The Failures of Liberal Constitutionalism in Israel
Georgetown University Law Center
December 16, 2011
Notions of equality have long posed a normative problem for liberal theory. What stance should the liberal take toward the failure of the political system to remedy the seemingly inevitable inequitable distribution of socioeconomic wealth and resources? This question squarely highlights one of the ironic paradoxes associated with the confluence of liberalism and constitutionalism, because both are simultaneously necessary and incompatible with each other for at least one germane reason — collective self-government, representative institutions, and individualism can operate to produce unegalitarian relationships between disparately situated groups in a given society, which can in turn substantially harm the project of political (as well as economic) equality.
Israel presents a remarkable examination on the relationship between liberal theory and equality. First, Israel is commonly described as the only democracy in the Middle East. Because the common assumption is that Israel’s political system holds natural affinities with Western democratic tradition, it would seem safe to assume that what is meant is Israel’s liberal democracy. Yet the tension between its contradictory values — a “Jewish” state and a “liberal state — has continue to generate intense controversy. This essay proceeds from the contention that Israel embodies an ethnic “democracy,” in which the dominant Jewish majority control State functions with the aim of advancing peculiar demographic, religious, security and cultural norms, often at odds with the rights and freedoms of its Arab minority population.
Second, the status of this Arab minority in Israel continues to present one of the most intense and intricate issues in Israeli society. The reality is that 1.2 million Arab citizens of Israel (18.5% of the population) do not enjoy equal access with Jewish citizens to state resources. Geographical inequality in the distribution of services follows ethnic lines, negatively affecting Arab communities which tend to be disadvantaged in relation to the rights and economic security enjoyed by relatively well-off Jewish communities. Governmental policies also continue to offer preferential treatment for residents of some of the Jewish settlements on West Bank territory. Although The Basic Law: Human Dignity and Liberty is widely considered a mini-bill of rights by Israeli legal scholars, it does not enumerate a right to equality; on the contrary, it exclusively emphasizes the character of the state as a Jewish state. This can partly be attributed to the lack of “constitutional” (i.e., legal) guarantees for economic and social rights to minorities in Israel.
Part I examines Israel’s democratic and legal structure. Ultimately, the discussion concludes that the idea of a Jewish state is squarely incompatible with protection of minority rights — a central tenet of constitutionalism. This discussion thus suggests why Israel cannot claim to comply with democratic liberal norms while simultaneously privileging one ethic group over another. The pairing “Jewish” and “democratic” both codifies discrimination against non-Jewish citizens and impedes realization of full guarantees for political and socioeconomic equality.
The political implications of this argument are substantial. First, as mentioned, it critically calls into question the democratic nature of the State of Israel. Second, it strongly questions popular Western conception that views Palestinians and Israelis as equal, symmetrically balanced parties. To this end, Part II analyzes three important Israeli High Court decisions that grapple with complex issues relating to discrimination and (in)equality. In short, the so-called Israeli “constitutional” structure has largely remained unresponsive to its Arab minority. Because the peculiar “liberal” form of Israeli governance long praised by liberal scholars has not resolved the troubling divergence between a rights-based jurisprudence and continued economic and institutional discrimination against Arab-Israelis,entrenching civil liberties and socioeconomic equality in Israel requires not only formal legal codification but also the creation of the conditions for political willingness.
Number of Pages in PDF File: 35
Keywords: Israel, Equality, Liberal Theory, Constitutional Theory, Judicial Review, Israeli High Court, Israeli Supreme Court, Justice Aharon Barak, Palestinians, Arab Minorityworking papers series
Date posted: January 30, 2012
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