1. Introduction
Over two decades have passed since Israel's enactment of its two Basic Laws on Human Rights. Yet, at the same time, rabbis of Safed call on Jews to refrain from renting apartments to the city's Arab citizens;Footnote 1 inhabitants of Kiryat Malachi refuse to rent apartments to fellow Israelis of Ethiopian descent;Footnote 2 fifty city and community rabbis sign a manifesto declaring that Jewish law (the Halakhah) forbids the selling or leasing of apartments to non-Jews;Footnote 3 a bus company refuses to allow a campaign involving portraits of women to be displayed on its buses in Jerusalem, claiming it would provoke acts of vandalism by the ultra-orthodox residents of the city;Footnote 4 and a children's basketball game is cancelled because of the objection by a coach to playing against an opposing team that includes girls.Footnote 5
These examples illustrate that individuals within Israeli society claim and exercise ‘sole and despotic dominion’Footnote 6 over their private property in order to justify their reluctance to engage in a contractual relationship with individuals who belong to minority groups. In many cases, the exercise of such power in the private sphere results in exclusion from the public sphere. If no homeowner in Tel-Aviv is willing to rent an apartment to an Arab-Israeli student, this will raise a considerable obstacle for that student to attend the University of Tel-Aviv. The refusal to display women's pictures on buses contributes to their exclusion from the public sphere and prevents them from being given publicity equal to that of a male candidate when running an election campaign. If girls between the ages of 10 and 14 years cannot play basketball with boys, it means that they cannot participate in league games at all.
The examples also raise pressing questions regarding the legitimacy of limiting freedom of autonomy in favour of human rights protection. This tension goes to the heart of the issue of the application of human rights in the private sphere.Footnote 7 Is there such a thing as ‘freedom to exclude’? Is this freedom available to the individual, or has the requirement to advance equality (at least that of groups classified as ‘suspect’) also permeated private law in Israel, thereby barring this option?
With the 1992 enactment of two Basic Laws perceived to comprise Israel's (incomplete) bill of rights, the State of Israel underwent a ‘constitutional revolution’. In the following two decades, Israel has proceeded to develop a doctrine of indirect horizontal application of human rights in the private sphere. This development is part of the broader process of convergence between the private and the public spheres. However, whereas the notion of human rights is well developed within the courtroom, Israeli society has failed to deal with the problem of exclusion and to absorb notions of equality into its social consciousness. This is true also for Israel's legislators who, in recent years, have proposed several bills that promote and deepen the exclusion of minorities from the public sphere.
Attempts to incorporate human rights into private law have been met with practical difficulties on two main levels. First, at the level of the individual, protecting the right of one person often means limiting that of another. Second, at the community level, imposing obligations of equality at times contradicts structured notions of exclusion and discrimination. While the challenges at the private level are common to all societies, those at community levels are more unique to heterogeneous societies, such as that of Israel. The imposition of obligations of equality on religious communities is especially difficult in Israel because of the strong influence of the communities' leaders, who often do not see eye-to-eye with state-imposed equality policies. Indeed, as will be discussed below, experience shows that notwithstanding the existence of specific legislation targeted to deal with discrimination, there is still a chasm between the law set out in books and the law in action.Footnote 8
In this article I attempt to demonstrate the discrepancy between the formal constitutional situation in Israel and the social reality by exploring the phenomenon of social exclusion.Footnote 9 I argue that this phenomenon represents the failure of Israel's human rights Basic Laws to perform an integrative function. The article underscores the idea that while the Basic Laws function as a constitution in terms of normative supremacy and legal efficacy, they fail to fulfil an integrative function – namely, to bring about a ‘process by which the members of a polity develop a communal spirit and a collective identity that differentiates them from other polities’.Footnote 10 Furthermore, they have not succeeded in preventing the initiation of discriminatory legislation. As a result, the constitutional revolution did not realise its potential to trickle down to the private sphere. I argue further that the issue of the applicability of human rights to the private sphere should be taken out of the daily parliamentary political debate and determined at the constitutional level. Consequently, I propose that a future full constitution should include a specific clause that directly applies horizontal constitutional obligations – such as the prohibition of discrimination – to individuals and other non-state actors.
The next section describes the normative framework in Israel, which acknowledges the need to impose constitutional restraints on private actors. In stark contrast to the exclusion trend, the Israeli legal system has not abstained from challenging the dichotomy between the private and the public spheres. On the contrary, following Israel's ‘constitutional revolution’, it developed both through legislation and case law a doctrine of indirect horizontal application of human rights. Section 3 addresses the rationales and problems pertaining to the application of human rights to private law. Specifically, it points to the need to implement constitutional constraints in Israeli private law in response to the growing exclusion of disempowered social groups. Section 4 focuses on a particular exclusion case – namely, the power of admission committees of non-urban settlements to deny access to housing. Section 5 attributes the rise of exclusion cases in Israel – at least in part – to the failure of its Basic Laws to fulfil an integrative role. Section 6 suggests that this failure can be overcome only by incorporating a direct obligation to apply human rights in the private sphere in a future full constitution, drawing from the South African experience. Section 6 concludes.
2. Normative Background: Challenging the Dichotomy between Private and Public Spheres
In 1992, the State of Israel underwent a ‘constitutional revolution’Footnote 11 with the enactment of two Basic Laws protecting human rightsFootnote 12 – Basic Law: Human Dignity and LibertyFootnote 13 and Basic Law: Freedom of OccupationFootnote 14 (Basic Laws). This revolution brought to the fore the question of the application of constitutional human rights to private law.Footnote 15 Prior to this development human rights law had been promoted in Israel through the courts' interpretation of statutes that addressed both public and private law.Footnote 16 Since the Basic Laws achieved supra-legal constitutional status by virtue of the Supreme Court rulingsFootnote 17 (and not through a process of consolidation within a formal constitution), they raised the urgent question of whether the human rights obligations anchored in the Basic Laws apply also to private law.Footnote 18 Is the rationale underpinning human rights confined solely to protecting the individual against governmental violations, or are the rights protected by the Basic Laws applicable also to violations caused by private individuals and non-state actors?Footnote 19
As the specific provisions of the Basic Laws expressly address the legislature and governmental officials, it is clear that their main purpose is to regulate the relationship between the government and the individual citizen.Footnote 20 However, constitutional rights in Israel also affect the interaction between individuals among themselves. This process occurred through extensive legislation attempting to strike a balance between competing human rights of individuals (as will be addressed further below), and through the indirect application of constitutional human rights to private law.
