A. Introduction
For almost three years now, Israel has continued to experience turmoil on many fronts. Following Hamas’s brutal attack on October 7, 2023, Israel was engaged in a prolonged military effort. While the initial breakout of the war seemed to lead to “a familiar pattern of ‘suspending divisions’ during crises,”Footnote 1 it has been argued that this interruption was only short-lived. As the Israeli public remained focused on the casualties of the war and on securing the return of the hostages, the government moved ahead with plans which have been termed as “advancing [its] democratic backsliding.”Footnote 2 These internal legal tensions were further compounded by mounting external pressures, most notably the decisions of international courts—the International Criminal Court’s (ICC) decision to issue arrest warrants against Israel’s Prime Minister and former Minister of DefenseFootnote 3 and the International Court of Justice’s (ICJ) interim rulings in the case of South Africa v. Israel.Footnote 4
A fragile truce between Israel and Hamas was achieved in October 2025,Footnote 5 but even prior to the October 7, 2023 attacks, Israel underwent “the most serious constitutional crisis since the country was founded in 1948.”Footnote 6 Following the swearing in of the 37th government on December 29, 2022, Yariv Levin, the Minister of Justice, announced his plans for widespread legal reform.Footnote 7
The planned reform included a limitation on the courts’ ability to invalidate the legislation of the Knesset (Israeli Parliament);Footnote 8 an override clause which would allow a majority of Members of Knesset (MKs)—members of Israeli Parliament—to override a ruling of the courts and enact a law notwithstanding its unconstitutionality;Footnote 9 an explicit abolishment of the courts’ authority to review Basic Laws, which act as Israel’s Constitution;Footnote 10 a radical change in the judicial selection process;Footnote 11 a transformation in the role and powers of legal advisors and the Attorney General;Footnote 12 and the abolishment of the reasonableness doctrine, a common-law doctrine which allows the courts to review administrative actions according to their “reasonableness” or lack thereof.Footnote 13
Havoc ensued. All across Israel massive demonstrations against the judicial reform—or “overhaul”—took place.Footnote 14 Scholars in economy, law, and politics warned of the changes’ potential impact on civil liberties, international standing, and economic stability.Footnote 15 Resistance was expressed by the high-tech sector,Footnote 16 army reservists,Footnote 17 law firms,Footnote 18 and academia.Footnote 19 In a precedential and controversial moment, Esther Hayut, the acting Chief Justice of the Israeli Supreme Court at the time, gave a public speech where “she characterized the reform as an ‘unrestrained attack on the legal system.’”Footnote 20
Even so, and despite massive public resistance, the Israeli Government continued with its plans.Footnote 21 In July 2023, the first part of the judicial reform/overhaul was enacted. An amendment to the Basic Law: the Judiciary abolished the doctrine of administrative reasonableness.Footnote 22 The Amendment stated that no court, including the Supreme Court sitting as the High Court of Justice, would discuss the reasonableness of a decision of the government, the Prime Minister, or of any other Minister; nor may it give an order on said matter.Footnote 23
Petitions were submitted to the Israeli Supreme Court against the Amendment, arguing that the constitutional amendment was unconstitutional.Footnote 24 Chief Justice Hayut decided that the significance of this case, in which the Court would discuss the constitutionality of a constitutional amendment, required a precedential full panel of all fifteen Justices of the Supreme Court.Footnote 25 By the time the Court’s ruling, Movement for Quality Government v. Knesset (“the reasonableness case” or “the reasonableness ruling”), was released,Footnote 26 war had broken out, and the focus of the Government and the public lay elsewhere. Nevertheless, the results of the ruling were dramatic.
For the first time ever, the Israeli Supreme Court struck down a constitutional amendment in a dramatic eight-to-seven vote.Footnote 27 The majority held that the Amendment severely violated core features of the democratic system, which is one of the two pillars upon which the state of Israel was founded.Footnote 28 They ruled that considering the fragile system of checks and balances in Israel, the Amendment severely damaged the Israeli separation of powers and the rule of law, and as such is unconstitutional and void.Footnote 29
Perhaps even more dramatic was that twelve, or thirteen,Footnote 30 justices agreed that the Supreme Court is authorized to strike down Basic Laws in exceptional circumstances in which they violate the core values of Israel as a Jewish and Democratic state.Footnote 31 Thus, while the majority for striking down the Amendment was slim, there was widespread agreement regarding the judicial competence to strike down a constitutional law. Ironically, the same judicial reform/overhaul which included a plan to abolish the courts’ ability to strike down Basic Laws eventually led to the Supreme Court’s first ever abolishment of a constitutional amendment. However, while the result of the ruling was the annulment of the Amendment, the different justices relied on different constitutional theories to justify their competence to strike down constitutional laws, without any theory receiving a majority of the panel’s backing.
This Article will provide an analysis of the different constitutional theories invoked in the reasonableness case for the review of constitutional norms. Currently, most theories and discussions of judicial review of constitutional norms focus on the ability of the judiciary to strike down a constitutional amendment—the product of the secondary constituent power—which contradicts the original Constitution—the product of the primary constituent power.Footnote 32 While much has been written about constituent power and the unconstitutional constitutional amendment doctrine, the Israeli reasonableness case entered unknown terrain when it discussed the existence of limitations on the constituent power regardless of whether the constitutional norm was the product of the primary or secondary constituent power.Footnote 33 In concluding that it has the power to strike down any constitutional law, not only constitutional amendments, the Israeli Court adopted a precedential power of constitutional review.
Following this introduction, Section B will provide the theoretical foundation for understanding constituent power as well as the distinction between the primary and secondary constituent powers, and the historical development of constituent power in Israel. Based on this foundation, Section C will provide an analysis of the first and most prominent theory for review of constituent power utilized in the reasonableness case—the theory of constitutional data. Section D will discuss the theory according to which the Basic Laws themselves limit the competence of the constituent power. Section E will discuss the view that the Israeli Declaration of Independence acts as a limitation on the constituent power. Section F discusses the controversial natural law limitation approach which was utilized in the reasonableness case. Lastly, Section G will discuss the approach according to which there are no limitations on the constituent power at all.
The length of the reasonableness case alongside the dramatic implications of its major findings makes it the most important constitutional ruling in the history of the State of Israel, second only to United Mizrahi Bank Ltd. V. Migdal Collective Village (the Mizrahi Bank ruling).Footnote 34 However, beyond its national significance, the reasonableness case stands out as one of the earliest and most comprehensive examinations by a supreme judicial authority of the limits of constituent power anywhere in the world. Even more unique is the fact that none of the justices relied on the unconstitutional constitutional amendment doctrine to reach their conclusion, at least not in its traditional understanding. Accordingly, the reasonableness case offers valuable constitutional insight and serves as a critical point of reference for future comparative discussions on constituent power and its limits.
