strengthened in public law.

Navot's research in 2013 focuses on constitutional law decisions. The study examines a large (undisclosed) number of all Supreme Court decisions delivered between 1994 and 2010 classified as ‘constitutional’ under a set of guidelines.Footnote 46 Among the findings, the author finds a variegating rate of citation of foreign sources, ranging from 12.5 per cent in 2009 to 54 per cent in 1995. In total, 64.12 per cent of decisions that cited foreign sources cited US sources. Canada was second (13.43 per cent); India, the most cited Asian system, came in seventh with a mere 1 per cent.Footnote 47

These findings are concerned with judicial citations of foreign law. How do academics fare in this respect? As mentioned, no similar study of academic research in Israel exists. To fill this lacuna, I have conducted an initial quantitative study of publications – books, monographs, and articles that analyze more than one system – published in English by members of law faculties and law schools in Israel between 2007 and 2017.Footnote 48 Only three of these forty-four publications are large-n quantitative, and all of these include the US. Of the remaining forty-one publications, no less than thirty-two consider the US,Footnote 49 and thirteen refer to Canadian public law.Footnote 50 This trend is even stronger in publications in the Hebrew language: fourteen out of the fifteen found cited US sources. Asian systems received less attention. India is compared in seven small-n qualitative studies in both languages, with few references to other systems.Footnote 51 The academic ‘Americanization’ of comparative research, then, appears to be markedly more pervasive than the judiciary's.

B. Explaining the Findings

What are the possible reasons for these findings? It may be useful first to consider the literature that has suggested explanations for the extensive judicial reliance on foreign sources, and the rise in judicial references to US sources. The two studies that focus on constitutional adjudication identify the following reasons for these patterns: (1) Israel's non-textualist legal tradition has been supported by the absence of a full written constitution, and has enabled interested judges to look to foreign sources; (2) Israel's ‘constitutional revolution’ (the enactment of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation in 1992, both protecting human rights)Footnote 52 was influenced by other systems, mainly Canada; (3) the adoption of a European style of constitutional adjudication; (4) Israel's tendency towards anti-formalism; (5) the youth of the legal system; (6) Israel's geopolitical isolation and its westward turn, politically and culturally; (7) the strength of professional ties with other legal systems;Footnote 53 (8) the relatively extensive dialogue between Israeli judges and those from other systems; and (9) the need for domestic judges to develop a system that protects constitutional principles, and human rights in particular, supported by foreign sources.Footnote 54 One may also add Israel's participation in the global move towards the adoption of a neoliberal ideology, which enhances tendencies towards ‘Americanization’.Footnote 55 All of these may be plausible explanations of the comparative analysis of judgments, but are they relevant to the assessment of academic research? In my view, each of the above-cited reasons is indeed valid; judicial dialogue should of course be replaced by academic dialogue. I would however like to discuss four possible explanations, and focus on the fourth.

Different national characteristics might have been influential: for example, India's growing population (1.35 billion in 2018 according to the UN)Footnote 56 and federal structure cannot be easily compared to Israel's population of 9 million and its unitary polity. Yet under these parameters, Israel should also not be comparable with the US or the EU. A second explanation, concerned with economic characteristics, may explain the affinity with the west rather than the east, but this should not affect academic research in law and the humanities to the extent found in the system. A third explanation points to Israel's political extrication from Asia as opposed to Europe, which has led to some alienation.Footnote 57 These formal links with the west via Europe, however, only explain the state's general distancing from the east, but not its gaze towards the US. Recent possible retightening of links with AsiaFootnote 58 have not impacted the process of ‘Americanization’.

This fourth explanation, the most promising in my view, lies in cultural and economic aspirations. Alongside the alignment with Europe discussed above, the culture of the State of Israel is distinctly US-orientated; the influence of ‘American’ values, practices, and culture permeates all aspects of life. The collection of articles published in an issue of the journal Israel Studies, dedicated to ‘the Americanization of Israel’, suffices to reflect this trend.Footnote 59 Indeed, the dominant influence of the US over Israel's culture and political economy seems to eclipse the deep-rooted differences between their political traditions, economic policies, and social stratification. This fact may serve as an initial explanation of the turn to the US in Israeli academia. The influence of US legal research on Israel's academia is by far the most pervasive. Indeed, this important reason is linked with the state's broader cultural and ideological transformations, reflected inter alia in the strong academic preference for US scholarship.

