The question of empowering the court and the limits of constitutional protection are at the heart of the debate over constitutional design in Israel. Lacking a comprehensive written constitution, Israel nonetheless has a set of basic laws which encompass many of the functions of a constitutional text making it a near-complete constitution. Nonetheless, there continues to be considerable support for the idea of a single, formally adopted constitutional text. Recently, several proposals have been brought to the forefront of political discussions through the actions of various interest groups outside the government, and energized and committed efforts by government officials and members of the Knesset. While these proposals differ in many aspects, they share similar views of the need to establish a model of judicial review that accords with Israel’s system of representative government. In this paper we focus on one particular proposed model of judicial review, the selective non-justiciability model promoted by the Israel Democracy Institute. We analyze the terms of the model of judicial review contained in the proposal and find that it encompasses three distinct compromises: a “political compromise” among competing interests; a “democratic compromise” among competing theories of representative government; and a “cultural compromise” among competing values of multicultural pluralism and universalist liberal norms. The terms of these compromises challenge the predictions of much of the comparative literature on constitutional design, and point to the complexity involved in negotiations over judicial authority under conditions of pluralism.
Available at: http://works.bepress.com/howard_schweber/4/