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ARTICLES
WHO NEEDS A CONSTITUTION? IN DEFENSE OF THE
NON-DECISION CONSTITUTION-MAKING TACTIC IN
ISRAEL
Joshua Segev*t
What ought to be the heads, the hearts, the dispositions, that
are qualified, or that dare, not only to make laws under a
fixed constitution, but at one heat to strike out a totally new
constitution for a great kingdom, and in every part of it, from
the monarch on the throne to the vestry of a parish? But"fools
rush in where angels fear to tread."
- Edmund Burkel
I. INTRODUCTION
People in Israel disagree. They disagreed in the past; they have
disagreed about the past. They disagree about the future; they will
probably disagree in the future. This Article will visit Israel's near
and far constitutional history, focusing on disagreements,
controversies, and disputes as the central feature of Israel's
* Lecturer, Netanya Academic College School of Law (Israel). Visiting Lecturer, The
Buchman Faculty of Law Tel-Aviv University. Visiting Lecturer, The Herzog Faculty of Law
Bar-Han University. S.J.D., University of Virginia School of Law (2003); LL.M. University of
Virginia School of Law (2001); LL.B. the Buchman Faculty of Law Tel-Aviv University (1999).
E-mail: segejosh@netanya.ac.il. I would like to thank George A. Rutherglen, Michael J.
Klarman, Daniel R. Ortiz, Daphne Barak-Erez, Aeyal Gross, Gershon Gontovnik, Moshe
Gelbard, Barak Medina, Suzie Navot, and Pinchas Goldstein, and I am grateful to them for
reading and commenting on earlier versions of this Article. I also give thanks to the editors of
the Albany Law Review for their excellent editorial assistance.
t Editor's note: citations to foreign language sources are translated and interpreted by the
author.
I EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 57-58 (Dolphin Books
1961) (1790).
409
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constitution-making. This feature, I will argue, stands behind
Israel's failure to enact a formal constitution in the formative years.
Furthermore, I will argue that Israel still does not have a formal
constitution, notwithstanding the conventional wisdom in Israel's
legal community that since the "Constitutional Revolution" such a
formal constitution exists.2 Disagreements and disputes prevent
Israel from acknowledging and making real and substantial
progress in constitution-making. This Article, however, argues that
one should not shed tears over Israel's lack of a formal constitution.
The constitutional tactic chosen by Israel's founding fathers was the
"decision not to decide," which fulfilled the goals and needs that
impel nations toward formal constitution-making in the first place.
Continuing to fulfill those same goals and needs has been
endangered by attempts over the past decade by political and
judicial entities in Israel to establish a formal constitution.
In order to substantiate my claim, this Article will focus on two
landmark periods of Israel's constitution-making process. They are
considered by many to have had crucial consequences for Israel's
constitutional arrangements. Part I examines disagreements and
constitution-making in the formative period of the state of Israel.
First, it describes the political landscape of the Zionist movement
before the establishment of the State and the disagreements and
controversies that characterized it. This Article argues that Israel's
failure to enact a constitution was the direct consequence of these
and other disagreements that can be divided into two categories:
substantive disagreements and institutional disagreements. Often
these two categories of disagreements are intertwined. The
founders of the State of Israel transcended the problem posed by
this Gordian knot of disagreements by adopting the constitutional
tactic of "deciding not to decide."3 This tactic fulfilled two main
2 See Aharon Barak, The Economic Constitution of Israel, 4 MISHPAT UMlMSHAL 357, 358
(1998) [hereinafter Barak, The Economic Constitution of Israel]; Dalia Dorner, Does Israel
Have a Constitution?, 43 ST. LOUIS U. L.J. 1325, 1333 (1999); Amnon Rubinstein & Barak
Medina, The Constitution of the State of Israel, 8 liAMISHPAT 291, 355 (2003) [hereinafter
Rubinstein & Medina, The Constitution of the State of Isreal]. The claim that Israel has a
formal constitution is based mainly on CA 6821193 United Mizrahi Bank v. Migdal Communal
Village [1995] IsrSC 49(4) 221, 264-65. But see Ruth Gavison, The Constitutional Revolution:
A Reality or a Self-fulfilling Prophecy, 28 MISHPATIM 21 (1997) [hereinafter Gavison, Selffulfilling
Prophecy].
3 The tactic of '''the decision not to decide'" was articulated by Dan Horowitz. Philippa
Strum, The Road Not Taken: Constitutional Non-Decision Making in 1948-1950 and Its
Impact on Civil Liberties in the Israeli Political Culture, in ISRAEL: THE FIRST DECADE OF
INDEPENDENCE 83, 83 (S. Han Troen & Noah Lucas eds., 1995).
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goals: fair and stable cooperation based on democratic foundation
and the protection of human rights. Part II examines
disagreements regarding and attempts at constitution-making since
the 1980s. First, it describes Israel's politics in the 1980s, which
were characterized by continued moral, political, and cultural
disagreements. Israel's constitution-making was shaped by these
disagreements, and public representatives continued clinging to the
tactic of deciding not to decide basic constitutional issues. In
addition, this Article argues that the enactment of the two new
Basic Laws not only did not constitute a deviation from the tactic of
deciding not to decide foundational disagreements about Israel's
constitutional structure, but rather constituted a direct
implementation of this tactic. Later on, I will examine how the
decisions of the Israeli Supreme Court declaring that Israel has a
formal constitution in the conventional sense and the efforts by
different political entities to establish a constitutional regime in its
American version points to the adoption of a new constitutional
tactic: "the decision to decide." This Article argues that the new
constitutional tactic thwarts the fair social cooperation among
Israel's political factions and impedes the protection of human
rights. Finally, this Article argues that the attempt to push the
Israeli society to acknowledge the existence of a formal
constitutional regime has failed. This failure should be traced to
those disputes that keep us from agreeing that a formal constitution
exists and that point to the conclusion that deciding not to decide is
still the best interpretation of Israel's constitutional arrangements.
Before discussing all these issues, it should be noted that the
scope of topics analyzed in this Article is vast and the number of
academic writings and judicial decisions having to do with Israel's
constitutional arrangements after what was called the
"Constitutional Revolution" are immense and continue to grow
apace. The need to keep this Article within reasonable bounds, on
the one hand, and the desire to present an overall picture of the
nature of Israel's constitution-making and its constitutional
arrangements, on the other, caused me to organize my argument
around two periods: the formative period and the period since the
1980s.
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II. DISAGREEMENTS AND ISRAEL'S CONSTITUTION-MAKING IN THE
FORMATIVE PERIOD
A. Disagreements as Central Features of Jewish Politics in Israel
and Abroad
In fact, it seems that disagreement has always been the "natural"
condition of the Jewish people.4 "The most characteristic feature of'
Talmudic law," wrote the late Haim Cohn, Supreme Court Judge,
"is the divergence of opinion: there is hardly any legal problem on
which the opinions of scholars are not divided."5 Most notable
among the disputes in the Talmud are the controversies of Beth
Hillel (the House of Hillel) and Beth Shamai (the House of
Shammai). The Talmud speaks of the conflicting views of Beth
Hillel and Beth Shamai: ''both are the words of the living God,"
honoring their fruitful contributions to the development of Jewish
law.6 However, equally well-known in the Jewish heritage are the
negative consequences of disagreements, controversies, and
disputes. Such is the lesson taught in the Talmud regarding the
destruction of the Second Temple. According to the Talmud, the
reason for the destruction of the Temple, in the year 70 by the
Roman legions, was that the Jewish People were guilty of harboring
baseless hatred towards one another while constantly engaging in
meaningless and trivial disputes.7
The destruction of the Second Temple and the displacement of the
Jewish People in the "Galut" (exile) were not the end of the Jewish
people and by no means the end of inner disagreements and
controversies. Although they all share a faith in their eventual
redemption and the hope to return to Eretz Israel (the land of
Israel), controversies have only grown while living in the diaspora.
First, in the absence of any superior and final authority---civil,
religious, or otherwise-that could have unified the Jewish People,
every Jewish center adopted its own Jewish customs, its own Jewish
4 See CHAIM SHINE, THE JEWISH STATE-CONCLUDING SUMMARY 201 (2003).
5 Haim Cohn, The Spirit of Israel Law, in INTERNATIONAL LAWYERS CONVENTION IN
ISRAEL 1958, at 13, 15 (1958); see also Jeffrey I. Roth, The Justification for Controversy Under
Jewish Law, 76 CAL. L. REV. 337, 338-39 (1988) (stating that "[cJontroversy is a fact of Jewish
law" and is derived from the origins of Jewish law).
6 THE BABYLONIAN TALMUD, 'ERUBIN 13h (W. Slotki trans., 1938).
7 THE BABYLONIAN TALMUD, YOMA 9h (Leo Jung trans., 1938) ("But why was the second
Sanctuary destroyed ... ? Because therein prevailed hatred without cause.").
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practices, and its own interpretations of the Torah and the
Halacha.8 Second, although many Jews have experienced selfgovernment
in many foreign territories by managing their own selfcontained
political systems, the fact was that there was no
obligatory final authority even within every Jewish community.9
This state of affairs was the result of the plural social, ideological,
and religious composition of the Jewish communities in the Galut.1°
Hence, leaders in the traditional Jewish communities have always
been subject to challenge, and no authority was final.
Zionists, the proponents of a Jewish state in Eretz Israel, have
revolted against age-old patterns of Jewish existence and aspired to
establish "normal" social, political, cultural, and occupational
patterns that would make Israel more like other nations.ll They
have found Jewish traditional politics to be powerless, passive, and
divisive, infected with attitudes of disrespect towards authority.12
The leaders of the Zionist movement have recognized the need for
unity and the need to overcome disagreements and controversies
among the different factions, while despising the fact that even
during national emergencies, the Jewish People were incapable of
uniting.13 However, although one common denominator exists
among all Zionists-"the claim to Eretz Israel as a national
homeland of the Jews and as the legitimate focus for the national
self-determination of the Jews"-and although the leaders of the
Zionist movement recognized the need for unity, there was no
uniform Zionist ideology.14 Rather, one finds "a plethora of
8 Alan Dowty, Zionism's Greatest Conceit, 3 IsR. STUD. 1, 4 (1998).
9 Id. at 2-3.
10 Id. at 3-4.
11 See Pnina LAHAV, JUDGMENT IN JERUSALEM: CHIEF JUSTICE SIMON AGRANAT AND THE
ZIONIST CENTURY xiii (1997) [hereinafter LAHAV, JUDGMENT IN JERUSALEM]; Dowty, supra
note 8, at 4.
12 Dowty, supra note 8, at 6-7.
13 See, e.g., LAHAV, JUDGMENT IN JERUSALEM, supra note 11, at xiii ("Zionism was an
ideology fed by enormous reserves of both utopian and nationalist energy and passion, which
splintered into numerous points of view about where and how the movement should proceed.
At the same time, Zionists widely recognized that unity was essential to the movement's
success."); Shlomo Aronson, David Ben-Gurion and the British Constitutional Model, 3 ISR.
STUD. 193, 193 (1998) (arguing that Ben-Gurion "abhorred the Jews' inability to control
themselves in heated ideological debate and their incapacity to unite even during national
emergencies").
14 ISAIAH FRIEDMAN, GIDEON SHIMONI-THE ZIONIST IDEOLOGY (Brandeis Univ. Press
1995), reprinted in 3 ISR. STUD. 251, 251 (1998) (emphasis added); see also Ephraim Ya'ar &
Ze'ev Shavit, An Historical Background to a Discussion Regarding Israeli Society, in TRENDS
IN ISRAELI SOCIETY 1, 9 (Ephraim Ya'ar & Ze'ev Shavit eds., 2001) [hereinafter Ya'ar &
Shavait, Historical Background].
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ideologies: General Zionism, National-Religious Zionism, Labor
Zionism, [and] Revisionist Zionism."15 The struggles between the
different worldviews, the different varieties of stands, and the
different prescriptions of Zionism were over the character of Israelthe
new state to be-in terms of its most fundamental values and
aspirations. It is commonplace to describe the rift within the
different parties of Zionism as motivated by a tension between
opposing forces inherent to the Zionist idea. For example,
There were some inherent contradictions among the basic
elements of Zionist ideology, the most blatant of these being
between the value of Jewish particularism entailed in the
aspiration of creating a Jewish nation-state and universal
values related to the humanist and liberal traditions, which
inspired the founding fathers of Zionism.16
While the compatibility between the democratic and Jewish
nature of the State has been and is a cornerstone in the Zionist
ideology of all the Zionist political factions, these factions barely
agree on the values, principles, and goals that should constitute the
new society.l7 Furthermore, the different factions disagreed also
over the appropriate path, the means, and the rate of advancement
toward the goal of establishing a Jewish state in Eretz Israel. IS On
the eve of the establishment of Israel, it was clear to all that the
Zionist movement did not cure Jewish politics of divisions, factions,
15 FRIEDMAN, supra note 14, at 251; see Ya'ar & Shavit, Historical Background, supra note
14, at 10-21.
16 DAN HOROWITZ & MOSHE LISSAK, TROUBLE IN UTOPIA: THE OVERBURDENED POLITY OF
ISRAEL 114 (1989); see also GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM
IN ISRAEL AND THE UNITED STATES 4-9 (1993) (examining the complex constitutional issues
that stem from "a significant division on the principles that should underlie [Zionism],,);
LABAV, JUDGMENT IN JERUSALEM, supra note 11, at xii (explaining that universalism and
particularism were competing for "Israel's soul"); Erik Cohen, The Changing Legitimations of
the State of Israel, 5 STUD. IN CONTEMP. JEWRY 148, 148 (1989) (emphasizing that "Israel was
based on contrasting principles"); Orit Kamir, The Declaration Has Two Faces: The
Interesting Story of the "Zionist Declaration ofIndependence" and the "Democratic Declaration
of Independence," 23 TEL AVIV U. L. REV. 473 (2000); Mark Tushnet, The Universal and the
Particular in Constitutional Law: An Israeli Case Study, 100 COLUM. L. REV. 1327, 1330-41
(2000) (book review) (reviewing LABAV, JUDGMENT IN JERUSALEM, supra note 11).
17 See HOROWITZ & LISSAK, supra note 16, at 114-15.
18 Id. at 102 ("In the pre·state period, opinions were divided between advocates of an
incremental approach to the goals of Zionism aimed at building up a Jewish presence in
Palestine step by step, and the advocates of a radical approach aimed at rapid realization of
these goals, in one fell swoop if possible. Adherents of the first approach included the Labor
movement and its partners in the World Zionist Organization ... , while the latter approach
was upheld by the Revisionists and the underground organizations of the IZL (Irgun Zvai
Leumi) and LHI (Lohamei Herut Israel) which were ideological offshoots of Revisionism.");
Ya'ar & Shavit, Historical Background, supra note 14, at 9-10.
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controversies, and disputes, and new controversies were created
over the nature, character, goals, aspirations, and ends of the new
State.19 Moral, political, and cultural disagreements remained the
prominent feature of the Jewish people, even as they returned to
claim their historic homeland.
B. Israel's Constitution-making in the Formative Era
Despite the wide range of ideologies, worldviews, and political and
religious perspectives in the Zionist movement, enough unity was
found to make the Zionist enterprise a living reality by proclaiming
The Establishment of the State of Israel (Declaration of
Independence).2o This is what makes the Declaration of
Independence such a major achievement. "It seems probable that
the founders of the [S]tate and the [architects] of the document did
not exactly know if or how the Declaration of Independence would
become part of the [S]tate's legal foundation,"21 and if and how it
would be used by the Supreme Court to defend human rights and
civil liberties.22 "[I]t is ... doubtful whether they even considered
the matter."23 It was a major achievement because it was made in
19 Ephraim Ya'ar & Ze'ev Shavit, The Collective Identity of the Yeshuv, in TRENDS IN
ISRAELI SOCIETY 127, 130-35 (Ephraim Ya'ar & Ze'ev Shavit eds., 2001).
20 In recent years, a wave of academic writings have examined the nature of the
Declaration of Independence. See generally Kamir, supra note 16; Elyakim Rubinstein, The
Declaration of Independence as a Basic Document of the State of Israel, 3 ISR. STUD. 195, 195
(1998) (examining "[the Declaration) of Independence as a basic document of the State of
Israel"); Yoram Shachar, The Early Drafts of the Declaration of Independence of the State of
Israel, 26 TEL AVIV U. L. REV. 523 (2002).
21 Rubinstein, supra note 20, at 195. Over the years, a controversy emerged among
scholars regarding the part one should attribute to the Declaration of Independence in Israel's
legal foundation. Some argue that Israel attributes only a declarative nature to the
Declaration of Independence. See Shlomo Perles, The Validity of Mandatory Legislation in
Israel, 6 HAPRAKLIT 207 (1950). Others argue that a constitutive nature should be attributed
to the Declaration of Independence. See Itzhak Hans Klinghoffer, The Establishment of the
State of Israel: Constitutional History, in KLINGHOFFER BOOK ON PUBLIC LAw 53, 75 (Itzhak
Zamir ed., 1993) [hereinafter Klinghoffer, Establishment); Moshe Sternberg, The Basic Norm
of the Israeli Legal System, 9 HAPRAKLIT 129, 137 (1953). But cf. Benjamin Akzin, The
Declaration of Establishing the State of Israel, in THE PINCHAS ROSEN JUBILEE YEAR BOOK 57
(1962) (arguing that the Declaration of Independence derived its legal foundational standing
only after it was proved to be effective and the citizenry showed willingness to abide by its
letter and spirit).
22 Rubinstein, supra note 20, at 195. For landmark Supreme Court decisions grounding
the protection of human rights and civil liberties in the Declaration of Independence, see HCJ
262/62 Perez v. Kfar-Shmaryahu [1963) IsrSC 16 2101, 2116, HCJ 73/53 Kol Ha'am v.
Minister of Interior [1953) IsrSC 7 871, and HCJ 95/49 EI-Khori v. IDF Chief of Staff [1949)
IsrSC 4 34A.
23 Rubinstein, supra note 20, at 195.
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the midst of the battle for Israel's existence24 and the Declaration of
Independence put an end to the disputes over the appropriate path
and the rate of advancement toward the goal of a Jewish sovereign
state. The Declaration of Independence was a major achievement
because it enabled disagreements, accommodated them, and even
facilitated their existence; it tried to contain those disagreements by
incorporating them into an overall political framework of the new
State. This was a significant accomplishment since it formed the
State's provisional institutions, not on the suppression of
disagreements, but rather by recognizing the existence of these
disagreements. In what manner? First, the Declaration of
Independence recognized and enabled disagreements by asserting,
on the one hand, the "natural and historic right" of the Jewish
People and by embracing, on the other hand, humanistic and
universal values such as "freedom, justice and ... equality of social
and political rights."25 Second, it provided for the establishment of
provisional institutions (i.e., the Provisional Council of State and
the Elected Constituent Assembly) that were meant to house and
contain the different factions of the Zionist movement.26 In this
manner unity was achieved. Despite the existence of disagreements
and in light of these disagreements, one premise was accepted by
all-a consensus for independence.
The true colors of the Declaration of Independence's
accomplishment can be better understood in light of Israel's failure
to adopt a constitution. The Declaration of Independence did not
pretend to be a constitution. It states that a constitution will be
designed by the Constituent Assembly.27 However, disagreements,
once again, took center stage in Israeli politics and prevented the
enactment of a written constitution. Religious factions, comprised
of the National-Zionists and the Ultra-Orthodox Non-Zionists, did
not totally reject the idea of a constitution, but felt that it should be
based on the principles of the Torah, should secure the superiority
of the Jewish law in marriage and divorce issues, should mandate
kosher food in state-funded institutions, and should recognize the
Sabbath and the religious holidays as national holidays.28 Mapai,
24 Tuvia Friling & S. Ban Troen, Proclaiming Independence: Five Days in May from Ben·
Gurion's Diary, 3 ISR. STUD. 170, 172-73 (1998).
25 The Declaration of the Establishment of the State of Israel, 5708·1958, 1 LSI 3, 4 (1948)
(Isr.).
26 [d.
27 [d.
28 Over the years, a controversy emerged among public representatives and scholars as to
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the strongest of all political parties at that time, "generally favor[ed]
a secular state," although the party was "not . . . averse to the
introduction of the jurisprudence of historic Judaism as the basis of
the legal order."29 Other left-wing parties, like Mapam, "wanted a
completely secular state," including the establishment of "civil
marriage and divorce for Jews and non-Jews."30
With regard to social and economic rights, socialist factions
sought to entrench them in the constitution, and some factions, like
Mapam, wanted the constitution to fully describe these rights and to
require their implementation.31 Furthermore, the socialist factions,
even beyond the Communist Party, demanded that "cooperative
enterprise should be favored in both agriculture and industry, and
the nationalization of land, water, electricity, minerals, [oil, and
other national means of production] should be set forth as ultimate
goals."32 Nationalist factions and centrist parties, such as the
General Zionists, however, "favor[ed] constitutional guarantees with
regard to the private ownership of property and free enterprise."33
They recognized the decisive role of capital in developing the new
economy and felt that "since Israel ha[d] no ... vast accumulations
of wealth[,] there [was] no need for a socialist revolution."34
Nationalist factions, such as the Revisionists and Herut,
"propagated a nationalist ideology which called for conquest and
whether the failure to enact a constitution in the formative years should be attributed to the
positions of the religious parties. The popular position was that the religious parties took
advantage of their political power and thwarted the enactment of a constitution. See Dowty,
supra note 8, at 11. In recent years, many scholars, however, argue that the failure to enact a
constitution in the formative period "cannot be directly attributable to opposition from the
religious political parties, but [it] was mainly the result of the opposition of Prime Minister
David Ben-Gurion and the majority of his party (Mapai)." Giora Goldberg, Religious Zionism
and the Framing of a Constitution for Israel, 3 ISR. STUD. 211, 212 (1998); see also EMANUEL
RACKMAN, ISRAEL'S EMERGING CONSTITUTION 1948-51, at 15-17 (1955) (describing how the
issue of a written constitution divided the most powerful political party in Israel); Strum,
supra note 3, at 90-94 (examining the role that Ben-Gurian and his political party had on the
constitutional process); Ilan Peleg, Israel's Constitutional Order and Kulturkampf: The Role of
Ben-Gurion, 3 ISR. STUD. 230, 236 (1998) (acknowledging that a written constitution could
have been achieved with Ben-Gurian's support).
29 RACKMAN, supra note 28, at 17.
30 Id. at 20.
31 See DK (1950) 802 (Knesset member Meir Vilner); DK (1950) 779 (Knesset member
Yizhar Harari); Guy Mundlak, Social-Economic Rights in the New Constitutional Dialog:
From Social Rights to the Social Dimension of Human Rights, 7 ISR. Y.B. ON LAB. L. 65, 72-73
(1999).
32 RACKMAN, supra note 28, at 20-21; see DK (1950) 803 (Knesset member Meir Vilner).
33 RACKMAN, supra note 28, at 26; see DK (1950) 739 (Knesset member Menahem Begin).
34 RACKMAN, supra note 28, at 26.
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territorial expansion."35 Hence, "[t]hey ... want[ed] the constitution
to avoid any implied waiver of [rights to] any part ... of historic
Palestine, notwithstanding the United Nations General Assembly
resolution."36 However, "[t]he Communist party ... want[ed] the
Constitution to fulfill every provision of the United Nations General
Assembly resolution" and "favor[ed] greater protection for the Arab
minority-including the granting of citizenship to Arabs who were
inhabitants of Israel as of the date that the British mandate
terminated."37
These are only a few of the disagreements that encumbered all
efforts to enact a constitution. Most of the disagreements and
controversies described above fall under the category of, what I call,
"substantive disagreement." Namely, these were disagreements
regarding substantive policies, substantive conceptions of the good,
substantive principles of justice, and substantive rights that should
be advanced, promoted, and enshrined by the new constitution.
These disagreements, however, were not the only type of
disagreements that led to the inability to adopt a written
constitution. Disputes and controversies emerged among the
different factions about structural issues and about the proper
overall constitutional arrangements that should be established (I
will call this category of disagreements "structural disagreement" or
"institutional disagreement").38
It seems safe to say that the consensus among the different
political parties was the wish to establish a democratic form of
government, which meant a form of government decision-making
that guaranteed each political party equal rights of participation
and influence in procedures that determine laws and social
policies39 and in which a central role is given to the principle of
35 Id. at 32.
36 Id. at 34.
37 Id. at 35.
38 For a somewhat similar distinction between disagreements about goals and
disagreements about procedures, see generally JEREMY WALDRON, LAw AND DISAGREEMENT
151-63 (1999).
39 It should be noted that some scholars and public representatives have expressed
objection to the use of the term a "democratic system of government" in regard to Israel's
future system of government. See Paltiel Daykan, Basic Constitution for the State of Israel, 6
HAPRAKLIT 2, 3 (1949). To see the fate of the term "democracy" in the early drafts of the
Declaration of Independence, which in the end was omitted from the Declaration of
Independence altogether, see generally Shachar, supra note 20, at 559-71. While these
objections to the term "democracy" could be mainly interpreted as semantic, some factions
objected substantively to a democratic system of government. These were the orthodox
religious non-Zionist parties like Agudat Yisrael. Goldberg, supra note 28, at 213-14. As one
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majority rule.40 This consensus, however, was very narrow. The
different factions disagreed on what such a decision-making process
requires other than majority rule.
The different factions disagreed on the need to enact a written,
formal constitution as part of this democratic form of government.
The proponents of a written formal constitution argued that it
would protect individual rights by establishing limits on
governmental powers,41 that the promulgation of a constitution was
necessary to achieve international legitimacy,42 that it would stand
as a symbol of Israel's independence,43 and that a written
constitution would serve the pedagogical purpose of educating a
diverse population in the political principles of a democratic
regime.44 The sheer variety of arguments put forward to support
the enactment of a written formal constitution shows that, even
among the supporters of a written constitution, there is a
divergence of opinions and, at times, intense disagreement on the
proper function of the future constitution. Most notable are the
arguments that the constitution could provide for international
legitimacy and that the constitution would stand as a symbol of
Israel's independence.45 Promulgating a constitution to comply with
the United Nations Resolution as a condition for the international
legitimacy of the new State could be thought as an abridgment of
example of the undemocratic nature of Agudat Yisrael, one may mention that the party called
for the ineligibility of any person to hold public office unless he was an observing Jew. See
RACKMAN, supra note 28, at 559-7l.
