Israel's Dilatory Constitution

Sager, Samuel

doi:10.2307/839169

Cited by 2 publications

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“…Scholars usually point out that the reasons for the failure to adopt a constitution include (Cohen 2003) the following: the heritage of the British Mandate, which did not include constitutionally protected human rights; the socialist and illiberal perceptions of many of the Zionist leaders; Mapai's desire to safeguard its coalition with the Religious Front; and Mapai's desire for "unhampered freedom to govern" (Sager 1976:93). Yet the arguments against the adoption of a written constitution included the following (Cohen 2003;Goldberg 1998;Kohn 1954;Sager 1976;Sapir 1999;Shapira 1993): (1) Only a minority of the Jewish people reside in Israel, and the state does not have the right to tie the hands of the Jewish people with a rigid constitution; (2) the state is in its formative years with an ongoing immigration of thousands of Jews, and there is a need for unification before a constitution can be adopted; (3) the debate over a constitution requires addressing the most fundamental issues in the life of the state and the people. These kinds of discussions might endanger the unity of the people and lead to a "cultural war" between the secular and religious parties; (4) as exemplified by the British experience, the rule of law can be maintained and the freedoms can be secured without a written constitution; and (5) religious parties further claimed that the Torah is the constitution of the Jewish people and there is no need for another constitution.…”

Section: The Absence Of a Written Constitutionmentioning

confidence: 99%

The Legal Structures of Subordination

Sultany¹

2017

Israel and Its Palestinian Citizens

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The law is a potential site for socio-political contestation. Legal systems may be open to competing interpretations and applications, because they are not necessarily coherent, and abstract legal concepts are not necessarily determinate. Nevertheless, the ability of legal actors to destabilize (or stabilize) legal categories and expose the incoherence of the legal system (or to present it as coherent) depends on the availability of maneuvering space and on the actors' willingness and ability to do the necessary work to achieve these effects (Kennedy 2008). Therefore, in order to examine the law's role in a particular country, one has to take into account not only the letter of the law, but also its judicial interpretations and applications as well as its effects in a particular context. Israeli law, the subject of this chapter, is not monolithic. Zionist ideology influences Israeli law, but ideologies are rarely homogenous, and different actors within legal systems strive to advance their own conceptions and interests. Yet, an examination of the role of the legal system since Israel's inception reveals that far from significantly challenging power structures, Israeli law effectively created a hierarchy among Israeli citizens. As I show here, it generally advanced, justified, and perpetuated a separate and inferior status for the Palestinian citizens in Israel. At the same time, it granted the Israeli regime an aura of legitimacy by containing its practices under the "rule of law." Ultimately, although the legal system has a moderating effectbecause it often pushes the political system toward the political centerthis center itself has been moving toward the right-wing continuum of the Zionist movement. The chapter is organized as follows: Part I examines the conventional story about the rise of constitutionalism and judicial activism in Israel. I question the analytical utility of this story in evaluating the role of law in Israeli society. The chapter shows that, at the legal structures of subordination

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Section: The Absence Of a Written Constitutionmentioning

confidence: 99%