The following example is a clear reflection of this partiality towards the US. A ranking list of law journals, currently being discussed in law faculties in Israel as a replacement of existing ranking lists, joins similar existing lists adopted by Israeli academia in the fields of social sciences and natural sciences.Footnote 60 The ranking list contains more than 900 law journals, classified into four groups, ranked from ‘A*’ to ‘C’. One of the main purposes of the list is to offer a method for measuring academic impact for funding purposes; still, younger scholars direct themselves to a publication path that accords with the list. Such rankings can also be found elsewhere.Footnote 61 The question of their value for academia has been debated, in the contexts of both methodology and utility.Footnote 62 Some of this work has touched upon the impact of such rankings on law school reputations,Footnote 63 but to the best of my knowledge, none of the literature focuses on the impact of rankings on legal research in general, and on comparative research in particular. This law journal ranking list offers a glimpse into the possible impact of US law journals. In its current version, thirty-nine out of the 911 listed journals are ranked ‘A*’; twenty of the latter (51.3% of A* journals) are student-edited law reviews located in US law schools. Eight of the remaining nineteen peer-reviewed journals ranked ‘A*’ are fully located and edited in the US. A single journal, the American Journal of Comparative Law, is dedicated to comparative study and it is still located in the US, but its editor and editorial board originate from different countries. A similar pattern of US centrality is evident in the second, ‘A’ tier,Footnote 64 and existed in earlier ranking lists and earlier, albeit in a less formal form.Footnote 65 It seems that nothing more is needed to reflect the strong link with the US professed by the Israeli legal academia.

The distinct preference for US and student-edited law reviews, established long before the adoption of this ranking, must have had a direct impact, not only on general research, but also on comparative law research. General law reviews are often less interested in analyses that extend beyond the US. Several student-edited law reviews are indeed international and comparative in nature, yet none of them are currently ranked ‘A*’. The ranking, then, not only reflects this trend; it also serves to fuel and entrench the preference for US legal scholarship.

Can this situation be changed? Considering the decades of ‘Americanization’ worldwide, any change in Israeli legal academia, if identified, is likely to be minor and incremental. Still, a stronger emphasis on the benefits of broader horizons can be infused into the law curricula. Most law schools require their students to study an introductory course on foreign systems, and the development of comparative law courses can be furthered. The rising number of exchange students moving between Asia and Israel is an important step forward. For example, the Hebrew University law faculty maintains student exchange programmes with five Asian universities, including the National University of Singapore.Footnote 66

As for faculty members, the number of academic visits to the so-called ‘Far East’ is growing. Even under the law journal ranking, and despite the reticence of US journals to turn their attention to foreign systems, there are still opportunities to extend one's gaze ‘eastwards’, both in large-n and small-n studies. The inclusion of Asian systems as part of a group of compared systems has precedents in both types of studies. Most notably, recent publications by Israeli scholars have compared Israel with India, in one case co-written with a scholar from India.Footnote 67 The differences in size and particularities should not deter scholars, who look to the US despite its size and polity which are quite different from Israel's. Smaller countries may be found to be even more suitable for comparison with Israel. This is no easy task. As elsewhere, in Israel, globalization has been translated into Americanization. Israeli comparatists can play a role as agents of change, and start gazing eastwards, but this change is likely to be slow and gradual.

IV. CONCLUSION

In this article, I set out to assess the comparative element in public law scholarship in Israel, with a special focus on the degree of academic references to Asian systems. First, to carve out the work that should be considered ‘comparative’, I classified studies so considered into three groups; the first, essentially single-system analyses, was excluded from the discussion, as these analyses are not in fact ‘comparative’ in nature. The other two differ in their extent of fidelity to comparison as opposed to a full overview of the compared systems. Under the second stream, the laws and the experiences of several systems are used as examples to explore the ways a concept or legal construct can (and has) been developed; while ‘true’ comparison, both large-n and small-n exercises, map in full the designated research question.

My exploration of comparative public law research in Israel between 2007–17 shows that US law is, by far, the prime system compared with, and that Asian systems receive limited attention. The possible reasons for this trend, offered in the article, span everything from national characteristics – a potential explanation that was summarily rejected – to politics and culture. Cultural ‘Americanization’ in Israel (and many other systems as well) is buttressed by the penchant of Israeli academia for the United States, although gazes towards Europe and eastwards are clearly not absent. I ended with several suggestions for change, albeit incremental in nature, pointing inter alia at the contribution of legal education.

This essay would benefit from further studies in several directions. First, the analysis here is focused on research in public law. The extension of the study to trends in the comparison of private law, and in other fields of law such as criminal law, family law, competition law, and international law may yield different results, or establish that the pattern discovered here is shared in all (or some) areas of legal scholarship in Israel. Second, in the spirit of comparative law, the findings should be compared with trends in other systems, Asian and non-Asian. If Israel is found to be an outlier, some of the tentative explanations may lose their force. Consider, for example, the argument from ‘Americanization’: if the culture of some of the other systems examined is considered to be ‘Americanized’ but their comparative scholarship is open to a broader range of systems apart from the US, further attention to the particularities of the Israeli case may be required.

Finally, the role of legal education in the development of a diverse and rich body of comparative research deserves attention. Diversity of education can enhance diversity in research. After all, one of the main strengths of comparative study and research is their contribution to the understanding of people, states, and law-at-large which appear in many forms, and that knowledge of the richness ‘out there’ is crucial to the better development of all human endeavours.

Footnotes

*

Henry J and Fannie Harkavy Chair in Comparative Law, Faculty of Law, Hebrew University of Jerusalem.

References

1. Zweigert, Konrad and Kötz, Hein, An Introduction to Comparative Law (Weir, Tony tr, 3rd edn, OUP 1998) 15–31Google Scholar.

