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In recent years, a new creature has emerged on the institutional landscape: The Schmitelsen Court. This court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate over the institutional identity of the guardian of the constitution during the Weimar years. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. Nevertheless, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. In this Article, I focus on the Schmitelsen Court’s source of legitimacy that differs greatly from the traditional source of judicial legitimacy that Kelsen envisioned for the guardian. Whereas Kelsen viewed legal expertise as the guardian’s source of legitimacy, Schmitt viewed public support as filling this role. After analyzing these two positions, I explain why it is vital for the Schmitelsen Court to harness public support as its source of legitimacy. I proceed by examining how the Schmitelsen Court model manifests itself in three case studies. In the US, Alexander Hamilton—in The Federalist No. 78 —raised the notion of the guardian of the constitution long before Schmitt and Kelsen. He designated the judiciary as the guardian and ascribed its source of legitimacy to expertise. After describing how in recent decades the US Supreme Court adopted the Schmitelsen understanding of judicial legitimacy, I turn to examine the Israeli Supreme Court and the European Court of Human Rights. The relevance of these latter two courts stems not only from their adoption of the Schmitelsen Court’s understanding of judicial legitimacy, but also from the strong influence of the Weimar lessons on their evolution into Schmitelsen guardians.

With the ever-growing significance of international law both domestically and internationally, courts mediate much of the give and take between the international system and the national political arenas, thus acting in settings where global and local are mixed. Such a pivotal position, I argue, lends courts the ability to maximize a twofold utility, which is inextricably linked. First, on the international level, judicial institutions play an increasingly important role and form what is essentially a transnational epistemic community. Second, on the domestic level, courts capitalize on this pivotal position to become increasingly central in the decision-making process, forming alliances with other domestic players and thereby securing the implementation of judicial rulings. A case study of decisions of the Israeli Supreme Court concerning the security fence Israel built around the Occupied Territories is offered as an empirical test for the Court-Pivot Dual Utility Model that I present in this article.

The legal language of lawyers and judges is generally dry and factual but an examination of the rulings of Israeli Supreme Court justices shows that at least some of them use very picturesque speech to support their positions. This paper describes the use of figurative language as employed by Israeli Supreme Court justices in their writing of verdicts. Examples of the use of metaphors, metonymy, word play, imagery, oxymorons, parables and allegory are cited and discussed.

The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921, ‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities of ‘legal violence’—lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that the Court exercises jurisdiction over these killings in the first place, the decision on the applicable law as well as the interpretation of that law, the article finds that the targeted killing judgment collapses this distinction in a different way from that foreseen by Benjamin. Hence, the article argues, the targeted killing judgment is best understood as a form of administrative foundational violence. In conclusion Judith Butler’s reading of Benjamin’s notion of ‘divine violence’ is considered, particularly his use of the commandment, ‘thou shalt not kill’, as a non-violent violence that must be waged against the kind of legal violence of which the targeted killing judgment is exemplary.

The Israeli official policy of targeted killing has often been a subject of controversy and criticism. Although still applied by the state of Israel, this cruel practice was recently limited in a courageous decision handed down by the Israeli Supreme Court. The new restrictions on targeted killing represent an important step towards its criminalization. Despite this, the Court's interpretation of the international humanitarian law requirements is still too broad and there is a need for more restrictive safeguards. In addition, the current uncertainties of this field of law, replicated in the decision, exacerbate the problem further. The main difficulty, however, lies in the theoretical assumption that targeted killing is legal. This article proposes instead to view targeted killing as an exception to the presumption of protection of the civilian population. The authors review the recent trends in international humanitarian law in order to assess the impact of the Court's reasoning. Although this landmark case represents an important breakthrough, it will certainly not be the last word on targeted killing.

