The Imperfection of Israel’s Constitution

Assessing Constitutional Incrementalalism in Israel

As new chapters in Israel's evolving Constitution are being drawn, its troubled history of constitution making is nowadays revisited – yet again. Indeed, Israel is in a peculiar position, where its legacies of constitution making are hotly debated concurrently with the progress, with much vigor, of the unique-to-Israeli business of constitution making. The proposed paper takes an expansive vista on the historiography of Israeli constitutionalism, attending in particular to the latest literature's renditions of that historiography. It argues that shifting perspectives over the years on the history of Israeli constitution-making correlated to shifting evaluations of the emerging Israeli Constitutions during those same decades.

One of the main tenets of a constitution is structural provisions, which allocate power among the branches of government - describe the design and responsibilities of each branch - and create a system of checks and balances. In Israel, that function is to be fulfilled by Basic-Law: The Legislation. Debated in the Parliament since the 1970s, this basic-law has been envisioned to settle Israel‘s fundamental separation of powers controversies: judicial review, the constitutional limits on the legislative and constitutive powers, and the relationship between the Parliament and the other branches of government. In the wake of an unprecedented constitutional and political crisis, Israel sees a revived effort to enact this Basic-Law. This paper tells the story of Israel‘s constitution‘s most crucial missing part, describes the key institutional arrangements under consideration, and provides analysis on how, if enacted, Basic-Law: The Legislation law will reshape the constitution of Israel.

Constitutional dialogue is a dialectic interaction between supreme courts and legislatures regarding the constitutionality of legislation, in which each institution preserves its constitutional authority, and yet performs it while considering the other institution‘s stance and its ability to respond. It is based upon mutual contribution to the constitutional design and interpretation of legislation. In Israel, one can find many practices that indicate constitutional dialogue. Moreover, this interaction is of special importance in a deeply divided and legitimacy-lacking governmental and legal system as the Israeli system. Consequently, and in light of future entrenchment of Basic Law: The Legislation, the discussion will offer analytical analysis of the question should we regulate constitutional dialogue between courts and legislatures, and if so, what is the right institutional design that should be implemented?