1 Kuhn, Thomas S., The Structure of Scientific Revolutions (Chicago, Univ. of Chicago Press, 1970) 158.Google Scholar

2 United Mizrachi Bank plc v. Migdal Cooperative Village (1995) 49(iv) P.D. 221.

3 Editorial Commentary (1997) 31 Is. L. R. 765.

4 United Mizrachi Bank, supra n. 2, at 353.

5 Rabinovitch, Itamar and Reinharz, Jehuda, eds., Israel in the Middle East: Documents and Readings on Society, Politics and Foreign Relations, 1948-Present (New York, Oxford Univ. Press, 1984) 45.Google Scholar

6 Ibid., at 42.

7 It has been pointed out that the American Constitution is a paradigmatic example of how constitutional arrangemente tend to accompany transformative historie events. “[T]he prototypical constitutional revolution is an offspring of a historie revolution. It occurs at a ‘historic moment’.” Barak-Erez, Daphne, “From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective” (1995) 26 Columbia Human Rights L. Rev. 309, 350.Google Scholar Barak-Erez relies on Bruce Ackerman's theory of constitutional moments to account for the revolutionary significance of the enaetment of the 1992 Basic Laws. Thus these laws, she maintains, can be viewed as a response to the “unrestrained politics” of the time, in which a “constitutional moment” necessitated fundamental constitutional changes. Ibid., 351. A similar kind of argument is advanced by Robert A. Burt, who understands the emergence of judicial review in the United States and Israel as an institutional response to the presence of fundamental societal conflict. Burt, Robert A., “Inventing Judicial Review: Israel and America” (1989) 10 Cardozo L. Rev. 2013.Google Scholar For a critique of this argument see my Apple of Gold: Constitutionalism in Israel and the United States (Princeton, Princeton Univ. Press, 1993) 110–24.

8 Arendt, , On Revolution (New York, The Viking Press, 1963) 13.Google Scholar

9 For example, Paul Schrecker stipulates that a condition of revolution is that it shall be illegal. “In the realm of politics we can… define revolution as an illegal change of the constitution….” Schrecker, Paul, “Revolution as a Problem in the Philosophy of History” in Friedrich, Carl J., ed., Nomos VIII: Revolution (New York, Atherton Press, 1966) 38.Google Scholar See also Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Harvard Univ. Press, 1983).Google Scholar For Berman, “A revolution, in the historical sense of that term, is a rapid, discontinuous, violent change that bursts the bonds of the legal system.” Ibid., 21. A constitutional revolution, therefore, is a contradiction in terms, although with a different inflection (a constitutional revolution), we can accommodate the use of the reference as it was introduced into the Israeli political debate by Justice Barak. For a theoretical consideration of the term see Lipkin, Robert Justin, “The Anatomy of Constitutional Revolutions” (1989) 68 Nebraska L. Rev. 701.Google Scholar Lipkin's conceptualization is quite broad; thus “[a] constitutional revolution occurs when the Court pragmatically creates a formal or substantive principle of constitutional adjudication.” Ibid., at 718. This can occur, for example, “when the Court gives meaning to a vague or indeterminate constitutional provision such as due process or equal protection.” Ibid., at 748. While this formulation is, in my opinion, too broad to successfully support the language of revolutionary activity, Lipkin is more helpful when he points out, “Generally, a revolutionary constitutional decision is a response to a perceived constitutional or social crisis.” Ibid., at 745.

10 Ackerman, Bruce, We the People: Foundations (Cambridge, Harvard Univ. Press, 1991) 170.Google Scholar

11 Ibid., at 201.

12 Dahl, Robert A., After the Revolution? Authority in a Good Society (New Haven, Yale Univ. Press, 1970) 3.Google Scholar

13 As Dahl reminds us, the prominence of revolution in the political vocabulary of a nation is a poor predictor of the degree of transformation one should expect to find. “Some of the most profound changes in the world take place in a quiet country like Denmark, where hardly anyone raises his voice and the rhetoric of revolution finds few admirers.” Ibid., at 4. In the United States the term “revolution” is often applied to critical junctures in electoral politics: after the 1980 election, many heralded the arrival of the “Reagan Revolution”, just as earlier in the century the “New Deal Revolution” functioned in similar fashion as a rallying cry for social and political change. The fact that basic continuity rather than fundamental change could more accurately describe the achievements of both revolutions has not given rise to any serious efforts to revise the descriptive nomenclature.

