Violence... The story so far

Introduction -- Daniel J. Elazar

Although Israel does not have a single complete constitutional document, in its forty-five years of statehood the Jewish state has developed an operative constitution of its own, embodied in a set of written texts that reflect the political system on which the state is based, its social content, and an expanding constitutional tradition. Those texts were properly promulgated by the representatives of the people and recognized as constitutional by Israel's Supreme Court. The texts are collected and presented here for what they are -- Israel's operative constitution that determines the basic operations of the Israeli polity, the basic rules of governance enforced by those empowered to execute and enforce the law and, as such, interpreted by the courts as a constitution.

Political Compact and Covenant

The constitutional character of a civil society is not based on the existence of a written constitution alone. Both as a new society in the modern sense and as the heir to Jewish political principles, Israel was founded on the basis of a political compact that is both a social contract through which its citizens have established the terms of civil peace upon which their polity rests and a covenant that morally connects Israelis to a set of shared political principles and aspirations.

Israel's declaration of independence is precisely that kind of political compact. The Declaration of the Establishment of the State of Israel, as it is officially known, represents the consensual basis upon which the state rests. In essence, it is Israel's founding covenant. As indicated by the range of signatures appended to it, it was proclaimed as the expression of a wall-to-wall consensus which extended beyond the Zionist movement to include the Communists and the ultra-Orthodox non-Zionists of Agudat Israel. Precisely drafted to assure the support of all parties to Israel's founding, it combines Jewish national aspirations and universal human rights, religious and secular sensibilities, Zionist needs and the political ends of modern democracy. As such, it was and is a consensus-building document. 1

As a synthesizing document, the Declaration's phrasing reflects the problems of reaching consensus, also building into the polity's foundations the fundamental tensions whose resolution anew by each generation for that generation constitute major tasks of Israeli politics. For example, there was the well-known controversy over whether or not there should be a reference to God in the text. For the secularist, anti-religious left that was still very powerful in 1948, any mention of Divine providence was anathema. For religious Jews and those perhaps not so personally observant but still anchored within the framework of Jewish tradition, the proclamation of the reestablishment of the Jewish state could not appear without such a reference. The compromise worked out was built around the inclusion of Tzur Israel (Rock of Israel), a phrase traditionally used as a euphemism for God, yet vague enough to allow for various interpretations. Since then, the tension between secular and religious has taken various turns but it remains fundamental to almost every aspect of Israeli politics.

"Written" / "Unwritten" Constitutions

The Israeli experience can be instructive with regard to the nature of constitutionalism. By and large, modern political science has emphasized the distinction between written and unwritten constitutions as basic to the understanding of constitutionalism, citing the American constitution as the prime example of the former and the British constitution as the prime example of the latter. That distinction has come under increasing criticism in recent years. Political scientists have pointed out that the American constitutional document cannot be understood on the basis of the plain text alone but only as it has been interpreted by the Supreme Court of the United States and in light of various conventions and usages that have grown up in the course of two hundred years. Similarly, the "unwritten" British constitution is built around a series of fundamental documents (from the Magna Carta to the reform of the House of Lords after World War II) as hallowed in their way as their American counterpart. 2

A more proper distinction to be made is between constitutions-as-fundamental law and constitutions-as-convention or custom. This understanding is based on the fact that in the largest sense, every constitution possesses both written and unwritten elements, the difference being whether the whole is considered to be fundamental law or simply a reflection of the underlying conventions and customs of the civil society it serves. Thus, in the American constitutional system, the conventions surrounding the Electoral College that morally bind presidential electors to follow the decision of the majority of the voters in their respective states are considered by Americans to be a matter of fundamental law, even though they are merely custom.

For the British, on the other hand, convention or custom is considered to be much stronger than "mere" law, since law can be changed by Parliament, while a sitting Parliament would have to be very bold indeed to change a basic convention or custom. This difference is well embodied in the difference between Edmond Burke and John Adams, two eighteenth century contemporaries whose constitutional commentaries have become classics. Burke's constitutionalism was based on the appreciation for ancient usage while Adams' was based upon a belief in fundamental law and the necessity to build a constitution in harmony with it. 3

New societies, like the United States, in general, tend to emphasize fundamental law rather than custom or usage precisely because they are new societies. Since customary usage is not available to them, they have to enact laws and legitimize them by linking them to fundamental law. New states serving old societies, like post-revolutionary France, reject customary usage as inconsistent with their efforts to build something new. At most they are willing to incorporate elements of the customs that cannot be ignored in the hope of neutralizing or transforming them politically.

Israel has been unable to adopt a constitution full blown, not because it does not share the new society understanding of constitution as fundamental law, but because of a conflict over what constitutes fundamental law within Israeli society. Many religious Jews hold that the only real constitution for a Jewish state is the Torah and the Jewish law (halakhah) that flows from it. They not only see no need for a modern secular constitution, but even see in such a document a threat to the supremacy of the Torah and the constitutional tradition associated with it that has developed over thousands of years to serve the Jewish people in their land and in the diaspora. 4

Their opposition is sometimes interpreted as the opposition of traditionalists to modernism or as a struggle between supporters of convention and custom versus supporters of a written constitution as law. This would be a serious misreading of the situation. The most traditionally Orthodox Jews are as convinced that their constitution, the Torah, is law and not custom or convention, as the most ardent supporters of a modern written constitution.