This paper depicts the meanings of human dignity as they unfold and evolve in the Bible and the Halakhah. I posit that three distinct features of a Jewish conception of human dignity can be identified in contrast to core characteristics of a liberal conception of human dignity. First, the original source of human dignity is not intrinsic to the human being but extrinsic, namely in God. Second, it is argued that the “dignity of the people” has precedence over personal autonomy and liberty, which are core liberal pillars. The third characteristic pertains to the potential conflict between personal autonomy and liberty, and God's commandments. The theoretical analysis of human dignity is then examined in light of several Supreme Court decisions in Israel during the 1990s. I illustrate that Jewish religious and secular‐liberal conceptions pull in different directions in the rulings of liberal and religious Justices in Israel.

This paper depicts the meanings of human dignity as they unfold and evolve in the Bible and the \"Halakhah\". I posit that three distinct features of a Jewish conception of human dignity can be identified in contrast to core characteristics of a liberal conception of human dignity. First, the original source of human dignity is not intrinsic to the human being but extrinsic, namely in God. Second, it is argued that the \"dignity of the people\" has precedence over personal autonomy and liberty, which are core liberal pillars. The third characteristic pertains to the potential conflict between personal autonomy and liberty, and God's commandments. The theoretical analysis of human dignity is then examined in light of several Supreme Court decisions in Israel during the 1990s. I illustrate that Jewish religious and secular-liberal conceptions pull in different directions in the rulings of liberal and religious Justices in Israel.

This chapter condemns Israel's demolition of settlements in Palestinian villages in the occupied territories by referencing to the character of Shylock in William Shakespeare's play The Merchant of Venice. It criticizes the Israeli Supreme Court for taking an active part in the crimes of racism against the people of Palestine and the renewing of the Nakba by supporting the efforts of the Israeli government to expel Palestinians from the country. It takes into account the split figure of Shylock, the Jew who was slaughtered in Europe and has come back to life as the contemporary European Muslim to demand revenge for the injustice imposed on him when he was baptized Christian. It also considers the fate of Israel's Jewish left, suggesting that their ideology is intertwined with the abandonment of democracy for ethnic superiority.

Since the 1967 War, in the course of which Israel occupied the West Bank and Gaza, the Supreme Court of Israel has considered thousands of petitions relating to acts of the military and other authorities in those territories (OT). This article reviews the contribution to the law of belligerent occupation of the Court's jurisprudence in these cases. After discussing issues of jurisdiction and the applicable norms, the article reviews the way in which the Court has interpreted military needs, the welfare of the local population, changes in the local law, and use of resources; the attitude of the Court to the long-term nature of the occupation and the existence of Israeli settlements, settlers, and commuters in the OT; the introduction of a three-pronged test of proportionality in assessing military necessity; and hostilities in occupied territories. In the final section, I draw some general conclusions on the Court's contribution to the law of occupation.

In the last decades Religious Zionism moved from the margins to the center of Israeli society and politics. Members of this sector (RZS) are located today in top positions in Israeli politics, businesses, and among professional elites, academia, and the military, gaining growing influence over the national decision-making processes and policies. No wonder, then, that public opinion polls indicate that the members of the RZS are the most satisfied and optimistic in Israel today. The fact that the RZS is positioned mostly on one side of the political spectrum (Right), the tight interrelations within this sector and its widening periphery have further increased its national impact. It is argued here that this is a critical development in Israeli politics as this sector’s members, and in particular those voting for the RZS parties, show relatively low commitment to core democratic values together with a clear preference for the Jewish aspect over the democratic aspect of the state of Israel. Furthermore, whereas in the past the RZS was politically represented by one main party (with some splinter groups coming and going), in the 2021 elections two parties (Yamina and the Religious Zionist Party (RZP)) collided head-on. For the first time each of these parties, the first more modernist and the second more fundamentalist, claimed to be the only authentic representative of this sector. The competition between them intensified when the election results showed that each of the two had gained the same number of seats in the Knesset, with the leader of Yamina unexpectedly becoming the new Israeli prime minister. It is argued here that the future balance of power between these two parties and their respective constituencies will determine the future of the RZS as a whole—whether it will establish itself as a pivotal actor in Israeli politics or remain at the margins.