On the Balance of Powers between the Israeli Legislature and the Government in Historical Perspective

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The Supreme Court’s Position on the Government–Knesset Power Dynamic

In a series of major rulings, the Israeli Supreme Court has expressed concern that, in recent years, the government’s power has grown relative to that of the Knesset. The Court regards this development as undesirable for two primary reasons. First, the Knesset is the directly elected representative body of the people, whereas the government derives its authority from the Knesset’s vote of confidence. Second, the Knesset includes the opposition, whose views must be considered—even if the majority ultimately prevails. In contrast, dissenting voices are not heard within the government. For these principled reasons, the Court has intervened in the functioning of elected institutions in a range of circumstances with the aim of strengthening the Knesset’s institutional position vis-à-vis the government. The Court has repeatedly emphasized that the Knesset is not “the government’s cheerleading squad.” The increasing dominance of the government at the expense of the Knesset is seen by many as symptomatic of the broader phenomenon of democratic backsliding that has characterized Israeli political life in recent years.

This article seeks to show that the distribution of power between the Knesset and the government was consciously shaped by the Knesset itself in the 1960s in ways that granted the government considerable control over the legislature—beyond what is required by the government’s need for parliamentary confidence. Moreover, in many respects, the government’s control over the Knesset has weakened over time, and the historical evolution of this relationship is far from linear. This essay therefore challenges the prevailing view—reflected in recent jurisprudence—that the Knesset is merely a passive or weakened actor vis-à-vis the executive.

Seeds of Institutional Imbalance: Developments in the 1960s

The Supreme Court has identified the Arrangements Law (חוק ההסדרים)—a legislative vehicle accompanying the budget and ostensibly intended to include only those legislative amendments necessary to implement fiscal policy—as emblematic of the deterioration of the Knesset’s institutional power. The government has used the Arrangements Law to enact wide-ranging and controversial legislative reforms unrelated to the budget, circumventing ordinary legislative procedures and imposing strict coalition discipline typical of budgetary legislation, which must pass to avoid government collapse. The Court considered this phenomenon so problematic that it set a precedent by invalidating a law due to flaws in its legislative process, despite the possibility that its content might have survived constitutional review. In that case, the Court struck down the “third apartment tax” law on the grounds that members of Knesset were not given sufficient time to deliberate on the proposal.

Interestingly, the seeds of this legislative practice were sown as early as the 1960s, when the Knesset debated the enactment of the Continuity of Proceedings in Legislative Proposals Law. This law, first adopted in the 1960s and revised in the 1990s, authorizes the Knesset to continue discussing bills that passed their first reading in a previous (outgoing) Knesset. The debate over legislative continuity was one of the most profound parliamentary discussions ever held regarding the nature of Israel’s representative democracy and the institutional balance between the Knesset and the government.

1. Enhancing Legislative Efficiency

Proponents of the legislative continuity law sought to enhance the Knesset’s efficiency and conserve parliamentary time. They argued that the Knesset needed a mechanism to address the consequences of early dissolution, allowing it to complete work on pending legislation. They also sought to avoid a chilling effect near the end of a Knesset’s term, wherein members would avoid initiating new legislation due to fears they would not complete the legislative process. Without legislative continuity, they claimed, the Knesset would be unable to reintroduce complex legislative proposals originating in the Ottoman or Mandate periods—many of which involved intricate codes requiring extensive deliberation. For similar reasons, they asserted that continuity was essential for the enactment of Basic Laws.

Opponents of the legislative continuity law argued that the Knesset did not suffer from legislative inefficiency; on the contrary, “the pace of legislation is too fast.” Minister of Religious Affairs Zerach Warhaftig observed that, given Israel’s unicameral system and the absence of a presidential veto over legislation, what the Knesset truly needed were restraintson the legislative process—not mechanisms to accelerate it. Members of Knesset explained that if a bill fails to pass, it is usually because it is controversial; therefore, its progress should not be expedited in the next Knesset through legislative continuity.

2. Majoritarian vs. Deliberative Models of Democracy

Whereas proponents of the continuity law emphasized legislative efficiency, its opponents relied on democratic principles. They argued that “even if the same MK is re-elected, he is not the same Member of Knesset, because it is not the same Knesset—he was elected through an entirely different act.” In their view, elections were meant precisely to break continuity. Even the Attorney General noted that continuity represented a concession on the principle that the Knesset can—and should—change in composition and orientation.

Opponents contended that legislative continuity transformed the Knesset into a bureaucratic body akin to a government office, where some members retire and others take their place. They rejected the notion that a new Knesset should be bound by decisions made by a previous one.

Beyond undermining the meaning of elections as a constitutional “reset,” legislative continuity also impaired deliberation—both within the Knesset and in the public sphere. Because continuity eliminates the requirement for a new first reading, the public discourse typically spurred by such readings was lost. Critics argued that by the time a new Knesset resumed consideration of a bill, public interest, expert opinion, and media coverage of the issue may have dissipated entirely.

Continuity also created inequality between new and returning MKs. Newly elected members, who were not part of the previous Knesset, were denied the opportunity to participate in first reading debates. One MK likened the situation to “new members being barred from entering the Knesset building for certain discussions.” This procedural inequality particularly disadvantaged the opposition, whose role is to challenge legislation. As MKs emphasized: “Without an opposition, there is no Knesset—even if there is a majority”; and “Democracy decides by majority… but it must hear the minority view.”

