The Declaration of Independence as a Transitional Constitution: The Case of Israel

Abstract

In the two decades since Israel’s constitutional revolution, the Basic Laws have come to enjoy normative supremacy and demonstrate efficacy by enabling judicial review of the legislative and the executive branches. Yet, they have not assumed an integrative role in the Israeli society. In terms of their substance, the Basic Laws are incomplete in scope. In terms of the procedure leading up to their enactment, they lack public legitimacy. This can be attributed, at least in part, to the fact that the Supreme Court was the key political actor responsible for retroactively upgrading the Basic Laws from regular laws to constitutional norms. This paper argues that the only document in the history of Israel possessing the potential to fulfill an integrative role was the Declaration of Independence. Due to its intrinsic ‘transitional’ characteristics and the unique socio-political circumstances surrounding its drafting, this founding document could and should have been perceived as a transitional constitution. This transitional constitution established Israel’s basic values and opened the way for an incremental constitutional process that continued with the enactment of the Basic Laws, and that will culminate only with the drafting of a full constitution. However, owing in part to the narrow conception of transitional justice, the Declaration was never interpreted as such. This historical error could have been corrected in 1994 as the identical principle clause of Israel’s two Human Rights Basic Laws—which constitute Israel’s (partial) Bill of Rights—declared that the human rights regime in Israel should be “respected in the spirit of the Declaration of Independence”. Yet, this opportunity was once again not seized. This failure carries unfortunate consequences for the Israeli constitutional regime since unlike the Basic Laws, which enjoy formal normative supremacy yet nonetheless suffer from legitimacy deficiencies, the Declaration bears the potential to fulfill an integrative constitutional function.