14 The controversy surrounding Rosenberg's, Gerald N. book The Hollow Hope: Can Courts Bring About social Change? (Chicago, Univ. of Chicago Press, 1991)Google Scholar, is the best example of the nature of the debate that revolutions in constitutional law can engender over the question of impact. Impact aside, however, the role of the Court in political life is likely to be fundamentally transformed. As Robert McCloskey wrote of the “constitutional revolution of 1937”, “The Court's relationship to the American polity had undergone a fundamental change. Quite probably the judges themselves did not understand how great a withdrawal was portended by their about-face in 1937. But within a few years it would be plain to all that another constitutional era had ended and a new one had begun.” McCloskey, Robert G., The American Supreme Court (Chicago, Univ. of Chicago Press, 1994) 119.Google Scholar There is good reason to believe that in Israel, too, debates about impact will proceed into the foreseeable future at the same time that general agreement will coalesce over the changed relationship of the Court to the Israeli polity. In assessing impact, however, it will be important not to focus exclusively on the specific occasions where the Court is asked to invalidate statutes of the Knesset. It may turn out to be the case that the new Basic Laws will have their greatest effect in helping shape the Knesset's initial legislative calculations. If so, then the actual exercise of judicial review will not be particularly useful in accurately measuring the significance of the 1992 amendments.

15 See in this regard Hirschl, Ran, “Israel's ‘Constitutional Revolution’: The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order” (1998) 46 American J. of Comp. L. 427CrossRefGoogle Scholar; Gross, Aeyal, “The Politics of Rights in Israeli Constitutional Law” (1998) 3 Israel Studies 80CrossRefGoogle Scholar; and Mandel, Michael, “Democracy and the New Constitutionalism in Israel” (1999) 33 Is. L. R. 259.CrossRefGoogle Scholar

16 Kuhn, The Structure of Scientific Revolutions, supra n. 1, at 157. There is no evidence that Justice Barak was using the term “constitutional revolution” in a specifically scientific way. Rather, his usage seems to have been employed as a way of drawing the attention of the legal community and the general public to the importance of the 1992 Basic Laws. Nevertheless, as is often the case, political rhetoric intended for a specific purpose may take on a life of its own, which appears to have occurred in this instance.

17 Ackerman, , We the People: Foundations, supra n. 10, at 204.Google Scholar

18 Barak, Aharon, “The Role of the Supreme Court in a Democracy” (1998) 3 Israel Studies 6, 10.CrossRefGoogle Scholar For a thoughtful comparative study that questions a “constitution centered” view that emphasizes constitutional rights guarantees as the precondition for a rights revolution, see Epp, Charles R., The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago, Univ. of Chicago Press, 1998).Google Scholar

19 A contrary view on the revolutionary significance of Marbury has been advanced by Robert Justin Lipkin, who declares it “a paradigmatic revolutionary decision”. “Anatomy of Constitutional Revolutions,” supra n. 9, at 756. Lipkin believes Marshall's opinion to be revolutionary “because it read into the Constitution a par-ticular substantive political philosophy, not a neutral or objective principle of constitutional law.” Ibid., at 773. My view that the decision is better represented as entailing normal politics is premised on the understanding that it (the argument for judicial review) follows from the substantive political philosophy already present within the document. In this regard, Martin Edelman has commented that “By comparison to Chief Justice Barak, the American Supreme Courts led by Chief Justice John Marshall and Earl Warren instituted moderate constitutional changes.” Edelman, Martin, “The New Israeli Constitution” (2000) 36 Middle Eastern Studies 1.CrossRefGoogle Scholar

20 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 175.