B. The Theory of Constituent Power
I. Constituent Power and Judicial Review
The concept of constituent power primarily emerged in the 18th century, with the French Revolution and the American Declaration of Independence acting as political catalysts which were influenced by the concept.Footnote 35 Today, it appears ubiquitously in contemporary constitutional debates in academia, the courts, and in political spheres.Footnote 36 Emmanuel Joseph Sieyès, who is often viewed as the founding father of the concept of constituent power,Footnote 37 argued that constituent power is external to the constitutional order, belongs to the nation, and is the power of political establishment.Footnote 38
While the concept of constituent power is defined in many different ways and is thus shrouded in mystery,Footnote 39 it is often referred to as “the driving force behind constitution-making,”Footnote 40 or as the term of art that has emerged to describe the constitutional law-maker.Footnote 41 Accordingly, constituent power is viewed in the context of this Article as the authority which is competent to create or amend the constitution.
Within the category of constituent power, a distinction is commonly made between the authority to create the original constitution of a state (primary constituent power), and the authority to amend an existing constitution (secondary constituent power). As former Chief Justice of the Israeli Supreme Court Aharon Barak articulated, the primary constituent power is “granted by the sovereign, the people. This is the highest constitutional authority. There is no superior authority. This authority of the constituent assembly determines the content of the constitution and the procedures through which it may be amended.”Footnote 42
As for the secondary constituent power, it is regulated by the primary constituent power. As a “derived and mandated power,”Footnote 43 the secondary constituent power has “the authority to amend the constitution, subject to the boundaries dictated by the constituent power.”Footnote 44
In Kelsenian terms, a norm only acquires meaning as law from a higher norm that authorizes its enactment.Footnote 45 But “a legal norm, in order to exist—and that means: in order to be valid—must be created by an act, which is a fact existing in time and space.”Footnote 46 Accordingly, the primary constituent power is the act which gives validity to the original constitution; which is the norm which authorizes the actions of the secondary constituent power; which in turn is the act which gives validity to amendments to the original constitution.Footnote 47
The consequence of this distinction between primary and secondary constituent power is that any exercise of the secondary constituent power in contradiction to the norms created by the primary constituent power is ultra vires. Thus, the doctrine of unconstitutional constitutional amendments was developed. As Aharon Barak states: “In a conflict between a constitutional norm which was created by the constituent power and a constitutional norm which was created by the constituted power, the constitutional norm created by the constituent power prevails.”Footnote 48
The unconstitutional constitutional amendment doctrine has been utilized in jurisdictions around the world. As Richard Albert states,
it is not uncommon for supreme or constitutional courts to annul a procedurally-perfect constitutional amendment on the theory that the amendment is unconstitutional. The doctrine of unconstitutional constitutional amendment has traveled the globe, from its political foundations in France and the United States, to its doctrinal origins in Germany, to its practical application in constitutional States in nearly every region of the world, including Argentina, Austria, Greece, Hungary, Portugal, South Africa, South Korea, Switzerland, and Tanzania, to name but a few.Footnote 49
In Israel’s constitutional setting however, the adoption of the doctrine comes with unique obstacles.
II. Constituent Power in Israel
Israel’s unique constitutional story has prevented the adoption of the unconstitutional constitutional amendment doctrine into the legal system.Footnote 50 Even prior to the Mizrahi Bank ruling in 1995, “[t]he question of the precise status of the Basic Laws has been widely discussed.”Footnote 51 This is due to Israel’s unique constitutional foundations.
On May 14th, 1948, David Ben-Gurion, the soon-to-be first Prime Minister of Israel, read out Israel’s Declaration of Independence at a ceremony held at the Tel Aviv Museum and broadcasted live on the radio.Footnote 52 The Declaration included a promise that a Constitution for the newly founded state of Israel would be adopted by an Elected Constituent Assembly by October 1, 1948.Footnote 53 As Gideon Sapir explains, the process of the enactment of the Constitution of Israel found in the Declaration included three stages: at first, the Provisional Council of State was to act as a temporary legislative branch; at the same time, elections were to be held for a Constituent Assembly for the drafting of the Constitution, which would disperse after accomplishing its task; finally, elections for a permanent legislative authority would take place according to the electoral system anchored in the newly created Constitution, which would lead to the dispersion of the Provisional Council of State.Footnote 54
Unfortunately, the plan laid out in the Declaration never came to fruition. Instead, the Provisional Council of State “decided it would cease to exist with the convention of the Constituent Assembly, and its powers would be transferred to the Assembly.”Footnote 55 The Transition Law transferred all the powers of an ordinary legislature to the Constituent Assembly, which was already empowered to draft the Israeli Constitution.
Yet the Constituent Assembly, which, following the Transition Law, became known as the First Knesset, never completed its constitution-making task. At debates held in the First Knesset, different members questioned whether a constitution should be enacted right away, or even at all.Footnote 56 Eventually, a compromise was adopted in the form of the Harari Proposal, according to which the future Constitution of Israel would be adopted chapter by chapter, in the form of Basic Laws.Footnote 57
This tangled sequence of events during Israel’s establishment left the status of the Basic Laws uncertain for decades. However, in the Mizrahi Bank ruling, the prevailing approach maintained that “after the establishment of the state, the constituent power was transmitted from the first Knesset (called the ‘Constituent Assembly’) to its successors. Thus, the normative value of the Basic Laws does not derive from the entrenchment clause, but from the legal status of the enacting authority.”Footnote 58
Since then, the Basic Laws have been recognized as the incomplete Israeli Constitution even though they are adopted by the same institution, using the same legislative processes, and usually with the support of regular majorities.Footnote 59 And it is this exact incomplete nature that raises many complexities when discussing the adoption of the unconstitutional constitutional amendment doctrine.
As mentioned, to apply the unconstitutional constitutional amendment doctrine one must recognize the constitutional norms which are the product of the primary constituent power and those which are the product of the secondary amending constituent power. Then, the prominence of the former can theoretically be enforced, assuming that the Court is authorized to carry out the enforcement of these limitations.
Israel’s Basic Laws lack an eternal clause, the explicit expression of the primary constituent power regarding the unamendability of certain constitutional provisions.Footnote 60 Still, the Israeli Supreme Court could make use of the unconstitutional constitutional amendment doctrine if it recognized the existence of an implicit limitation on the Knesset’s constituent power.Footnote 61 However, in Hasson v. Knesset (the Hasson case), Chief Justice Hayut insisted that the unconstitutional constitutional amendment doctrine shouldn’t be adopted at least until the Israeli constitutional project is completed.Footnote 62 Hayut stated that:
At this time, and given the current stage of the Israeli constitutional project as an unfinished endeavor, particularly in light of the fact that no procedures have yet been established for the enactment and amendment of Basic Laws, there is considerable difficulty in adopting a comprehensive doctrine regarding unconstitutional constitutional amendments such as those recognized in comparative law.Footnote 63
The incomplete nature of Israel’s Constitution makes the adoption of the unconstitutional constitutional amendment doctrine challenging on two fronts. First, without a complete constitution, it is hard to identify the essential features of the Constitution which would limit the authority of the secondary constituent power. Second, and perhaps most important, is that prior to the completion of the Constitution, it is unclear what type of constituent power the Knesset is exercising. One option, which is presented by former Chief Justice Aharon Barak, posits that because the Israeli Constitution is still in the making, the Knesset’s constitutional enactments at this point are all an expression of the primary constituent power.Footnote 64 A second approach proposed by Claude Klein is that the Basic Laws are an expression of the primary constituent power, while amendments to the Basic Laws are an expression of the secondary constituent power.Footnote 65 A third option preferred by Ariel Bendor is that the Knesset’s constituent power is always secondary, as the primary constituent power belonged to the original Constituent Assembly, and could not be transferred.Footnote 66 The Israeli Supreme Court has yet to decide between these alternate interpretations. It is impossible to recognize the prominence of any constitutional material over other constitutional materials without first deciding this issue.