Whatever one's opinion about the appropriateness of the Torah as the constitution of a modern state, it is impossible to ignore the fact that it was considered the constitution of ancient Israel and so treated by the Jewish people in the past. 5 Jewish political culture does not recognize constitutions derived from convention; conventions and customs are important and, indeed, may attain the status of law for some purposes, but they are derived from a constitutional base and are not replacements for law. Quite to the contrary, the Jewish people as the first new society back in biblical times is strongly committed to the principle of fundamental law and the idea of constitutionalism derived from it.

Which Constitutional Model?

The world's modern constitutions can be classified according to five basic constitutional models: (1) the constitution as frame of government; (2) the constitution as code; (3) the constitution as revolutionary manifesto; (4) the constitution as political ideal; and (5) the constitution as a modern adaptation of an ancient traditional constitution. 6

The Constitution as Frame of Government: As a frame of government, the constitution delineates the basic structure, institutions, and procedures of the polity as neatly as possible. It is only explicit in connection with those elements which must be made explicit in order for the constitution to frame a government; specific details are left to ordinary legislation enacted within the constitutional framework. Such constitutions frame governments and not states because they serve civil societies where there is no conception of the state as a reified entity. Written constitutions of this model often are devices for organizing new societies founded in new territories, such as the United States, Canada, and Australia.

The Constitution as Code: This model is characteristic of the Western European states whose constitutions are state codes designed to cope with an established order and established preexisting constituencies, not to speak of a preexisting state. As the word "code" signifies, they are long, detailed, highly specific and rigid. The constitutions of Austria and the German Federal Republic are classic examples of that highly rigid model, but so for that matter is the 1978 Spanish Constitution, introduced after Franco's death as the basis for the introduction of a more liberal regime in that country. The frame of government model works best in political systems where there exists basic consensus with regard to the character of the polity, while the constitution as code model reflects the reality of polities in which the character of the regime itself is sufficiently problematic for even small changes in its authority, powers, or functions to require explicit consent.

The Constitution as Revolutionary Manifesto: The third model, once most common in the Socialist (Communist) states, is designed for the comprehensive revolutionary reconstruction of an established civil society, based upon the achievement of a social revolution of the most fundamental kind, with all of its political manifestations and impact. This is a constitution designed to root out the old order in its entirety. These constitutions often exclude certain "counterrevolutionary" or "corrupted" groups or classes from participation in the body politic as much as to define the rights, roles, and responsibilities of those who are entitled to participate. Moreover, the central feature of every Communist constitution is the concentration of power in the hands of the organized revolutionary cadres. Indeed, the constitution is not only used to establish the myth of the revolution but as an instrument for fostering that myth and enhancing the power of the revolutionary cadres to make the revolution in the name of the myth.

The Constitution as Political Ideal: This model was pioneered by the Latin American countries in the nineteenth century and is most closely identified with the Third World. It combines an expression of what its citizens believe the regime should be with a basic structure of authority that enables the current power holders to rule with a measure of legitimacy. The former is presented without any serious expectation that the polity or regime will achieve that constitutional ideal, and the latter in anticipation of periodic change as rulers change, usually through revolution or coup. Those states seem to be constantly changing their constitutions in their entirety. In fact, while each constitution is presented as new, usually there is a great continuity of basic articles from one document to the next, combined with changes in specifics to reflect each new regime. This model bears some superficial resemblance to the Communist model, but it has a political rather than a social revolutionary intent. In essence, such constitutions are designed to present an ideal picture of the institutional framework of the proper polity while simultaneously reflecting the character of actual power systems and the specifics of rule by the current power holders

The Constitution as a Modern Adaptation of an Ancient Traditional Constitution: Polities utilizing this model have a deeply-rooted commitment to what can only be characterized as an ancient and continuing constitutional tradition, rooted in their history and culture or religion, or both. The commitment usually finds expression in what is conveniently referred to as an "unwritten constitution," which often encompasses a collection of documents of constitutional import, each of which marks (or purports to mark) an adaptation of the great tradition to changed circumstances.

The British Constitution is the most widely recognized example of this model. Except for the brief interregnum of the English Civil War, its piecemeal constitutional development has been uninterrupted at least since the Norman Conquest and perhaps even before, if William the Conqueror's claims to the throne are recognized. The only time there has been constitution-writing in the United Kingdom or any of its constituent countries has been in connection with some strong necessity to clarify or adapt what are viewed as ancient principles, as in the case of the Magna Carta (1215), the 1689 Bill of Rights connected with the Glorious Revolution, and the 1832 Reform Act; or to establish new relationships among its constituent countries as in the case of the Act of Union between England and Scotland (1707) or the reconstitution of Ireland in the 1920s. Indeed, when this element has been lacking, efforts to change the British Constitution in a formal a way have generally failed. This was true most recently in the attempted devolution of legislative powers to Scotland and Wales. At all times, constitutional change has been achieved through ordinary legislative procedures endowed by convention with constitutional status.

