INTRODUCTION Barak Medina*

This special issue of the Israel Law Review honors Professor Claude Klein, one of the most prominent scholars in public law and in theory of regimes. Professor Klein has contributed greatly to the development of Israeli public law, by introducing vital theoretical, comparative, and historical perspectives on public law. Professor Klein's insights have had a substantial influence on both judges and legislatures, and as such have played an important role in shaping Israeli public law in the last decades. The Israel Law Review was privileged to provide the forum in which many of Professor Klein's path-breaking ideas were published. His first Article in this journal was published in 1969, just a few months after his aliya (immigration) to Israel. It was followed by no less than ten articles in the IsraelLaw Review in the subsequent years. We are thus honored to dedicate this special issue, which consists of a collection of articles on various aspects of public law, written by prominent scholars in this area specifically for this issue, to Professor Klein. Professor Klein completed his academic studies in Strasbourg, France-a Bachelor of Political Science, two Master degrees, in Public Law and in Political Science, and a Doctorate in Administrative Law, with which he received the prize for best thesis. Professor Klein started his academic career in Strasbourg, in 1965, as a lecturer in the law faculty. In 1968 Professor Klein immigrated to Israel and upon his arrival was recruited to the Hebrew University law faculty as a senior lecturer. He was later appointed as the Edwin Goodman Professor of Public Law. Professor Klein served as dean of the Hebrew University law faculty during the years 1978-1981. He also served, as an emeritus professor, as the dean of two other Israeli law schools-the College of Management Law School (1997-1999) and the Academic College of Law (20012006). Professor Klein served as a visiting professor in numerous leading universities, both in the US and Europe and has participated in extensive public service activities. Among these, special adviser to the Knesset subcommittee for Basic Laws, a member of several public committees, chairman of the Israeli Association of Public Law
Joseph H. & Belle R. Braun Senior Lecturer in Law, Faculty of Law, Hebrew University of Jerusalem. Co-editor, the ISRAEL LAW REviEw.

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(1995-2002), a member of the executive committee of the International Association of Constitutional Law (IACL), and the president of the IACL Commission for Round Tables and World Congresses (since 2005). Professor Klein main areas of expertise are: theory of regimes and the theory of the constituent power, Israeli public law, French public law, and comparative public law. He has published numerous articles-close to eighty-and many books on these subjects and is an accomplished author in several languages: French, Hebrew, and English. Some of his publications include: La R~publique de Weimar (1968); Thorie et pratique du pouvoir constituant (1996), as well as several books on Israeli public law. One of Professor Klein's major contributions to the development of Israeli constitutional law is his theory regarding the constituent power of the Knesset. In a series of articles beginning in 1969, he presented a revolutionized theory about the status of the Israeli Basic Laws. According to the prevalent view at the time, accepted until 1995, the Basic Laws enacted by the Knesset do not bind the Knesset, since as the legislative branch it is not authorized to bind the power of itself or that of future generations. Professor Klein provided the theoretical foundations for the viewpoint that the Basic Laws do bind the Knesset, based on the concept of the Knesset's doubleroles-as a constituent assembly and as a legislative branch. When the Knesset enacts Basic Laws it implements its constituent powers, and it thus creates a "constitutional legislation."' Professor Klein's view was adopted by the Israeli Supreme Court in the seminal case of Bank HaMizrahi v. Migdal,2 in 1995, more than two decades after it was first introduced. Professor Klein continues to contribute to the academic discourse that followed the Bank HaMizrahiv. Migdal "constitutional revolution," by highlighting the concept of "derivative" constituent power and criticizing the Supreme

See Claude Klein, The Constituent Power In Israel, 2 MISHPATIM 51 (1970) [in Hebrew]; Claude Klein, JudicialReview of Statutes: the Bergman Case, 4 ISR. L. REv.69 (1969); Claude Klein, A New Era In Israels ConstitutionalLaw, 6 ISR. L. REv.376 (1971); Claude Klein, EntrenchedLaws and Implied Repeal, 28 HAPRAKLIT 562 (1974) [in Hebrew]; Claude Klein, The Legal Definition of the ParliamentaryRegime and the ParliamentaryRegime of Israel, 5 MISHPATIM 308 (1976) [in Hebrew]; Claude Klein, Is there a Needfor an Amending Power Theory?, 13 IsR. L. REv. 203 (1978). See also Claude Klein, How did it Start: The Bergman Case and the FirstReactions, 3
2

