The legal supremacy of legislative initiatives in judicial proceedings: The Israeli lesson

Abstract

This article reveals an evolving judicial doctrine, in which the Supreme Court of Israel postpones, removes, dismisses, or even dismisses in limine petitions, due to the mere existence of legislative initiative with respect to the petition’s issue. The article analyzes the way the Court uses the doctrine, and offers a normative analysis of this phenomenon. The main argument is that the judicial use of the doctrine leads to deprivation of the petitioners’ rights, gives (too) much power to the state legal counsels, leans on uncertain and unforeseeable situations, and damages the fundamental principle of the rule of law. On the other hand, the judicial use of the doctrine promotes and enhances constitutional dialogue, as well as preserving judicial resources (and judicial legitimacy in particular) and the professionality of the legislation. Henceforth, the article also introduces an effort to balance between the doctrine different consequences, by presenting a set of criteria for a more reasoned, coherent, and analytical use of that doctrine.