Israel's Emergent Constitution

Israel should be considered another example of this model. Israel is, in fact, formally committed to the adoption of a written constitution. The first Knesset was elected as a constituent assembly and spent considerable time debating whether or not to write a constitution. The body was deadlocked as the religious parties opposed the idea of a constitution other than the Torah, while the left-wing socialists were equally opposed because they knew that any constitution that would emerge would not embrace their Marxian vision of what the new state should be. 7

In a classic speech, David Ben-Gurion, Israel's first prime minister, moved that preparation of a comprehensive constitution be set aside in favor of piecemeal development through enacting Basic Laws as consensus was achieved about each subject, that together would ultimately form a constitution. His argument was presented in the spirit of prudence which has animated the Zionist enterprise at crucial moments, hence it offered good reasons for doing so (if not necessarily the real ones). He suggested that polities need written constitutions for two reasons -- either to link constituent units in a federal system or to republicanize absolutism. Since Israel was not a federal state and the Jewish people has always been republican, Israel did not need to write a constitution on the spot. 8

The proposal for piecemeal writing of the constitution was accepted so every Knesset is also a constituent assembly that can enact Basic Laws, usually by a modest special majority of 61, namely, half plus one of its total membership. The Knesset deals with Basic Laws and other constitutional matters through a standing Constitutional, Legislative and Judicial Committee. Basic Laws constitutionalizing its legislative, executive and judicial organs, the presidency, human rights, the state's economy and lands, civil-military relations, and the status of Jerusalem, have been enacted since the early 1950s. Israel's Declaration of Independence has been given quasi-constitutional status by the courts in lieu of a formal bill of rights, since it specifies the basic principles of the regime, while unsettled issues such as local government and its status and powers vis--vis the state, or highly controversial ones such as the relationship between religion and state, have been left in abeyance. 9

Beyond the Basic Laws, other legislation has constitutional implications and is so treated. Thus the Knesset has constitutionalized the definition of who is a Jew for immigration and registration purposes through the Law of Return. Its resolution of that issue is periodically called into question and has been given stronger constitutional status through court interpretation and through the reluctance of the Knesset itself to change what it has done even when pressed hard to do so.

Similarly, the evolving relationship between Israel and the Jewish people has been constitutionalized through a covenant negotiated with the World Zionist Organization and the Jewish Agency, and enacted as legislation by the Knesset (see Table 1). That covenant, concluded between the Government of Israel and the World Zionist Executive in its role at that time as the directorate of the Jewish Agency, allocated functions between the two bodies and made it clear that the Agency was not a state institution but a national one (that is, one that belongs to the whole Jewish people). This covenant was supplemented by a joint declaration in 1960 which specified that "the State of Israel sees itself as the creation of the Jewish People in total, and expects efforts from the ZWF's (Zionist World Federation) side to reach the unity of the nation for the State. . . ." 10 Subsequent agreements have transferred other functions to the state and have altered the structure of the Agency to make it more representative of the Jewish people as a whole, but the basic constitutional framework remains the foundation of the federal pattern which Israel and its diaspora partners are fostering as a means of unifying world Jewry.

Table 1

ISRAEL'S CONSTITUTIONAL FRAMEWORK

1. Declaration of Independence (1948)

2. Legislation of Constitutional Import

2. 1 Law of Return (1950) (as amended)
2. 2 World Zionist Organization -- Jewish Agency (Status) Law (Covenant Between State of Israel and World Zionist Organization/Jewish Agency for Israel) (1952, amended 1971)

3. Basic Laws

3. 1 The Knesset (1958)
3. 2 Israel Lands (1960)
3. 3 The President of the State (1964)
3. 4 The Government (1968)
3. 5 The State Economy (1975)
3. 6 Israel Defense Forces (1976)
3. 7 Jerusalem, Capital of Israel (1980)
3. 8 The Judicature Law (1984)
3. 9 The State Comptroller (1988)
3. 10 Human Dignity and Freedom (1992)
3. 11 Freedom of Occupation (1992)

In the Israeli case, direct consideration of the ancient Jewish constitution is disguised through presumably neutral rhetoric because of the conflict between those who seek a religious grounding for the Jewish state and those who want the state to be strictly secular -- the accepted slogan is "a state of hok (civil law), not a state of halakhah." 11 Most Israelis view their state as a regime properly based on civil rather than religious law, but believe it only proper that the Knesset has specified in law that the state's legal system should be based on traditional Jewish legal-constitutional principles, which include a full civil code, to the extent possible. Thus, in 1980, after extensive negotiation and debate, the Knesset enacted legislation shifting the basis of Israeli law from English Common Law to the "principles of freedom, justice, equity, and peace of the heritage of Israel." 12 The wording is a compromise formula designed to accommodate Israel's linkage to one of the great legal traditions of the world, one whose standards of justice and equity and legal principles designed to implement those standards are widely regarded quite apart from their religious significance, yet conciliate those who fear any steps that might lead to recognition of halakhah as binding law in the Jewish state. 13

In 1992, as part of its package of constitutional changes, the Twelfth Knesset enacted two Basic Laws: Securing Human Dignity and Freedom, and Freedom of Occupation (see the report by Uriel Lynn in this publication). Included in the first was a clause specifying that Israel was both a Jewish and a democratic state, constitutionalizing both principles and implicitly the tensions between them in some spheres. The laws also provided for judicial review of Knesset legislation and government regulation in light of the provisions of those two laws, a major formal step forward in the recognition of what had become a de facto reality, namely that the Israel Supreme Court has claimed for itself the right of judicial review over Knesset legislation and actions.