While the opponents of legislative continuity promoted a deliberative, substantive vision of democracy, its proponents advanced a formal-majoritarian model. They pointed to Basic Law: The Knesset, which states that “the outgoing Knesset shall continue to function until the incoming Knesset convenes.” Under this doctrine of institutional continuity, the Knesset is a continuing organ, even if its membership changes. Proponents also noted that in practice, “most members of a new Knesset are former members of the previous one.” MK Nir-Rafalkes, one of the law’s sponsors, acknowledged the harm to new members’ right to participate in debate, but dismissed it as “not such a significant right.” Justice Minister Dov Yosef claimed that there was “no harm whatsoever to democracy or to the Knesset, which in any case operates not by the will of every MK, but by the will of the majority.”

3. Governmental Control over Legislation

The debate also reflected concerns about the balance of power between the government and the Knesset. Justice Minister Yosef demanded that only the government be authorized to initiate legislative continuity, whereas Prof. Yitzhak Klingerhofer and Dr. Uri Yadin argued that Knesset committees should also have this authority. Minister Yosef saw the government as “responsible” for legislation. MKs objected that “since only the government may request continuity—even for bills introduced by MKs—we view this as a restriction on the Knesset’s authority.” Moreover, continuity could not be applied to private member bills that had only passed a preliminary reading. “If there is no difference between one Knesset and another, as the government claims, then the same standard should apply to MKs.” Lawmakers also warned that the government was being given unchecked discretion: “You are giving the government the power to act without binding it to any timeline.”

In practice, the fears of the law’s opponents were realized. Legislative continuity enables governments to secure artificial majorities for legislation. Governments do not hesitate to advance controversial bills during the final stages of a Knesset’s term, when their democratic legitimacy is waning and members are distracted by elections. They later reinstate these bills via continuity, often bundling them together in bulk. Debate in the new Knesset, when held at all, focuses on the question of continuity—not on the merits of the legislation itself. Government positions on continuity are formed behind closed doors, without proper parliamentary scrutiny, as no first reading is held for each bill individually.

The Government–Knesset Power Balance in Israel

After a deliberate and far-reaching parliamentary debate, the Israeli model of representative democracy was effectively shaped in the 1960s. The Knesset chose to delegate considerable control over the legislative process to the government and to endorse a formal-majoritarian conception of representation. The continuity law has never been subjected to constitutional review. But does the recent jurisprudence, which views the government’s increasing control over the Knesset as a symptom of democratic backsliding, accurately reflect a real deterioration?

In my view, the balance of power between the Knesset and the government has not shifted in a linear fashion in favor of the executive. On the contrary, in many respects, governmental dominance has declined over time. In my article, The Edelstein Ruling and the Chronology of Power Relations between the Government and the Knesset in Israel, I divide these institutional dynamics into four historical periods. In this piece, I focus on the first and most recent of those.

The foundational period extends from the establishment of the state until 1977, the year of the political “upheaval,” which marked the first democratic alternation of power. During this era, the Mapai party dominated both parliament and government. The most recent period begins with the abolition of direct elections for prime minister in 2003 and continues until the 24th Knesset elections in March 2021.

The empirical data I have collected indicate that—by all relevant metrics—the government’s hold over the Knesset has weakened during this time. As is often said, “numbers speak.” And in our parliamentary system with proportional representation, numbers may reveal more about institutional dynamics than abstract doctrinal claims.

1. Power Dynamics Between the Coalition and the Opposition

During Israel’s foundational period, the governing coalition typically held two-thirds of Knesset seats. In contrast, recent governments have struggled to maintain even a narrow majority. At the same time, the average number of opposition parties in both periods stands at six, indicating that the opposition today is no less capable of organizing effectively than in the past. In fact, private member legislation has significantly increased since the establishment of the state—both in absolute numbers and as a percentage of total enacted legislation.

2. Power Dynamics Within the Coalition

From the founding of the state until 1996, the dominant party in the coalition held, on average, 61% of the coalition's seats. Since the abolition of direct elections for prime minister in 2003, the ruling party’s average share has dropped to just 53%. As a result, the ruling party must consistently compromise with its coalition partners throughout its term. Israeli governments negotiate detailed coalition agreements precisely because of the ruling party’s relative weakness. Coalition discipline reflects the shared responsibility of the government toward the Knesset, but it does not prevent individual members from expressing independent positions. Rather, they are expected to “pay a political price” for dissent, whether through internal negotiations or, when necessary, by resignation or dismissal. The limited power of coalition discipline is reflected in the fact that Israeli governments have historically lasted an average of just over two years.

3. Power Dynamics Between the Ruling Party and the Largest Opposition Party

In the state’s early decades, the average gap between the ruling party and the largest opposition party was 28 Knesset seats. In recent years, this gap has narrowed to an average of just 10 seats.

4. Duration of Caretaker Governments

The average duration of caretaker governments has nearly doubled—from approximately 81 days during the foundational period to 158 days in recent years. Such governments are inherently weak under the Weiss doctrine, which requires them to act with restraint except in cases of essential necessity.

Conclusion: The Essence of the Parliamentary System

The very essence of a parliamentary system lies in creating mutual control between the government and the legislature. Across parliamentary democracies, it is the government that sets the legislative agenda and controls parliamentary time. It is doubtful whether the Knesset has weakened in recent years to such an extent that it now requires judicial intervention in its internal affairs more than it did in the past.

The judiciary may serve as a supporting actor in defending Israeli democracy, but it cannot serve as a substitute for it. Ultimately, the fate of democracy lies not in the hands of the courts, but in the collective actions of the public.

Suggested Citation:

On the Balance of Powers between the Israeli Legislature and the Government in Historical Perspective, ICON-S-IL Blog, November 5, 2021.