17 September 2007 - Israel and emerging international constitutional jurisprudence

There’s an old joke that goes like this: Arnold Schwarzenegger has a big one, Sean Penn has a small one, Madonna doesn’t have one, and the Pope doesn’t need one. What is it? A surname, of course. When it comes to constitutions, one could almost construct a similar saw: America has an old one, Iraq has a new one, Britain doesn’t have one, and Israel doesn’t need one. Or does it?

I’m taking a class this term on comparative constitutional law, and we’ve been looking at the global emergence—and convergence—of constitutional law. What seems common—even among those countries that still don’t have a formal constitution—is the power of judicial review of legislation and administrative actions. This, ironically, has geon hand-in-hand with the spread of democracy.

Perhaps Fareed Zakaria was correct when he observed in Foreign Affairs (Nov. 1997): “The ‘Western model’ [of government] is best symbolized not by the mass plebiscite but the impartial judge.” The same countries that saw new democratic governments established also saw the establishment of new, independent judiciaries. In some cases (e.g. Pakistan), judiciaries are leading the charge.

Judicial and constitutional supremacy are not always the same thing, but they have often gone hand-in-hand, sometimes also with post-war reconstruction, decolonization, market reform, and globalization (Hirschl 2002). Some systems only allow a priori review of laws before they are enacted; some provide for a posteriori review alone. Some allow all courts to exercise review powers; others, under the model of Hans Kelsen in Austria (and accepter late in South Africa) only allow one.

Some systems allow “strong-form review”—in which the constitutional findings of the highest court cannot be overruled except by replacing its members or amending the constitution—while others allow only “weak-form review” in which the court’s interpretations can be revised through consultation with the other branches. Some courts may even prefer to confine their rulings to the parties in particular cases.

In addition, there are also differences in rules of standing, with some courts allowing any citizen who claims his or her rights have been violated to file a complaint, and some allowing even broader access. The High Court of Israel has developed some of the most liberal rules of all, and allows even a simple letter from an individual on a matter of public interest to become a petition to the Court.

There is a problem with this expansion of judicial power, known as the “counter-majoritarian problem,” which is that unelected judges may have arbitrary power to overturn laws passed by democratic majorities. To resolve this problem, constitutions such as the Canadian constitution have included “limitations” clauses that allow limits that can be “justified in a free and democratic society.”

The case of R. v. Oakes (1986) before the Supreme Court of Canada established a two-part test: first, whether the law or conduct violates a right; second, whether that violation is justifiable. This, in turn, requires a showing that the violation serves a “sufficiently important objective,” that it is rationally connected to that objective, and that it is the least drastic means available (Hirschl, ibid.).

Other courts have sought other ways of resolving the problem, including the “preferential model,” which chooses a law or action that is more in conformity with constitutional rights over one that is less so. One version of this, in Britain, requires courts to interpret current and future legislation in accordance with the provisions of a supranational court, the European Convention on Human Rights.

In many cases, the new judicial power is established in a foundational case—much as Marbury v. Madison (1803) did in the U.S. In Israel, the expansion of judicial powers in the Basic Laws of 1992 was followed by Metrael Ltd. v. Minister of Religious Affairs (1993)—a fight over non-kosher meat and the identity of Israel as a Jewish state—and United Mizrahi Bank v. Migdal (1995), a property rights case.

The rights tradition in most countries has involved “negative liberties”; outside the U.S., it has also involved second-order socioeceonomic rights and third-order culture, language and group rights. Even in the U.S., courts are increasingly being drawn into the political arena, as cases such as Bush v. Gore (2000) demonstrate. International tribunals are also having affecting domestic courts in many countries.

Questions of “horizonal effect”—the degree to which constitutional rulings bind actors outside of government—are still controversial in many places, and seem to potentially create opportunities for abuses of judicial power. This has become less of a problem as the area of law and regulation has steadily expanded worldwide.

Regardless, courts in Israel and around the world are extending their reach into areas that are not strictly legal, touching issues such as restorative justice and the legitimacy of political transitions. This has, in many places, prompted a backlash of sorts—a backlash personified in Israel by justice minister Daniel Friedman. (And, equally typically, there is now a backlash to the backlash itself.)

Constitutions, like judges, are not modern inventions. They existed in the ancient world in a general sense, and described forms of government abstracted from the personal identity of the ruler. The idea of the separation of powers resurfaced in the medieval era in Europe in the quarrels of kings and popes, and kings and nobles, only to fade again in the era of absolue monarchy and the divine right of kings.

The emergence of new upper classes in the 17th and 18th centuries led to new calls for checks on the power of the monarchy, which were accompanied by the emergence of modern political philosophy. In the late 18th centuries, the American, French and Polish experiments achieved varying results; the industrialization of the 19th century led to renewed constitutional movements on the Continent.

The 20th century saw the failure of constitutionalism in the Weimar Republic, and the resurgence of constitutionalism after the Second World War, during the era of decolonization and especially the Cold War. Today, even states without constitutions recognize something like constitutional rights, and illiberal states aspire to imitate the basic features of constitutional democracies.

So, to return to our original question: does Israel need a constitution? Perhaps it might be better to ask whether Israel needs a more formal constitution than the one it has right now, which is partly informal and judge-made. The present system leaves the relations of the branches of government undefined, and many questions of national identity unanswered. I’ll write more on this as the year progresses.

References:

Hirschl, Ran, “Beyond the American Experience: The Global Expansion of Judicial Review,” Marbury v. Madison: Documents and Commentary, Mark Graher, ed. (Congressional Quarterly, 2002), pp. 129-152.

Kim Lane Scheppele, “The Agendas of Comparative Constitutionalism,” 13 Law and Courts (2003): 5-23.

Mark Tushnet, “Comparative Constitutional Law” in The Oxford Handbook of Comparative Law (Oxford University Press, 2006), pp. 1225-1257.