Several laws in Israel incorporate human rights obligations in the realm of private law.Footnote 21 Under these circumstances, in which the legislation regulates the subject matter, the question of the application of rights in private law is already addressed, and the only issue to be considered is the interpretation and implementation of the legislation.Footnote 22 However, many difficult questions relating to discrimination, especially where housing is concerned,Footnote 23 have inevitably been left unresolved.Footnote 24
As for those areas not covered by specific legislation, the Israeli Supreme Court has adopted the ‘indirect horizontal application’ model, developed by the German Constitutional Court (known as the Drittwirkung doctrine, which literally means ‘third party effect’).Footnote 25 The Drittwirkung doctrine allows the courts to consider constitutional provisions and human rights in the interpretation of private law.Footnote 26 This is accomplished through the interpretation of provisions, which include mandatory rules of law that constitute part of the ordre public, such as good faith, public good, good morals, and reasonableness. The Drittwirkung doctrine has proved to be influential and has been adopted by several courts.Footnote 27
The indirect horizontal application model was adopted by the Israeli Supreme Court in a precedent-setting ruling which compelled a burial society to allow a man to inscribe a tombstone for his wife with non-Hebrew characters despite the regulations that require tombstone inscriptions to be in Hebrew.Footnote 28 The Court reasoned that the concept of human dignity, having been interpreted to apply also to the dignity of the deceased, permeates the notion of public order and is an inherent component of contract law.Footnote 29 Therefore, it was held that the contractual obligations between individuals in the private sphere in general, and the concept of ‘public order’ in particular, should be interpreted in light of the fundamental principles of the entire legal system, which require in turn achieving a balance between the rights of the deceased and his family and the burial society's right of contractual freedom.Footnote 30
Implementing human rights obligations in the private sphere is part of a wider process that took place in Israeli law, leading to the gradual dissolution of the dichotomy between the public and private spheres.Footnote 31 This process (spanning the last three decades) is illustrated by the recognition of hybrid bodies – namely, bodies that are formally part of private law but possess public characteristics, which justify imposing on them public law obligations.Footnote 32 A similar process occurred with regard to the characterisation of property. Israeli law recognises continuity between private property, to which ‘sole and despotic dominion’ applies, and public property, which is common to all.Footnote 33 Property may be privately owned but nonetheless have characteristics that require its owner to allow a certain right of access to individuals.Footnote 34 The dominant perception is not necessarily the libertarian proprietary perception, which presupposes entitlement and long-term validity of ownership. A rival perception is that of socio-public property for which the justifications for private property are more communitarian.Footnote 35 Based on the social perception, the concept of property must not only be understood in its libertarian, autonomous context as reflecting economic value, but also in its broader social context as reflecting a set of other values such as freedom, justice and mores.Footnote 36 Furthermore, there is a positive ‘judicial attitude’ among the Israeli courts, which promotes recognition of reciprocal obligations in private law.Footnote 37
Israeli law is seen as a worthy comparative model for many countries that have recently been grappling with the application of human rights in private law.Footnote 38 Given Israel's impressive legal developments, especially following the constitutional revolution, one may expect that values such as equality and collaboration would be internalised in the private sphere. However, there is a vast gap between the constitutional and the social situations. Formally, the constitutional revolution affects the private sphere. Yet, in practice, the impact of the constitutional developments remained predominantly limited to the public sphere.Footnote 39 In the following section I will describe the obstacles that hinder the attempt to realise constitutional achievements in Israel's social reality.
3. Applying Human Rights to Private Law: Rationales and Problems
The model of direct horizontal application of human rights poses a complex set of challenges for legal scholars.Footnote 40 The original and fundamental purpose of human rights is to protect the individual against the omnipotent state with its vast powers of detention, expropriation and censorship, and to mitigate the imbalance between two unequal parties: public authority and the individual. Thus, human rights are traditionally conceived as rights and freedoms vis-à-vis the state and other public authorities (as applying only vertically) and not as obligations imposed within the context of interpersonal relationships (known as ‘horizontal’ application).Footnote 41
However, there are many strong reasons in favour of blurring the distinction between the private and the public spheres.Footnote 42 From the point of view of constitutional theory, if constitutional norms are perceived as the foundation of our legal system, and human rights are perceived as values granted to all human beings, they should not be set aside in the private sphere.Footnote 43 Moreover, recognising the obligation to provide equality to structurally discriminated groups in the public sphere, while tolerating discrimination in the private sphere, merely deepens the historical discrimination against the respective groups.Footnote 44 Acknowledging basic rights in the public sphere of interaction without granting them adequate protection in the private sphere sets back the struggle for rights protection. This is especially troubling considering the growing control that private entities hold over public resources. As the power of private entities continues to grow, individuals' rights are often subjected to systematic infringement.Footnote 45 As will be demonstrated, implementing human rights in private law encounters problems at both the individual and the community levels.
3.1. The Individual Level
Defending the right of an individual vis-à-vis another individual may result in a violation of the rights of the latter, and may at times entail imposing a positive obligation on that individual. This is an inherent tension underlying the question of the application of human rights in private law, which is not unique to Israel.
