Mark Israel Studies, Spring 2001 v6 i1 p101
Carl Schmitt and the Jewish Leviathan. (legislation in Israel) Emanuele Ottolenghi.
COPYRIGHT 2001 Indiana University Press

The Supreme Court vs. the Sovereign Knesset

INTRODUCTION

CONFLICTS BETWEEN COURTS AND DEMOCRATICALLY elected institutions are common to many western countries, especially when judicial bodies perform review of statutes.(1) Although contested as undemocratic, judicial review is justified as being the enforcement of a supra-legal norm,(2) usually a constitution, whose binding force is higher than primary legislation and whose function is to create limits for the use of popular sovereignty.(3)

Israel lacks a written, entrenched constitution; hence, in Israel there is an additional dimension to this conflict. The lack of a constitution means that there are no formal limits to sovereign power (vested with parliament), and we are therefore justified prima facie in discussing Israel as a case on its own. The peculiarity of Israel's situation is strengthened by recent decisions of the Israeli Supreme Court. On the basis of two Basic Laws approved in 1992,(4) the Court declared its power to review legislation enacted by the Knesset [Parliament].(5) It may be argued that too much focus put on formal aspects of a political system is less relevant than on substantive ones, but the importance attached to the constitutional question within Israeli political discourse justifies an examination of the conflict between parliamentary sovereignty and judicial review. At: the root of this conflict lies a conception of sovereignty that, although perhaps democratic, does not always include a commitment to liberal values and to limited government. It is my contention that this conception is at the heart of the failure to adopt a constitution, and it presently provides the normative basis for some of the criticism voiced against the Supreme Court. Hence, the need to discuss sovereignty within Israel's context.

I would argue that sovereign power in Israel is the reflection of a conception of political authority conceived along the ideas expounded by Carl Schmitt in his books, Political Theology and The Concept of the Political.(6) In order to prove my argument, I will address the apparent conflict between parliamentary sovereignty and judicial review in Israel. I will focus on three elements: the theory of sovereignty, and Israel's constitutional and ideological contexts. Through this analysis, I hope to show that the Israeli version of parliamentary sovereignty is a re-elaboration in democratic and participatory terms of the classic theory of sovereignty as elaborated by Thomas Hobbes(7) and Schmitt. Part of the criticism of Israel's Supreme Court attempts to defend this view of political power; thus, I will develop my claim as a counter-argument to critics of the Court. By pointing out analogies between Schmitt's sovereignty and the power attributed by many critics of the Court to the Knesset, I hope to highlight the similarity between Schmitt's political theory and some of the arguments raised against Israel's Supreme Court. In doing so, I will suggest that these arguments fail to realize that this conception of authority, though aimed at guaranteeing order and social cohesion within a rifted democracy, bears the seeds of authoritarianism.

SOVEREIGNTY AND THE POLITICAL

In its classical version, sovereignty presupposes a hierarchically structured political order. The sovereign is its highest authority. Any binding norm must stem from its will.(8) As the supreme power within the polity(9) the sovereign has the last word on both the meaning and content of rules. What is relevant to determining whether rules are valid, therefore, is their source, not their content.(10) Other state powers must enforce sovereign will accordingly. Any challenge to it must be considered illegitimate.(11) Having the power to limit all its subjects by expressions of will, but not being itself subject to those limits, the sovereign is absolutely free with two exceptions: self-restraint(12) and the creation of another similar power, since two absolutes cannot coexist without neutralizing each other.(13)

Sovereign order is the result of two premises--one logical and one normative. If power is understood as being naturally expressed by relation of subjugation and subordination, sovereignty is logical in-so-far as a pyramidal structure requires an original, non-derivative power, which, as the highest authority, justifies all other powers.(14) Logic alone, however, cannot justify a specific conception of order unless there is a further normative premise that reflects a particular understanding of human condition within a political society.

According to Hobbes, it is inherent to the human condition that people will attempt to overcome one another. Hence, an absolute authority that rules over society is the only solution for otherwise inevitable anarchy.(15) By understanding society as conflict-ridden, Hobbes's theory of sovereignty is a response to what he sees as the inevitable political disorder. If conflict is truly the natural order of social relations, there must be one political will that is universally recognized as the supreme authoritative voice in the solutions of matters of contentious nature,(16) even though the price for order might be the restriction of freedom.(17) This premise is important, because, if sovereignty is the instrument to avoid political disorder and internal conflicts within a polity, any other authority empowered to challenge the sovereign automatically becomes a threat to order and social peace. A judiciary empowered to perform judicial review of legislation represents precisely the kind of alternative source of legitimacy, which would limit sovereignty and neutralize its ability to ensure order.(18) The acceptance of sovereign supremacy dispels the danger of competing sources of legitimacy within the polity and ensures the conservation of order and peace.(19) The need for a sole and supreme source of power is not deduced on the ground of logic alone, therefore, but is also normatively justified as all antidote against disorder.(20)

Schmitt shares Hobbes's normative premise. In The Concept of the Political, he states that "The specific political distinction to which political actions and motives can be reduced is that between friend and enemy."(21) Schmitt's distinction between friend and enemy is important to both a general discussion on the nature of political power, and a particular discussion of conceptions of power within the Israeli polity Schmitt never fully clarified his much-quoted dichotomy.(22) This is due to two important assumptions: "the inability ... to define apriori specific contents and motives that define political action"(23) is caused by the fact that the friend-or-enemy distinction is contingent on time and space. It is therefore imperative to be aware, not of the specific categories of the distinction (which change), but of the essence of the political, which is rooted in conflict: "in extreme situations, human action reveals its totally contingent origins, which lack guarantees and are exposed to absolute disorder ..."(24) That conflict is an extreme possibility does not deny these two principles: the roots of conflict are circumstances, which cannot be forecast in advance, and conflict, which can lead to absolute disorder. Left with no categories to define either friend or enemy, Schmitt argues that:

The political can derive its energy from the most varied human endeavors,
from the religious, economic, moral, and other antitheses. It does not
describe its own substance, but only the intensity of an association or
dissociation of human beings, whose motives can be religious, national (in
the ethnic or cultural sense), economic or of another kind and can effect
at different times different coalitions and separations.(25)
The intensity of the association (friend) or dissociation (enemy) indicates only the likelihood of conflict,(26) not its nature: "The real friend-enemy grouping is essentially so strong and decisive that the nonpolitical antithesis, at precisely the moment at which it becomes political, pushes aside and subordinates the hitherto purely religious, purely economic, purely cultural criteria and motives to the conditions and conclusions of the political situation at hand."(27) There is simply no possibility of knowing what kind of antithesis will become so intense as presupposing conflict at any point in time, or in any given social context.

