The Foundation for Constitutional Democracy

Some secularists believe that if Israel were to adopt a Constitution based on Jewish principles and values, the country would succumb to theocracy or revert to the Middle Ages. They regard the Middle Ages as the “Dark Ages,” even though that period of European history can boast of some of the greatest intellectual luminaries. Suffice to mention Saadia Gaon, Rashi, Alfasi, Maimonides, Nachmanides, Judah Halevy.

Despite pogroms, expulsions, and Inquisitions, Jewish philosophy thrived in the Middle Ages, and seldom has there been such creativity in Jewish law. Jewish communities throughout Europe governed themselves by their own civil and criminal laws. Indeed, there are recorded cases of gentiles applying to Jewish courts to resolve their own disputes! (more…)

Israel’s Chief Justice Aaron Barak: Part I

Back in March 1992, the Knesset enacted two basic laws, Basic Law: Human Dignity and Freedom, and Basic Law: Freedom of Occupation. According to Justice Aaron Barak, who at the time was not president of Israel’s Supreme Court, these two Basic Laws were nothing less than a “constitutional revolution.” The first mentioned Basic Law was passed by a vote of 32-21, that is, with less than half the Knesset voting, while the second passed by the underwhelming vote of 23-0.

Well, you see dear reader, there was an impending Knesset election, and Israel’s MKs were preoccupied with more important matters, like saving their seats. Yet these Basic Laws are supposed to be part of Israel’s so-called “emerging constitution.” It’s been emerging for decades! Emerging or not, can anyone imagine amending a country’s constitution, its fundamental law, by a mere 20% of its legislature, representing, we may suppose, a mere 20% of that country’s population! Would anyone take such a amendment seriously, or feel that it should have the status of a fundamental law superior to ordinary legislation? (more…)

Introduction

Jewish statesmanship does not exist in Israel. Jews do become prime ministers, as did Benjamin Disraeli and Pierre Mendes France. But no sober person expected Jewish statesmanship from these English and French Jews. No one expected them to incorporate Jewish laws and principles into the legislation of their respective countries, or to pursue foreign policies inspired by distinctively Jewish goals. These Jews did not think like Jews but like Gentiles. Much the same may be said of the prime ministers of Israel. If statesmanship be defined as the application of philosophy to action, then Jewish statesmanship is the application of Jewish philosophy to action. James Madison and Alexander Hamilton were architectonic statesmen. They studied the greatest philosophers, those who addressed themselves to such questions as “What is man?”, “How should man live?”, and “What kind of government is most conducive to human excellence?” A Jewish philosopher will then ask: “What is a Jew?”, “How should Jews live?”, and “What kind of government is most conducive to Jewish excellence?” (more…)

Given the increasing number of Israel’s Arab citizens, Israel’s present form of government is not viable and will not see much of the 21st century. Hence the present writer has drafted a Jewish Constitution which, if implemented, would enable Israel to pursue its national purpose with vigor and dignity.

Judging from various sociological studies, such a Constitution would win the support of a substantial majority of Israel’s Jewish population. Spokesmen across the political and religious spectrum recognize that Israel’s present system of government is a monstrosity. (more…)

Is it not remarkable that Zionists and Zionist organizations in Israel and abroad do not question, on institutional grounds, the propriety of Shimon Peres offering Yasser Aafat or his deputy Abu Ala a Palestinian State Now (or ever for that matter)?

Before enlarging on this subject it should be borne in mind that the Peres-Abu Plan would return Israel back to the 1967 borders! It would therefore place in question, if not terminate, the Jewish presence in such Jerusalem neighborhoods as Gilo, Ramot, French Hill, Pizgat Ze’ev, Neveh Ya’acov, and East Talpiot. The status of the hundreds of thousands of Jews in these areas would be placed in jeopardy. (more…)

Professor Paul Eidelberg

[Based partly on a paper presented at the American Political Science Association annual conference in Washington, DC on August 31, 1997, and partly on the author’s book Jewish Statesmanship: Lest Israel Fall (2000)]

Introduction

To show why Israel needs—and desperately needs—a Constitution, it will be necessary to expose the fatal flaws inherent in her present form of government. Before doing so, let us anticipate objections that any proposed Constitution may arouse at this moment in Israel’s history.

It may first be said that Israel is so faction-ridden that a Constitution, however desirable, is utterly impractical. Moreover, so imminent are the dangers confronting Israel that to place a Constitution on the public agenda may be deemed a mischievous distraction. Hence the burden of justifying, let alone of implementing, a Constitution for the State of Israel in the present juncture of domestic and international affairs appears insuperable. (more…)

by Ari Shavit
Ha’aretz Magazine 12 November 1999

Readers unfamiliar with the style of speech typical of the Israeli judicial system might think that the views expressed by Prof. Ruth Gavison in this interview do not deviate much from routine criticism. But her restrained tone, the understatement—so foreign to the usual Israeli dialogue—cannot conceal the fact that Gavison is assailing, with unprecedented ferocity, the attorney general, the State Attorney’s Office and the Supreme Court. The attack is all the more striking because it comes from one of the country’s senior jurists and leading experts in Israeli law. (more…)

Dec. 15. 1999 Arutz-7

The Knesset granted Supreme Court Chief Justice Aharon Barak a significant victory last night, when it endorsed the need for judicial review. MKs Dan Meridor (Centrist), Amnon Rubenstein (Meretz), and Ophir Pines-Paz (Labor) sponsored a resolution stipulating that the Knesset recognizes the democratic need for judicial review by the Supreme Court on laws passed by the Knesset, if they are in opposition to Basic Laws. The 36-27 vote was a reversal of a resolution accepted by the Knesset two weeks ago—by a 14-10 vote—calling on the Court not to interfere with the status quo in matters of politics, religion or values.

Former Justice Minister Meridor, one of the sponsors, said that it is “less a matter of judicial activism and more of parliamentary passivism,” and that the Knesset will now be forced to take up the slack and legislate a Constitution for the country. Deputy Education Minister Sha’ul Yahalom explained why the NRP supported the resolution: “Although the specifics of the proposal are problematic in terms of our principles, yet the issue has become a focal point of the clash between hareidim and Zionism, and we therefore wanted to express symbolically and declaratively our Zionistic outlook on the issue.”

V - A Critique of the Reichman Constitution
Prof. Paul Eidelberg

Introduction

The so-called Reichman Constitution (hereinafter, the “Constitution”) was published in 1988 under the chairmanship of Uriel Reichman, professor of constitutional law at Tel Aviv University. The drafting committee consisted of ten academics, none of whom was a rabbi. The committee consulted more than twenty other academics on various constitutional issues. Included were professors from prominent American universities—but again, not a single rabbi. Yet the constitution in question was intended for the Jewish State of Israel, a state in which 82% of the population were then Jewish (the figure is now 79%), of which 25% are Orthodox, while another 55% are traditional.

Although the Constitution is a well-crafted document, its 48-page length and technicalities render it largely incomprehensible to ordinary citizens, for whose benefit it was ostensibly designed. Unlike the Torah, it was written for lawyers, not laymen. Not only is the Constitution a thoroughly secular document, but it was made for Israel’s ultra-secular Supreme Court and clearly intended to augment and legitimize the Court’s enormous de facto power. Nevertheless, despite its fundamental ideological and institutional flaws, this constitution is preferable to the Israel’s existing system of government, which is leading to the country’s self-destruction. What follows are actual chapter headings used in the document and a brief critical analysis. (more…)