‘[I]n a well-ordered – and thus democratic – society, the development of private law through legislation is in principle compatible with individual freedom since individuals can be thought of as participating therein via a representative legislature’.Footnote 46 Therefore, one might think that specific legislation that regulates various areas in private law might help to resolve the problem of exclusion. However, Israel's experience does not support this conclusion. Labour law legislation, for example, forbids discrimination in all respects including hiring employees, determining remuneration and working conditions, and circumstances of dismissal.Footnote 47 In addition, since 2008 there has been an Equal Employment Opportunity Commission, which is in charge of enforcing these laws.Footnote 48 Nonetheless, the findings of a survey show that 37 per cent of job seekers feel that they were not hired for reasons which include their gender, age, motherhood, Arab ethnicity, religiosity, or participation in army reserve service.Footnote 49 This is related to difficulties in enforcing the rules, which can be attributed, inter alia, to the absence of a coherent model to address the problems involved in proving a discrimination claim in the workplace.Footnote 50 Another reason is the failure of Israeli society to internalise principles of equality.Footnote 51
A similar issue arises with regard to the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000.Footnote 52 The law was designed to prohibit the ability of private entities to refuse to provide services or to deny access to their businesses to individuals based on discriminatory grounds.Footnote 53 This phenomenon was especially prominent in the ‘selection’ process held by private clubs, which often resulted in denial of entry to young people with a stereotypical ‘Mizrahi’ appearance.Footnote 54 Indeed, ten years after the enactment of the law, research showed that 69 per cent of the total number of claims and 79 per cent of the claims against club owners had been submitted by Mizrahi people.Footnote 55 Out of the total number of discrimination claims submitted on the grounds of Mizrahi appearance, 54 per cent were accepted.Footnote 56 However, the praxis of club selection has not ceased to exist.Footnote 57
In an attempt to tackle the problem of exclusion, especially of women, in both the public and the private spheres, several bills have recently been proposed by Knesset members. These include, for example, a proposal to define separation between men and women as a form of discrimination, a prohibition against the separation of men and women in public transport, and an amendment to the Criminal Code proposing to criminalise acts of exclusion of women from the public sphere.Footnote 58 In light of the expanding phenomenon of exclusion of women from the Israeli public sphere, these initiatives are indeed called for. However, in order to uproot such a social malady, it is not enough to make sporadic legislative amendments.Footnote 59 Rather, it is obvious that when dealing with issues that touch upon society's fundamental values, there is need for reform at the constitutional level.
3.2. The Community Level
Owing to Israel's multicultural and heterogeneous population, the incorporation of human rights obligations into private law is met by strong opposition also at the community level.Footnote 60 Israel's Jewish population is composed of secular, religious and ultra-orthodox groups. Another distinct grouping is composed of ‘new’ immigrants, emigrating especially from Ethiopia and the former Soviet Union. Jewish society is further divided into various streams and includes the Ashkenazi and Mizrahi (or Sefardi). Minorities in Israel are also not monolithic and are divided primarily into the following groups: Muslim Arabs, Christian Arabs, Druze and Bedouins.Footnote 61 Further compounding the issue is the phenomenon of recent years of asylum seekers from places such as Sudan and Eritrea, who settle primarily in South Tel-Aviv's poverty-stricken neighbourhoods.Footnote 62 In this extremely heterogeneous setting, the right to property is at times abused as people make use of their property ownership to exclude others, not always on their own initiative but rather in response to the social pressure of the community to which they belong.Footnote 63
Exclusion at community level has become especially salient in Israel in the field of housing, which is a highly politicised issue in Israeli society.Footnote 64 The issues of housing and land allocation generate considerable tension in relation to Israel's constitutional ethos as a ‘Jewish and democratic state’.Footnote 65 In addition, it is one of many examples of Israel's problematic response to the ‘multicultural dilemma’ it has faced in recent years.Footnote 66 In public law, the struggle for equality in land allocation began years ago,Footnote 67 culminating in the Qaadan case.Footnote 68 In this controversial precedent-setting judgment, the Supreme Court ruled that the Israel Land Administration for Community Housing (ILA)Footnote 69 must adhere to the principle of equality in allocating land, be it directly or via a mediating party.Footnote 70
Despite this landmark decision, exclusion in land allocation and housing in Israel is still a reality in Israeli society. This is especially prevalent in the private sphere because of the absence of legislation and case law that impose considerations of equality on private land transactions. In contrast to established global legal standards,Footnote 71 Israel has no regulation forbidding discrimination in housing, although from time to time members of the Knesset initiate private bills which are not supported by the government.Footnote 72 Because of the lack of specific legislation, the only normative basis on which to tackle discrimination in housing is Basic Law: Human Dignity and Liberty, which – according to Supreme Court jurisprudence – anchors the right to equality.Footnote 73 The argument in favour of individual autonomy is strong in the context of housing, as it involves personal property – namely, non-convertible proprietary assets. These are identified with and are perceived as a reflection of the owner's personality.Footnote 74 Thus, although the courtsFootnote 75 and the literatureFootnote 76 emphasise the social dimension of property, it seems that the traditional approach in Israel – according to which ‘a private citizen is entitled … to drive anyone away from his property, regardless of contrary justification’Footnote 77 – is still firm and valid in the constitutional age of Israel.
On an informal level (not backed by state law) influential rabbis have recently started to issue calls urging Jews to refrain from renting or selling homes to non-Jews. Informal community pressure plays a significant role in enforcing such calls.Footnote 78 On a personal level, individuals may not mind to whom they rent their apartment as long as they are paid properly. However, when rabbis exercise their authority to urge them to refrain from engaging in real property contracts with individuals belonging to certain groups, this creates external pressure to which the individual property owner often succumbs.
The following analysis of the phenomenon of exclusion sheds light on the discriminatory consequences that result from the lack of constitutional restraints on the private sphere.
3.3. Exclusion Cases: The Need to Implement Constitutional Constraints in Private Law
Instances of exclusion infringe the right of equality in its constitutional, or substantive, sense as opposed to its administrative sense. Constitutional equality, or ‘the principle of non-discrimination in the substantive sense’, concerns the substantive autonomous right not to be discriminated against on the grounds of belonging to a certain group.Footnote 79 The classic grounds of prohibited constitutional discrimination are race, nationality, religion and gender.Footnote 80Administrative equality, or the ‘principle of non-discrimination in the procedural sense’, addresses the administrative obligation to treat similar cases (those cases with no relevant difference to distinguish between them) in a similar manner.Footnote 81
While it has been argued that the distinction is not crucial in assessing a state authority's discretion,Footnote 82 it is certainly significant in the context of the ‘privatisation’ of the right to equality (that is, when applying the right to private law). It seems almost intuitive that a private individual is entitled, for example, to discriminate between her various lessees by charging different rates or by refusing to rent her apartment to a stranger simply because she prefers to rent it to a friend. This reflects an extent of tolerance that we are willing to afford individuals in their personal relations to treat similar cases in an inconsistent manner. However, our intuition is different regarding the refusal of a landlord to rent his or her home to an Israeli Arab,Footnote 83 an Israeli from Ethiopian descent or a homosexual, as the latter examples display a refusal that is based on group affiliation.