2. Cohn, Margit, A Theory of the Executive Branch: Tension and Legality (OUP, forthcoming)Google Scholar. See also Cohn, Margit, ‘Tension and Legality: Towards a Theory of the Executive Branch’ (2016) 29 Canadian Journal of Law & Jurisprudence 321CrossRefGoogle Scholar.

3. For the principle, see Zweigert and Kötz (n 1) 34–44. Without entering the debate over the nature and viability of this principle (see eg Frankenberg, Günter, ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26 Harvard International Law Journal 411, 434–40Google Scholar; Husa, Jaakko, ‘Farewell to Functionalism or Methodological Tolerance?’ (2003) 67 Rabel Journal of Comparative and International Private Law 419Google Scholar; Michaels, Ralf, ‘The Functional Method of Comparative Law’ in Reimann, Mathias and Zimmermann, Reinhard (eds), The Oxford Handbook of Comparative Law (OUP 2006) 339Google Scholar), the principle focuses on effects and law-in-action, rather than on formal rules, thereby enabling comparison between systems lacking formal similarities, both in structure and rule-content.

4. This survey draws on Navot, Suzie, Constitutional Law of Israel (Kluwer Law International 2007)Google Scholar; Cohn, Margit, Energy Law in Israel (Kluwer Law International 2010) 17–39Google Scholar. See also Zamir, Itzhak and Colombo, Sylviane (eds), The Law of Israel: General Surveys (Faculty of Law, University of Haifa 1995) 3–4Google Scholar; Maoz, Asher, ‘The System of Government in Israel’ (1988) 8 Tel Aviv University Studies in Law 9Google Scholar.

5. According to the Israeli Central Bureau of Statistics, its population at the end of March 2019 was 9,009,000. See Central Bureau of Statistics, ‘Population’ <www.cbs.gov.il/EN/pages/default.aspx> accessed 18 May 2019. The data regarding area size include the occupied territories, some of which are already governed by the Palestinian Authority – an issue highly contested domestically and internationally. See Israel Ministry of Foreign Affairs, ‘Israel - Size and Dimension’ (Israel Ministry of Foreign Affairs, 2013) <https://mfa.gov.il/MFA/AboutIsrael/Maps/Pages/Israel-Size-and-Dimension.aspx> accessed 18 May 2019.

6. The most recent extension of the state of emergency (at the time of writing) was declared by the Knesset (the Israeli Parliament) on 16 July 2018, effective until 16 July 2019. See Declaration of State of Emergency, Yalkut Ha-Pirsumim 5778, No 7883, 9914 (16 July 2018) (in Hebrew).

7. Conflicts recognized as wars are the War of Independence (1948–49), the Suez War (1956), the Six-Day War (1967), the Yom Kippur War (1973), the Lebanon War (1982), the Second Lebanon War (2006), and the Gaza Wars and operations (2008–09, 2012, and 2014).

8. Formal negotiations include the peace treaties with Egypt (in 1979, following the Camp David Accords in 1978), the Jordan-Israel Peace Treaty (in 1994), and negotiations and several agreements signed with Palestinian and other Arab representatives (the Madrid and Oslo Accords in 1991–93; the Wye River Memorandum in 1998; the Camp David Summit in 2000; the Beirut Summit in 2000; and the ‘Road Map’ in 2002). Since then, there has been no real progress towards a settlement. See Israel Ministry of Foreign Affairs, ‘Guide to the Mideast Peace Process’ (Israel Ministry of Foreign Affairs, 2013) <https://mfa.gov.il/MFA/ForeignPolicy/Peace/Guide/Pages/GUIDE%20TO%20THE%20MIDEAST%20PEACE%20PROCESS.aspx> accessed 18 May 2019.

9. See eg Defence Regulations, 1936, Palestine Gazette Extraordinary Supp 2, No 584, 259 (19 April 1936); Defence Regulations, 1939, Palestine Gazette Extraordinary Supp 2, No 914, 659 (26 August 1939); Food and Essential Commodities (Control) Ordinance, No 34 of 1939, Palestine Gazette, No 913, 83 (26 August 1939); Defence (Finance) Regulations, 1940, Palestine Gazette Extraordinary No 991, 383 (9 March 1940).

10. Reception of colonial law was decreed in s 11 of the Law and Administration Ordinance, 5708–1948, Laws of the State of Israel, Vol 1, 7 (14 May 1948) (English translation), and confirmed in HCJ 5/48 Leon v Yehoshua Gubernik, 1 IsrSC 58 (SCt) (English translation at 1 Selected Judgments of the Supreme Court of Israel (IsrSJ) 41; Supreme Court Website, <https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\48\050\000\Z01&fileName=48000050_Z01.txt&type=4> accessed 18 May 2019); HCJ 10/48 Zeev v Yehoshua Gubernik, 1 IsrSC 85 (SCt) (English translation at 1 IsrSJ 68; Supreme Court Website, <https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\48\100\000\Z01&fileName=48000100_Z01.txt&type=4> accessed 18 May 2019). See Yadin, Uri, ‘Reception and Rejection of English Law in Israel’ (1962) 11 International and Comparative Law Quarterly 59CrossRefGoogle Scholar; Friedmann, Daniel, ‘Infusion of the Common Law into the Legal System of Israel’ (1975) 10 Israel Law Review 324CrossRefGoogle Scholar. Note on citation of Israeli cases: the Hebrew-language source is cited for all non-translated decisions; translations to English are cited where available.