The inability to define the categories of the political produces an inability to formulate categories of response in advance of the materialization of conflict. Since the distinction does not require belligerence to exist, but it is based on an intense dissociation--which can, in the extreme case, lead to conflict--political power cannot be limited in the range of options it has at its disposal to face the political.(28) If political authority must have the means to effectively handle conflict, it follows that it must enjoy absolute power.(29)

This explains why Schmitt defines the sovereign as that which decides the exception.(30) The exception "... is principally unlimited authority, which means the suspension of the entire existing order." Only full freedom of action gives the sovereign the ability to face the exception--which the friend-or-enemy distinction can in the extreme case produce--in its unpredictable circumstances and find the proper answer to address its consequences(31); consequently, no legal or constitutional constraint can be put on the sovereign. Such limitation implies the refusal of the concept of the political, and the rejection of a world where conflict can eventually take place. Authority is thereby deprived of the instruments to forecast the consequences of a conflict. In fact, political power becomes hostage to the limits imposed by a constitutional state, where, in the event of an emergency, the resort to proper means will be denied or delayed by checks and balances.(32) The price of order requires the legitimization of the monopoly of force and its concentration in the hands of one supreme authority that has no limits to its exercise. This obviously includes judicial review.

Though Schmitt does not relate explicitly to the powers of courts. Hobbes does, and their theory of sovereignty is in a sense a theory of judicial interpretation.(33) This is so because the theory of sovereignty requires total subordination of all state powers to the sovereign and can allow judges to interpret the law (which is the will of the sovereign) only on certain conditions. The will of the sovereign must be carried out, and yet the sovereign cannot be the one physically applying and interpreting the law at all times. A theory of interpretation is therefore needed that will not endanger Hobbes's and Schmitt's understanding of political power: the interpreter must apply the law as if the sovereign itself was sitting in judgment.(34) An interpretation that is not in line with sovereign will could jeopardize order for two reasons:

1. A dissonant interpretation represents a different and competing will, which can create alternative sources of legitimacy and is therefore apt to cause conflict.

2. The limitation of sovereign will constitutes the limitation of the political power to handle the emergency and to confront the political in full freedom.

Even if persons other than the sovereign physically carry out the interpretation and execution of the law, the same power and the same will must be the source of the legislative and interpretative production of the state. Thus, sovereignty requires a jurisprudence that denies judges the possibility to interpret statutes independently from sovereign will.(35) The coincidence of will and interpretation avoids conflict and preserves the sovereign powers to face the political and address the emergency. Conformity with the will and the intention of the sovereign with regard to the meaning of the law prevents the interpreter from becoming the author of new rules, through "creative" jurisprudential readings.(36)

If political conflict stems from a friend-or-enemy distinction between various groups within society, con:fortuity to the will and the intention of the sovereign also guarantees that judicial interpretation will not become an obstacle to the elaboration of compromises capable of reducing social conflicts and of establishing political consensus; the more intense the association and dissociation within society, the more preferable the choice for a sovereign that has no limits on it powers. Only by accepting this understanding of sovereignty is the power of judicial review (which includes the power to void laws) a subversive power, since the interpreter voids the will of the sovereign and, by so doing, limits the sovereign's capability to face emergencies and manage conflict. The interpreter replaces the political sovereign by curtailing its power to frame political compromises in laws and determine their meaning; hence, judicial review is subversive because:

1. It replaces the sovereign in the production of will.

2. It creates an alternative source of legitimacy within the polity.

3. It limits the sovereign in its ability to face and solve emergencies.

4. It prevents the sovereign from resorting to its full powers in the wake of conflict.

This theory views judicial review, not as an instrument to protect civil liberties or as a desirable constraint on power, but rather as an obstacle to political power's attempts to effectively manage the conflictual nature of society, thus becoming, itself, a source of conflict. And this is true even when judicial review attempts to redress a wrong, since it interferes with the sovereign and ultimately hurts the sovereign's ability to fulfill its functions.(37) The more established the assumption that political power is justly unlimited, the more violent the clash between supporters of sovereignty (which in Israel is entrusted to the Knesset) and the courts' attempts to limit and frustrate legislative will through judicial review. In Schmitt's view, this clash cannot be reconciled and therefore requires a choice among centers of power, where one must ultimately emerge as supreme.(38)

Applied to the conflict between courts and political power, this understanding views judicial review as the attempt to establish the judges' sovereignty over the supremacy of the political. Those who attack the Supreme Court in Israel on the basis of the argument that judicial review infringes upon sovereignty, accept Schmitt's call for a choice. Their choice stems from a conscious recognition that Israel is a rifted democracy--that is, one that is very strongly divided or fractured among different groups, religious, ethnic, and social--and, as such, it is ridden with friend-or-enemy distinctions of the most intense and existential kind. These distinctions demand absolute freedom to formulate compromises within society in order to avoid conflict. By trying to protect the sovereign powers to elaborate political compromises in full freedom, however, critics of the Supreme Court, by putting emphasis on the appeasing qualities of an unbound sovereign, are in fact making a case for an authoritarian conception of political power that knows no limits and has no restraints.

ISRAEL'S CONSTITUTIONAL CONTEXT

Israel's constitutional beginnings are known. Failure to adopt a constitution in 1949-1950 led the way to the Harari Resolution and to the peculiar development of Israel's piecemeal constitution. As a result, the Knesset is both a constitutional assembly and an ordinary legislature to this day. While waiting for a constitution, it has been a commonplace argument that Israel's constitutional system is similar to England's. A sovereign parliament and the lack of a written constitution are referred to as proof of resemblance. Yet, despite the formal similarities, there are at least five substantial differences:

1. The Knsset is both a constitutional assembly in permanent session and an ordinary parliament empowered to make laws.

2. In Israel, lack of a constitution originates in an existential disagreement on the nature and identity of the state that is reflected in a lack of consensus on the legitimate sources of political authority.

3. The doctrine of parliamentary sovereignty is not accompanied by a diffuse liberal culture of civil rights; it is rather a normative justification for a political regime lacking formal constitutional checks and balances.

4. The persistence of emergency legislation fifty-two years after independence requires a normative theory of permanent emergency and of the political power in charge of dealing with emergency situations.

5. The consociational nature of Israeli democracy is far removed from the English socio-political conditions that are necessary to facilitate the smooth functioning of democracy in the absence of a constitution.

Lack of a written constitution in England is the result of a long evolution, not of a conscious decision. In addition to peculiar historical circumstances, the Westminster model is functional to a majoritarian system and is the result flow ideological frictions and the absence of many crosscutting cleavages. That is not the case of a highly fragmented society like Israel, where the presence of high ideological polarization and deep social divisions suggests, in line with the practice of other consociational democracies, that a constitution is a desirable instrument to protect and entrench consociational practices against bare majority rule. But in Israel, divisions are mentioned for the opposite reason; namely, in order to justify the absence of a constitution, rather than the presence of highly entrenched constitutional rules. It: follows that these differences are crucial to the present argument.

