In 1950, after a long debate, the young state decided not to enact a constitution at once. Rather, it was decided that special basic-laws will be enacted, and that together they may form a constitution. The last two decades of the 20th century were full of attempts by some parts of the political system to enact a constitution, which were mostly defeated by those objecting to the move. In 1992, the Knesset enacted two basic laws related to human rights. The legislation was declared by some a ‘constitutional revolution’. In 1950, a number of reasons acted against a constitution, including the reluctance of government to be limited and the inability to decide the ‘cultural war’ between secular Jews and religious Jews and the controversy between supporters of free-market vs. welfare state or communist adherents. By the 1990’s, government’s and Knesset reluctance to be limited and fear of judicial review persisted and even increased. The debate over socialism vs. capitalism became muted, but tensions between Jewishness and democracy became more central. The new visibility of the Jewish-Arab debate, as well as major changes in Israel’s demography and history over the last fifty years, suggest that background conditions of constitution-making were quite different in 1950 and 2000. On the other hand, there is a lot of continuity in the themes. I argue that Israel’s constitutional history reflects two anomalies: In 1948 there was a major social and political change, which was implemented without a constitution. In the 80’s and 90’s there was a constitutional process designed to arrest - rather then facilitate and reflect – social, political and demographic changes.
Key words: Israel, constitution, democracy, Jewishness, reconstruction.
1. Introduction
Israel’s constitutional history suggests that the relationships between social reconstruction and constitutionalism may not be simple and direct. When the political and social reality was transformed dramatically, in May 1948, it was not combined with constitution-making. To the contrary, Israel relied on a sweeping continuity clause, keeping existing laws unless they were replaced by Israeli legislation, or were inconsistent with the foundation of the state. The initial drive towards a constitution in the 1980’s, on the other hand, was motivated by a wish to deal effectively with new threats to the ‘old regime’ and its self-understanding, which grew in strength and visibility over the years. This makes the Israeli case an interesting one, since often the process of constitution-making is used to mark and to facilitate a substantial change in regime or self-definition. The legal-political tool of a new constitution is used to emphasize the break with the past, its commitments and its failures. The convergence of a new constitution and a major change in political and social structure is not accidental or purely symbolical. Yet cases that do not ‘obey’ these rules may illuminate interesting features about the strengths and limits of constitutional processes, as well as help us identify features of social processes which may explain when constitutions are a suitable method to achieve change and when they are not. Finally, such cases may contribute to our understanding of the force and the limits of constitutionalism.
In this paper I use ‘constitutionalism’ to mean that aspect of regimes that distinguishes between constitutional and ordinary politics by entrenching constitutional provisions and making them harder to change than other aspects of the legal system. ‘Political reconstruction’ for me will be major changes in a society’s self-perception or self-definition. Constitutions always include a part dealing with regime structure. This part is designed to structure and rationalize government, and give it stability and legitimacy. Often, constitutions also include Bills of Rights, and a general credo (Gavison, 2002a). We should see that these parts fulfill different functions, and may even be at some tension. Regime structures permit and facilitate the working of government. They do not usually include any substantive constraints on the products of the political process. Credos and Bills of Rights do just that. They just create a possible tension between the likely products of deliberative democracy or other political processes, and the need to ‘obey’ the substantive constraints of the constitution. Furthermore, while regime structures may be neutral between competing views of the good life, substantive commitments may be seen as partisan and divisive. Finally, we need to distinguish between types of political reconstruction. The simplest type is a reorganization of the regime (as happened when France moved from the 4th to the 5th republic). A more radical reconstruction involves the constitution of a new state. The most radical of all transformations consists of creating or founding a new society.
The paradigm is the case in which a new constitution in both a tool for, and a reflection of, a major political reconstruction. An obvious example is the most ancient constitution – that of the USA. The federal constitution truly ‘constituted’ the USA, because before it the 13 states were a loose and ineffective confederation. Its adoption reflected the fact that important elites wanted to change the political structure of their society, and managed to initiate a process that implemented that wish. The same can be said for the more recent cases of Spain and South Africa. In these cases, new constitutions were a part of a process of major political reconstruction. Only in South Africa, the change has been both in the definition of the state and in its conception of the society served by that state – the new constitution finally included many parts of society, which had been excluded under the old regime. In all these cases, however, the society in question is the people actually residing within the state.
