Constitution or the Rule of Conscience? How the Psychology of Zionism Explains Israeli Law

Abstract

Why doesn’t the State of Israel have a written constitution? This is a notable question because every single other democracy in the world has one, with only four exceptions. Moreover, Israel and its political leaders were fully on track to develop and implement a written constitution, in accordance with UN Resolution 181 of November 29, 1947, which asserted that “the Constituent Assembly of each state (Jewish and Arab) shall draft a democratic constitution for its state.” Just six months later, on May 14, 1948, the Israeli Declaration of Independence was unveiled, and it made explicit reference to a “Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948.” Thus, from a legal standpoint, both the UN Resolution setting out the conditions for the creation of a future Jewish state and the Israeli declaration of statehood itself make clear that a written constitution was to be an essential part of the political regime of Israel. Additionally, Nir Kedar points out that the Provisional State Council (Moetzet Ha’am), Israel’s interim parliament which served before the first Knesset elections were held in 1949, passed the Transition Act (Chok Hama’avar), which formally assigned the task of drafting the written constitution to the incoming Knesset (3). Alas, it was not to be. Arguments immediately broke out between pro and anti-constitution political camps, and the matter was only finally resolved by the 1950 Harari Proposal, which pumped the brakes on the constitutional drafting process by recommending the document be compiled “one section at a time (ibid 4).” Over the course of the seven decades since then, Israel has passed a series of Basic Laws -- fundamental laws addressing the powers of the Knesset, the role of the President, and the protection of individual rights, among other things – while steadfastly neglecting to draft a written constitution. (from Introduction)