Even so, in the Hasson case, the Supreme Court recognized the existence of a narrow limitation on the constituent power of the Knesset: the nature of Israel as a Jewish and democratic state.Footnote 67 Seeing as the Court has never devised a method for recognizing the type of constituent power which was exercised by the Knesset, it is unclear whether this limitation applies to the primary or secondary constituent power of the Knesset. However, this limitation has never led to the judicial review of a constitutional norm until the reasonableness ruling. There, relying on different constitutional theories, the Israeli Supreme Court struck down the Amendment in an eight-to-seven vote, with an astonishing thirteen-to-two majority in favor of the existence of the Jewish and democratic limitation on the constituent power of the Knesset.Footnote 68
The next sections will analyze the different constitutional theories used in the reasonableness ruling to answer the query whether the constituent power of the Knesset is limited by Israel’s nature as a Jewish and democratic state.
C. A Theory of Constitutional Data
I. Former Chief Justice Hayut’s Approach
Former Chief Justice Hayut’s ruling led the majority opinion in the reasonableness case and concluded that the Court has the authority to strike down Basic Laws. Furthermore, it was decided that the Amendment is one of the extreme cases which justifies such judicial intervention.Footnote 69
To justify the Court’s authority to review Basic Laws, Chief Justice Hayut proposed a theory of “constitutional data” as the limitation on the Knesset’s constituent power. Former Chief Justice Hayut referred to the Hasson ruling, where the Court ruled that the constituent power of the Knesset is limited by Israel’s Jewish and democratic nature.Footnote 70 She then went on to explain the anchoring of this limitation in Israeli jurisprudence. Starting with the Israeli Declaration of Independence, she stated that:
The Declaration of Independence, in which the task of drafting the constitution was assigned to ‘the elected Constituent Assembly,’ defined Israel as a Jewish state and gave explicit and clear expression to its democratic character, as a state committed to equal rights and individual freedoms.Footnote 71
Next, former Chief Justice Hayut referred to the existing Basic Laws of Israel, stating that “the Basic Laws also reflect the fact that Israel is a Jewish and democratic state and that this is a part of its ‘identification.’”Footnote 72 She continued, stating that “there are also ‘ordinary’ laws which explicitly anchor the phrase ‘Jewish and democratic State’, alongside many other laws which anchor the identity of the State as such in their substance.”Footnote 73 Hayut even relied on past rulings of the Court, which have over the years repeatedly addressed the Jewish nature of the State as one of its distinct hallmarks among nations and states, and its democratic identity as part of its lifeblood.Footnote 74
From this, former Chief Justice Hayut arrived at the conclusion, which was first articulated in the Hasson ruling, according to which:
The Declaration of Independence outlined the character of the state as Jewish and democratic; the Basic Laws explicitly anchored these two components in the identity of the State; legislation and case law have reinforced and solidified them; and the nation’s history since its founding has repeatedly illustrated that this is its character. Therefore, it seems that even though the constitutional project has not yet been completed, the identity of the State of Israel as a Jewish and democratic state is beyond dispute.Footnote 75
Thus, she claimed that
[O]ur constitutional structure is not complete, and it is certainly possible that additional layers and branches will be added along the way, yet these two pillars – the Jewish pillar and the democratic pillar – have long since been established. The removal of either one would lead to the collapse of the entire structure.Footnote 76
In other words, according to former Chief Justice Hayut’s theory of “constitutional data,” the limitations on the Israeli constituent power stem from the “constitutional data” which she argues is the foundation for the constituent power itself. This “constitutional data” includes the Israeli Declaration of Independence, the Basic Laws, ordinary legislation, and even case law.Footnote 77 Because the constituent power of the Knesset came from the sovereignty of the people and was passed from Knesset to Knesset since the founding of Israel, “the possibility of enacting a constitutional provision that would undermine the foundational elements of the state as Jewish and democratic – does not fall within the scope of the constituent power granted to the Knesset.”Footnote 78
Furthermore, former Chief Justice Hayut concluded that the Court is authorized to enforce this limitation on the Knesset’s constituent power. Her conclusion was based on “the unique characteristics of our constitutional structure and the manner in which the constituent authority is exercised, which distinguish our system from other legal systems and lead to the conclusion that the limitations on the Knesset’s constituent authority cannot be left as unenforceable limitations.”Footnote 79 These “unique characteristics” of the Israeli constitutional structure are the fact that the constitutional project is ongoing for decades; the lack of a unique procedure for the enactment of constitutional norms; and the unique control that a political majority, and the government, have on the exercise of the constituent power.Footnote 80
Former Chief Justice Hayut argued that the fact that the constitutional project has been ongoing for so long has increased the concern “over a possible weakening of the founding narrative that defines our existence and formed the basis for the establishment of the State, and possibly, God forbid, even a detachment from it.”Footnote 81 As for the lack of a unique procedure for the enactment or amendment of constitutional norms, she stated that a more arduous procedure leads to weaker justifications for the existence of judicial review. Therefore, in Israel’s case, the relative ease through which constitutional law is created and changed, justifies the application of judicial review to Basic Laws.Footnote 82 Finally, the fact that the government exercises incredible control over the Knesset not just in its legislative capacity, but in its constituent capacity as well, increases the concern that short-term political interests will overcome long-term constitutional interests in the creation of Israeli constitutional law.Footnote 83
In reaching her conclusion, former Chief Justice Hayut reasoned not only that the Court must enforce the limitations on the constituent authority, but that it is the optimal institution to do so. This is because the Court is the institution which carries out other types of judicial review over the legislative and executive authorities, and thus the task of judicial review of constitutional material “fits well, in my view, with the role entrusted to the Court as the guardian of the constitutional project.”Footnote 84 The Court is also the institution which typically deals with cases of ultra vires acts.Footnote 85 Lastly, former Chief Justice Hayut emphasized that “in Israel, there is currently no other body besides the Court, which is not involved in the enactment of constitutional norms, that is capable of serving as an ‘external check’ against the transgression of the boundaries of constituent authority.”Footnote 86
As mentioned, former Chief Justice Hayut led the majority opinion in the reasonableness ruling. Even so, the theory of constitutional data she proposed only gained the explicit approval of four other justices.Footnote 87 Thus, the theory of constitutional data proposed by former Chief Justice Hayut was not adopted by the majority of the overall panel.
