A Jewish and (Declining) Democratic State? Constitutional Retrogression in Israel

This Article describes and analyzes an increasing trend of contemporary democratic hybridization and constitutional retrogression in Israel. We seek to reconstruct the Israeli case as a state of affairs where a strong leadership, coupled with rising political elites, are leading to a wide-ranging political risk to the constitutional liberal-democracy, to an erosion of its democratic institutions, and to an incremental democratic backslide. This Article contributes to the evolving recent literature in comparative constitutional law on the constitutional implications of democratic retrogression by characterizing the Israeli case as one that might be categorized as constitutional retrogression. This, as we argue, carries greater normative and descriptive implications.

Descriptively, our analysis sheds new light on Israeli constitutionalism in general and on the constitutional revolution in particular. Instead of regarding the Israeli constitution-making as a western liberal-democratic success story, we argue it is closer to that which is termed in the literature the “Global South.” Normatively, the understanding that the Israeli constitutional order is much more fragile than its prevailing image, prospective constitutional adjudication (and scholarship) should put greater emphasis on Israel’s “institutional constitution”—the constitutional set of norms that protects the democratic rules of the game, elections, separation of powers, representation, etc. Our overall argument is that there is a danger and an ongoing, systematic deterioration of the Israeli constitutional model, which requires a systemic political and juristic response