40 It should be noted that some political science scholars question whether the political
culture of the Yeshuv was truly committed to a democratic form of government. See, e.g.,
DAPHNA SHARFMAN, LIVING WITHOUT A CONSTITUTION: CIVIL RIGHTS IN ISRAEL 33 (1993).
According to these scholars, the convergence on a democratic form of government was due to
convenience and realpolitik. See id. (arguing that the "adoption of democratic rules of the
game [by the Labor and Revisionist movements] was the result of realpolitik rather than their
own world view").
41 DK (1950) 740 (Knesset member Menahem Begin); see also DK (1950) 745 (Knesset
member Yaakov Gil).
42 The Resolution on the Future Government of Palestine, which was adopted by the
General Assembly of the United Nations on November 29, 1947 and provided for termination
of the British Mandate, required that the new state "shall draft a democratic constitution."
G.A. Res. 181 (II), at 135, U.N. Doc. A/519 (Nov. 29, 1947). Thus, some viewed the
promulgation of a constitution as part of the necessity of compliance with the United Nations
Resolution as a condition for achieving international legitimacy. See DK (1950) 715 (Knesset
member Nahum Nir). But see DK (1950) 729-30 (Knesset member Zerach Warhaftig); DK
(1950) 727 (Knesset member David Bar-Rav-Hay).
43 DK (1950) 745 (Knesset member Yaakov Gil).
44 See DK (1950) 734-35 (Knesset member David Bar-Rav-Hay); DK (1950) 719 (Knesset
member Nahum Nir). But see DK (1950) 731 (Knesset member Zerach Warhaftig) (arguing
that Israel should not enact a constitution in order to educate future generations).
45 See supra text accompanying notes 42-43.
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Israel's natural right to sovereignty and independence.
Ben-Gurion and other members of the governing Mapai party,
although they favored a written constitution in 1948, opposed it in
1950 and offered a fourfold argument to support their position.46
First, they "maintained that a constitution would limit the power of
elected politicians;" hence, they perceived an entrenched formal
constitution as undemocratic in nature.47 Second, they argued that
the adoption of a constitution "would give too much power to
minorities and would not enable the government to take action,"
while the government was engaged in nation-building-a goal of
utmost importance.48 Third, they feared the threat of a
kulturkampf-a clash between orthodox and secular-that would
destroy or seriously jeopardize the State.49 Fourth, there was the
"in-gathering of the exiles" argument, according to which a
constitution should be adopted only after the in-gathering of the
exiles.50 This argument, while less concerned with the propriety of
a written constitution as an ultimate goal, was very much concerned
with the process by which the constitution itself should be
adopted.51 Arguably, the adoption of a constitution should follow a
46 BACKMAN, supra note 28, at 16-17.
47 Peleg, supra note 28, at 236; see DK (1950) 817-18 (Knesset member David Ben·Gurion);
see also Dowty, supra note 8, at 11 (noting that "[t]he failure to adopt a written
constitution ... [was consistent] with the traditional power-sharing style of Jewish politics").
48 Peleg, supra note 28, at 236.
49 See DK (1950) 774 (Knesset member Ephraim Taburi). But see DK (1950) 767 (Knesset
member Meir Yaari) (questioning this argument and arguing that the unwillingness of the
governing coalition should not be traced to the possibility of a kulturkampfbut rather is based
on political convenience).
50 See DK (1950) 726-27 (Knesset member David Bar-Rav-Hay).
51 Professor Gavison notes that the in-gathering of the exiles argument was, of course,
embedded in Zionist ideology, which viewed the State of Israel as a state of the Jewish People
for the Jewish People: The in-gathering of the exiles argument is an "argument [that] would
be inconceivable and clearly objectionable in almost any other country and it reveals one of
the unique features of Israel." Ruth Gavison, The Controversy Over Israel's Bill of Rights, 15
ISR. Y.B. ON HUM. RTS. ll3, 135 (1985) [hereinafter Gavison, Controversy Over Israel's Bill of
Rights]. Professor Gavison is correct to the extent that the in-gathering of the exiles
argument is deeply rooted in Zionist ideology. It, however, should be noted that her argument
is in fact a version of a general argument questioning the legitimacy of a formal entrenched
constitution, which is designed to bind future generations or people who did not participate in
its enactment. The roots of this argument can be traced to the eighteenth century in the
writings of David Hume that objected to the tradition of the social contract. See DAVID HUME,
OF THE ORIGINAL CONTRACT (1748), reprinted in SOCIAL CONTRACT: ESSAYS BY LOCKE, HUME,
AND ROUSSEAU 147, 151 (Greenwood Press 1980) (1947). Hume identified two problems with
the social contract tradition. The first is that it is based on historical consent or contract
although facts and historical evidence do not support the claim that modern societies are
based on such a contract. Id. at 150-51. The second problem, which is important to our
discussion, is that clinging to such an original contract "supposes the consent of the fathers to
bind the children, even to the most remote generations (which republican writers will never
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process that gIves fair opportunity to "the entire potential
population" to participate.52 Usually, a constitution is created for
the population living within the borders of the state.53 Israel's
situation, however, was different; its population was fluid at that
time and some Zionist leaders demanded that the enactment of the
constitution should commence only after the in-gathering of the
exiles.54 It was an argument about the political legitimacy of the
process of adopting a new constitution. Needless to say, these
arguments did not dissuade the proponents of a written constitution
and attributed an ulterior motive to Ben-Gurion and the Mapai
party based on the desire not to be restricted by a constitution.55
But structural and institutional disagreements were not focused
entirely on the need for a constitution or the manner in which it
should be adopted.56 Other structural and institutional
disagreements also occurred. For example, there were structural
disagreements about the composition of the legislature. "The
General Zionists and Progressives both prefer[red] a bicameral
legislature, feeling that a second house helps to avoid errors in
allow)." Id. at 151. The implications of Hume's argument for constitutional arrangements are
enormously important since constitutions are often designed to bind future generations.
Thus, scholars like Thomas Paine and Thomas Jefferson, who perceived the United States
Constitution as a basic contract and pushed for its approval, maintained that every
generation should enact a constitution for its own. See THOMAS PAINE, THE RIGHTS OF MAN
267, 277-78 (Dolphin Books 1961). See also, in this regard, Knesset member Nahum Nir's
proposal to enact a constitution which would bind only one generation and would be open to
revisions every twenty years. DK (1950) 718. Understanding the in-gathering of the exiles
argument through Hume's objection to the social contract theory is an argument that
questions the legitimacy of formal constitution-making.
52 Amos Shapira, Why Israel Has No Constitution, But Should, and Likely Will, Have One,
37 ST. LOUIS U. L.J. 283, 285 (1993).
53 Id.
54 Id.
55 See DK (1950) 739 (Knesset member Menahem Begin).
56 Another controversy that emerged regarding the device of a written constitution was
about its formulation. The socialist parties, like Mapam, demanded that the constitution
should not only fully describe social and economic rights, but also prescribe the ways and
arrangements by which their implementation could be achieved. HACKMAN, supra note 28, at
20. Other political parties, however, like the General Zionists and the Progressives,
suggested "a brief constitution that would set forth only general principles" in order for it to
last as long as possible. Id. at 24. It is worth noting that the General Zionists' and the
Progressives' objections to a specific constitution were based on the fear that it would "giveD
rise to many unintended inferences" since "omissions can then become the subject of extensive
interpretation." [d. Today, many legal scholars believe that a vague constitution poses a
greater danger in regard to unintended consequences. See, e.g., Mario J. Rizzo & Douglas
Glen Whitman, The Camel's Nose Is in the Tent: Rules, Theories, and Slippery Slopes, 51
UCLA L. REV. 539, 590 (2003) (arguing that vague terms in any constitution will lead to
debates about their meanings and different interpretations).
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legislation."57 Mapai and other parties, on the other hand, generally
preferred a unicameral legislature.58
In addition, disagreement existed over "the issue of general
national elections versus district or area representation."59 Some
parties, like Herut, favored district representation.60 The
Communists "favor[ed] proportional representation on a national
basis."61 Mapai was divided on this issue because "[w]hile its
platform for the 1949 elections favored [national elections]," many
members held the opposing view as well.62 Some scholars even
attributed Ben-Gurion's objection to a formal constitution to his
unwillingness to constitutionally entrench the general election
system, which would lower the chances of changing it in the
future.63
Moreover, disagreement also existed over the structure of the
government and the head of the State, the president. "Mapai
favor[ed] the election of the president by the legislature" with the
president being assigned only minor powers.64 Herut preferred that
the president be elected in popular national elections.65 The
General Zionists and Progressives wanted the president to "have
powers comparable to those of the president of France" and the head
of the government to have the power to dissolve the legislature and
call for new elections.66
Furthermore, one should especially note the disagreements about
the propriety of judicial review as an enforcement mechanism.
Some argued that entrusting the courts with powers of judicial
review might introduce a preserving, hindering force into the Israeli
political system that would prefer property rights over human
rights and progress.67 Others suggested that a special tribunal in
57 RACKMAN, supra note 28, at 25 (footnote omitted).
58 Id.at17.
59 Id.
60 Id. at 34.
61 Id. at 35.
62 Id.at17.
63 See, e.g., Giora Goldberg, "You Don't Need a Constitution to Plant Trees':' On StateBuilding
and Constitution-Framing, 38 ST. GOV'T & INT'L REL. 29, 44 (1993).
64 RACKMAN, supra note 28, at 18.
65 Id. at 34.
66 Id. at 25.
67 Ben-Gurion, for example, argued that judicial review was not only undemocratic, but
also might lead to injustice.
[In] the United States, ... the Supreme Court took upon itself the right, despite the fact
that it was not exactly so authorized in the Constitution, to determine whether a law
made by the people's representatives in the Congress suits or contradicts the
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special proceedings should conduct the review,68 or that judicial
review should be limited to "a [certain] period after the law ha[d]
been passed," or that the constitution should enable "the
Legislature [to] override judicial determination of
unconstitutionality by a special majority."69
Hence, it was disagreement from top to bottom that prevented the
adoption of a constitution. At times it seemed that every two
Knesset members had three opinions. Good examples in this regard
are Prime Minister Ben-Gurion and the chairman of the
Constitution Committee of the Provisional State Council (1948-49),
Knesset member Zerach Warhaftig; at first, they supported the
enactment of a constitution, but, later on, they strongly opposed its
enactment and finally argued that it was already enacted.70
The founders of the State of Israel disagreed about the values,
aspirations, and goals that the constitution should advance. They
disagreed about the institutional structure that the written
constitution should establish and whether a written constitution
was needed at all. They disagreed about structure and institutional
schemes, as well as principles, aspirations, and goals. All these
disagreements led to the failure to adopt a constitution. Some of
these disagreements, to be sure, were bridgeable, while others were
not. Some believe that the leadership of the Yeshuv-the Jewish
community in Eretz Israel-feared a kulturkampf between secular
and religious circles that could have arisen from a confrontation
with the religious parties, jeopardizing the nation-building project
at that time.71 Others believe that Ben-Gurion concluded that he
Constitution, and it has the power to void a law, even if the large majority of the people
and their representatives support it, on the ground that it violates the Constitution and
so the [United States) Supreme Court turned into a preserving, hindering force, which
prefers property rights over human rights. And when it was decided, in the United
States, to impose income tax, the rich came to argue before the Supreme Court that the
law contradicts the Constitution, and the Supreme Court voided the inheritance law
[sic], making it necessary, eventually to amend the Constitution .... There was a second
case where Congress regulated child labor, and the Supreme Court ... voided this law on
constitutional grounds. And so it is a bit strange that here [in Israel), parties in favor of
'progress' and proponents of the 'power of tomorrow' enthusiastically seek such a regime.
DK (1950) 816. Some scholars attributed Ben-Gurion's objection to a constitution to his fear
that a constitutional system would establish a strong judiciary. Strum, supra note 3, at 92-
93 (referring to Claude Klein's belief that Ben-Gurion feared a strong judiciary).
68 See, e.g., DK (1950) 717 (Knesset member Nahum Nir).
69 Gavison, Controversy Over Israel's Bill ofRights, supra note 51, at 140 n.83.
70 For Ben-Gurion's positions, see HACKMAN, supra note 28, at 16-17. For Knesset
member Zerach Warhaftig's positions, see DK (1950) 729--30.
71 See DK (1950) 774 (Knesset member Ephraim Taburi).
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would have more flexibility without a constitution.72 In any event,
it was a fundamental disagreement that prevented the enactment of
a written constitution in the formative era of the State. Every
faction interpreted the conditions of legitimacy of a Jewish
democratic state in its own way.73 Hence, Israel's failure to adopt a
constitution in the formative years is frequently portrayed in a
similar light, where considerations of partisan advantage received
ample attention and prevented the enactment of a constitution.
Every faction sought to advance its own good over the good of the
community as a whole. A commitment to certain partisan
aspirations, goals, and values led one to a commitment to a certain
structure or to a certain institutional scheme.
C. Disagreements Around the Harari Resolution
Unable to adopt a constitution, the political parties devised a
political compromise, later to be known as the "Harari Resolution."74
According to the Harari Resolution, the Knesset would enact the
constitution gradually in incremental steps, which would eventually
be harmonized to form a complete constitution.75 However, as is
often the case with political compromises, the Resolution was far
from clear about the process it required and vague about core
constitutional issues. First, it is not at all clear according to what
procedure the constitution was to be accepted and ratified.76
72 See Strum, supra note 3, at 92-93.
73 See TOM SEGEV, 1949: THE FIRST ISRAELIS 285 (Arlen Neil Weinstein ed., 1986) (arguing
that Ben-Gurion and Mapai leaders had "a genuine commitment to the restrictions of
democracy and the rule of law, but they often interpreted them in their own way-'for the
good of the state,' 'for security reasons,' or even 'for the good of the party"').
74 The "Harari Resolution," named after its author, was accepted at June 13, 1950 and
held:
The First Knesset charges the Constitutional, Legislative, and Judicial Committee to
prepare a draft Constitution for the State. The Constitution shall be composed of
individual chapters so that each chapter will constitute a basic law in itself. The
chapters shall be brought before the Knesset to the extent which the Committee will
terminate its work and all the chapters together will form the State's Constitution.
DK (1950) 1743 (author's translation).
75 Id.
76 Benjamin Akzin, Basic Laws and Entrenched Laws in Israel, 17 HAPRAKLIT 230, 232-33
(1961); Amos Shapira, Judicial Review Without a Constitution: The Israeli Paradox, 56
TEMPLE L.Q. 405, 410 (1983) [hereinafter Shapira, Judicial Review]. Shapira notes that the
Harari Resolution neither set a timetable for the adoption of individual Basic Laws or to their
ultimate grouping into a single constitutional instrument nor was it clear whether this
process was confined to the First Knesset or whether it imposed upon succeeding Knessets
the legal duty to enact a constitution. Shapira, Judicial Review, supra, at 410. In addition, it
is unclear whether, upon the completion of each chapter (each Basic Law) and its affirmation
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Second, not addressed at all were the core constitutional issues,
such as the normative status of Basic Laws vis-a-vis ordinary
legislation,77 their legal source,78 and the potential enforceability of
the various Basic Laws.79 For some, like Ben-Gurion, the Harari
Resolution signified the adoption of the British constitutional model
of parliament sovereignty-in the form of an unqualified majority
rule.80 For them, even limitations that originated in the Knesset
itself had no validity because the present Knesset could not bind its
successors.81 For others, the resolution signified a gradual process
by which it would be possible to adopt the American constitutional
model.82 For them, the present Knesset could bind its successors by
by the Knesset, the new Basic Law is constitutionally enforceable or whether the new Basic
Law will be applicable only after the enactment of the last chapter and the affirmation of the
constitution as a whole. Id. at 429.
77 One of the questions left open by the Harari Resolution, and to which Israeli
constitutional law has been tormented over, was about the significance of the fact that a law
is labeled or designated as "Basic." It is far from clear if this renders it a higher form of law
than other enactments of the same or succeeding Knessets. See Shapira, Judicial Review,
supra note 76, at 410. In addition, a question arose over what is the normative status of other
laws not designated "Basic" that may be regarded as "constitutional" by virtue of their
substance (i.e., the Equal Rights to Women Law of 1951) or due to the process of their
enactment and their entrenchment (i.e., the Public Investments Protection Law of 1984).
78 The Harari Resolution did not provide whether the ultimate legal source of Basic Laws
was the constituent authority to establish the "supreme law of the land" (similar to the
American model) or the doctrine of the "sovereignty of the Knesset" (like the English model).
79 There is neither any mention of the mechanism by which constitutional review will be
made possible by judicial review or other tribunal nor a clue about the nature of such review,
whether such review will enjoy ultimate supremacy or will enjoy only partial supremacy that
could be overridden by a special procedure. See id. There were a number of mechanisms that
were considered as an alternative to "classic" judicial review. Gavison, Controversy Over
Israel's Bill of Rights, supra note 51, at 140 n.83; see supra notes 76-77 and accompanying
text.
80 See Aronson, supra note 13, at 208. For Ben-Gurion, the adoption of Basic Laws did not
mean the adoption of a constitution, but rather a set of laws that did not differ from other
laws. Id. But see T.R.S. ALLAN, CONSTITUTIONAL JUSTICE: A LIBERAL THEORY OF THE RULE
OF LAw 201 (2001) (arguing that the British constitutional model is not based solely on the
sovereignty of the parliament, but rather on dual sovereignty-the sovereignty of the
parliament and the sovereignty of the courts); Sir Stephen Sedley, The Common Law and the
Constitution, in THE MAKING AND REMAKING OF THE BRITISH CONSTITUTION 19, 26 (1997)
(discussing that the sovereignty of the British Parliament and British Courts, as opposed to
the British Executive).
81 The proponents of this view believed that Israel's constitutional framework was based on
"[t]he orthodox English view ... that Parliament is not bound by acts of its predecessors, and
that this rule, unlike all other rules of the common law, cannot itself be changed by statute."
Eliahu Likhovski, The Courts and the Legislative Supremacy of the Knesset, 3 ISR. L. REV. 345,
362 (1968) (footnote omitted) [hereinafter Likhovski, Legislative Supremacy]. According to
this view, the rule that parliament cannot bind itself "is one of the ultimate legal principles
forming the basis of the system of government." Id.
82 See Eliahu Likhovski, Can the Knesset Adopt a Constitution Which Will Be the "Supreme
Law of the Land"?, 4 ISR. L. REV. 61, 63-64 (1969) [hereinafter Likhovski, Supreme Law of the
Land].
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enacting Basic Laws.
Although the Harari Resolution "provided [some] political and
normative framework for the gradual adoption of basic laws by the
Knesset,"83 their nature and character as well as the Harari
Resolution itself were open to various interpretations.84 In fact, the
Harari Resolution did not resolve the disagreements, controversies,
and disputes about Israel's constitutional arrangements, but rather
incorporated them into its vague wording that left the field open to
numerous constitutional choices.
Later occurrences raised further doubts with regard to the Harari
Resolution as a framework for the gradual adoption of a formal
constitution. First, "[n]othing further was done [about the adoption
of a constitution beyond the acceptance of the Harari Resolution]
during the remaining term of the First Knesset."85 The First
Knesset did not adopt any Basic Law, let alone a complete
constitution.86 Second, toward the end of its term, the First Knesset
enacted the Second Knesset (Transition) Law (1951) that pretended
to pass the authority granted to the First Knesset to enact a
constitution to subsequent elected Knessets.87 Many scholars, who
reject the thesis regarding the Knesset's continuing constituent
authority, single out the Second Knesset (Transition) Law as a weak
link in Israel's chain of continual constitutional authority.88 Some
Since nothing was clearly said on the subject [of Knesset supremacy as the ultimate of
the law of the Constitution], it must be assumed that those voting for the [Harari]
Resolution were notionally divided into two major groups. The first group must be taken
to have assumed that the ultimate basis of the Constitution would remain the doctrine of
the "sovereignty of the Knesset". [sic] They must be taken to have assumed that "all
Chapters together" would become a Constitution, amendable from time to time by the
same "legislative process" as any other statute.
Others voting for the Resolution must be taken to have assumed that the enactment of
each individual "Basic Law" would be a step taken in the direction of the gradual
development ... of a written rigid Constitution. Those so voting must have been moved
by the belief that the existing legal system was capable of producing a Constitution
which would become "the supreme law of the land". [sic]
Id. (footnotes omitted).
83 Shapira, Judicial Review, supra note 76, at 410.
84 See, e.g., Likhovski, Supreme Law of the Land, supra note 82, at 64-65.
85 Melville B. Nimmer, The Uses of Judicial Review in Israel's Quest for a Constitution, 70
COLUM. L. REV. 1217, 1220 (1970).
86 Id.
87 Second Knesset (Transition) Law, 1951, S.H. 104 § 5 ("The Second Knesset and its
members shall have all the powers, rights, and duties of the First Knesset and its members.").
And section 10 states that this law is applicable "to the third and any subsequent Knesset,
unless otherwise is enacted in this regard by the Knesset." Id. § 10.
88 See, e.g., Likhovski, Legislative Supremacy, supra note 81, at 358; Nimmer, supra note
85, at 1239-40; M. Steinberg, Another Act or a Supreme Legal Form, 16 MOLAD 284 (1958);
see also CA 6821193 United Mizrahi Bank v. Migdal Communal Vill. [1995] IsrSC 49(4) 221,
HeinOnline -- 70 Alb. L. Rev. 427 2006-2007
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questioned the use of an ordinary law as a means to transfer the
constituent powers from the First Knesset to succeeding Knessets.
Others questioned the intent to transfer the constituent powers by
the Second Knesset (Transition) Law. But the most damaging
critique in respect to the Knesset's continuing constituent authority
was raised by Professor Melville Nimmer. According to Nimmer,
even if one accepts the proposition that the First Knesset intended
to transfer the constituent authority to succeeding Knessets, one
must ask whether it had the power to do SO.89 Nimmer notes that
"[i]t would be strange, indeed, to view [the constituent] authority as
a kind of property right which the owner can freely transfer to
others."9o The First Knesset was given the authority to adopt a
constitution, but transferring that duty to others could hardly be
seen as legally appropriate.91
Not only did the legal legitimacy of the Harari Resolution come
under attack but also its political propriety and legitimacy was
questioned. According to Professor Mark V. Tushnet, the
constitutional process set forth by the Harari Resolution lacks
political legitimacy because the Basic Laws were enacted by the
same authority that was elected to carry out the programs of
ordinary politics.92 The political justification for the powers of
constituent assemblies to bind the ordinary legislature is based on
the presupposition that constituent assemblies are created and
operate at times in which the people show a "high degree of
attentiveness to [and involvement in] fundamental matters."93
Accordingly, a formal constitution is the product of "constitutional
politics," which enjoys wide popular support and is meant to create
the framework and basic rules for ordinary politics.94 Tushnet
483-85.
89 Nimmer, supra note 85, at 1239.
90 Id.
91 Nimmer claims:
[T]he [constituent] authority may be said to arise from something more in the nature of a
trust relationship established between the electorate and the particular men whom they
elected for the avowed purpose of writing a constitution. Nothing in the creation of the
trust implied that the trustees might transfer this power to others who had not been
elected for this purpose. Only in the first election was the electorate properly put on
notice that their representatives would engage in constitution-making.
Id.
92 Tushnet, supra note 16, at 1331-32.
93 Id. In this regard, Tushnet follows Bruce Ackerman. See generally 1 BRUCE ACKERMAN,
WE THE PEOPLE: FOUNDATIONS 173-86 (1991).
94 Ruth Gavison, The Lessons of the Federalist and the Constitutional Process in Israel, 11
TEHELET 21 (2002).
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argues that since constitution-making in Israel does not correspond
to the ideal of popular sovereignty and is not based on the
distinction between constitutional norms (the product of
constitutional politics) and ordinary norms (the product of ordinary
politics), it lacks political legitimacy to limit ordinary politics.95
Similar to Tushnet, Professor Eli Salzberger attacked the political
legitimacy of the Harari Resolution and the gradual adoption of
Basic Laws by the Knesset.96 According to Salzberger, Basic Laws
cannot be perceived as part of a constitution because they are
enacted by the same authority they are meant to limit.97
Decisions
reached by the People's representatives in constituent assemblies
enjoy political legitimacy because they often incorporate norms that
benefit the People as a whole. The political legitimacy of the
constitution is based on the fact that its prescriptions and
arrangements are accepted in circumstances similar to John Rawls's
veil of ignorance.98 These circumstances prevent the incorporation
of narrow and selfish interests into the basic rules and principles
that govern ordinary politics. The gradual adoption of a
constitution and its infusion with ordinary politics does not satisfy
these requirements and cannot provide us with such neutral
prescriptions.
D. Disagreements and the ((Decision Not to Decide" as a
Constitutional Tactic to Achieve Social Cooperation
Mter surveying the different positions of the political parties
concerning the constitution in the formative years, Professor
Rackman in his book Israel's Emerging Constitution 1948-51
concluded that "[n]o new insight on political institutions or human
rights was forthcoming" from the Israeli experience in constitutionmaking.99
Rackman hoped that "[p]erhaps in the future Israel's
political literature will be written by persons who are not
professional party politicians, and then it will command more
95 Tushnet, supra note 16, at 1331-32.
96 See Eli Salzberger, The Emergency Regulations of the British Mandatory GouernmentLeon
v. Gubernik and Zeev v. Gubernik, in REFLECTIONS UPON DECISIONS OF THE ISRAELI
SUPREME COURT DURING THE FIRST YEAR OF ISRAEL'S INDEPENDENCE 41, 46-47 (Daphne
Barak-Erez ed., 1999).
97 Id. at 46.
98 See generally JOHN RAWLS, A THEORY OF JUSTICE 118-23 (rev. ed. 1999) [hereinafter
RAWLS, THEORY OF JUSTICE).
