Israel is witnessing an unprecedented national debate over the country’s democracy. The controversial reform to judicial review, proposed by the Minister of Justice earlier this year, would fundamentally transform the checks and balances of Israel’s government. Thus far, the Supreme Court has maintained the authority to annul Knesset laws that contradict human rights expressed in Israeli basic laws, as well as laws that lacked proper legislative procedure during ratification. However, reforms have already begun, as last night the Knesset voted to overturn the reasonableness clause that the Supreme Court uses for judicial review.
This precedent of judicial review is not explicitly regulated by law, but is rather an unwritten constitutional norm. The current administration wants to change this precedent. The reform seeks to make it more difficult for courts to strike down laws by requiring a special majority of Supreme Court judges in order to annul laws, as well as allowing the Knesset to veto a law’s annulment by re-legislating it.
This proposed reform has instigated protests throughout the nation, with the opposition claiming that the reform would give too much unchecked, absolute power to the executive and legislative branches of government, forming the beginning states of dictatorship. Both sides of the debate believe that their party is the one properly protecting Israel’s democracy, and the other party is the one threatening the democracy. This debate over the “correct” form of democracy lacks any textual guidance— any foundation based on a supreme, textual definition— because Israel has not ratified a constitution that defines their democratic system. As such, these debates will only continue to bring into question more and more constitutional norms and practices until a single, written constitution is ratified. Israel needs a written constitution, and it needs one now.
Why Doesn’t Israel Have a Written Constitution, and How Does it Function Without One?
Israel does not have a document that serves as its single “Constitution.” Rather, Israel has “basic laws” that are considered supreme over other “regular” laws.
The founders of the State of Israel did not intend for the basic law system to replace a formal constitution indefinitely. The Declaration of the Establishment of the State of Israel states that a draft constitution should be prepared by a constitutional committee and adopted by an elected constituent assembly no later than October of 1948.
However, after convening on February 14, 1949, the Constituent Assembly did not draft a constitution, as they feared instigating conflict between religious and state authorities. Instead, on February 16, it converted itself into a legislative body— the first Knesset. In June of 1950, the Knesset passed a compromise resolution known as the “Harari Decision.” This resolution approved a written constitution in principle, but delayed the writing and ratification of one until a future date. According to the resolution, Israel’s constitution would be evolved “chapter by chapter in such a way that each chapter will by itself constitute a fundamental law.”
Two specific basic laws have historically been used to protect human rights in the Israeli legal system, as well as form the basis of Israel’s “Constitutional Revolution.” Both the 1992 Human Dignity and Liberty basic law and the 1994 Freedom of Vocation basic law declare that “basic human rights in Israel are based on the recognition of the value of the human being, the sanctity of his life, and his being a free person.”
Using the language of these basic laws, Aharon Barak, the president of the Israeli Supreme Court from 1995-2006, spearheaded a constitutional revolution. Barak’s approach, which the Supreme Court adopted, accounted for the lack of any exhaustive declaration of human rights in the basic laws. Barak contended that the basic values of equality, civil liberties, civil rights, and freedom of speech, among others, were implied in the 1992 and 1994 basic laws. One cannot have human dignity without being regarded as equal to his peers and allowed to express his opinion, Barak argued. In this way, he legally recognized the right to equality and freedom of speech by declaring them as prerequisites to fulfilling the aims of the official basic laws. If any ratified law threatens these human rights implied in the basic law system, the Supreme Court has the power to nullify that law. Under the proposed reform, that judicial check on absolute power— the foundation of democracy— would be gone.
If The Basic Law System Has Succeeded Thus Far, Why Does Israel Need a Written Constitution Now?
The unwritten constitutional norm of judicial review is being seriously challenged. Historically, Israel survived as a democracy because the government and its citizens respected constitutional norms. Now that these unwritten rules of engagement have been challenged, they can only be protected through written ratification. A constitution would ratify into compulsory law the country’s democratic principles, instead of relying purely on tradition.
The ratification of these laws will serve to improve, rather than end political debate, as a written constitution guides and contains inevitable disagreement. According to David Strauss, law professor at the University of Chicago Law School, a written constitution provides common ground to settle disputes and resolve conflict for the sake of political order. It is a way of managing the inevitable disagreement of democratic political life by providing a starting point for discussions, and prevents disagreement that might be catastrophic to political order.
However, a ratified text does not mediate conflict by implying that there is one correct interpretation of the written law. Rather, it cabins debate by stating that there is a limited scope of meaning that the text could reasonably convey. For example, according to Strauss, legitimate constitutional interpretation cannot be completely inconsistent with the text, and should aim to mitigate political conflict by providing a universal source on which to base one’s argument. The constitution provides a “starting line” for a debate, so that citizens can create their own “finish line.” A constitution provides an outer bound of textual meaning, rather than determinate answers, and these boundaries serve to channel and focus political debate.
According to Ruth Gavison, law professor at the Hebrew University of Jerusalem, a written constitution further serves to establish the social, political, and economic “rules of the game.” Such “rules of the game,” i.e. political debate, are shared through a written constitution, giving society some semblance of core identity. “This shared framework can then facilitate a robust democratic debate between different conceptions of the good life, and between different interest groups,” Gavison writes. A written constitution would change Israel’s legal system from the inside out, providing common ground for even the most polar opposite of political opinions.