It is commonly argued that the decision not to adopt a constitution in Israel stemmed from the precarious security situation and the desire to avoid a rift between religious and secular. But it is my contention that these reasons are symptoms more than causes. Failure to bring the 1950 constitutional debate to a concrete product and the indefinite procrastination of a constitutional settlement are in line with the Yishuv's political tradition: the Harari Resolution fits an already well-established traditional pattern of political compromise of Jewish and Yishuv political cultures.(39) This tradition was founded on the absence of constitutional limits to the exercise of power. In the absence of political sovereignty, a political authority lacking resources and the monopoly of coercive power had to rely on consensus in the formation and implementation of policies. This situation emphasized compromise and the defusing of conflict by co-optation and co-operation among rival political forces. Co-operation could be achieved at the price of avoiding divisive issues at all costs. Decisions not to decide were not uncommon, therefore, nor were they oddities in the range of possible solutions to conflicts within the political community.

Similarly, in order to be legitimate, power had to rely on periodic elections with wide participation and representation, which provided legitimacy by encouraging power-sharing and discouraging exit. This pattern strengthened the participatory aspect of Israel's political culture and ensured both democracy and consensual policy-making within a deeply divided society. Parliamentary sovereignty, proportional representation and consociational politics in a regime lacking constitutional constraints are a salient feature of pre-state political tradition, which suited Israel's founders as they addressed constitutional issues.(40)

Hence, the traditional justification for postponing a decision is not enough. Had the constitutional debate been temporarily suspended and later addressed with a view to enshrining a compromise between the religious and the secular in a constitution that could protect each other's sensitivities, one could concur with the need to wait for quieter times. After fifty-two years, however, the provisional decision not to decide has become permanent, rendering its explanation questionable. One reason why it seems that the lack of a constitution today cannot be blamed on religion and security alone is because the Knesset did not even discuss the nature and contents of a possible constitutional compromise. The only Knesset debate that took place focused on whether or not to have a constitution, without addressing its details.(41) One motive for not adopting a constitution, therefore, lies in the procrastinating tactics that are typically adopted in the wake of existential issues on which consensus is lacking.

Contrary to the practice of other consociational democracies, Israel's approach has been traditionally to avoid any permanent resolution, in the hope that future developments might tilt the balance in favor of one of the sides to a dispute. The consequence is a political system without constitutional checks and balances and no formal limit to political players in shaping temporary arrangements for the management of society. By maintaining the supremacy of the political in the revolutionary fabric of the Zionist project, no outcome is hindered, especially in the absence of a shared vision of the nature of this project.

In 1948, Israel's founding fathers faced such existential questions as the meaning of a Jewish state, its constitutional nature, and the role of Jewish tradition and heritage in public life, all in the midst of a desperate war for survival. Israel's first few months of life were filled by this more pressing task, and when elections for a constitutional assembly took place, the main state institutions were already in place. From the point of view of state-building, a constitution was not a compelling necessity anymore--it was an option, which entailed addressing vexing questions of national identity.(42) Thus, the predominant political culture of the time and contingent problems determined the constitutional debate's final outcome. It soon became clear that the new state would not have a Western-styled constitution. Mainly, there are four reasons for this:

1. A desire to keep intact the trend of political accommodation among leaders.

2. A desire to avoid a conflict between the religious and the secular on the nature of the state.

3. A desire to give maximum latitude to the executive in handling emergencies, in light of the permanent state of war.

4. A desire to ensure the primacy of the political in formulating, advancing, and securing the revolutionary goals of the Zionist dream.

These four elements were predominant factors in the Israeli founding. As such, they were instrumental in discouraging the adoption of a formal constitution, which would have guaranteed entrenched civil and political rights to all citizens and the judicial power to enforce those rights against executive and legislative encroachment. The result was the development of a vision of political power loosely modeled after doctrines of political sovereignty such as the one expounded by Schmitt. In these circumstances, courts lacked both a formal constitutional framework within which to uphold civil rights and a political culture to fall back on that could be receptive enough to rights-oriented judicial decisions. Similarly, lack of constitutional constraints gave more flexibility to the political options available for elaborating agreements.(43)

Judicial review in particular was considered an obstacle to the Zionist fabric. According to Philippa Strum, Ben-Gurion's opposition to a constitution derived from his "desire to govern without constitutional restrictions, taking whatever actions he deemed best to put the state on a firm footing."(44) He viewed democracy as the rule of the majority, which found expression in the agreements reached among parties and in the resulting laws.(45) Absence of an entrenched constitutional document would prevent the existence of a judiciary empowered to control political power while the state was busy implementing its revolutionary project of security, settlement, and absorption.(46)

In the context of a divided society, it was argued that only the state could emerge as a unifying factor in the fabric of a nation and as the guarantor of social cohesion.(47) The state could obtain this only if it had unlimited powers: only as a supreme and free power could the state have the authority to solve internal rivalries and conflicts of interests. Such a conception of authority inevitably clashes with the notion of limited government propounded by western constitutionalism. Under limited government, "in order for the citizen to be free, the state cannot be free."(48) If, in order to achieve the goals of state and society, the sovereign is free, individual freedom becomes subordinate to considerations of national interest.

The consequence is a deferential judiciary. Judges must be the faithful enforcers of sovereign will in order to guarantee order within the polity. Their interference for the sake of constitutional principles bears the seeds of disorder, which, according to Schmitt and Hobbes, is intrinsic to the limitation of sovereign power. Law, as the expression of sovereign will, must be respected instrumentally as a means to the ends, but it is subordinated to the interests that law comes to serve. Otherwise, judges become an alternative center of legitimacy, competing for supremacy with the political sovereign.

The coincidence of a particular political culture and of peculiar contingencies involving a security threat influenced the outcome of the constitutional debate of 1950. This combination justified the formal adoption of the English model of parliamentary sovereignty, but the underlying substantial conception of power was closer to sovereignty in its classic understanding, before its limitation by liberal elements. Any reference to English constitutional theory, therefore, is merely a rhetorical device disguising a sovereign parliament capable of making and undoing laws (as the expression of the national interest and of compromises between political players) without constitutional constraints. This model met the requests of religious parties vis-a-vis the constitution and gave government a free hand in matters of security.