99 RACKMAN, supra note 28, at 36.
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universal interesL"lOO But there was something universal, on the
one hand, and unique, on the other, in the Israeli experience in
constitution-making. The founders of Israel were confronted with a
fundamental disagreement about the conditions of legitimacy upon
which the new State and its institutions should rest. They, like
many founders of new states before them, were faced with the
problem that people disagreed about what a just, good, and
democratic regime presupposes and what are the conditions for its
legitimacy. In Israel's particular case, the problem was made even
more acute because of the unique background of the Jewish People
and the Jewish State. Israel is not unique in having fundamental
disagreements at its founding and seeking compromises to
accommodate them. Other western democratic states have had the
same experience; it is an almost universal feature of constitutionmaking
in modern societies.101 Unlike many other states, however,
that concluded their foundation by accepting a written constitution,
Israel failed to do so. Very often disagreements become intertwined.
For example, Ben-Gurion's objection to a written constitution was
partly motivated by his fear of an independent judiciary capable of
striking down laws.102 When disagreement about one constitutional
structure (e.g., judicial review) leads to disagreement about another
(e.g., written constitution), they become intertwined internally. But
disagreements may also intertwine externally. A disagreement over
substance leads to a disagreement over structure and vice-versa.
People disagree about what the common good is, about which rights
they have, and about which social policies the State should advance.
In the absence of an agreement about which values, goals,
aspirations, and rights should be promoted, a political community
cannot devise a political structure to further these ends or to
sustain these values. At the same time, even when one tries to
resolve these disagreements by appealing to some procedural
process, as in the Harari Resolution, disagreements over the
propriety of the new process also emerge and take center stage. It is
not the existence of disagreement that is unique in Israel's
constitutional history but the failure to adopt a constitution as a
100 Id.
101 See, e.g., THE FEDERALIST NO. 10 (James Madison) (emphasizing disagreements in
American constitution·making by stating that "[i]t is in vain to say that enlightened
statesmen will be able to adjust [their] clashing interests, and render them all subservient to
the public good").
102 See Strum, supra note 3, at 92-93.
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direct result of this disagreement.
Today, many philosophers and constitutional scholars reflect time
and again on the significance of disagreements, disputes, diversity,
and pluralism as a defining feature of modern western
democracieslO3 and on the ways constitutional structures should
accommodate these disagreements.104 They argue that modern
constitutional democracies attempt to accommodate disagreements
by adopting constitutions, which incorporate fair terms of
cooperation,105 secure political and legal stability,106 enhance public
discourse between different factions, 107 and enable democratic
reflection and decision.!Os Israel's constitutional experience is
unique in the sense that it attempts to accommodate disagreements
over the conditions of legitimacy (disagreements of substance and
structure) by postponing the adoption of a constitution.
The ultimate constitutional strategy taken by the founders of the
State of Israel, as expressed by the Harari Resolution, was the
decision not to decide. While this resolution called for the gradual
adoption of a constitution, as noted by Professor Daphne BarakErez,
the gradual adoption of a constitution "proved to be an
abstention from doing" that very thing.109 The founding fathers
decided to leave open the questions of if, when, and how Israel
should adopt a constitution. They decided not to resolve divisive
fundamental questions of values, principles, and structures as they
concern the Jewish nature of the State, the democratic nature of the
State (specifically, the relation of the new State to the Arab
103 See JOHN RAWLS, POLITICAL LIBERALISM 339 (1993) [hereinafter RAWLS, POLITICAL
LIBERALISM]; see also WALDRON, supra note 38, at 294-95 (discussing the inapplicability of
the "results-driven test" for constitutional choice).
104 On the forces and mechanisms in the enactment of a formal written constitution, see
generally Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 DUKE
L.J. 364 (1995); Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. PA.
J. CONST. L. 345 (2000).
105 See 2 BRIAN BARRY, JUSTICE AS IMPARTIALITY 93-99 (1995); JOHN RAWLS, JUSTICE AS
FAIRNESS: A RESTATEMENT 46 (Erin Kelly ed., 2001); RAWLS, THEORY OF JUSTICE, supra note
98, at 6; RAWLS, POLITICAL LIBERALISM, supra note 103, at 339.
\06 See HANNAH ARENDT, ON REVOLUTION 174 (1965); WALDRON, supra note 38, at 75-77;
Jeremy Waldron, Bruce Ackerman: We the People: Volume I, Foundations, 90 J. PHIL. 149,
151-52 (1993) (book review). On the fear from instability in countries lacking a formal
constitution, see Benjamin Akzin, Problems of Constitutional and Administrative Law, in
INTERNATIONAL LAWYERS CONVENTION IN ISRAEL 1958, at 161, 168 (1958); Benjamin Akzin,
On the Stability and Reality of Constitutions, 3 SCRIPTA HIEROSOLYMITANA 313 (1956).
\07 STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY
169-72 (1995).
108 See CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 98-99 (2001).
109 Daphne Barak-Erez, From an Unwritten to a Written Constitution: The Israeli
Challenge in American Perspective, 26 COLUM. HUM. RTS. L. REV. 309, 314 (1995).
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minority), and the State's relationship with the neighboring Arab
states (the question of.borders, for example). Instead, they opted for
a parliamentary decision-making procedure embodied in the
Knesset and its proceedings.110 The founders of the State did not
specify the theoretical ground behind this process of decisionmaking-whether
it was based on the unqualified supremacy of the
legislature, as in the British constitutional model, or on the powers
of the Constituent Assembly, which might lead to the American
constitutional mode1.1l1 Nor did they specify the fundamental
values animating the Israeli system of government-whether they
were thinking about these fundamental values only in majoritarian
and procedural terms or whether they also sought to protect
minority and individual rights as part and parcel of these
fundamental values. Thus, the founders of the State of Israel failed
to adopt a written constitution (including a bill of rights) not
because they did not consider it, but because they were intensely
divided over the issue of what it should contain.
All these aspects, and many others described above, were matters
of intense controversy. Their solution was the adoption of a
gradual, piecemeal, and incremental process, which enabled
avoidance of matters that could endanger the establishment of the
new State. However, taking into account Israel's background of
disagreements, it should not be surprising that disagreements and
controversies arose about the Harari Resolution itself, and not only
about its specific meaning and the procedures it established, but
also about its legal and political legitimacy-whether the Knesset
had acquired legal and political authority to enact a constitution by
this resolution.
Professor Gavison argues that Israel is unique because it exhibits
a certain type of disagreement, one that could not be found in other
western democracies:
[E]ven if there are disagreements in a certain legal system
about the meaning of a specific constitutional
arrangement ... there is no system apart from Israel that
shows continuing disagreements in regard to whether a
certain organ is authorized to accept a constitution, whether
110 In fact, at that time, many scholars argued that Israel's parliamentary democracy
should not be interpreted in majoritarian and procedural terms alone, but rather as being
committed to agreements and compromises that acknowledge the legitimate interests of
minorities. See, e.g., Daykan, supra note 39, at 4.
111 See Likhovski, Supreme Law of the Land, supra note 82, at 63-64.
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this authority was used so Israel already has a constitution
and if so what are its nature and characteristics. Part of
Israel's constitutional uniqueness is based on the fact that
these questions have lingered since Israel's formation. 1l2
Unfortunately, I cannot wholly agree with Professor Gavison's
analysis. While Israel is certainly unique in having these particular
disagreements, they do not differ in kind from disagreements that
exist in the United States or in the United Kingdom about present
constitutional arrangements. Disagreements about such questions
as "what is the form of government constituted by the American
Constitution"113 or "whether the British system is based on the
unqualified authority of the parliament"114 are, in my opinion, of the
same quality as the constitutional disagreements in Israelsubstantive
and structural disagreements about the nature of
constitutional regimes. The circumstances of disagreements in the
light and heat in which Israel was established and operates exist to
some degree in other modern democratic states. Israel is unique
because the tactic chosen at its foundation was the decision not to
decide. The process of adopting a constitution for the State of
Israel-a constitution that was meant to regulate the normal
operation of the new State and its institutions-was prolonged for
over half a century, and there is no end in sight. Hence, the
abnormal state of affairs of forming a constitutional framework
became the normal state of affairs of Israeli politics. While other
western democracies achieved social cooperation among factions
mostly by adopting a constitution, Israel achieved it by not deciding
on adopting a constitution. Israel's constitution-making history
shows not only that a constitution is sometimes unnecessary for
social cooperation, but also that social cooperation sometimes
depends on not deciding about the adoption of a constitution.
To make my argument about the practice of non-decision
constitution-making clearer, it should be pointed out that founders
or legislatures who choose to "decide not to decide" are able to make
112 Gavison, Self-fulfilling Prophecy, supra note 2, at 73 (author's translation).
113 Compare the different accounts put forward by American scholars of the American
constitutional form of government. See generally ACKERMAN, supra note 93 (arguing for a
"dualist democracy"-a system of democratic lawmaking made by the people and their
government); RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION (1996) (supporting a moral reading of constitutions); RONALD DWORKIN, LAw's
EMPIRE (1986) [hereinafter DWORKIN, LAw's EMPIRE] (discussing a moral reading reading of
constitutions); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDIClAL REVIEW
(1980) (arguing for strict interpretation of constitutions).
114 See supra text accompanying note 111.
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such a decision because of two operating conditions. First, there are
some profound disagreements over structure and substance; these
are respected by leaving them undecided. Second, there exists
broad consensus about a whole range of other substantive and
structural constitutional issues and that consensus makes it
possible to craft pragmatic solutions to arising problems.115 That
the founding fathers of Israel decided not to decide on a formal
written constitution and other constitutional issues does not mean
that Israel never had a material constitution (as opposed to a formal
constitution).116 The actual practical arrangements reveal the broad
rules and principles at the core of the Israeli form of government:
the national resurrection of the Jewish People in Israel; a regime of
one person, one vote embodied in the legislature; the independence
of the judiciary; and the common law principle of the rule of law
(also known as government under the law).117 Some of these rules
and principles, underlying Israel's material constitution, are those
of every free regime and every liberal democracy.118 In addition,
Israel's material constitution embodied concrete arrangements, such
as the formula of status quo for conflict resolution in matters of
religion and state1l9 and the Law of Return, which granted every
Jew the right to acquire citizenship.120
A second important feature of my argument for the legitimacy of
115 See CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME
COURT 62-72 (1999) (discussing that a well·functioning constitutional democracy has an
essential set of commitments which comprise the core of the government).
116 See Shapira, Judicial Review, supra note 76, at 417.
117 Asher Maoz, Constitutional Law, in THE LAw OF ISRAEL: GENERAL SURVEYS 5, 30
(Itzhak Zamir & Sylviane Colombo eds., 1995); Shimon Shetreet, Developments in
Constitutional Law: Selected Topics, 24 ISR. L. REV. 368 (1990); see also Shapira, Judicial
Review, supra note 76, at 418.
118 See SUNSTEIN, supra note 115, at 64-67 (listing commitments that are "essential
safeguards of a free people" and found in the United States Constitution).
119 Rather than consisting of a set of principles, the status quo was a collection of
arrangements on the relationship between religion and the State. See Gidon Sapir, Religion
and State in Israel: The Case for Reevaluation and Constitutional Entrenchment, 22
HASTINGS INT'L & COMPo L. REV. 617, 619 (1999). Sapir identifies the following elements as
constituting the status quo: first, "an understanding of the legal status of religious courts and
their exclusive jurisdiction over matters of personal status;" second, the existence of publicly
funded religious councils and other administrative bodies in each locality that provide
religious services; third, an educational system divided by law between state schools and
religious schools, both of which are funded by the state; fourth, "observance of the Sabbath
and religious holidays;" fifth, the "observance of Jewish dietary laws" and restrictions on the
production of pork to certain areas; and sixth, "de facto exemption from army service [of]
Orthodox yeshiva students." Id. at 620--24.
120 On the Law of Return as part of Israel's constitutional order, see EA 2/88 Ben-Shalom
v. Central Election Commission to the 12th Knesset [1988] IsrSC 43(4) 221, 259 (holding that
the Law of Return is one of Israel's most fundamental laws).
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"deciding not to decide" in order to achieve social cooperation is that
I do not portray the Israeli society and system of government in
bright colors alone. There were, and, in fact, there are still, laws,
regulations, orders, and judicial decisions in the Israeli legal system
that are tainted by injustice, discrimination, and blatant violations
of rights. My argument is that the tactic of deciding not to decide on
a formal constitution and the basic structure constituted by this
tactic was morally and politically legitimate. One may find here an
echo of an approach presented by Rawls and other philosophers on
different ways by which we can assess laws, judicial decisions,
practices, and directives.121 The first way to assess laws,
regulations, orders, and judicial decisions is by directly appealing to
the concept of justice.122 According to this way of assessment, any
given law, regulation, order, or judicial decision may be considered
unjust if it violates the requirements of the proper conception of
justice. The second way to assess laws, regulations, orders, and
judicial decisions is by appealing to "their pedigree." "[They] are
legitimate, not because they are just but because they are
legitimately enacted in accordance with an accepted legitimate
democratic procedure."123 My claim for the legitimacy of the
constitution-making tactic of deciding not to decide does not mean
that every law, regulation, order, or judicial decision in Israel of the
formative years was just or moral. Rather, I argue that the basic
structure established by this constitution-making tactic was
legitimate largely because it achieved social cooperation based on
democratic foundations. Hence, while some laws, regulations,
orders, and judicial decisions in the formative era would probably
fail the first test of legitimacy, they would pass the second test of
legitimacy that was enacted in accordance with an accepted and
legitimate democratic procedure.
E. Disagreements, the Failure to Enact a Constitution, and the
Protection of Human Rights
As we saw above, one of the arguments in favor of a written
constitution was the need to protect human rights.124 So, we must
ask whether the protection of human rights was, like a written
121 RAWLS, POLITICAL LIBERALISM, supra note 103, at 428.
122 Id.
123 Id.
124 See supra text accompanying note 41.
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constitution, sacrificed on the altar of social cooperation. Many
scholars of political science seriously question whether Israel's
parliamentary democracy was founded on a true commitment to
liberal democratic ideals.125 They argue that the political culture of
the Yeshuv did not truly respect civil rights and liberties.126 In fact,
they view the First Knesset's failure to adopt a constitution and a
bill of rights as conclusive evidence to that effect. Accordingly, the
constitution-making tactic of deciding not to decide is portrayed as
antagonistic to civil rights and liberties.
Refuting this claim requires a detailed discussion and
examination. I will start by saying that not only do I not think that
disagreements and the tactic of deciding not to decide were
antagonistic to the adoption of a discourse of rights, I believe that
they provide a fertile ground for its growth and enabled the Israeli
Supreme Court to take the role of providing and protecting human
rights. Ronald Dworkin, in a well-known article The Original
Position, classifies political theories as right-based, duty-based, or
goal-based.127 In his view, it is possible to identify some judgments
that are more basic than others and to ascertain some overriding
goals, fundamental rights, or transcendent duties as fundamental to
all other judgments.l28 A goal-based theory would take some goals,
such as the survival of the State of Israel, as fundamental. A rightbased
theory would take some rights, such as the right to equal
concern, as fundamental. A duty-based theory would take some
duties, such as the duty to obey God's will, as fundamental. Goalbased
and duty-based theories are "especially compatible with
homogeneous societies" and with those "united by an urgent,
overriding goal [or duty]" (for instance, self-defense and the duty to
obey God's Will).129
Accordingly, the political culture of the Yeshuv would seem to be
best characterized as a goal-based or duty-based political culture.
Israel in the 1950s was a state born in war that remained under
emergency conditions for a long period of time.130 For this reason,
125 See, e.g., HOROWITZ & LISSAK, supra note 16, at 145; Peleg, supra note 28, at 242;
Strum, supra note 3, at 95-96.
126 See, e.g., HOROWITZ & LISSAK, supra note 16, at 145; Peleg, supra note 28, at 242;
Strum, supra note 3, at 95-96.
127 Ronald Dworkin, The Original Position, in READING RAWLS: CRITICAL STUDIES ON
RAWLS' A THEORY OF JUSTICE 16, 40 (Norman Daniels ed., 1989).
128 Id.
129 Id. at 41-42.
130 Baruch Bracha, The Protection of Human Rights in Israel, 12 ISR. Y.B. ON HUM. RTS.
110, 110 (1982).
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the political culture of the Yeshuv embraced the goal of survival of
the state and of the duty of self-sacrifice. So, much is plainly true of
the political culture of the Yeshuv in the formative years. The
analysis, however, becomes more complicated when one tries to
draw inferences about the practical constitutional and legal
arrangements needed to implement such a theory. A goal-based or
duty-based theory does not require duties and goals all the way
Up.l3l For instance, the best way to achieve a specific goal might be
by providing rights to individuals.l32 In such cases, the theory is
committed to rights at one level and to goals only at a deeper level.
Some of the dominant forces in the political culture of the Yeshuv in
the formative years fit this description. Ben-Gurion and other
founders always used the terminology of rights and liberties when
speaking about the new order of the State of Israel.l33 This did not
make their political theory right-based since these rights were
generally secondary to the overall goal of establishing a Jewish
State.
So far, we have considered only the relation between the basic
and derivative positions within the dominant political theory of the
Yeshuv. Political science scholars infer from the unwillingness or
failure to adopt a constitution and a bill of rights that the political
culture of the Yeshuv was not committed to rights. l34 The preceding
analysis shows that this assertion is simplistic; that some of the
dominant factions in the Yeshuv followed a goal-based or duty-based
theory does not mean that they objected to the concept of legal
rights or constitutional rights. This was the case with the
Revisionists who "required personal sacrifice only when it came to
the issue of the struggle for statehood, and they tended to hold
liberal views in other areas of life."l35 After the establishment of the
State, the Revisionists supported the enactment of a constitution
and a bill of rights.l36 Hence, my discussion shows that the Labor
and Revisionist movements-the two major political forces in the
formative period, while being committed to goal-based or duty-based
political theory-adopted, at some level, the discourse of civil rights
and liberties. Thus, the failure to adopt a bill of rights should be
131 See WALDRON, supra note 38, at 216.
132 Dworkin, supra note 127, at 44.
133 Aronson, supra note 13, at 203--04.
134 SHARFMAN, supra note 40, at 33.
135 Id.
136 See supra text accompanying notes 35-36.
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traced to disagreements about rights and their implementation,
rather than a supposed objection to the concept of rights.
However, the question about the way by which disagreements and
not enacting a constitution helped to protect human rights is still
open. Andrei Marmor, in recent articles, observes that a discourse
of rights characterizes pluralistic societies in which deep
disagreements exist over the conceptions of the good and the proper
way of life.137 Homogeneous societies lack such discourse.138
Marmor argues that this state of affairs can be explained by the
unique content of the concept of rights, which differentiates it from
the concept of duty.139 Contrary to duties, rights do not constitute
reasons for actions. An agreement on the existence of a duty would
necessarily require an agreement that there are reasons for a
certain action in a certain situation. In the absence of an agreement
about the proper conception of the good, citizens are not likely to
agree about a comprehensive set of proper duties. Unlike duties,
Marmor argues, it is easy to agree on rights.140 Rights are a set of
interests that justify the imposition of duties on the public to protect
these interests.141 Hence, "rights are typically intermediate
conclusions in [complex] arguments."142 The argument starts by
presupposing that there are special interests worthy of protection
and ends in the imposition of certain duties on certain people. This
unique feature of rights is very appealing in pluralistic societies.143
Even people, who disagree about the proper interests worthy of
protection and about the means of protecting them, can agree on the
existence of the relevant right.144 In other words, as people move
from abstract discussions about the interests to be protected to
concrete recommendations, they find intermediate conclusions that
they can all agree upon.
As discussed earlier, the circumstances of constitution-making in
Israel involved a wide range of disagreements over the efforts to
137 Andrei Marmor, Judicial Review in Israel, 4 MISHPAT UMIMSHAL 133, 156 (1997)
[hereinafter Marmor, Judicial Review]; see also Andrei Marmor, On the Limits of Rights, 16
LAW & PHIL. 1, 15-16 (1997) [hereinafter Marmor, On the Limits of Rights] (stating that
"rights discourse is particularly fit for pluralistic societies").
138 See Marmor, On the Limits of Rights, supra note 137, at 16.
139 Marmor, Judicial Review, supra note 137, at 156.
140 Id.
141 JOSEPH RAZ, THE MORALITY OF FREEDOM 183 (1986).
142 Id. at 181; see also Marmor, On the Limits of Rights, supra note 137, at 14--15
(discussing Joseph Raz and the concept of "intermediary conclusions in arguments").
143 Marmor, Judicial Review, supra note 137, at 156.
144 Id.
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promulgate a constitution. These disagreements persisted even
though the dominant forces in the Yeshuv held collective ideologies.
Hence, the political culture of the Yeshuv was fertile ground for a
discourse of rights. There, however, was also a disagreement about
rights, or at least disagreements about certain rights (i.e., equality),
that led to the failure to adopt a comprehensive bill of rights,145
People in the Yeshuv disagreed not only about the goals, visions,
and principles to be protected, but also about intermediate
conclusions and, in particular, about rights. This led the founders of
the Statr to the decision not to decide and to continue deliberating
about what rights Israelis have. The circumstances (disagreements)
that made necessary a discourse of rights (agreement on
intermediary conclusions) prevented the enactment of a bill of
rights by the Constituent Assembly. Nevertheless, the High Court
of Justice still adopted a discourse of rights in spite of the lack of a
bill of rights.146 How did it overcome disagreement about rights and
succeed where others failed?
The reasons for the Israeli Supreme Court's success lay partly in
its institutional characteristics and partly in the judicial decisionmaking
methods it adopted to overcome these difficulties and to
develop the discourse of rights. It is true that disagreements
prevented the enactment of a comprehensive bill of rights by the
Knesset. The Supreme Court of the formative years, however, did
not try to establish a comprehensive bill of rights all at once.
Rather, the Supreme Court, historically speaking, was mostly a
forum for promoting justice by resolving disputes between
individuals and governmental agencies.147 Individuals who were
harmed by government actions asked the Court for remedy.148 They
asked the Court to recognize their interests as legitimate, and since
there was no bill of rights, their claims were not confined to the
infringement of positive legal rights.149 When the Court needed to
145 See supra notes 21-26 and accompanying text.
146 Pnina Lahav, Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's
Legacy, 16 TEL AVIV U. L. REV. 475, 482, 487 (1991); Menachem Mautner, The Decline of
Formalism and the Rise of Values in Israeli Law, 17 TEL AVIV U. L. REV. 503, 572 (1993)
[hereinafter Mautner, Decline of Formalism).
147 On the judicial approach taken by the Supreme Court in the formative years, see
Joshua Segev, The Changing Role of the Israeli Supreme Court and the Question of
Legitimacy, 20 TEMP. INT"L & COMPo L.J. 1 (2006).
148 See id. at 11 (explaining that the Court took the responsibility of defending individuals'
rights).
149 For example, Judge Witkon stated:
I do not postulate that the rights must be statutory, inscribed by law. This court has
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decide a case, the judges often disagreed over the reasons for
providing a remedy to the petitioner15o and over the wider
application of these reasons in other cases. The Supreme Court
lived among its People, and the same disagreements that
characterized the People and their representatives did not spare its
judges. However, as Marmor explains, this made a discourse of
legal rights very appealing.151 The unwritten bill of rights
established by the judiciary was a byproduct of deciding specific
disputes. It developed these rights one case at a time as a form of
"Israeli Common Law." The common saying that the existence of
the right was inferred from a remedy provided to the petitioner by
the High Court of Justice and the fact that there was no clear
coherent theory as to the relation between the right and the
legitimate interest testified to the nature of rights.152 They are
intermediate conclusions,153 which could be agreed upon, although
no agreement could be found as to the reasons for having rights or
the way they are created. This method and its institutional tools
made the Supreme Court more suitable for reaching an agreement
than the Knesset, which sought, at that time, to promulgate a
comprehensive bill of rights. The tactic of deciding not to decide
enabled and, in fact, even encouraged the Supreme Court to assume
this role. The fact, which I pointed out earlier, that the political
culture of the major forces in the Yeshuu was not antagonistic to a
discourse of rights explains how the Court succeeded in defending
more than once recognized rights which have no mention in any provision of law and
these, once they have received judicial warrant, take form and are assimilated to rights
recognized in law. Things that are customary and fall within the notion of natural
justice, which only yesterday still lacked shape and were undefined, pass in this manner
along the royal road and attain the rank of rights. Such is judicial development that
proceeds alongside but does not intrude upon the bounds of legislative activity and I
would not wish to restrict its march. This power is a guarantee of the freedom of the
individual.
HCJ 29/62 Cohen v. Minister of Def. [1962] 16 IsrSC 1023, 1027 (author's translation); see
also HCJ 73/53 Kol Ha'am Co. v. Minister of the Interior [1953] IsrSC 7 871; HCJ 144/50
Sheib v. Minister of Def. [1951] IsrSC 5 399; HCJ 1/49 Bejerano v. Minister of Police [1949]
IsrSC 2 80.
150 See Adi Parush, Moral Considerations in the High Court of Justice Jurisprudence, 13
TEL AVIV U. L. REV. 453, 477 (1988).
151 Marmor, Judicial Review, supra note 137, at 156.
152 Parush, supra note 150, at 477; Alfred Witkon, The Substantive Right in Administrative
Law, 9 TEL AVIV U. L. REV. 5, 16-17 (1983).
153 Abraham E. Shapira, Self-Restraint of the Supreme Court and the Preservation of Civil
Liberties, 3 TEL AVIV U. L. REV. 640, 640 (1973) [hereinafter Shapira, Self-Restraint of the
Supreme Court]; see supra notes 141-44 and accompanying text (providing an explanation of
intermediate conclusions). According to Shapira, the Supreme Court relied heavily on the
national and social consensus in defending civil rights and liberties. Shapira, supra, at 640.
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rights without a hostile response from political forces. In the
development of the judicial bill of rights, the Supreme Court did not
clash with the political culture, but rather acted in accordance to it.