391 (2003) [in Hebrew]. CA 6821/93 United Mizrachi Bank v. Migdal Agricultural Cooperative [1995] lsrSC 49(4) 221.
ALEY MISHPAT

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Court's implied endorsement of the view that the constituent power may be bound by "unwritten" principles. 3 Professor Klein also wrote extensively on other central issues in Israeli public law, such as law and religion, 4 Israel as a nation-state and the problem of the Arab minority,5 the powers of caretaker government,6 and other issues.7 He also contributed to the discussion on the concept of separation of powers, including an illuminating introduction to the Hebrew translation of Montesquieu's The Spirit of the Laws.' In 1989 Professor Klein published a new French translation of Theodor Herzl's Der Judenstaat. The traditional English translation of the book's title has always been The Jewish State (and, accordingly the French was typlically, L'Etat Juij), Klein however chose a different translation-/'Etat des Juifs, that is, The State of the Jews (which is similar to the accepted Hebrew translation, Medinat Hayehudim, and not Medina Yehudit). In his introduction and in a later article Klein explained that this choice better reflects Herzl's-and political Zionism's-vision of the State. According to this vision, which Klein seems to implicitly endorse, the intended state was a state for the Jews, but not a state that its culture is necessarily Jewish. For instance, as Klein indicates, Herzl did not consider the possibility of introducing a "Jewish" language.' Klein also argues that Zionism appears to have provoked with the Palestinians precisely the same kind of problem it wished to solve for the Jews, and points out what he classifies as "the great moral and political question of Zionism" today-"how can we reconcile the success of Zionism with the 'collateral damage'
Claude Klein, The ConstituentPower before the Supreme Court: After the Bank HamizrahiCase, MISHPATIM 341 (1997) [in Hebrew]; Claude Klein, Basic Laws, ConstituentPower andJudicial Review of Statutes in Israel, The Bank Hamizrahi Case, 2 EUR. PUBLIC L. 223 (1996). 4 See, e.g., Calude Klein, The Temple Mount Case, 6 ISR. L. REV. 297 (1971) 297; Claude Klein, Le Religieux Dans Le Politique:L "inextricable Cas d'Isral, 23 LE GENRE HUMAN 81 (1991).

28

CLAUDE KLEIN, ISRAEL AS A NATION-STATE AND THE PROBLEM OF THE ARAB MINORITY: IN SEARCH OF A
6

STATUS (1987). Claude Klein, The Powers of the CaretakerGovernment, Are They Really Unlimited? 12 ISR. L.

7
s

REv. 271 (1977). Claude Klein, The Principle of Raison d'Etat, in ZAMIR BOOK ON LAW, GOVERNMENT AND SOCIETY 671 (Yoav Dotan & Ariel Bendor eds., 2005) Claude Klein, Introduction, in THE SPIRIT OFLAWS BY MONTESQUiEU (Ido Bassok trans., 1998) [in Hebrew]. See also Claude Klein, On The Separationof Powers in the Democracy, in BASIC ISSUES IN ISRAEL DEMOCRACY 111 (Rafael Cohen-Almagor ed., 1999) [in Hebrew]. CLAUDE KLEIN, ESSAI SUR LE SIONISME (1989) includes a new French translation of Herzl's Judenstaat (l'Etat des Juifs) See also Claude Klein, Zionism Revisited, 11 IsR. AFF. 338 (2005). Cf Yoram Hazoni, Did Herzl Want a Jewish State?, 1IAZURE 73 (2001) [in Hebrew]; YORAM HAZONI, THE JEWISH STATE 103 (2000).