The basic intuition described above is explained by philosophical theories, which attach importance to personal preferences. These theories allow individuals to assign special weight to their personal goals.Footnote 84 Re'em Segev attempts to provide a plausible account of the concept of wrongful discrimination, by proposing a theory consisting of two components: ‘the moral significance conception’, which condemns the allocation of a benefit that is not supported by a morally significant fact (which is considered a valid reason); and the ‘distributive justice conception’, according to which ‘wrongful discrimination consists of allocating a benefit in a way that involves distributive injustice’.Footnote 85 The first component, the moral significance conception,Footnote 86
requires an agent to take account of a (non-moral) fact that is morally significant (that constitutes a valid consideration) and forbids her to take account of a fact that is morally insignificant (an invalid consideration) …Footnote 87According to this account, an action might constitute wrongful discrimination if it is not supported by a (valid) reason, either because it involves a moral mistake, for example, the view that the skin color of a candidate is a fact that is morally significant in itself (in the typical context in which it is not), or a non-moral mistake, for example, the view that blacks are typically less talented than whites in a certain respect (where this is not the case).
According to the distributive justice conception, wrongful discrimination consists of distributive injustice: that is, denial of a benefit to a person who is worse off.Footnote 88
Coupling the two conceptions, Segev argues that the core of wrongful discrimination – which is doubly, and therefore especially, wrongful – is a violation of both the moral significance conception and of the distributive justice conception of discrimination. Nevertheless, discrimination also consists of a violation of one of these conceptions, without the other.Footnote 89
This article deals with exclusion according to typically morally insignificant criteria: invalid considerations, such as gender or race. Exclusion by utilisation of private property rights is usually directed against members of weakened groups, for which the outcome is exclusion from the relevant public sphere. Thus, even if, for present purposes, we try to avoid the question of whether private agents are allowed to have a wider arsenal of ‘morally significant’ facts than public agents, we cannot overlook the problematic outcomes that exclusion produces with regard to distributive justice.
One may claim that instances of exclusion are inevitable in a multicultural society such as Israel. Discussions of the scope of tolerance and the extent to which we should accept structural discrimination that is inherent to some cultures are beyond the scope of this article.Footnote 90 As explained, the article deals with extreme cases of exclusion, which lead to violation of both the moral significance and the distributive justice conceptions of discrimination. Thus, while Israel recognises the need of certain communities to differentiate in certain cases,Footnote 91 with regard to the phenomenon dealt with here egalitarian principles must take precedence.Footnote 92 However, in most cases the demand for equal treatment falls on the shoulders of individuals. This in turn provokes, once again, the discussion about the proper implementation of human rights in the private sphere and the ‘unconstitutional mood’ that has spread through Israeli society, notwithstanding the constitutional revolution. At the community level, the ‘unconstitutional mood’ is even more unreasonable when the pressure to enforce exclusionary social norms is not placed directly just on individuals who belong to the community but also on third parties, which are seemingly external to the respective community.
In a recent case, the Yerushalmim movement (a movement committed to upholding Jerusalem as a pluralist city) attempted to present a bus advertising campaign with the slogan ‘Jerusalem Women: Nice to meet you’. The bus advertisements displayed photographs of Jerusalem women, both religious and secular, promoting the message that women must not be excluded from the city's public sphere. The bus company and the company holding the franchise for advertising on the buses refused to allow the campaign to be launched, claiming that pictures of women would provoke acts of vandalism on the buses by the Haredi (ultra-orthodox) residents of the city. As they were private companies (so the companies claimed)Footnote 93 it was their prerogative to do as they saw fit with their own property.Footnote 94
In different circumstances, the companies might have preferred to profit from the campaign, but they chose to forego profits out of fear that the campaign posters and the buses would be vandalised by opposing ultra-orthodox extremists. The companies' decision is an unfortunate display of self-effacement rather than of tolerance. Moreover, it demonstrates that Israeli constitutional notions, as well as the notion of social responsibility in the private sphere, have not been internalised by private entities.Footnote 95
This reality is also backed by laws that – notwithstanding the fact that they prohibit discrimination – nonetheless enable communities to maintain their homogenous character, at the expense of exclusion of social groups that signify the ‘Other’ within Israeli society. This legal framework, which grants non-urban communities in Israel a wide discretion to refuse acceptance of new members, will be discussed in the following section.
4. Admission Committees to Non-Urban Settlements: The Power to Deny Access to Housing
Israeli law currently grants community settlements in non-urban areas a wide margin of discretion to determine the character of their settlement autonomously.Footnote 96 As will be discussed below, the discretion to accept and reject candidates who wish to build their homes in these communities is subject to a prohibition against discrimination on suspect grounds. Nonetheless, owing to its inclusion of vague dismissal criteria, it has been claimed that the law enables the exclusion of individuals belonging to marginalised social groups on highly subjective grounds.