There are cases in which a constitution is made, or seriously amended, without such reconstruction. A good example is Sweden (For a detailed description see Ruin). England’s Human Rights Act 1998 may be a step towards a constitution, which does not signify a major political reconstruction. In such cases it is interesting to inquire why the change takes the form of a constitutional amendment, and what is the dynamic responsible for the change and its timing.
On the other hand, there are cases in which revolutionary political and social reconstruction is made without a corresponding change in constitutional structure. The state creates a semblance of continuity despite the reconstruction, as if there seems no need for radical change in the legal structure. Sometimes, a constitutional change follows after a few years. At other times, the restructuring is achieved, on the face of it, without an accompanying constitutional change. This is what has happened in some of the countries in central and Eastern Europe which have gone through processes of democratization after the collapse of soviet regimes.
Israel, I shall argue, exemplifies the latter two phenomena. First it had a revolutionary political moment without a constitution, then an attempted constitutional revolution, which did not seek to implement a social or a political change. Rather, the ‘constitutional revolution’ attempted to arrest the growing power of new elites, which seemed to threaten the power structure of ‘old’ Israel.
2. The First Anomaly: No constitution at 1948
The foundation of Israel was a revolution on all possible levels. Israel was founded as the nation state of the Jewish people. The Jewish community in Israel fought to end the British mandate, and to gain international support for its foundation. Even more important, the Jewish community in Israel itself was the product of the success of the modern Zionist movement to gather in Israel a substantive number of Jews from many countries, who created almost from scratch, in about 50 years, an infrastructure for the Jewish state. In the process, Jews undertook roles, which they have given up for hundreds of years as they lived in various host countries, without taking responsibility to tasks of government or defense. Moreover, the conception of the new state was that it was to serve all Jews who wanted to end their life as minorities in host countries. The collective it served did not include all the people in the state – and included potential citizens still living all over the world. Israel thus sought to give at least a potential political meaning to a collective that hitherto had no shared political framework. In short, the foundation of Israel was truly a political reconstruction of revolutionary dimensions.
In part, Israel planned to have a constitution because this was required by the Partition UN resolution. But it was very natural for Israel to use a constitution as a festive and a celebratory way of establishing itself. Its Founding Fathers explicitly planned to have one. Committees were appointed to prepare the documents, and a working draft was adopted. Israel wanted very much to stress the ways in which its foundation broke away from the past: The Jewish community fought the British Mandatory authorities and rejoiced in gaining independence from them. Israeli Jews celebrated their newly acquired control over immigration and land acquisition, both prohibited by British White Books because of the pressure of the Arab population. It was particularly important for Israel to stress its independence after the holocaust, in which a large part of the European Jewish community was murdered. Moreover, as we saw, the Zionist movement itself was a revolutionary movement, seeking to both move large number of Jews from their homes to Palestine, and to change the form of hundreds of years of Jewish experience and existence.
In part, these celebratory functions were performed by Israel’s Declaration of the Foundation of the State, which is the legal document establishing the new state. The Declaration speaks of the historical background to the foundation of Israel as a Jewish State. It promises equal rights to all its citizens irrespective of nationality or religion, calls for peace and co-existence in the region, and specifies that Israel’s governing bodies will be elected under the provision of the new constitution enacted by the constituent assembly.
Against this background, the willingness of Israelis to live under the legal regime inherited from the British Mandate was truly amazing. Some Israeli scholars, mainly lawyers, lament this failure to enact a constitution and think it was merely a case of shortsightedness or political power-seeking (Negbi). Others suggest that the reasons against a constitution were sufficiently strong to both explain and justify this failure (Goldberg). The latter argue that the young state did not have the conditions that would have permitted the enactment of a rigid constitution. I shall return to this point below. Before I do that, however, we can start by noting what made it possible for Israel not to enact a constitution upon its foundation.
A country must have working institutions. If it has to structure them from scratch, a constitution is a natural way of doing so. This is especially true if the ‘old’ institutions are ones tainted by a history of tyranny, colonial conquest or systemic corruption. A constitution is a must if we are looking at a federal state, which must structure the relations between member-states and central government so that these may not be changed unilaterally be either party. A constitution is also necessary if we want to impose legal limits on the power of the primary legislature, and to secure the limits of governmental power from arbitrary change by the government itself. Such wishes may be paramount if the new state is one established after a traumatic experience with abuse of the power of legislatures.