II. Reflections on the Constitutional Data Limitation
So far, we have seen how former Chief Justice Hayut’s theory of constitutional data supports the idea that the entirety of Israel’s constitutional material and history limit the constituent power of the Knesset, empowering the Court to enact substantial review of constitutional laws. However, her theoretical approach raises a big question regarding the type of limitation which was applied to the Knesset’s constituent power.
Former Chief Justice Hayut didn’t discuss the nature of the constituent power exercised by the Knesset in the creation of the Amendment. As mentioned, in order to apply the unconstitutional constitutional amendment doctrine—which enables the enforcement of limitations set out by the primary constituent power on the constitutional material created by the secondary constituent power—the Court must first recognize constitutional norms which are the product of the primary constituent power, and those which are the product of the secondary amending constituent power. However, in the reasonableness ruling, the constitutional data limitation was presented and applied for the judicial review of the Amendment without addressing whether the Amendment was even a product of the secondary constituent power. As such, it was impossible to apply the unconstitutional constitutional amendment doctrine.
So, how was the constitutional data theory applied to strike down the Amendment? It appears that contrary to common perception following the reasonableness ruling, Chief Justice Hayut didn’t apply the unconstitutional constitutional amendment doctrine at all.Footnote 88 In fact, in her ruling, former Chief Justice Hayut explicitly stated that “[i]n any case, it should be clarified, for the avoidance of doubt, that the substantive judicial review of the Basic Laws focuses on safeguarding the limits of the constituent authority’s powers, and is not based on the existence of any norms that are hierarchically superior to the Basic Laws.”Footnote 89 Similarly, Justice Grosskopf, who backed former Chief Justice Hayut’s constitutional data theory, stated that “[u]nlike Prof. Claude Klein I do not believe that a distinction should be made between ‘original constituent authority’ and ‘derived constituent authority.’ In my view, the constituent authority held by the sitting Knesset is one and the same ….”Footnote 90
In other words, the Justices which followed former Chief Justice Hayut’s approach of constitutional data didn’t need to recognize the primary or secondary nature of the constitutional material because they didn’t rely on the unconstitutional constitutional amendment doctrine in the first place. Instead, they believed that the constitutional data limitation is a general limitation on the Knesset’s overall constituent capacity. Any exercise of the constituent power of the Knesset beyond the boundaries of the constitutional data limitation would be ultra vires, and the constitutional norm in question was never a valid norm in the first place. Put differently, instead of applying the unconstitutional constitutional amendment doctrine, former Chief Justice Hayut redefined the test for recognizing valid constitutional norms.
Originally, the test for recognizing constitutional norms was the formal test put forward by former Chief Justice Aharon Barak in the Mizrahi Bank ruling. Barak stated that to recognize a constitutional norm created by the Knesset, all that is needed is to see if the norm expresses its constitutionality with the title “Basic Law.”Footnote 91 The formal test of recognition was criticized for the fact that it allows the legislator to abuse its constituent power by using the title “Basic Law” any time it wants to avoid judicial review.Footnote 92 Even so, the Court abstained from explicitly changing the formal test of recognition to a substantial one.Footnote 93 The Court didn’t want to deteriorate the easy recognition of the Constitution,Footnote 94 which is one of the three foundations of a formal constitution.Footnote 95
However, in multiple rulings dealing with amendments to Basic Laws, the Supreme Court adopted the abuse of constituent power doctrine.Footnote 96 In Shafir v. The Knesset (the Shafir case), which was the only time the Court de facto intervened with a Basic Law using the abuse of constituent power doctrine, the Court stated that to test whether an abuse of constituent power occurred, the Court first needs to examine if the Basic Law “carries the characteristics or features of a constitutional norm.”Footnote 97 This includes checking the stability of the Basic Law, its generality, and how it fits into the constitutional fabric of Israel.Footnote 98 If the Basic Law failed to pass one or more of these tests, the Court would determine whether the respondents were able to justify the anchoring of the norm in the Basic Law.Footnote 99
The tests for the application of the abuse of constituent power doctrine created in the Shafir ruling may have altered the test for the recognition of constitutional norms. As Weill argued:
The Shafir precedent opens the door to a problematic debate regarding what is worthy of being included as part of the Israeli Constitution, and what amounts to an abuse of constituent power […] The Court was willing to sacrifice the easy identification of the constitution without gaining any substantial benefits in the form of empowering the normative supremacy or rigidity of the constitution.Footnote 100
Subsequently, it’s possible that Hayut’s ruling in the reasonableness case was simply a further elaboration on the test for the recognition of constitutional norms. One argument in the case was that the Court is unauthorized to review Basic Laws because its authority stems from Basic Law: the Judiciary and all Basic Laws share the same hierarchical normative tier.Footnote 101 When addressing this argument, Hayut agreed that all Basic Laws share the same normative tier, which is at the top of the normative pyramid.Footnote 102 As such, Hayut stated that so long as the Basic Law in question is indeed a valid constitutional norm and that the constituent authority acted within its limitations, there will be no judicial review of its actions.Footnote 103 In contrast, if the Basic Law or an amendment to it were created through a clear exceeding of the constituent authority’s limitations, then no valid constitutional norm was enacted.Footnote 104
This remark leads to the conclusion that the judicial review of Basic Laws carried out by Hayut in the reasonableness case was not based on the unconstitutional constitutional amendment doctrine. According to the unconstitutional constitutional amendment doctrine, the constitutional system may have an explicit or implicit limitation on the secondary constituent authority, which is set out by the primary constituent authority. Then, the Court may review the constitutional amendment in light of said limitations.
At first glance, this is what Hayut did: she identified Israel’s Jewish and democratic nature as an implicit eternal clause embedded in Israel’s “constitutional data” and applied judicial review to the Amendment which violated the democratic nature of the State. This seems like a de facto application of the unconstitutional constitutional amendment doctrine.
However, a deeper look provides a different explanation. As Hayut stated, a norm which is enacted through a clear exceeding of the constituent authority’s limitations is not a constitutional norm in the first place.Footnote 105 Instead of reviewing a constitutional norm ex-post, Hayut doesn’t recognize it as constitutional ex-ante. Thus, Hayut adds another layer to the test of recognition of constitutional norms. For a norm to be recognized as constitutional in the first place, it must adhere to formal characteristics—the title “Basic Law” with no date, adhere to the identification tests set out in the Shafir case, and not radically violate Israel’s nature as a Jewish or democratic state.Footnote 106
This interpretation of Hayut’s ruling has some major implications. First, the Basic Laws remain at the top of the normative hierarchy in Israel and are impervious to ex-post judicial review. Second, as there are still many unanswered questions regarding the theory of “constitutional data,” the Israeli Constitution is exposed to further chaos. Thus, it is unclear what constitutes the data and where it is formally anchored in the Israeli system. These criticisms of Hayut’s ruling were prevalent in the reasonableness case itself.Footnote 107 The once simple recognition of the constitutional norms—a necessary foundation of formal constitutionsFootnote 108 —has flown far out of reach. Lastly, the determination that the Court is enabled to review the validity of any constitutional norm ex-ante, as opposed to ex-post, means that the Court has de facto placed itself as a central actor in the creation of constitutional content. In other words, the Supreme Court of Israel, according to former Chief Justice Hayut’s theoretical position, is now an institution which takes part in the creation of valid constitutional norms, and thus of any exercise of the constituent power. It is a partial holder of the constituent power itself.
