The History of Israeli Pre-State Constitutionalism (original) (raw)
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Beginning with the collapse of the Soviet Union nearly twenty years ago, Western society has witnessed the emergence of a significant number of new countries striving to join the family of Western, democratic-style, states. Indeed, we are hopeful that this trend of democratization will continue and more societies will follow in the footsteps of these new states, including Arab-Moslem countries. The purpose of this article is to reemphasize some of the basic guidelines for these emerging new democratic states. There are some fundamental preconditions entailed in the process of becoming a democratic state. The mere existence of a written document entitled “Constitution” is not enough; a society is entitled to be considered a democratic state by the international community only if its legal system contains two attributes - the recognition of basic human rights and the idea that basic human rights are protected by some type of judicial review performed by an independent court system. Furthermore, it would be better if these basic human rights were enumerated in a written constitution. Nonetheless, based on the Social Contract concept, the recognition of these basic rights does not necessarily require a written document; rather, they may be “carved out” from overarching values hovering above the legal system of every democratic society. Accordingly, these basic rights cannot be eliminated by the legislature or even by a constitutional assembly. Moreover, there are different models of a written bill of rights: some contain only the basic human rights and are considered a “thin constitution” while others try to comprise a very broad amount of constitutional rights, not only of the “first generation” but also of the “second” and “third” generations as well. In the latter case where the bill of rights contains many socio-economic “positive” human rights , there is a risk that if the economic system is not ready for such rights, this bill of rights might instead become a lifeless and meaningless letter of law. The development of Israeli Constitutional Law may serve as a case study. United Nations Resolution 181 regarding the establishment of the Independent Jewish State required that the new state adopt a constitution that was to include basic human rights. As it appears, the new state had significant difficulties in following that requirement. The state of Israel was founded as a nation composed primarily of Holocaust survivors and refugees from around the world, without a practical democratic culture and tradition and without a written constitution, but with a long history of ongoing struggle for freedom, liberty, and justice. Immediately after its establishment, the State of Israel developed a reasonable system of recognition of basic human rights, however, without a written and comprehensive document. Furthermore, the concept of judicial review within its domestic legal system was fully recognized only 48 years later. This article discusses some of the constitutional developments in Israel. It offers emerging democracies some of the Israeli experience to consider and compare to their own situation. It discusses some of the omissions that were effected by the Israeli establishment, specifically by: the Constitutional Assembly, the Knesset (The Israeli parliament) and the judicial branch. The first omission was the circumvention of the above-mentioned UN resolution. The second was the failure of the Israelis to regard the Israeli Declaration of Independence as a legal document, and the third was the lack of acceptance and full implementation of the concept of judicial review. As will be discussed, none of these omissions was crucial nor did they stop the Israeli legal community from developing a constitutional system that recognizes basic human rights. The latest significant constitutional development is what has been known as the Constitutional Revolution. Indeed, it is too early to conclude whether this event should be regarded as a mistake or might be the appropriate cure to the above-mentioned omissions. I will offer my own interpretation for the development of a democratic society. I will attempt to show that there is a way how a basic bill of rights and the concept of judicial review can be developed gradually in a “common law fashion,” even without a written constitution. I will also emphasize the dangers and risks that may result from an overly aggressive judicial review system. Hence, the article may provide lessons for other nascent democratic societies and the international community as well, that they may learn from both the achievements and the mistakes of Israel.
Constitutionalism, Law and Religion in Israel a State’s Multiple Identities
Journal of Civil & Legal Sciences, 2016
In the first chapter the historical relationship of Judaism and Zionism was discussed, while the second discusses the constitutional conflict between Jewish and the democratic character of the State of Israel. The third chapter analyzes the millet system of religious laws (inherited from the Ottoman Empire) for both Jews, as the religious majority, and for different minorities. The main question is, whether or not this pluralist legal system can be considered as liberal, providing equal rights, and what other alternatives are feasible in Israel today. The more general constitutional question behind the legal one is, whether or not the Jewish and the democratic character of the State of Israel based on Zionism can be consolidated.
The Persistence of the Exception: Some Remarks on the Story of Israeli Constitutionalism
Thinking Palestine, 2008
The chapter moves in two directions. The first move aims to shed new light on the nature of Israeli constitutionalism by introducing into the debate the model of the ‘state of exception’, and the ongoing tension between constituent power on the one hand and constituted power on the other, thereby hoping to propose a new way of viewing the drama of Israeli constitutionalism. The second move works backward. Thus, rather than reading the debates over Israeli constitutionalism in light of theory, I aim – by contemplating the Israeli case – to revisit and shed some light on constitutional theory itself.
Introduction to the book 'The Dynamics of Exclusionary Constitutionalism Israel as a Jewish and Democratic State' What does Israel's definition as a 'Jewish and democratic' state mean? How does it affect constitutional law? How does it play out in the daily life of the people living in Israel? This book provides a unique and detailed examination of the consequences of the 'Jewish and democratic' definition. It explores how the definition affects the internal ordering of the state, the operation of the law, and the ways it is used to justify, protect and regenerate certain features of Israeli constitutional law. It also considers the relationship between law and settler-colonialism, and how this relationship manifests itself in the constitutional order. The Dynamics of Exclusionary Constitutionalism offers a novel perspective on the Jewish and democratic definition rooted in constitutional theory and informed by a socio-legal approach. Relying on a wide range of court cases and statutes as well as secondary sources, the book shows how the definition is deeply embedded in the constitutional structure, and operates, as a matter of law, in a manner that concentrates political power in the hands of the Jewish citizens and excludes the Palestinian Arab citizens in Israel from the political process. Mazen Masri's study is a timely intervention in an increasingly important question, and is essential reading for those who want to understand Israel's character, its relationship with the constitutional order, and its impact on society.
Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care
Berkeley Journal of International Law, 2011
Fifteen years after the Israeli Supreme Court decided in Mizrahi that Israel's "Basic Laws" amount to Israel's formal Constitution and it enjoys the power of judicial review, the debate about Israel's constitutional development is far from over. This essay makes the following four propositions: First, the Israeli political branches have been debating the wrong question. Rather than lingering on the threshold question of whether or not Israel has a formal Constitution at all, they should be discussing what kind of Constitution is developing in Israel. Second, the consensus among scholars who recognize Israel’s formal Constitution is that its existence is best explained by the Constituent Authority theory. But they have adopted a myopic understanding of Israel’s constitutional development. Like so many other aspects of Israel’s national evolution, a single theory cannot adequately explain the existence of its formal constitution. Rather, this national rite of pas...