11. Palmer, Vernon Valentine, ‘Introduction to the Mixed Jurisdictions’ in Palmer, Vernon Valentine (ed), Mixed Jurisdictions Worldwide: The Third Legal Family (CUP 2001) 3Google Scholar. The move towards reform of private law under a continental template was substantially aided by the ‘Codification Project’, led by the Justice Ministry, starting in the 1960s. See eg Lerner, Pablo and Rabello, Alfredo Mordechai, ‘The (Re) Codification of Israeli Private Law: Support for, and Criticism of, the Israeli Draft Civil Law Code’ (2011) 59 American Journal of Comparative Law 763CrossRefGoogle Scholar. Among the central fields of private law, only tort law remains a statute that originated in the Mandate period. See ibid 769.

12. See eg Jacobsohn, Gary Jeffrey, Apple of Gold: Constitutionalism in Israel and the United States (Princeton University Press 1993)Google Scholar; Barzilai, Gad, ‘Courts as Hegemonic Institutions: The Israeli Supreme Court in a Comparative Perspective’ (1998) 5(2–3) Israel Affairs 15CrossRefGoogle Scholar; Dotan, Yoav, ‘Judicial Accountability in Israel: The High Court of Justice and the Phenomenon of Judicial Hyperactivism’ (2002) 8(4) Israel Affairs 87CrossRefGoogle Scholar.

13. The article does not address the impact of religious law on other religious communities.

14. See eg Smith, Charles D, Palestine and the Arab-Israeli Conflict: A History with Documents (9th edn, St Martins Press 2016)Google Scholar.

15. United Nations General Assembly, ‘Future Government of Palestine’, UNGA Res 181(II) (29 November 1947), UN Doc A/RES/181(II).

16. Basic Law: The Knesset, 12 Laws of the State of Israel 85 (English translation).

17. For the texts and information on the first eleven Basic Laws, see Israel's Knesset website: The Knesset, ‘The Existing Basic Laws: Summary’ (Knesset, 2003) <www.knesset.gov.il/description/eng/eng_mimshal_yesod2.htm> accessed 18 May 2019.

18. Basic Law: Freedom of Occupation, Sefer Hachukkim No 1387, 114 (12 March 1992), replaced by Basic Law: Freedom of Occupation, Sefer Hachukkim No 1454, 90 (10 March 1994); Basic Law: Human Dignity and Liberty, Sefer Hachukkim No 1391, 150 (25 March 1992). For translations of the main Basic Laws, see: The Knesset, ‘The Existing Basic Laws: Full Texts’ (Knesset, 2005) <www.knesset.gov.il/description/eng/eng_mimshal_yesod1.htm> accessed 18 May 2019.

19. See Barak-Erez, Daphne, ‘Israeli Administrative Law at the Crossroads: Between the English Model and the American Model’ (2007) 40 Israel Law Review 56CrossRefGoogle Scholar (addressing the transformations and the challenges that may lead to further distancing).

20. For the original order see Palestine Order in Council 1922 (10 August 1922), in Drayton, Robert Harry (ed), The Laws of Palestine: In Force on the 31st Day of December 1933, vol 3 (rev edn, Waterlow & Sons 1934) 2569Google Scholar (domestic law, which was a mix of Ottoman law and British colonial laws, was to be ‘exercised in conformity with the substance of the common law, and the doctrines of equity in force in England, and with the powers vested in and according to the procedure and practice observed by or before Courts of Justice and Justices of the Peace in England’), repealed by the Foundations of Law Act, 5740–1980, 34 Laws of the State of Israel 181 (English translation). On this process, see Friedmann (n 10) 357–77; Shachar, Yoram, ‘History and Sources of Israeli Law’ in Shapira, Amos and DeWitt-Arar, Keren C (eds), Introduction to the Law of Israel (Kluwer Law International 1995) 1, 6–7Google Scholar.

21. See HCJ 1/49 Bejerano v Minister of Police, 2 IsrSC 80 (SCt) (English translation at Supreme Court Website, <https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\49\010\000\x03&fileName=49000010.X03&type=4> accessed 18 May 2019) (administrative action affecting human rights could not rely on a general authorization to act; explicit statutory authorization that referred to the specific action was required).

22. For this development, see FH 16/61 Registrar of Companies v Kardosh (SCt), 16 IsrSC 1151 (English translation in 4 IsrSJ 7) (no absolute discretion, even when statute granted seemingly unfettered discretion); for the second, see eg the series of applications for judicial review regarding blanket exemption from military service to ultra-orthodox Jewish men. By 1986, both justiciability (on national security grounds) and standing were gradually abandoned by the Court; HCJ 40/70 Becker v Minister of Defence, 24(1) IsrSC 238 (SCt); HCJ 448/81 Ressler v Minister of Defence, 36(1) IsrSC 81 (SCt); FH 2/82 Ressler v Minister of Defence, 36(1) IsrSC 708 (SCt); HCJ 910/86 Ressler v Minister of Defence (SCt), 42(2) IsrSc 441 (SCt) (English translation at 10 IsrSJ 1; Supreme Court Website, <https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\86\100\009\Z01&fileName=86009100_Z01.txt&type=4> accessed 18 May 2019).

