Administrative law in Israel is at the crossroads. Historically, Israeli administrative law was born from English administrative law and like its English counterpart was developed against the background of two significant factors: the relative dearth of constitutional law concerning the protection of human rights on the one hand, and the power of the central government on the other. These two factors had traditionally contributed to the centrality of administrative law that underwent a radical change. First, constitutional law is now an independent source for the recognition and enforcement of human rights following the enactment of new basic laws on human rights—Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Second, privatization has changed completely the scope and pattern of activities conducted by administrative agencies in both countries.

This Article discusses the developments in Israeli administrative law as a result of these changes. In this context, it also evaluates the potential recourse to American administrative law, which has grown in the context of a well developed constitutional law and a relatively low level of government activity in the economic sphere.

The Article argues that the main focus of administrative law—in contrast to constitutional law—should be on the protection of interests (that are not considered human rights), on distributive justice, on procedural justice (in the context of bureaucratic decision-making) and on a broader scope of review (not limited to the protection of human rights), with a special emphasis on the executive branch. In the context of adapting to privatization, it also argues that administrative law should strengthen its focus on the challenge of regulation, on the protection of social rights and on the duties of “mixed” bodies, which are, in many cases, the product of privatization.

In the United States, administrative law suffers from a perceived lack of legitimacy largely due to a lack of democratic accountability or what some have called a democratic deficit. These misgivings stem, in part, from a deep-seated American distrust of bureaucracy. This Article examines how the quest for legitimacy has led practitioners (and theorists) of administrative law to undertake four interrelated projects: the Accountability Project, the Rationality Project, the Transparency Project, and the Participatory Project all designed to create a substitute or shadow form of democratic legitimacy.

Through an examination of these projects, I clarify how they try to address the democratic deficit, and whether they effectively do so. Specifically, this article investigates the impact of judicial review, informal rule-making, increased access to information, and public participation as efforts to meet the legitimacy challenge. Moreover, it disputes the contention that the pursuit of democratic legitimacy is less consequential for administrative law than the need for bureaucratic rationality, by illustrating that bureaucratic rationality is but one component of a larger scheme intended to serve as a functional substitute for legitimacy. At bottom, because Americans do not share the fondness for the technocratic model displayed by many other legal systems, legitimacy projects have an enduring place in American administrative law.

This Article analyzes the probative standard set by Section 25 of the Succession Law, which, provided that certain basic conditions are met, enables the validation of flawed wills. The Article presents the position taken by the Supreme Court, according to which Section 25 requires that prior to its validation, the authenticity of a will be proven beyond any doubt. This standard is criticized as impracticable and normatively flawed, as is another standard, suggested by some Supreme Court Justices, which would impose on those wishing to validate a flawed will a standard of proof similar to that required in criminal law.

The Article then attempts to create a desirable model for the probative standard found in Section 25. This model is based on disutility equations for decision-making under conditions of uncertainty; it leads to the conclusion that the standard that should be required in order that flawed wills be validated is considerably lower than that demanded by today s case law. The Article claims that there is no significant risk that testators might be led to disregard or neglect the formal requirements set by the Succession Law for writing wills.

In conclusion, some arguments are presented in support of a revolutionary hypothesis: I suggest that the Supreme Court's interpretation of Section 25 reflects an ideology that prefers the mode of asset distribution prescribed by inheritance law over alternative modes, created by individual wills. The Court's preference, however, is not grounded (and cannot reasonably be grounded) in the desire to fulfill the testator's wishes; but rather perhaps it is an expression of the legal system's conception of distributive justice.

The Turkish Constitutional Court in 1998 questioned whether values such as human rights and democracy are consistent with values raised and supported by the Shari'a. The Court's implicit assumption is that it is impossible to find a concept in Islamic law that respects human rights. With regard to the Shari'a, there are different positions concerning democracy and human rights depending on the legal corpus included in the definition of the Shari'a. The thesis of incompatibility is based on the classical definition of the Shari'a as invariable and unchanging. But once other perceptions of the Shari'a are incorporated, some of these conceptions are compatible with human rights and democracy.