Neither of these conditions existed for Israel at its inception. Israel is a unitary (and rather small) state. The ‘old’ mandatory institutions lapsed by British decision on May 14, 1948. However, Mandatory rule allowed the Jewish and the Arab communities a lot of autonomy. The Jewish community used it to structure political institutions. The Yishuv (Hebrew word for the Jewish community) had a legislature, elected by general, proportional elections; and an executive elected by the legislature. These naturally functioned as transitory bodies for the emerging state. These Jewish institutions were in a sense ‘old’. They had the full legitimacy of the Jewish community, unlike the departing British institutions (Horowitz and Lissak, 1978). They were democratic, based on proportional representation, and did not require rationalization or restructuring. Finally, two reasons combined to make the need to limit the power of the legislature less obvious than it would have been in other ‘new’ countries. One was the British tradition of parliamentary sovereignty. The other was the fact that the majority of the Jewish community saw their own institutions as trustworthy and as an important part of their success in achieving a state. Only the opposition felt that these institutions could be the source of serious abuse of power against the citizens of the new state.
The design of the Declaration of the Foundation of the State failed because Israel was immediately thrown into a battle for its very existence against Arab forces who sought to undermine it. The transitory institutions functioned until the end of the war. When the constituent assembly was finally elected in 1949, the transitory legislature hastened to transmit to it all regular legislative authority. The assembly therefore became, in addition to having a constituent function, Israel’s first parliament, Knesset. Once this was done, the road was open for the government to initiate a discussion of the question whether Israel should enact a constitution, which would define its political organs and its credo. In June 1950 The Knesset decided, after a long debate, not to enact a constitution at that stage (the Harari decision; for a detailed description see Rackman). Rather, it was decided to enact a series of basic laws as chapters in a constitution; which, when completed and finalized, would form Israel’s constitution.
The debate preceding the Harari decision indicates very well the central controversies that allowed the government to go back on the promise of enacting a constitution. First was the sentiment that the great challenges ahead require effective government, and that a constitution might interfere with the necessary effectiveness. This sentiment founded a fear of judicial review, but also encouraged the uncontested retention of a large number of emergency powers enacted by the British mandatory authorities to combat Jewish and Arab unrest. It was easier to invoke these ready-made British rules than to re-enact them explicitly as laws of the Jewish state. In addition, Ben-Gurion, the first PM. Did not want to keep the fully proportional election system of the Yishuv, thinking that it generated too many small parties and complicated governability. Entrenching existing institutions was thus unattractive to him.
Second was the fear that a constitution will require a forced decision of the ideological rift between those who saw modern Judaism as a secular form of ethnic identity, and those who insisted that the only authentic mode of being Jewish is religious. In the declaration, this rifted was bridged by a creative ambiguity. But a real constitution created two difficulties. First, it suggested that the Torah was not good enough. Secon, and more important, it would have established arrangements which were inconsistent with at least some Jewish Law, and would have affirmed that powers of law-making and law enforcement belong to authorized and elected people and not to religious leaders following religious law.
Third was a debate between a free market and a socialist economy. It is important to note that the issue of the status of non-Jews in Israel, especially the native Arabs, was hardly mentioned (Gavison, 1985). Despite the internal Jewish controversy about the meaning of the Jewishness of the state, a large majority would have supported the declaration of the state as Jewish. However, this debate as well as sensitivity to the Jewish-Arab issue might have led to the decision not to include such a declaration in the constitution itself. A telling argument which was also made against entrenching a constitution at that stage was the expectation that the freedom to control immigration would soon lead to a substantial increase in the number of Jews living in Israel. It was felt that the minority of Jews then living in Israel should not seek to bind those who will soon become full members.