21 Arendt, , On Revolution, supra n. 8, at 157.Google Scholar

22 Paine, Thomas, The Rights of Man (New York, Penguin Books, 1985) 185.Google Scholar

23 Arendt, , On Revolution, supra n. 8, at 142.Google Scholar

24 United Mizrachi Bank, supra n. 2, at 390.

25 Ibid., at 284. On the question of sovereign ty, Justice Barak's position is that legislative supremacy has never prevailed in Israel. “The truth is that the Knesset was never sovereign. Sovereignty belongs to the people, not to their representatives. However, the Knesset was supreme in its legislative power. It has now been clarified that the supremacy is that of our new Constitution.” Barak, Aharon, “The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and its Effect on Procedural and Substantive Criminal Law” (1997) 31 Is. L.R. 3, 4.CrossRefGoogle Scholar This tends to weaken the revolutionary meaning of the acts of 1992, in that their effect is, at least in this regard, to clarify rather than to change. It should be noted that in the Gal decision only three justices explicitly joined Justice Barak's opinion regarding the Knesset's authority to act as a constitutional assembly.

26 Arendt argued that the difference between constitutions that are acts of govemment and constitutions by which people constitute a government is critical. The issue is one of legitimacy. She looked at the experience of constitutional government in the twentieth century and found that there is “an enormous difference in power and authority” when constitutional limitations emerge through acts of popular sovereignty as opposed to governmental imposition. Arendt, , On Revolution, supra n. 8, at 144.Google Scholar As for the use of the term “constitutional revolution” by Justice Barak, it refers specifically to the elevation to constitutional status of human rights in Israel, an elevation which, even in Justice Shamgar's account, would make them, according to Barak, , “constitutional supra-statutory rights”. United Mizrachi Bank, supra n. 2, at 352.Google Scholar In other words, Barak deflects attention from the revolutionary significance of the derivation of the rights to the fact that they now exist as functioning parts of the Israeli constitution.

27 Arendt, , On Revolution, supra n. 8, at 152.Google Scholar

28 Ibid., at 201.

29 Ben-Gurion, David, Rebirth and Destiny of Israel (New York, Philosophical Library, 1954) 377.Google Scholar For Israel, then, the revolutionary experience was revivalist in nature, falling into a category of what Anthony Wallace referred to as a movement “profess[ing] to revive a traditional culture now fallen into desuetude”. Wallace, Anthony F.C., “Revitalization Movements” (1956) 58 American Anthropologist 275.CrossRefGoogle Scholar

30 The numerical and political dominance of those committed to liberal democracy, a fragile coalition comprising a majority of the secularists and a minority of the observant, dampened whatever theocratic impulse there may have been in the founding commitment to ascriptively driven nationalism. I discuss this in detail in Jacobsohn, Gary Jeffrey, “Three Models of Secular Constitutional Development: India, Israel, and the United States” (1996) 10 Studies in American Political Development 1.CrossRefGoogle Scholar

31 One might wish to consider the initiative of Prime Minister Barak in putting forward a “civil-social agenda” that included proposals for a new constitution guaranteeing a full range of personal liberties. Also included in the agenda were several reforms (e.g., dismantling the Religious Affairs Ministry and legalizing civil marriages) that would have the effect of greatly diminishing the power and privileges of the Jewish religious establishment. The news media in Israel has used the term “Secular Revolution” to describe the former Prime Minister';s ambitious goals. They also reported the widely held view that this was a revolution largely motivated by Barak's desperate political predicament. Regardless of underlying motivations or prospects for success, however, the “revolutions” of the two Baraks bear watching for the possible impacts each might have upon the other. Thus, in attempting to calibrate the distance that separates the judicial elite from the body politic with regard to the constitutional revolution favored by the Chief Justice, it could prove helpful to assess carefully the public response to the agenda advanced by the Prime Minister.

