Israel: Constitutional Revolution Without a Constitution
For many analysts and observers, one of the most striking features of the Israeli political and legal system is the lack of a written constitution.
Unlike the United States (whose 230-year-old constitution is venerated by most Americans) or France (which is currently on its 14th constitution), the State of Israel has no single document that enshrines the core principles upon which the state is founded, or codifies the basic rights enjoyed by all its citizens.
In this article, I’ll explore why Israel does not have a constitution, what the Jewish state has in lieu of such a crucial document, and whether there is an international precedent for a democratic country not having such a written charter for government.
On May 14, 1948, at a special session of the Provisional State Council (the legislative organ of the Jewish community in the Land of Israel), David Ben-Gurion read out the official text of the Israeli Declaration of Independence.
Beginning with “In the Land of Israel arose the Jewish People,” the Declaration described the history of the Jewish people’s connection to the Land, as well as the responsibilities which the newly declared state was accepting upon itself.
In the middle of the 10th paragraph, Ben-Gurion read aloud the words “In accordance with the Constitution which shall be adopted by the elected Constituent Assembly no later than the 1st of October, 1948.” Thus, with the declaration of Israel’s independence, Ben-Gurion announced the newly founded state’s intention to adopt a constitution within the next six months.
However, subsequent events proved this deadline to be little more than wishful thinking. With the invasion of five Arab armies on May 15, the nascent state was thrown into a bitter war for survival.
With the entire country on a war footing, Israel was unable to hold regular elections for the Constituent Assembly, and the Provisional State Council was forced to retain its legislative powers until elections could be held.
With hostilities nearing an end, Israel was finally able to hold elections on January 25, 1949, and the Constituent Assembly was sworn in on February 3, 1949.
On February 16, 1949, after four meetings, the Constituent Assembly ratified the Transition Law and officially changed its name to the First Knesset.
Less than a year and a half later, the Knesset ratified the Harari Resolution, a legislative proposal that saw the responsibility for creating a constitution pass from the Knesset plenum to the Constitution, Law and Justice Committee. According to this proposal, the constitution would no longer be one cohesive written document, but would be composed of Basic Laws relating to national institutions and civil rights that would be individually ratified by the Knesset.
So, why did the First Knesset fail to adopt a constitution in the first two years of Israel’s existence?
The answer seems to be twofold: First, due to the diversity of political parties within the Knesset, there was a lack of parliamentary consensus on what to include within the constitution.
Second, the adoption of a written constitution did not even enjoy widespread support within the government.
One of the most vocal opponents of the constitution project was David Ben-Gurion (now Israel’s prime minister), who felt that the legislature’s time would be better spent focused on external threats, immigration, the development of infrastructure and the settling of the Negev Desert.
Between 1950 and 1991, the Knesset ratified nine Basic Laws. During that period, the Basic Laws were not considered the supreme law of the land and, unless they contained an entrenchment clause, could be overturned by new legislation that could pass the Knesset by a simple majority vote.
Then, in the early 1990s, the Knesset passed two Basic Laws related to human rights: Basic Law: Human Dignity and Liberty (1992) and Basic Law: Freedom of Occupation (1994). What set these two Basic Laws apart from all their predecessors is that they contained identical limitations clause, which stated that any violation of the rights contained within the laws could only be undertaken “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”
According to an argument developed by Supreme Court Justice Aharon Barak that was later adopted by other members of Israel’s high court, the passage of these Basic Laws had caused a “constitutional revolution” in Israel. From then on, the Basic Laws took on the role of a written constitution that the Supreme Court would uphold via judicial review of Knesset legislation.
In effect, the Supreme Court now had the authority to strike down Knesset legislation that did not conform with the values expressed in Basic Laws.
Although some Israeli jurists and legal scholars opposed this far-reaching interpretation of the Supreme Court’s role, the “constitutional revolution” continues to influence the activities of the high court and the Knesset to this day.
Since 1950, the Knesset has passed 14 Basic Laws that relate to Israeli institutions and individual liberties. Some notable Basic Laws are:
Basic Law: The Knesset (1958): Details the procedures and logistics connected to the functioning of the Israeli parliament as well as national elections.
Basic Law: The Military (1976): Details laws related to the IDF, including enlistment, the role of the Chief of Staff, and the subordination of the military to the civilian government.
Basic Law: Human Dignity and Liberty (1992): Details the human rights granted to all Israeli citizens, including privacy, right to property, freedom to travel, and human dignity.
Basic Law: Freedom of Occupation (1994): Details the right of every Israeli citizen to engage in any profession or occupation.
As mentioned above, the fact that Israel does not have a single constitution makes it a rarity within the international community. However, it is not alone.
Although it is uncommon, there are other countries that also do not have a single cohesive written governing charter. Three such countries are the robust democracies of the United Kingdom, Canada, and New Zealand. Each of these countries’ fundamental principles of political organization and balances of power are composed of both written documents as well as unwritten laws that are given constitutional weight by their respective judiciaries.
Although Israel does not have a written single-document constitution, this has not affected Israel’s development as a strong and healthy democracy. Between the rights codified in Israel’s Basic Laws and the vibrant relationship between Israel’s legislative and judicial branches, Israel continues to set itself apart as one of the most vigorous and flourishing democracies in the world.
The adoption of a written single-document constitution by a future Knesset will only continue this strong democratic tradition.