Daphne Barak-Erez

The welfare state, globalization, and international law

The Challenge of Migration to the Welfare State.- 1A Comment.- 2 The Costs of International Tax Cooperation.- 3 Globalization, Domestic Politics and the Restructuring of the Welfare State: The Unemployment Insurance Program in Israel.- 4 The Israeli Welfare State: Growing Expectations and Diminishing Returns.- 5 Quod Omnes Tangit: Globalization, Welfare Regimes and Entitlements.- 6 The Search for Core Labor Standards in Liberalized Trade.- 7 The Transformative Weakness of Core Labor Rights in Changing Welfare Regimes.- 7A Comment.- 8 Social Rights Beyond the Traditional Welfare State: International Instruments and the Concept of Individual Entitlements.- 9 The Role of Non-Governmental Organizations in the International Labor Organization.- 10 Welfare and Democracy on a Global Level: The WTO as a Case Study.- lOA Comment.- 11 International Labor Standards and International Trade Law.- 11A Comment.- 12 Enhancing the Role of NGOs in the Global Arena: Towards a New Regime on International Labor Standards.- Appendices.

Law and Politics in Israel Lands: Toward Distributive JusticeDaphne Barak-Erez is a Professor of Law and the Stewart and Judy Colton Chair of Law and Security in the Faculty of Law, Tel Aviv University. The article draws on previous writings, especially: Daphne Barak-Erez, ‘Distributive Justice In Israel Lands: Following the Agricultural Lands Case’, Hamishpat, vol.10.

In contrast to the tradition of other Western countries, the vast majority of land in Israel is publicly owned and administered by a government agency: the Israel Lands Administration (‘the Administration’ or ‘the Lands Administration’). Private use of land is thus largely dependent upon the state’s readiness (through the operation of the Lands Administration) to permit and facilitate such use. Therefore, the state has a direct influence on the distribution of wealth, power and life opportunities within Israeli society by its decisions regarding Israel’s land resources. The question of how to allocate rights and material benefits among individuals or groups is not a legal one; the answer to it should rather reflect principles of justice formulated in the realms of political theory and philosophy. Law, however, also plays an important role in this context. It must ensure that decisions with distributive implications are the product of an open, just, and fair process, primarily in view of the perennial danger that distribution will confer benefits exclusively to well-organized interest groups. The developments in this area can be described by distinguishing between three stages: (a) the first three decades of the Lands Administration (until the beginning of the 1990s), characterized by broad administrative autonomy without any substantial judicial review of the Administration’s actions; (b) the decade from the beginning of the 1990s, during which time specific cases of discrimination were reviewed, but without reference to land policy as such; and (c) the stage initiated by the new and ground-breaking decision of the Supreme Court in the matter of the agricultural lands, a decision that heralded the transition to a comprehensive review of administrative policy from the perspective of distributive justice in society as a whole. Of course, only time will tell whether this decision actually succeeded in bringing about the change it declared.

Symbolic Constitutionalism: On Sacred Cows and Abominable Pigs

The article discusses the significance of symbols within constitutional law by analyzing the role of laws introducing traditional national symbols into two legal systems characterized by a mixture of secular and traditional traits—India and Israel. Specifically, it focuses on the legal prohibitions on cattle slaughter in India and on pig growing and pork trading in Israel, animals considered “key symbols” in their respective cultures. Changes in the social and political context emerged as crucial for the legal regulation of these symbols as well as for its durability. Despite the similarities in their starting points, the Indian and the Israeli systems have ultimately taken divergent courses, reflecting differences in their respective contexts and underlying tensions. Whereas Indian cattle slaughter prohibitions are expanding with the constitutional backing of the Indian Supreme Court, pig-related prohibitions in Israel are declining, again with the constitutional backing of the Israeli Supreme Court. The article explains this difference by placing these symbols in a wider social context. Cattle slaughter in India has long been a consistent source of tension with the Muslim community. The basic strain that led to the original legislation, then, remains just as powerful, encouraging the preservation and expansion of laws forbidding cattle slaughter. By contrast, pig prohibitions in Jewish culture developed in the context of persecutions by Greco-Roman rulers and later on in Christian Europe. The “other” against whom this prohibition developed, however, is no longer part of public life in Israel. In addition, the Muslim community in Israel is equally averse to pigs. As time passed, then, the importance of pig prohibitions for Israeli secular Jews within the context of their national identity has declined, and they are currently perceived as a source of tension between secular and religious Jews. Many secular Israelis indeed view the pressure for pig-related legal prohibitions more as a symbol of religious coercion than as a national symbol of identification.

Collective Memory and Judicial Legitimacy: The Historical Narrative of the Israeli Supreme Court.

Occasionally, courts assume the role of historians and narrate stories of historic significance. The courts are fully aware of their “historical” role when they are called to make decisions about historical facts in a dispute that happens to be relevant to their decision. In contrast, this article centers on the unwitting writing of history by the courts when they describe past events as uncontested historical facts, usually through the doctrine of “judicial notice,” ignoring the fact that their story is not necessarily uncontested. As a test-case, the article focuses on decisions given by the Supreme Court of Israel, especially in the formative period of the State. The article argues that the historical narratives of judges, who are usually part of the mainstream in their societies, represent the nations accepted version of its collective memory. It then tries to shed light on the importance of this narrative in the context of the courts institutional legitimacy.