III. DISAGREEMENTS AND ISRAEL'S CONSTITUTION-MAKING SINCE
THE 1980s
A. Israeli Politics: Continued Moral, Political, and Cultural
Disagreements
Israel is made up mainly of immigrants from many different
cultural, political, and ideological backgrounds, and many Israelis
perceive their society as a "melting pot" aimed at creating and
shaping a dominant cultural and political identity,154 However,
three decades after the establishment of the State of Israel and after
achieving an independent and sovereign state in Eretz Israel, the
Israeli polity was still marked by intense disagreements,
controversies, and disputes.155 Ideological, political, and cultural
disagreements remained the prominent feature of Israeli politics
through the years since its creation,156 The 1980s were no different
from previous decades. Looking back, one must acknowledge that
many economic, social, and political changes transpired.
Furthermore, Israeli history is dense with historical events
possessing national and international significance. All of these
events influenced, changed, and shaped the political debate over the
pressing problems of the Nation. It seems, however, that little
changed in regard to the disagreements and controversies
concerning the conditions of legitimacy upon which Israel is founded
and according to which it should operate. In particular, little
changed regarding the proper way to reconcile "value[s] of Jewish
particularism entailed in the aspiration of creating a Jewish nationstate
and universal values related to the humanist and liberal
traditions, which inspired the founding fathers of Zionism."157
Among the most important historical events is the 1967 war, also
known as the Six Day War, which led to the incorporation of a large
Palestinian population in the West Bank and the Gaza Strip (the
154 See HOROWITZ & LISSAK. supra note 16, at 98.
155 Id. at 109-10.
156 Id. at 113-16.
157 Id. at 114; see supra notes 4-7 and accompanying text.
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territories)_158 The 1967 war proved to be a turning point in
ideological conflicts over the conditions of legitimacy upon which
Israel was founded. The war required practical political discourse
to take into account the new reality of Israel's control over the
territories and to assimilate it into the political debate over the
territorial integrity of the State.l59 Throughout the 1970s and until
the late 1990s, a considerable portion of the Israeli public showed a
desire to annex all or part of the territories permanently to Israel.160
These factions "ground[ed] the territorial claims of Zionism," in
general, and "the ideal of Greater Israel," in particular, on religious,
traditional, and historical discourse and the rhetoric of "the Divine
promise and land[s] of our forefathers."161 On the other side, other
factions warned against the dangers inherent in annexation of the
territories ("the impossibility of striving for peace"), while rejecting
any territorial compromise and the inability "to preserve Israel as a
democratic state with a Jewish majority."162 These factions
"rejected [the ideal of a Greater Israel] on historical, pragmatic, and
humanistic grounds," arguing that the end of Zionism is to
"liberat[e] a people" rather than a territory and "emphasiz[ing] the
immorality of imposing foreign rule by force over an unwilling
population."163
Another historical event with significant implications on political
and ideological disagreements in Israel was the rise to power of the
Likud party in the 1977 elections, which also symbolized the loss of
hegemony of Labor Zionism.l64 The Likud Leader, Menachem
Begin, advocated a populist social position designed "'to make things
better for the people,'" which stood "[i]n contrast to the [social]
constructivist ideology of the Labor movement which stressed
economic growth and development and the need to give preference
to investments over consumption."165 The economic policy of the
Likud, throughout the late 1970s and the early 1980s, considerably
increased the inequality in wealth and even led the country into an
158 HOROWITZ & LISSAK, supra note 16, at 44-45.
159 See id. at 45-46.
160 Id. at 45.
161 Id. at 63, 110 (internal quotation marks omitted).
162 Id. at 110.
163 Id. at 119-20 (internal quotation marks omitted).
164 For an extensive analysis of this event and its implications on the jurisprudence of the
Israeli Supreme Court, see Menachem Mautner, The 1980s-Years ofAnxiety, 26 TEL AVIV U.
L. REV. 645,660-70 (2002) [hereinafter Mautner, Years ofAnxiety].
165 HOROWITZ & LISSAK, supra note 16, at 137.
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442 Albany Law Review [Vol. 70
economIC crisis.166 The 1980s, however, signified the decline in
consciousness of class difference and class politics.167 Thus, the
debate over the creation of a just society, in the form of a socialist
cooperative or in the form of "free" economic arrangements, lost its
prominence and intensity.
Contrary to the ideological conflict over social issues, beginning in
the late 1970s, conflicts and tensions between religious and nonreligious
factions increased.168 During the formative years of Israel,
"the tendency was to maintain the secular character of [the]
collective ceremonies," but following the 1967 war, the use of
religious symbols in ceremonies of a national and governmental
nature increased.169 As long as the religious factions tried only to
provide some religious embellishment to the secular national ethos,
they did not intensify the conflict between religious and secular
elements in society. However, since then, various religious factions
tried to use their political power to advance their own religious
interests by demanding extensive allocations of resources to the
religious sector, requiring the expansion of the exemption of Yeshiva
students from military conscription, and seeking to impose religious
observance on the public generally.170 This brought in its wake a
renewal of the ideological conflict over the place of religion in public
life, which were largely dormant during the 1960s and 1970s. There
were numerous occasions when this conflict resulted in
demonstrations, and even violence, especially where the status quo
in matters of religion was violated.
B. Israel's Constitution-making Preceding the Constitutional
Revolution
When one examines Israeli politics in the 1980s, one can identify
some changes from the situation in the formative years that
prevented the enactment of a comprehensive constitution.
Nevertheless, it is safe to conclude that the overall circumstances of
166 See id.
167 The political explanation for the decline of the social-economic conflict in Israel was the
perception that the Labor movement was responsible for the inequality of distribution. See
id. at 136-37. The Labor movement paid the price for being the ruling party when the
economic and class structure in Israel was shaped, while Herut, which had been cast out by
the establishment, became a convenient rallying point for those who felt that they were being
treated as social and economic outcasts. Id. at 137-38.
168 Id. at 63-64; Mautner, Decline of Formalism, supra note 146, at 577.
169 HOROWITZ & LISSAK, supra note 16, at 140.
170 Id.
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2007] Israel's Non-decision Constitution-making Tactic 443
disagreement within society and the desire to leave things
undecided by following the chapter-by-chapter tradition of gradual
constitutional adoption have remained the same. This tendency
manifested itself primarily in the failure to resolve three major
constitutional issues: (1) the constitutional protection and
regulation of human rights and civil liberties; (2) the enactment of
Basic Law through legislation; and (3) the necessity of special
proceedings by which to adopt and affirm the future constitution.
In 1974, the bill of Basic Law: Rights of the Individual and of the
Citizen was submitted to the Knesset on behalf of the Knesset
Constitutional, Legislative, and Judicial Committee.l7l The
proposed bill encompassed the classical liberal freedoms, including
freedom of the person, equality before the law, the right to life,
freedom of movement, the right to privacy, the right to property,
freedom of expression, freedom of association, freedom of religion,
access to the judicial system, and due process.172 Contrary to
previous bills and proposals regarding the constitutional protection
of basic human rights, the proposed bill did not include social and
economic human rights, such as the right to work, the right to
strike, the right to an education, the right to health services, or the
right to social security.173 The reason for omitting social and
economic rights from the proposed bill is not clear. Professor Ruth
Ben-Israel mentions an ideological crisis that occurred in the last
few decades and took hold especially in the upper levels of Israeli
society and manifested itself as a conversion from the Zionist
socialist ideology to a free-market or free-enterprise ideology,l74
171 Basic Law: Right of the Individual, 1974, HH, 448. The bill was published in August
1973 but was submitted to the first phase oflegislation in August 1974. Id.
172 Id.
173 Even before the failure of the First Knesset to enact a constitution, which led to the
Harari Resolution, efforts were made to enshrine social and economic rights as part of the
constitutional protection of human rights. With the adoption of the Harari Resolution, the
debate regarding the constitutional protection of social and economic rights shifted to the
content of a Basic Law protecting human rights (classic liberal rights as well as social and
economic rights). In 1964, a private Knesset member's bill was initiated by Itzhak
Klinghoffer and was put on the Knesset agenda. Itzhak Hans Klinghoffer, The Bill of Rights
- The Legislative Freeze, in KLINGHOFFER BOOK ON PUBLIC LAw 137, 138 (Itzhak Zamir ed.,
1993). The bill included social and economic rights (as well as classic liberal rights) such as
the right to work, the right to strike, the right to education, the right to health services, and
the right to social security. Id. at 146-47. The bill, however, was rejected by the Knesset
because of the opposition by the government. Id. at 138.
174 Ruth Ben-Israel, The Implications of the Enactment of the Basic Laws on Labor Law
and the Employment Relations, 4 ISR. Y.B. ON LAB. L. 29, 31-33 (1994); see Mautner, Years of
Anxiety, supra note 164, at 571. According to Ben-Israel, during the formative years, Israel
adopted, as part of its basic values and perceptions, a Zionist-socialist ideology, which was
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444 Albany Law Review [Vol. 70
According to Ben-Israel, at least some members of the Knesset who
served on the Constitutional, Legislative, and Judicial Committees
maintained this worldview that assigned lesser value to social and
economic rights and led to their exclusion from the proposed bill.175
At that time, the exclusion was not controversial mainly because of
the decline of class-consciousness among lawyers, judges, and
journalists. Unions and other workers' organizations were also
unaware of the possible negative effects of excluding such rights
from constitutional protection.
Unsurprisingly, the major area of disagreement related to the
Jewish nature of the State. Although the late 1970s and the 1980s
were marked by the further division of the religious bloc and the
emergence of new religious parties, the religious bloc was united on
three overriding concerns. First, the religious parties were worried
that the enactment of the bill would upset the status quo,l76 As
noted above, the status quo was adopted by the founding fathers as
"the basic formula for conflict resolution in matters of religion and
state."177 Rather than consisting of a set of principles, the status
quo was "a collection of arrangements [on] ... the relationship
between religion and state."178 The proposed bill decreed: "[T]his
Basic Law does not diminish the force of any law which was passed
before it comes into force" and, hence, would have immunized all
essentially collectivist and sought to promote equality and social solidarity. Ben-Israel,
supra, at 31-33. Israel's labor law legislation, in the formative years, required state
intervention in the free market economy to achieve proper social balance. [d. According to
Ben-Israel, the last few decades were characterized by an ideological crisis. While most of the
working public still adheres to the ideology which supports government intervention to
correct the distortions of free market and free competition, the social elite of Israeli society
supports the ideology of free market and free competition and rejects any involvement of the
state in labor relations. [d.
175 Ben-Israel, supra note 174, at 33. It should be noted that when the proposed bill was
submitted to the Knesset, "the sub-committee for Basic Laws was chaired at that time by a
Likud Knesset Member, Dr. Binyamin Halevi, formerly a member [of] the Supreme Court."
Goldberg, supra note 28, at 221. Herut, which was the leading component of the Likud,
advocated a free enterprise economy with more autonomy to be granted to market forces.
HOROWITZ & LISSAK, supra note 16, at 136-37. Hence, the decrease in the status of social and
economic rights can be traced directly to the rise of the Likud to power. [d. Herut's
ideological positions, however, remained on paper only and were not implemented by the
Likud when it came to power. [d. There are numerous reasons for the Likud's unwillingness
to implement Herut's ideology. [d. In any case, the ideological crisis, which Ben-Israel refers
to, transcended traditional party lines and cannot be traced to an increase in the power of a
specific political party.
176 See Shapira, Judicial Review, supra note 76, at 410, 437-38 (referring to antagonists
who believed that the enactment of the bill would "impede the expedient functioning of the
governmental apparatus").
177 Sapir, supra note 119, at 619; see supra note 119 and accompanying text.
178 See Sapir, supra note 119, at 620.
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2007] Israel's Non-decision Constitution-making Tactic 445
religious statutory arrangements preceding the Basic Law.179 It did
not, however, address customary arrangements.ISO Second, the
religious parties were concerned that providing constitutional
protection for classic liberal rights and, especially, for equality
across the board without any qualifications might put at risk many
of the arrangements-formal and informal-that established the
Jewish nature of the State.lSI Accordingly, members belonging to
the religious-Zionist factions harshly criticized the bill, arguing that
it was too abstract and "lack[ed] any Jewish content."IS2 Third, the
religious parties were especially concerned by the clause that
empowered the Supreme Court to review the constitutionality of
future legislation.ls3 They did not oppose the idea of a bill of rights
in principle as much as they resented the idea that judges, whom
they did not trust and could not control, would be empowered to
interpret and enforce the proposed bill.IS4
In light of these concerns, the religious parties voted in the
plenum against the proposed bill, but the majority voted in favor of
"passing the bill to the next legislative phase."IS5 The approval of
the bill on the First Reading intensified the criticism of lawyers,
scholars, and public representatives of the bill.ls6 They criticized
the general authorization of the legislature to restrict human rights
and liberties by law.lS7 Such a blanket and unqualified
authorization jeopardized the whole point of constitutionally
179 Shapira, Judicial Review, supra note 76, at 440 (internal quotation marks omitted).
180 See DK (1974) 2738 (Knesset member Zerach Warhaftig); DK (1974) 1584-85 (Knesset
member Menachem Parush).
181 See DK (1974) 2738 (Knesset member Zerach Warhaftig); DK (1974) 1584-85 (Knesset
member Menachem Parush).
182 Goldberg, supra note 28, at 221; see DK (1974) 2732 (Knesset member Pinchas
Shinman); DK (1974) 1584 (Knesset member Menachem Parush); DK (1973) 4443 (Knesset
member Shlomo Lorence).
183 Goldberg, supra note 28, at 221. This concern remained throughout the 1980s. See
Zeev Segal, A Constitution Without a Constitution: The Israeli Experience and the American
Impact, 21 CAP. U. L. REV. 1, 29 (1992).
184 DK (1974) 2738-39 (Knesset member Zerach Warhaftig); DK (1974) 1585 (Knesset
member Menachem Parush).
185 Goldberg, supra note 28, at 221. "At that time, all the religious parties [were] part of
the parliamentary opposition [to the Rabin Government]." Id. at 220.
186 See AMNON RUBINSTEIN & BARAK MEDINA, ISRAELI CONSTITUTIONAL LAw 911-12 (5th
ed. 1996) [hereinafter RUBINSTEIN & MEDINA, ISRAELI CONSTITUTIONAL LAW]; Bracha, supra
note 130, at 124-25 (noting that since 1973, no "serious" attempts have been made to enact
the Basic Law: Human and Civil Rights); see also Shapira, Judicial Review, supra note 76, at
437-38 (suggesting that "the prospect of the proposed Bill of Rights becoming binding law
continues to be slim" since it was submitted in 1973).
187 See Shapira, Judicial Review, supra note 76, at 439.
HeinOnline -- 70 Alb. L. Rev. 446 2006-2007
446 Albany Law Review [Vol. 70
protecting human rights.l88 They also criticized the qualifications
placed on the principle of equality. One of the drafts of the proposed
bill prescribed that the principle of equality would not affect laws
that constituted Israel as a Jewish state, implying that there is a
conflict between a Jewish state and the "complete equality of social
and political rights to all its inhabitants irrespective of religion, race
or sex," as provided in the Declaration of Independence.189 Such a
constitutional norm, they believed, would have had "destructive and
radical consequences."190
The proposed bill eventually was '"buried''' in the Constitutional,
Legislative, and Judicial Committee of the Knesset for numerous
reasons.191 First, the religious parties returned to the governing
coalition and exerted their influence on the chairman of the
Constitutional, Legislative, and Judicial Committee to prevent the
legislation from advancing.192 Second, members of the committee
could not resolve their differences over the desired norm of
equality.193 Third, disagreements emerged over an entrenchment
clause. Some Knesset members favored the insertion of a special
entrenchment prOVISIOn for the entire Basic Law (special
entrenchment provisions in previous Basic Laws applied only to
specified portions of the law).194 Such a provision was supposed to
immunize the bill from further revisions, amendments, and repeals
by a mere majority of the legislature.195 Other Knesset members,
however, differed On whether such entrenchment was desirable and
what majority was necessary to override it.196 Fourth,
188 [d.
189 The Declaration of the Establishment of the State ofIsrael, 5708·1948, 1 LSI 3, 4 (1948)
(Isr.).
190 RUBINSTEIN & MEDINA, ISRAELI CONSTITUTIONAL LAW, supra note 186, at 912 (author's
translation).
191 Goldberg, supra note 28, at 221.
192 See id.
193 RUBINSTEIN & MEDINA, ISRAELI CONSTITUTIONAL LAw, supra note 186, at 912.
194 See Basic Law: The Knesset, Amendment, 1992, S.H. 162 § 9A; Basic Law: The Knesset,
1958, S.H. 69 §§ 4, 34, 44-45.
195 RUBINSTEIN & MEDINA, ISRAELI CONSTITUTIONAL LAw, supra note 186, at 912.
196 Some Knesset members, like Dr. Binyamin Halevi, believed that the proposed bill of
rights should not be entrenched as long as the process of enacting Basic Laws continued. See
DK (1974) 1568 (Knesset member Benjamin Halevi). Only after the enactment of the last
chapter of the constitution and the affirmation of the constitution as a whole should a bill of
rights be entrenched. See id. This procedure would enable the Knesset to revise, amend, and
repeal Basic Laws to reach a comprehensive, consistent, and cohesive constitution. See id.
Other Knesset members believed that an immediate entrenchment of the proposed bill was
necessary to protect basic human rights and to make the bill viable. See DK (1974) 1587
(Knesset member Yoram Aridor); DK (1974) 1583 (Knesset member Leon Dycian). In
addition, a disagreement emerged over the need for the prescribed majority to revise, amend,
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2007] Israel's Non-decision Constitution-making Tactic 447
disagreements also emerged about the enforcement mechanism of
rights inscribed by the proposed basic law-namely, disagreement
about the legitimacy of judicial review.197 With these disagreements
and controversies in view, the proposed bill did not even reach the
second and third phases of the legislative process.
Several proposed bills of rights were submitted to the Knesset
during the 1980s; none of which succeeded in becoming a law.198
The inability of the Knesset to proceed was evident, especially in the
period from 1984 to 1990. In these years, Israel was governed by a
national unity government, constituted by the Likud and Labor
parties.199 The Likud and Labor might have combined their powers
and presented a unified front to promote the passage of a bill of
rights despite the persistent opposition of the religious bloc, but
they did not.200 Neither the Likud nor the Labor party was willing
to compromise their relations with the religious bloc whose support
was necessary to form a narrower governing coalition.201 Moreover,
many Likud members felt that the grievances of the religious bloc
were not addressed properly and that the proposed abstract bill of
rights did not sufficiently protect the Jewish nature of the State.202
The first version of Basic Law: Legislation Bill was presented to
the Knesset in 1975.203 Other versions were submitted to the
Knesset since that time, but none of them reached the final phase of
the legislative process, and the most recent proposal, although still
pending before the Knesset, has a very slim prospect of becoming
or repeal the bill. While some Knesset members believed that the entrenchment required an
absolute majority of the Knesset's total members (sixty-one Knesset members), others
believed that such a requirement was too weak since the government usually has the ability
to command a majority of sixty-one Knesset members. DK (1974) 1754 (Knesset member
Amnon Linn). Thus, the Knesset should have opted for a two-thirds majority requirement
(eighty Knesset members) for any revisions, amendments, or repeals of the proposed bill. DK
(1974) 1587 (Knesset member Yoram Aridor); DK (1974) 1583 (Knesset member Leon
Dycian).
197 Among the supporters of entrusting the Supreme Court with the authority to review
primary legislation was Knesset member Binyamin Halevi. DK (1974) 1570. Some Knesset
members, however, suggested establishing a special tribunal that would include distinguished
scholars. See DK (1974) 1757 (Knesset member Amnon Linn).
198 See Basic Law: The Fundamental Bill of Human Rights Bill, 1983, HH, 111; Basic Law:
Declaration of Independence Bill, DK (1981) 1064; Basic Law: Equal Rights to Religious
Factions Bill, DK (1981) 992.
199 See Goldberg, supra note 28, at 223.
200 See id. (stating that ''Labor and the Likud could have promoted [the creation of a
constitution] without the danger of dissolving the governing coalition").
201 See id.
202 See, e.g., DK (1974) 1580 (Knesset member Zalman Shoval).
203 Basic Law: Legislation Bill, 1975, HH, 133.
HeinOnline -- 70 Alb. L. Rev. 448 2006-2007
448 Albany Law Review [Vol. 70
law.204 Basic Law: Legislation Bill, in all its versions, was designed,
among other things, to regulate the enactment, repeal, and
amendment of Basic Laws and to determine their normative
relation to ordinary laws.205 Accordingly, it determined the
supremacy of Basic Laws over ordinary laws and prescribed that
Basic Laws may only be adopted by the Knesset by a special
majority.206 Similarly, a law revising a Basic Law, explicitly or
implicitly, may only be adopted by a special majority unless the
Basic Law in question provides otherwise.207 Some versions of Basic
Law: Legislation Bill declare that the Knesset operates as a
constituent assembly in the enactment, amendment, and repeal of
Basic Laws and that the Supreme Court, sitting in a panel of nine
or more judges, is a constitutional court vested with limited powers
of judicial review.
The enactment of Basic Law: Legislation Bill would have clarified
Israel's constitutional framework, the supremacy of Basic Laws over
ordinary legislation, and the role of the courts in judicial review,
especially the Supreme Court.208 The proponents of the bill noted
that it is the "Law of Laws" that would create a constitutional
framework for all future legislation;209 that it would have
established an explicit constitutional hierarchy and prevent
anarchy;210 that it would have contributed to the legitimacy of the
process of gradually adopting Basic Laws;211 that it would have been
a significant step toward creating a formal constitution for Israel;212
204 The recent Legislation Bill was published in Basic Law: Legislation Bill, 2000, HH, 34l.
Four Legislative Bills preceded the recent proposed bill.
205 See Basic Law: Legislation Bill, 2000, HH, 341 §§ 3-4; Basic Law: Legislation Bill,
1993, HH, 89 §§ 4-5; Basic Law: Legislation Bill, 1992, HH, 147 § 5; Basic Law: Legislation
Bill, 1978, HH, 326 § 5; Basic Law: Legislation Bill, 1975, HH, 133 § 5.
206 Ordinary laws are adopted by a simple majority of voting Knesset members present at
the plenum. Basic Law: Legislation Bill, 2000, HH, 341 §§ 3-4. The recent Legislative Bill
requires a majority of seventy Knesset members in the last phase of the legislative process to
revise, amend, or repeal Basic Laws. Id. Previous Legislative Bills required a majority of
two-thirds of the Knesset members (eighty members) in all stages of the legislative process for
revising, amending, or repealing Basic Laws. Basic Law: Legislation Bill, 1993, HH, 89 §§ 4-
5.
207 See supra note 206.
208 Provided, of course, that the courts would have given full legal force to the prescriptions
of the Legislative Bill.
209 See DK (1978) 3975 (Minister of Justice Shmuel Tamir); DK (1977) 10 (Knesset member
Eliezer Ronen); DK (1976) 1704 (Minister of Justice Haim Joseph Zadok).
210 See DK (2000) 3542 (Knesset member Amnon Rubinstein); DK (1993) 4303 (Minister of
Justice David Libai).
211 See DK (2000) 3554 (Knesset member Dan Meridor).
212 See DK (1993) 4303 (Minister of Justice David Libai); DK (1977) 959 (Knesset member
Moshe Shahal); DK (1976) 1710 (Knesset member Moshe Nissim).
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and that it would have authorized the Israeli Supreme Court to
strike down legislation deleterious to both human and minority
rights.213 Basic Law: Legislation Bill, however, was never enacted
precesily because it would have answered many of the most
fundamental questions and controversies regarding Israel's
constitutional framework. The two major stumbling blocks were the
general entrenchment clause and the empowerment of the Supreme
Court to engage in judicial review.
Since the enactment of Basic Law: The Knesset, the Knesset
included entrenchment clauses requiring special majorities for
amending or repealing specific provisions included in Basic Laws.214
This was done in spite of the intense moral, political, and legal
controversy over the competency of the Knesset to entrench these
prOVISIOns. A whirlwind of questions arose. Was it proper for a
simple majority of Knesset members to entrench provisions that
would require a special majority for amendment in the future? The
question whether the Knesset can entrench specific provisions and,
thus, bind its successors was intertwined with other fundamental
questions. Does the Knesset possess a constituent authority? Is the
Knesset's authority premised on the doctrine of parliament
sovereignty which prevents such entrenchment? There were more
constitutional questions of the first order.
Since the Bergman v. Minister of Finance215 decision of 1969 and
subsequent decisions of the Supreme Court,216 there has been full
legal recognition of some of the entrenched provisions included in
Basic Law: The Knesset, particularly those that require a majority
of sixty-one Knesset members for an amendment. That recognition
from the Supreme Court, however, was given without resolving
disputes over the constituent powers of the Knesset or providing a
general theory of entrenchment. Hence, some Knesset members
213 See DK (1993) 4305 (Knesset member David Zucker); DK (1993) 4307 (Knesset member
Avraham Poraz); DK (1993) 4312 (Knesset member Dan Meridor); DK (1977) 959 (Knesset
member Moshe Shahal); DK (1977) 5 (Knesset member Leon Dycian); DK (1977) 4 (Knesset
member Eliezer Ronnen); DK (1977) 4 (Knesset member Shmuel Tamir); DK (1976) 1710
(Knesset member Yoram Aridor); DK (1976) 1705 (Minister of Justice Haim Joseph Zadok).
214 For example, section 4 of Basic Law: The Knesset states: "The Knesset shall be elected
by general, national, direct, equal, secret and proportional elections, in accordance with the
Knesset Elections Law; this section shall not be varied save by a majority of the members of
the Knesset." Basic Law: The Knesset, 1958, S.H. 69.
215 HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693.
216 HCJ 141/82 Rubinstein v. Knesset Speaker [1982] IsrSC 27(3) 141; HJC 246/81 Derech
Eretz Assoc. v. Broad. Auth. [1981] IsrSC 35(4) 1; HCJ 60/77 Ressler v. Chairman of Cent.
Elec. Comm. [1977] IsrSC 31(2) 556; HCJ 148173 Kaniel v. Minister of Justice [1973] IsrSC
27(1) 794.
