A "Constitution" Without A Constitution - The Israeli Experience

Abstract

A written comprehensive constitution, usually defined as ” formal”, is not the only form the constitution might take. There are unwritten constitutions, such as in the UK and Israel, that include laws prescribing constitutional principles and landmark decisions of the Supreme Court. In the Israeli legal system, which has neither a written constitution nor an entrenched bill of rights, human rights guarantees are incorporated into the constitutional arena by a presumption developed by the Supreme Court based on the Israeli Declaration of Independence, which states that the country will be established “on the foundation of freedom”. In doing so, the court followed the “Background Understanding Model”. Under this model, which is similar to the interpretive theory in the USA, there is a general understanding of civil rights, human rights, the rule of law, separation of powers, and other fundamental principles. In March 1992, a significant event occurred in the Israeli constitutional arena. The Knesset (The Israeli Parliament) enacted the Basic Law Freedom of Occupation and Basic Law Human Dignity and Liberty. These laws formed a “Constitutional revolution” and imposed restrictions on the power of the Knesset to pass any law it pleased. In enacting those Basic Laws, Israel has joined the family of nations that believe that limitations must be set on the right of a majority to derogate from fundamental human rights. However, these fragile achievements might be under constant threat.