Following this mold, Israel's Declaration of Independence serves as a bridge between the idea of an ancient traditional constitution still possessing a certain validity and a modern frame of government. At most, however, this model is only implicit to the Israeli situation since there are strong voices in Israel who would reject such an interpretation, albeit with ambivalences of their own.

One of the characteristics of this model is the inclusion among its constitutional documents of Basic Laws which relate to specific ancient traditions. Almost all the documents of the British Constitution do just that, as do two of the Basic Laws of Israel, those relating to state lands and Jerusalem, plus parts of three others: the Knesset, the President of the State, and the State Economy. The three great texts of Israel's founding -- the Declaration of Independence, the Law of Return, and the covenant linking Israel and the WZO/Jewish Agency -- speak directly to the issues of the ancient traditional constitution.

Unlike most parliamentary systems, Israel's Supreme Court has come to play an important and expanding role in the development of the state's constitutional law. The Court has taken the task of constitutional interpretation and is pressing it to the farthest possible limits with the consent, active or tacit, of the Israeli public and acquiescence of the state's other governmental institutions. This is in keeping with Jewish political culture that has always placed a high value on courts and judges as arbiters of the law. The Court's role is further enhanced by the range of constitutional issues confronting Israel because of its unique character as a Jewish state. Table 2 summarizes the major concerns of Israeli constitutional law.

Table 2

THE CONCERNS OF ISRAELI CONSTITUTIONAL LAW

I. The Foundations of the State

A. The constitutional force of the Declaration of Independence
B. Continuity of pre-state legislation
C. The territorial integrity and boundaries of the state (Basic Law: Jerusalem, enacted 1980)
D. Official languages and their use

II. Basic Constitutional Principles

A. Israel as a Jewish state (Declaration of Independence; Law of Return, enacted 1950)

B. Religion and the state

1. Personal status
2. Organization and constitutional position of religious communities
3. Religious freedom

C. Citizenship, nationality and immigration (Law of Return)

D. The rule of law (Declaration of Independence)


1. Law enforcement and observance
2. Equality before the law
3. Equality of the sexes
4. Rights of individuals in dealing with public authorities

E. Separation of powers

1. Independent judiciary (Basic Law: The Judicature, enacted 1984)
2. Delegation of rule-making powers to the administration
3. Jurisdiction of the administration
4. Administrative immunities

F. Basic Laws

1. Enactment
2. Constitutional status

III. Basic Political Institutions

A. Elections

1. Knesset (Basic Law: The Knesset, enacted 1958)
2. Local authorities

B. The Knesset (Basic Law: The Knesset)

1. Organization
2. Rights and obligations of members
3. As a legislative body
4. As overseer of the activities of the government

C. The Government (Basic Law: The Government, enacted 1968)

1. Formation and dissolution
2. Responsibilities
3. Authority
4. Prerogative
5. Powers

D. The Presidency (Basic Law: The President of the State, enacted 1964)

1. Election
2. Authority and powers

E. Local Government

IV. Other State Institutions

A. Israel Defense Forces (Basic Law: Israel Defense Forces, enacted 1976)

B. State Comptroller (Basic Law: State Comptroller, enacted 1988)

C. Lands (Basic Law: Israel Lands, enacted 1960)

1. State lands
2. National lands
3. Private lands

V. The State Economy

(Basic Law:The State Economy, enacted 1975)

VI. The State and National Institutions

A. The Jewish Agency and the Zionist World Federation (World Zionist OrganizationJewish Agency (Status) Law, enacted 1952, amended 1971).

B. Specialized national institutions

1. Keren Hayesod
2. Israel lands and the Jewish National Fund (Basic Law: Israel Lands, enacted 1960)
3. Hebrew University

Source: Adapted, with modifications and additions, from Amnon Rubinstein, HaMishpat Hakonstitutionali shel Medinat Yisrael (The Constitutional Law of the State of Israel), 4th ed. , 2 vols. (Jerusalem: Schocken, 1992) (Hebrew); and Yehoshua Freudenheim, Government in Israel.

Taken together, the eleven Basic Laws properly enacted by the Knesset and the amendments to them constitute a constitution by most standards. In comprehensiveness, they are not inferior to the original American Constitution of 1787 before the addition of the first ten amendments (the Bill of Rights) after ratification of the original document. If collectively they are not as long as the European constitutions-as-codes, Israel, as a new state serving a new society, does not need that kind of constitutional detail. Moreover, the other three acts of constitutional standing provide for protection of rights and express Israel's raison d'tre and vision.

What is Lacking?

What then is lacking? Several elements: some form of popular ratification, greater entrenchment of the Basic Laws as constitutional laws (i. e. , a more demanding process of adoption and amendment), and a sense on the part of the Israeli public that all of this adds up to a "real" constitution. Beyond that, there are those who are unhappy with the contents of Israel's present constitution -- who want a different electoral system, or a fully presidential rather than parliamental government, or a single comprehensive bill of rights, or want a halakhic state. Whatever the reason, they find it convenient to dismiss what exists in the hopes of getting something more to their liking.