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believed that the Bergman decision did not end the debate over the
legal and political legitimacy of'entrenched provisions.217
In the deliberation over the proposed Basic Law: Legislation these
controversies have been reanimated. Some Knesset members
questioned the democratic legitimacy of entrenched provisions;218
some argued against the legal and political legitimacy of a simple
majority requiring in the future a special majority for amending
entrenched provisions;219 some Knesset members have questioned
the need to extend the entrenchment beyond the requirement of
special majority of sixty-one Knesset members;22o and some Knesset
members fear that providing entrenchment to all existing Basic
Laws may result in entrenching provisions that the Knesset never
considered worthy of entrenchment.221 Several Knesset members
also fear that some might interpret the act of providing general
entrenchment as completing the task of enacting a constitution,
although much remains to be done before that task is complete.222
These disagreements are another version of the traditional debate
over the Knesset's constituent powers and the doctrine of the
Knesset's supremacy or sovereignty. The position that the Knesset
possesses either constituent authority or parliamentary sovereignty
does not necessarily determine the nature or extent to which the
present Knesset can bind its successors.223 Nevertheless, the
217 DK (1977) 955-57 (Knesset member Benjamin Halevi).
218 See DK (2000) 7041 (Knesset member Nissim Zeev); DK (1977) 6 (Knesset member
Mordechai Ben·Porat); DK (1976) 1709 (Knesset member Ari Ankorin).
219 See DK (2001) 3557 (Knesset member Yigal Bibi); DK (1993) 4306 (Knesset member
Michael Eitan); DK (1977) 955-57 (Knesset member Benjamin Halevi); DK (1977) 6 (Knesset
member Mordechai Ben·Porat); DK (1976) 1710 (Knesset member Moshe Nissim).
220 Some of the versions of Basic Law: Legislation require a two·thirds majority (eighty
members), while the recent version requires a majority of seventy members. See Basic Law:
Legislation Bill 2000, HH, 342 §§ 3-4. The proponents of the bill opted for these provisions to
limit governments that usually can command a majority of sixty-one Knesset members as
part of a governing coalition. See Klinghoffer, supra note 173, at 143-44; see also DK (1977)
18 (Knesset member Ehud Olmert); DK (1976) 1706 (Knesset member Yoram Aridor); DK
(1977) 4 (Knesset member Lion Dizian). Many Knesset members, however, questioned this
logic and asked what makes a majority based on seventy Knesset members superior to a
majority based on sixty-one or sixty-two Knesset members. DK (2000) 7041 (Knesset member
Nissim Zeev); DK (1977) 8 (Knesset member Simha Freedman).
221 The recent Legislation Bill postpones the entrenchment of all Basic Laws for a period of
five years from the time the bill comes into force (section 17). Basic Law: Legislation Bill,
2000, HH, 341. During this period, a simple majority will suffice for enacting, amending, or
repealing a Basic Law. The draftsmen of the bill believe that this period should be utilized for
identifying Basic Laws that should not be entrenched. Id.
222 DK (2001) 3543 (Knesset member Benjamin Elon).
223 For example, this is evident from the judges' position in CA 6821/93 United Mizrahi
Bank v. Migdal Communal Village [1995] IsrSC 221, 264--65.
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Knesset's inability to proceed with the enactment of Basic Law:
Legislation Bill was, at least in part, due to disagreements over
these fundamental questions. The provisions declaring that the
Knesset possesses constituent powers in accordance with the Harari
Resolution, which were included in previous Basic Law: Legislation
Bills, were omitted from the recent version of Basic Law: Legislation
Bill.224 Yet, this bill was not passed because the disagreement was
not confined to the fundamental question whether the Knesset
possesses constituent powers, but concerned the legitimacy of
preventing a majority of sixty-one Knesset members from amending
Basic Laws.
The second major stumbling block that prevented the enactment
of Basic Law: Legislation Bill concerned the role of the Supreme
Court. Some versions of the Legislation Bill envisioned the
Supreme Court, sitting in an extended panel, as a constitutional
court entrusted with the task of judicial review.225 While some
Knesset members objected to the idea of judicial review as a
whole,226 most Knesset members did not object to it as such. They
objected to giving this power to the Supreme Court as currently
composed, which they viewed as unrepresentative, and to the Court
under its current system of appointment, which they viewed as
unfair.227 Like the provisions relating to the constituent powers of
the Knesset, the Constitutional, Legislative, and Judicial
Committee omitted the provisions dealing with the role of the
Supreme Court, promising to discuss these issues when the whole
issue of completing the constitution would be brought before the
Knesset for deliberations.228 This, again, did not result in the
passage of the bill. Many Knesset members believed that enacting
Basic Law: Legislation Bill without resolving these questions would
224 See DK (2000) 7037 (Knesset member Amnon RUbinstein).
225 See Basic Law: Legislation Bill, 1992, HH, 147 § 15 (amending Basic Law: The
Judiciary, 1984, S.H. 78); Basic Law: Legislation Bill, 1978, HH, 326 §§ 13-14; Basic Law:
Legislation Bill, 1975, HH, 133 § 12.
226 See DK (1992) 4305-06 (Knesset member Michael Eitan); DK (1977) 13-14 (Knesset
member Meir Pa'il); DK (1977) 9 (Knesset member Shlomo-Jacob Gross); DK (1977) 8-9
(Knesset member Simcha Freedman); DK (1977) 7 (Knesset member Avraham Levenbraun);
DK (1976) 1710-11 (Knesset member Moshe Nissim); DK (1976) 1710 (Knesset member Ari
Ankorin).
227 See DK (2001) 3558 (Knesset member Ahmad Tibi); DK (2001) 3560 (Knesset member
Michael Eitan); DK (2001) 3556 (Knesset member Yigal Bibi); DK (2001) 3552 (Knesset
member Moshe Gafni); DK (2001) 3549 (Knesset member Yuval Steinitz); DK (2001) 3546
(Knesset member Zevulun Orlev); DK (1977) 961-63 (Knesset member Zerach Warhaftig).
228 See Basic Law: Legislation Bill, 2000, HH, 341; Basic Law: Legislation Bill, 1993, HH,
89; see also DK (2000) 7037 (Knesset member Amnon Rubinstein).
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have harmful consequences and they did not trust the President of
the Supreme Court, Aharon Barak, in particular, to restrain the
Court from changing the constitutional status quO.229
The tendency to leave things undecided also manifested itself in
the third persistent issue in framing the Israeli Constitution-the
need for a special proceeding to adopt and affirm the future
constitution. The constitution, is commonly treated as the
manifestation of the will of the people as a whole.230 Hannah
Arendt, for example, argued that the truly revolutionary element in
modern constitutions was that they were adopted, not by the
government, but by the people constituting themselves.231 The
American and French constitutions were characterized not only by
the formation of a limited government but also by the action of
constituent assemblies and special conventions whose sole task was
to draft a constitution to be approved by the people.232 Framing a
modern constitution does not merely limit the powers of
government; rather, it is a positive expression of the people's values,
goals, and aspirations. Lawyers and judges in Israel sometimes
tend to dismiss or overlook this aspect of a constitution, perhaps
because of Israel's unique constitutional circumstances. Israel
never adopted a complete constitution that was the true
manifestation of its People as a whole through a constitutional
assembly. The role of lawyers and judges, instead, focused on the
identification of constitutional norms and their implementation.233
This aspect of constitution-making, however, was not entirely
forgotten. Throughout the 1970s and the 1980s and even after the
Constitutional Revolution of 1992, many scholars, while
acknowledging that the Knesset possessed authority to enact a
constitution, believed that it would be better to use special
procedures for the final approval of the constitution.234 These
229 On the fear from unintended consequences by the Supreme Court's interpretation of
Basic Law: Legislation Bill, see DK (2001) 3552 (Knesset member Moshe Gafni); DK (2001)
3543 (Knesset member Benyamin Elon).
230 See, e.g., ACKERMAN, supra note 93, at 6-7 (discussing the United States Constitution);
LAHAv, JUDGMENT IN JERUSALEM, supra note 11, at 92 (same).
231 ARENDT, supra note 106, at 143.
232 Id.
233 Even when lawyers and judges recognize that they create constitutional norms, they
argue, at most, that this creation follows the People's will. Their institutional role prevents
them from drafting constitutional norms and bringing them to the People for genuine
deliberation and approval. The active and real participation of the People in creating
constitutional norms necessarily diminishes the role of the judge in this process.
234 See, e.g., Shapira, Judicial Review, supra note 76, at 441.
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scholars and public representatives as well viewed the ordinary
legislative process of gradual adoption of Basic Laws, which has
been prolonged beyond five decades now, as insufficient. Several
procedures were proposed for the adoption of a constitution. Some
scholars suggested that a draft constitution passed by the Knesset
could be submitted to a public referendum or similar means of
popular ratification.235 Other scholars and some public
representatives offered to enact the complete constitution by a
special majority of the Knesset.236 Another proposal was for the
adoption of a complete constitution by the Knesset "acting
[explicitly] as a constituent assembly."237
The fact that, to date, no method has ultimately been selected
reflects the absence of a broad consensus either about fundamental
constitutional questions or about practical methods for resolving
these issues. The wide range of proposals shows that there is only a
slim chance of solving the problem of the legitimacy of the Knesset
to approve a complete constitution. On the one hand, ordering a
referendum on the constitution would create a new avenue of
legitimization. On the other hand, the adoption of a complete
constitution by the Knesset declaring that it operates as a
constitutional assembly would endorse the theory that the Knesset
operates in two capacities: constituent and legislative. According to
this proposal, the need for popular ratification would be satisfied by
the Knesset acting to express the will of the People.
Although the overall constitutional circumstances in Israel did
not change since the 1980s, some major developments in the
promulgation of Basic Laws occurred. In August 1980, Basic Law:
Jerusalem, Capital of Israel was introduced by Geula Cohen, a
Knesset member from the Tehiya party, and enacted by the Ninth
Knesset.238 Basic Law: Jerusalem, the Capital of Israel secured the
status of unified Jerusalem as the capital of the State and as "the
seat of the President of the State, the Knesset, the Government and
235 BENJAMIN AKzIN, SUGYOT BE-MISPHAT UVI-MEDINAWUT 168-69 (1966); ELIAHU S.
LIKHOVSKI, ISRAEL'S PARLIAMENT: THE LAw OF THE KNESSET 219 (1971); RUBINSTEIN &
MEDINA, ISRAELI CONSTITUTIONAL LAw, supra note 186, at 370; Nimmer, supra note 85, at
1253; Shapira, Judicial Review, supra note 76, at 441.
236 Shlomo Goberman, The Authority of the Court to Void Laws, in CONSTITUTIONAL
REFORM IN ISRAEL-SYMPOSIUM JUNE 1994, at 76, 79 (1994); Klinghoffer, Establishment,
supra note 21, at 141.
237 Shapira, Judicial Review, supra note 76, at 441; accord Claude Klein, A New Era in
Israel's Constitutional Law, 6 ISR. L. REV. 376, 391 (1971).
238 Goldberg, supra note 28, at 222; see Basic Law: Jerusalem, the Capital of Israel, 5740-
1980, 34 LSI 209 (1980) (Isr.).
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the Supreme Court."239 It further states that "[t]he Holy Places
shall be protected, [and that t]he Government shall provide for the
development and prosperity of Jerusalem."24o This Basic Law did
not contain any innovation apart from declaring that "Jerusalem,
complete and united, is the capital of Israel."241 The "adoption [of
this Basic Law created] resentment in the international
community," who feared that the Basic Law was meant to
strengthen Israeli control over the entire city and prevent future
negotiations and compromise over Jerusalem with the neighboring
Arab states.242 Some scholars viewed this Basic Law as the formal
manifestation of the desire to base the territorial claims of Zionism
on religious, traditional, and historical grounds that belonged to
Jewish particularism, as opposed to the universal elements of
Zionism.243 This "was the first Basic Law whose source was a
private [Knesset m]ember's [b]ill,"244 and the first Basic Law to be
endorsed enthusiastically by the religious factions in the Knesset.245
In spite of the divisive nature of the new Basic Law, however, it
neither resolved old controversies nor created new ones over the
conditions of legitimacy of the gradual enactment of Basic Laws.
There were three reasons for the marginal effect of this Basic Law.
First, it was not accompanied by any entrenchment provision or
mechanism and was perceived by many as the product of ordinary
politics, if not political manipulation.246 Second, many scholars and
statesmen agreed that this law would "not prevent the government
from negotiating on the status of the Holy Places, nor on municipal
arrangements."247 Third, at the time the Basic Law was enacted,
the prospect of a peaceful resolution of the Arab-Israeli conflict,
which would include the future of Jerusalem, seemed very
239 Basic Law: Jerusalem, the Capital ofIsrael, 5740-1980, 34 LSI 209 (1980) (lsr.).
240 Id.
241 Id.; see Ruth Lapidoth, Jerusalem-Some Jurisprudential Aspects, 45 CATH. U. L. REV.
661, 670 (1996) (stating that "the contents of the [Basic Law: Jerusalem, the Capital ofIsrael]
does not include any innovation").
242 Lapidoth, supra note 241, at 670 (discussing the resentment of the international
community to Basic Law: Jerusalem, the Capital of Israel).
243 See HOROWITZ & LISSAK, supra note 16, at 113-14, 139.
244 Goldberg, supra note 28, at 222. It should be noted that the government, which was
then led by Prime Minister Menahem Begin, supported the proposed bill. Id.
245 Id.
246 DK (1980) 4062 (Knesset member Meir Talmi); DK (1980) 4054 (Knesset member Yossi
Sarid); DK (1980) 4051 (Knesset member Chyka Grossman-Orkin); DK (1980) 4040 (Knesset
member Uri Avnery).
247 Lapidoth, supra note 241, at 678 (footnote omitted).
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2007] Israel's Non-decision Constitution-making Tactic 455
remote.248 In light of this expectation, there was a very broad
consensus among the Jewish public that a unified Jerusalem must
be the capital of Israel.249
Another major development was the enactment, by the Tenth
Knesset, of Basic Law: Adjudication in February 1984.250 Basic
Law: Adjudication recognized the judicial authorities of the State
and established their independence, jurisdictions, and
interrelations.251 This Basic Law dealt with three major issues with
potentially far-reaching constitutional consequences: the role of the
Supreme Court,252 the system of appointment of judges,253 and the
authority of religious courts.254 The enactment of this Basic Law
was only made possible by a compromise and a set-aside. The
compromise had to do with the authority of religious courts vis-a.-vis
the Supreme Court. The original bill did not include any provisions
on religious courts; this prompted the opposition of the religious
parties and caused a delay in its enactment for several years.255
The enactment of the bill was made possible after a compromise
giving jurisdiction to the religious courts was included in the Basic
Law.256 The set-aside had to do with the question of explicitly
248 See id. at 676-78.
249 It should be noted, however, that Basic Law: Jerusalem, the Capital of Israel could still
influence the process of framing an Israeli constitution. If Basic Law: Legislation Bill is
enacted, it will probably entrench, explicitly or implicitly, all existing Basic Laws, including
Basic Law: Jerusalem, the Capital of Israel. Some constitutional scholars already doubt the
ability of the Knesset to entrench Basic Laws that do not concern the basic values, principles,
rights, and institutions of the State. See RUBINSTEIN & MEDINA, ISRAELI CONSTITUTIONAL
LAW, supra note 186, at 395.
250 Basic Law: Adjudication, 1984, S.H. 78.
251 See SHIMON SHETREET, JUSTICE IN ISRAEL: A STUDY OF THE ISRAELI JUDICIARY 88
(1994).
252 Some Knesset members argue that there is a need for a redivision of jurisdictions and
that some matters (like child custody and matters concerning local governments and
municipalities) should be transferred to the district courts. See id. at 89-90. Others argue
against the overall trend of the judicialization of Israel's public and social life and suggest
limiting the citizens' ability to petition the Supreme Court sitting as a High Court of Justice.
See DK (1980) 788 (Knesset member Uri Avnery); DK (1980) 786-88 (Knesset member
Amnon Rubinstien); DK (1980) 785 (Knesset member Gideon Hausner); DK (1980) 784
(Knesset member Zerach Warhaftig).
253 A major part of the changes recommended by Knesset members in the system of
appointment of judges was meant to reduce the political influence of the Judges Appointment
Committee. Some suggested assigning law school deans to the committee, while others
recommended reducing the number of politicians in the committee or appointing the
President of the Supreme Court as the committee's chairman. See DK (1984) 1736 (Knesset
member Shulamit Aloni); DK (1980) 789 (Knesset member Uri Avnery); DK (1980) 789
(Knesset member Mordechai Virshubski).
254 See SHETREET, supra note 251, at 89.
255 See DK (1980) 784 (Knesset member Zerach Warhaftig).
256 See DK (1980) 1309 (Minister of Justice Shmuel Tamir).
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granting the Supreme Court the power of judicial reView over
primary legislation. Instead, section 15(c) of Basic Law:
Adjudication embraced section 7 of the Courts Law of 1957 and
established a very wide jurisdiction providing that the "Supreme
Court sitting as a High Court of Justice shall deal with matters in
which it deems necessary to grant relief in the interest of justice,
and which are not within the jurisdiction of any other court or
tribunal."257 All of the political parties, including the religious
parties, accepted this wording because it left the question of judicial
review over primary legislation undecided. On the one hand, it did
not give the Supreme Court the power of judicial review. On the
other hand, it did allow the Court to continue to develop the
institution of judicial review, as set forth in the Bergman decision
and other decisions in the 1970s and 1980s.258 This Basic Law was
also not entrenched, which made it possible for the Knesset to
amend or revise it by a simple majority. Thus, while the enactment
of Basic Law: Adjudication was a significant addition to the
evergrowing arrangement of Basic Laws, the Knesset clung to the
constitutional status quo of deciding not to decide.
C. The Enactment of the New Basic Laws, the Constitutional
Revolution, and Israel's Constitution-Making at the Present Time
The most significant development in the gradual adoption of Basic
Laws in the course of the last twenty years was the enactment in
March 1992, during the last session of the Twelfth Knesset, of two
new Basic Laws-Basic Law: Freedom of Occupation259 and Basic
Law: Human Dignity and Liberty.26o They enshrined several
human rights in Basic Laws, among them: dignity, liberty, property,
freedom of occupation, mobility, and privacy.261 Since the adoption
of these two Basic Laws, many legal scholars argue that Israel's
constitutional circumstances have fundamentally changed and that
Israel has undergone a "Constitutional Revolution,"262 which
257 Basic Law: Adjudication, 1984, S.H. 78 (author's translation).
258 Under this compromise, the Knesset created a system of appointment of judges that
would preserve the independence of the judicial branch and the professional nature of the
courts. See SHETREET, supra note 251, at 87.
259 See Basic Law: Freedom of Occupation, 1992, S.H. 114, repealed by Basic Law: Freedom
of Occupation, 1994, S.H. 90.
260 See Basic Law: Human Dignity and Liberty, 1992, S.H. 150.
261 See Basic Law: Freedom of Occupation, 1994, S.H. 90; Basic Law: Human Dignity and
Liberty, 1992, S.H. 150, amended by Basic Law: Freedom of Occupation, 1994, S.H. 90.
262 Aharon Barak, The Constitutional Revolution: Protected Basic Rights, 1 MISHPAT
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2007] Israel's Non-decision Constitution-making Tactic 457
resulted in a formal constitution.263 The real question, however, is
whether these new Basic Laws signified a fundamental change in
the constitutional tactic of deciding not to decide. The argument I
will try to substantiate in this chapter is that the enactment of
these two new Basic Laws, although definitely advancing the project
of gradual adoption of Basic Laws, did not change Israel's overall
constitutional circumstances. The enactment of the new Basic Laws
did not signify a deviation from the constitutional tactic of nondecision
and, in fact, was the direct implementation of this tactic.
The enactment of the new Basic Laws was made possible after
Knesset member Amnon Rubinstein, a prominent constitutional law
professor, proposed the gradual implementation of human rights
provisions.264 Hence, instead of putting forward the comprehensive
Basic Law: Rights of the Individual and of the Citizen Bill, which
had been repeatedly proposed in the 1970s and the 1980s,
Rubinstein decided to "atomize" the enactment of basic human
rights and civilliberties.265 His premise was that only certain rights
were controversial and that a broad consensus could be reached on
the less controversial rights.266 This strategy postponed the
enactment of controversial rights (i.e., the right to equality, freedom
of speech, freedom of association, freedom of and from religion,
social rights, and economic rights) to a later date. In that sense,
Rubinstein's approach dovetailed perfectly with the tradition, which
was followed since the founding of the State of gradual adoption of
Basic Laws and "deciding not to decide." Since no agreement could
be reached in the formative years as to a complete constitution, it
was decided not to decide and to establish Israel's constitutional
UMIMSHAL 9 (1992) [hereinafter Barak, Constitutional Revolution]; Asher Maoz,
Constitutional Law: The Constitutional Revolution, in THE ISRAEL LEGAL YEARBOOK, 1996, at
215 (Ariel Rozen·Zvi ed., 1997). But see David Kretzmer, The New Basic Laws on Human
Rights: A Mini·Revolution in Israeli Constitutional Law?, 26 ISR. L. REV. 238, 242 (1992)
(describing it as as "mini-revolution"). For a critical assessment of the use of the term
Constitutional Revolution in conjunction with the enactment of the new Basic Laws, see Gary
Jeffrey Jacobsohn, After the Revolution, 34 ISR. L. REV. 139 (2000).
263 Barak, The Economic Consitution, supra note 2, at 358; Rubinstein & Medina, The
Constitution of the State of Israel, supra note 2, at 355.
264 See DK (1991) 1235 (Knesset member Amnon Rubinstein).
265 Yehudit Karpe, Basic Law: Human Dignity and Liberty-A Biography of Power
Struggles, 1 MISHPAT UMIMSHAL 324, 338 (1993).
266 DK (1992) 1532 (Knesset member Amnon Rubinstein); see RUBINSTEIN & MEDINA,
ISRAELI CONSTITUTIONAL LAw, supra note 186, at 919; Barak-Erez, supra note 109, at 314-15;
Karpe, supra note 265, at 338; Kretzmer, supra note 262, at 238-39. In regard to the positive
approach of the religious parties in response to the atomization of the bill of rights, see
Goldberg, supra note 28, at 224.
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arrangements gradually. Now, in light of disagreements in regard
to a complete bill of rights, it was decided in the first phase to enact
only rights that enjoyed a broad consensus.267
The deliberate atomization of human rights was strongly
criticized by public representatives268 and legal scholars269 who
viewed the new Basic Laws as enshrining a questionable worldview
while ignoring the interest and welfare of considerable segments of
Israeli society. Some public representatives even questioned the
democratic legitimacy of the new Basic Laws and argued that their
enactment amounted to usurpation of Knesset powers and the
crowning of the Supreme Court instead.270 Postponing the
enactment of important basic human rights was not the only issue
left undecided. The new Basic Laws did not contain any provisions
establishing a constitutional court entrusted with the role of
safeguarding the enumerated rights. Furthermore, the Basic Laws
neither declared themselves to be part of Israel's constitution nor
did they mention the Knesset's constituent power or any alternative
constitutional framework under which they came into force.
Rather, their declared purpose was to "protect a person's dignity
and liberty to anchor in a Basic Law the values of the State ofIsrael
267 See DK (1992) 3782 (Knesset member Uriel Lynn); DK (1992) 1532 (Knesset member
Amnon Rubinstein). One, however, should not conclude that the new Basic Laws have been
enacted by a broad consensus that usually characterizes constitution·making. See infra text
accompanying notes 275--77; see also DK (1992) 3783 (Knesset member Michael Eitan) ("You
have not reached a general agreement. You are a minority, and want to impose a statute that
could be amended only by a majority of Knesset members. Are you speaking about
democracy? A minority of the Knesset members seeks to legislate a statute that would
deprive the Knesset of its authority." (author's translation».
268 For criticism in regard to the worldview enshrined by Basic Law: Human Dignity and
Liberty, see DK (1992) 1529 (Knesset member Geula Cohen); DK (1991) 1245 (Knesset
member Mohamad Naffa); DK (1991) 1244 (Knesset member Moshe Shahal); DK (1991) 1242
(Knesset member Mordechai Virshubski); DK (1991) 1240-41 (Knesset member Shulamit
Aloni). For criticism in regard to the worldview enshrined by Basic Law: Freedom of
Occupation, see DK (1992) 2605 (Knesset member Yael Dayan); DK (1992) 2604 (Knesset
member Yaakov Zore); DK (1992) 2602 (Knesset member Ra'anan Cohen).
269 The first to question the legitimacy of the new Basic Laws was Professor Ruth Ben·
Israel. She argued that the Knesset members serving in the Constitutional, Legislative, and
Judicial Committee that drafted the new Basic Laws did not take into account the legitimate
interest of the working class. Ben·Israel, supra note 174, at 32-33; see Marmor, Judicial
Review, supra note 137, at 140. But see Eli Salzberger & Sandy Kedar, The Quiet
Revolution-More on Judicial Review in Accordance to the New Basic Laws, 4 MISHPAT
UMIMSHAL 489, 502 (1998).
270 "How could it be that we would enact such a law in the Knesset without being aware
that the idea in the background is usurpation, taking the powers of the Knesset and the
legislature and granting them to the Supreme Court." DK (1991) 1247 (Knesset member
Michael Etan) (author's translation); see also DK (1992) 1528, 2606 (Knesset member
Elyakim Ahetzni); DK (1992) 2607-08 (Knesset member Moshe Gafni).
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2007] Israel's Non-decision Constitution-making Tactic 459
as a Jewish and democratic state."271 Since the new Basic Laws
were enacted by a very small majority,272 they did not engage the
positive aspect of constitution-making. No special procedures were
followed and no special majority was formed that could have
overcome past disagreements about how to achieve popular
ratification or how to symbolize the formation of a broad
consensus.273 Additionally, Basic Law: Human Dignity and Liberty
did not even contain an expressed entrenchment provision that
would make it open to further amendments and revisions by any
future majority of the Knesset.274 These flaws marked traditional
points of disagreement, and the avoidance of any clear statement
over such issues was compatible with the tradition of deciding not to
decide.