In March 2010, the Israel Land Council approved Directive No 1195.Footnote 97 The Directive includes a closed list of criteria by which to assess the eligibility of candidates who wish to purchase rights to lease land in agricultural and communal localities. The Directive restricts the grounds for refusing to accept new candidates in agricultural and communal localities with up to 500 families. In localities with more than 120 families, a refusal may be based on avoiding harm to the daily life of the community. In smaller localities, refusal to accept a new candidate according to this criterion is allowed only if the new candidate is not suited to the social life of the community. Such refusal may be withdrawn only after the candidate has undergone professional examinations. The Directive introduced an additional criterion whereby a candidate may be rejected if his or her acceptance would result in the creation of a sub-community within the locality in a way that would substantially harm the character of the community. The Directive includes an appeal mechanism. The Appeal Committee's recommendation is submitted to the head of the ILA, which then decides whether to accept the recommendation.Footnote 98
Eligibility criteria for membership of agricultural and communal localities is not left solely to regulation by executive directives, and has been further regulated by the law. In March 2011, the Cooperative Society Ordinance was amended in order to regulate the function of Admission Committees in agricultural and communal localities in the Negev area and the Galilee.Footnote 99 The law sets several conditions upon which Admission Committees may refuse to accept a new candidate.Footnote 100 These include a minimum age limit (if the candidate is a minor), economic ability (if the candidate lacks the financial ability to build a house within the time period provided for in the allocation of land agreement), suitability to the social life of the community (based on professional examinations), and intention to settle and live in the community.
The law includes an explicit prohibition against rejecting a candidate based on grounds such as race, religion, gender, nationality, disability, personal status, age, parenthood, sexual orientation, political view and country of origin.Footnote 101 In addition, it establishes an appeal mechanism to which rejected candidates or the local community may appeal against the Admission Committee's decision. The decision of the Appeals Committee that heard the appeal is subject to review by the Administrative Courts.Footnote 102
The enactment of the new amendment was critically received, especially within the Israeli human rights community. The fundamental critique is that notwithstanding the prohibition against discrimination, the law ultimately gives Admission Committees almost full discretion to accept or reject candidates who come before it. By upholding the Committees' permission to reject candidates on vague grounds such as ‘unsuitability to the social life of the community … or the social and cultural fabric of the town’, the law legitimates and perpetuates the exclusion of individuals belonging to marginalised social groupsFootnote 103 and reaffirms the existing allocation of land.Footnote 104 In addition, the law authorises Admission Committees to adopt criteria determined by individual community towns based on their ‘special characteristics’. These include communities that define themselves as having a ‘Zionist vision’Footnote 105 – a criterion which obviously paves the way to refusal of individuals belonging to non-Zionist social groups.
As discussed above, individual freedom to decide to whom to rent or sell one's home enjoys considerable legitimacy in Israel. However, the case of communities, which request wide discretion to decide who can join them, involves a more complex set of considerations, which should be taken into account. This is principally because these communities live on and profit from public lands. Thus, refusal of membership (even when based on justified grounds) has the potential to create discriminatory outcomes, which affect the Arab minority especially, and which go beyond the specific rejection at hand and affect society as a whole.Footnote 106 In the following section I argue that such discriminatory outcomes, and similar outcomes in other areas discussed in the examples presented in the article, are made possible – at least partially – because of the failure of the Basic Laws to fulfil an integrative role.
5. The Integrative Role of a Constitution
The integrative function of a constitution refers to the extra-legal effects of a legal object,Footnote 107 which in our context is represented by the Basic Laws, specifically the two that concern human rights. The normative supremacy of the norms enshrined in a constitutional instrument is achieved by the sheer fact that the norms are incorporated in the text of the constitution. However, the achievement of an integrative effect is an actual process by which members of a polity are transformed into a value-based community.Footnote 108 Legal efficacy of a constitutional instrument is a necessary condition for the success of the integration process, but it is by no means sufficient. Thus, for example, Dieter Grimm holds that the Weimar Constitution functioned as a constitution in the normative sense but was a complete failure in terms of achieving social integration.Footnote 109 As integration is a social process, a constitutional instrument can facilitate its realisation, but cannot determine it.Footnote 110
The question of why some constitutions produce an integrative effect where others fail is, of course, difficult to answer. Grimm proposes some abstract suggestions. The first touches upon the symbolic power of the constitution instrument. In this sense, a constitution may have an integrative effect only if it stands for something beyond a legal text, and reflects society's core values and aspirations.Footnote 111 This is linked to the second factor, namely, the constitution's perception among society. The degree of integration achieved is dependent on the way in which the constitutional instrument is perceived by society and whether it is perceived as a text which constitutes social identity.Footnote 112 Third, in order to bestow a sense of collective identity, the political system established by the constitutional instrument must be perceived as ‘good’ or ‘just’.Footnote 113 Fourth, the ability to exert authority is also an important factor. A constitution which is weakly enforced may fail to confer ‘identity-building power’.Footnote 114 Finally, the circumstances under which the constitution is created may play a significant role in its ability to integrate. The American ‘constitutional moment’ is, of course, the paradigmatic example of identity-building circumstances. However, the new Swiss Constitution, which came into force in circumstances that cannot be considered unique, has in fact achieved considerable integrative effects.Footnote 115
The fundamental rights enshrined in the constitutional instrument, according to Grimm, ‘are most conducive to producing integrative effects’.Footnote 116 To say that a right is fundamental means, first and foremost, that it is permissible to infringe the right only in exceptional circumstances. To this end, the right is enshrined in a constitutional document and protected from standard amendment procedures and potential curtailment attempts through legislation or executive orders.Footnote 117 However, the fundamental rights enshrined in the constitution also have the potential to deepen and embed respect for rights within the society it serves.
Israel's human rights Basic Laws have a constitutional status. They create the set of rules that regulate political power and set out fundamental values. However, as the exclusion phenomenon reflects, the notion of equality has not been absorbed within society. Moreover, as discussed above, specific legal norms which are drafted in accordance with the Basic Laws also fail to incorporate respect for equality in private interactions. In the following section I propose an explanation for the failure of Israel's Basic Laws to fulfil a constitutional integrative function.
