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  • Begin and the Rule of Law1
  • Aharon Barak (bio)

I would like to discuss the rule of the law and the supremacy of the constitution, analyze these terms, and look at their contribution to the government's democratic character.2 I do so today, five years after the demise of Prime Minister Menachem Begin. Rule of law characterized his social outlook. Supremacy of the constitution—or as he termed it "supremacy of the law"—is taken from his writings. Supremacy of the constitution (law) expressed his worldview. I was the government's legal advisor when he was elected prime minister, and worked alongside him. I brought him the legal rulings on domestic social matters and foreign policy issues. In all of these matters, I saw the reflection of a leader in whose blood flowed the rule of law and whose soul was governed by the supremacy of the law. Not once did he dispute the consequence demanded of him by the law. On occasion he may have been displeased with the court's verdict on an issue close to his heart, but he always complied. "There are judges in Jerusalem"—he would say, and it reverberated throughout the state. I will begin with the principle of the rule of law and conclude with the supremacy of the constitution. My thesis is simple: in a democratic state the principle of rule of law must be upheld and, to achieve this, the supremacy of the constitution must be ensured.

The Rule of Law

1. Complexity of the Term

The rule of law—or more correctly: the rule of justice—is a complex, multi-meaning, ambiguous term. Professor Amnon Rubenstein has correctly noted that, "few terms used so frequently, are so little understood, as the rule of law."3 Everyone agrees on its essence. But the further we move away from its core, the hazier the picture becomes. Differences in terminology also contribute to this. The English speak of the Rule of Law, an expression [End Page 1] foreign to Americans who prefer the term Government under Law. The Germans use the term Rechtsstaat, while the French refer to the principle of Legalité. Behind these various terms lie different ethical connotations.

The term "rule of law" seems to generate major problems. Does the law really rule over man? Is not the law really man's creation? Does the law determine that man—rather than the law—rules? Is it correct to state that the rule of law is the law of rules?4 Does not the rule of law stymie the freedom of the individual? Should every law—no matter what its content—prevail? What about an unjust law?

In order to understand the complexities of the rule of law principle we have to differentiate between three basic aspects of the rule of law: the formal aspect (the formal rule of law); the jurisprudential aspect (the doctrinal rule of law); and the essential aspect (the essential rule of law). The borderlines between the three are blurry. Considerable overlap exists. Nevertheless, there is a basic difference among them, and each will be discussed in turn.

2. The Formal Aspect

(a) An Overview

In its formal sense the rule of law means, "that all the elements in the state, whether individuals, associations, or branches of the state, must act according to the law, and an action contrary to the law must be met with sanctions organized by society. In this sense the meaning of the rule of law is two-fold: legality of the government and domination of the law. This is a formal principle that takes no interest in the content of the law only in its need to dominate, whatever its content may be. In this sense the rule of law is detached from the nature of the regime but linked to the principle of public order."5

Chief Justice Shamgar stated: "A government will not be described as orderly if it does not endeavor to uphold the rule of law, because it is responsible for building the defense wall against anarchy and guaranteeing the preservation of state order."6 This is the formal view of the rule of law. It focuses...