United Mizrahi Bank's Twentieth Anniversary: On the Piquant Story of the Hybrid Israeli Constitution

---

To access the full article in Hebrew, please click here

Twenty years have passed since the Bank Mizrahi judgment was delivered, and the debate over whether Israel has a formal constitution has yet to subside. On the official website of the Knesset it is stated that Israel has no constitution; among those who answer in the affirmative, the prevailing assumption is that the constituent assembly theory best explains the development of Israel’s constitution. While Weiler and Lustig suggest that Israel’s constitutional revolution is not unique, the very debate over the existence of a constitution demonstrates that Israel’s constitutional development is far from banal in comparative terms.

This article argues that the constitutional debate in Israel revolves around the wrong question due to the influence of American thinking: instead of asking whether we have a formal constitution, the debate should have focused on the question of what kind of formal constitution we have. This article proposes that four competing theories seek to explain the emergence of Israel’s constitution; the last word on the matter has yet to be spoken. Thus, judgments such as Movement for Quality Government, Bar-On, Yekutieli, and Gutman can each be explained better or worse under one theory or another, each under a different theory than the others, without the judges’ awareness of the implications of these rulings.

Understanding the theories presented in this article will allow political actors — the Knesset, the government, the Court, and the people — to make decisions with awareness of the consequences of their choices for the future of Israel’s constitution and its character. The contribution of Israeli law to the comparative discussion is the insight that the same constitutional text — whether limitation clauses, override clauses, entrenchment provisions, or eternity clauses — can take on different operative meanings depending on the theory and narrative we adopt regarding the mode of constitutional adoption.

Weiler and Lustig use comparative law to flatten the differences in constitutional development between states, but this article contends that comparative law offers “recipes” for understanding those very differences. Each state may employ similar constitutional devices, but the meaning of those devices depends on the broader theoretical framework in which they are situated. In this sense, Israel’s constitutional story provides an important contribution to comparative constitutional scholarship: it demonstrates how hybrid, evolving, and contested constitutional arrangements can nonetheless function as a formal constitution, albeit one that defies neat categorization.

Suggested citation:

United Mizrahi Bank's Twentieth Anniversary: On the Piquant Story of the Hybrid Israeli Constitution, 38 TEL-AVIV UNIVERSITY LAW REVIEW 501, 501-570 (2016) [Hebrew].