מתואמים או משלימים? דיני הנזיקין והפסיקה בבג"ץ

It has long been observed that the Supreme Court often adjusts its adjudication in civil matters, particularly in torts, in an effort to a lignit with the Court’s jurisprudence in constitutional and administrative matters. This paper demonstrates, however, that this interaction between the two legal domains is in fact more complex than previously supposed. Important policy decisions in torts are a consequence not of what the Court does in the constitutional-administrative domain, but rather of what the Court cannot do. Although the Court may view a petition favorably, it may nevertheless determine that it cannot extend a constitutional remedy. In such cases, it may turn to tort law as an alternative means to address the petitioner’s hardship. Policy of this sort is not “coordinated” with the Court’s constitutional-administrative jurisprudence, but rather “complements” it. We demonstrate this pattern by examining the Court’s adjudication in five primary categories: lawsuits against the military; divorce recalcitrance; cases concerning the Arab minority’s right to equality; freedom of speech and the rights of persons with disabilities.