This is why this particular scenario is best interpreted by making reference to Schmitt's version of sovereign power. Lack of constraints on political power means maximum freedom of action in the spheres of security and in the elaboration of political compromises. Hence, the supremacy of the political in a hostile regional environment and in a rifted internal context allows public authorities wide powers and great latitude in maneuvering and addressing internal divisions and external threats. In this framework, judicial review constitutes a direct threat to the state's capability to effectively face internal and external challenges. The doctrine of sovereignty becomes a cogent normative argument, not only to justify and explain a particular institutional set-up (the lack of a constitution), but also to prevent independent powers such as the judiciary from becoming obstacles to the full display of the political.

This political vision is particularly problematic in the sphere of civil rights, especially when considerations of national security or the higher needs of national consensus require their limitation. Sovereignty becomes crucial to justify a political system that is at the same time absolute and democratic, and to allow the possible violation of rights for the sake of national security or social appeasement. It is apparent, then, that parliamentary sovereignty and judicial review clash when Israel's Supreme Court proceeds to curtail the Knesset's sovereign faculties.

DEFENDING THE SUPREMACY OF THE POLITICAL

The difference between Israel's democratic context and classical sovereignty lies in the plural and democratic nature of the Israeli sovereign as opposed to the Leviathan's monistic preference. The Knesset embodies sovereign power, and produces expression of sovereign will through the discussion of ideas. Different worldviews agree upon laws as a consequence of compromises among the members of the sovereign body and of its majority, which determines the outcomes of debates. The output of this exercise expresses the ability of the polity to mediate among its parts and reach compromises. But it also reflects the power of an absolute sovereign, free of constitutional restraint, to effectively manage the friend-or-enemy distinction. Though the various components of Israeli society are willing to co-operate and reach compromises, they are "in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with [them] are possible"(49) It follows that the absence, suspension, or derogation of the norm are preferable to the existence of a norm precisely because the nature of the extreme case cannot be anticipated.(50) According to Schmitt, "Every religious, moral, economic, ethical, or other antithesis transforms into a political one if it is sufficiently strong to group human beings effectively according to friend and enemy."(51) Israel's cleavages are sufficiently intense "in an existential sense" to fit Schmitt's distinction and to make his definition of the political suit an understanding of political power devoid of constitutional constraints, including judicial review. If politics is the art of the possible,(52) the supremacy of the political gives the free and unbound sovereign a world of endless possibilities to compromise. This idea is especially palatable in a rifted society, as it is Israel, where the Knesset is the meeting point for compromise among society's components. Constitutional constraints, such as a bill of rights and judicial review to enforce it, become an obstacle to the sovereign's ability to compromise. By contrast, lack of restraints allows parliament to elaborate acceptable solutions to all parties, without fear of judicial censorship. The only limit is self-restraint, as is the case with classical sovereignty, which &rives from mutual vetoes within the Knesset.

One of the essential components of Israel's political system is the lack of consensus on the source and origin of political authority. Lacking any agreement on what principles lie at the foundations of the state, an entrenched constitution cannot provide any such source to which parliament must be subordinated. Similarly, there can be no institution such as a judicial body giving preference to one vision of authority over another when conflicts arise. Conflicts must be reconciled exclusively through political compromise, and political compromise is best achieved by a collective body that includes all the components of society and gives equal voice and legitimacy to their conflicting visions, without limits to its political inventiveness.

Recent decisions made by Israel's Supreme Court stand in stark contrast with this vision. On various occasions, the Court has either declared (without using) the power to review the Knesset's legislation, or it has proceeded to void sections of statutes.(53) In some cases, the Court's statutory interpretation has displeased the legislators: such decisions, touching often upon matters of religion and state, national security or equality before the law, have been condemned or criticized for departing from legislative intentions. In other cases, the Court has set stringent boundaries of executive and legislative discretion.(54) The enunciation of these boundaries in absolute terms indicates that sovereignty is henceforth permanently limited. This has drawn criticism from politicians and academics alike: judges are being accused of reducing the sovereign's capability to effectively handle emergencies, as well as to overcome social divisions.

I chose to discuss two separate criticisms of the Court in order to show how Schmitt's defense of the supremacy of the political echoes in the words of many journalists and academics. The first criticism focuses on the Court's decision to curtail the special emergency powers enjoyed by the executive in the war against terror. The second criticism targets more generally the impact that recent jurisprudence has had on the system's capability to foster social cohesion and reach compromises.

The examples analyzed in this section were not selected to prove that criticism of the Court invariably follows Schmitt's concept of the political; instead, only those critics who follow Schmitt's line of reasoning are mentioned here. The purpose of this exercise is not to claim that any criticism of judicial involvement in political questions is based on Schmitt's political philosophy. My intention is simply to show how certain kinds of arguments against the Court can be interpreted as Schmittian, since they ultimately reflect a fundamentally illiberal preference of order over freedom.

Following the September 1999 judgment to prevent the use of physical pressure during General Security Service interrogations of security, suspects, much concern was voiced in the Israeli press. One author criticized Chief Justice Aharon Barak because he "decides public issues against the public will, and against the democratic principle according to which the people choose their destiny through their representatives."(55) Another critic claimed that the decision was adopted despite the fact that the Knesset had not addressed the issue yet, and consequently there was no statutory basis for it.(56) Thus, it was argued, the decision shared the same basic problem of earlier ones: the Court ignored the political preferences of the public.(57) Another article supporting a law that would override the Court's decision suggests that "the pressures of the war against terror demand giving GSS interrogators clear legal authority to exert pressure on suspects under interrogation in extreme cases."(58) These examples express a feeling of unease vis-a-vis the imposition of limits on the sovereign power to face the emergency (of terror in this case) with exceptional measures that no law should preventively tame or restrain. For these critics, no limit based on moral considerations should be imposed on political power because:

1. It conflicts with the will of the people, the only agreed upon source of legitimacy.

2. There is no consensus on the course taken by the court (public opinion opposes it).

3. The Knesset, as the true representative of the people, has so far failed to reach (or has refrained from reaching) a consensus on the matter.

