Rights Constitutionalism and the Challenge of Belonging: An Empirical Inquiry into the Israeli Case

Abstract

Rights constitutionalism faces a global crisis of legitimacy, and recent years have seen a surge in scholarship on the crisis. The vast majority of analyses focus on broad structural factors and processes. This article takes a different approach: sociological and bottom up. I use qualitative discourse analysis to examine how social actors in Israel justified their antagonism toward rights constitutionalism in three cases where judicial intervention for human rights encountered exceptional public opposition and political backlash. The analysis reveals that social actors used discourses of belonging—both liberal and non-liberal—to challenge rights constitutionalism as a constraint on democratic politics, when they perceived rights protection as conflicting with or undervaluing boundaries of collective identity. Based on these findings, I introduce a new concept—the challenge of belonging—that expresses the normative tension between individual rights and collective belonging. By highlighting the ethical dimension of social opposition to rights constitutionalism, the sociological approach allows a nuanced understanding of such opposition. The challenge of belonging can account for mixed attitudes in the same polity and even in the same social group on rights-oriented judicial intervention, and it points to a common normative thread linking attacks on liberal constitutionalism in vastly different sociopolitical settings.