The Administrative Process as a Domain of Conflicting Interests

The article presents the argument that administrative decision-making should be understood as devoted to balancing between conflicting interests of individuals or groups, usually when none of the affected parties has predefined legal rights that are relevant to the substantial content of the administrative decision. Administrative decisions often have a direct effect not only on human and civil rights issues, but also on matters bearing on the quality of life, living conditions, prices of regulated products, and the allocation of government funds. Since the decision as to which interest should prevail in the conflict is a distributive one and has many possible answers, the role of administrative law is primarily to ensure that these decisions are made fairly, with due weight given to the conflicting interests of the various groups and individuals involved. With this as background, the article shows how the doctrines of positive administrative law are designed to meet the challenge of coping with conflicting interests in the administrative decision-making process, using such examples as the prohibitions against decision-makers’ conflicts of interest and the rules regarding interest representation and judicial review. In the second part, the article applies the interest perspective to the administrative decision-making process in order to analyze the highly extensive regulation of land resources in Israel. The analysis concentrates on the Israeli Supreme Court decision in one of the most controversial petitions brought before it: against administrative decisions on the development (toward urbanization) of formerly agricultural lands (the Mizrahi Democratic Rainbow case).

The Israeli Welfare State: Growing Expectations and Diminishing Returns

The welfare state model, which was developed in Western democracies during the twentieth century,1 is in trouble. Discussions of the so-called “crisis” of the welfare state are widespread.2 Ideological opposition to the welfare state always enjoyed considerable support in right wing political circles. Over the years, however, this criticism has intensified, as the welfare state is proving rather expensive and thus an alleged burden on national economies,3 particularly in an era of globalization when these economies must compete to attract investors and retain high profile workers.4 Criticism has also been forthcoming from other directions, emphasizing, for instance, the bureaucratic nature of the welfare state, which, at times, undennines its ability to achieve its own professed goals. Ross Cranston has described this problem as the “paradox of social welfare bureaucracies”, stating “that although they might be ostensibly devoted to the wider public interest and the interest of intended beneficiaries, frequently they appear to neglect these interests in what they do.”?5

The Primaries System and Its Constitutional Effect: Where is the Revolution?

Copyright c ©2002 by Theoretical Inquiries in Law, The Cegla Center for Interdisciplinary Research of the Law, The Buchmann Faculty of Law, Tel Aviv University. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. Theoretical Inquiries in Law is published electronically and in paper by The Cegla Center for Interdisciplinary Research of the Law, The Buchmann Faculty of Law, Tel Aviv University.

The Administrative State Goes Global

The emergence of global norms of administrative law reshapes the administrative state. The integration with the global arena requires the state to forgo some of its regulatory powers. The article maps the various mechanisms through which transnational regulatory processes intervene in the local realm, reshaping the contours of domestic administrative law (part I). To analyze these processes we develop an analytical schema that captures the distinct impacts of global administrative law on the domestic level. This schema distinguishes between three forms of influence: the substitution of domestic administrative discretion by global standards, the emergence of universal standards of administrative due process, and the globally inspired transference of enforcement responsibilities. We focus in particular on the emergence of universal standards of the administrative process. Here, we address the fact that beyond the particular norms generated by global bodies, transnational norm-production processes also establish basic standards of procedural and institutional integrity, which together form an emerging body of universal administrative law. By standards of procedural and institutional integrity we refer to those rules that regulate the procedure and structure through which decisions are being made. These include both due-process rules, which focus on the fairness of the administrative process, and perfecting rules, which seek to improve the decision outcome in terms of some overarching principle. We adopt a pluralistic approach by highlighting the diverse sources and paths through which global law influences the domestic realm. In part II of the article we proceed to examine the normative challenges posed by these processes of transnational rule making. We criticize the hidden ideological agenda of this transnational legal body, highlighting especially its propensity to neo-liberal, capitalist ideas. This bias undermines any attempt to ground the legitimacy of global administrative law on some universal rationality. Next we discuss the problematic posed by the fragmented accountability regimes that characterize today’s global legal system. This fragmentation calls into question the legitimacy of global administrative law by exposing the lack of efficient control mechanisms on both the domestic level and the global level. Finally, we examine the democratic challenge posed by the expanding influence of universal administrative law norms. These reflections question the legitimacy of the new body of globalized administrative law and point to the need to adapt our democratic practices to this new reality. In this context our analysis departs from the global constitutionalism literature by focusing on the potential of administrative law for democratic innovativeness.

Civil Rights in the Privatized State: A Comparative View

Until a few decades ago, the lines between the public sector and the domain of private initiative were considered clear. The activities of the government were defined as “public”; the activities of private entities as ”private”. This distinction was not only theoretical, but had practical consequences as well. This article focuses on one major consequence of the distinction, namely the traditional constitutional approach of applying civil rights only to the relations of individuals with government, that is to say only in the “public” sphere.’ This traditional approach has been curtailed in many jurisdictions especially in Europe. Some national constitutions have been interpreted as applymg (directly or indirectly) to private relations, as well.? In addition, the European Convention on Human Rights was