4. The decision prevents the sovereign from facing a truly exceptional situation (terrorism) with adequate means.

Points 1, 2, and 3 relate to the only source of legitimacy for judicial enforcement of rules: a clear will, expressed by the people's representatives and backed by public opinion. Point 4 relates to the desire to maintain the supremacy of the political by giving the sovereign a free hand. This double understanding is expressed in a legal norm introduced into Basic Law: Freedom of Occupation in a 1994 amendment. Section 8 of the Revised Version of the Basic Law says that

A provision of a law that violates freedom of occupation shall be in
effect, even though not in accordance with section 4, if it has been
included in a law passed by a majority of the members of the Knesset, which
expressly states that it shall be of effect, notwithstanding the provisions
of this Basic Law; such law shall expire four years from its commencement
unless a shorter duration has been stated therein.
Draft legislation recently introduced in the Knesset to address emergency powers in the war on terrorism would adopt a similar mechanism of suspension of the legal order sanctioned by basic legislation. According to a bill drafted by Likud MK Reuven Rivlin, special powers of interrogation would be granted to GSS interrogators. Section 10(A) of the bill says that "This law shall apply notwithstanding the instructions of Basic Law: Human Dignity and Liberty" Section 10(B) enacts a review mechanism according to which "the instructions of this law shall remain in force for a period of two years from the day of its enactment. Its validity shall not be extended unless by means of a law that is passed by a majority of Knesset members."(59)

Both provisions, the one proposed and the one in place, give the sovereign the power to suspend the legal order and to create an exception to it, without necessarily having to change the norm, to abolish it, or to cause disruption. The derogation mechanism of the Basic Law: Freedom of Occupation is meant to protect the supremacy of the political. Born out of a coalition crisis concerning the alleged violation of the religious status quo, Section 8 prevents the Court from reviewing political compromises that might infringe upon rights protected in the Basic Law. The time limit implies that those political compromises that involve derogation from rights protected in basic laws must be periodically renegotiated in the political arena, away from judicial review.

Similarly, the derogation mechanism introduced in the draft proposal on special powers of interrogation attempts to re-establish wide discretionary powers in the hands of the sovereign by eliminating the legal and judicial constraints created by basic laws and by judicial decisions. As an emergency becomes permanent and requires exceptional means to overcome it, this provision attempts to transform the exception into a rule, and the suspension of the norm becomes an exceptional normalcy. The judge, faced with a continuous reminder of emergency and its needs, must ignore the other laws and refrain from applying rules to which he/she is usually bound. In doing so, he/she acknowledges the sovereign power to make laws and violate them, since laws cannot bind the sovereign. The &rogation mechanism removes any limit on sovereignty, re-establishes the pristine freedom of the sovereign, and thus reflects Schmitt's sovereignty.

Other recent attacks voiced against the Court highlight the fact that the main motive behind the argument against judicial review is rooted in Schmitt's conception of sovereignty and in a culture that privileges the supremacy of the political above the law as the preferred route in the search for compromise within a rifted society. These attacks are more general in their focus, and go beyond the narrow criticism voiced in security-related matters. The clash between secular and religious is one topic that draws much concern about the role the Court has taken in Israel. Secular and religious alike call on the Court for self-restraint in order to avoid setting off a latent, but potentially devastating, conflict.

Religious parties recently tried to have the Knesset condemn judicial interference in the political process, but their attempt backfired? However, religious parties are not alone in their attacks on judicial interference. Secular academics have voiced similar criticism. It is my contention that their argument closely resembles Schmitt's and Hobbes's concepts of sovereignty. In a recent article, Dan Avnon claimed that

In the decades since independence, when conflicting visions of the nature
and purpose of the state erupted into social and political feuds, political
compromises were negotiated on a case-by-case basis. When matters of
principle could be translated into a state law, laws were legislated. The
political ability to negotiate ad hoc resolutions to the clash of
apparently irreconcilable interpretations of the good life worthy of such a
political entity included the important possibility of not deciding. This
defining characteristic of Israeli political culture was brought to an
abrupt end in 1992. In that year, the twelfth Knesset decided to include in
basic law legislation a definition of the State of Israel as "a Jewish and
Democratic State."(61)
Avnon decries the end of freedom for the sovereign and its power to reach compromises. Thus, his argument is interesting for two reasons. The first lies in the Hobbesian echo of Avnon's words. When Avnon says that only "When matters of principle could be translated into state law, laws were legislated," a Hobbesian remark comes to mind: "The interpretation of the laws of nature, in a commonwealth, dependeth not on the books of moral philosophy. The authority of writers, without the authority of the commonwealth, maketh not their opinions law, be they never so true."(62) Only those principles that the legislator has formally and explicitly subscribed to can be applied by courts and then only as long as the legislator does not decide to modify them and renegotiate their meaning. Any other principle or value, "no matter how true or just" has no validity, lacking a clear sovereign sanction.

The second reason why Avnon's argument is important is its resemblance to Schmitt's argument in defense of the supremacy of the political. Central to Avnon's argument against judicial review, is the claim that the conflict between the religious and the secular suits the friend-or-enemy distinction. The 1992 basic law legislation has reduced the venues for political compromises by limiting society's freedom to renegotiate political arrangements from time to time:

These essentially philosophical, political or theological understandings
are no longer a matter to be debated in civil society, and resolved on an
ad hoc basis through the practices and institutions of democratic politics.
Competing views on these issues, that until 1992 were granted public form
through their representation in competing political agendas, are now a
matter for judicial interpretation. The stakes are high, for the Court's
rulings, unlike political compromises, are binding.(63)

According to Avnon, courts have deprived elected institutions and society at large of the power to decide, not to decide, and to decide to change previous decisions. Moreover, to Avnon, judicial rulings are binding, unlike political compromises. By making a distinction between democratic institutions and the courts Avnon implies that only the elected representatives of the sovereign people are truly democratic. This suggests a Hobbesian hierarchy, where judges should take a subordinate position. Moreover, obstacles to the freedom of the people's representatives to elaborate compromises are a threat in-so-far as they create binding solutions. The political, untamed by constitutional limits, is preferable, since it constantly reaffirms the flexible and provisional nature of arrangements, whose contents can be continuously reshaped to meet new circumstances, so long as they exist in a universe devoid of legal constraints and therefore of open-ended possibilities.

Hence, while those who support the notion of limited government welcome the new constitutional asset derived from the new Basic Laws, Avnon condemns it:

To abruptly end the tacit social agreement to defer to future generations
the resolution of Israel's ultimate telos (and hence values) as a state by
suddenly thrusting this question onto the Courts, through constitutional
legislation, is simply wrong.(64)
It is not wrong because he necessarily disagrees with the content of some judicial rulings; rather Avnon criticizes the attempt to impose constitutional limits on a sovereign power dedicated to displaying its full potential to maintain domestic peace. The danger of the 1992 reforms is that they curtail the sovereign's freedom to reach compromises (and thus to defuse social tensions and avoid conflict). For critics of the Court, there are two consequences: the limitation of sovereign powers to address the friend-or-enemy distinction (the political) and to face the emergency (the exception) will make political power less capable to overcome potential conflicts within society. Disorder and heightened social strife will become a feature of the political landscape and could ultimately jeopardize the fragile social balance. It follows from this argument that judicial review is a threat to social consensus.