32 Johnson, Chalmers, Revolutionary Change (Boston, Little, Brown & Co., 1966).Google Scholar Johnson, however, was a critic of Arendt, having found her use of the idea of freedom to define revolution to be imprecise and narrow. Ibid., at 118.

33 Ibid., at 140.

34 Ibid., at 139.

35 Ibid.

36 Ibid.

37 United Mizrachi Bank, supra n. 2, at 540. Justice Cheshin also voiced concern over the appropriateness of Justice Barak's revolutionary declaration. “The concept ‘constitutional revolution' embraces more than the concept of change. Not only is it likely to lead to excessive enthusiasm, but by adding force and energy to one side of the equation, it simultaneously derogates from the power and energy of the other side, and vice versa. Is this how a constitution ought to be framed?” Ibid., at 567.

38 Elsewhere I have developed a typology of secular constitutions that is constructed around two critical dimensions, the neutrality of the State in relation to the various religions within its borders, and the explanatory power of religion in apprehending the structural configuration of a given society. It is the latter dimension that distinguishes the Jewish State from the Islamic State in Irán insofar as the essential commitment to secular governance is concerned. Jacobsohn, “Three Models of Secular Constitutional Development”;, supra n. 30.

39 United Mizrachi Bank, supra n. 2, at 567.

40 Kuhn, , The Structure of Scientific Revolutions, supra n. 1 at 130.Google Scholar

41 United Mizrachi Bank, supra n. 2, at 352. In his writings, Justice Barak has made it very clear that the significance of the new Basic Laws does not lie in its provision for new rights. “Most of these rights were already protected, prior to the constitution-alization. While a few were protected by the legislator, most were protected by the case law of the Supreme Court, developed by some of our greatest judges since the establishment of the State.” Barak, “The Constitutionalization”, supra n. 25 at 3.

42 United Mizrachi Bank, supra n. 2, at 288.

43 Kuhn, , The Structure of Scientific Revolution, supra n. 1, at 93.Google Scholar

44 United Mizrachi Bank, supra n. 2, at 567.

45 Einstein's calculations were revolutionary only to the extent that the behavior of things in the natural world could be proven to conform to his equations. Barak, on the other hand, is in a unique position to influence the behavior of the political world, and in the process validate his own credentials as a commentator on events.

46 Justice Shamgar aptly wrote of the two decisions: “Bergman did not pretend to be an Israeli Marbury v. Madison but after it, the idea of further development of judicial review of legislation could not be regarded as entirely unexpected.” Shamgar, Meir, “On the Written Constitution” (1974) 9 Is. L.R. 467, at 474.Google Scholar This comment captures the modest ambitions of Justice Landau's opinion, but also its broader interpretive possibilities.

47 Nimmer, Melville B., “The Uses of Judicial Review in Israel's Quest for a Constitution” (1970) 70 Columbia L. Rev. 1218.CrossRefGoogle Scholar Another commentator saw things very differently. “Bergman is actually the least important basis for the Israeli Supreme Court's contemporary claims for increased judicial authority.” Burt, Robert A., “Inventing Judicial Review: Israel and America” (1989) 10 Cardozo L. Rev. 2013, at 2015.Google Scholar

48 Shapira, Amos, “Judicial Review Without a Constitution: The Israeli Paradox” (1983) 56 Temple L.Q. 414, at 568.Google Scholar

49 Vogel v. Broadcasting Authority (1976) 31(iii) P.D. 657, 664. See also Flatto-Sharon v. Knesset Speaker (1981) 35(iv) P.D. 118, 135–36, where he argued that “apart from the special Problem of entrenched clauses, this Court does not assume for itself the jurisdiction to review the content of Knesset legislation.”

