Academic

Sapir on the Israeli Constitutional Revolution

By Lawrence Solum

Gidon Sapir (Bar Ilan University) has posted The Israeli Constitutional Revolution - How Did it Happen? on SSRN.  Here is the abstract:

Since its foundation in 1948 until the 1990's, the State of Israel lacked a formal Bill of Rights. Despite the promise of a constitution that was included in the Declaration of Independence, a plethora of obstacles prevented the adoption of a constitution. During the intervening years, attempts were made to anchor a bill of rights in a Basic Law, but these met with failure.

In 1992 the Knesset adopted two Basic Laws dealing with human rights. The Court has utilized the Basic Laws as a platform for creating a full-fledged Bill of Rights. The Israeli academia too has contributed to this expedited process. Notwithstanding the broad academic discourse, one niggling question remains conspicuous in view of the dearth of legal literature dealing with it: how did it happen? How is it that after 44 years of failures and parliamentary paralysis, the Knesset suddenly rose to the occasion and anchored a bill of rights in Basic Laws?

In this article I examine four possible explanations of the phenomenon. The first thesis attributes it to the successful exploitation of a constitutional moment that transpired as a result of a severe erosion of public trust in the political branches. The second thesis pins the success to the tactics adopted by the initiators of the law. Instead of insisting on the adoption of a full-fledged bill of human rights, they broke down the charter into smaller units and enacted only those parts on which there was consensus. According to the third thesis, adoption of these laws was enabled by the fact that the initiators failed to expose the full import of the proceeding, thereby lulling the traditional opponents of the process into a false sense of security. According to the fourth explanation the success stemmed from two transitions in the Israeli political reality. The first was the Labor party's loss of hegemony and the uncertainty regarding the future identity of the coalition; the second was a strengthening of sectorial factors that threatened the secular-bourgeoisie hegemony. The first change weakened the coalition's inherent resistance to the constitutionalization of the political system and the second change neutralized the institutional interest of the Knesset members representing the old¿elites against the constitutional project.

Full post as published by Legal Theory Blog on January 15, 2008 (boomark / email).