The government was quite consistent in its refusal to create a constitutional gradation. A few months after the Harari decision, Israel enacted the law most centrally identified with the Jewishness of the state – The Law of Return 1950, which grants every Jew the right to immigrate to Israel and acquire its citizenship. There was a great excitement when the law was passed. Some MPs suggested that it be enacted that the law can never be abolished. Ben-Gurion replied that abolishing this law was inconceivable, but that the Harari decision meant that no law should be legally entrenched. Quickly it became clear that the supremacy of Knesset’s law had great political advantages. In 1948, Israel ‘incorporated’ all existing law, including the Millet system governing matters of personal status. In 1953, it enacted The Rabbinical Courts Law, granting rabbinical courts exclusive jurisdiction on matters of marriage and divorce of Jews in Israel. When the law was challenged in court incidental to a criminal prosecution for bigamy, arguing that it violated rights to freedom of conscience, the court conceded the violation, but explained that its hands were tied by the principle of legislative supremacy (Cr.App. 112/50, Yosipof v. Attorney General). The advantages of legislative supremacy as a ‘silencer’ of deep political debate were exemplified in another case, dealing with the explosive issue of ‘Who is a Jew’? Israel’s Law of Residents Registration demands that a person provides data about his ‘nationality’ and ‘religion’. Under Jewish law, a Jew is a person born to a Jewish mother or who was converted. The instructions the minister of interior gave were that only such people could be registered as Jews. In 1968, just after the 6 days war, a petition was brought on behalf of two children born in Israel to a Jewish father and an agnostic mother (HCJ 58/68, Shalit v. Minister of Interior. For a detailed description see Burt). They did not seek to register as Jews in their religion, but wanted to register as ‘Jews’ or ‘Hebrews’ in their nationality. The Court wanted to avoid decision. It asked the Knesset to delete ‘nationality’ from the registrar. The Knesset refused. The Court then expanded its panel from the usual 3 to the extraordinary panel of 9 (all of the judges at that time). In a long decision, with highly charged opinions on all sides, the court decided 5:4 in favor of petitioners. The opinions talk about the meaning of nationality, and the essence of Judaism, and the role of judges in deciding ideological controversies. The Knesset responded by a heated debate and an amendment to the Laws of Registration and Return, defining ‘a Jew’ as ‘a person born to a Jewish mother or who was converted’. When a third child was born to the family, another petition was submitted. A panel of three judges rejected the petition in a less than two page opinion, invoking the clear language of the law (HCJ 18/72 Shalit v. Minister of Interior). These cases show how the absence of judicial review of legislation permitted the political system, and the courts, to avoid charged political confrontations over matters of ideology. In this way, political controversies were mitigated and various modus-vivendi arrangements were reached. When the political system decided to give an orthodox definition to ‘a Jew’, or when it decided to maintain the religious control over matters of personal status, the court could not have been used to decide the issue in a different way.
At this first stage, Israeli society is clearly controlled by the generation of the Founding Fathers of the state. These are Europeans, who came with the Zionist waves of immigration. Mostly, these are secular or even anti-clerical people, whose vision of Israel is that of the nation-state of Jews, similar to ideas of nationalism then fashionable in Europe. In addition, Zionism was triggered by the perception that Jews were unsafe in Europe, and that political independence might be the only way to mitigate this threat. While Jewish society in the early years was pluralistic in many ways, and there was a lot of internal open debate – the ruling class as a whole did not feel threatened, and did not feel a need to entrench its own values and credo. This situation explains another unexpected feature of Israel: the fact that it was constituted as a democracy. The background conditions mostly worked against democracy. Palestine has never been governed by democratic forces. Most of the Jewish elites came from non-democratic traditions. The military and the economic situation were very hard. Yet the vision of the founding generation, and its level of self-assurance and solidarity, resulted in a stable democracy.
The process of enactment of basic laws under the Harari decision was slow. The first Basic Law, relating to the Knesset, was enacted in 1958. It had one entrenched provision, specifying that elections in Israel be general, secret, proportional and equal. In 1969, the Supreme Court invoked that entrenched provision to overrule a provision of the Elections Financing Laws which did not grant financing to new lists. The Court held that this arrangement offended against the entrenched guarantee of equality. The legislature granted new lists some financing, but entrenched all elections law in a sweeping way to avoid further challenges (HCJ 98/69 Bergman v. Minister of Finance)
The process of enacting basic laws progressed very slowly, and the provisions of these laws were not entrenched. The Court held that these laws were in fact regular laws for all intents and purposes. By the 1980’s, two related major issues kept these basic laws from covering all material constitutional issues: Israel did not want to enact a Bill of Rights, and it did not want to entrench all basic legislation and give the court the power of judicial review.