In a recent interview, Ruth Gavison similarly criticizes judicial involvement:

[I]t is right that the court will give legal sanction to the shared values,
such as basic human rights, but I do not think it right that the court will
use its power to give preference to values of one group in society at the
expense of the values of another group. I do not think that it is right
that the court will decide in favor of Western outlooks over traditional
outlooks. Or in favor of modernity and individualism and against
communitarianism.(65)
Gavison's opposition to judicial interference sterns from the concern that judges will decide contentious matters of principle upon which the religious and the secular are divided. Given that these divisions cannot be reconciled, for Gavison, it would be preferable if the Court refrained from applying principles lacking consensus. Referring to the spiritual leader of Shas, Ray Ovadia Yosef, Gavison said that

[A]s a higher moral authority it is not clear that the court is better than
Ovadia Yosef is. And it is not clear that the supra-legal values of the
enlightened public, in whose name it works, trump the supra-legal values of
the religious public, for example. There are many people in the country,
for whom Ovadia Yosef is the higher moral authority and for whom religious
law is the higher legal value to be desired. The court should not ignore
them. The court should not compete with Rav Ovadia Yosef for their hearts.
The court must make it clear that it sits in a different position, one of
instruction and enforcement of the values of the shared democratic
framework.(66)
Gavison sees judicial review as problematic from a democratic standpoint, especially in divided societies. Only those principles that are "shared" should be enforced by the Court. Only those principles that stem from a moral consensus within society should ever find their way into a court of law.(67) Other principles, though perhaps just and shared by some, should not be enforced judicially if their application reflects a preference of one value system over another. The risk of a backlash that will hurt the Court's credibility within society is frequently cited as one danger stemming from judicial rulings on matters of ethical disagreement. This claim is weak not only because it is recurrent since 1950(68), it is also unsubstantiated by the Supreme Court's standing with Israeli public opinion.(69) Gavison is correct, however, in identifying the source of the problem: the lack of shared values; but when she says that the Court should only enforce shared values "such as basic human rights" it should be noted that, even at that very basic level, Israeli society lacks a shared understanding and a consensus.(70)

In the final analysis, Schmitt's call for a choice is the only option: either unelected liberal judges upholding rights even against the better judgment of elected officials, or the Hobbesian critique of moral principles. This critique aims to defend the supremacy of the political over the judiciary and becomes the leitmotiv for criticizing a judiciary involved in the protection of civil rights. Whenever values are a source of disagreement, courts should refrain from interfering, and allow the political to manage the friend-or-enemy distinction: only at the price of absolute political freedom can the political act with enough latitude to prevent domestic divisions from deteriorating into conflict. But what is to be done when value systems are always a source of disagreement?

CONCLUSION

Hobbes and Schmitt would say that constitutional sovereignty is a euphemism for the gouvernment des juges. The supremacy of the political ensures its autonomy from the control and limitation imposed by the principles of constitutional government, whereas "[t]he boundaries of political autonomy become much narrower when the courts can declare many ordinary laws as unconstitutional."(71) Retaining such supremacy is, for many critics of the Court, the price to pay, since it allows for appeasement among the various parts of society. The absence of constitutional restraints imposes only one limit on political players: agreements are conditioned on the balance of power between coalition partners, parliamentary parties, and social groups at large, and the substantial restrictions they impose by reciprocal vetoes on principled issues. However, the moment this delicate balance becomes threatened by the existence of constraints enforced by judges (who, by being independent, do, not necessarily expound the will and intention of the sovereign), the danger of conflict becomes apparent as the space for political maneuvering :shrinks. From this perspective, judicial review becomes a subversive instrument that upsets order and opens up conflicts.

Until 1992, no formal limits existed to a sovereign parliament in the elaboration of political compromises. This constitutional anomaly originated in Israel's political culture and in the need to avoid any deviation from the principle of judicial deference to the political branches lest a fragile balance within society be upset. In this context, the traditional role of an independent judiciary as a defender of fundamental civil rights was typically subordinate to the need to reconcile democracy with a permanent state of war, to appease opposing views of society, and to fulfill Zionist goals.

Israel is a society where there is a fundamental and existential disagreement on the source of political authority, which translates into a permanent and insurmountable conflict on the nature and identity of the state. As if this were not enough, an external conflict is still on-going whose resolution will have wide repercussions on both political legitimacy and national identity. Traditionally, management of this permanent division relied upon a deferent judiciary and upon the ability of political forces to elaborate political compromises. The absence of constitutional limits allowed for compromises to become legislation and bound the courts to enforce them--irrational, unjust or illogic though they may be from a legal standpoint. Even when agreements were ad hoc arrangements that defied the legal logic of general and abstract rules, judicial deference ensured that there would be no interference: the political would clarify the meaning and application of these arrangements for each concrete circumstance.

Similarly, the theory of sovereignty supplied the adequate normative framework to a situation of permanent emergency, where exception became the rule, and the suspension of or derogation to the norm became an exceptional normalcy. Faced with the emergency, the judge withdraws, refrains from enforcing the rule, and thus acknowledges the sovereign freedom to make the rule and ignore it: "For having power to make, and repeal laws, he may when he pleaseth, free himself from that subjection."(72) Certificates of immunity, in camera proceedings, override clauses, "circumvention" of laws, are all facets of Schmitt's exception, all expressions of will of a democratic but still Hobbesian Leviathan.

While derogation to the norm prevents judges from interfering with political compromises or with the management of the emergency, the existence of civil rights legislation with quasi-constitutional status has narrowed the boundaries of the autonomy of the political and created new tensions between the judiciary and the elected branches of government. In light of this tension, appeals to the principle of parliamentary sovereignty must be read as attempts to sanction the supremacy of the political in the name of an established pattern of political compromise. The potential for conflict has not waned over the years, and the need to constantly renegotiate values and principles is still felt. If a constitution that judges can uphold is the expression of a shared foundation of principle within a society, lack thereof seems to demand both the absence of a constitution and of the power of judges to enforce it, since constitutional entrenchment can occasionally frustrate such negotiations; hence the conflict between judicial review and parliamentary sovereignty in Israel.

The preference given so far by the Israeli legislator to coexistence of constitutional constraints (the Basic Laws) and of mechanisms for their temporary suspension, derogation, and violation (circumvention clauses) attempts to create a precarious balance between the two. Though it is difficult to forecast how long and how successfully this balance can hold, experience suggests that emergency and provisional arrangements have a permanent nature in Israel. Critics of the courts correctly attack judicial expansion of locus standi and lack of a political question doctrine as violations of the separation of powers that should be corrected. One should add to this legitimate criticism, however, that the sovereign should accept that acknowledgment of discretionary powers in exceptional circumstances means only that the exception creates the sovereign power to decide how to manage the emergency.