50 If John Marshall had been around in 1958 to read the Supreme Court's opinion in Cooper v. Aaron, in which Marbury was taken to mean that “the federal judiciary is supreme in the exposition of the law of the Constitution” (358 U.S. 1, 18) he might have seen fit to enter a vigorous disclaimer. It is now largely taken for granted that the power of the Court to issue final and binding interpretations of the Constitution is a necessary corollary of judicial review. That Marshall's original formulation was written in the context of reviewing a section of a law that dealt specifically with the powers of the judiciary is long forgotten. It is worth noting that Justice Barak has echoed the reasoning in Cooper. Thus he wrote in 1989, “[J]udicial law-making that comes from the interpretation of a constitution has the same normative standing of the constitution itself, and only a change in the constitution – or in the judicial role itself – can change it.” Barak, Aharon, Judicial Discretion (New Haven, Yale Univ. Press, 1989), 103.CrossRefGoogle Scholar

51 Powell v. McCormack, 395 U.S. 486, 549 (1969).

52 “Koch Party Faction” v. Hillel (1985) 39(iii) P.D. 141, 153. Elsewhere Justice Barak wrote: “Our Marbury v. Madison is about to be pronounced – or maybe it was several years ago. It will probably be decided before our constitution is written.” Barak, Aharon, “Freedom of Speech in Israel: The Impact of the American Constitution” (1988) 8 TAU Stud. in L.Google Scholar If the reference here is to Bergman, it might mean that, in Barak's view, the case could lead the Israeli Court where its American counterpart had led the American Court. This would certainly account for the description of the Israel Supreme Court as the “ultimate interpreter”.

53 The Financing Law provided for governmental financing of political parties in election campaigns, but only for those parties represented in the outgoing Knesset. Bergman claimed that this unequal treatment violated the principle of electoral equality incorporated in section 4 of the Basic Law, which reads as follows: “The Knesset shall be elected by general, country-wide, direct, equal, secret, and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset.” The attorney-general had argued that no conflict existed, in that the principle of equality in the Basic Law was to be narrowly construed to mean only that each voter shall have one vote of equal weight. Justice Landau conceded that the issue of statutory in-terpretation was a “borderline” call, but he decided that any doubt as to the meaning of the provision should be resolved by applying the general principle of the equality of all before the law to the specific area of electoral laws. In this he rejected the claim by the attorney-general that because the equality principle was not embodied in a written constitution or a basic law, it could not hinder the legislature from deviating from it.

54 Bergman v. Minister of Finance (1969) 23(i) P.D. 693, at 696.

55 Ibid., at 698.

56 Amos Shapira, “Judicial Review without a Constitution”, supra n. 48, at 414.

57 Indeed, as Barak pointed out, judicial review has been built on the Bergman foundations. Speaking of the earlier case, Barak wrote, “[C]onstitutional review in the area of human rights is the product of the jurisprudential developments in human rights protection. Upon the jurisprudential foundation, the constitutional structure was erected.” United Mizrachi Bank, supra n. 2, at 352–53. Interestingly, this understanding is not shared by the author of the Bergman opinion. Thus, Justice Landau has advocated a sort of bifurcated System for the exercise of judicial review arguing that “the institutional part of the constitution should be entrenched and should be subject to judicial review”, but that any entrenched bili of rights would be a bad idea. Landau, Moshe, “The Limits of Constitutions and Judicial Review” in Elazar, Daniel J., ed., Constitutionalism: The Israeli and American Experiences (Lanham, MD, University Press of America, 1990), at 204.Google Scholar In the context of Bergman, the Court's intervention might therefore be understood as a proper assertion of judicial power in defense of a vital institutional concern, namely, the sanctity of the electoral process.

58 Landau, “The Limits of Constitutions”, supra n. 57, at 200.

59 Ibid., at 202.

60 United Mizrachi Bank, supra n. 2, at 352–53.

61 Landau has quoted approvingly Judge Hand's famous admonition about judicial review. “This much I think I do know, that a society so riven that the spirit of moderation is gone, no constitution can save. That a society where that spirit flourishes, no constitution need save. That a society which evades its responsibility by thrusting upon the court the nurture of that spirit, in the end will perish.” Landau, “The Limits of Constitutions”, supra n. 57, at 204.

