The Transitional Constitution of Israel

Abstract

In the two decades since Israel’s constitutional revolution, the Basic Laws have gained normative supremacy over other laws and have legal efficacy. Yet, they have not assumed an integrative role in Israeli society. In terms of their substance, the Basic Laws are incomplete in scope. In terms of Procedure leading to their enactment, they lack public legitimacy, due to having been retroactively upgraded by the Israeli Supreme Court from regular laws to constitutional norms. This paper argues that the only “constitutional moment” in the history of Israel possessing the potential to achieve an integrative role was the Declaration of Independence. This founding document should have been perceived as a transitional constitution, which established Israel’s basic values. Furthermore, in 1994 the historical missed opportunity could have been corrected when the Declaration was alluded to in the two Basic Laws, which constitute Israel’s (partial) Bill of Rights. Unlike the Basic Laws, the Declaration suffers neither the substantive nor procedural problems identified, and possesses integrative potential.