Many scholars and public representatives consider the "Jewish
and democratic" formula, embraced by the new Basic Laws,275 as a
substantive breakthrough that enabled these Basic Laws to be
271 Menachem Elon, Constitution by Legislation: The Values of a Jewish and Democratic
State in Light of the Basic Law: Human Dignity and Personal Freedom, 17 TEL AVN U. L.
REV. 659, 663 (1993) (author's translation); see Karpe, supra note 265, at 343-44.
272 Basic Law: Human Dignity and Liberty was enacted by a majority of thirty-two
supporters while twenty-nine opposed it, and Basic Law: Freedom of Occupation was enacted
unanimously, but only by twenty-three Knesset members. RUBINSTEIN & MEDINA, ISRAELI
CONSTITUTIONAL LAw, supra note 186, at 918.
273 See id. at 918 ('The effort that led to the compromise, which included a substantive
concession, brought about intense criticism .... Although they made the enactment of the
new Basic Laws possible, it is hard to argue that their enactment was based on a broad
consensus." (author's translation»; see also Salzberger & Kedar, supra note 269, at 499 ("It
should be noted, that in regard to the manner in which constitutional norms or entrenched
rights should be adopted, the acceptance of our line of argument rejects completely the
manner in which Basic Laws are enacted in Israel. The main idea of this line of argument is
that a constitution or entrenched rights should represent a consensual decision-making
procedure which is isolated from everyday political struggle." (author's translation».
274 See Basic Law: Human Dignity and Liberty, 1992, S.H. 150, amended by Basic Law:
Freedom of Occupation, 1994, S.H. 90. Such a provision was included in the Bill but was
dropped at the second voting stage. RUBINSTEIN & MEDINA, ISRAELI CONSTITUTIONAL LAW,
supra note 186, at 921-22. This omission was not accidental. Knesset members who opposed
this provision based their position on the opposition to a written constitution, the opposition
to judicial review, and the illegitimacy of requiring a special majority to amend a statute
enacted by a simple majority. See DK (1992) 3789 (Knesset member Michael Eitan); DK
(1992) 3787 (Knesset member Avraham Ravitz); DK (1992) 1236 (Knesset member Yitzhak
Levy). On the legal significance of the entrenchment provision, see DK (1991) 1236 (Knesset
member Amnon Rubinstein) ("It should be noted ... without section 10 [the entrenchment
provision of Basic Law: Human Dignity and Liberty], which is actually not an entrenchment
since requiring [sixty-one] Knesset members is not entrenchment, ... this law does not bear
any meaning." (author's translation».
275 Section lA of Basic Law: Human Dignity and Liberty states: "[T]his Basic Law is to
protect human dignity and liberty, in order to establish in a Basic Law the values of the State
of Israel as a Jewish and democratic state." Basic Law: Human Dignity and Liberty, 1992,
S.H. 150, amended by Basic Law: Freedom of Occupation, 1994, S.H. 90.
HeinOnline -- 70 Alb. L. Rev. 460 2006-2007
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enacted.276 The adoption of this formula, however, did not amount
to a substantive normative resolution on either of the issues that led
to the failure to adopt a constitution. According to this formula,
Jewish and democratic values give rise to the enumerated rights
and freedoms that can be infringed upon only to protect these
values. The real question has always been not only what each of
these values requires but also how to reconcile the tension between
these two values. The new Basic Laws do little to resolve this
tension. The term "Jewish values" has many senses and meanings,
some of which contradict one another. Are "Jewish values"
equivalent to Jewish religious values? To Jewish secular values?
To Jewish national values? Or maybe they are equivalent to Jewish
universal values? The new Basic Law does not provide any
explanation. The term "democratic values" also has more than one
meaning. Are democratic values defined purely in terms of formal
electoral arrangements (i.e., majority rule and equal suffrage)? Or
in terms of substantive arrangements (i.e., protecting minorities
and basic human rights)? Are democratic values interpreted
according to the perception of a liberal democracy or in accord with
the worldview of republican democracy? How to reconcile Jewish
values and democratic values has also been the source of intense
controversy. Some scholars perceive this formula as an attempt to
square the circle and argue that it consists of an inherent
contradiction.277 Other scholars argue that the two concepts can be
reconciled and offer different models that combine Jewish values
with democratic values.278
While not wishing to portray these terms as meaningless or as
empty slogans, it is clear that invoking the values of a "Jewish and
276 Karpe, supra note 265, at 341-42.
277 See Avigdor Levontin, "Jewish and Democratic" - Personal Reflections, 19 TEL AVIV U.
L. REV. 521 (1995); Yoav Peled, Will Israel Be a State of Its Citizens on Its lOOth Anniversary?,
17 BAR-lLAN STUD. 73 (2002).
278 The volume of academic writings that attempt to reconcile the Jewish foundation and
the democratic foundation of Israel's legal system is monumental. I will note a few sources
only to demonstrate the vast variety of positions, perceptions, approaches, and formulas to
reconcile Jewish values and democratic values. See generally AHARON BARAK, THE JUDGE IN
A DEMOCRACY 87-93 (2004) [hereinafter BARAK, JUDGE IN A DEMOCRACY]; Ruth Gavison,
Jewish and Democratic State-Political Identity, Ideology and Law, in JEWISH AND
DEMOCRATIC STATE 171 (Daphne Barak-Erez ed., 1996); Asa Kasher, Jewish and Democratic
State: Philosophical Outline, in A JEWISH AND DEMOCRATIC STATE 277 (Daphne Barak-Erez
ed., 1996); Elon, supra note 271; Asher Maoz, The Values of a Jewish and Democratic State,
19 TEL AVIV U. L. REV. 547 (1995); Ariel Rozen-Zvi, "A Jewish and Democratic State":
Spiritual Parenthood, Alienations and Symbiosis-Can We Square the Circle?, 19 TEL AVIV U.
L. REV. 479 (1995).
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democratic state" would inevitably involve endless disputes about
their proper sense and meaning. Since the rift within the different
factions of Zionism is motivated by the tension between Jewish
particular elements and democratic universal elements279 and
because the compatibility between the democratic and the Jewish
nature of the State has been and is a cornerstone of all factions and
parties, it is easy to understand why this formula gained support.
However, the adoption of the "Jewish and democratic" formula by
the new Basic Laws does not amount to a substantive constitutional
resolution of how to reconcile Jewish and democratic values. This
fundamental dispute prevented the enactment of a constitution in
the formative years. The enactment of the new Basic Laws did not
resolve it, but rather left things undecided in accordance with the
well-founded tradition of Israeli constitutional formation.
Despite these flaws, Judge Barak, in a series of articles and in his
book Interpretation in Law, argues that by enacting the two new
Basic Laws, Israel underwent a "Constitutional Revolution"280 and
that human rights acquired a "constitutional force above the regular
statutes."281 In 1995, following the enactment of the two new Basic
279 See supra notes 14-15 and accompanying text.
280 3 AHARON BARAK, INTERPRETATION IN LAw 355 (1994) [hereinafter BARAK,
INTERPRETATION IN LAW]; Barak, Constitutional Revolution, supra note 262, at 12.
281 Aharon Barak, The Constitutionalization of the Israeli Legal System as a Result of the
Basic Laws and Its Effect on Procedural and Substantive Criminal Law, 31 ISR. L. REV. 3, 3
(1997) [hereinafter Barak, Constitutionalization of the Israeli Legal System]; accord Aharon
Barak, Protected Human Rights: Extension and Limitations, in KLINGHOFER'S BOOK ON
PUBLIC LAw 163 (Itzhak Zamir ed., 1993). In regard to the scope of rights protected by the
new Basic Laws, Judge Barak argued that the fact that some rights were not explicitly
mentioned in the text of the new Basic Laws does not necessarily exclude them from
constitutional protection. See Barak, Constitutionalization of the Israeli Legal System, supra,
at 3 (stating that "most were protected by the case law of the Supreme Court" and "were
already protected, prior to the constitutionalization"). According to Judge Barak, a
constitution, like any other normative text, should be interpreted according to its overall
purpose. See id. at 5. Under this approach, the term "human dignity," mentioned in Section
lA of Basic Law: Human Dignity and Liberty, encompasses, among other values, equality,
freedom of speech, freedom of religion, and freedom of association. See Basic Law: Human
Dignity and Liberty, 1992, S.H. 150, amended by Basic Law: Freedom of Occupation, 1994,
S.H. 90. For an extensive analysis of the scope of rights protected by the new Basic Laws, see
Hillel Sommer, The Non·Enumerated Rights: On the Scope of the Constitutional Revolution,
28 MISHPATIM 257 (1997). Furthermore, in regard to the second flaw, Judge Barak dismissed
the claim that Basic Law: Human Dignity and Liberty does not possess normative superiority
due to the absence of an explicit entrenchment provision. Barak, Constitutional Revolution,
supra note 262, at 21. Judge Barak based his conclusion on the existence of section 8, also
known as "the limitation provision," which states that legislation enacted after the Basic Law
came into effect will have to meet certain requirements stipulated there. Id. The purpose of
the limitation provision, according to Judge Barak, is to limit the legislative authority of the
Knesset. Id. This purpose will not be promoted if a later ordinary law could harm a human
right enshrined by the Basic Law without satisfying the requirements of the limitation
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Laws and these academic deliberations, the Court was called to
decide United Mizrahi Bank u. Migdal Communal Village.282 Many
fundamental constitutional questions were raised, discussed, and
determined, necessarily and unnecessarily, by a bench of nine
Supreme Court Judges. To make a 367-page story short, the
Supreme Court determined that the statute, which was accused of
being unconstitutional, did not clash with Basic Law: Human
Dignity and Liberty since it survived the requirements of the
limitation clause.283 The Migdal decision, however, is important,
not because of its operative result, but because of the constitutional
theory it encompasses. Judge Barak, joined by a majority of the
Court, outlined a theory that since Israel achieved, since 1992, fullfledged
constitutional review and that Basic Law: Human Dignity
and Liberty enjoys normative superiority; hence, new legislation
that infringes upon rights protected by the Basic Law must satisfy
the requirement of the limitation provision.284 Since the Migdal
decision, opposition in the Supreme Court to the Constitutional
Revolution faded away, and in a few cases, legislation that infringed
upon rights protected by the new Basic Law was invalidated.285 In
addition, some decisions of the Supreme Court declared that all
Basic Laws enjoy normative superiority to ordinary legislation.286
The reactions to the Migdal decision and to the Constitutional
Revolution came quickly. From one side, the traditional supporters
of the idea of a written constitution287 welcomed the Migdal decision
with open arms and, while noting few remarks and suggestions,288
applauded the Supreme Court for carrying the Constitutional
Revolution to its promised destiny-a formal constitutional
provision.
282 CA 6821/93 United Mizrahi Bank v. Migdal Communal ViiI. [1995) IsrSC 49(4) 221.
283 Id. at 349.
284 Id. at 294, 351-52, 447-48. Judge Cheshin was the only judge who dissented. See id.
at 551-63 (Chesin, J., dissenting).
285 See, e.g., HCJ 1030/99 Knesset Member Oron v. Knesset Speaker [1999) IsrSC 56(3)
640; HCJ 1715/97 Bureau for Inv. Advisors v. Minister of Fin. [1997) IsrSC 51(4) 367; HCJ
6055/95 Zemah v. Minister of Def. [1995) IsrSC 53(3) 241.
286 HCJ 212/03 Herut v. Chairman of the Election Comm. to the 16th Knesset [2003) IsrSC
57(1) 750; HCJ 3434/96 Hofnung v. Knesset Speaker [1996) IsrSC 50(3) 57.
287 The Migdal decision in fact adopted Professor Klein's thesis, as presented in Klein,
supra note 237, and overruled the decisions in HCJ 148/73 Kaniel v. Minister of Justice
[1973) IsrSC 27(1) 794 and HCJ 60/77 Ressler v. Chairman of Cent. Elections Comm. [1977)
IsrSC 31(2) 556. For an extensive examination of the traditional positions of the supporters
of the constitutional phase, see Claude Klein, How Did Everything Start? The Bergman
Decision: First Reactions, 3 ALEl MlSHPAT 391 (1994).
288 See, e.g., Claude Klein, After the Bank Hamizrahi Case - The Constituent Power as Seen
by the Supreme Court, 28 MlSHPATIM 341 (1997).
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regime.289 From the other side, scholars criticized the Migdal
decision and the Constitutional Revolution. Moshe Landau, the
retired President Judge of the Supreme Court, called the Migdal
decision an "academic seminar"29o and argued that in light of the
Supreme Court's final ruling, the fundamental questions that were
raised, discussed, and determined should have been left for further
consideration.291 In addition, Landau argued the Migdal decision is
an attempt to construct a constitution by the jurisprudence of the
Court.292 Professor Ruth Gavison wrote that the Constitutional
Revolution is a self-fulfilling prediction and explained how the
discourse about a constitutional revolution obscured the fact that
the political questions about a constitution for Israel were not
systematically determined.293 Professor Yoseph M. Adrey claimed
that this revolution stands on flimsy foundations294 and concluded
that there is no evidence to support the claim that the Knesset
operates as both a constituent and a legislative body ("the two hats
theory").295 Many writers note the shortcomings and dangers
inherent in the Supreme Court's Constitutional Revolution and the
difficulties of adopting a full-fledged form of judicial review under
Israel's constitutional circumstances.296 Nonetheless, these and
other critical writings297 fail to thrust a spoke in the wheel of the
Constitutional Revolution and to influence the Court to overturn its
289 David Kretzmer, The Path to Judicial Review in Human Rights Cases: From Bergman
and Kol Ha'am to Mizrahi Bank, 28 MISHPATIM 359, 385 (1997) (''We should thank the
majority of the Supreme Court for choosing to adopt [in Migdal] a theory which provides the
legitimacy to judicial review of statutes that infringe upon human rights." (author's
translation»; see also Uriel Lynn, The Basic Laws as Part of the Israeli Written Constitution, 5
HAMISHPAT 267 (2000); Hillel Sommer, From Childhood to Maturity: Outstanding Issues in
Implementation of the Constitutional Revolution, 1 L. & Bus. 59, 60 (2004) ("With regard to
these fundamental constitutional matters [that have not yet been clearly addressed by the
Supreme Court in the Constitutional Revolution], the approach should not be one of
incremental progress. Rather, the Supreme Court must clarify these issues once and for all,
and in doing so, clarify the principle of the Israeli constitutional order." (author's
translation».
290 Moshe Landau, Judicial Enactment of a Constitution to Israel, 3 MISHPAT UMIMSHAL
697 (1996).
291 Id.
292 Id.
293 Gavison, Self-fulfilling Prophecy, supra note 2, at 31.
294 Yoseph M. Adrey, Constitutional Revolution: Indeed?, 3 MISHPAT UMIMSHAL 453, 454
(1996).
295 Id. at 468.
296 Yoav Dotan, Constitution to Israel?-The Constitutional Dialog After "The
Constitutional Revolution," 28 MISHPATIM 149, 209 (1997); Gavison, Self-fulfilling Prophecy,
supra note 2, at 120-22.
297 See, e.g., Assaf Bram, Judicial Review of Legislation: In Need of a Convincing Story, 5
HAMISHPAT 149 (2000).
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Migdal decision.
It is interesting to note the reaction of the political system to the
Migdal decision and the Constitutional Revolution. At first, it
seemed as if no one perceived any significant change, as if these
events were just another phase in the endless constitutional dialog
between different branches of government. But as time went on,
different political sectors slowly came to grasp the dangers this
revolution posed to various pre-existing legal arrangements and
pressed the Knesset to protect the legislation that made them
possible. As early as 1994, the Knesset tried to narrow the scope of
the Constitutional Revolution; it amended Basic Law: Freedom of
Occupation by inserting an "overriding clause."298 Professor Barak
called this amendment a "post-revolutionary" development and even
a "counter-revolution."299 The clause enabled the Knesset to
infringe upon the right to freedom of occupation not in accord with
the limitation clause if the legislation was enacted by a majority of
the Knesset's members and if it explicitly stated that it was valid in
spite of Basic Law: Freedom of Occupation.30o The overriding clause
was meant to pave the way for enactment of the Importing Frozen
Meat Law-1994 and to forestall potential judicial scrutiny of it.301
The move was successful. The Importing Frozen Meat Law
survived judicial review. This success, however, was only partial.
The Supreme Court's ruling made it clear that while the overriding
clause has an effect on the substantive constitutional scrutiny
employed by the Court, it does not provide an absolute judicial
immunity to legislation enacted in accordance with it.302 Another
attempt to block the Supreme Court from fulfilling its constitutional
revolutionary vision was the proposal to establish a constitutional
court and the demand made by political factions to change the
system for appointing judges to the Supreme Court.303 This
proposal was in line with the saying: "If you can't beat them, join
298 Basic Law: Freedom of Occupation, 1994, S.H. 90 § 8.
299 BARAK, INTERPRETATION IN LAW, supra note 280, at 580.
300 Basic Law: Freedom of Occupation, 1994, S.H. 90 § 8.
301 See id.
302 See HCJ 4676/94 Meatrael v. Knesset [1994] IsrSC 50(5) 15. For an extensive analysis
of the amendment of Basic Law: Freedom of Occupation and the response from the Supreme
Court, see Gershon Gontovnik, Constitutional Law: Development in the Wake of the
Constitutional Revolution, 22 TEL AVIV U. L. REV. 129, 157-70 (1999).
303 For a profound analysis of the different proposals to change the judges' system of
appointment and the dilemmas faced by Israeli society in this regard, see Menachem
Mautner, Appointment of Judges to the Supreme Court in a Multicultural Society, 19 BARILAN
L. STUD. 423 (2003).
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2007] Israel's Non-decision Constitution-making Tactic 465
them." From a historical point of view, it is this kind of response
one might expect from radical judicial constitutional activity.304
Since the values and political identity of the State of Israel are
determined by the Supreme Court, political factions seek
representation there so that their perceptions and worldviews will
be taken into account. The academic legal community has been
ambivalent about the constitutional court proposal and the demand
for changes in the system of appointment to the Supreme Court; the
judiciary community strongly opposed them.305 To date, neither the
proposal nor the demand resulted in a formal constitutional effect,
and it is hard to conclude that they affected the jurisprudence of the
Supreme Court or changed the foreseen course of the Constitutional
Revolution.
Another interesting response to the Migdal decision by the
political system could be characterized as an inflation of the Basic
Law Bills. As was previously mentioned, the enactment of the new
Basic Laws was not meant to end the gradual enactment of Basic
Laws and the accretion of the Israeli Constitution.306 Therefore,
Basic Law: Legal Rights Bill,307 Basic Law: Freedom of Speech and
Association Bill,308 Basic Law: Social and Economic Rights Bill,309
and Basic Law: Legislation Bill were submitted to the Knesset.310
Many other bills, however, appeared. Most notable were Basic Law:
Special Majority Legislation Bill,311 Basic Law: The Law in
Religious Issues Bill,312 Basic Law: Agriculture Bill,313 Basic Law:
Equal Opportunity in Education Bill,314 Basic Law: Equal Rights to
304 The required analogy in this context is to the "court-packing" plan of United States
President Franklin D. Roosevelt. Compare HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS: A
POLITICAL HISTORY OF APPOINTMENTS TO THE SUPREME COURT 196-99 (1974) (characterizing
Roosevelt's court-packing plan as the "handwriting on the wall" that motivated the United
States Supreme Court's ideological shift), with ELY, supra note 113, at 46 (implying that
Roosevelt's efforts were not the impetus for the Court's shift).
305 Aharon Barak, The Supreme Court as a Constitutional Court, 6 MISHPAT UMIMSHAL 315
(2006).
306 See supra note 75 and accompanying text.
307 1994, HH, 99.
308 [d.
309 For an elaborated discussion on Basic Law: Social Rights Bill, see Anat Maor, A Lacuna
in the Legal Corpus: Basic Law Social and Economic Rights Bill, in ECONOMIC, SOCIAL AND
CULTURAL RIGHTS IN ISRAEL 195 (Yoram Rabin & Yuval Shany eds., 2004).
310 DK (2000) 3542; DK (1994) 1015.
311 DK (1995) 5877.
312 DK (1996) 3721.
313 DK (1996) 3980.
314 DK (1998) 5699.
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466 Albany Law Review [Vol. 70
Women Bill,315 Basic Law: The Proclamation of the Establishment of
the State of Israel Bill,316 Basic Law: Constitution to Israel Bill,317
Basic Law: Property Rights Bill,318 Basic Law: Education to All
Bill,319 Basic Law: Freedom of Religion and Conscience Bill,320 Basic
Law: Right to Environmental Quality Bill,321 Basic Law: The Return
Bill,322 Basic Law: Constitutional Court Bill,323 Basic Law: The State
of Israel Bill,324 Basic Law: The State of Israel the State of the
Jewish People Bill (Knesset member Limor Livnat's proposal),325
Basic Law: The State of Israel the as the State of the Jewish People
Bill (proposed by a group of Knesset members),326 Basic Law: Civil
Equality Bill,327 Basic Law: Equality to the Arab Population Bill,328
Basic Law: Limitations on the Right to Silence of Public
Representative Bill,329 Basic Law: The Right to Housing Bill,330 and
Basic Law: Referendum Bill.331 All of these proposed new Basic
Laws, however, were blocked and rejected; none succeeded in
becoming law. This was, in fact, the decisive reaction of the political
system to the Migdal decision and what was an ongoing process of
gradual adoption of Basic Laws came to a grinding halt. As I wrote
earlier, the major stumbling block to enacting Basic Laws and
crafting a constitution was the existence of profound disagreement
on substantive and structural matters.332 Basic Laws were usually
enacted by sidestepping traditional areas of constitutional
disagreement. However, proposals to enact Basic Laws that enjoyed
wide political support were blocked. A good example was Basic
Law: Social and Economic Rights Bill. In recent years many argued
315 DK (1998) 6036.
316 DK (1998) 6519.
317 DK (1998) 9354.
318 Submitted to the Knesset by Knesset member Roni Milue on March 29, 2000. See
Knesset Homepage, http://www.knesset.gov.il (on file with author).
319 Submitted to the Knesset on June 5, 2000. See Knesset Homepage,
http://www.knesset.gov.il (on file with author).
320 DK (1999) 3046.
321 DK (2000) 4736.
322 DK (2000) 8248.
323 DK (2000) 665.
324 DK (2000) 1879.
325 DK (2001) 1873.
326 DK (2001) 1873.
327 DK (2001) 3745.
328 DK (2001) 3743.
329 DK (2004) 9328, 9332.
330 DK (2004) 10540.
331 Submitted to the Knesset on March 28, 2005. See Knesset Homepage,
http://www.knesset.gov.il (on file with author).
332 See supra Part III.B.
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2007] Israel's Non-decision Constitution-making Tactic 467
that a wide agreement could be reached on this Bill.333 However,
fears of constitutional manipulation and activist interpretation in
the future by the Supreme Court prevented any advancement in the
bill's enactment.334 Even parties known for their social agenda
opposed this bill. Israel was witnessing the expansion of structural
disagreement over the role of the Supreme Court vis-a-vis the
Knesset in any future constitution-making. Today, religious parties
often cynically claim that they would oppose even the enactment of
the Ten Commandments as Basic Law.335 In other words, even if
they had the opportunity to enshrine their worldview in Basic Laws,
they would nevertheless decline because of the structural
disagreement about the constitutional role and status of the
Supreme Court.
Many of the opponents of the Constitutional Revolution
acknowledged that it would be impossible to turn the wheel back by
conventional means and that harsh criticism and minor
amendments of Basic Laws would not deflect the State of Israel
from its constitutional course. Hence, on the one hand, they decided
to block any future enactment of new Basic Laws that might worsen
the constitutional state of affairs (according to their worldview). On
the other hand, they hoped to enact a completely new constitution
that will enjoy wide support. They believed that such a constitution
could repair the present faults of Israel's constitutional
arrangement and check the Supreme Court. These attempts have
yet to bear any actual constitutional fruits.
333 See DK (2004) 7595 (Knesset member Chaim Oron); DK (2003) 3588-89 (Knesset
member Ahmad Tibi); DK (2003) 3585 (Knesset member Mohammad Barakeh); DK (2002)
4688 (Knesset member Anat Maor); DK (2002) 4687 (Knesset member Ophir Pines-Paz); DK
(1997) 7568 (Knesset member Amir Peretz).
334 See DK (2003) 3585 (Yair Peretz); DK (2002) 4691 (Knesset member Moshe Gafni); DK
(2002) 4696 (Knesset member Nissim Zeev); DK (2002) 4689 (Knesset member Zevulun
Orlev); DK (2001) 1762 (Knesset member Shaul Yahalom).
335 For example, Knesset member David Tal observed:
The current situation is in fact that all the religious parties have decided to oppose the
enactment of Basic Laws, and even if they would propose to enact the Ten
Commandments as Basic Law we would oppose . . . . If I will adopt the Ten
Commandments as Basic Law and it will reach the Supreme Court, the court would
interpret this Basic Law as it pleases.
DK (1999) 537 (author's translation); see also DK (2001) 2234 (Knesset member Areih
Gamliel). This approach is different from the approach taken by religious parties in the
formative period of the State-totally rejecting the idea of a constitution but feeling that it
should be based on the principles of the Torah. See supra note 28 and accompanying text.
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D. The Constitutional Dialogue, the ''Decision to Decide, " and Social
Cooperation
Professor Yoav Dotan, in his article, Constitution to Israel?-The
Constitutional Dialog After "The Constitutional Revolution,"
examined the ways in which the Migdal decision and the
Constitutional Revolution fit the "constitutional dialogue" between
the Supreme Court and the legislative and executive branches.336
Dotan's conclusion was that while the Constitutional Revolution has
granted every participant in the constitutional dialogue
"unconventional" tools to attack the decisions of other participants,
the Revolution does not signify a substantial shift in the balance of
powers between the different branches.337 Doctor Gershon
Gontovnik joined Dotan in the dialogue paradigm and analyzed the
amendment of Basic Law: Freedom of Occupation, which was meant
to narrow the extent of the Constitutional Revolution and the
narrow interpretation given by the Supreme Court to this
amendment as part of a continued dialogue between the different
branches.338 Gontovnik notes that "the constitutional dialog[ue] ...
of course will not end" and hopes that in the future both the
Supreme Court and the Knesset will use their weapons-legislation
and interpretation-wisely and with great care.339 In my opinion, in
the wake of the Migdal decision and the Constitutional Revolution,
the constitutional dialogue paradigm between these two major
branches of government does not fit Israeli constitutional law. To
the contrary, it is the absence of a dialogue and the metaphors of
disconnection and ''breaking the rules" that best characterizes the
constitution-making since the Migdal decision.
