In his book, "The Concept of Law", H.L.A. Hart asks if a legislative body can bind itself and its successors by transferring legislative powers over specific issues to a new and different body:
"[I]t might be conceded that Parliament might irrevocably alter the present constitution of Parliament by abolishing the House of Lords altogether... It might also be concede, as Dicey says, that Parliament could destroy itself totally, by an Act declaring its powers at an end and repealing the legislation providing for the election of future Parliaments. If so, Parliament might validly accompany this legislative suicide by an Act transferring all its powers to some other body, say the Manchester Corporation. If it can do this, cannot it effectually do something less? Can it not put an end to its powers to legislate on certain matters and transfer these to a new composite entity which includes itself and some further body?... It is quite possible that some of the questionable propositions... will one day be endorsed or rejected by a court called on to decide the matter." (pp. 151-152)
Yesterday, the Supreme Court of Israel decided on a strikingly similar matter. In a case questioning the constitutionality of an amendment to the law that made it possible for the state to privatize its prisons, the Court ruled such transfer of authority to be unconstitutional. The State, according to the Supreme Court, not only has the right to use hold a person prisoner if he or she committed a crime, it also has the duty to execute that right by itself and not delegate it to others. In what is pretty much an international precedent, the Court ruled that, with regards to certain issues, the government is incapable of stripping itself of its powers and transfer them to others, since no other body but the state itself is capable of balancing the proper interests of state and the individual.
It's easy to think of this ruling as dealing with human rights of prisoners, as even some of the Justices do. But I think the real question that was answered here is not 'what are the prisoner's rights?', but, rather, 'what is a state?'. So far, constitutions restricted governments only in what they are allowed to take or deprive their citizens. This, however, is an unprecedented decision about what the government must provide. While constitutional law was thus far focused on keeping governments small, this decision is focused on making sure the government won't grow too small. The truth is, that - as Justice Levi writes in his dissenting opinion - conditions in state prisons are sometimes so bad that prisoners might be better of in private hands. Nonetheless, the court decided that the government simply doesn't have the power to give away some of its powers to others.
Much like in the question whether an almighty god can create a rock he himself cannot lift, the Israeli Supreme Court was faced with the question which kinds of rocks can the parliament create. Yesterday it decided that there's a new kind of rocks that are has to be left on the ground.
Here is the Court's ruling (Hebrew) and a brief report (Hebrew and English).
"[I]t might be conceded that Parliament might irrevocably alter the present constitution of Parliament by abolishing the House of Lords altogether... It might also be concede, as Dicey says, that Parliament could destroy itself totally, by an Act declaring its powers at an end and repealing the legislation providing for the election of future Parliaments. If so, Parliament might validly accompany this legislative suicide by an Act transferring all its powers to some other body, say the Manchester Corporation. If it can do this, cannot it effectually do something less? Can it not put an end to its powers to legislate on certain matters and transfer these to a new composite entity which includes itself and some further body?... It is quite possible that some of the questionable propositions... will one day be endorsed or rejected by a court called on to decide the matter." (pp. 151-152)
Yesterday, the Supreme Court of Israel decided on a strikingly similar matter. In a case questioning the constitutionality of an amendment to the law that made it possible for the state to privatize its prisons, the Court ruled such transfer of authority to be unconstitutional. The State, according to the Supreme Court, not only has the right to use hold a person prisoner if he or she committed a crime, it also has the duty to execute that right by itself and not delegate it to others. In what is pretty much an international precedent, the Court ruled that, with regards to certain issues, the government is incapable of stripping itself of its powers and transfer them to others, since no other body but the state itself is capable of balancing the proper interests of state and the individual.
It's easy to think of this ruling as dealing with human rights of prisoners, as even some of the Justices do. But I think the real question that was answered here is not 'what are the prisoner's rights?', but, rather, 'what is a state?'. So far, constitutions restricted governments only in what they are allowed to take or deprive their citizens. This, however, is an unprecedented decision about what the government must provide. While constitutional law was thus far focused on keeping governments small, this decision is focused on making sure the government won't grow too small. The truth is, that - as Justice Levi writes in his dissenting opinion - conditions in state prisons are sometimes so bad that prisoners might be better of in private hands. Nonetheless, the court decided that the government simply doesn't have the power to give away some of its powers to others.
Much like in the question whether an almighty god can create a rock he himself cannot lift, the Israeli Supreme Court was faced with the question which kinds of rocks can the parliament create. Yesterday it decided that there's a new kind of rocks that are has to be left on the ground.
Here is the Court's ruling (Hebrew) and a brief report (Hebrew and English).
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