5.1. Why the Basic Laws Fail to Assume an Integrative Function
The Basic Laws in Israel function as a constitution,Footnote 118 notwithstanding the rejection by some Knesset members which represented the opinion of segments of Israeli society.Footnote 119 During the twenty or so years that have passed since the constitutional revolution, the Supreme Court has reviewed several laws in light of the principles set out in the Basic Laws. To this day, it has invalidated 12 laws, thus indicating judicial restraint, at least in quantitative terms.Footnote 120
The Israeli Basic Laws therefore function as a constitution in terms of normative supremacy and legal efficacy, but have failed to obtain legitimacy or fulfil an integrative role in Israeli society.Footnote 121 In terms of procedure, a fundamental challenge can be attributed to the democratic deficiency from which the judicial organ is perceived by some to suffer. As a non-elected institution, the Supreme Court's praxis of retroactively acknowledging the supremacy of the Basic Laws, and its ability to invalidate unconstitutional laws, are deemed to be bluntly anti-democratic.Footnote 122 The substance of the Basic Laws is also subject to critique because of their incompleteness: many fundamental rights are not explicitly mentioned,Footnote 123 and important procedures, such as that for amending the Basic Laws, are missing.Footnote 124 Because these constitutional lacunae entail grappling with ideological questions concerning the essence of the state, the result has been a public sense of delegitimisation.Footnote 125
Gideon Sapir ponders the following question in the opening of his book, The Constitutional Revolution: ‘Why can't the average Israeli describe the constitutional situation in Israel, or form a grounded opinion concerning the direction we, as a society, should aspire to?’Footnote 126 One explanation he proposes is that for years the concept of a constitution played an insignificant role in the Israeli discourse. When the ‘constitutional question’ finally gained momentum in the 1990s, the discussion still maintained a low profile in the public awareness. Once the issue reached the headlines, coverage focused mainly on the response of Knesset members to what they perceived to be an overreaching step on the part of the judiciary into the other branches. Thus, the prevailing discourse centred around the power dynamics between the different branches, rather than on the significance of the constitution itself.Footnote 127
Sapir's explanations for the ignorance of the Israeli public regarding the constitutional question can be attributed to the failure of the constitution to fulfil its integrative role and consequently to the failure of the Israeli society to internalise values of respect, dignity and equality. Aeyal Gross supports this conclusion and adds that because the Basic Laws were enacted with little public involvement, and without substantive debate among the Knesset members, ‘Israel's so-called “constitutional revolution” unfolded … without its citizenry sensing that they were participating in the formulation of new basic rules for the polity’.Footnote 128 Thus, when evaluating the integrative function of the Basic Laws according to the above considerations proposed by Grimm, the absence of their symbolic power becomes vividly apparent. As analysed in depth by Menachem Mautner,Footnote 129 the constitutional revolution was, to a large extent, the product of a power struggle between the declining Mapai party, which reigned over Israel's politics and culture during the first three decades following the establishment of the state, and the rise of counter-hegemonic groups that were hitherto oppressed, such as Mizrahi Jews. During the 1980s and 1990s the Supreme Court became a substitute arena for liberal elites which lost their exclusive control in the Knesset and in the government. Moreover, as these elites promoted a neoliberal ideology, the human rights Basic Laws and the jurisprudence developed under them put the focus mainly on civil and political rights. Consequently, some segments of society perceive the revolution as ‘unjust’, or at least deficient, with regard to the protection of social and economic rights. Therefore, although the Basic Laws – retroactively declared ‘high law making’– function with some efficacy in the strict legal sense, they lack the integrative power to create solidarity and a sense of collective identity.Footnote 130
6. The Need for Direct Horizontal Application of Human Rights
The failure of the Basic Laws to fulfil an integrative role is also evident in the fact that they lack the social legitimacy to block legislation that preserves and further promotes the exclusion of minorities. This is a fundamental social malady in Israeli society, which persists despite court rulings that attempt to enforce respect for human rights and the inclusion of minorities.Footnote 131 Recent bills passed by the Knesset, which threaten to exclude minorities and weakened groups from the Israeli public sphere, support this claim.
An illustrative example is the passing in 2011 of Amendment 40 to the Budget Foundations Law, known as the ‘Nakba Law’. ‘Nakba Day’ (in Arabic it means literally ‘the day of catastrophe’) is commemorated on Israel's Independence Day in memory of the displacement of Palestinians during the 1948 war. The amendment authorises the reduction of state budgets or support for activities that stand in opposition to the principles of the state.Footnote 132 It further states that the Minister of Finance may employ various grounds to impose monetary sanctions on any organisation or body in receipt of funding or support from the state, one such ground being if the body ‘makes an expenditure which, in essence, … marks Israel Independence Day or the day of the establishment of the State as a day of mourning’.Footnote 133 The amendment was aimed specifically at preventing financial support for Nakba Day events conducted in the Arab sector by bodies in receipt of money from the state. It thereby infringes the right of freedom of expression and aims to exclude the national Arab counter-narrative from the public sphere.Footnote 134
Another example is the proposal to enact Basic Law: Israel – the Nation-State of the Jewish People. The bill defines Israel as ‘the national home of the Jewish people’, and uniquely of the Jewish people.Footnote 135 Through this the bill seeks to legally subordinate Israel's democratic character to its Jewish character. Furthermore, the original version of the bill stipulated that Arabic would no longer be an official language of the state (rather a ‘special status’ languageFootnote 136). The bill also authorises the establishment of separate communal settlements for members of one religion or nationality.Footnote 137 The fact that these forms of exclusion are proposed within the framework of a Basic Law demonstrates that ‘unconstitutional’ contents do not only make their way into regular legislation, but also into constitutional legislation.Footnote 138 Because of their weak legitimacy basis, proposals to enact or amend Basic Laws are often used as rhetorical devices by parliamentarians seeking to accord with timely political trends. Both the Nakba Law and the proposed Basic Law have met with fierce criticism from within the government as well as from the opposition and civil society organisations.Footnote 139 However, they do enjoy significant public support.Footnote 140
Yet another example is a recent bill which proposes to grant priority to veterans of the Israeli army and civil service in respect of access to state resources. The benefits enumerated in the Benefits Bill for those who Contribute to the State include priority for student housing and advantages in state tenders concerning allocation of land for residential housing.Footnote 141 With respect to the private sphere, the bill calls for the amendment of the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000, to state explicitly that showing a preference for veterans in offering employment is not to be regarded as prohibited discrimination.Footnote 142 Even assuming that service in the military should grant veterans benefits in some respects, the bill enables military service to operate as a cover for legitimising private discrimination against Arabs in employment and services.Footnote 143 Since the military's declared policy is not to draft Arabs into military service, the bill will de facto enable restriction of entry to those who contributed to the state through military or civil service, thus maintaining private places free from Arabs.Footnote 144
As the above bills indicate, the exclusion of minorities in Israeli society, especially of the Arab population, is not only tolerated but proactively promoted by the legislature. Given that exclusion is manifested explicitly in public law legislation, it is no surprise that it is barely restricted in the private sphere. Moreover, there is no doubt that the current structure of Israel's constitution, in which Basic Laws are enacted separately and are motivated at times by short-sighted political interests,Footnote 145 cannot offer a solution for the problem of exclusion and call for urgent constitutional reform.