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which appears quite inherent to it? This historical examination might be painful but it is necessary."'" Professor Klein is also a prominent scholar of French public law. His writings in this area include not only publications that offer a comparative perspective of French and Israeli public law, and articles that bring French public law into the Israeli discourse." Professor Klein has also participated in the intra-French legal academic 12 activity, published several articles that discuss various aspects of French public law, and also presented to the French audience important assessments of central aspects of Israeli public law.' 3
'0 Claude Klein, Zionism Revisited, id. 250. at (1970); Claude Klein, Judicial Review of Statutes in France-Part 2 IYYUNE MISHPAT 711 (1973) [in Hebrew]; Claude Klein, Judicial 1, Review of Statutes in France- Part 2, 5 IYYUNE MISHPAT 64 (1975) [in Hebrew]; Claude Klein, French Law, in HEBREW ENCYCLOPEDIA (1974) [in Hebrew]; Claude Klein, The New French Law Against RacialDiscrimination AndAnti-Semitism, 12 ISR. L. REV. 88 (1976); Claude Klein, French Administrative Law as a Paradigm:Its Use at the Israeli Supreme Court, I T.A. STUD. L. I 1 (1992). 12 See, e.g., Claude Klein, La Notion De Droits Collectifs DansLa Thgorie Des Droits De L 'homme, in LANGUES ET IDENTITES, MLANGES OFFERTS A Guy HtRAUD 29 (R6d Peeters ed., 1993); Claude Klein, Le Syndrome De Weimar In "Le Genre Humain ": Faut-Il Avoir Peur De La Ddmocratie? 26 REVUE LE GENRE HuMAN 181 (1992); Claude Klein, Protection Des Droits De L'homme Et Circonstances Exceptionnelles, III RECUEIL DES COURS DE L'ACADtMIE DE DROIT EUROPtEN 91 (1994); Claude Klein, Les Thgories Constitutionnelles De Pierre-Mendbs France, in PIRRE MENDES-FRANCE ET L'ESPRIT REPUBLICAIN 175 (1996); Claude Klein, THORIE ET PRATIQUE Du PoUvoIR CONSTITUANT (1996) ; Claude Klein, ConstitutionEt EntitisPolitiques Multinationales, A ProposDe La Convention Europdenne, 13 CITES 37 (2003). '3 See, e.g., the following books: CLAUDE KLEIN, LE CARACTERE JUIF DE L'TAT D'ISRAPL (1977); CLAUDE KLEIN, LE SYSTEME POLITIQUE D'ISRAEL (1983); CLAUDE KLEIN, LE DROIT ISRAtLIEN, COLLECTION QUE SAIS-JE? (1990); CLAUDE KLEIN, LA DEMOCRATIE EN ISRAEL, LE SEUIL (1997); CLAUDE KLEIN, ISRAEL: ISRAEL UN ETAT EN QUETE D'IDENTIT (1999). See also the following articles: Claude Klein, La Nationalit Israglienne-A Commentary On The Israeli Nationality Law, JURISCLASSEURS 'LA NATIONALITE' (1983); Claude Klein, Le Contrdle De La Cour Suprdme SurLes Autoritds Militaires Dans Les Territoires Occupds: Une JurisprudenceDdlicate, in 1TINERAIRES. ETUDES EN L'HONNEUR DE Lto HAMON 403 (1982); Claude Klein, Le Religieux Dans Le Politique: L'inextricable Cas dIsrael, 23 LE GENRE HUMAIN 81 (1991); Claude Klein, Le Contr6le Juridictionnel De I'Administration:Le D4batEn Israel, in LE CONTROLE JURDIrTIONNEL DE L'ADMiNISTRATION, BIIAN CRITIQUE 94 (Jean Marie Auby ed., 1991); Claude Klein, Etat et Religion en Israel 72 PoUvOIRS 7 (1996); Goy Scoffoni & Claude Klein, 34 REVUE FRANITAISE DE DROIT CONSTITUTIONNEL 354 (1998) avier Phillippe, L actualitd constitutionelle dans les pays de common law et de droit mixte (julliet - de6cembre 1997), Afrique du Sud et Israel, Claude Klein, Int~grationEt Citoyennet&: L 'identitg lsralienne,in LES JUIFS ET LE XXEME SIECLE-DICIONNAIRE CRITIQUE 348 (Eli Bamavi & Saul Friedlander eds., 2000); Claude Klein, La Cour Supreme d'Israil:Simple Bouche De La Loi? in 9 LES CAHIERS Du JUDAISME 67 (2001); Claude Klein, A ProposDes Influences Allemandes Sur Le Droit Israglien, in LES VOYAGES DE L'NTELLIGENCE- PASSAGE DES IDEES ET DES HOMMES, EUROPE, PALESTINE, ISRAEL 269 (Dominique Bourel & Gabriel Motzkin eds., 2002); Claude Klein, Les Etats-Unis Vus d'Israel,21 LE BANQUET 175 (2004).
CLAUDE KLEIN, THE ADMINISTRATIVE JURISDICTION IN FRANCE

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Professor Klein is a model for generations of public law scholars. His diverse fields of interest, his deep and thorough acquaintance with the history of Europe and its culture, as well as with the classic and modem theories of political science and public law, are the foundations of Professor Klein's important contributions to the better understanding and the development of public law.

