From promise to retrenchment: On the changing landscape of Israeli constitutionalism

Abstract

Israeli constitutionalism has long interested comparative constitutional law scholars, whether due to its geopolitical status, the Israeli-Palestinian conflict, its internal divisions, or its unique constitutional evolution. Unlike many other countries that have ratified constitutions after the Second World War, Israel was established as a parliamentary democracy, with an explicit intention to ratify a constitution at a later stage. This did not happen. Instead, it underwent a "constitutional revolution"announced by its Supreme Court. Fitting a revolution, much of comparative constitutional law scholarship has focused on this pivotal moment. The articles in this symposium depart from the scholarship focused on that moment. They seek to critically understand what has become of Israeli constitutionalism in the past decade. In this introduction, we highlight several transformations and features which we believe are essential if one is to understand the extant constitutional order in Israel. These should be understood as background conditions against which Israeli constitutionalism is operating. They include the strengthening of judicial review alongside rising political resistance to the Court's power; populism in political discourse targeting rule of law institutions; the erosion of individual rights alongside the strengthening of nationalist elements; and increasing divisions inside Israeli society. These challenge the idea of a successful constitutional revolution in terms of its inherent promise to better protect individual rights and safeguard the rule of law. In describing these features, we seek to situate the Supreme Court, judicial review, and the legal-constitutional order generally, in the larger sphere of Israeli society and politics.