Accidental Constitutionalism: The Political Foundations and Implications of Constitution-Making in Israel
Adam Shinar
Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law
October 30, 2013
The Social and Political Foundations of Constitutions 207 (Denis Galligan & Mila Versteeg eds., Cambridge University Press 2013)
Abstract:
Unlike most democratic constitutional regimes, the events that gave rise to Israel's constitutional structure did not come about as a result of a constitutional convention, referendum, civic mobilization, or any other deliberate process that characterizes traditional constitution-making. Instead, the process has been gradual, incremental, and piecemeal. The making of Israel's constitution, I will argue, should be understood as accidental, a process best described as “accidental constitutionalism.”
Accidental constitutionalism can raise problems of legitimacy. For example, constitutional milestones, such as declaring the supremacy of some laws over others and the establishment of judicial review, were initiated by the Supreme Court. The determination that Israel even has a constitution was made by the Court. Although this aspect of Israeli constitutionalism has been the focus of most scholarly writing, it obscures how the Israeli constitutional system has produced arrangements that are both stable and similar to those of countries whose constitution originated in more conventional processes.
This chapter argues that the ad-hoc making of Israel’s constitution has had relatively little impact on the day-to-day manageability and workability of that structure. The more general argument this chapter pursues is that there is no necessary relationship between a polity's constitution-making process and the particular features that process generates. Although Israel's constitutional structure came about in an unconventional way, I argue that when examining the consequences of such a process, the similarities to traditional constitutions outweigh the differences. This conclusion challenges the common assumption that constitutional origins have a particular effect on subsequent constitutional developments.
Accidental constitutionalism can raise problems of legitimacy. For example, constitutional milestones, such as declaring the supremacy of some laws over others and the establishment of judicial review, were initiated by the Supreme Court. The determination that Israel even has a constitution was made by the Court. Although this aspect of Israeli constitutionalism has been the focus of most scholarly writing, it obscures how the Israeli constitutional system has produced arrangements that are both stable and similar to those of countries whose constitution originated in more conventional processes.
This chapter argues that the ad-hoc making of Israel’s constitution has had relatively little impact on the day-to-day manageability and workability of that structure. The more general argument this chapter pursues is that there is no necessary relationship between a polity's constitution-making process and the particular features that process generates. Although Israel's constitutional structure came about in an unconventional way, I argue that when examining the consequences of such a process, the similarities to traditional constitutions outweigh the differences. This conclusion challenges the common assumption that constitutional origins have a particular effect on subsequent constitutional developments.
Number of Pages in PDF File: 34
Keywords: Constitutions, constitution making, comparative constitutional law, Israel
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347839
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