The collection of articles in this special issue discusses many of the issues that occupy Professor Klein during his academic career. In the opening Article, Human Rights in Israel,Aharon Barak, the President of the Israeli Supreme Court, discusses the normative basis of the protection of human rights in Israel. Barak presents the various effects of the enactment of the Basic Law: Human Dignity and Liberty in 1992. He 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. Barak also discusses the effect of the constitutional revolution on public discourse in Israel. A central part of Barak's 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. Michel Troper, from University of Paris X-Nanterre, in his Article, Constitutional Interpretation,explores the specificity of constitutional interpretation. Like Barak, Troper accentuates that the interpreters are not only courts, but also non-judicial authorities such as the Executive or the Parliament. Troper discusses the distinctive character of Constitutional interpretation by such authorities. The next four articles discuss the specific aspects of the protection of human rights. In his Article, Equality and the Dialectic Between Identity and Difference, Michel Rosenfeld, from the Cardozo Law School, examines the legitimacy of unequal treatment based on differences. After analyzing the dialectic of equality, Rosenfeld argues that pluralism offers a better framework than liberalism for the best possible reconciliation of identity and difference. He advocates for a departure from the monolithic nation-state in favor of multi-layered, interconnected centers of collective autonomy and self-government.

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INTRODUCTION Eyal Benvenisti, from Tel-Aviv University, in his Article, Human Dignity in Combat: The Duty to Spare Enemy Civilians,discusses the duties of armed forces to protect the lives of enemy civilians. He argues that the principle of human dignity recognizes a general duty to reduce harm to enemy civilians as well as specific rules against using them as human shields, hostages, or objects of retaliation. Benvenisti concludes that while generally there is no requirement to risk combatants to reduce the risk to enemy civilians, several of the specific applicable norms do entail the assumption of such risks. Christian Starck, from University of Gttingen, discusses different aspects of the right to scientific freedom in his Article, Freedom of Scientific Research and its Limits According to German Constitutional Law. Starck discusses restrictions on the constitutional protection of freedom of scientific research that are derived from other constitutional interests, such as the right of privacy, environmental protection, and the life and health of others. Strack focuses on restrictions derived from human dignity, in particular as it touches upon biomedical questions of human cloning and embryo research. He argues that the Kantian proscription of treating human beings as a means to an end, which lies at the heart of the protection embedded in human dignity, imposes significant restrictions on current trends in biomedicine, and warns against an implicit utilitarianism that humbles or trivializes the rights of vulnerable human beings. Article, Enhancing Freedom of Religion through Public Provision of Religious Services: The IsraeliExperience,Barak Medina, from the Hebrew University of Jerusalem, analyzes the consequences of state provision of religious services. Medina challenges the premise that separation of state and religion is a necessary predicate for religious free exercise, and argues that public supply of religious services may well enhance the exercise of freedom of religion. Medina discusses the legitimate scope of intervention in religious activities, and argues that the extent of public involvement in the provision of a religious service is not by itself a sufficientjustification for the regulation of the relevant activity. This argument as well as others are demonstrated through a discussion of the Israeli experience-almost six decades of intensive involvement and supplying of religious services by a democratic state. The concluding two articles are written by two of Professor Klein's former students, who worte their doctoral dissertation under his guidance. The two articles discuss the normative aspects of the political process. Yigal Mersel, a Registrar-Judge of the Israeli Supreme Court, in his Article, Hans Kelsen and Political Parties,explores In the

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the extent of proper constitutional status of political parties. Mersel discusses Hans Kelsen's ideas on this subject, as presented in his book, On the Essence and Value of Democracy, which was recently translated to Hebrew. 4 Kelsen outlines the main justifications for the existence of political parties, as derived from concepts of liberty, equality, and representation, and argues that political parties are essential for modem democracy and thus the modem state should be a party-state (parteienstaat). Mersel examines the relevance of Kelsen's theory on political parties nowadays and disputes the theory with the malfunctioning of different parties, such as non-democratic and self interested parties. Mersel also assesses Kelsen's suggestion to recall a representative who shows disloyalty to the party line. Finally, Suzie Navot, from the College of Management Law School, discusses in her Article, JudicialReview of the Legislative Process,the latest Israeli Supreme Court decisions germane to normative aspects of the legislative process. Navot demonstrates that several European legal systems apply judicial review of the legislative process, and are also willing to strike down an act of parliament based on flaws in this process. Navot presents the fundamental principles of the legislative process and calls for the implementation of the doctrine of "due process," which was developed in the administrative law context, on procedures of enacting laws.

14 HANS KELSEN, ON THE ESSENCE AND VALUE OF DEMOCRACY

(Izhak Englard trans., 2005) (1929).

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