Evolution, Revolution and Israel’s Conflicted Constitutional Identity: Israel’s Savings Clause in Comparative Perspective

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Israel stands on the threshold of a pivotal election, one that may shape the fundamental character of the state. The ongoing political crisis—compounded by the indictment of a sitting prime minister—has been exacerbated by an unprecedented public health emergency. This period has exposed the rawest nerves of Israeli society. At stake are core values pertaining to the collective identity of the state as both Jewish and democratic. Pressing identity-based questions that had long been relegated to the margins—such as the respective roles and responsibilities of different communities within the national collective, including Jewish-Arab relations, religious-secular tensions, and the integration of the ultra-Orthodox—have been propelled to center stage. The intense conflict over the state’s identity has assumed a new level of urgency.

This essay examines this identity-based conflict through a comparative lens, by exploring the function and implications of “savings clauses,” or clauses of legal continuity, in national constitutions. These clauses have long served to defer or suppress engagement with such identity-defining debates.

Rethinking the Function of Savings Clauses

It is often assumed that constitutions, by virtue of their supremacy, override preexisting legislation, in accordance with the principle that newer law prevails over older law—unless the earlier law is more specific. In fact, even in the absence of a constitution, ordinary legislation can supersede prior legal norms. Constitutional supremacy is understood to be necessary primarily to trump future laws that contradict the constitution. Nonetheless, legal scholars are aware that some constitutions deviate from this model by adopting “savings clauses” that explicitly preserve the validity of prior law from being struck down through judicial review. Traditionally, such clauses have been viewed as rare, largely confined to certain post-colonial states in Africa and the Caribbean.

Contrary to this common perception, my comparative research indicates that savings clauses are in fact present in approximately forty percent of the world’s constitutions. This empirical finding suggests that constitutional adoption is often less revolutionary and more evolutionary than is generally assumed. Rather than serving solely as a tool of legal rupture, constitutions frequently maintain legal continuity with the past through such clauses.

Furthermore, while savings clauses are often understood as mechanisms to shield existing laws from constitutional scrutiny, this is but one of their functions. I identify three main categories of savings clauses. These categories are not mutually exclusive: a single constitution may employ more than one type across different provisions. Moreover, savings clauses do not merely operate as shields against judicial review—they actively shape constitutional interpretation and influence the broader framework of constitutional dialogue among political actors.

Category One: A Mechanism for Memorializing and Preserving the Past

The first category encompasses cases in which the founding framers viewed the existing legal order with pride and sought to enshrine it through the constitution. In this model, the constitution is not intended to break with the past but to codify and entrench it. The aim is to bind all political actors to the preservation of historical legal norms, as understood by the founding generation.

Frequently, constitutions under this model characterize their bill of rights as a codification of pre-existing rights—rights that were supposedly already enjoyed by the people prior to the adoption of the constitution. This may be true even if such claims do not reflect the political or social realities at the time.

Under this approach, it is not the constitution that informs the interpretation of prior laws, but rather existing laws that serve as the interpretive key to the constitution. This dynamic has influenced certain schools of constitutional interpretation. In the United States, for example, the doctrine of originalism emphasizes the public understanding of constitutional provisions at the time of their enactment. In Canada, the "frozen concepts" approach to the 1960 Bill of Rights reflects a similar effort to treat the charter as a restatement of already established legal principles. In both cases, the interpretive posture is one of deference to the founding generation’s intent to preserve the past.

Category Two: A Mechanism for Preserving the Status Quo to Ensure Legal Stability

The second category of savings clauses is driven by the imperative of legal stability. Here, the framers have not yet formed a definitive stance on the content or desirability of the existing legal regime. Often facing time constraints, limited resources, and the immediate challenges of state-building, they include a savings clause in order to preserve the legal status quo at the time of constitutional adoption. The decision to delay judgment on the merits of prior laws is strategic, aimed at avoiding a legal vacuum that could result in disorder or administrative paralysis.

This type of savings clause is especially prevalent in former British colonies in Africa and the Caribbean, which gained independence in the post–World War II era. Many such states adopted the existing British legal system as a foundational legal framework. In part, this decision reflected a belief that British law provided a stable starting point, particularly in its recognition of religious communities' autonomy in matters of personal status. Suppressing such communities was seen as potentially destabilizing.

During the Cold War, retention of British law also served a signaling function: it communicated an intention to align with the Western bloc rather than the Soviet Union. By preserving existing legal protections—especially property rights—these states sought to reassure Western powers and attract foreign investment. In this way, savings clauses also operated as a form of economic diplomacy.

Where this is the underlying rationale, courts around the world have tended to interpret savings clauses narrowly, seeking to minimize their adverse impact on human rights. Such harms are often understood as unintended consequences of legal continuity rather than expressions of normative commitment. A narrow judicial reading of savings clauses, paired with a broad reading of constitutional rights, allows emerging legal systems to develop a more coherent set of foundational values, particularly where the post-independence constitutional order aspires to liberal democratic ideals that go beyond the inherited legal legacy.