NOTES

(*) An earlier version of this article was presented at the Israel Law and Society Association annual workshop, held in Miami, FL, on 25 May 2000. The author wishes to thank Dr. Avner de-Shalit, Dr. Eugene Rogan, Mr. Mike Dahan, Mr. Shlomi Segall, and Mr. Ori Lev for their useful comments and criticism.

(1.) The clash between courts and elected branches of government is said to raise an "anti-majoritarian" difficulty, as decision-making performed by unelected judges is considered, in a democracy, to suffer from a lack of legitimacy. See Alexander Bickel, The Least Dangerous Branch. The Supreme Court at the Bar of Politics (New Haven, CT, 1962).

(2.) The debate over the legitimacy of judicial review, therefore, focuses on interpretation theories and the extent of judicial intervention.

(3.) Consider the following examples. The Italian Constitution proclaims: "Sovereignty belongs to the people, who exercise it within the framework and limits of the Constitution (Art. 1.2)" German Basic Law states: "All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs (Art. 20.2)," and that "Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law (Art. 20.3)." The Spanish Constitution, after proclaiming that sovereignty emanates from the people (Art. I), states: "Citizens and public authorities are bound by the Constitution and all other legal provisions (Art. 9.1)." Portugal's Constitution declares: "Sovereignty, single and indivisible, rests with the people, who shall exercise it in the manner and form laid down in this Constitution (Art. 3)."

(4.) Basic Law: Freedom of Occupation, and Basic Law: Human Dignity and Liberty [Hebrew].

(5.) See United Mizrachi Bank v. Migdal Cooperative Village (1995), Piskei Din, 49(4) 221 [Hebrew]; H.C. 6055/95 Zemach et al. v. Minister of Defence et al. (1999) [Hebrew].

(6.) Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty (Berlin, 1992,). [English edition, translation and Introduction by George Schwab (Cambridge, MA and London, 1985)], and The Concept of the Political (Berlin, 1932). [English edition, translation and introduction by George Schwab (New Brunswick, 1976)]. Note that all page numbers for Schmitt refer to the English editions.

(7.) Thomas Hobbes, The Leviathan, Michael Oakeshott, ed. (London, 1962).

(8.) Ibid., 199.

(9.) C.E. Merriam, History of the Theory of Sovereignty since Rousseau (New York, 1900) 11.

(10.) See p. 90 in Kenneth C. Cole, "The Theory of the State as a Sovereign Juristic Person" in W. J. Stankiewicz (ed), In Defense of Sovereignty (London, 1969) 86-103; Harold Laski, A Grammar of Politics, 4th Edn (London, [1925] 1950) 50.

(11.) See J.W. Harris, Legal Philosophies (London, 1980) 24; David Nicholls, The Pluralist State, 2nd Edn (London, [1975] 1994) 42.

(12.) Jean Bodin, Six Books of the Commonwealth, 1576. Abridged and Translated by M.J. Tooley (Oxford, 1967) 43-4.

(13). See Preston King, The Ideology of Order: A Comparative Analysis of Jean Bodin and Thomas Hobbes (London, 1974) 73; See p. 47 in Jean Jacques Maritain, "The Concept of Sovereignty," in Stankiewicz, In Defense of Sovereignty, 41-64; Albert Rigaudiere, "L'invention de la souverainete," Pouvoirs, 67 (1993) 12 [French].

(14.) See Ivor Wilks, "A Note on Sovereignty" in Stankiewicz, In Defense of Sovereignty, 197-205.

(15.) Hobbes, The Leviathan, 100; also, Schmitt, The Concept of the Political, 26-39.

(16.) Merriam, History of the Theory of Sovereignty since Rousseau, 14.

(17.) Jean Hampton, Hobbes and the Social Contract Tradition (Cambridge, 1986) 104.

(18.) A threat to the sovereign that Hobbes addressed in The Leviathan.

(19.) See Don Herzog, Happy Slaves. A Critique of Consent Theory (Chicago, IL, 1989) 14-2.

(20.) Ibid., 97.

(21.) Schmitt, The Concept of the Political, 26.

(22.) Carlo Galli, Genealogia della Politica (Bologna, 1996) 738-9 [Italian].

(23.) Ibid., 739.

(24.) Ibid., 74-4.

(25.) Schmitt, The Concept of the Political, 38.

(26.) Ibid., 39: "What always matters is only the possibility of conflict."

(27.) Ibid., 38.

(28.) Ibid., 27: "[I]t is sufficient for [the political enemy's] nature that he is, in a specifically intense way, existentially something different and alien, so that in the extreme case conflicts with him are possible. These can neither be decided by a previously determined general norm nor by the judgement of a disinterested and therefore neutral third party." [emphasis mine].

(29.) Ibid., 38: "[T]hat grouping is always political, which orients itself towards this most extreme possibility."

(30.) Schmitt, Political Theology, 5.

(31.) Ibid., 12; see also 36.

(32.) Ibid., 40.

(33.) See pp. 210-11 in Alan Ryan, "Hobbes' Political Philosophy" in Tom Sorell (ed), The Cambridge Companion to Hobbes (Cambridge, UK, 1996) 208-245.

(34.) Herzog, Happy Slaves, 138.

(35.) Henry Abraham, The Judicial Process, 6th Edn (New York and Oxford, 1993) 48.

(36.) Hobbes, Leviathan, 205.

(37.) Ibid., 206: "[T]he interpretations of the laws of nature, in a commonwealth, dependeth not on the books of moral philosophy. The authority of writers, without the authority of the commonwealth, maketh not their opinions law, be they never so true."

(38.) Schmitt, The Concept of the Political, 67.

(39.) See Don Horowitz and Moshe Lissak, Trouble in Utopia: The Overburdened Polity of Israel (Albany, 1989). See also Ehud Sprinzak, "Elite Illegalism in Israel and the Question of Democracy," in Ehud Sprinzak and Larry Diamond (eds), Israeli Democracy under Stress (Boulder, CO, 1993) 173-98; see p. 42 in Alan Dowry, "Israel's First Decade: Building a Civic State," in S. Ilan Troen and Noah Lucas (eds), Israel: The First Decade of Independence (Albany, NY, 1995) 31-50.

(40.) See Yonathan Shapira, "The Historical Origins of Israeli Democracy," in Sprinzak and Diamond, Israeli Democracy under Stress, 68.

(41.) See Emanuel Rackman, Israel's Emerging Constitution (New York, 1955).

(42.) See p. 101 in Nathan Yanai, "Politics and Constitution-Making in Israel: Ben Gurion's Position in the Constitutional Debate Following the Foundation of the State," in Daniel J. Elazar (ed), Constitutionalism: The Israeli and American Experiences (Jerusalem, 1990) 101-20.