Until the 1980s, the Supreme Court attempted to refrain as much
as possible from resolving constitutional questions of the first
order.340 This judicial decision-making approach corresponded
336 Dotan, supra note 296, at 188. For a comprehensive analysis of the relationships
between the different branches of government in the United States as a constitutional
dialogue, see LOUIS FISHER, CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL
PROCESS (1988).
337 Dotan, supra note 296, at 209.
338 Gontovnik, supra note 302, at 157-70; see also Aharon Barak, Partnership and Dialog
Between the Legislative and Executive Branches and the Judicial Branch, 4 NETANYA ACAD.
C. L. REV. 51 (2005) [hereinafter Barak, Parntership and Dialog] (discussing the
constitutional dialogue between the different branches of government in Israel).
339 Gontovnik, supra note 302, at 169.
340 The tactic of avoiding the resolution of important constitutional questions can be
detected in a long line of precedents. See HCJ 141182 Rubinstein v. Knesset Speaker [1982]
HeinOnline -- 70 Alb. L. Rev. 469 2006-2007
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perfectly with the constitution-making tactic chosen by Israel's
public representatives. Because there was a good fit between the
judicial approach taken by the Supreme Court and the constitutionmaking
tactic chosen by Israel's public representatives, the goals of
fair and stable social cooperation and the protection of human rights
were achieved. Furthermore, the Supreme Court's approach of
contributing slowly and gradually to Israel's constitutional
arrangements enabled the Knesset and the political system to
examine the Court's rulings, adjust to them, and respond
accordingly. This approach not only enabled a dialogue between the
Supreme Court and the Knesset, but also fostered democratic
deliberation and dialogue between the different factions that
constitute Israeli society.341 This deliberation concerned the
constitutional arrangements that should be adopted by Israeli
polity.
The enactment of the new Basic Laws corresponds perfectly with
this overall tactic and tradition of deciding not to decide. However,
the Migdal decision and the Constitutional Revolution by the
Supreme Court are clear attempts to achieve a constitutional
resolution and manifest the adoption of a new and foreign approach
in Israeli constitutionallaw-"a decision to decide." In fact, in some
of the Court's dissenting opinions, even prior to the enactment of
the new Basic Laws, one can detect this new approach of deciding to
decide and the attempt to strive towards a constitutional regime
accompanied by an American-style judicial review.342 The
enactment of the new Basic Laws gave the Supreme Court the
opportunity (maybe even the excuse) to almost unanimously
abandon the tradition of deciding not to decide. Professor Yitzhak
Zamir explains that the "decision to decide" is one of the obvious
features of judicial activism.343 It is only to be expected that the
Israeli Supreme Court, which is considered one of the most activist
courts in the world today, would implement an activist approach to
constitutional law-the decision to decide on a clear and defined
IsrSC 27(3) 141; HCJ 246/81 Derech Eretz Ass'n v. Broad. Auth. [1981] IsrSC 35(4) 1; HCJ
60177 Ressler v. Chairman of Cent. Elec. Comm. [1977] IsrSC 31(2) 556; HCJ 148173 Kaniel v.
Minister of Justice [1973] IsrSC 27(1) 794; HCJ 98/69 Bergman v. Minister of Fin. [1969]
IsrSC 23(1) 693.
341 See Moshe Landau, Constitution as Supreme Law for the State of Israel, 27 HAPRAKLIT
30 (1971).
342 See, e.g., HCJ 124/89 Le'or Movement v. Knesset Speaker [1989] IsrSC 44(3) 529
(Barak, J., dissenting).
343 Yitzhak Zamir, Judicial Activism: The Decision to Decide, 17 TEL AVIV U. L. REV. 647,
650 (1993).
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constitutional framework for the State of Israel. Landau justly
noted that the Migdal decision amounts to a judicial enactment of a
constitution.344 While, until the Migdal decision, Israeli
constitution-making was characterized by the decision not to decide,
in the Migdal decision, the Supreme Court decided to decide for
Israel on a defined constitutional framework, which includes the
institution of judicial review.
Professor Mautner writes that the significant changes in the
jurisprudence of the Supreme Court since the 1980s, including the
increased activism, should be viewed as a reaction to the collapse of
the political, social, and cultural hegemony of labor Zionism.345
Following these changes, Mautner explains, the Supreme Court
took sides in the political and cultural struggle for Israel's identity
in favor of the "Jewish-secular-liberal" group and transformed itself
into an important device for promoting its political and cultural
goals.346 The change in the Supreme Court's approach to
constitutional issues should be perceived in light of these insights.
The "decision to decide" approach by the Supreme Court is an
attempt to resolve the question about the nature and character of
the State of Israel in favor of the Jewish-secular-liberal group. The
ultimate goal the Court is trying to achieve is the establishment of a
constitutional liberal democracy that grants normative superiority
to human rights and authorizes the Court to review primary
legislation.
It is not surprising that many people in the political system felt
(and still feel) betrayed. The struggle over the nature and character
of the State of Israel is not new. This struggle shaped Israel's
constitution-making and led to the failure to enact a constitution.
Most of the Supreme Court's prestige and status was achieved by its
344 Landau, supra note 290; see also Gavison, Self-fulfilling Prophecy, supra note 2, at 22.
Professor Gavison notes:
The rhetoric of Constitutional Revolution, at least as employed by President Judge
Barak, is not solely a description. It is meant to enable the completion of the process, to
enact a complete constitution, entrenched and superior, that includes a comprehensive
bill of rights, and that grants the Supreme Court the powers of judicial review.
Id. (author's translation). Hence, I cannot agree with Professor Bendor that the Migdal
decision "is no more judicial enactment of a constitution than is the former interpretation the
judicial prevention of a constitution from the state of Israel." Ariel L. Bendor, The Legal
Status of Basic Laws, in 2 BERENZON BOOK 119, 128 (2000) (author's translation). According
to my approach, the activity of constitution·making is not a binary game of having a
constitution or abstaining from having a formal constitution. In the middle stands the option
of deciding not to decide if a constitution is necessary.
345 Mautner, Years ofAnxiety, supra note 164, at 649.
346 Id.
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ability to transcend party politics.347 The Migdal decision, however,
was justly perceived by politicians as a stepping down from the
judge's bench and participating in the debate as an interested party.
The Court was viewed as politically motivated even when
implementing first-order constitutional norms. The Harari
Resolution, which is the source of all constitutional norms,
established a state of affairs in which Basic Laws are mostly the
product of ordinary politics and not constitutional politics.348 The
claims about the Court's political bias gained support following
Supreme Court decisions and rulings that struck down or called into
question a variety of arrangements concerning state and religion.349
Today, some political parties and factions view the Supreme Court
as a political rival and are increasingly resentful of its powers.350
Their resentment is not reserved for the Supreme Court; many felt
that other political entities lured them with false promises to gain
their consent to the enactment of the new Basic Laws.351
347 See Shapira, Self-Restraint of the Supreme Court, supra note 153, at 640. According to
Shapira, in the formative years of the State, the Supreme Court consciously shaped its
apolitical image by not deciding sensitive and controversial disputes. Id. at 640-41. This has
been accomplished, Shapira explains, "through the prudential employment of a variety of
avoidance devices." Id. at 640. On the apolitical approach taken by the Supreme Court, see
Itzhak Olshan, On the Supreme Court, 1 MISHPATIM 287 (1969). Olshan explained that one of
the first aims adopted by the Supreme Court, since its inauguration, was to earn the public
trust. Id. at 288. Since, at that time, the judges were known to have a political background,
they decided to disconnect themselves from any political activity. Id. The Supreme Court's
image as a bipartisan and unbiased institution was strengthened when the Court gave
remedy to those who have been discriminated against based on their political affiliation. Id.
348 See supra notes 74-75 and accompanying text.
349 The claims that one should view the Supreme Court's activity in the constitutional field
as a political activity have also earned some academic foundation. See Gidon Sapir, The
Constitutional Judicial Proceeding as a Political Proceeding, 19 BAR·ILAN L. STUD. 461 (2003).
Sapir, however, argues that the constitutional judicial proceeding might be useful despite its
substantively subjective aspect. Id. at 471-93.
350 As an example of a manifestation of the perception that views the Supreme Court as a
political opponent of the religious group in the struggle for Israel's political identity, Knesset
member David Tal said:
In fact, the implementation of the Constitutional Revolution is no different from the
implementation of any other revolution. We are in the midst of a fearless straggle on the
nature of the State of Israel, whether it sustains its Jewish character as intended by its
founders or become a democratic state absent any uniqueness to the Jewish people. The
question is who will decide the matter? Who will lead and shape the nature of the State
of Israel in the modern age? Will it be a democratically elected body or a unelected
limited oligarchy, which has been appointed by a committee? I think that at the core of
the disagreement lay the will of an elitist minority to dictate to the majority of the Israeli
public 'proper patterns of behavior' or as it called the rule oflaw.
Knesset Homepage, http://www.knesset.gov.il (on file with author) (author's translation); see
also DK (2004) 8833 (Knesset member Yuri Shtern); DK (2004) 8830 (Knesset member Meir
Porush).
351 See, e.g., DK (2002) 4691 (Knesset member Moshe Gafni).
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Thus, the Migdal decision led to a shift in the constitutionmaking
tactic employed by public representatives-the decision to
decide. One should view the inflation of Basic Law proposals in
light of this background. Political groups and factions from all
across the political spectrum are doing their best to promote their
narrow political agenda by enshrining it in constitutional
arrangements. By attempting to enact Basic Laws that mirror their
worldview, they are attempting to sway the battle over the nature of
the State of Israel in their favor. Similarly, the attempt to enact a
new constitution that enjoys broad support from political and public
entities is an attempt to resolve and shape by a wide agreement the
nature and character of the State of Israel for years to come.
Nevertheless, the adoption of the new constitution-making tactic of
deciding to decide by political entities and factions is not the result
of a partnership in ways or goals with the Supreme Court. To the
contrary, these new patterns of constitution-making could be
portrayed as a protest reaction to the constitutional process led by
the Supreme Court since the Migdal decision. In other words, the
goal of the new constitution-making tactic of deciding to decide, by
at least part of our public representatives, is to block the Supreme
Court. It is not a constitutional "dialogue" that Israel is witnessing;
rather, it is a fight--or even a war-between the Supreme Court
and the Knesset over Israel's constitutional arrangements.
Therefore, it is not surprising that the judiciary did not welcome
these attempts by politicians to adopt the tactic of deciding to
decide.352
This attempt by politicians to adjust to the Supreme Court's
approach after the Migdal decision and to implement a tactic of
deciding to decide ended in bitter disappointment for our public
representatives. These representatives failed to shift to the tactic of
352 See Barak, Partnership and Dialog, supra note 338, at 413 ("I am convinced that the
dialog between the Knesset and the court will continue. However, the signs that come from
the Knesset are not good. Legislation bills are submitted, which give the feeling that their
dominant goal is to contest against the courts and to undermine the public trust in them."
(author's translation». President Judge Barak in the deliberations about the enactment of a
new constitution by the Israeli Democracy Institute stated:
The question before us today is not whether to enact a constitution and judicial review
over primary legislation .... The question before us is much narrower: is there a reason
to deviate from the Migdal decision and to establish a different arrangement as to
judicial review over primary legislation .... In essence the situation today is good and
proper, and the different suggestions made here today are not; in any event they are not
good enough to have us change the Migdal precedent.
Aharon Barak, The Supreme Court as a Model of Judicial Review, in MODELS OF JUDICIAL
REVIEW 23 (2001) (author's translation).
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2007] Israel's Non-decision Constitution-making Tactic 473
deciding to decide to create a constitution. They failed because
there exists in Israeli society today the same deep ideological
disagreement that characterized it in the formative years. This
factor prevented the enactment of a constitution and the adoption of
a new constitution-making tactic, even in the post-Migdal decision
era. Furthermore, disagreement as to the proper role and status of
the Supreme Court and fear of its power to interpret constitutional
texts in ways contrary to the framer's intent effectively ended the
enactment of Basic Laws, closing off that process of gradually
adopting a constitution.
Striving for an American-style constitutional regime dismantled
not only the previously-existing political cooperation in the
enactment of Basic Laws, but also the social cooperation between
the various factions in general. In the past, President Judge Barak
argued that the Constitutional Revolution could lead to the
unification of Israeli society and to a social revolution that would
make Israel a more just society.353 But striving for a constitutional
resolution led us away from the important ideal of a democratic
society based on fair social cooperation. According to Rawls, a wellordered
society is characterized by social cooperation that exhibits a
certain structure where "everyone [in the society] accepts and
knows that the others accept the same principles" and rules
according to which society operates and disputes are resolved.354
The Constitutional Revolution took Israel away from this political
ideal. Major portions of Israeli society are alienated from both the
political system and the legal system. The machinery for the
peaceful resolution of disputes broke down, and people no longer
agree upon the rules to be observed. It is no wonder that the
enactment of ordinary legislation became very difficult and that
every faction suspects the worst for itself when any change occurs in
the constitutional status quo. Hence, even legislation unrelated to
state-religion arrangements is hampered.355
353 Aharon Barak, The Constitutional Revolution, in 1 SELECTED ESSAYS 349, 374 (Haim H.
Cohn & Itzhak Zamir eds., 2000) [hereinafter Barak, Constitutional Revolution Il].
354 RAWLS, POLITICAL LIBERALISM, supra note 103, at 4.
355 See remarks made by Knesset member Professor Yuli Tamir in a symposium about the
Israeli Supreme Court held at Netanya Academic School of Law on March 4, 2005. See
http://www.netanya.ac.il/contentl_Events/Event.asp?CategoryID=22&ArticleID=
24&CatTitle= (last visited Dec. 22, 2006).
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E. Striving for a Constitutional Regime and the Protection of
Human Rights
Following the enactment of the new Basic Laws, President Judge
Barak argued in a series of articles and books that the normative
status of human rights changed and that it acquired constitutional
recognition superior to ordinary legislation.356 Similarly, President
Judge Barak and other scholars often argue that striving for a
constitutional regime and the Constitutional Revolution contributed
positively to the status of human rights in Israeli society.357 Often,
it seems that the chief justification offered for the Constitutional
Revolution and the adoption of judicial review over primary
legislation is that they make stronger protections of human rights
possible.
If these claims are true, then criticizing efforts to achieve a formal
constitutional regime amounts to an attack on the discourse of
rights. If striving for a formal constitutional regime in the past
decade was improper, it is because adopting a discourse of
constitutional rights either hampers the ability to achieve social
cooperation between the different political factions or that the
discourse of constitutional rights infringes upon basic values and
valuable interests.358 This critique, as it concerns the primacy or
priority of the discourse of rights, is problematic. It argues that in
order to achieve and promote certain goals and values (i.e., social
cooperation and generosity), one should infringe upon rights and
prevent justice. Such an argument is commonly taken to be
improper, and the critique of the discourse of rights would fail if it
could not be refined or restricted. Thus, in order to succeed in a
critique of the Constitutional Revolution, one must show how
striving for a formal constitutional regime thwarts or hampers the
356 See BARAK, INTERPRETATION IN LAw, supra note 280, at 355; Barak, Constitutional
Revolution, supra note 262, at 12.
357 Aharon Barak, The Constitutional Revolution-12th Anniversary, in 1 L. & Bus. 3, 23
(2004); Barak, Constitutional Revolution II, supra note 353, at 367; see also Or Bassok, A
Decade to the "Constitutional Revolution':. Israel's Constitutional Process from a Historical·
Comparative Perspective, 6 MISHPAT UMIMSHAL 451, 495 (2003).
358 For a critique of the liberal discourse of rights, see MICHAEL J. SANDEL, LIBERALISM
AND THE LIMITS OF JUSTICE 15-65 (2d ed., 1998), and MARy ANN GLENDON, RIGHTS TALK: THE
IMPOVERISHMENT OF POLITICAL DISCOURSE (1991) (tracing and critiquing the United States'
discourse of rights). For a critique of the utopian universalism of the discourse of rights and
the need to replace it with pragmatic constitutional arrangements, see Irving Kristol, On the
Political Foolishness of the Jews, in NEO·CONSERVATISM 329, 343-45 (2004). For a critique of
the constitutional discourse of rights in Israel, see Avi Sagi, Law and Society: Rights
Discourse and Identity Discourse in Israel, 16 BAR-ILAN L. STUD. 37 (2000).
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2007] Israel's Non-decision Constitution-making Tactic 475
protection of human rights in Israel.
I cannot provide here a detailed argument showing how the
attempt to strive for a formal constitutional regime contributed very
little to the protection of human rights in Israel, and may even
hampered such protection_ Arriving at such a value judgment may
prove to be very complex. First, it requires the adoption of a
normative standard to judge the degree of protection of human
rights existing in a given society. Second, it requires adopting
hypothetical presuppositions to compare the actual protection given
to human rights since the Constitutional Revolution to an
imaginary situation in which the Supreme Court continued to follow
the traditional constitutional rules and doctrines. This value
judgment may prove to be very difficult to make since human rights
were protected even before the Constitutional Revolution. Third,
trying to arrive at such a value judgment might require the
aggregation of rights since some scholars argue that the mere fact of
providing protection to rights by judicial review over primary
legislation conflicts with the right to participate in political
decisions, which some argue is the '''right of rights."'359
I, however, base my conclusion that the Constitutional Revolution
contributed very little, if anything, to the protection of human rights
in Israel on insights worth noting here. First, even the proponents
of the Constitutional Revolution are forced to admit that the
Supreme Court's decisions giving normative superiority to basic
rights over primary legislation are few in number and minor in
their importance for the protection of human rights.360 Second,
many scholars argue that the Constitutional Revolution actually
served to protect the stronger factions in Israeli society rather than
the weaker factions and minority groups needing and deserving
protection.361 Third, Supreme Court decisions in the past decade,
359 WALDRON, supra note 38, at 232. But see Alon Harel, Rights-Based Judicial Review: A
Democratic Justification, 22 L. & PHIL. 247, 255 (2003) (arguing that "it is justified to infringe
the right to participation in order to guarantee the protection of ... other rights").
360 See HCJ 212/03 Herut v. Chairman of the Election Comm. to the 16th Knesset [2003]
IsrSC 57(1) 750; HCJ 1030/99 Knesset Member Oron v. Knesset Speaker [1999] 56(5) 640;
HCJ 1715/97 Bureau for Inv. Advisors v. Minister of Fin. [1997] IsrSC 51(4) 376; HCJ 6055/95
Zemach v. Minister of Def. [1995] IsrSC 53(5) 245.
361 See Ben-Israel, supra note 174; Aeyal M. Gross, How Did "Free Competition" Become a
Constitutional Value? - Changes in the Meaning of the Right to Freedom of Occupation, 23
TEL AVIV U. L. REV. 229 (2000); Ran HirschI, The "Constitutional Revolution" and the
Emergence of a New Economic Order in Israel, 2 ISR. STUD. 136, 137 (1997) (noting that the
Constitutional Revolution has supported the power of the dominant neo·liberal worldview
that is held by many in Israel); Marmor, Judicial Review, supra note 137, at 137-42.
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which are perceived by many as central to the protection of human
and civil rights, were based not On the normative constitutional
supremacy of rights but rather On their centrality in the Israeli
legal system.362 That centrality of rights in the Israeli legal system
was continuously acknowledged since the Supreme Court's
inauguration in the formative period and was not the result of the
Constitutional Revolution.363
I wish to pause On this third insight since it may hold the key for
a better understanding of the effects of the tactic of deciding to
decide for the protection of rights. There are probably a variety of
reaSOnS why the Supreme Court chose not to base the protection of
human rights in landmark cases on the Constitutional Revolution or
on the normative supremacy of rights. I speculate that one of the
reaSOns is the fear that the Court's rulings in controversial cases on
the Constitutional Revolution would hamper the protection of
human rights instead of assisting it. How is that possible? A major
part of the criticism leveled against the Supreme Court when it
protected rights in the last decade was directed not at the concrete
results of the Court's decisions but rather at the vision they
reflect-the constitutional neutral state.364 Hence, it could be
reasonably supposed that the lack of will to base the protection of
human rights on the Constitutional Revolution in controversial
cases is the result of the fear that such legal reasoning would
endanger the protection of rights and the Constitutional Revolution
itself. If this proposition is true, then the Constitutional Revolution
and the alleged constitution undermines, instead of legimitizes, the
protection of rights.365 If the protection of rights prior to the
Constitutional Revolution was achieved by the Court acting in
accord with the political sphere, the protection of rights in the postConstitutional
Revolution era is achieved through a clash between
the Court and the Knesset. This battle revolves around who will
have the final and ultimate authority to decide the nature,
362 HCJ 5100/94 Pub. Comm. Against Torture v. Israel [1999] IsrSC 53(4) 817; HCJ
6698/95 Kaadan v. Isr. Land Admin. [1999] IsrSC 54(1) 285; HCJ 4541194 Miller v. Minister
of Def. [1995] IsrSc 49(4) 94; HCJ 721/94 El-Al v. Danilovitz [1994] IsrSc 48(5) 749.
363 But see the disagreement between the judges in CA 537/95 Ganimat v. Israel [1995]
IsrSC 39(3) 355 and HCJ 2316/95 Ganimat v. Israel [1995] IsrSC 39(4) 589.
364 See e.g., SHINE, supra note 4, at 155-77 (discussing the constitutional vision manifested
in the Supreme Court's rulings); DK (2004) 8831 (Knesset member Meir Porush); DK (2004)
8822, 8828 (Knesset speaker Reuven Rivlin); DK (1995) 3240 (Knesset member Avraham
Ravitz).
365 See ELI SALZBERGER, CONSTITUTION, BASIC LAws, BILL OF RIGHTS 53 (2001) (explaining
the danger that is inherent in the Constitutional Revolution for the protection of rights).
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2007] Israel's Non-decision Constitution-making Tactic 477
character, and extent of legal rights and norms in the Israeli legal
system. Needless to say, no matter which body wins this struggle,
the citizens and their rights will be the main losers.
F. Does Israel Have a Constitution?
There is intense disagreement as to whether Israel has a
constitution. On the one hand, the proponents of the Constitutional
Revolution in the political arena, the academic community, and the
judiciary argue that a decision was made and Israel joined the club
of enlightened nations that possess formal constitutions.366 On the
other hand, others in the political arena, the academic community,
and the judiciary question this unequivocal conclusion. They argue
that no substantial change occurred in Israel's constitutional
framework and that Israel still has no formal constitution in a
conventional sense.367
The extent of this disagreement, however, is not as wide as it
might seem at first. While everyone agrees that Israel has Basic
Laws, the disagreement is about the nature and essence of them.
Some praise these Basic Laws and argue that they constitute an
actual constitution, while others argue that their essence and
nature are far from clear and deny them the title of a
constitution.368 Everyone agrees that the Basic Laws are the
product of the Knesset, whose 120 members are elected in a periodic
general election.369 The disagreement is about the nature and
366 Barak, The Economic Constitution of Isreal, supra note 2, at 358--60; Rubinstein &
Medina, The Constitution of the State of Isreal, supra note 2, at 356.
367 See DK (2000) 4770 (Knesset member Reuven Rivlin); SHINE, supra note 4, at 136;
Adrey, supra note 294, at 460; Dotan, supra note 296, at 209 ("In fact, the 1992 Revolution
has not led Israel to a state of constitutional democracy in the known and conventional sense,
and it is doubtful if in its present framework it would lead to it in the future. We did not have
in the past, and we do not have in the future, an entrenched constitutional framework by an
entrenched constitutional text, which provide the court the power of a final verdict." (author's
translation»; Gavison, Self-fulfilling Prophecy, supra note 2, at 32; Yoash Meisler, "The
Constitutional Revolution" Just Over a Decade Later - Law and Disorder, 7 DEMOCRATIC
CULTURE 131 (2003).
368 See Adrey, supra note 294, at 460 ("Basic Laws do not constitute a constitution, but
rather reflect the legislature's perception to assume certain limitation." (author's
translation»; Meisler, supra note 367, at 177 (''The allegedly objective normative claim, that
Basic Laws are supreme as constitutional law, which restrict the Knesset authority, are
nothing but a sacred fictitious fairy tale ...." (author's translation»; see also DK (2000) 4770
(Knesset member Reuven Rivlin) ("Basic Laws do not constitute a complete and continuous
material of superior norms." (author's translation».
369 See Basic Law: The Knesset, 1958, S.H. 69 §§ 3, 4, 8, 9.
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essence of the Knesset's activity when enacting Basic Laws. Some
adopt the theory' of constituent authority and argue that the
Knesset operates as a constituent authority when enacting Basic
Laws,370 while others reject this theory and argue that this activity
is not substantially different from any other activity of the
Knesset-such as enacting primary legislation.371 Everyone agrees
that the Supreme Court sustains judicial review over primary
legislation and that on a few occasions it even ordered the
nullification of primary legislation. The disagreement is about
whether, from the mere existence of judicial review, a conclusion
can be drawn as to the existence of a formal constitution. The
proponents of the constitution argue that judicial review is a sign
pointing to the existence of an entrenched constitution enforced by
judicial review,372 while others point to the fact that the mere
existence of judicial review does not necessarily show that Israel has
a formal constitution.373 Everyone agrees that the current Basic
Laws have various flaws, defects, and weaknesses-in the ways by
which they were enacted, in their nature, and in their character.374
The disagreement is about the normative consequence inferred from
these faults. Some argue that these flaws show that Israel's
constitution, while imperfect and sometimes poorly functioning, is
still a constitution.375 Others argue that these flaws prevent us
from classifying Basic Laws as an actual constitution. Everyone
agrees that the Knesset is often not deterred from amending Basic
Laws and that these amendments sometimes arise from narrow and
370 See infra notes 391-417 and accompanying text (examining the theory regarding the
Knesset's constituent authority).