Consequently, in line with the implicit political theory under which the state operates, the Basic Laws that have been enacted have continued to be called "Basic Laws" and to be treated individually. They had never even been bound together for use in Israel until the publication of the first edition of this work in 1988, much less referred to as a "constitution. "

Constitutional Change in the Twelfth Knesset

A second great burst of constitutional activity came in 1992 in the actions of the Likud-led Twelfth Knesset. Spearheaded by Uriel Lynn, the chairman of the Committee on Constitution, Law and Judiciary, with his allies in the Knesset, David Libai of Labor who is now Minister of Justice, Amnon Rubinstein of Shinui (now Meretz), Israel's leading constitutional authority and now also a government minister, and Yoash Tsiddon of Tzomet, secured the enactment of the direct election of the chief executive, the two Basic Laws on rights, a rise in the number of votes needed to cross the threshold for a party to elect its first candidate for the Knesset, and a series of other constitutional changes. Israel had not seen the like of the Twelfth Knesset's activity since the founding of the state. Included in this pamphlet is the summary of a report by M. K. Lynn on the work of his committee as part of the updating of this collection.

The Art and Science of Constitutional Design

Constitution-making, properly considered, brings us back to the essence of the political. However much extra-political forces may influence particular constitution- making situations or constitutional acts, ultimately both involve directly political expressions, involvements and choices. In that sense, the dynamics of constitution- making has to do with questions of what Vincent Ostrom has termed "constitutional choice. 14

Constitutional choice is more art than science. There are scientific principles involved in the making of constitutions, as the fathers of the United States Constitution of 1787 demonstrated in their reliance on the "new science of politics," which had discovered such vital principles of republican regimes as separation of powers, federalism, and the institution of the presidency. 15 But the combination of those elements and their adaptation to the constituency to be served is an art.

It is an even greater art to bring the constituency to endow the constitution with legitimacy. Constitutional legitimacy involves consent. It is certainly not a commitment that can be coerced -- however much people can be coerced into obedience to a particular regime. Consensual legitimacy is utterly necessary for a constitution to have real meaning and to last. The very fact that, while rule can be imposed by force, constitutions can only exist as meaningful instruments by consent, is another demonstration of how constitution-making is the preeminent political act.

A constitution is also a political artifact. 16 That is why the making of constitutions combines science and art. The crafting of a constitution involves the identification of basic scientific principles of constitutional design and the technologies which are derived from them, which a proper constitutional artisan or groups of artisans can bring together to exercise the art and craft of constitution-making.

The Jerusalem Center for Public Affairs has undertaken the publication of the complete constitution of the State of Israel to date to make the citizens of Israel aware of the constitution they have. Only with that awareness can they judge whether it is adequate or not. No doubt some will be pleased with the product, others will see it and decide to seek incremental additional improvement, and still others will be more firmly convinced that drastic changes are needed. Whatever their opinion, reading and reviewing the constitution that exists is a prerequisite for any further steps in constitutional design they might care to take. One word regarding the translation of the Basic Laws: until 1985 the Israel Ministry of Justice provided authorized or official translations of the Basic Laws. Since then they have not done so, so new Basic Laws and amendments to existing ones, while they have the best possible translation, are not authorized in the same way as their earlier counterparts.

There seems to be widespread feeling that in Israel's fifth decade a statewide constitutional debate is in order. While a founding covenant should stand as long as the polity it serves, the social contract that gives the covenant practical meaning inevitably is renegotiated in every generation. In Jewish tradition, forty years is the outside limit of a generation. Moreover, we are already engaged in the renegotiation, like it or not. What remains is the opportunity to raise the deliberations surrounding that renegotiation to a proper level. That is what constitutionalism is all about.

Notes

1. These themes are treated more extensively in Daniel J. Elazar, Israel: Building a New Society (Bloomington: Indiana University Press, 1986). On the Declaration of Independence, see Horace M. Kallen, Utopians at Bay (New York: Theodor Herzl Foundation, 1958). Kallen was the first to single out a number of the themes in the Declaration of Independence which deserve careful examination for what they say about the consensus upon which Israel is based and the definition of the state's vocation. He was the first to view the Declaration as expressing Israel's turning away from "Europe's religio-cultural" tradition toward a restoration of an "authentic image of the people of Israel. " His comparison of the Declaration with the Torah and the American Declaration of Independence is particularly useful for understanding the similarities and differences between the two new societies. For a history of the drafting of the Declaration and its impact, see Yigal Aricha, "Megillat HaAtzmaot -- Chazon ve-Metziot" (Declaration of Independence -- Vision and Reality), unpublished paper, Bar-Ilan University, 1983 (Hebrew). Today school children in Israel are beginning to study the Declaration from similar perspectives, as described in Aricha.

