Invalidating Legislation: Is Israel an Anomaly?

Judiciary activism is neither easily defined nor easily measured. That said, it is important to clarify: Israel’s Supreme Court strikes down relatively few laws as compared with courts in other countries

In public debates in Israel it is often claimed that the application of the Supreme Court’s judicial review of Knesset legislation is far greater than in other countries, and is indeed—excessive and exaggerated. 

Judiciary activism is neither easily defined nor easily measured. That said, it is important to clarify: Israel’s Supreme Court strikes down relatively few laws as compared with courts in other countries. 

This finding is clear-cut, despite the fact that the comparison is not simple: Countries differ in their courts’ scope of authority; in the extent to which judicial review is done at earlier stages of the legislation process; in their political culture, in the relationship among government branches, and in their very systems of government--—for example, federative vs. other systems.

In Great Britain for example, the Court does not strike down legislation, but rather issues “declarations of incompatibility,” yet the parliament (with one exception) in practice amends the law accordingly. The Canadian constitution provides for a “notwithstanding clause,” but the Federal government has never exercised this authority , and the provinces—only rarely, and only in the early stages of implementation of the Bill of Rights. 

Despite the challenges inherent in cross-country comparisons, the difference between the Israeli Supreme Court and High Courts in other countries is striking: the Israeli court nullifies less legislation in comparison with other examined courts. This difference persists regardless of the system of judiciary appointment: both in countries in which appointments rest heavily on the recommendations of judges or other legal professionals (such as in the British, Canadian, and Indian courts) and –no less so—in those (for example, in the German constitutional court) - in which judiciary appointments are made on the basis of consensus among a large parliamentary majority. 

Below are data on courts’ nullificationof legislation (or of sections of legislation) in various countries: 

Time period	No. of nullifications	Annual average	Country
1992-2017	18	0.72	Israel
1992-2015	38	1.65	Ireland
1992-2016	50	2.01	U.S. (Federal legislation)
2000-2016	22	1.37	Great Britain ("declarations of incompatibility”)
1992-2017	206	8.24	Germany (Federal legislation,  including executive orders )
1995-2017	82	3.72	South Africa
1950-1967	128	7.53	India
1984-2012	45	1.6	Canada (Federal legislation)