A Constitutional Democracy?
The ‘Constitutional Revolution’ and the Role of the
High Court of Justice in the Political System of Israel

Author: Johannes Sebastian Müller

Programme: MA Near and Middle Eastern Studies

This dissertation is submitted in partial fulfilment of the requirements for the
degree of MA Near and Middle Eastern Studies of the School of Oriental and
African Studies (University of London).

10.09.2004

 

Abstract
This dissertation discusses the role of the Israeli High Court of Justice within the political system of Israel after the enactment of two Basic Laws in 1992. The main thesis is that the power of the court has been much overestimated. In particular, the large assumptions connected to the ‘constitutional revolution’ that many saw in the enactment of the 1992 laws must be refuted. This paper argues that the alleged ‘revolution’ was a myth, and that fundamentally nothing much has changed. The political system largely remained untouched by the 1992 laws. This dissertation defines the role of the court as a mediator between particularistic and universal values rather than promoting universal human rights, or protecting minority rights. In fact, the role of the High Court must be regarded as stabilizing an essentially undemocratic system by legitimising government policies and by supporting a discourse that maintains the democratic façade of the system. The enactment of a constitution has not been promoted by Chief Justice Barak’s activism, and indeed has made the enactment of a constitution much less likely.

Table of Contents

Abstract ... 2

Table of Contents ... 3

Acknowledgements ... 4

Introduction ... 5
1 Theoretical Framework: Constitutional Democracy and Courts ... 8
1.1 Democracy – A Mere Rule of the People? ... 8
1.2 Rule of Law and Constitutions ... 10
1.3 Constitutional Courts ... 12

2 The ‘Revolution’: Israel as a Constitutional Democracy? ... 15
2.1 Israel before the ‘Revolution’ ... 15
2.2 ‘Revolution’: A Drama in Two Laws ... 17

3 The ‘Constitutional Revolution’ – A Myth ... 20
3.1 Still: No Protection of Human Rights ... 20
3.2 Still: No Written and Rigid Constitution ... 23
3.3 Implications for the Political System ... 27

4 Acceptance of the Myth ... 30
4.1 Responses from the Scholarly Debate ... 30
4.1.1 Agreement ... 30
4.1.2 Critique ... 32
4.2 Responses from the Political Arena ... 33
4.2.1 Support for the ‘Revolution’ ... 33
4.2.2 Opposition to the ‘Revolution’ ... 34

5 The Role of the Court ... 37
5.1 Visual Prominence: Judicial Review and Litigation of Politics ... 37
5.2 Institutional Weakness ... 40
5.3 Effective Weakness: Rulings and Their Effects ... 41
5.4 The Court as Mediator of Values ... 44
5.5 Upholding the Mantra of Democracy ... 47

Conclusion ... 50

Bibliography ... 52

Acknowledgements
You can never finish a thesis alone. It takes a lot more than researching, structuring and writing – which is my own work. 
[...]

Introduction
The power of the Israeli High Court of Justice has been much overestimated. Almost unanimously – by journalists, voters, politicians and scholars alike – the High Court has been viewed as a powerful actor. Its advocators claimed it could effectively check government policies in order to protect universal human rights and minority rights, while its critics held that it would allow the minority to tyrannise the majority. This widely acknowledged perception, however, cannot be upheld.

Central to my discussion will be an analysis of the far reaching assumptions of Chief Justice Aharon Barak and others who argue that in 1992 the Israeli state experienced a “constitutional revolution”¹. This ‘revolution’ has allegedly turned Israel into a “substantial” and “constitutional democracy”², thus fundamentally amending the power of the High Court, and indeed changing the entire social and political structures. I will therefore discuss the extent to which the Israeli High Court of Justice can be regarded as a constitutional court acting within a ‘constitutional democracy’.

In a first chapter, I will introduce the theoretical framework of a constitutional democracy. In this chapter, I will outline the conditions that constitute such a political framework that is based on the rule of law, and outline the role of a constitutional court within this framework. In a second chapter, I will show that Barak’s conception of the alleged ‘constitutional revolution’ very much fitted the concept of a constitutional democracy, and I will outline the changes that Barak perceived to have occurred. In a third chapter I will then show that the alleged changes did not occur, and that the political system of Israel after 1992 should largely be looked at in terms of continuity, rather than in terms of change, and certainly not in terms of ‘revolutionary’ change. I will thus argue that the ‘constitutional revolution’ must be regarded as a myth. In a fourth chapter, I will then present the responses to his revolution, and will show that the scholarly debates, as well as the political debates, largely missed the point – namely, that the ‘constitutional revolution’ did not take place, and that the role and the power of the court have not changed. In the fifth chapter of this dissertation, I shall present the implications of this myth, both for the political system and the court. I shall also redefine the role of the court, and I will argue that the court must be regarded as an essentially weak actor, and that consequently the role of the court is determined by its constant mediating between the particularistic values of the Zionist framework and the universalistic values obtained from its (self-) image as defender of democracy. In terms of its role within the political framework, Barak’s ‘revolution’ rhetoric must actually be considered counterproductive for the purpose of establishing a substantive constitutional democracy as it legitimises undemocratic government policies and enables the continuity of the mantra ‘the only democracy in the Middle East’.

I will conclude by summarising the findings of this dissertation briefly, and I shall discuss the possibilities for the future of the court within the political system of Israel.
 

1 Constitutional Democracy and Courts

1.1 Democracy – Mere Rule of the People?
In terms of democracy and democratisation, the last century (or probably rather its second half) appears to have been one of the most successful ones. Huntington finds that there has been a “Third Wave” of democratisation after 1974, “an important – probably the most important – global political development”³. The Freedom House, self-appointed “clear voice for democracy and freedom around the world”⁴, joins Huntington and proclaims a “dramatic expansion of democratic governance”⁵ in the 20th century, and quickly terms it the “Democratic Century”⁶.

[...]

1 Barak 1992; Edelman 2000; Neuer 1998; et al.

2 Barak 1992, 1998; Edelman 2000; Neuer 1998; et al.

3 Huntington 1991; p. xiii.

4 Freedom House (2004).

5 Freedom House (1999).