2. Keith G. Banting and Richard Simeon, eds. , The Politics of Constitutional Change in Industrial Nations (Toronto and London: Macmillan, 1986); Ivo Duchacek, Power Maps (Santa Barbara, Calif. : A. B. C. -Clio, 1973); Carl J. Friedrich, "Constitutions and Constitutionalism," in David L. Sills, ed. , International Encyclopedia of the Social Sciences (New York: Macmillan and Free Press, 1968), Vol. 3, pp. 318-326; Carl J. Friedrich, Constitutional Government and Democracy (Boston: Ginn, 1950); Charles H. MacIlwain, Constitutionalism, Ancient and Modern (Ithaca, N. Y. : Cornell University Press, 1940); Kenneth L. Wheare, Modern Constitutions (London: Oxford University Press, 1951).

3. John Adams, "A Defense of the Constitution of Government of the United States of America" (1780), and Edmond Burke, "Speech to the Electors of Bristol" (1774).

4. On the Torah as constitution and halakhah as constitutional law as they affect Israel, see Ervin Birnbaum, The Politics of Compromise: State and Religion in Israel (Rutherford, NJ: Farleigh Dickinson University Press, 1970); Menachem Elon, "The Sources and Nature of Jewish Law and Its Application in the State of Israel" Israel Law Review 3 (1968), pp. 88-126, 416-457; Y. Gershoni, "The Torah of Israel and the State," Tradition 12, 3-4 (1972), pp. 25-34; "Jewish Law in the State of Israel," in Proceedings of the Rabbinical Assembly 36 (1974); and Norman L. Zucker, The Coming Crisis in Israel (Cambridge, Mass. : MIT Press, 1973).

5. Cf. , inter alia, Josephus Flavius, The Antiquities of the Jews.

6. Daniel J. Elazar, "Constitution-Making: The Preeminently Political Act," in Banting and Simeon, pp. 232-248.

7. Cf. Emanuel Rackman, Israel's Emerging Constitution 1948-1951 (New York: Colombia University Press, 1955); J. Albert, "Constitutional Adjudication without a Constitution: The Case of Israel," Harvard Law Review (1969), 82:1245-1265; Daniel J. Elazar, "A Time of Constitutional Milestones in the History of Israel," Jerusalem Letter/Viewpoints, no. 34 (June 12, 1984); Eli Likhovski, "Can the Knesset Adopt a Constitution Which Will Be the 'Supreme Law of the Land,'" Israel Law Review 4 (1969), pp. 61-69; and Meir Shamgar, "On the Written Constitution," Israel Law Review, Vol. 9, no. 4 (October 1974).

8. David Ben-Gurion, "Laws or a Constitution," in Rebirth and Destiny of Israel, edited and translated from Hebrew under the supervision of Mordecai Nurock (New York: Philosophical Library, 1954), pp. 363-379.

9. Amnon Rubinstein, HaMishpat Hakonstitutionali shel Medinat Yisrael (The Constitutional Law of the State of Israel) (Jerusalem: Schocken, 1992, 4th edition) (Hebrew).

10. As quoted in S. N. Eisenstadt, Israeli Society (New York: Basic Books, 1968).

11. S. Z. Abramov, Perpetual Dilemma: Jewish Religion in the Jewish State (Rutherford, NJ: Farleigh Dickinson University Press, 1976); Birnbaum, op. cit. ; S. Ginossar, "Who Is a Jew; A Better Law? The Law of Return (Amendment no. 2) 1970," Israel Law Review 5 (1970), pp. 264-267; S. Rosenne, "The Israel Nationality Law 5712-1972 and the Law of Return 5710-1950," Journal du Droit International, Vol. 81 (1954):5; Amnon Rubinstein, "Who's a Jew and Other Woes," Encounter (March 1971), pp. 84-93; M. Shava, "Comment on the Law of Return (Amendment No. 2) 5730-1970," Tel Aviv University Studies in Law (1977):140; and Z. Terlo, "The Immigration Laws of Israel -- Some Future Problems," Public Administration in Israel and Abroad 1967, Vol. 7, p. 24.

12. The Foundations of Justice Act (1980). The phrase "the heritage of Israel" is a standard Hebrew expression for Jewish tradition.

13. For religious Zionists, the Torah is perceived to have constitutional import and provides a larger constitutional grounding for the frame of government that is emerging out of the Israeli constitutional process. Since the Torah does not specify any particular regime, it is relatively easy for them to accept Israel's freedom in constitutional design on that level. Indeed, leading religious Zionist rabbis such as Rabbi Judah Amital hold that halakhically the laws of Israel are binding on its citizens even though not formally based on the Torah because they fall within the category of mishpat hamelukhah (literally: the law of the kingdom), a category that has existed parallel to the Torah since the days of the Prophet Samuel and King Saul 3,000 years ago. For a comprehensive analysis of mishpat hamelukhah, see Shimon Federbush, Mishpat Hamelukhah BeYisrael (Jerusalem: Mosad Harav Kook, 1952) (Hebrew).

14. Cf. , inter alia, Vincent Ostrom, The Political Theory of a Compound Republic (Lincoln: University of Nebraska Press, 1987).

15. Martin Diamond, The Democratic Republic (Chicago: Rand McNally 1966); Daniel J. Elazar, "Constitution-Making: The Preeminently Political Act," in Banting and Simeon; Andrew McLaughlin, The Foundations of American Constitutionalism (Greenwich, Conn. : Fawcett Publications, 1961), and Confederation and the Constitution, 1783-1789 (New York: Collier Books, 1962).