371 See CA 6821193 United Mizrahi Bank v. Migdal Communal Vill. [1995] IsrSC 49(4) 221,
471-526 (Chesin, J.).
372 Rubinstein & Medina, The Constitution of the State ofIsreal, supra note 2, at 356.
373 The reason for this position is twofold. First, judicial review is neither necessary nor
sufficient to conclude the existence of a constitution. See LAURENCE H. TRIBE, FIVE REIGNING
MYTHS ABOUT CONSTITUTIONALISM AND JUDICIAL REVIEW 12 (1994). Second, a limited
judicial review over primary legislation existed even prior to the Constitutional Revolution
when everyone agreed that Israel did not have a constitution. See HCJ 98/69 Bergman v.
Minister of Fin. [1969] IsrSC 23(1) 693; Meisler, supra note 367, at 131 ("Since the
establishment of the state and until 1992, no one argued that Israel's regime is a
constitutional regime." (author's translation».
374 See DK (2000) 4770 (Knesset member Reuven Rivlin); BARAK, JUDGE IN A DEMOCRACY,
supra note 278, at 79; Adrey, supra note 294, at 460; Bendor, supra note 344, at 139-40;
Rubinstein & Medina, The Constitution of the State ofIsreal, supra note 2, at 314.
375 See Rubenstein & Medina, The Constitution of the State of Isreal, supra note 2, at 356
(calling this constitution a "'lesser evil': an incomplete constitution, but a constitution that
provides a complete protection to the most important human rights"); see also BARAK, JUDGE
IN A DEMOCRACY, supra note 278, at 79; Barak, The Economic Constitution of Isreal, supra
note 2, at 357-60.
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short-sighted political interests.376 The disagreement is about the
upshot of this phenomenon. Some view it as a problem that needs
to be addressed but does not affect the conclusion that Israel has a
constitution,377 while others believe that it undercuts the essence of
having a constitution and prevents the conclusion that Israel has a
constitution.378 Everyone agrees that some fundamental
constitutional matters about Basic Laws were not yet addressed by
the Supreme Court. The disagreement is about the extent of these
matters and their effect. Some believe that the Supreme Court
must clarify these issues once and for all in order to clarify the
principle of the Israeli constitutional order.379 Others believe it is
not the role of the Court to decide these issues and that the mere
existence of these undetermined fundamental constitutional
questions testifies to the fact that Israel has yet to decide on the
establishment of a formal constitution.380 Everyone agrees that
many public entities operate in these days with the goal of enacting
a complete and new constitution.381 The disagreement is about the
nature and essence of this activity. Some perceive it as an attempt
to amend and improve our current formal constitution, while others
view it as an attempt to enact the first real formal constitution.382
It may look at first as if the disagreement here is semantic. If the
correct meaning of the term "constitution" is a document or a
system of documents that limit the powers of the legislature and by
which legislation may be invalidated, then Israel has a constitution.
This constitution was not adopted or affirmed in a special
proceeding by the People manifesting popular sovereignty but was
enacted and enforced by judicial means. One may argue against the
political legitimacy of this constitution but cannot deny its
existence.383 However, if the true meamng of the term
376 See Ariel L. Bendor, Flaws in the Enactments of Basic Laws, 2 MISHPAT UMIMSHAL 443,
447 (1995).
377 See BARAK, JUDGE IN A DEMOCRACY, supra note 278, at 79; Rubinstein & Medina, The
Constitution of the State of Isreal, supra note 2, at 314.
378 Dotan, supra note 296, at 209; Gavison, Self-fulfilling Prophecy, supra note 2, at 32;
Meisler, supra note 367, at 177.
379 Sommer, supra note 289, at 77-79.
380 Gavison, Self-fulfilling Prophecy, supra note 2, at 31; Landau, supra note 290, at 697.
381 Compare Constitutional, Legislative, and Judicial Committee,
http://www.knesset.gov.illhuka (last visited Dec. 22, 2006), with Israeli Democracy Institute,
http://www.idi.org.illhebrew/article.asp?id=2351 (last visited Dec. 22, 2005).
382 Meisler, supra note 367, at 195.
383 Like the Constitution of the Weimar Republic, which was forced upon the German
people after the First World War and makes it hard to say that the people adopted it, the
Israeli Constitution was forced upon the Israeli People and was not created by the People.
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"constitution" is a document created and approved by the people
constituting themselves in a special popular procedure, then Israel
does not have a constitution. The fact that a limiting system of
legal documents exists (i.e., Basic Laws) is immaterial since the
correct meaning of a constitution is a document that is a
manifestation of the will of the people as a whole.
Nevertheless, the issue here is not semantic. The disagreement is
not about the true meaning of the term "constitution." Rather,
Israel is in a situation in which social, political, and legal
institutions and arrangements are under intense and deep
controversy.384 In this state of affairs, Israel already has Knesset,
Basic Laws, and judicial review, but it disagrees about their nature,
essence, and extent. The question regarding the Basic Laws' nature
is not wholly factual but requires a substantive value judgment as
to the ways they should operate and function. As examined in this
Article, this is not a new situation but is the product of the origin of
Israeli constitutional law and the constitution-making decision of
deciding not to decide.385
The fact that disagreements exist does not mean that the
existence or absence of a constitution is purely subjective and
reflects personal attitudes and preferences. A constitution is not
person-relative. The existence or absence of a constitution is
independent of personal preferences, convictions, and beliefs of
scholars, judges, and public representatives. A proposition about
the existence or absence of a constitution must correspond to the
See MARIAN D. IRISH & ELKE FRANK, INTRODUCTION TO COMPARATIVE POLITICS: THIRTEEN
NATION·STATES 28 (2d ed. 1978).
384 See Ruth Gavison, The Absence of Judicial Review, in MODELS OF JUDICIAL REVIEW 39
(2001) ("We are in a very complex situation, in which we already have institutions and these
institutions are under intense and deep disagreements ...." (author's translation». Even
Rubinstein and Medina, who argue that Israel has a constitution, admit the existence of deep
disagreement about our social institutions. Rubinstein & Medina, The Constitution of the
State of Isreal, supra note 2, at 355 ("The intense disagreements in the 15th Knesset, which
have prevented the enactment of additional Basic Laws, were about the question who should
be authorized to interpret the constitution and review Knesset Legislation-the Supreme
Court or a special constitutional court ...."). Rubinstein and Medina, however, restrict the
extent of these disagreements and argue that "these disagreements are no longer about the
necessity of a formal constitution or about the Knesset's authority to enact a constitution."
Id. (author's translation). But see Shlomo Avineri, First Session: A Fundamental Discussion
on the Need to Establish a Constitution for Israel, in CONSTITUTION, BASIC LAw, BILL OF
RIGHTS 15, 15 (2002) ("If I had to answer with one word the question whether Israel needs a
constitution, I would have answered that it 'needs'. If I had to answer it with two words, I
would have answered 'doesn't need.'" (author's translation».
385 See Jeremy Waldron, Precommitment and Disagreement, in CONSTITUTIONALISM:
PHILOSOPHICAL FOUNDATIONS 271, 271-73 (Larry Alexander ed., 1998) (noting that even
nations who turn to formal constitution-making cannot, in the end, avoid this state of affairs).
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nature of Israel's political and legal phenomenon.386 In fact,
personal preferences and jUdgments are totally "immaterial."387
Whether there is a formal constitution in Israel is one thing and
what people believe in this regard is another. If two people hold
contradictory views about the existence of a constitution in Israel,
then at least one of them is wrong. But how will we know who is
wrong and who is right? To answer these questions we can turn to
the majority rule. The proponents of the Constitutional Revolution
and the constitution may argue that their position is accepted by
most of Israel's constitutional scholars while those who reject the
existence of a constitution only comprise a small minority. The
problem of such an argument is obvious even beyond its
questionable empirical supposition (since no survey was ever made
among scholars in this regard). First, why should Israel follow the
majority of constitutional scholars and not the majority of legal
scholars or the majority of jurists or maybe even the majority of
Israel's citizenry? Second, why should Israel favor the majority
view over the minority view in the first place? It is well known that
a majority view does not hold a special moral, political, or legal
weight to resolve such disagreements.388 In fact, two options are
possible, both of which do not get us any closer to the resolution of
the disagreement. Either the majority is right and the minority is
wrong and Israel has a constitution or the majority is wrong and the
minority is right and Israel does not have a constitution. Again,
how can Israel resolve the disagreement?
According to some scholars and judges, at this stage of
deliberations one should turn to constitutional theory to provide one
with the answer as to who is right or wrong. In fact, according to
the proponents of the constitution, this is precisely the role of the
theory that the Knesset has a continuing constituent authority.389
In the Migdal decision, Judge Barak offered three models to ground
the proposition that the Knesset possesses a continuing constituent
authority and to support the conclusion that Israel has a
386 Joseph Raz, The Relevance of Coherence, 72 B.U. L. REV. 273, 283 (1992) [hereinafter
Raz, Relevance of Coherence).
387 See id.
388 See, e.g., Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting),
overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
389 See CA 6821193 United Mizrahi Bank v. Migdal Communal Vill. [1995) IsrSC 49(4) 221,
355--91 (appealing to theoretical models); see also Rubinstein & Medina, The Constitution of
the State of Israel, supra note 2, at 315--29 (assessing the claim that Israel has a constitution
by numerous theoretical tests).
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constitution. The first model based the continuity of the Knesset's
constituent authority on what Hans Kelsen called "the basic
norm."390 On this model, the basic norm of the State of Israel is the
People's Council-the Provisional Parliament created with the
establishment of the State. The People's Council commanded in the
Israeli Declaration of Independence that a constitution be drawn up
by an elected Constituent Assembly.391 With the election of the
Constituent Assembly and the abdication of the People's Council's
legislative powers, the Constituent Assembly enjoyed both
constituent and legislative authority. With the enactment of the
Transition Law 1949, redesignating the Constituent Assembly as
the First Knesset, the adoption of the Harari Resolution, and the
enactment of the Second Knesset (Transition) Law 1951, all
succeeding Knessets have continued to possess constituent
authority. The second model follows the positivist theory of H.L.A.
Hart.392 According to this model, the "rule of recognition" of the
State of Israel gives the Knesset both constituent and legislative
authority.393 This conclusion, Judge Barak wrote, does not reflect a
subjective judicial view but expresses an objective fact about the
State of Israel.394 The third model was based on the writings of
Ronald Dworkin. This model sought to construct the best
interpretation of the whole legal system at a given time.395
According to this model, the parliament possesses the authority to
promulgate a constitution if this conclusion follows from the best
interpretation of the legal system.396 The best interpretation of
Israeli constitutional law, according to Judge Barak, is not that the
Knesset wasted its time in enacting Basic Laws, or that the
entrenchment provisions in the Basic Laws are not valid, or that
decisions on the constitutional status of Basic Laws simply "missed
the target."397 Instead, the best interpretation is that from the
390 See HANS KELSEN, INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY xxxi-xxxii
(Bonnie Litschewski Paulson & Stanley L. Paulson trans., 1992).
391 See The Declaration of the Establishment of the State of Israel, 5708-1958, 1 LSI 3, 4
(1948) (lsr.).
392 See H.L.A. HART, THE CONCEPT OF LAw 94-95 (2d ed. 1994).
393 See id. at 94; Migdal, [1995] IsrSC 49(4) at 357-58.
394 Migdal, [1995] IsrSC 49(4) at 357 (''The fundamental perceptions of the Israeli society
today-which constitute an expression of our whole national experience--is that the Knesset
is perceived in the national recognition as a body competent to promulgate a constitution."
(author's translation».
395 See generally DWORKIN, LAw's EMPIRE, supra note 113.
396 Migdal, [1995] IsrSC 49(4) at 358.
397 Id.
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inception of the State of Israel, the Knesset possesses constituent
authority.
Does Judge Barak succeed in providing a theory that transcends
the circumstances of judicial review in Israel? His appeal to Hans
Kelsen, H.L.A. Hart, and Ronald Dworkin seems promising.
Indeed, what better argument could one find in favor of the
constituent powers of the Knesset than in the theories of these three
distinguished legal philosophers? Nonetheless, a second look is
more troubling. First, although the theories of Kelsen, Hart, and
Dworkin are the most widely discussed in the academic community,
they are not free from doubts. Supporters of each theory still debate
one another, as well as the supporters of rival theories.398 Judge
Barak himself was not content to rely on only one of these theories,
and he tacitly acknowledged how controversial each of them was.
Second, even if we presuppose the truthfulness of these theories,
these theories are incapable of conclusively resolving the dispute
over the constituent authority of the Knesset in light of the
circumstances of judicial review in Israel. To appreciate why this is
so, one must consider each theory in the context of the tradition it
addresses as well as in the context of Israel's constitutional
circumstances and the tradition of deciding not to decide.
The theories of Kelsen and Hart share a common denominator,
which makes them arguably suitable to resolve the disputes at
hand. Both Kelsen and Hart present a positivist approach to law.
According to this tradition, "the existence of law can be ...
[identified] by reference to social facts" alone and without resorting
to any evaluative argument of its content.399 Since "the existence of
law can be objectively ascertained by reference to social facts," both
"agree, that legal statements are either true or false and that their
truth conditions are their relations to complex social practices."4oo
Accordingly, arguing that the Knesset possesses constituent powers
or that Israel has a constitution are legal propositions about the
Israeli legal system that could be true or false. The answer may be
discovered by examining the proposition in relation to complex
social practices. Furthermore, the positivist approach to law offers
us a way to overcome moral disagreements that exist in a given
398 See generally BRIAN BIX, JURISPRUDENCE THEORY AND CONTEXT 33-64, 87-99 (3d ed.
2004).
399 Joseph Raz, The Purity of the Pure Theory, in ESSAYS ON KELSEN 79, 86 (Richard Tur &
William Twining eds., 1986).
400 Id.
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society by separating legal judgments from substantive moral and
political considerations. Thus, the existence of moral and political
disagreements about the propriety of a formal constitution or the
moral or political legitimacy of the process of gradually adopting
Basic Laws by the same organ they are meant to limit are
irrelevant.401 The answer to the question whether Israel has a
constitution will be determined, according to the positivist
approach, by social facts and not by moral considerations on which
we might disagree. However, a deeper look into the models of
Kelsen and Hart reveals a weakness and failure to resolve the
disagreements about the Knesset as a constituent authority and the
existence of a constitution.
Kelsen advances a cognitivist approach to law.402 For him, a legal
statement expresses a practical attitude only in that it expresses a
belief in the existence of a valid norm.403 Hence, the normative
aspect of legal statements has to be explained by the fact that such
statements state or presuppose the existence of a value or a normthat
is, a normatively binding standard and not merely a social
practice. Accordingly, "the validity of a legal norm is established by
appeal to the appropriate higher-level norm, whose own validity is
established, in turn, by appeal to its higher-level norm, and so on,
until the highest level of norms in the legal system is reached."404
This is the ''basic norm," and it is an "ultimate basis of validity."405
The validity of this norm cannot be ensured by appeal to anything
higher but must simply be assumed.406 It is crucial to note that in
making this transcendental argument about the basic norm, Kelsen
is not asking whether one cognizes legal materials but rather
whether one knows certain legal propositions to be true. Rather, he
assumes that one has such knowledge, and he asks how one can
have it.
Judge Barak's first model relies on the continuity of constituent
authority.407 However, as examined above, this constitutional
continuality was often attacked. The First Knesset was authorized
to promulgate a constitution, and when it failed to do so, it forfeited
401 See supra text accompanying notes 93--98.
402 KELSEN, supra note 390, at xxxi.
403 Id. at xxxi-xxxii.
404 Id. at xxxii.
405 Id. at 55.
406 Id. at xxxiii.
407 CA 6821193 United Mizrahi Bank v. Migdal Communal Vill. [1995] IsrSC 49(4) 221,
356.
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its constituent authority. If one takes this disagreement into
account, the appeal to Kelsen's positivist theory of law cannot assist
in resolving the dispute. The controversy is not over whether the
Israeli legal system has a basic norm but over whether the chain of
constituent authorities was broken. A belief in the constitutional
validity of Basic Laws, as opposed to a belief in their legal validity,
presupposes the existence of a higher constituent norm according to
which they were created. This, however, is precisely what is
missing. Israel disagrees about its legal beliefs regarding the
constitutional nature of Basic Law. Hence, Israel cannot
presuppose the existence of a constituent authority or that this
authority was used to enact a constitution.
Hart's ultimate criterion of validity is the "rule of recognition" by
which the validity of other rules of the system is assessed.408 Like
Kelsen's basic norm, there is no rule providing criteria for the
assessment of the rule of recognition's own legal validity. The rule
of recognition is a social rule among officials, a combination of a
convergent practice accompanied by a critical attitude towards that
practice. The officials accept the rule of recognition as a guiding
rule for themselves and for others and as a basis for assessment of
their conduct as well as the conduct of others.409 Hart, it should be
noted, does not agree with Kelsen that the ultimate criteria for legal
validity is presupposed, assumed, or postulated, but rather that it
"could be established by reference to actual practice: to the way in
which courts identify what is to count as law, and to the general
acceptance of or acquiescence in these identifications."410 Judge
Barak's second model relies on Hart's rule of recognition, and it
could succeed if he could show that public officials took or accepted
the Knesset's constituent authority as an ultimate criterion of
validity as a standard for assessing their behavior as well as the
behavior of others. But, ever since the Harari Resolution, scholars,
judges, lawyers, and officials questioned the ability of the Knesset to
promulgate a constitution. In fact, because of these disagreements,
the Supreme Court always avoided deciding the issue. Even in the
Migdal decision, this question was not resolved (since it was not
supported by a majority of the bench and because most of the
Migdal decision should be considered to be an obiter). If the court
never resolved this question, Hart's theory cannot support the
408 HART, supra note 392, at 105.
409 See id. at 104-10 (examining how a rule of recognition operates in a legal system).
410 Id. at 108.
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constituent powers of the Knesset as part of the rule of recognition.
Dworkin's theory also possesses characteristics that may make it
arguably suitable to resolve the disputes at hand. Under Dworkin's
approach, "every time a judge is confronted with a legal problem, he
or she should construct a theory of what the law is."411 This theory
would "combine backward- and forward-looking elements" that
"interpret contemporary legal practice ... as an unfolding political
narrative."412 The questions whether the Knesset possesses
constituent authority and whether Israel has a constitution will be
determined by an appeal to legal theory about Israeli constitutional
law. Furthermore, Dworkin's writings can be seen as a response to
disagreements that emerge between law's subjects about the most
basic rules and principles according to which the legal system
operates and not just over peripheral matters.413 According to
Dworkin, legal statements and propositions are true if they are
derived from principles of justice and fairness and provide the best
constructive interpretation of the given community's legal
practices.414 Thus, the judge is asked to adopt, even in hard cases,
the most coherent system of principles that is the best
interpretation of the political structure and legal doctrine of the
community. Therefore, Dworkin's theory offers us a way to
reconcile contradictory data about the nature of Israel's
constitution-making. It does not present a problem that it is
possible to identify, on the one hand, activity that could be
interpreted as an attempt to adopt a constitution and, on the other
hand, activity that could be interpreted as deliberate abstention
from doing just that. The important question is which one of these
interpretations is the best interpretation and the best fit with our
current practices. In this course, Dworkin follows Rawls's writing
on reflective equilibrium. According to this method, certain legal
practices and judgments could be ignored and discarded because
they do not fit with the best coherent system of principle.415
Why should we believe that the best interpretation of Israel's
constitutional history should be based on the Knesset's constituent
411 BIX, supra note 398, at 89; accord DWORKIN, LAw'S EMPIRE, supra note 113, at 225-27,
245-58.
412 DWORKIN, LAw's EMPIRE, supra note 113, at 225.
413 WALDRON, supra note 38, at 188--91.
414 DWORKIN, LAw'S EMPIRE, supra note 113, at 225, 255; see also BIX, supra note 398, at
90.
415 See RAWLS, THEORY OF JUSTICE, supra note 98, at 18--19; RAWLS, POLITICAL
LIBERALISM, supra note 103, at 28; Raz, Relevance of Coherence, supra note 386, at 285.
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authority theory? This Article argues that the best interpretation of
Israel's constitutional history is that Israel adopted non-decision
constitution-making because of its intractable disagreements. Why
should Israel favor the interpretation, based on the Knesset
constituent powers, that Israel has a constitution over the
interpretation of deciding not to decide? In my opinion, the
interpretation regarding the Knesset constituent powers is
preferable to any other interpretation only if one presupposes that a
formal constitution is morally and politically required in order to
achieve fair and decent social life.416 Only by adopting such a
normative proposition would one be justified in ignoring and
discarding all the constitutional data that shows that the Knesset
deliberately decided not to decide on a formal constitution and left
open fundamental constitutional questions. However, this
proposition, that a formal constitution is morally and politically
required, is precisely the subject of intense disagreement among
scholars and politicians.417 In fact, I would even argue that Israel's
constitutional history shows for the most part that the existence of a
constitution is neither required nor sufficient for the establishment
of fair, decent, just, or proper social life.
In the end, Judge Barak's attempt to resolve the disagreement
about the Knesset constituent powers and the existence of a
constitution is reduced to a list of controversial theories
supplemented by three controversial and inconclusive models. In
fact, any attempt to establish the existence of a constitution in
Israel by an appeal to theory is doomed to failure. This is because
Israel's constitution-making and constitutional arrangements
resulted from the activities of a multitude of people and entities and
the interactions among them over the course of more than five
decades. It is not realistic to try and provide a coherent theory that
reconciles the constitution-making of the first Knesset and the
twelfth Knesset or the constitutional activity of Ben-Gurion, Israel's
first prime minister, and that of Dan Meridor, Israel's former
Minister of Justice. That would idealize and falsify Israel's
constitution-making history by ignoring the concrete politics of
416 See BARRY, supra note 105, at 95; RONALD DWORKIN, A BILL OF RIGHTS FOR BRITAIN 14
(1990).
417 For a critique of the claim that a formal constitution enforced by judicial review is
necessary or required in order to promote justice, fairness, and democracy or in order to
protect rights, see WALDRON, supra note 38, at 219-21, 287-89. But see Richard A. Posner,
Review of Jeremy Waldron, Law and Disagreement, 100 COLUM. L. REV. 582, 588-92 (2000)
(providing a critique of Waldron's theory).
HeinOnline -- 70 Alb. L. Rev. 488 2006-2007
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which it is made up of. Israel's political reality left the constitutionmaking
process untidy, split, and even problematic. The theory
regarding the Knesset constituent authority and the existe.nce of a
constitution euphemized it, and this could be achieved only by
ignoring and reducing the ramifications of the disagreements and
compromises, which comprised Israe1's constitution-making. The
existence of a formal constitution, however, is not a complicated
issue that needs to be resolved by theory. The mere fact that one
tries to establish its existence by theory calls its existence into
question. The fact that Israel has no constitution is not derived
from the weaknesses of the potential theory Israel adopted but
rather from Israel's complicated, fractional, and incomplete
constitutional reality-a reality of deciding not to decide over most
of our fundamental constitutional disagreements. The decision not
to decide IS simply the default rule of our constitution-making
history.
IV. CONCLUSION
There has never been a coherent, uniform, and clear Israeli
ideology. Instead, there has always been a plethora of ideologies
with a common denominator. An examination of the founders's
failure to adopt a constitution shows that the ideological
disagreements, so characteristic of both the Zionist Movement and
the Jewish People as a whole, prevented its enactment. Every
faction sought to advance its own good over that of the community
as a whole. These disagreements, which could be categorized as
substantive disagreements, were supplemented by structural and
institutional disagreements. Most notable among these
disagreements was the need to enact a formal constitution and the
propriety of judicial review over primary legislation.
Israel is not unique in having to overcome disagreements about
substantive and structural constitutional matters in its founding
moments. Israel is unique because the tactic that was chosen to
surmount these disagreements in its moments of foundation was
the decision not to decide. While other western democracies facing
disagreements in their foundation achieved social cooperation by
adopting a constitution, Israel achieved it by not deciding on the
adoption of a constitution. By embracing the tactic of non-decision
constitution-making, two main goals were fulfilled: fair and stable
cooperation based on democratic foundations and the protection of
human rights by the Supreme Court.
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2007] Israel's Non-decision Constitution-making Tactic 489
Israel's constitution-making preceding the Constitutional
Revolution was also shaped by disagreements and the desire to
leave fundamental constitutional matters undecided. The
enactments of the new Basic Laws did not change Israel's
constitutional circumstances; did not signify a deviation from the
constitutional tactic of non-decision; and, in fact, were direct
implementations of this tactic. This tactic, however, was abandoned
by the Supreme Court in the Migdal decision, according to which
Israel has a formal constitution, and by public and political entities
that strive for an American-style constitutional regime. These
actions are the manifestation of a new constitution-making tactic-a
decision to decide. This Article argues that this new tactic thwarts
social cooperation among the various political factions and hampers
the protection of human rights. In the end, the attempt to push the
Israeli society towards a constitutional regime, so far, failed because
disagreements prevent Israel from acknowledging the existence of a
formal constitution. The decision not to decide is still the best
interpretation of Israel's constitution-making history. In fact, it is
the only game in town.
Thus, it is safe to conclude that Israel does not need a
constitution. The tactic of deciding not to decide fulfilled the same
goals that drive nations to adopt a constitution. This Article does
not argue that the Israeli regime is perfect or flawless. Rather, it
argues that Israel must not fall under the spell of believing that a
formal constitution would be the solution to our pressing everyday
problems. A constitution is not a solution to problems and
difficulties in the life of a nation; it is a framework for dealing with
them. A constitutional framework, however, already exists in
Israel. Israel's flaws and faults should be remedied by concrete and
pragmatic governmental reforms and not by deciding and resolving
fundamental ideological disputes.
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