רבע מאה למהפכה החוקתית: תמונת מצב של ה"חוקה בהרצה"

On the 25th anniversary of the Bank Hamizrachi case, this paper positions the judicial move undertaken there as part of a larger project, which is evolutionary rather than revolutionary, although it contains quasi-revolutionary milestones:“test-driving” constitutional segments as they are built (or experimental constitution building, one segment at a time, on the fly). The paper outlines the main characteristics of this project, which displays Israeli constitutional history in a new light. This evolutionary design allows systems such as law, politics, the market, morality, bureaucracy and religion to experiment, adapt, and sometimes modify the legal constitutive arrangements of each segment. Consequently, up until the Bank Hamizrachi decision the status of Israel’s basic laws was neither one of ordinary legislation nor one of constitutional primacy, but rather an interim status – statutes with constitutional potential that would become fully constitutional only upon the adoption of Basic-Law: Legislation. This conceptualization offers a better understanding of the difficulties involved in the various judicial reasonings in the decision, as well as of the path the Supreme Court decided not to follow. This framework also provides a structure for analyzing the legal significance of elevating all basic laws to constitutional level. On the one hand, a leap whose basis is dubious , as shown by Prof. Ruth Gavison, but on the other hand it is a move which allows the various social systems to test judicial review over primary legislation in the absence of a notwithstanding clause. The paper also addresses the implications of this development on the sub-statutory level,and on the question of abuse of constitutional power and unconstitutional constitutional amendment.