16. Ostrom, op. cit.



The Principal Constitutional Laws Passed by the Twelfth Knesset Through the Efforts of the Constitution, Law and Justice Committee

Excerpted from a Summary by Uriel Lynn, Committee Chairman

At the outset of the term of the Twelfth Knesset, the Constitution, Law and Justice Committee set out its central legislative goals. While it could have covered a broad variety of topics, it was thought that better results would be achieved by focusing on several basic targets.

The central goals were: improving the democratic system and the system of government; securing basic human and civil rights of the individual; combating crime; improving efficiency of the court system, the rabbinical courts, and the offices of execution; improving norms of behavior in business; and improving joint property relations between residents of condominiums. To attain these goals, the committee, in the course of its work, found it necessary at times to abandon established principles and formulate new concepts.

1. Improving the Democratic System and the System of Government in Israel

Ever since the establishment of the State of Israel, there has been dissatisfaction with and criticism of the democratic system of government as practiced in Israel. Recently we have witnessed considerable erosion of the public's confidence in the democratic system, as constant concessions to parties and party interests were being made at the expense of the general public. Government instability and malfunctioning exact a tremendous toll on the state. The committee decided to make a concentrated and methodical effort to change the democratic structure and practice of government in Israel.

In this area the committee attained its most significant achievements. Legislation that was prepared in the committee and approved by the plenum of the Knesset is based on more than seven years of concentrated effort. At first, most of the efforts were directed toward changing the system of electing the Knesset from the proportional system to a constituency system. This attempt failed, as did the attempt to change the system of electing the Knesset in a manner similar to the system practiced in West Germany, wherein half of the parliament members are elected in electoral districts, and the remainder from nationwide lists. As a result, the committee reached the conclusion that no change could be made at this time in the proportional system. At this stage the emphasis was shifted and reforms were instituted relating to the number of factions in the Knesset, stability of the factions, ethical practices within the parties, and direct election of the prime minister. It could be said that each and every one of the laws that were passed constitutes an achievement in itself. All of them together certainly constitute a wide-ranging reform -- for the first time since the formation of the democratic system in the first years of the state.

Principal Features of the Laws:

a) Abuse of the confidence given Knesset members by voters of the party electing them

A private bill was passed to prevent the manifestations of shifting factions in exchange for benefits (known in Israel as "Kalanterism"). The law in fact abrogates the Knesset member's right to quit his faction and move to another faction in exchange for benefits. The law prohibits guarantees of future Knesset membership, appointment to government office, and receipt of party financing. Splitting two-member Knesset factions is prohibited as well. [Basic Law: The Knesset (Amendment No. 12)].

b) Raising the Threshold Percentage

Raising the threshold of the percentage of voters needed to gain a seat in the Knesset from one percent to one and a half percent is the only significant increase in the threshold percentage since the establishment of the state. In the elections to the Thirteenth Knesset, a party needed to obtain about 40,000 votes in order to clear the threshold. As a result, the number of Knesset factions was cut in half. [Knesset Elections Law (Amendment No. 23), 5752-1991].

c) Appeals of Election Results

Appeals of election results will no longer be heard by the Knesset Committee, which by its very nature is a political body, but rather by a District Court sitting in special composition. [Knesset Elections Law (Amendment No. 19), 5749-1989].

d) Basic Law: The Government -- Direct Election of the Prime Minister

This is the most comprehensive law ever adopted by the Knesset for changing the system of government in Israel. The law sets out the manner of electing the prime minister, ensuing from his being elected directly by the people, and reinforces the Knesset's powers in areas such as emergency regulations, summoning ministers to appear before Knesset committees, supervision of subsidiary legislation, and dismissal of ministers. The law goes into force starting with election to the Fourteenth Knesset. [Basic Law: The Government].

e) Political Parties Law

For the first time in Israeli legislation, the law sets forth a definition of a political party. The law defines a party as a separate legal entity, charges it with duties of registering, submitting articles of association, establishing institutions, places it under the review of the State Comptroller, and charges it with observing ethical conduct in its internal affairs. [Political Parties Law, 5752-1992].

f) Preventing Improper Influence on the Voters

An amendment of the Election Law was passed prohibiting the use of religious vows, excommunications, and oaths intended to influence the manner in which the voter casts his ballot. [Knesset Elections Law (Amendment No. 24), 5752-1991].

g) Ministerial Committee for Security

This amendment obligates the government to establish the Ministerial Committee for Security and a special professional advisory team. [Basic Law: The Government (Amendment No. 5)].

h) Dismissing a Deputy Minister

The prime minister has been granted the authority to dismiss a deputy minister. Previously the prime minister had the power to dismiss a minister, but not his deputy. [Basic Law: The Government (Amendment No. 7)].

i) Political Activity by State Employees

Two new prohibitions were enacted regarding political activity by state employees. Those serving in the four highest grades of the civil service are now required to resign from the electoral bodies of political parties. State employees and salaried employees of government firms are prohibited from personally voting in the bodies choosing party candidates for the Knesset and the Government. [Civil Service Law (Restricting Political Party Activity and Funds Collection) (Amendment No. 2), 5750-1990].