In another article I argue that Israel could have acknowledged the Declaration of the Establishment of the State of Israel as its constitution based on its ‘constitutional’ characteristics.Footnote 146 Moreover, it should have done so since, unlike the Basic Laws, the Declaration of Independence suffers neither the substantive nor the procedural problems identified, and possesses integrative potential. However, two opportunities to do so were missed. The Basic Laws that currently function as a constitution should be replaced only by a full constitutional project which explicitly extends the applicability of human rights to the private sphere by legislating that the constitution applies to individuals as well as to the government.Footnote 147
Given Israel's social environment and the constant power struggle between the legislative and judicial branches, the only way to overcome exclusion supported by law is by entrenching the application of human rights in the private sphere in a comprehensive constitution. Thus, it will be taken out of the daily parliamentary political debate. This is not to say that the adoption of a model of direct horizontal application of human rights in a constitution is a ‘magic solution’, after which Israeli society will be rid of exclusion and discrimination. However, based on the reasonable assumption that a full constitution – as distinct from the Basic Laws – will not be enacted by the Supreme Court but by the Knesset in a democratic process, it will not suffer from the severe legitimacy crisis that affects the human rights Basic Laws. Therefore, the obligations incorporated in it stand a better chance of fulfilling an integrative function and of influencing the private sphere. Such a model of direct horizontal application is adopted in the constitutions of South Africa,Footnote 148 Switzerland,Footnote 149 and India.Footnote 150 Because of its broad scope of influence, I will now turn to discuss briefly the South African model and its relevance to the Israeli case.
6.1. The Constitution of the Republic of South Africa: Direct Horizontal Application of the Bill of Rights
South Africa's constitutional order has been described as conveying what is perhaps the ‘strongest stance of resistance to public/private divides in the law’.Footnote 151 Influenced in part by the Realist, Critical Legal Studies, and Feminist critiques of the public/private divide, the post-apartheid constitution embodies a move towards constitutionalisation of the entire legal order.Footnote 152 This is manifested in the application of the Bill of Rights to all law (section 8(1)); in the stipulation in the Bill that South African courts must construe statutes and develop private law doctrines in harmony with its ‘spirit, purport, and objects’ (section 39(2)); and in the Bill's direct binding of private, non-state actors (section 8(2)).Footnote 153 Under the direct application model adopted in the final Constitution of 1996, a victim of a human rights violation may file a claim against a non-state actor in the course of a private interaction, based directly on a provision of the Bill of Rights.Footnote 154
Opposing the sharp distinction between private and public, the South African Constitution further embodies the rejection of the horizontal/vertical rights divide. As illustrated in the US Constitution and in those following its pattern, rights such as equality rights bind the public authorities exclusively. In contrast, the sphere of horizontal relations between individuals themselves and individuals in relation to non-state actors is left beyond the scope of application of equality rights. The infringement of rights in the private sphere is thereby not subject to constitutional guarantees. The South African Constitution stands out also in this respect by applying the prohibition on discrimination to the private sphere.Footnote 155
The South African Constitution also includes a proactive obligation to enact national legislation to prevent or prohibit unfair discrimination (section 9(4)).Footnote 156 The imposition of positive state duties to reduce discrimination reflects the understanding that inequality is embedded in the social structure, and therefore entails the proactive involvement of the government.Footnote 157 This substantive concept of equality conveys the purpose of the Constitution, namely the ‘creation of a non-racial and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights’.Footnote 158 Considering the role of law in facilitating the institutionalisation of racial oppression in the apartheid regime, it is hardly a surprise that the Constitution privileges law as a tool for overcoming historical injustices.Footnote 159 The Constitution furthermore recognises that it is not sufficient to eliminate these forms of injustice from public life, but that they must also be rooted out of the private sphere.Footnote 160
A different question, of course, is how these ideals envisioned in the Constitution have succeeded in transforming private law and the South African courts' jurisprudence. Focusing on contract law, Meiring argues that since 1994 courts have demonstrated a reluctance ‘to rethink contract in terms of the new constitutional scheme’.Footnote 161
The South African contract law shaped in the nineteenth century was strongly influenced by the will theory,Footnote 162 which affords primacy to the freedom of contract concluded between two free and rational parties. The law of contract was perceived as an objective, value-neutral system which adheres solely to its internal logic, by so maintaining a distinct line between the private realm of contract law and the social reality in which the contract was concluded.Footnote 163 On the whole, concepts such as ‘fairness’ or ‘bona fides’ were not considered to have an independent meaning beyond their existence in traditional contract law rules.Footnote 164 Although the notion of ‘public policy’ constrained contractual autonomy (thus a contract that was found to run counter to public order would be void, as it was illegal at common law), this concept was similarly interpreted narrowly.Footnote 165 Surprisingly perhaps, the post-1994 case law, according to Meiring, still reveals conformity with the doctrine of pacta sunt servanda, at times overriding the enforcement of constitutional rights through contract law.Footnote 166 That stated, in a recent ruling the South African Constitutional Court held that the doctrine of pacta sunt servanda should be circumvented by considerations of fairness and reasonableness.Footnote 167
In an attempt to explain the courts' reluctance to develop contract law in light of the new and progressive constitutional scheme, Meiring places the spotlight on the dominance of legal positivism within the South African legal community. Thus, the legal methods employed in South African law have been traditionally rule based more than value based. This has led to a conservative approach on the part of the courts when confronted with the need to interpret indeterminate legal concepts. The South African jurists' embrace of a positivist interpretive method was reinforced by the unique socio-political context in which they functioned during the apartheid period.Footnote 168 This, in turn, manifested in the absence of constitutional arguments in private law cases brought before the courts.Footnote 169 Moreover, Meiring argues that the notion that judges should refrain from remaking contracts and should rather confine themselves to interpretation is also firmly embedded in the legal culture.Footnote 170