In the meantime, Israeli society has been changing in massive ways. The 1948 war meant that most of the Arabs who were expected to live in the Jewish State found themselves outside Israel’s borders. In the first decade, Israel’s population more than doubled, receiving many of the European refugees, and Jews who had to leave their countries of residence in the Arab Middle East. As a result, the Jewish population of Israel became more mixed, with a majority of traditional and religious Jews coming from Moslem countries. 1967 saw another major change in Israel. Egypt, Jordan and Syria cooperated in escalating a situation creating grave risks for Israel and closing off its rights of passage through the Suez Canal. The 6 days war ended up with Israel controlling all of the land between the sea and the Jordan River, as well as the Syrian Golan Heights and The Egyptian Sinai. 1973 brought with it another war against its Arab neighbors. A coordinated attack by Egypt and Syria sought to upset the political deadlock and undo the changes of 1967. This time, Israel’s was preceded by heavy initial losses. The 1973 trauma, and a feeling of growing alienation, brought about the first change of rule in Israel in 1977. The Labor party, which ruled since the 1920’s, was replaced by the right wing Herut, which captured the support of many of the Oriental Jews who felt humiliated and estranged by the ruling Labor leadership. In the meantime, the role of the religious bloc started changing as well. Until 1967, The national-religious party was always a partner in labor’s coalition, and the deal was that they gave labor full discretion in foreign and security matters, but expected protection of their own school system and their ability to maintain their way of life. The a-Zionist ultra-religious (Haredim) cooperated with the government from without, and demanded only public support and financing of their schools, as well as an exemption from military service for their youth, to revive the lost world of study that disappeared in Europe. After 1967, the Zionist religious party started to be very active in the effort to settle the territories occupied in the 1967 war. They now wanted full partnership in government, and their leaning was towards the right, not the left. The haredim grew in number and in political power, especially after an oriental haredi group, Shas, started to grow very quickly. On the other hand, secular Jews grew less tolerant than their ancestors had been to features such as a religious monopoly over marriage and divorce, or limitations on commerce on religious holidays. Calls for separation of state from religion grew as the last wave of immigration from the FSU, now being the largest group in Israel, came to its own. Most of these immigrants are secular, and many of them are non-Jews. But the religious establishment has enough political power to prevent these called-for changes. Resentment among the sectors grew. They deepened with the feeling of both Right and Left that the other sector is leading it to disaster with its policy over the future of the Occupied Territories. This debate has led to an oscillation between narrow governments, which do not enjoy broad legitimacy; and broad unity governments, which are paralyzed.
At the same time, the Arab population of Israel grew in number and strength. Despite huge waves of immigration, they have kept to a stable 17% of the population. After 1967, they strengthened their ties with Arabs across the Israeli borders. Their demands for equal rights, for Palestinian self-determination, and for recognition of their status as an ethnic minority, grew more vocal. In the 1980’s, the Arab leadership in Israel explicitly asks that the Jewish nature of Israel is revoked. Their ideal is that Israel becomes, in both reality and self-description, a neutral state in which all non-civic features are privatized, so that Arabs do not feel as strangers and second-class citizens in a state defined as a Jewish state. There is some Jewish support for these claims, but most Jews feel extremely threatened by these expressions. The tensions have grown and intensified since the eruption of violence between Israel and the Palestinians in October 2000, with no end in sight.
No wonder the Zionist secular European Jewish liberal elite started to feel very threatened. The major secular parties (Labor and Likkud) are each trapped by their need to have the religious parties on their side if they want to have a narrow government. The Left is in addition burdened by its reliance on the Arab vote. The alliances between the various political powers in Israel meant that new elites, quite foreign to the ideals and vision of the Founding Fathers, may now obtain political power, or at least constrain it to an extent which is seen as unacceptable by the old guard. (For a detailed description – see Horowitz and Lissak, 1989, Kimmerling, 2001a, Kimmerling, 2001b).
3. The Second Anomaly: Attempted Constitution-making since the 1980’s
We saw that the process anticipated by the Harari decision – a slow but systematic enactment of Basic Laws that will end up covering all of the constitutional material, which would then be unified and enacted into a constitution – did not materialize. This process indeed did not seem related to any major social or political change. Rather, it wanted to delay the moment of constitution-making to the unspecified future.