2. Securing Civil Rights

For quite some time, various proposals have been placed before the Knesset for enacting a Basic Law that would secure civil rights in a manner embodied in constitutions of other countries. Earlier approaches to this subject did not give sufficient consideration to the political realities of Israel. At the initiative of M. K. Amnon Rubinstein, the Constitution, Law and Justice Committee changed the conceptual basis for its deliberations on the subject. Instead of trying to enact a Basic Law which secures all civil rights, it decided to adopt a gradualistic approach, attacking the central issues one after the other. Passage of these Basic Laws was achieved by virtually total cooperation with representatives of the religious parties. It could fairly be said that in this sphere as well, the committee has attained accomplishments of a truly revolutionary nature. The importance of these Basic Laws lies not only in their content, but also in their nature. It has been expressly established in principle that a right incorporated in a Basic Law can be abrogated only through equivalent legislation and only for a worthy purpose. With the passage of the laws listed below, it could be said that, together with all the existing Basic Laws, Israel has a written constitution, although more needs to be done in order to complete it.

Principal Features of the Laws:

a) Human Dignity and Freedom

A Basic Law securing basic human rights of the individual, the law incorporates the core of a bill of rights to recognize the existence of basic rights, such as the right to life, body, property and dignity. It also states that a person is entitled to the protection of the state for these rights. The law defines the right to personal freedoms, including entering and leaving Israel, the right to individuality and privacy, a person's right to private property, and protection against searches of his body and private effects. An ordinary law cannot contravene the provisions of this Basic Law except for a worthy purpose and in a manner conforming the values of the State of Israel as a Jewish and democratic state. [Basic Law: Human Dignity and Freedom].

b) Freedom of Occupation

This is a Basic Law which recognizes the individual's freedom to choose an occupation as a basic right and imposes restrictions on the terms determined by the authorities for licensing occupations. The basic principle is embodying freedom of occupation in a Basic Law which enjoys a preferred status over ordinary laws. An authority wishing to set out restrictions on conducting a business or engaging in a profession can do so only through legislation or regulations. Limitations on such rights can be enacted for a worthy purpose only. The courts will be the final arbiters of whether a restriction serves a worthy purpose. Conditioning the conduct of a business or engaging in a profession only upon obtaining a permit, which are the most common ways in which the state authorities entangle the business sector, can be effected only according to a law and for the reasons embodied in the Basic Law, which are the protection of public health, public peace or safety, state security, and public morals. The law imposes a special obligation on state authorities to respect the provisions of this law. A two-year transition period has been established before the law takes full effect to enable the necessary modifications in the present situation. [Basic Law: Freedom of Occupation].

c) Self-Defense

The law redefines the right of self-defense -- a right which in other countries is generally embodied in their constitutions. In Israel it is commonly included in the Penal Law. A person is entitled to act in self-defense in order to repel illegal attack which endanger his life, freedom, body, property or dignity. A new principle was established granting the courts authority, under special circumstances, to reduce the mandatory punishment prescribed by law. [Penal Law (Amendment No. 37), 5752-1992].

d) Preventing Environmental Hazards

The law establishes the individual's right to protect his legitimate interests from environmental hazards. The law also enables legal action in this matter by a group of residents with a common interest. Associations whose principal purpose is environmental protection can also take action. Until now, the protection of the individual or a group of citizens was entirely dependent on the good will of the state authorities. Anyone who has been harmed, or is about to be harmed by an environmental hazard is entitled to petition for a court order enjoining anyone causing the hazard to desist from the activity producing the environmental hazard and to take all necessary action in order that the hazard cease or not recur. The court must take into account the balance of interest prior to issuing the order. For example, should the environmental hazard be caused by existing large industrial enterprises, it is necessary to take into account the extent of the investment and the economic damage that will be caused, as against the damage being caused by the public. [Prevention of Environmental Hazards Law (Civil Claims), 5752-1992].

e) Return of Abducted Children

The law creates a legal tool for speedy procedure in the event of child abduction and removal from Israel by one of the parents. The principle it establishes is that an abducted child is to be returned at once, that is, returning the situation to its former state in any case where a child is abducted and transferred from one country to another. In conformance with the law, a central authority will be established in order to initiate action for the return of abducted children and for cooperating with the corresponding authorities in other countries in order to achieve this goal. The central Israel authority is the Attorney General. The financial costs involved in the legal procedures will be borne by the state. [Hague Convention Law (Return of Abducted Children), 5751-1992].

f) Elimination of Censorship of Plays

The committee instituted suspension of the censorship for a two-year trial period and at its end canceled censorship of plays entirely. [Law for Suspending the Validity of the Public Plays Ordinance (Control), 5749-1989 and Penal Law (Amendment No. 35), 5751-1991].

g) Release on Bail

The law eases the procedure for release on bail. This amendment sets out far-reaching changes in all arrangements relating to the release of suspects on bail without need of bringing them to court, in all cases where the procedure can by completed in the police station. [Amendment to the Criminal Procedures Law (Arrest and Search) (No. 5), 5750-1989].