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
Introduction
1 Theoretical Framework: Constitutional Democracy and Courts
1.1 Democracy – A Mere Rule of the People?
1.2 Rule of Law and Constitutions
1.3 Constitutional Courts
2 The ‘Revolution’: Israel as a Constitutional Democracy?
2.1 Israel before the ‘Revolution’
2.2 ‘Revolution’: A Drama in Two Laws
3 The ‘Constitutional Revolution’ – A Myth
3.1 Still: No Protection of Human Rights
3.2 Still: No Written and Rigid Constitution
3.3 Implications for the Political System
4 Acceptance of the Myth
4.1 Responses from the Scholarly Debate
4.1.1 Agreement
4.1.2 Critique
4.2 Responses from the Political Arena
4.2.1 Support for the ‘Revolution’
4.2.2 Opposition to the ‘Revolution’
5 The Role of the Court
5.1 Visual Prominence: Judicial Review and Litigation of Politics
5.2 Institutional Weakness
5.3 Effective Weakness: Rulings and Their Effects
5.4 The Court as Mediator of Values
5.5 Upholding the Mantra of Democracy
Research Objectives and Key Themes
This dissertation examines the role of the Israeli High Court of Justice within the political system following the 1992 Basic Laws. It challenges the widely held perception of a "constitutional revolution," arguing that the court's power remains limited and that it functions primarily as a mediator between particularistic Zionist values and universalistic principles, thereby stabilizing an essentially undemocratic political framework.
- The myth of the "constitutional revolution" in Israel.
- The distinction between formal and substantive democracy.
- The institutional and effective weaknesses of the High Court of Justice.
- The court's role in legitimizing government policies.
- The ongoing conflict between the Jewish state identity and democratic values.
Excerpt from the Book
3 The ‘Constitutional Revolution’ – A Myth
The assumption, however, that the whole system had changed in 1992, and that the court had gained new powers, is highly questionable. As Mandel rightly asks, “if Israel was not a democracy in 1991, can it be true that the entrenchment of a few rights in the Basic Laws and their recognition by the courts brought us out of the dark ages of non-democracy, while everything else – economic, social, political, religious and racial relations – remained essentially the same?” Over a decade after the alleged fundamental change it is evident that the Israeli political system, and the role of the Supreme Court within it, must be analysed in terms of continuity, not of change – and definitely not in terms of revolutionary change.
Summary of Chapters
Introduction: This chapter outlines the thesis that the High Court's power has been overestimated and introduces the analytical framework regarding the alleged "constitutional revolution."
1 Theoretical Framework: Constitutional Democracy and Courts: This chapter defines the requirements for a substantive democracy, emphasizing the necessity of the rule of law and the role of an independent constitutional court.
2 The ‘Revolution’: Israel as a Constitutional Democracy?: This chapter describes the historical background of the Israeli constitutional structure and outlines Chief Justice Barak's interpretation of the 1992 Basic Laws.
3 The ‘Constitutional Revolution’ – A Myth: This chapter refutes the existence of a revolution by demonstrating that human rights protection remains limited and that Israel lacks a rigid, written constitution.
4 Acceptance of the Myth: This chapter analyzes how both scholarly and political circles erroneously adopted the "constitutional revolution" narrative, despite its lack of factual basis.
5 The Role of the Court: This chapter defines the court as an essentially weak actor that mediates between value systems and maintains the democratic facade of an ethnocratic state.
Keywords
High Court of Justice, Israel, Constitutional Revolution, Aharon Barak, Basic Laws, Constitutional Democracy, Judicial Review, Rule of Law, Substantive Democracy, Ethnocracy, Human Rights, Zionism, Political System, Legitimacy, Judicial Activism
Frequently Asked Questions
What is the core argument of this dissertation?
The author argues that the power of the Israeli High Court of Justice has been significantly overestimated and that the 1992 "constitutional revolution" is essentially a myth.
What are the central thematic areas discussed?
The study focuses on the nature of democracy in Israel, the role of the judiciary, the legal impact of the 1992 Basic Laws, and the court's function in mediating between national and universal values.
What is the primary objective of the work?
The objective is to analyze whether the High Court of Justice acts as a constitutional court within a "constitutional democracy" and to determine if the 1992 laws fundamentally changed Israel's political structure.
Which scientific methodology is used?
The paper employs a critical political and legal analysis, synthesizing existing scholarly debates, case law, and historical documentation to evaluate the impact of judicial rhetoric versus reality.
What does the main body of the text cover?
It covers the theoretical foundations of constitutional democracy, the historical context of Israeli law, the critique of the "revolutionary" narrative, the reception of this myth in academia and politics, and an analysis of the court’s actual institutional and effective influence.
Which keywords characterize this work?
Keywords include High Court of Justice, Constitutional Revolution, Substantive Democracy, Israel, Judicial Review, and Ethnocracy.
How does the author characterize the court's role after 1992?
The author suggests the court acts as a mediator between particularistic Zionist values and universal principles, which effectively serves to stabilize the political status quo.
Why does the author consider the 1992 laws a regression in some aspects?
The author argues that the emphasis on "Jewishness" in the Basic Laws, combined with a lack of full equality for Arab Israelis, undermines the potential for a truly substantive democracy.
- Quote paper
- Johannes Müller (Author), 2004, Israel as a constitutional democracy? The "Constitutional Revolution" and the High Court of Justice in the political system of Israel, Munich, GRIN Verlag, https://www.grin.com/document/50278