D. Basic Laws as the Source for Review of Basic Laws
A second constitutional theory which was utilized by several of the Israeli Supreme Court Justices in the reasonableness ruling was the theory of substantial self-entrenchments of the Basic-Laws. According to this theoretical approach, which was utilized by Justices Willner and Canfy-Steinitz, the Basic Laws themselves include limitations on the exercise of the Knesset’s constituent power and authorize the Court to review the Basic Laws’ validity. However, even though both Justices relied on the Basic Laws themselves to justify the Court’s ability to exercise judicial review of Basic Laws, there were critical differences between their approaches.
Justice Willner’s ruling in the reasonableness case is prominent as the main minority opinion regarding the use of the constitutional avoidance doctrine.Footnote 109 However, although Willner was a part of the minority opinion in regard to her decision to refrain from enacting judicial review of the Amendment, she simultaneously argued that the Court has the authority to review Basic Laws.Footnote 110 Justice Willner began by stating that ever since the Hasson case, limitations exist on the constituent power of the Knesset.Footnote 111 To anchor the Court’s authority to enforce these limitations, Justice Willner relied on Article 15(c) of Basic Law: the Judiciary. Article 15(c) states: “The Supreme Court shall also sit as a High Court of Justice. When so sitting it shall deliberate matters, in which it deems it necessary to provide relief for the sake of justice, and are not under the jurisdiction of another court or tribunal.”Footnote 112
Justice Willner interpreted this Article as an authorization for the Court to review Basic Laws to protect Israel’s Jewish and democratic nature, for “the sake of justice.”Footnote 113 She argued that the wording of this Article makes such an interpretation possible,Footnote 114 and that without this interpretation, there would be no limitation on the casual majority’s ability to change the substance of the Basic Laws.Footnote 115 As such, she stated that this interpretation is necessary to best fulfill the purpose of the Israeli constitutional system.Footnote 116
There are two ways to look at Willner’s approach for the review of Basic Laws. One is that there are limitations on the Knesset as the constituent authority—which stem from “constitutional data,” the Declaration, or natural law—and that Article 15(c) authorizes the Court to review Basic Laws by virtue of those limitations. Justice Grosskopf clarified that this is the correct approach:
Article 15(c) of Basic Law: The Judiciary does not limit the authority of the Knesset – neither in its capacity as the constituent authority nor in its capacity as the legislative authority. Therefore, it doesn’t give the Basic Laws a constitutional-supra-legal status, and in any case it cannot, and it has never been claimed that it constitutes, a normative source for invalidating a law or a Basic Law enacted by the Knesset. Article 15(c) of the Basic Law is the source of the residual authority given to the Supreme Court in its session as the High Court to discuss matters ‘[] which are not within the jurisdiction of a court or of another tribunal’. In other words – a limitation of authority … imposed on the Knesset, cannot be learned from Article 15(c) of the Basic Law: The Judiciary; the authority of the Supreme Court to supervise such a limitation, insofar as such a limitation is imposed by another legal source, can be learned.Footnote 117
In contrast, it is possible that Willner relied on Article 15(c) not only as an anchor for judicial review in light of existing limitations, but as the normative limitation on the Knesset’s constituent authority itself. That this is the approach taken by Willner may be indicated by the fact that she doesn’t discuss any other source which may limit the Knesset’s constituent power.Footnote 118 This may be Justice Mintz’s and Sohlberg’s interpretation of her ruling,Footnote 119 as well as the interpretation of some constitutional scholars.Footnote 120
While it is possible that Justice Willner merely views the Basic Laws as providing the residual authority for the Supreme Court to enforce the limitations on the constituent power which are anchored elsewhere, Justice Canfy-Steinitz provides unambiguous support for the theory according to which the Basic Laws themselves act as the limitation to the Knesset’s constituent power.
In her ruling, Justice Canfy-Steinitz accepted Willner’s application of the constitutional avoidance doctrine and interpreted the Amendment in a way which she believed “saved” it from being unconstitutional.Footnote 121 As for the matter of the Court’s authority to intervene with constitutional norms, Canfy-Steinitz was in the majority which ruled that the Court was authorized to do so.Footnote 122 However, like Willner, and unlike the other Justices, she argued that the Basic Laws themselves include the textual anchor for the existence of a substantial limitation on the Knesset’s constituent power—that limitation being Israel’s nature as a Jewish and democratic state.Footnote 123
Justice Canfy-Steinitz supported her approach by pointing out multiple examples in the Basic Laws themselves. Articles in Basic-Law: Human Dignity and Liberty and Basic-Law: Freedom of Occupation state that the purpose of the Basic Laws is to anchor Israel’s values as a Jewish and democratic state,Footnote 124 and Article 7a(a)(1) to Basic Law: The Knesset allows the disqualification of lists and candidates running for Knesset if they deny the existence of Israel as a Jewish and democratic state.Footnote 125 She believed that these articles in the Basic Laws themselves anchor a substantial limitation on the Knesset’s constituent powers.Footnote 126 While she stated that it may be possible to anchor such limitations from sources other than the Basic Laws, she believes that at this stage of the Israeli constitutional evolution, it is appropriate to infer this limitation from the existing constitutional text, in a manner which respects the sovereignty of the Knesset and its binding authority.Footnote 127
The approach according to which the existing constitutional text limits the constituent power—which was expressed by Justice Canfy-Steinitz and possibly Justice Willner—is not without its issues. While these limitations are less ambiguous than Hayut’s theory of constitutional data by mere virtue of their anchoring in the constitutional text, they were not relied upon by most of the panel for a reason. Thus, Justice Barak-Erez stated that “the limitations … on the enactment of Basic Laws cannot arise from legislation at the same normative level, but must be anchored in a basic supra-constitutional principle.”Footnote 128 Similarly, Justice Sohlberg stated that striking down Basic Laws by virtue of principles anchored in other Basic Laws creates a frontal collision between the Basic Laws, which will always be “won” by the newer Basic Law.Footnote 129 This is because the Basic Laws are on the same normative tier, which means that the principles of lex specialis derogat generali (specific legislation prevails over general rules) and lex posterior derogat priori (newer rules prevail over older rules) apply.Footnote 130
In addressing Justices Barak-Erez’s and Sohlberg’s objections, Justice Canfy-Steinitz broached the topic of primary and secondary constituent powers.Footnote 131 As mentioned, the primary constituent power typically exists only in the original creation of the Constitution and is superior to the secondary constituent power which is expressed in amendments to the Constitution.Footnote 132 Justice Canfy-Stenitz argued that in the Israeli context, there are various approaches as to the application of this theory. One, which is supported by former Chief Justice Aharon Barak, posits that because the Israeli Constitution is still in the making, the Knesset’s constitutional enactments at this point are all an expression of the primary constituent power. The second approach expressed by Claude Klein is that the Basic Laws are an expression of the primary constituent power, while amendments to the Basic Laws are an expression of the secondary constituent power. A third approach posits that both new Basic Laws and amendments to them are products of the secondary constituent power.Footnote 133
Canfy-Steinitz didn’t explicitly decide which of these approaches she prefers. Instead, she stated that only according to Barak’s former approach is it problematic to anchor the limitations on the Knesset’s constituent authority in the constitutional text itself.Footnote 134 However, she then pointed to the fact that some sections in the Basic Laws are formally entrenched, meaning that amendments to them require certain majorities, and that “no one will dispute the authority of this Court to conduct judicial review on the question of whether the formal requirements of a constitutional amendment have been met.”Footnote 135 In doing so, Justice Canfy-Steinitz seems to implicitly rely on Klein’s second approach regarding the nature of the primary and secondary constituent powers in Israel. By pointing out that formal entrenchment in the Basic Laws authorizes the Court to enact judicial review to infringing amendments, Justice Canfy-Steinitz de facto assumes that these amendments would be products of the secondary constituent power, with the entrenching sections being products of the primary constituent power. Regardless of whether this assumption is correct,Footnote 136 only Klein’s description of the constituent power in Israel could lead to this conclusion.
