Who needs a constitution? In defense of the non-decision constitution-making tactic in Israel.

• Author: Segev, Joshua

What ought to be the heads, the hearts, the dispositions, that are qualified, or that dare, not only to make laws under a fixed constitution, but at one heat to strike out a totally new constitution for a great kingdom, and in every part of it, from the monarch on the throne to the vestry of a parish? But--"fools rush in where angels fear to tread."--Edmund Burke (1)

1. INTRODUCTION

   People in Israel disagree. They disagreed in the past; they have disagreed about the past. They disagree about the future; they will probably disagree in the future. This Article will visit Israel's near and far constitutional history, focusing on disagreements, controversies, and disputes as the central feature of Israel's constitution-making. This feature, I will argue, stands behind Israel's failure to enact a formal constitution in the formative years. Furthermore, I will argue that Israel still does not have a formal constitution, notwithstanding the conventional wisdom in Israel's legal community that since the "Constitutional Revolution" such a formal constitution exists. (2) Disagreements and disputes prevent Israel from acknowledging and making real and substantial progress in constitution-making. This Article, however, argues that one should not shed tears over Israel's lack of a formal constitution. The constitutional tactic chosen by Israel's founding fathers was the "decision not to decide," which fulfilled the goals and needs that impel nations toward formal constitution-making in the first place. Continuing to fulfill those same goals and needs has been endangered by attempts over the past decade by political and judicial entities in Israel to establish a formal constitution.

   In order to substantiate my claim, this Article will focus on two landmark periods of Israel's constitution-making process. They are considered by many to have had crucial consequences for Israel's constitutional arrangements. Part I examines disagreements and constitution-making in the formative period of the state of Israel. First, it describes the political landscape of the Zionist movement before the establishment of the State and the disagreements and controversies that characterized it. This Article argues that Israel's failure to enact a constitution was the direct consequence of these and other disagreements that can be divided into two categories: substantive disagreements and institutional disagreements. Often these two categories of disagreements are intertwined. The founders of the State of Israel transcended the problem posed by this Gordian knot of disagreements by adopting the constitutional tactic of "deciding not to decide." (3) This tactic fulfilled two main goals: fair and stable cooperation based on democratic foundation and the protection of human rights. Part II examines disagreements regarding and attempts at constitution-making since the 1980s. First, it describes Israel's politics in the 1980s, which were characterized by continued moral, political, and cultural disagreements. Israel's constitution-making was shaped by these disagreements, and public representatives continued clinging to the tactic of deciding not to decide basic constitutional issues. In addition, this Article argues that the enactment of the two new Basic Laws not only did not constitute a deviation from the tactic of deciding not to decide foundational disagreements about Israel's constitutional structure, but rather constituted a direct implementation of this tactic. Later on, I will examine how the decisions of the Israeli Supreme Court declaring that Israel has a formal constitution in the conventional sense and the efforts by different political entities to establish a constitutional regime in its American version points to the adoption of a new constitutional tactic: "the decision to decide." This Article argues that the new constitutional tactic thwarts the fair social cooperation among Israel's political factions and impedes the protection of human rights. Finally, this Article argues that the attempt to push the Israeli society to acknowledge the existence of a formal constitutional regime has failed. This failure should be traced to those disputes that keep us from agreeing that a formal constitution exists and that point to the conclusion that deciding not to decide is still the best interpretation of Israel's constitutional arrangements.

   Before discussing all these issues, it should be noted that the scope of topics analyzed in this Article is vast and the number of academic writings and judicial decisions having to do with Israel's constitutional arrangements after what was called the "Constitutional Revolution" are immense and continue to grow apace. The need to keep this Article within reasonable bounds, on the one hand, and the desire to present an overall picture of the nature of Israel's constitution-making and its constitutional arrangements, on the other, caused me to organize my argument around two periods: the formative period and the period since the 1980s.