23. See eg HCJ 73/53 Kol Ha'am v Minister of the Interior, 7 IsrSC 871 (SCt) (English translation at 1 IsrSJ 90; Supreme Court Website, <https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\53\730\000\Z01&fileName=53000730_Z01.txt&type=4> accessed 18 May 2019) (on freedom of the press); HCJ 153/83, Levi v Southern District Police Commander, 38(2) IsrSC 393 (SCt) (English translation at Supreme Court Website, <https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\83\530\001\Z01&fileName=83001530_Z01.txt&type=4> accessed 18 May 2019) (on freedom of speech and assembly); HCJ 153/87 Shakdiel v Minister of Religious Affairs, 42(2) IsrSC 221 (SCt) (English translation at Supreme Court Website, <https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\87\530\001\Z01&fileName=87001530_Z01.txt&type=4> accessed 18 May 2019) (on freedom of religion).

24. See eg Daphne Barak-Erez, ‘Broadening the Scope of Judicial Review in Israel: Between Activism and Restraint’ (2009) 3 Indian Journal of Constitutional Law 118, 119, 121.

25. For examples of recent work, see Cohen-Eliyah, Moshe and Porat, Iddo, ‘The Administrative Origins of Constitutional Rights and Global Constitutionalism’ in Jackson, Vicki C and Tushnet, Mark (eds), Proportionality: New Frontiers, New Challenges (CUP 2017) 103CrossRefGoogle Scholar; Roznai, Yaniv, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017)Google Scholar; Weill, Rivka, ‘Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide’ (2018) 40 Cardozo Law Review 905Google Scholar.

26. On legal transplants, see eg Barak-Erez, Daphne, ‘The Institutional Aspects of Comparative Law’ (2009) 15 Columbia Journal of European Law 477Google Scholar; Cohn, Margit, ‘Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom’ (2010) 58 American Journal of Comparative Law 583CrossRefGoogle Scholar (the former mentions Israel among other systems, while the latter focuses on the UK, following a conceptual discussion). For an expansive collection on human dignity, see Düwell, Marcus and others (eds), The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (CUP 2014)CrossRefGoogle Scholar. For an overview of human dignity under law, see eg Cohn, Margit and Grimm, Dieter, ‘Human Dignity as a Constitutional Doctrine’ in Tushnet, Mark, Fleiner, Thomas, and Saunders, Cheryl (eds), Routledge Handbook of Constitutional Law (Routledge 2013) 193Google Scholar. On proportionality, see eg Cohen-Eliya, Moshe and Porat, Iddo, Proportionality and Constitutional Culture (CUP 2013)CrossRefGoogle Scholar.

27. See eg Roznai, Yaniv, ‘Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea’ (2013) 61 American Journal of Comparative Law 657CrossRefGoogle Scholar (a study of dozens of constitutions, but without a quantitative element); Shulztiner, Doron and Carmi, Guy E, ‘Human Dignity in National Constitutions: Functions, Promises and Dangers’ (2014) 62 American Journal of Comparative Law 461CrossRefGoogle Scholar (a study of 141 constitutions); Roznai, Unconstitutional Constitutional Amendments (n 25) (more than 200 constitutions mentioned).

28. See eg Cohen-Eliya, Moshe and Stopler, Gila, ‘Probability Thresholds as Deontological Constraints in Global Constitutionalism’ (2010) 49 Columbia Journal of Transnational Law 75Google Scholar; Weill, Rivka, ‘The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making’ (2014) 62 American Journal of Comparative Law 127CrossRefGoogle Scholar; Weill, Rivka, ‘Juxtaposing Constitution-Making and Constitutional Infringement Mechanisms in Israel and Canada: On the Interplay between Common Law Override and Sunset Override’ (2016) 49 Israel Law Review 103CrossRefGoogle Scholar.

29. See eg Barak, Aharon, ‘Unconstitutional Constitutional Amendments’ (2011) 44 Israel Law Review 321CrossRefGoogle Scholar (comparing seven systems); Roznai, ‘Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea’ (n 27); Roznai, Unconstitutional Constitutional Amendments (n 25).

30. See eg Reichman, Amnon, ‘The Passionate Expression of Hate: Constitutional Protections, Emotional Harm and Comparative Law’ (2007) 31 Fordham International Law Journal 76Google Scholar; Bendor, Ariel L and Sachs, Michael, ‘The Constitutional Status of Human Dignity in Germany and Israel’ (2011) 44 Israel Law Review 25CrossRefGoogle Scholar; Cohn and Grimm (n 26).

31. See eg Cohen-Eliya, Moshe and Porat, Iddo, ‘Proportionality and the Culture of Justification’ (2011) 59 American Journal of Comparative Law 463CrossRefGoogle Scholar; Cohen-Eliya and Porat, Proportionality and Constitutional Culture (n 26).

