Aharon Barak

Human Rights in Israel

This Article discusses the normative basis for the protection of human rights in Israel and discusses various effects of the Basic Law: Human Dignity and Liberty enacted in 1992. The Article points out that this “constitutional revolution” affected not only the judiciary, which enforces the protection of human rights, but both the executive and the legislative branches that have also internalized the constitutional revolution, by carefully evaluating every bill proposed and every other government action to ensure that it passes constitutional muster. Additionally, the Article discusses the effect of the constitutional revolution on public discourse in Israel. A central part of the discussion is devoted to the role of the protection of human rights in the territories occupied by Israel since 1967, and to the role of the protection of human rights during periods of terror activities.

International Humanitarian Law and the Israeli Supreme Court

In contrast with most other municipal courts in the world, the Israeli Supreme Court routinely decides cases based on international humanitarian law (IHL). Since the Six Day War in 1967, both the state and the Supreme Court have agreed that the Court has jurisdiction to decide humanitarian issues that come before it from territory held under belligerent occupation. The Court has indeed done so in issues ranging from land seizures to targeted killings, ruling on the basis of the relevant IHL. The Court has been criticised for its judgments, both from the right wing of the political spectrum, who see it as interfering with military matters, and from the left, who see it as granting legitimacy to occupation. In this article, I briefly describe the development, both historical and legal, of IHL in the Israeli Supreme Court, the criticism of the way the law is applied by the Court, and finally the importance of the fundamental concepts of human dignity and proportionality to IHL decisions.

Human dignity in American constitutional law

The lack of a special express provision on human dignity in the federal constitution The Constitution of the United States and the Bill of Rights within it were drafted at the end of the eighteenth century. It is therefore no wonder that no express, special provision regarding human dignity was included in it. Although the concept of human dignity was discussed in the religious and philosophical literature of that period, it did not make its way into the law at that time. The Declaration of the Rights of Man and of the Citizen (1789), a product of the French revolution, is the same age as the US Constitution, and mentions only the honor ( dignites ) of man, and not the richer sense of dignity which we are discussing. The appearance of human dignity in constitutions began in earnest only after the Second World War. That term was not formally expressed in the US Constitution. Human dignity is not part of a framework right in the federal constitution The US Constitution recognizes a number of constitutional rights designed as framework rights or mother-rights. This is the case regarding the Fifth Amendment to the Constitution, which determines: No person shall be … deprived of life, liberty or property, without due process of law. The Fourteenth Amendment to the Constitution determines: Nor shall any state deprive any person of life, liberty, or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws. Should it not be said that the framework (or mother-) rights to life and liberty also include a derivative (or daughter-) right to human dignity at a lower level of generality? Can the constitutional right to human dignity not be found in the constitutional right to due process of law, which is interpreted as including not only procedural aspects of due process, but also the substantive aspects? The US Supreme Court decided that the constitutional right to liberty includes the constitutional right to privacy. Why should the constitutional right to liberty not include the constitutional right to human dignity as well?

Human dignity as a value and as a right in international documents

Human dignity in legal discourse Until the middle of the twentieth century, the history of human dignity was part of the history of ideas. From the middle of the twentieth century it also became an inseparable part of legal history. It became a central factor in the discourse on rights – both on the international and the national plane. Indeed, scores of multilateral international conventions expressly include human dignity – whether in the preamble or in the body of the convention. In many of the constitutions that were enacted or amended after the Second World War, human dignity was established as a key concept. What caused this change? The atrocities of the Second World War, particularly the Holocaust of the Jewish people, are the primary factors that led human dignity to become a central factor in legal discourse. The recognition that those interested in protecting democracy must protect human rights, and that those who wish to protect human rights must recognize human dignity, became more prevalent. In its wake the Second World War brought the human rights revolution, and it was in this framework that the human dignity revolution took place. The primary push for this change can be identified in three legal texts – two international documents and one constitutional provision. The beginning of the change can be found in the preamble to the Charter of the United Nations. This charter was enacted in 1945, right after the end of the Second World War.

The Uniform Commercial Code—Commercial Paper: An Outsider's View, Part II

Continental systems generally permit a possessor to acquire rights against the signatories of a bill or note despite a forged indorsement, it being sufficient that the sequence of indorsement on the instrument leads to the possessor. On general principles, the Anglo-American law differs in this respect. As early as the eighteenth century, it was held, in Mead v. Young (1790) that the possessor of a bill to order containing a forged indorsement has no right to the bill and is not entitled to demand payment from the parties whose signatures preceded the forgery. This approach was followed by the English Act and the N.I.L. The U.C.C. follows this principle in laying down that a forged signature is inoperative as that of the person whose name is signed. A person who acquires a bill to order on which there is a forged indorsement is therefore not a holder of the bill nor in legal possession of it, nor an owner. He consequently has no right under the bill against parties whose signatures preceded the forgery.