Social Science in the Law: The Israeli Supreme Court: Social Science Insights: On Equality - Judicial Profiles
Israel Law Review, Vol. 35, Autumn 2001
Posted: 18 May 2006
Abstract
My purpose in this paper is to examine the way in which judges have developed the concept of equality in Israel. To meet this new awareness, the concept of equality has developed into a socio-dynamic concept that includes equality of opportunity, affirmative action and accommodation requirements. Both the concurring justices used rhetoric which emphasized, more than Barak's judgment did, the relative importance of the principle of equality. Until the 1990s, the Agranat formula was applied as an equality concept that did not differentiate between arbitrary distinctions of a random nature and group discrimination. Justice Barak's rhetoric once again adhered strictly to a formal concept of equality. In only one case, in which Justice Barak deals with discrimination on grounds of group membership, does he apply a substantive rather than formal concept of equality. Thus, in the same judgment, Zamir includes Aristotelian equality, equal opportunity and accommodation measures as part and parcel of his concept of equality. The Israeli Supreme Court can boast a jurisprudence that has moved from the formal equality of the Aristotelian formula to the endorsement of the right to equal opportunity, affirmative action and accommodation principles. The Supreme Court's institutional move to a socio-dynamic concept of equality has been regarded as judicial activism.
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