32. See eg Stopler, Gila, ‘Rights in Immigrants: The Veil as a Test Case’ (2010) 43 Israel Law Review 183CrossRefGoogle Scholar; Stopler, Gila, ‘The Challenge of Strong Religion in the Liberal State’ (2014) 32 Boston University International Law Journal 411Google Scholar; Stopler, Gila, ‘The Right to an Exclusively Religious Education – The Ultra-Orthodox Community in Israel in Comparative Perspective’ (2014) 42 Georgia Journal of International and Comparative Law 743Google Scholar; Yaniv Roznai, ‘Negotiating the Eternal: The Paradox of Entrenching Secularism in Constitutions’ [2017] Michigan State Law Review 253.

33. See eg Barak-Erez, Daphne, ‘Terrorism and Profiling: Shifting the Focus from Criteria to Effects’ (2007) 29 Cardozo Law Review 1Google Scholar; Barak-Erez, Daphne and Kothari, Jayna, ‘When Sexual Harassment Goes East: Feminism, Legal Transplantation, and Social Change’ (2011) 47 Stanford Journal of International Law 175Google Scholar.

34. See eg Barak-Erez, Daphne, ‘Terrorism Law between the Executive and Legislative Models’ (2009) 57 American Journal of Comparative Law 877CrossRefGoogle Scholar; Barak-Erez, Daphne and Waxman, Matthew C, ‘Secret Evidence and the Due Process of Terrorist Detentions’ (2009) 48 Columbia Journal of Transnational Law 3Google Scholar; Barak-Erez, Daphne and Scharia, David, ‘Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law’ (2011) 2 Harvard National Security Journal 1Google Scholar.

35. See eg Rivka Weill, ‘Constitutional Transitions: The Role of Lameducks and Caretakers’ [2011] Utah Law Review 1087; Weill, Rivka, ‘Election Integrity: The Constitutionality of Transitioning to Electronic Voting in Comparative Terms’ in Prins, Corien and others (eds), Digital Democracy in a Globalized World (Edward Elgar 2017) 142CrossRefGoogle Scholar.

36. Cohn, Margit, ‘Non-Statutory Executive Powers: Assessing Global Constitutionalism in a Structural-Institutional Context’ (2015) 64 International & Comparative Law Quarterly 65CrossRefGoogle Scholar; Cohn, Margit, ‘Non-Statutory Executive Powers in France: A Comparison between Two Regimes’ in Albarian, Alexis and Morétau, Olivier (eds), Le Droit Comparé et… [Comparative Law and…] (Presses Universitaires d'Aix-Marseille 2016) 51Google Scholar.

37. See eg Cohn, Margit, ‘Pure or Mixed? The Evolution of Three Grounds of Judicial Review of the Administration in British and Israeli Administrative Law’ (2011) 6 Journal of Comparative Law 86Google Scholar; Cohn, Margit, ‘Form, Formula and Constitutional Ethos: The Political Question/Justiciability Doctrine in Three Common Law Systems’ (2011) 59 American Journal of Comparative Law 675CrossRefGoogle Scholar; Asimow, Michael and Dotan, Yoav, ‘Hired Guns and Ministers of Justice: The Role of Government Attorneys in the United States and Israel’ (2016) 49 Israel Law Review 3CrossRefGoogle Scholar; Asimow, Michael and Dotan, Yoav, ‘Open and Closed Judicial Review of Agency Action: The Conflicting US and Israeli Approaches’ (2016) 64 American Journal of Comparative Law 521CrossRefGoogle Scholar.

38. See eg Asimow and Dotan, ‘Open and Closed Judicial Review of Agency Action’, ibid; Barak-Erez and Waxman (n 34).

39. See Part III of this article.

40. Shachar, Yoram, Harris, Ron, and Gross, Miron, ‘Citation Practices of the Supreme Court: Quantitative Analysis’ (1996) 27 Mishpatim [Hebrew University Law Review] 119Google Scholar; Shachar, Yoram, ‘The Citation Space of the Supreme Court, 1950–2004’ (2008) 50 Hapraklit 29Google Scholar; Navot, Suzie, ‘Israel: Creating a Constitution – The Use of Foreign Precedents by the Supreme Court (1994–2010)’ in Groppi, Tania and Ponthoreau, Marie-Claire (eds), The Use of Foreign Precedents by Constitutional Judges (Hart 2013) 129Google Scholar. See generally Groppi, Tania and Ponthoreau, Marie-Claire (eds), The Use of Foreign Precedents by Constitutional Judges (Hart 2013)Google Scholar (containing fifteen country analyses and a general conclusion).

41. Barak-Erez, Daphne, ‘Judicial Conversations and Comparative Law: The Case of Non-Hegemonic Countries’ (2013) 47 Tulsa Law Review 405Google Scholar (including a quantitative analysis of judicial citations of Aharon Barak worldwide); Porat, Iddo, ‘The Use of Foreign Law in Israeli Constitutional Adjudication’ in Sapir, Gideon, Barak-Erez, Daphne, and Barak, Aharon (eds), Israeli Constitutional Law in the Making (Hart 2013) 151Google Scholar.