The persistent efforts to conclude the constitution since the 1980’s are different. Their failure may be related to the fact that at least three different forces and aspirations are at work. One group seeks to work within the Harari process, seeking to complete constitutional material by enacting a bill of rights and judicial review and entrenching the lot. Here, the purpose is NOT to achieve political or social change. Rather, it is the response of some parts in the political system to the fact that new political powers were moving from the margins into the center of political life. Notably, these efforts seek to limit the power of religious and ultra religious parties in Israel’s political life. In addition, they are trying to entrench the Western, secular and liberal identification of Israel. This group is ambivalent concerning the need and justification of entrenching Israel’s Jewish uniqueness. They are interested mainly in the institution of judicial review, based on growing mistrust of the political branches and their willingness and ability to enact desirable legislation.
A second group concentrates on breaking the governmental deadlock and providing effective government. Mostly, they propose a move to a presidential democracy, arguing that this is the only way to move out of paralysis in the rifted Israeli society. This group has an internal division between right-wingers who see the old elites as their enemies, and those who couple this vision with a secular liberal vision of the state. A third group stresses the need to reach a constitution by agreement, and seeks a dialogue among all major groups. This group may well discover that it a constitution by agreement may be impossible. It may then decide to join forces with one of the other groups supporting a constitution.
Not surprisingly, both the orthodox and the Arabs are ambivalent on the question of the constitution. The Zionist religious are split between those who object to the process and those who are willing to risk some losses in order to entrench the Jewish nature of the state. The Arabs see that a decent constitution may make them less vulnerable, and give the court more power, but they are reluctant to pay the likely price of entrenching the self-description of the state as Jewish, and arrangements such as the Law of Return. The ultra religious are persistently against a constitution. They fear it may limit their political power, and generate arrangements less favorable to them than the present situation. Finally, many in all parties are very reluctant to give up their power, and especially to pass it to the judiciary, which is seen by many as a non-representative body identified with the group of secular liberal elites of the first group. They resent a process which seems to them to empower the representatives of one segment of Israeli population just as it is losing its electorate force.
By the beginning of the 1990’s, all major constitutional matters have already been enacted as un-entrenched basic laws. Since the beginning of the 1980’s, the processes discussed above generated an increased judicial activism (For a detailed description and different evaluations of ‘Judicial Activism’ – see: R. Gavison et al) The Supreme Court started relaxing to the point of abolishing the requirements of standing and the requirement of justiciability. It expanded the bases of judicial review of administrative action, and started getting involved on a systematic basis in matters of great ideological dispute. Some of this activism related to state and religion matters, and the courts often supported religious pluralism and liberal ideals. This fact earned the court a series of new critics, mostly from religious bloc. They resented the fact that the court sought to impose its own values, and to undermine in this way the judgments and decisions of the political branches. Naturally, this new fact made the religious bloc more wary of the power of judicial review.
Towards the end of the 1992 Knesset term, MPs from the secular-liberal camp who supported the constitution realized that they would not be able to complete it. Instead, they sought to identify areas of broad consensus, and legislate them, hoping that completion of the process will be easier when the first steps have been taken. This compromise resulted in two basic laws dealing with human rights. The first, Basic Law Freedom of Occupation, was entrenched and allowed a limited grace period for existing legislation not consistent with it. The second, and more general, Basic Law: Human Dignity and Freedom, included a similar statement that the rights under it could not be violated, but it was not entrenched, and it contained full protection of existing legislation. Neither law specified a power to courts to invalidate inconsistent legislation. Both laws contained a provision specifying that their purpose was to entrench human rights in Israel, defined as a “Jewish and democratic State’. This formulation was a result of the compromise that made the religious-national party endorse the legislation. They figured that they could afford to entrench the protection of non-controversial rights, and gain an explicit legal declaration, in a basic law, that Israel was not merely a democracy, but a state, which was both Jewish and democratic.
Soon after the enactment of these laws, the now president of the Supreme Court, Judge Aharon Barak, dubbed these laws ‘a constitutional revolution’. Some scholars thought that these laws were an evolution – not a full-fledged revolution. [kretzmer, 1992].