Furthermore, a written constitution also shapes the economic order. According to Max Weber, German sociologist from the early twentieth century, law is crucial for the development of a free market. The result of formal, rationalist law is a highly calculable society with known rights and predictable state action. This is favorable for capitalist enterprises, which depend on calculability and predictability to make long-term investments. Capitalists depend on the state not being arbitrary, and depend on law to protect them by enforcing contracts and property rights. While a basic law system provides some sense of predictability, like it has for the past 75 years, there still remains uncertainty as to future enforcement of laws. A written constitution provides the maximum amount of predictability possible in a democratic society.
A written constitution also informs individual planning, as laws formulate the rules for individuals to organize themselves. In a society unavoidably plagued by uncertainty, legal rules of conduct provide the only certain, reliable information to individuals about their environment. Written law provides security for individuals to pursue their own plans and goals. According to Gavison, the main purpose and functions of constitutions are “to both authorize, and to create limits on, the powers of political authorities,” and “to enhance the legitimacy and the stability of the political order.”
The stability and predictability of having constitutional norms ratified into law would allow for more fruitful, impactful political debate. These debates can look towards the future of the country, as there will be no direct threat to the country’s fundamental system of governance. When there is no direct, imminent threat to the country’s government, political pundits on all sides are relieved from the role of crisis control, and are free to argue instead about more expansive debates.
What Should Go Into Israel’s Written Constitution?
While every constitution is tailored to its unique country, there are some key components that constitutions usually contain.
According to Gavison, constitutions usually include three broad components: 1) Basic governmental structures and the relations between the main powers and functions of government; 2) Basic values and commitments; 3) Human rights. Constitutions also commonly describe the language, flags, and other symbols of the state, as well as “specify the mechanisms for its own amendment and enforcement, and proposed constitutions often contain provisions about the mechanisms of their adoption.”
Additionally, twentieth century political philosopher Freidrich Heyek proposed three distinct conditions by which all written law should comply: 1) General and abstract enough to apply in all cases without exceptions; 2) Equal in nature and applicable to all citizens without arbitrary privilege or discrimination; 3) Certain and absolute, so that those subjected to the law can predict how rules will be interpreted and applied to them. Such qualifications should be kept in mind when drafting the language of the constitution.
It is important to note that any constitutional committee for Israel would not be starting from scratch. Most of the leg work is already completed. The “Harari Decision” didn’t intend to legislate basic laws into the void for centuries on end. The purpose of the compromise was for each basic law to one day be compiled, edited, and unified into a singular constitution. The basic governmental structures detailed in Israel’s written constitution, such as the roles and offices of the Knesset, Prime Minister, President, Supreme Court, and federal departments would most likely come straight from the basic laws that established these branches of government at Israel’s inception. Israel’s constitution would not be born out of thin air.
In regards to the potential human rights portion of the constitution, Gavison claims that while a detailed Bill of Rights does not guarantee an adequate protection of such rights in everyday practice, the increased visibility of human rights in a constitution expresses the country’s commitment to having such values be part of the shared civil culture.
While a written constitution itself is not necessary in order to have a democracy, it may be necessary in order to guide political debate into its proper spheres, and prevent democratic life from devolving into a threat against itself by ignoring its constitutional norms. In the words of Gavison, “Political experience suggests that democracy and constitutionalism are a good pair, with a tendency of democracy and constitutions to reinforce each other.”
However, while the benefits of a written constitution are numerous, it is not a magic pill to prevent the ills of political society. According to Gavison, a constitution’s impact on social, political, and cultural reality is “indirect and limited.” It should be remembered, she argues, that “the reality of societies is more important than the relationships and values declared in a constitution. Nonetheless, since constitutions do help in making social realities, it is important to attend to the special contribution they may make to good government.”
Without fail, writing a constitution will be extraordinarily difficult. It is not equivalent to passing a slightly longer basic law. It will necessitate a constitutional convention, perhaps more than one, and will likely spark the very same conflict between religious and state authorities that the Constituent Assembly feared in 1949. Even the United States had a failed constitutional system, the Articles of Confederation, before convening a second constitutional convention that drafted America’s current document. But looking at the state of the country now, with many Israelis claiming that they have never seen the country so hyper-polarized, and a growing divide not just between left and right, but between religious and secular— could the conflict that would inevitably result from drafting a constitution possibly be worse than the hyper-partisanship of Israel today? Perhaps the rapidly-growing divisions in Israel today are exactly what the Constituent Assembly sought to avoid in 1949. Surely Israel can take the risk of drafting a constitution, entertaining the inevitable but temporary conflict, for the sake of having political debate forever channeled into productive means, and constitutional norms forever protected.
The basic law system was a good compromise, but it was always intended to be temporary. Today, citizens are taking to the streets en masse for fear that Israel’s very democratic nature, something that would be permanently protected under a constitution, is facing threat. A written constitution that officially establishes Israel’s democratic nature is needed, not to end political debate, but to give Israel’s democracy and democratic norms a status of permanency and unwavering perpetuity amidst the inevitable political disagreement in the generations to come.
Gavison, Ruth. “What Belongs in a Constitution?” Constitutions, Markets and Law, 2002, pp. 1–26, https://doi.org/10.4337/9781035304653.00008.
Strauss, David A. The Living Constitution. Oxford University Press, 2010.
Von, Hayek Friedrich A. Law, Legislation and Liberty. Univ. of Chicago Pr., 1986.