42. Shachar, Harris, and Gross (n 40) 152. Reliance on sources from civil law systems and international law was found to be consistently low, ranging from 1.3% (1948 and 1974) to 0% (6 years during this period of 47 years) for civil law and 0.7% (1972) to 0% (22 years) for international law.

43. Shachar, ‘The Citation Space of the Supreme Court, 1950–2004’ (n 40) 45–51.

44. ibid 60

45. ibid 65–66.

46. Navot (n 40) 139–41.

47. ibid 142, 145. Other Asian and Oceanian systems were New Zealand (0.75%), Singapore (0.5%), and Hong Kong (0.38%).

48. Searched through Nevo, Israel's main legal database <www.nevo.co.il> accessed 18 May 2019, and supplemented with manual searches of faculty websites of all Israeli law schools (four university faculties and ten colleges). A loose classification of ‘comparative’ was adopted: articles that referred to practices in several countries were all included, even when the analysis of foreign systems was marginal to the main topic of the study, or merely anecdotal. These searches identified 44 publications in English and 15 in Hebrew. This data should not be considered conclusive.

49. In the second and third places, 14 include analyses of Canadian law, and 12 refer to the UK.

50. Five of the 44 publications in English do not include a study of Israel.

51. South Korea is studied four times; Malaysia, Japan, and the Philippines are each studied once.

52. Basic Law: Human Dignity and Liberty (n 18); Basic Law: Freedom of Occupation (n 18).

53. Porat (n 41).

54. Navot (n 40) 143.

55. For a global study of this pattern see eg Overbeek, Henk W (ed), Restructuring Hegemony in the Global Political Economy: The Rise of Transnational Neo-Liberalism in the 1980s (Routledge 1993)CrossRefGoogle Scholar. For an analysis of this pattern in Israel, see eg Krampf, Arie, The Israeli Path to Neoliberalism: The State, Continuity and Change (Routledge 2018)CrossRefGoogle Scholar.

56. United Nations Data, ‘India’ (United Nations Statistics Division) <http://data.un.org/en/iso/in.html> accessed 18 May 2019.

57. For example, Israel joined the Asian Football Confederation (AFC) in 1954 but was excluded from the AFC in 1974. Israeli teams have participated in European club competitions since 1991, and its football association became a full member of the Union of European Football Associations (UEFA) in 1994. See Richard Williams, ‘Why does Israel's Football Team Play in Europe?’ (Sky News Online, 18 May 2015) <https://news.sky.com/story/why-does-israels-football-team-play-in-europe-10359083> accessed 18 May 2019. Israel joined the European Broadcasting Union (EBU) in 1957 (see EBU, ‘Members’ (European Broadcasting Union) <https://ebu.ch/about/members> accessed 18 May 2019) and is a consistent participant in the Eurovision Song Contest. Since 2000, Israel operates under an association agreement with the EU, replacing a cooperation agreement from 1975 (see Euro-Mediterranean Agreement [2000] OJ L147/3 <https://eeas.europa.eu/archives/delegations/israel/eu_israel/political_relations/agreements/index_en.htm> accessed 18 May 2019).

58. In addition to the working, albeit cold, peace treaty between Israel and Jordan, signed in 1994, several Gulf states have (re)opened political and commercial links with Israel, notably Qatar (including the establishment of trade relations in 1996 and the participation of Israeli gymnasts in the 2018 World Artistic Gymnastics Championship, albeit not under the Israeli flag), Abu Dhabi (full participation of Israeli athletes in the Judo Grand Slam in 2018), and, to a certain extent, Saudi Arabia (mostly covert, but for example reports on arms and technology deals between the countries appear in the press, and the usual ban on flights from Israel over Saudi territories was lifted in 2018 for Air India's flights between Mumbai and Tel Aviv). See eg Itamar Katzir, ‘Israel's Anthem Plays in Abu Dhabi for First Time as Judoka Wins Gold’ Haaretz (Tel Aviv, 28 October 2018) <www.haaretz.com/israel-news/israel-s-anthem-plays-in-abu-dhabi-for-first-time-as-judoka-wins-gold-1.6600967> accessed 18 May 2019; Chaim Levinson, ‘Report: Israel Authorized NSO's Sale of Spyware to Saudi Arabia’ Haaretz (Tel Aviv, 9 December 2018) <www.haaretz.com/israel-news/report-israel-authorized-nso-s-sale-of-spyware-to-saudi-arabia-1.6725044> accessed 18 May 2019.

59. The literature refers to all aspects of life, from its early pre-independence history to the present, permeating politics, culture, religion, and the economy. Among others, see Azaryahu, Maoz, ‘The Golden Arches of McDonald's: On the “Americanization of Israel”’ (2000) 5(1) Israel Studies 41Google Scholar; Rebhun, Uzi and Waxman, Chaim I, ‘The “Americanization” of Israel: A Demographic, Cultural and Political Evaluation’ (2000) 5(1) Israel Studies 65Google Scholar. See also eg Segev, Tom, Elvis in Jerusalem: Post-Zionism and the Americanization of Israel (Watzman, Haim tr, Metropolitan Books 2002)Google Scholar. Another example is a recent report in 2015 that focuses on the introduction of ‘Black Friday’ in Israel, even though ‘there's no Christmas for which Israelis need to be buying presents and no day-after-Thanksgiving holiday to spend hour-after-hour filling shopping carts’. This is considered to be one aspect of the rise of consumerism in Israel, which is itself viewed as ‘an American phenomenon’, viewed as the element that fuses the extremely riven nature of Israeli society. See David Rosenberg, ‘Shopping: The True Glue that Holds Israel Together’ Haaretz (Tel Aviv, 5 December 2015) <www.haaretz.com/opinion/.premium-1.689624> accessed 18 May 2019.