However, In 1995, in a lengthy decision, the Court ruled that the laws gave it the power to invalidate laws inconsistent with them, but it chose not to exercise its power at that case. In the first decade of the legislation, the court judged many times that it had the power to do so, but in fact did so in just three cases.
The religious bloc quickly regretted its agreement. The first case litigated under the allegedly innocent Freedom of Occupation Law dealt with a petition to challenge the kosher monopoly over the importation of meats into Israel. The Court accepted the challenge, and the maintenance of that monopoly required the amendment of the basic law, complete with the addition of an override clause, and a law establishing that monopoly. The religious lost faith that the 1992 laws would not harm their interests. In addition, President Barak proposed an interpretation of the ‘Jewish and democratic’ description, under which Judaism should be interpreted as the universal values contributed by Judaism to the world’s heritage. Some religious leaders concluded that they would object to the entrenchment of even the Ten Commandments if the Supreme Court would be the ultimate interpreter.
Attempts to move on with the legislation failed. Moreover, there has been an initiative in the Knesset to establish a Constitutional Court along the continental lines, with the express goal of limiting the power of the Supreme Court, led by the anti-establishment component of the second group, supported by the religious bloc. This initiative was defeated after a major public campaign by the court and its supporters in Parliament. The sentiment, however, is still very much there, affecting the political will to move towards a constitution.
4. The Lessons of the Israeli Case
The first lesson is that, in the absence of the formal and structural conditions requiring a constitution - notably a federal state and a record requiring legal limits of the legislature – major social and political transformations may be achieved without a rigid constitution. The basic fact is the political reconstruction. The constitution is the tool, even if it is also a mode of mobilization. Yet Israel is clearly an exception among nations in passing a moment of liberation and foundation without a constitution. As we saw, this failure to enact a constitution was related to issues on all three levels of the constitution: The regime structure, a Bill of Rights and the credo part of major commitments.
Israel reminds us of another lesson: Levels of the protection of the rule of law, democracy and human rights are not dictated by the presence or the absence of an entrenched constitution or by its content. While Israel’s record on the three is not perfect, it still stands out in the region for its record on all of this. In fact, on all three, Israel has improved its record over the years of its existence. It has a multi-party political system with free press and an independent judiciary, its system allows for regular real elections with occasional changes of government, and its court has protected human rights (within Israel, as distinct from the occupied territories) without a constitution no less than courts in countries with such documents.
More important – the absence of a constitution allows for a variety of low-visibility arrangements that may mitigate social and political tensions, which would have been hard to ignore if they had been entrenched into the state’s constitution. This has been the case in Israel for both the Jewish-Arab debate on the legitimacy of seeing Israel as the nation-state of Jews, and for the internal Jewish debate concerning the meaning of the Jewishness of the state. It also allows for a salutary experimentation with regime structure, which may be needed in a state which is changing as quickly and radically as Israel have changed in its 50 years.
On the other hand, the absence of a constitution may make the central political arrangements too unstable and vulnerable to quick changes by temporary majorities. More important, the absence of a constitution prevents the legal distinction between a shared political framework, setting the rules of the game and some basic commitments, and the political game itself. Such a distinction is very important especially when the conflicts between groups and factions are deep and systematic. Some people speculate that if Israel had enacted a constitution in 1948 or even in 1950, when its political elites were more or less of a unified vision, this would have made it easier for Israel to function today. Others claim that the new tensions in Israel would have undermined that old constitution, which would have to be amended. As is often the case, both claims may have some truth in them.
Another point of interest relates to the relationships between democracy and theocracy, between elected political representatives and religious leaders. To many, both inside and outside of Israel and Judaism, the description of Israel as a Jewish state means that it cannot be a democracy because it is based on religious principles. While matters of marriage and divorce are still governed in Israel by religious laws (without any preference for Judaism), Israel is no theocracy. The complexity derives from the fact that Judaism is the only religion co-extensive with one nation or the only nation whose members belong to the same religion (at least historically). When Israel is described in its laws (and in the UN resolutions and international discourse) as a Jewish state, it is distinguished from an Arab state, not from a Moslem (or a Christian) one. So Israel’s problems of state and religion are more similar to those encountered in Western democracies than to those witnessed in most of the Moslem world. A persistent effort by some religious elements to strengthen the power of religious pronouncements, and question the legitimacy of secular political institutions, including the courts, has not yet changed that picture.