(43.) See p. 87 in Philippa Strum, "The Road Not Taken: Constitutional Non-Decision Making in 1948-1950 and Its impact on Civil Liberties in the Israeli Political Culture" in Troen and Lucas, Israel, the First Decade of Independence, 83-104: "Not adopting a constitution, ... was in keeping with the policy that had illuminated decision-making in the Yishuv, which was to avoid all potentially disruptive decisions that were not absolutely necessary."

(44.) Ibid., 92.

(45.) See David Ben-Gurion's speech to the Knesset on 20 February 1950, in Divrei HaKnesset, V4, Session 119 (Jerusalem) 813-19 [Hebrew].

(46.) Ibid. See also p. 205 in Shlomo Aronson, "David Ben-Gurion and the British Constitutional Model," Israel Studies 3(2) (1998) 193-214.

(47.) See p. 175 in Eliezer Don-Yehiyah, "Political Religion in a New State: Ben-Gurion's Mamlachtiut," in Troen and Lucas, Israel, the First Decade qf Independence, 171-92

(48.) Eugene V. Rostow, The Sovereign Prerogative: The Supreme Court and the Quest for Law (New Haven, CT, 1962) 120.

(49.) Schmitt, Political Theology, 27.

(50.) Ibid., 35: "That the extreme case appears to be an exception does not negate its decisive character but confirms it all the more"

(51.) Ibid., 37.

(52.) In the sense given to it by Schmitt, as the ability to manage the friend-or-enemy distinction, and therefore to overcome conflict thanks to the absolute freedom of the power holder.

(53.) The power of judicial review was announced (but not used) by the Court in United Mizrachi Bank v. Migdal Cooperative Village, 221 [Hebrew]; see n.5 above.

(54.) See H.C. 5100/94 Public Committee against Torture et al. v. State of Israel et al. (not yet published), where GSS agents' authority was subjected to judicial review against the background of absolute limits set by Israel's Basic Laws; H.C. 6698/95, A'adal Ka'adan et al. v. Israel Land Administration et al. (not yet published), where criteria in land allocation had to conform to Basic Laws; H.C. 6055/95 Zemach et al. v. Minister of Defence et al. (not yet published), where the Court voided a section of the Military Criminal Code, based on Basic Law: Human Dignity and Liberty. [Cases are in Hebrew]

(55.) Aaron Pappo, "Barak, Go to Barak," Ma'ariv Today, 30 September 1999, 7 [Hebrew]. [The title is a play on words: (Ehud) Barak (the Prime Minister), Go to (Aharon) Barak (the Chief Justice).]

(56.) Israel Harel, "An Unrealistic Supreme Court" Editorial, Ha'Aretz internet English edition, 9 September 1999.

(57.) Ibid.

(58.) Dan Margalit, "What the High Court Refuses to Understand" Ha'Aretz, 23 December 1999, 1B [Hebrew].

(59.) "Proposal for a Criminal Procedure Bill (Authorities and Special Interrogation Means in Security Offenses)" 1999: Draft Bill submitted by MK Reuven Rubi Rivlin et al. (courtesy of MK Rubi Rivlin).

(60.) Gideon Alon, "The Ultra-Orthodox are Angry: the Supreme Court Interferes with Knesset Works" Ha'Aretz, 16 December 1999, 11A [Hebrew].

(61.) See p. 537 in Dan Avnon, "The Israeli Basic Laws' (Potentially) Fatal Flaw" Israel Law Review, 32(4) (1998) 535-66.

(62.) Hobbes, Leviathan, 206.

(63.) Avnon, "The Israeli Basic Laws' (Potentially) Fatal Flaw" 537-8.

(64.) Ibid.

(65.) Ari Shavit, "A Word from the Head of the Opposition: Interview with Professor Ruth Gavison" Ha'Aretz Supplement, 12 November 1999, 18 [Hebrew].

(66.) Ibid., 22. Shas is a political party whose membership encompasses primarily the ultra-orthodox and religious traditional Jews whose origins are Arabic-speaking countries.

(67.) Ruth Gavison, "The Role of Courts in Rifted Democracies," Israel Law Review, 33(2) (1999) 216-258; see especially 216-19 and 251-7.

(68.) This argument was made by Ben-Gurion during the Knesset's constitutional debate, on 20 February 1950. See pp. 818-19; n. 45 above.

(69.) In a study published by the Israel Democracy Institute in 1998 on confidence in institutions, the Supreme Court ranked second after the Army, with 85 percent of the sampled population declaring confidence or full confidence in the Court. The Knesset came in a distant third, with 41 percent. Ten percent of those included in the study said they had a certain confidence in the Court, while only 5 percent said they had no confidence at all. See Yochanan Peres and Ephraim Yuchtman-Yaar, Between Consent and Dissent, Democracy and Peace in the Israeli Mind (Jerusalem, 1998), 59. A similar survey made in 1990 by the same authors showed that 83 percent of the population trusted the legal system. A comparison with other countries showed that, in the United States, trust in the legal system is only a bare 51 percent; in France, 55 percent; and in the UK and in Germany, 66 percent. See Yochanan Peres and Ephraim Yuchtman-Yaar, Trends in Israeli Democracy (Boulder, CO, and London, 1992) 21-2.

(70.) Avnon, "The Israeli Basic Laws' (Potentially) Fatal Flaw," 561: "Controversies erupt precisely because the Israeli polity has not agreed to the contours and contents of its fundamental value system. They reflect the fact that many decisions that arise in the course of"normal politics" in Israel become political crises precisely because they are interpreted in terms of divergent normative presuppositions that are often widely at odds."

(71.) See p. 48 in Menachem Hofnung, "Israeli Constitutional Politics: The Fragility of Impartiality" Israel Affairs, 5(2-3) (1999) 34-54.

(72.) Hobbes, Leviathan, 199.

DR. EMANUELE OTTOLENGHI received his Ph.D. in political science at The Hebrew University of Jerusalem. He is a Junior Research Fellow in Israel Studies at the Oxford Centre for Hebrew and Jewish Studies and at St. Antony's Middle East Centre (Oxford). Recent publications include: "The Israeli May 1999 Elections," co-authored with Silvia Pasquetti, Diritto Pubblico Comparato ed Europeo (1999) [Italian]; "Stability, Immobility and Ineffectiveness: Assessing the Impact of the Direct Election of the Israeli Prime Minister," Journal of Legislative Studies (1999); "Religion and Democracy in Israel," The Political Quarterly (Special Issue 2000); and "Israel's Constitutional System and the Peace Process" in Dietmar Herz (ed), Frieden in Sicht? Aufsaetze und Analysen zum Stand des israelischpalaestinen Konflikts (forthcoming).

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