However, even if we consider the few cases of entrenchments in the Israeli Basic Laws,Footnote 137 and accept that the Court may apply judicial review to enforce these formal entrenchments, this doesn’t necessarily support Canfy-Steinitz’s theory of judicial review of Basic Laws which are not formally entrenched. This is because none of the articles in the Basic Laws pointed out by Canfy-Steinitz as anchoring the Jewish and democratic nature of Israel are formally entrenched. This means that judicial review of Basic Laws by virtue of said articles must be based on a theory that explains the superiority of one unentrenched Basic Law over another of the same normative status.
Fortunately for Canfy-Steinitz, such a theory exists. Claude Klein’s theory regarding the primary and secondary constituent powers can justify the theoretical review of the Amendment specifically because it is an amendment.Footnote 138 This would make it an expression of the secondary constituent power, which contradicts the expression of the primary constituent power in at least one of the articles which anchor Israel’s Jewish and democratic state.Footnote 139 Unfortunately, Canfy-Steinitz relied on Klein’s theory only implicitly, and refrained from explaining why the formally unentrenched sections in the Basic Laws regarding Israel’s Jewish and democratic nature are normatively superior to the Amendment.
Justices Willner and Canfy-Steinitz both followed a constitutional theory which views the Basic Laws as the limitation on the constituent power of the Knesset.Footnote 140 However, without creating a test for the identification of the primary and secondary constituent powers in Israel, their constitutional theory raises the primary concern that judicial review of Basic Laws is carried out by a norm on the same tier on the normative hierarchy.Footnote 141 Consequently, their constitutional theory is left with a gaping hole in its reasoning.
E. Declarations of Independence as the Limitation on Constituent Power
The third theoretical approach for the limitation of the constituent power in Israel expressed in the reasonableness ruling focuses on declarations of independence as a source which binds the creators of the constitution. Led by Justices Stein and Barak-Erez, this theoretical approach views the Israeli Declaration of Independence as the document which ordered the creation of the original Constituent Assembly which later became the First Knesset, and thus as a document which creates the framework for any current exercise of constituent power.
Justice Stein supports a positivist view of law, and objects to the constitutional conception which “promotes abstract values, devoid of formal anchoring – such as ‘democracy’ – over the written letter of the law.”Footnote 142 As such, Stein believes that for judicial review of Basic Laws to exist there must be a higher norm—which is formally anchored—that limits the constituent authority.Footnote 143 Stein believes that such a norm exists in the Israeli Declaration of Independence.Footnote 144
To explain the Declaration of Independence’s importance in Israel’s constitutional story, Justice Stein begins by examining two other legal documents from the founding of the state. First, he looks to The Proclamation of the Provisional State Council, adopted on May 14, 1948—the same day as the Israeli Declaration of Independence.Footnote 145 The Proclamation announced that:
[B]y virtue of the Declaration of Independence, published today, the 5th of Iyar, 5708 (May 14, 1948), which established the Provisional State Council and the Provisional Government of the State of Israel, the Provisional State Council hereby declares as follows: 1. The Provisional State Council is the legislative authority. The Provisional State Council is authorized to grant this authority to the Provisional Government for the purpose of urgent legislation.Footnote 146
Second, Justice Stein points to the Law and Administration Ordinance, also from the founding of Israel.Footnote 147 This ordinance begins by stating that “by virtue of the authority which was given to the Provisional State Council in the declaration announcing the founding of the State of Israel from the 5th of Iyar, 5708 (May 14, 1948) and the Proclamation from that same day, the Provisional State Council legislates as such: ….”Footnote 148
Justice Stein concludes that both of these founding documents
[L]eave no doubt as to the source of the Knesset’s authority to legislate laws and to enact a constitution for the State of Israel. These founding documents explicitly state that the Provisional State Council, and any legislative body appointed thereafter, shall be empowered to legislate laws and enact constitutional provisions by virtue of the authority established in the Declaration of Independence. This authorization is indispensable: without it, no Knesset would have been authorized to legislate ordinary laws or to enact Basic Laws. If we disregard this authorization, we will not find in our legal system any formal provision granting Knesset legislation binding legal force or obligating the state’s institutions and its citizens to uphold and comply with such laws. This authorization — and its limits — received the people’s recognition at the time it was established. All of this is documented in the Declaration of Independence, whose formal legal status as a supra-constitutional norm – the basic rule of recognition, in Hart’s terms – was anchored in the Proclamation and later in the original Law and Administration Ordinance.Footnote 149
As such, Justice Stein concluded that the Israeli Declaration of Independence acts as a limitation on the Knesset’s constituent power in its entirety. Even though this theory contradicts prior case law according to which the Declaration has no legal standing,Footnote 150 Stein believes that it is time to correct past errors.Footnote 151
As to what the limitations imposed by the Declaration are, Justice Stein argued that the Declaration promises to ensure liberty, justice, and complete equality of social and political rights.Footnote 152 In addition, it guarantees that Israel would be open to Jewish immigration; would develop the country for the sake of all its inhabitants; would be founded on the basis of liberty, justice, and peace in light of the vision of the prophets of Israel; and would maintain full social and political equality of rights to its citizens regardless of religion, race, or gender.Footnote 153
In other words, Justice Stein contended that the Declaration itself anchors the nature of Israel as a Jewish and democratic state, and that the Knesset cannot legislate any laws—or Basic Laws—which blatantly contradict this nature. This is because the Knesset’s authority is derived from the Declaration itself. Consequently, the Knesset cannot overrule the Declaration.Footnote 154
Unlike Justice Stein, who maintained that the Knesset’s constituent power is indeed limited but that the Amendment in question was created well within these boundaries, Justice Barak-Erez joined the majority opinion stating that the Court has the authority to review Basic Laws, and that the Amendment itself should be struck down.Footnote 155 She also agreed that the limitations to the Israeli constituent power are Israel’s nature as a Jewish and democratic state, and that the Court may review Basic Laws to preserve these two foundational characteristics of the State.Footnote 156 However, she—like Justice Stein—argued that the anchor for this limitation is found within the Israeli Declaration of Independence.Footnote 157
Nevertheless, Justice Barak-Erez’s view of the Declaration of Independence as the limit to the Knesset’s constituent power differed from Justice Stein’s from a theoretical perspective. Justice Barak-Erez presented two possible approaches regarding the Declaration’s limitations on the Knesset: (1) the Declaration is the source of authority for the Knesset’s legislative and constituent powers, and as such, the norms found therein define the Knesset’s range of authority;Footnote 158 or (2) the Declaration—as it is not the Constitution—cannot serve as the basis for judicial review of ordinary legislation. Instead, it restricts only the constituent power, because the Declaration included the framework for the enactment of the Constitution.Footnote 159