However, the complexity is illustrated by a famous dictum by then President of Israel’s Supreme Court Meir Shamgar. Shamgar was addressing the claim of Meir Kahane that his party should not be banned for racism and democracy despite the fact that it advocated denial of civil and political rights to Israeli Arabs, since these arrangements were dictated by Judaism. Since Israel was a Jewish state – it could not ban a party advocating Jewish requirements, even if those were anti-democratic. Shamgar upheld the ban saying that Israel is Jewish just as France is French. In neither case, he suggested, does its distinctness offend against its democratic nature…
Israel could well benefit from a constitution. But now it may be extremely difficult to enact one that will enjoy the broad legitimacy, which may permit it to fulfill its functions. We may conclude that the chances that ‘regular politics’ will generate a serious political change are very unlikely. Politicians need a serious emergency, or a clear necessity, or an unrelenting demand from their voters, to initiate a change that will limit their own powers. These are hard to create within ‘regular politics’. These conditions existed in 1948. They were not very present in 1950. It is unclear whether enough of the major groups in Israel can be persuaded than now is the time when the enactment of a constitution is called for. Even if most agree a constitution would be good, it is unclear if they can agree on what arrangements and values this constitution should enshrine.
This creates an apparent paradox, which may in fact be a truism: the more divided a society is, the greater the importance of a constitution to its political stability. However, the more divided a society is, the less likely it is to agree to a constitution. This is especially true for the ‘substantive’ parts of the constitution (bills of rights and basic values). But in divided societies, each group either wants its values enshrined, or at least would require that no group’s values will be enshrined. When a society is very ideological, and facing very serious ideological and military challenges, as Israel is, neither arrangement is likely.
Rules of institutional wisdom also follow: fear of judicial review worked against a constitution, especially a Bill of Rights, from the outset. Those interested in a full constitution with judicial review had to try and persuade politicians that these fears were unfounded. In Israel, the opposite happened. At the same time the court insists on maintaining the extremely a-political method of appointing judges, in which the judges themselves have a veto power over most judicial appointments, especially to the Supreme Court. The result of these processes is that the enactment of a constitution with judicial review by the existing court system is extremely unlikely. Those who think, as I do, that a special constitutional court is not a good idea in Israel, may be strengthened in their conclusion that Israel will be better off, after all, without an entrenched constitution.
The present high visibility of various attempts to enact a constitution for Israel are thus extremely interesting. Only time will judge if they succeed, and what kind of a political and social order they will seek to entrench.
Bibliography: Articles and Books
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Eisenstadt S. N. (1985) “The Transformation of Israeli Society – An Essay in Interpretation” (Weidenfeld and Nicolson, London)
Elster J. ed. (1996) “The Round Table: Talks and the Breakdown of Communism” (University of Chicago, Chicago)
Elster J., Offe C., Preuss U.K. (1998) “Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea” (Cambridge, Cambridge)
Gavison R., (1985) “The controversy over Israel’s Bill of Rights” Israel Yearbook on Human Rights 15: 113
Gavison, R., M. Kremnitzer, Y. Dotan (2000) “Judicial Activism: For and Against: he Role of the High Court of Justice in Israeli Society" (Magnes, Jerusalem) [Hebrew]
Gavison R. (2002a) “What Belongs in a Constitution?" Constitutional Political Economy 13: 89
Gavison R. (2002b) “A Constitution for Israel: Lessons from the American Experiment” Azure 12: 133
Goldberg, G., “When Planting Trees, You Do Not Need a Constitution: On State-Building and Constitution-framing”, State Government and International Relations 38 (1993), pp. 29-48 [Hebrew]
Gutmann E. (1988) “Israel: Democracy Without a Constitution” [in: Bogdanor V. (ed.) “Constitutions in Democratic Politics” (Gower, london), 290-308]
Holmes S., Sunstein C.R (1995) “The Politics of Constitutional Revision in Eastern Europe” (in: Levinson S. (ed.) “Responding to Imperfection: The Theory and Practice of Constitutional Amendment” (Princeton, Princeton)
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