The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought

Abstract

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analyzed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.