Taking into consideration the developments in the jurisprudence of the Israeli Supreme Court described above, it is reasonable to assume that the direct application of human rights to the private sphere will not meet such problems. Since the introduction of the model of indirect application by the courts, and considering the tremendous influence of the constitutional revolution on legal education, Israeli lawyers are well versed in a rights discourse which surpasses legal disciplinary divisions. In addition, the Court's jurisprudence thus far demonstrates a willingness to engage in value discourse and to contribute to the entrenchment of a human rights culture.Footnote 171 The Supreme Court's use of value-laden reasoning is exemplified in the rise of new modes of reasoning, which includes the Court's underscoring of its role in determining the normative contents of the law, the method of balancing competing values, purposive interpretation, a down-playing of the significance of categorical distinctions, and an emphasis on the elements of choice and creativity in judicial decision making.Footnote 172
Turning to the power of a constitution to influence social processes, indeed it is often the case that there exists a wide gap between human rights guarantees and their practical function within society. In the context of guarantees of gender equality, Mackinnon turns the attention to the absence of a determinate relationship between constitutions that address women's rights and women's de facto social status relative to men.Footnote 173 Nevertheless, she stresses the symbolic significance that constitutional recognition of gender equality carries for women's rights struggles and that the rift between the constitutional language and the social reality may be attributed to the general role and rule of law in these societies.Footnote 174 In this respect, too, one can cautiously speculate that the introduction of a direct horizontal model of application into the Israeli constitutional order will instigate a new wave of litigation before the courts. Because of the unique role that law has gradually but persistently taken in Israeli society (often characterised by extensive legalisation of value conflictsFootnote 175) it is safe to assume that such a provision will not become a dead letter. Indeed, indirect application via the Supreme Court's jurisprudence has left its mark on Israeli society; yet, in such a deeply divided society it should be coupled with the entrenchment of direct application.
7. Conclusion
Israel's constitutional revolution elevated the Basic Laws' normative stand and enabled the Supreme Court to invalidate unconstitutional laws. Moreover, the Israeli Supreme Court has developed a doctrine which promotes the application of human rights in the private sphere. In this respect, Israeli law constitutes a comparative model for many countries which have recently been grappling with the development of such a doctrine. Nonetheless, in practice the constitutional revolution remained in the public sphere, leaving a large gap between the legal framework and the social reality in Israel.
One of the main examples of the malabsorption of equality notions is the phenomenon of exclusion. Introducing human rights into the private sphere encounters problems at two levels: at the individual level – a problem not unique to Israel – in which free will and individual autonomy are interfered with. At this level, it seems that social progress has not been achieved. The traditional approach, according to which a private citizen is entitled to drive anyone away from his or her property regardless of the reason, is still firm and valid in the contemporary constitutional stage of Israel. The problem is intensified at the community level. In Israel's heterogeneous society, people sometimes make use of their private ownership to exclude others, not always on their own initiative, but rather because of the social pressure brought about by the community to which they belong.
Furthermore, recent bills and laws prove that exclusion – in both public and private law – is supported and further promoted by Israeli lawmakers, despite the legal constraints included in the human rights Basic Laws. Therefore, there is little hope of overcoming exclusion by specific legislation. This article's movement back and forth between private and public law was intended to demonstrate, first, that in many cases the exercise of the power to exclude in the private sphere results in exclusion from the public sphere; and, second, that what may seem as a phenomenon confined to the realm of private interactions is made possible, inter alia, by unsatisfactory regulation of exclusion in the public sphere. Thus, for example, the case of the Admission Committees illustrates that while they are subject to regulation by a governmental body, the law is phrased in such a way as to allow the private settlements a wide discretion to dismiss candidates by so narrowing the chances of an appeal to succeed. Such wide discretion is not merely a case of unclearly drafted legislation; it reflects the perception held by the Israeli legislator that the state should limit its intervention to a minimum when it comes to housing and private transactions. This conclusion is further strengthened by the example of the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000. Although the law was intended to address the problem of denial of access of those with a ‘Mizrahi appearance’ to night clubs, surprisingly the law does not include Mizrahi or an equivalent category as grounds of prohibited discrimination. This presents plaintiffs and judges with a genuine problem in addressing claims which the law explicitly aimed to prohibit.Footnote 176
The article attributes much of the reasons for the discrepancy between the constitutional legal constraints imposed by the Basic Laws and the social reality to the failure of the former to fulfil an integrative role. The integrative role of a constitution is its extra-legal effect, which is not a necessary by-product of its legal efficacy. Israel's Basic Laws gained their normative supremacy retroactively, through the Supreme Court's jurisprudence. Consequently, they suffer from a ‘legitimacy deficiency’ among many social groups and have no potential to make significant changes in the private sphere.
The undesired social reality and the recent wave of ‘unfriendly’ human rights bills described throughout the article point to the need to firmly entrench the application of human rights in the private sphere – not only indirectly, but also directly in the framework of a complete constitution. Since the Basic Laws gained their normative supremacy retroactively, absent a deliberative democratic process, a full constitution has the potential to enjoy greater social legitimacy. Only a full constitution that includes a direct horizontal model of application is likely to promote a real culture of human rights within Israeli society. Drawing on the gap between the de jure and de facto situations in South Africa with regard to the application of human rights obligations in private law, I believe that such a development in the Israeli case stands a better chance of succeeding. Although constitutional reform cannot guarantee social change on its own, it is a necessary step in the right direction. Until such a constitution is enacted, exclusion will not be eradicated from Israeli society.
