Sui Generis? The Hybrid Israeli Constitutional Experience

70 Pages Posted: 12 May 2009

See all articles by Rivka Weill

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Date Written: May 8, 2009

Abstract

Consider a country where American-style judicial review is applied to primary legislation, yet its constitutional documents are enacted haphazardly and in the British-style, using procedures applied to regular legislation. For nearly half a century, this country has acted as if it had a sovereign legislature, yet its highest court decided in 1995 that its most basic norm is that of a limited legislature constrained by a formal Constitution, the existence of which comes as a surprise to constitutional scholars and citizens alike. How then was the country’s Supreme Court able to revolutionize its constitutional system in one tangled decision? The fascinating answer is that the Court succeeded by relying both on legislative enactment and more heavily on comparative constitutional experience to suggest that principles of democracy, the rule of law, and respect for individual rights require a formal Constitution.

This is the story of Israel’s version of the U.S. Marbury v. Madison decision. The story, detailed in this article, presents three conflicting yet complementary traditions: monism in the British-style; dualism in the American-style; and foundationalism in the German-style. It is a story of how and whether legislative self-entrenchment may create a higher norm. It reflects a dualist approach, despite the lack of a distinct legislative track for the formation of constitutional law. It reveals aspirations for law higher than even the Constitution in the form of foundationalism. This article’s narrative of Israel’s constitutional story throws new light on recent American debates regarding the constitutionality of legislative entrenchment; the exploitation of comparative constitutional law to decide one’s own constitutional dilemmas; and the legitimacy of judicial constitution-making.

Keywords: constitutional revolution, judicial review, parliamentary sovereignty, popular sovereignty, entrenchment, monism, dualism, foundationalism, Israel, CJ Barak, United Mizrahi Bank, Marbury v. Madison, manner and form, Basic Laws, Constituent Authority, evolution, constitutional change

Suggested Citation

Weill, Rivka, Sui Generis? The Hybrid Israeli Constitutional Experience (May 8, 2009). Available at SSRN: https://ssrn.com/abstract=1401360 or http://dx.doi.org/10.2139/ssrn.1401360

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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