The Living-Dead

71 Pages Posted: 27 Sep 2016

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: 2015

Abstract

The Israeli legislature (the Knesset) applies continuity to pending bills on a regular basis. In spite of changes that occur in the composition of its members, the Israeli legislature operates de facto as a "continuing body." Israel enacted a Continuity Law in the 1960s to increase legislative efficiency and enable the legislature to continue debates on bills pending from the previous legislature. By now, the Israeli society is accustomed to the phenomenon of continuity in legislative deliberations. However, some of the founding fathers in the 1960s understood the importance of legislative discontinuity and fought vigorously to protect it. Parliament's debates in those formative years on the subject of continuity are among the most fascinating ever held by the membership on constitutional issues. This Article attempts to convey the "atmosphere" of the discussions on these different perspectives and to reveal the behind-the-scenes dynamics as they emerge from the files in the State's archives. In fact, the core of the debate was on the nature of the legislature.

This article further shows how Israel's comparative precedents in support of continuity paradoxically do not lend such support. This story is fascinating as it reveals how comparative law played an influential role in Israel in the 1960s and affected the political actors’ decision regarding continuity.

This article finally argues that Israel's Continuity Law is incompatible with representative democracy. Continuity diminishes the significance of Israeli elections. It undermines accountability for the laws that are passed. It infringes upon the right of Members of Knesset (MKs) to fully participate in proper legislative processes. Continuity Law thus establishes a formalistic, majority-based democracy in Israel. The article demonstrates how the Continuity Law has also strengthened the government's standing in the legislature and weakened the power of individual members, factions, and even legislative committees, by giving the government tools to achieve a majority in manipulative and artificial ways. This article argues that the Israeli rule of continuity, formulated as an ordinary law, does not pass constitutional muster. Even if formulated as part of the Constitution, it would be advisable to condition the applicability of continuity to specific cases on a broad consensus of MKs.

Keywords: 'continuing body' theory, the principle of legislative discontinuity, carryover of bills, lameduck legislatures, caretaker government, legislative turnover, the mandate principle, legislation by reference, concurrent legislative consent, legislative vetogates, filibuster

Suggested Citation

Weill, Rivka, The Living-Dead (2015). Fordham International Law Journal, Vol. 38, No. 2, 2015. Available at SSRN: https://ssrn.com/abstract=2816448

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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