Barak-Erez rejected the first approach, stating that it defies the entirety of Israeli case law since the founding of the State, which always consistently ruled against the argument that the Declaration had any sort of legal implication for ordinary legislation.Footnote 160 In contrast, she believed that the second approach raises no such issues. The Declaration set out limitations regarding the enactment of the Constitution by the constituent power, and these limitations remain relevant to the Knesset’s constituent power.Footnote 161 As such, the Declaration enables review of Basic Laws, without enabling review of ordinary legislation.Footnote 162
Barak-Erez’s approach is appealing in many ways. From a positivist perspective, it provides a clearer answer for the source of the constituent power’s limitations than Hayut’s theory of “constitutional data.” From a jurisprudential perspective, it is more sensible to review Basic Laws by virtue of the Declaration by stating that it is normatively superior to them, than doing so by virtue of the Basic Laws themselves as argued by Willner and Canfy-Steinitz. It also avoids the obstacle which Stein’s theory faces as it doesn’t directly contradict decades of case law.
Nevertheless, this approach contains an inherent paradox. If the Declaration is normatively superior to the Basic Laws in the Israeli normative hierarchy, and the Basic Laws are normatively superior to ordinary legislation, then how can the Declaration not be normatively superior to ordinary legislation? In mathematical terms, if A is greater than B, and B is greater than C, then shouldn’t A be greater than C? This is the logic of a fortiori reasoning. Except that according to Barak-Erez A isn’t greater than C.
Perhaps the answer is that the Declaration is superior to ordinary legislation and Basic Laws, but judicial review by virtue of the Declaration can only be applied to the Basic Laws. But it is hard to support such reasoning. If the Declaration is normatively superior to ordinary legislation, how could contradicting legislation be valid? Especially when an identical enactment in the form of a Basic Law—which should be more difficult to review—would lead to judicial review of that Basic Law by virtue of the Declaration. It is probable that this very reason led Justice Stein to his decision to apply the first approach regarding the Declaration.
It seems that any theory which relies on the Declaration for review of Basic Laws suffers a fatal flaw, and justices wishing to follow such a theory must pick their poison. Either follow Stein’s approach, thereby ignoring decades of Israeli case law, or follow Barak-Erez’s approach and suffer a jurisprudential inconsistency which creates a circular constitutional hierarchy.
But perhaps even more interesting is that, while both justices don’t explicitly discuss the distinction between primary and secondary constituent powers, their rhetoric regarding the Declaration points to the fact that it acts as a limitation on any kind of constituent power. More specifically, if the Declaration limits every exercise of the Knesset’s constituent powers, then this would include the exercise of a power which may be deemed by some as a primary constituent power.Footnote 163
F. A Theory of Natural Law
Justice Kabub concluded that the Knesset is limited in its role as the constituent power and that the Court may review the Basic Laws;Footnote 164 that the correct interpretation of the Amendment is that it annuls any form of the administrative reasonableness doctrine;Footnote 165 and that, as such, there is no choice but to strike down the Amendment, which was enacted outside the scope of the Knesset’s constituent power.Footnote 166 He is part of the majority opinion both regarding the Court’s authority to review constitutional norms and regarding the fate of the Amendment itself.
However, his method for joining the majority opinion is unique among the different theories presented in the reasonableness case. Justice Kabub rejected any theory which relied on the Declaration due to the fact that its drafters didn’t see it as a document with any legal standing, and due to the Court’s consistent rulings which reached the same conclusion.Footnote 167 In addition, he declined to make use of Hayut’s theory of “constitutional data,”Footnote 168 or a theory according to which the Basic Laws themselves limit the ability to enact Basic Laws.Footnote 169
Instead, Justice Kabub decided to anchor the limitations on the constituent power on supra-constitutional values and foundationalism.Footnote 170 He relied heavily on past opinions given by Justice Cheshin,Footnote 171 who was always an outlier in the Supreme Court when it came to his willingness to turn to principles with no formal anchoring to support his rulings.Footnote 172 In his minority opinion on the question of whether ultra-orthodox men could be exempted from mandatory military service, Justice Cheshin refused to strike down the exempting law via the reasoning that it contradicted Basic Law: Human Dignity and Liberty.Footnote 173 He believed that it was an honor to serve in the army, and thus serving could not infringe on human dignity.Footnote 174 Instead, he struck down the exempting statute due to its infringement on the most fundamental unwritten constitutional values of Israel.Footnote 175 As Weill states, “this was the first and only time that an Israeli Supreme Court justice was willing to explicitly utilize foundationalism to invalidate a statute.”Footnote 176
Justice Kabub provided several examples of Cheshin’s foundationalist approach to support his position regarding the Court’s authority to review Basic Laws. For instance, he quoted Chesin’s hypothetical example from the Mizrahi Bank ruling, stating that even without a formal constitution, the Knesset would not be authorized to alter the number of its members or prolong its term beyond four years.Footnote 177 He later quoted Cheshin’s assessment that the Basic Laws are not at the top of the normative pyramid, as there are fundamental principles from which the Basic Laws themselves gain meaning. These fundamental principles are the core of natural law and of the Jewish and Democratic State.Footnote 178
It is not coincidental that Cheshin was the only Israeli Supreme Court Justice in decades who was willing to rely on natural law or foundationalism to intervene with legislation. Such theories are regarded as “unconventional weapons,”Footnote 179 and as provoking many severe difficulties.Footnote 180 Former Chief Justice Barak stated that such an approach would change the public perception of the Court, who will be seen as deviating from the social consensus regarding the role and power of a judge in Israeli society. He added that, at that point in time, important and profound decisions like the fate of legislation—which doesn’t contradict Basic Laws—should be decided by the elected representatives.Footnote 181
Justice Kabub’s addressal of these concerns seems lacking considering the weight of the issue and the uniqueness of his approach. When discussing the question of how to recognize these supra-constitutional limitations, Kabub stated that even without a written constitution, the People require some sort of protection from their representatives.Footnote 182 In relation to the Amendment, he stated that the Knesset—as the representative of the People—doesn’t have the authority to exempt the administrative branch from its legislation.Footnote 183
Paradoxically, Kabub stated early on in his opinion that he believes that there is a need to formalize Israel’s constitutional law.Footnote 184 In the end, as is always the case with constitutional theories of natural law, only the judge can perceive the supra-constitutional principles and their limitations. Regardless of whether Kabub’s approach is normatively desirable, it is unmistakably contradictory to a formalization of Israeli constitutional law.
