Gideon Sapir

Constitutional revolutions: Israel as a case-study

From its foundation in 1948 and until the 1990s, the State of Israel lacked a formal Bill of Rights. Although the Declaration of Independence had promised a constitution, a series of obstacles prevented its adoption. In the intervening years, several attempts to anchor a Bill of Rights in a Basic Law met with failure. In1992,theKnessetadoptedtwoBasicLawsdealingwithhumanrights.TheSupremeCourtused these laws as a platform for creating a full-fledged Bill of Rights, and Israeli scholars helped to expedite this process. And yet, despite extensive academic discussion of these developments, the dearth of legal literature remains conspicuous on one question: How did it happen? How is it that after forty-four years of failures and parliamentary paralysis, the Knesset suddenly voted in favour of anchoring a Bill of Rights in Basic Laws? In this article, I examine four possible explanations. The first attributes these developments to the successful exploitation of a constitutional moment that reflected a severe erosion of public trust in politics. The second pins success on the tactics adopted by the proponents of the law. Instead of insisting on the adoption of a complete Bill of Rights, they split it into small sections and worked to enact only the consensual ones. According to the third thesis, the adoption of these laws was enabled by their proponents’ failure to expose the full import of this move, thereby lulling their traditional opponents into afalsesenseofsecurity. According tothefourthexplanation, successresultedfrom twomajorshifts in Israeli politics. The first was the Labor Party’s loss of hegemony and the ensuing uncertainty regarding the identity of future coalitions, and the second was the strengthening of sectorial elements that threatened the dominance of the secular bourgeoisie. The first shift weakened the coalition’s inherent resistance to the constitutionalization of the political system, and the second neutralized the institutional interest of Knesset members representing the old elites against the constitutional project. Finally, my conclusion points out that these explanations are not mutually exclusive, and all the elements they consider joined together to bring about the ‘constitutional revolution’, as it came to be known.

The Protection of Holy Places

Abstract Holy places are protected by the law, but the rationale for this protection has received little attention. The purpose of our paper is to fill this gap. The natural explanation for this protection lies in terms of religious freedom. However, since this freedom is violated only when believers are required to actively act against the dictates of their religion, this notion is of no help in the present context. Even when holy places serve as sites for worship, there is usually no religious duty to carry out worship there. Another explanation would base the protection of holy places on the prohibition against hurting religious feelings. But while this looks promising when the desecration is intentional, it is less so when the desecration or the hurt are incidental. Finally, the protection of holy places is sometimes understood as a way of preserving “cultural heritage.” But many holy sites do not fall under this definition and still enjoy protection. Our tentative conclusion is that holy places do not enjoy automatic protection just because they are perceived as such by some religious group. This protection must be earned by arguments that would establish the (“objective”) holiness of the relevant site within some religious tradition, explain the exact nature of the harm or offense that is the matter of concern, and demonstrate why the believers’ interests regarding the perceived holy place override those of the public.