62 Barak, “The Role of the Supreme Court in a Democracy”, supra n. 18, at 24.

63 Kuhn, , The Structure of Scientific Revolution, supra n. 1, at 130.Google Scholar

64 Ibid., at 167.

65 Barak, “The Constitutionalization”, supra n. 25, at 5.

66 Quoted in Grey, Thomas C., “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought” (1978) 30 Stanford L. Rev. 843, at 869.CrossRefGoogle Scholar

67 Ibid. As Grey notes, “John Adams' romanticized recollection has more than anecdotal significance; it shows that one of the central figures in the founding of the nation could look back and find in such an argument the first articulation of the essential spirit of the Revolution.” Ibid.

68 Hartz, Louis, The Liberal Tradition in America (New York, Harcourt, Brace & World, 1955) 16.Google Scholar

69 The one great exception is, of course, the Dred Scott case.

70 Avnon, Dan, “The Israeli Basic Laws' (Potentially) Fatal Flaw” (1998) 32 Is. L.R. 535, at 543.CrossRefGoogle Scholar Avnon also fears that unburdening representative institutions of responsibility for advancing the cause of principled reconciliation will weaken the deliberative capacity of popular governance.

71 Gavison, Ruth, “The Role of Courts in Rifted Democracies” (1999) 33 Is. L.R. 216, at 218.CrossRefGoogle Scholar “The deeper the rifts in society, the more cautious the courts should be, because there is greater danger of a serious break-down in the cohesion of society.” Ibid., at 253. As applied to Israel, Gavison makes a very interesting point about the use of judicial power that bears directly on the category of complex revolution. “The clearer it is that an arrangement is indeed the result of a complex compromise, the more reluctant the court should be to pronounce the compromise illegal.” Ibid., at 255. She then distinguishes between secular-religious divisions and Jewish-Arab divisions, only the first of which is a product of negotiation and compromise, and notes that contrary to the deference that the Court should display in cases of complexity, it has instead taken a problematically active Stance. On the other hand, the Court, she argues, has been too passive in cases involving the second type of division, where arrangemente are products of unilateral Jewish decisions.

72 Barak, Aharon, “The Constitutional Revolution: Protected Human Rights” (1992–1993) 1 Mishpat Umimshal 9, at 30.Google Scholar

73 332 U.S. 261, 282 (1946).

74 One of Gerald Rosenberg's contributions in The Hollow Hope is his consideration of how Court decisions usually mobilize opponents much more than supporters, which in turn limits the societal impact that the decisions are likely to have. The mobilization of opposition takes on another order of magnitude when the output of the Court is viewed as a threat to what are perceived to be the underlying principles of the regime. The following remark is suggestive of what is at stake. “Aharon Barak is the driving force behind a sophisticated campaign against Jewish life in Israel. We must not waste our shells. We must take off the gloves and argue with him up front. To present him as he really is, as one who is creating a ‘judicial revolution’.” Quoted in The New York Times, August 28, 1996.

75 Jerusalem Post, September 2, 1996.

76 The question of judicial finality pushes one to consider the Canadian case and its much discussed legislative override provision. In a recent article, Lorraine Eisenstadt Weinrib analyzes Canada's constitutional revolution, occasionally comparing it to the Israeli revolutionary experience. “In points of convergence and divergence alike, Canada's Charter and Israel's new Basic Laws mark a parallel transition from the legislative State to the constitutional State.” Weinrib, Lorraine Eisentadt, “Canada's Constitutional Revolution: From legislative to Constitutional State” (1999) 33 Is. L.R. 13, at 50.CrossRefGoogle Scholar Weinrib does not view the construction of a constitutional culture as predicated on the existence of constitutional consensus. Ibid. For this reason, perhaps, she does not pursue the comparative implications of her observation that “[i]t will take time for Canadian judges to work out the Charter's full substantive and institutional coherence and to integrate its norms into the larger framework of Canada's constitutional order.” Ibid., at 37. It will take time, she says, because transitions of the magnitude of what has occurred in Canada and Israel are very difficult. Because of her devaluation of constitutional consensus, she does not consider how much more difficult it is in Israel, where “substantive and institutional coherence” is much less a constitutional reality than it is in Canada.