60. From the author's own sources. For the time being, the ranking list is currently restricted to staff members.

61. The best-known rankings originate in the US, such as the Washington and Lee ranking, the US News and World Report, and more recently, Google Scholar, leading to ‘meta rankings’ collating the lists. In some cases, rankings were adopted by government agencies as part of their evaluation of academic institutions, as in the case, formerly, of Australia. Other evaluation processes have led to the generation of rankings, such as in the case of the UK. For general overviews, see ‘Law Journals Ranking Worldwide’, World Encyclopedia of Law (2013) <https://lawin.org/law-journals-ranking-worldwide> accessed 26 March 2019 (focusing on ‘Ranking in Australia’ and ‘Washington and Lee Ranking’). For the ‘meta-ranking’ exercise of US law reviews, see Bryce Clayton Newell, ‘2016 Meta-Ranking of Flagship US Law Reviews’ (PrawfsBlawg, 4 April 2016) <https://prawfsblawg.blogs.com/prawfsblawg/2016/04/2016-meta-ranking-of-flagship-us-law-reviews.html> accessed 18 May 2019. For a post-2001 British analysis, see Campbell, Kevin, Goodacre, Alan, and Little, Gavin, ‘Ranking of United Kingdom Law Journals: An Analysis of the Research Assessment Exercise 2001 Submissions and Results’ (2006) 33 Journal of Law and Society 335CrossRefGoogle Scholar.

62. See eg Perry, Ronen, ‘The Relative Value of American Law Reviews: A Critical Appraisal of Ranking Methods’ (2006) 11(1) Virginia Journal of Law & Technology 1Google Scholar; Perry, Ronen, ‘The Relative Value of American Law Reviews: Refinement and Implementation’ (2006) 39 Connecticut Law Review 1Google Scholar. See also, in the context of Australian law journals, Professor Bowrey's report submitted to the Council of Australian Law Deans: Kathy Bowrey, ‘A Report into Methodologies Underpinning Australian Law Journal Rankings’ (8 February 2016) UNSW Law Research Paper No 2016-30 <https://ssrn.com/abstract=2734017> accessed 18 May 2019.

63. Brophy, Alfred L, ‘The Relationship Between Law Review Citations and Law School Rankings’ (2006) 39 Connecticut Law Review 43Google Scholar; Perry, Ronen, ‘Correlation versus Causality: Further Thoughts on the Law Review/Law School Liaison’ (2006) 39 Connecticut Law Review 77Google Scholar.

64. About 70% of the 146 journals ranked ‘A’ are located and edited in the US (this excludes journals that consider themselved ‘international’ and have a mixed editorial board). Seven of the journals published in Israel in Hebrew, out of twenty-five recognized, are likewise ranked A.

65. In a 2012 ranking list adopted by the Hebrew University Faculty of Law, no more than two of the thirty journals ranked ‘A’ (the highest rank) were not located in the US.

66. The others are the law schools at the National Taiwan University, the University of Hong Kong, Renmin University, and Shanghai Jiao Tong University. This is in addition to exchanges with Australian universities. See Hebrew University of Jerusalem Faculty of Law, ‘Student Exchange Programs’ (Hebrew University of Jerusalem, February 2019) <https://en.law.huji.ac.il/book/student-exchange-programs> accessed 18 May 2019.

67. Publications since 2007, in English, include inter alia Barak (n 29); Barak-Erez and Kothari (n 33); Cohen-Eliya and Porat, ‘Proportionality and the Culture of Justification’ (n 31); Peled, Roy and Rabin, Yoram, ‘The Constitutional Right to Information’ (2011) 42 Columbia Human Rights Law Review 357Google Scholar; Cohen-Eliya and Porat, Proportionality and Constitutional Culture (n 26); Roznai, ‘Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea’ (n 27); Stopler, ‘The Right to an Exclusively Religious Education’ (n 32); Shulztiner and Carmi (n 27); Anat Cabili and others, ‘Law and Emergencies: A Comparative Overview’ (The Minerva Center for the Rule of Law under Extreme Conditions, January 2016) <http://minervaextremelaw.haifa.ac.il/images/Emergency_Laws_and_Regulations_-in_the_United_States-_19-_Jan2016.pdf> accessed 18 May 2019; Roznai, Unconstitutional Constitutional Amendments (n 25); Weinshall, Keren, Sommer, Udi, and Ritov, Ya'acov, ‘Ideological Influences on Governance and Regulation: The Comparative Case of Supreme Courts’ (2018) 12 Regulation & Governance 334CrossRefGoogle Scholar. A few studies in Hebrew exist as well.