The question of how to understand and conceptualize inter-institutional interaction between courts and legislatures, particularly in the context of constitutional challenges, has drawn considerable attention over the years. This question is of special importance to the apprehension of constitutional dialogue as simultaneously describing and shaping constitutional interaction. This article focuses on the descriptive aspects of the constitutional dialogue and through them proposes a reconceptualization of constitutional dialogue, which is not based on the mere existence of legislative responses or the number thereof, or on the existence of different structural constitutional mechanisms. Instead, this reconceptualization is based on the de facto use in constitutional practices during the routine constitutional examination process, by the judiciary and political branches altogether. The article introduces a breadth-and-depth approach, which observes many constitutional decisions and legislative responses and uses them to analyze the nature of courts-legislatures dynamics. These insights are derived not only from the mere existence of a ruling or a statute, but also from the content and design of the institutional outcome thereof. The conclusions drawn using this approach are comprehensive, providing insight into the constitutional and dialogic interaction between courts and legislatures in each constitutional system, as well as identifying trends and changes as they occur. The article also offers an application of this approach to Israeli jurisprudence, illuminating the depth and complexity of this interaction, and enabling us to recognize it as a constitutional system with strong dialogic characteristics.
Funding source: The Israeli President Scholarship for Scientific Excellency and Innovation
Funding source: The Zvi Meitar Center for Advanced Legal Studies
I wish to extend my gratitude to Aeyal Gross, Ariel Bendor, Daphna Hacker and Tamar Kricheli Katz, as well as to the participants of the Ph.D. candidates Colloquium (Tel Aviv University Faculty of Law), The young scholars’ workshop of the Israeli Association of Public Law (The Interdisciplinary Center Herzliya), and Empirical Study of Public Law & Human Rights conference (The Hebrew University of Jerusalem) for their helpful comments on earlier versions of this research, as well as the peer-reviewer for offering helpful and constructive comments. I also gratefully thank the Zvi Meitar Center for Advanced Legal Studies and the President of Israel’s Scholarship for Scientific Excellence and Innovation for their financial support.
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