77 Quoted in Barak, Aharon, Judicial Discretion, supra n. 50, at 194.Google Scholar

78 Hofhung, Menachem, “The Unintended Consequences of Unplanned Constitutional Reform: Constitutional Politics in Israel” (1996) 44 American J. of Comp. L. 585, at 604.CrossRefGoogle Scholar

79 In this regard, Alon Harel has pointed out that opposition to the “constitutional revolution” is not confined to those who might be expected to resist efforts to extend the coverage of constitutional rights in Israeli society. “Liberal counter-revolutionaries are convinced that a judicial constitutional revolution exposes the courts to political pressures. Courts which have to defend their very constitutional powers to review statutes are less able vigorously to defend human rights. Ironically, under this view, the Court's declaration of de jure constitutional power weakens its de facto power and consequently undermines its ability and commitment to the protection of human rights.” Harel, Alon, “The Rule of Law in Israel: Philosophical Aspirations and Institutional Realities” in Dyzenhaus, David, ed., Recrafting the Rule of Law (Oxford, Hart Publishing, 1999) 143–60, at 148.Google Scholar See also Barak-Erez, “From an Unwritten to a Written Constitution”, supra n. 7, at 353. “The value of invalidating a law will have to be weighed against the counter-majoritarian difficulty and against the Problem of legitimacy. The additional power granted to the Court will have to be accompanied by an added sense of self-restraint. The Court will have to ‘earn’ its legitimacy.”

80 Barak, Aharon, Judicial Discretion, supra n. 50, at 221.Google Scholar Or, as Ralph Lerner pointed out in a well-known essay, “Whether the Justice should teach the public is not and cannot be in question since teaching is inseparable from judging in a democratic regime.” Lerner, Ralph, “The Supreme Court as Republican Schoolmaster” in Supreme Court Review 1967 (Chicago, Univ. of Chicago Press, 1968), at 180.Google Scholar

81 United Mizrachi Bank plc v. Migdal Cooperative Village, supra n. 2, at 448.

82 Ressler v. Minister of Defense (1988) 42(ii) P.D. 441, 458.

83 “Federal Farmer”, no. 16, 20 January 1788, in Kurland, Philip B. and Lerner, Ralph, eds., The Founders' Constitution, vol. I (Chicago, Univ. of Chicago Press, 1897), at 458.Google Scholar

84 Ruth Gavison writes that “the courts should elaborate, articulate and implement the shared commitments of the society they serve – the values reflected in the laws of the society – as opposed to the values which judges personally or as members of distinct groups within society, uphold.” Gavison, “Rifted Democracies”, supra n. 71 at 218. Alon Harel makes the same point with more specific reference to the Israeli situation. “[T]he Court in Israeli is perceived by some as insufficiently representative of the complexity of views and ideologies and consequently granting the power of judicial review to the courts may be perceived as the political victory of a secular ideology over a religious or nationalist one.” Alon Harel, “The Rule of Law in IsraeP supra n. 79, at 156.

85 Ralph Lerner, “The Supreme Court as Republican Schoolmaster”, supra n. 80, at 178.

86 These concluding comments were stimulated by a reference to Schubert's “Unfinished” Symphony voiced to me by Claude Klein of the Hebrew University, at a conference in Jerusalem. Professor Klein, it should be noted, was the first person to use the term “constitutional revolution” after the adoption of the two Basic Laws in 1992.

87 Newbould, Brian, Schubert and the Symphony: A New Perspective (London, Toccata Press, 1992) 207.Google Scholar

88 Ibid., 182.

89 Carner, Mosco, “The Orchestral Music” in Abraham, Gerald, ed., The Music of Schubert (New York, W.W. Norton & Co., Inc.) 64.Google Scholar

90 Dworkin, Ronald, Taking Rights Seriously (Cambridge, Harvard Univ. Press, 1977) 105–23.Google Scholar