Adam Shinar

Religion and the Construction of the Urban Landscape

This Chapter examines the ways in which religiously motivated regulation affects the landscape, feel, and function of the city. Whereas religion’s effect on cities is much discussed, this Chapter sheds light on its often overlooked role in the regulatory planning process. Using Israel as a case study, the Chapter investigates the way religion is deployed in diverse regulatory fields such as the closing and opening of stores, employment during the religious days of rest, public transportation, and land allocations, all of which shape the urban landscape, with implications both for distributive justice, spatial segregation, the city’s vitality, and our lived experience.

Idealism and Realism in Israeli Constitutional Law

This chapter, written for the Book “Constitutionalism and the Rule of Law: Bridging Realism and Idealism” (forthcoming, CUP), investigates three distinct, though interrelated, questions. First, what do the concepts of idealism and realism mean in the context of constitutional law? Second, what can the Israeli constitutional regime teach us, if anything, about the supposed gap between idealism and realism? Third, should a constitutional system work toward bridging the ideal and the real? The common intuition is that the gap between idealism and realism, however those terms are understood, should be bridged. The chapter will critically examine this proposition in the Israeli context, but will also provide some general insights. I make two overarching claims. One is that the categories of idealism and realism, though seemingly intuitive, turn out to be quite complicated to disentangle. The second claim is that the existence of a gap between the ideal and the real, though seemingly problematic at first blush, might have, on closer examination, limited normative significance. To demonstrate my claims, I examine three areas of Israel’s constitutional structure: constitution-making, rights protection, and institutional image. For each area, I discuss the ideal and the real, and especially the gap between the two. Regarding constitution-making, I show how today’s constitutional settlement looks very different from the one that was envisioned by the framers’ of Israel’s Declaration of Independence. My main argument, however, is that much of the difference lies in form rather than substance. Regarding rights protection, I show how Israel’s judiciary took it upon itself to protect individual rights when the legislature stalled. Here too I argue that despite a seeming gap between idealism and realism, much of the difference lies in the form of protection rather than its substance. Regarding institutional image, I demonstrate how, in cases regarding torture and the separation wall, the Supreme Court seeks to transmit to its foreign audiences an image of a progressive rights protecting court by deciding which decisions to translate into English. I then point to a gap between the translated and non-translated decisions dealing with the same issues. Examining the translated decisions together with the non-translated decisions reveals a more complicated and messier picture than the Supreme Court would like to convey.

With a Little Help from the Courts: The Promises and Limits of Weak Form Judicial Review of Social and Economic Rights

This is a review of Mark Tushnet’s Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. The review outlines the main arguments in the book and then moves to elaborate on two preconditions which are necessary for Tushnet’s project to succeed: the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet’s broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet’s 1999 Taking the Constitution Away from the Courts, a work that initially seems to be diametrically opposed to his new book.