Judicial Constitution Making in a Divided Society: The Israeli Case

During the mid-1990's, Israel experienced a legal and political transformation known as “the constitutional revolution” (Gavison 1997: 27; Hirschl 1997: 136; Salzberger & Voigt 2002: 490; Edrey 2005: 78; Sapir 2008: 4). In essence, this “revolution” entailed the empowerment of the judiciary to exercise constitutional judicial review over primary legislation when such legislation does not comply with the requirements set forth in Israel's Basic Laws. This revolution, although on the basis of two Basic Laws enacted by the Knesset in 1992 (and amended in 1994), was nonetheless Court driven in the sense that the Justices of the Supreme Court in the Bank Hamizrachi United v. Migdal Communal Village (1995) significantly expanded the rather modest mandate given in these two Basic Laws (Gavison 1997: 95). The Supreme Court elevated the status of all Basic Laws to the constitutional sphere and denied the power of the Knesset to exempt a statute from judicial review unless it explicitly amends the Basic Laws themselves. In this chapter, I will provide the historical background in a nutshell and then briefly sketch the legal contours of the revolution (i.e., what happened), analyze the judicial moves that brought this change about (i.e., how it happened), and hypothesize on the forces that brought this change about (i.e., why it happened the way it happened). I will then examine in brief some of the possible ramifications of the revolution for the political and legal landscape in Israel. Throughout the chapter, I will point to some general lessons that may be gleaned from the Israeli story and highlight the importance of a number of specific dynamics including the relationship between the judiciary and the legal academy; the relative prestige bestowed by the media on justices and the Supreme Court compared to the treatment of the legislature and politicians; the fragmentation of the political system; particular aspects of Israel's political economy; and of course, the attitudes and leadership of the political and legal leaders. All of these are variables worthy of examination in any country undergoing a constitutional transformation that is not a consequence of an acute crisis (such as the foundation of a state or the conclusion of a serious civil struggle).