G. An Unlimited Constituent Power
The last theory regarding constituent power in the reasonableness case was expressed in the opinions of Justices Mintz and Sohlberg. They both denied the existence of a limitation on the constituent power of the Knesset which authorizes the Court to intervene with the Basic Laws.Footnote 185 As such, they were a part of the minority opinion regarding the decision to strike down the Amendment as well.
Justice Mintz began by stating that there is no explicit authority for the Court to intervene with the constitutional norms in Israel.Footnote 186 He argued that even though the Mizrahi Bank ruling established the Court’s authority to strike down ordinary legislation, the constitutional theory upon which it was based was problematic to say the least: the Basic Laws are generally not entrenched, there was no ongoing public debate or procedure for their constitution, and there was no consensus regarding their enactment.Footnote 187 Even so, once the Court established this authority by stating that the Basic Laws are Israel’s Constitution, it simultaneously gave the legislature the ability to amend or annul the substance of this Constitution through regular legislative procedures.Footnote 188 Consequently, there is no theory which provides the Court with the ability to review the Basic Laws.Footnote 189 If supra-constitutional norms establish the authority to review the Basic Laws, then there was no point in giving them supreme normative standing in the first place: the Court could simply review ordinary legislation by virtue of those same supra-constitutional norms.Footnote 190
Justice Sohlberg gave the final opinion in the reasonableness case, and he agreed with Justice Mintz regarding the lack of any limitations on the Knesset’s constituent power.Footnote 191 He believed that the Basic Laws are at the top of the Israeli normative hierarchy, and as such there is no superior norm from which judicial review can be carried out.Footnote 192 He relied on the ghosts of past Supreme Court Justices, arguing that given some of their rulings, they would have joined the minority opinion in the case.Footnote 193 He rejected the other constitutional theories expressed in the opinions of the panel.Footnote 194 In short, Justice Sohlberg maintained that
[a] determination that there exists some limitation on the competence of the constituent authority, and that this Court holds the power to enforce such a limitation, ‘de facto’ annuls the basic democratic foundation of the sovereignty of the people through their elected representatives. The determination of my colleagues, enables the Court to annul a supreme constitutional norm, even if it was enacted unanimously, by all 120 members of the constituent authority, who represent the entire people, from first to last. Through a process of gradual erosion, ‘substantive’ democracy has slowly gnawed away at ‘formal’ democracy, which has been declared outdated, a relic of the past. This trend is not acceptable to me. Even if we accept that ‘substantive’ democracy, in the form of the ‘basic values of the system’, is the ‘soul’ of democracy, that ‘soul’ nevertheless requires a living, breathing, creative, vibrant body, within which it can develop. Democracy, in its most basic and simple sense, allows the ‘people in the fields’ to have their say; even the ‘final say.’Footnote 195
Both Justices Mintz and Sohlberg warned that giving the Court the ability to review the Basic Laws de facto gives it the “final say” in the Israeli constitutional system. If this is the case, the only limitation on the Court’s authority is the ability of the justices to exercise judicial restraint.Footnote 196 Yet in the end, as Justice Mintz stated, they remained “a voice crying in the wilderness.”Footnote 197
H. Conclusion
In many ways, the reasonableness ruling symbolizes an end to a year which dealt with the judicial reform/overhaul in Israel. The beginning of the October 7 war led to an abrupt stop to the ongoing public conflict regarding the Israeli judiciary, and the reasonableness ruling provided the final note to this story.Footnote 198 Even so, the ruling which led to the explicit adoption of a doctrine for the judicial review of constitutional norms in Israel and in which a constitutional statute was struck down for the first time will no doubt have a lasting effect on Israeli constitutional law.
The fact that the ruling included the entire panel of the Supreme Court provided a rare view of the entire Court’s opinions regarding the most foundational questions within a legal system: what the supreme legal norm is; are there any limitations on the constituent power; what those limitations are; and what is the Court’s role in enforcing said limitations. While the Court arrived at a majority ruling regarding the existence of limitations on the constituent power and regarding the need to strike down the Amendment, it could not agree on a constitutional theory to anchor such limitations.
Thus, five distinct approaches to constituent power were offered in the reasonableness ruling, to either justify or reject the existence of a limitation on the Knesset’s exercise of constituent power and the ability to enact judicial review of the Basic Laws: the “constitutional data” in the system limitation; the self-limitation of the Basic Laws themselves; the Declaration of Independence limitation; the natural law limitation; and the rejection of any limitation whatsoever.
Curiously, despite the result of the ruling, where for the first time a constitutional law was struck down in Israel, none of the justices relied on the ubiquitous distinction between the primary and secondary constituent powers. As such, contradictory to common perception, the Supreme Court of Israel didn’t adopt the unconstitutional constitutional amendment doctrine in the reasonableness ruling. Instead, it adopted the much more radical doctrine according to which the Court may strike down any constitutional law—whether the product of the primary or secondary constituent power—so long as the Court is satisfied that it was passed via an exceeding of the Knesset’s constituent power.
As a result, the future of the Israeli legal system is unclear. The reasonableness ruling may have set a precedent regarding the ability of the Court to intervene with the Basic Laws, but the justifications, theoretical methods, and procedures for this intervention are still ambiguous, and left for future debate. We can only hope that future discussions on the topic will be purely theoretical and remain in academic circles.
Acknowledgements
I thank Professors Aharon Barak and Yaniv Roznai for their continuous mentorship and guidance in unraveling the complexities of constituent power; as well as Professor Lior Zemer for his unwavering support. I would also like to express my appreciation to the entire editorial team of the German Law Journal, and especially Emma Gilliam, for their insightful comments.
Funding Statement
No specific funding has been declared in relation to this Article.
Competing Interests
The author declares none.
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