The trouble with having no constitution
RENEWED fighting has erupted again between Israel and Hamas, endangering a ceasefire instituted after an 11-day war last month.
The conflict in Gaza is an early test of Israel’s new coalition government. Recently, parties across the political spectrum united to remove Israel’s scandal-plagued PM Benjamin Netanyahu from power, ending a twoyear political crisis, though he may manoeuvre his way back into power.
While conducting dissertation research on the relationship between religion and state in Israel, I traced Israel’s chronic instability to what I believe is its core: unlike most countries, Israel does not have a constitution.
Constitutions constrain the power of governments by defining, in precise terms, who has what rights, what rights form the basis of legal decisions, and how political power is dispersed among institutions.
Israel is governed by a changeable, ever-growing body of what are called “basic laws” – Chukei Ha-Yesod in Hebrew. The basic laws were passed individually over the past 73 years, beginning with one two-page law that described the make-up of Israel’s legislature, the Knesset, and citizens’ voting rights. Today, Israel is governed by a 124-page collection of 13 laws. Although the basic laws outline a vision of democratic rights, they remain, to paraphrase the late legal scholar Ruth Gavison, “unanchored”.
This allows Israel to maintain an ambiguous stance on key issues central to a nation’s identity.
Israel has never officially defined the relationship between religion and state. Is Israel founded on the Jewish religion? Or is it a secular state that is home to Jews, with non-Jewish minorities?
Israel also waffles on the relative power of the legislature and judiciary. The Israeli Supreme Court has used this constitutional ambiguity to retroactively subject new legislation to judicial review. Legislators in the Knesset have tried to weaken the court’s authority over their lawmaking. And incoming Prime Minister Naftali Bennett’s Yamina party, for example, has previously attempted to pass legislation allowing the Knesset to override judicial decisions.
Even Israel’s official borders aren’t defined. It maintains it has sovereignty over the West Bank territory but, officially, the West Bank is not part of Israel. So Palestinians living there do not have rights under Israeli law, as they are not Israeli citizens.
Israel is not the only parliamentary democracy without a formal constitution. The UK doesn’t have one, but it has a large body of laws accumulated over centuries of political conflict. Israel, founded in 1948, does not have such a history to fall back on.
Many of its problems are common to relatively young democracies. The early US grappled with many such problems. But rule of law generally prevails in the US, and democracy progresses, because both the courts and legislators defer to a central document, the US Constitution.
The Netanyahu government attempted to settle some long-running disagreements about Israel’s identity.
In 2018, the Knesset passed a basic law naming Israel the “nation-state of the Jewish people”. This effort, to settle a central identity question, pleased almost nobody. Left-wing and Arab Israelis objected to the tacit downgrading of Arabs to second-class status, while religious Jewish groups found the law too secular.
Divisive political gambles like this became commonplace in the late stages of Netanyahu’s rule. As coalition politics became increasingly fragile, Netanyahu spiralled into what political scientists call “logrolling” – using policy trade-offs among parties in exchange for political support.
This was especially the case in regard to religion, as Netanyahu bartered policies appeasing the orthodox Jewish groups that kept him in power. In 2018, his coalition passed new legislation enforcing previously symbolic laws, such as restrictions on businesses operating on the Sabbath. It was a punishing move for cities like Tel Aviv, with large secular populations.
Similarly, Netanyahu’s policy of encouraging Jewish settlers to move to the West Bank – and other occupied Palestinian territories and build cities – was more a political strategy than religious fervour. His aggressive support for Jewish nationalism increasingly alienated Israel’s Arab population, who have few legal avenues to challenge their treatment.
Minorities are mistreated and even subjugated in countries that have constitutions, too. But constitutions give them legal pathways to challenge discrimination. The Netanyahu era showed that strategic politicians can exploit Israel’s constitutional vacuum to maintain power well beyond their popular mandate. These destabilising issues will continue as a new government takes the reins in Israel.