2. DISAGREEMENTS AND ISRAEL'S CONSTITUTION-MAKING IN THE FORMATIVE PERIOD

   1. Disagreements as Central Features of Jewish Politics in Israel and Abroad

      In fact, it seems that disagreement has always been the "natural" condition of the Jewish people. (4) "The most characteristic feature of Talmudic law," wrote the late Haim Cohn, Supreme Court Judge, "is the divergence of opinion: there is hardly any legal problem on which the opinions of scholars are not divided." (5) Most notable among the disputes in the Talmud are the controversies of Beth Hillel (the House of Hillel) and Beth Shamai (the House of Shammai). The Talmud speaks of the conflicting views of Beth Hillel and Beth Shamai: "both are the words of the living God," honoring their fruitful contributions to the development of Jewish law. (6) However, equally well-known in the Jewish heritage are the negative consequences of disagreements, controversies, and disputes. Such is the lesson taught in the Talmud regarding the destruction of the Second Temple. According to the Talmud, the reason for the destruction of the Temple, in the year 70 by the Roman legions, was that the Jewish People were guilty of harboring baseless hatred towards one another while constantly engaging in meaningless and trivial disputes. (7)

      The destruction of the Second Temple and the displacement of the Jewish People in the "Galut" (exile) were not the end of the Jewish people and by no means the end of inner disagreements and controversies. Although they all share a faith in their eventual redemption and the hope to return to Eretz Israel (the land of Israel), controversies have only grown while living in the diaspora. First, in the absence of any superior and final authority--civil, religious, or otherwise--that could have unified the Jewish People, every Jewish center adopted its own Jewish customs, its own Jewish practices, and its own interpretations of the Torah and the Halacha. (8) Second, although many Jews have experienced self-government in many foreign territories by managing their own self-contained political systems, the fact was that there was no obligatory final authority even within every Jewish community. (9) This state of affairs was the result of the plural social, ideological, and religious composition of the Jewish communities in the Galut. (10) Hence, leaders in the traditional Jewish communities have always been subject to challenge, and no authority was final.

      Zionists, the proponents of a Jewish state in Eretz Israel, have revolted against age-old patterns of Jewish existence and aspired to establish "normal" social, political, cultural, and occupational patterns that would make Israel more like other nations. (11) They have found Jewish traditional politics to be powerless, passive, and divisive, infected with attitudes of disrespect towards authority. (12) The leaders of the Zionist movement have recognized the need for unity and the need to overcome disagreements and controversies among the different factions, while despising the fact that even during national emergencies, the Jewish People were incapable of uniting. (13) However, although one common denominator exists among all Zionists--"the claim to Eretz Israel as a national homeland of the Jews and as the legitimate focus for the national self-determination of the Jews"--and although the leaders of the Zionist movement recognized the need for unity, there was no uniform Zionist ideology. (14) Rather, one finds "a plethora of ideologies: General Zionism, National-Religious Zionism, Labor Zionism, [and] Revisionist Zionism." (15) The struggles between the different worldviews, the different varieties of stands, and the different prescriptions of Zionism were over the character of Israel-the new state to be--in terms of its most fundamental values and aspirations. It is commonplace to describe the rift within the different parties of Zionism as motivated by a tension between opposing forces inherent to the Zionist idea. For example,

      There were some inherent contradictions among the basic elements of Zionist ideology, the most blatant of these being between the value of Jewish particularism entailed in the aspiration of creating a Jewish nation-state and universal values related to the humanist and liberal traditions, which inspired the founding fathers of Zionism. (16) While the compatibility between the democratic and Jewish nature of the State has been and is a cornerstone in the Zionist ideology of all the Zionist political factions, these factions barely agree on the values, principles, and goals that should constitute the new society. (17) Furthermore, the different factions disagreed also over the appropriate path, the means, and the rate of advancement toward the goal of establishing a Jewish state in Eretz Israel. (18) On the eve of the establishment of Israel, it was clear to all that the Zionist movement did not cure Jewish politics of divisions...