Category Three: A Mechanism of Compromise

The third category of savings clauses serves as a mechanism of compromise. Such clauses are adopted precisely because the founding framers are aware of the problematic, illiberal, and often discriminatory nature of pre-existing laws. These laws frequently preserve some of the most troubling aspects of a state’s legal past, including capital punishment, slavery, and religious or cultural discrimination. For example, I interpret certain provisions of the U.S. Constitution that preserved the institution of slavery until 1808 as an instance of a savings clause. Although the American Constitution does not use the standard formula typical of such clauses, it effectively shielded slavery from federal legislative interference, though not from judicial review. This reflected the predominant concern at the time: the fear of legislative, not judicial, encroachment. In such cases, savings clauses are employed to reassure opponents of constitutional adoption that the existing legal status quo will be preserved.

These clauses also redirect the institutional energies of constitutional actors toward shaping the future, while sidelining—perhaps even suppressing—past challenges. In this way, the founding framers may also derive strategic advantages in the international arena. A savings clause allows the constitution to project a liberal image insofar as it gestures toward the future, even as it silently preserves discriminatory legal regimes “by reference” to prior law. Yet these arrangements are opaque, often unintelligible to those unfamiliar with the inner workings of the legal system in question, thereby maintaining an appearance of normative coherence. Such systems are characterized by a hybrid constitutional identity, rife with contradictions. The legal past remains marked by illiberal and discriminatory norms, shielded from judicial scrutiny, while new laws enacted post-constitution must conform to constitutional rights. Even within this category, liberal courts often seek to narrowly construe the power of the savings clause in order to minimize its harmful consequences—an approach that may depart from the original intent of the constitution’s drafters.

Savings Clauses in Israel

The State of Israel has developed, through an evolutionary process, a constitutional bill of rights since its founding. In the 1990s, Israel underwent a constitutional transformation from a model of parliamentary sovereignty to one of constitutional supremacy. This transformation, however, remains incomplete. Rather than fully departing from its legal past, Israel has incorporated two types of savings clauses into its Basic Laws concerning human rights.

The Basic Law: Freedom of Occupation included a temporary savings clause of the second type, aimed at ensuring legal continuity. The preexisting legislation preserved by this clause included laws such as the Commodities and Services Supervision Law, the Standards Law, and labor laws. This clause was intended to grant the Ministry of Justice time to review and amend existing laws to ensure they did not inadvertently conflict with the new constitutional framework. This harmonization process, however, was never carried out in earnest. Instead, the temporary clause was renewed repeatedly with retroactive effect over the course of a decade, until it eventually expired. Still, few petitions have been filed to challenge the dense economic regulation that remains in place under these older laws, largely due to the business sector’s fear of public backlash.

The savings clause in the Basic Law: Human Dignity and Liberty was motivated by a fundamentally different concern—it was a compromise of the third type. Without it, the Basic Law would likely not have passed. The clause was intended to safeguard Israel’s exceptional national security measures, many of which date back to the British Mandate. It also aimed to preserve the religious status quo, including practices that severely discriminate against women. Originally, it was even intended to shield the Law of Return, although the Supreme Court has since held that the Law of Return does not conflict with the constitutional right to equality. According to the Court, the Law of Return involves a classification concerning individuals who are foreign to the state and not subject to a constitutional obligation of equal treatment.

This savings clause thus preserved Israel’s dual and ambivalent constitutional character: on the one hand, a state with discriminatory and intrusive elements in its legacy legislation; on the other hand, a democratic state that must take human rights into account in all legislation enacted after the Basic Law: Human Dignity and Liberty. The Court’s creative interpretive power has proven insufficient to overcome the “weight” of this savings clause. Its effects are pervasive—evident in Israel’s personal status laws, security law, and national legislation. It has contributed to the contradictory nature of Israel’s constitutional reality, torn between aspirations for liberal democracy and binding religious and security imperatives. Yet my research shows that Israel’s experience is not unique. It is part of a broader global story of constitutional identity conflict.

The Seeds of the Next Constitutional Revolution

Savings clauses often postpone, rather than resolve, constitutional conflicts. They sow the seeds of future constitutional revolutions aimed at addressing unresolved identity-based tensions that arise from deferring the foundational question of national identity. The American Civil War—claiming the lives of two percent of the population—was not averted by the U.S. Constitution’s savings clauses. To this day, American debates over racial equality and slavery remain an open wound. In Canada, a similar impasse led to the adoption of a new constitutional Charter of Rights and Freedoms in the 1980s to escape the limitations of the 1960 Bill of Rights. In India, the savings clause contributed to a prolonged institutional struggle between the elected branches and the judiciary over property rights and redistribution, culminating in a state of emergency in the 1970s and the development of the “unconstitutional constitutional amendment” doctrine.

Awareness of the dangers embedded in unresolved and conflicted constitutional identities should serve as a warning in this critical period for the State of Israel. Forces of reconciliation and constitutional healing are urgently needed to prevent a future revolution that may propel us into unknown and perilous terrain.

Suggested Citation:

Evolution, Revolution and Israel’s Conflicted Constitutional Identity: Israel’s Savings Clause in Comparative Perspective, ICON-S-IL Blog, March 9, 2021 [Hebrew].