Social Citizenship: The Neglected Aspect of Israeli Constitutional Law

Abstract

The legal protection afforded to social citizenship in Israel should be assessed within the more general framework of the recognition and protection of human rights in Israeli constitutional law. For more than forty years after its establishment as a state, Israel lacked constitutional provisions for the protection of human rights, due to social and political disagreements concerning the contents of a future constitution. A political compromise struck in 1950 promised the gradual formulation of Israel’s constitution through a process of enacting basic laws that eventually would be consolidated into a full constitution. But until 1992 the existing basic laws had dealt only with the institutional aspects of this constitution and did not include a bill of rights. Thus Israeli constitutional jurisprudence on human rights was based on an unwritten, or judicial, bill of rights developed by the Supreme Court. The rulings that recognised this bill of rights articulated the rights as deriving from the general principles of the Israeli legal system as well as being inspired by the Israeli Declaration of Independence. This method enabled the recognition of a wide range of constitutional rights but, at the same time, judicial review was limited to administrative actions and could not be applied to primary legislation. With regard to the latter, the unwritten bill of rights was regarded as having only interpretative force. The Supreme Court case law that set forth the judicial bill of rights dealt mostly with civil and political rights. The Court played an important role in the recognition of these rights, especially in the early days of the state when, under the Zionist collectivist ideology, the tradition of liberalism was not well-entrenched, on the one hand, while the legislative and executive protection of social rights was broad, on the other hand. Thus judicial recognition of civil and political rights played a crucial role, given the lack of constitutional or statutory text protecting these rights; social rights, in contrast, were mostly maintained not through a rights mechanism but, rather, by way of the legislation and practices that established them.