Idealism and Realism in Israeli Constitutional Law

Abstract

This chapter, written for the Book “Constitutionalism and the Rule of Law: Bridging Realism and Idealism” (forthcoming, CUP), investigates three distinct, though interrelated, questions. First, what do the concepts of idealism and realism mean in the context of constitutional law? Second, what can the Israeli constitutional regime teach us, if anything, about the supposed gap between idealism and realism? Third, should a constitutional system work toward bridging the ideal and the real? The common intuition is that the gap between idealism and realism, however those terms are understood, should be bridged. The chapter will critically examine this proposition in the Israeli context, but will also provide some general insights. I make two overarching claims. One is that the categories of idealism and realism, though seemingly intuitive, turn out to be quite complicated to disentangle. The second claim is that the existence of a gap between the ideal and the real, though seemingly problematic at first blush, might have, on closer examination, limited normative significance.

To demonstrate my claims, I examine three areas of Israel’s constitutional structure: constitution-making, rights protection, and institutional image. For each area, I discuss the ideal and the real, and especially the gap between the two. Regarding constitution-making, I show how today’s constitutional settlement looks very different from the one that was envisioned by the framers’ of Israel’s Declaration of Independence. My main argument, however, is that much of the difference lies in form rather than substance. Regarding rights protection, I show how Israel’s judiciary took it upon itself to protect individual rights when the legislature stalled. Here too I argue that despite a seeming gap between idealism and realism, much of the difference lies in the form of protection rather than its substance. Regarding institutional image, I demonstrate how, in cases regarding torture and the separation wall, the Supreme Court seeks to transmit to its foreign audiences an image of a progressive rights protecting court by deciding which decisions to translate into English. I then point to a gap between the translated and non-translated decisions dealing with the same issues. Examining the translated decisions together with the non-translated decisions reveals a more complicated and messier picture than the Supreme Court would like to convey.

Keywords: constitutional law, Israel, judicial review, institutional image, constitution-making, separation wall, torture

JEL Classification: K10, K30, K40