Introduction
The dramatic events surrounding the establishment of the State of Israel in May 1948 had the unmistakable trappings of founding moments, as expounded by Ming-Sung Kuo's chapter in this volume.
Israel emerged as an independent state in the midst of multinational, terrible armed conflict. Moreover, it was established following a contested colonial (Mandatory) rule. True, the exact timeframe of Israel's founding moment may be disputed. Still, it seems defendable to include within its ambit events stretching from the decision to adopt a formal constitution upon the state's foundation until it became known - already in 1950, if not sooner - that a different route would be pursued.But the Israeli case has its complexities, certainly when considering Kou's observation that ‘the founding moment of a constitutional order points to the series of historical events that lead to the adoption of the constitution (emphasis added). Israel's constitutional history presents an anomaly in this respect, even compared to the two exceptions of Britain and Taiwan cited by Kuo. For, contrary to Britain, Israel did eventually (albeit belatedly) produce a codified constitution of sorts. Likewise, as discussed later in this book by Chien-Chi Lin, it may be said that Taiwan had had a formal constitution before it emerged as a distinct political entity. Contrarily, although it obviously took further time for it to more fully materialise, a distinct Israeli constitutional order - but no comprehensive, formal constitution - emerged only following the tumultuous events accompanying its establishment. Israel, it appears, had a clear founding moment, yet it did not produce a formal constitution.
To make things even more complicated, about four decades after the foundation, the Israeli ‘Constitutional Revolution'[428] took place, following the adoption of two basic laws in 1992 enumerating a short list of human rights.[429] In the epochdefining 1995 United Mizrachi Bank case,[430] the Supreme Court pronounced the latter two - as well as all other - basic laws the supreme law of the land.
Israel, Chief Justice Barak declared, relinquished in 1992 the British constitutional tradition and finally embraced the US-style constitutional framework. To many, a circle was thus closed, however imperfectly. The founding generation's failure to draft a formal constitution (including a bill of rights) upon the state's foundation moment - even though it had promised to do so in the Declaration of the Establishment of the State of Israel[431] - was at long last rectified.The time lag between Israel's founding moment and the emergence of its formal constitution in the 1990s raises deep questions: could a persuasive link - more than 40 years long - be drawn between the two? Had the constitutional model entrenched at the founding moment indeed been fundamentally defective? Was it still flawed in the 1990s, so that a constitutional revolution - the Revolution - was called for? The first question occupied central stage in the United Mizrachi Bank case. The latter two questions are a potent gravitational point in a new string of legal history of Israel. This new literature is the subject of this chapter.
The chapter examines three books in particular, all published recently in Israel (in Hebrew) and authored by three distinguished Israeli legal scholars: Nathan Brun, Law, Passions and Politics: Judges and Lawyers Between the British Mandate and the State of Israel;[432] Nir Kedar, Ben-Gurion and the Constitution;[433] and Daniel Friedmann, Before the Revolution: Law and Politics in the Age of Innocence.[434] [435] Ron Harris' The Israeli Law - The Formative Years: 1948-19778 will also repeatedly figure in the chapter, although it is only a ‘stepbrother' to the other three manuscripts. While its theses do not necessarily comply with the key normative propositions advanced in the three other books, on a descriptive level, it is their fellow-traveller for its analyses have clear traces of, and contribute greatly to, this literature's re-engagement with Israel's founding moment.
In critically surveying the three books, this chapter highlights common threads running through them and collages them into a distinct appraisal of Israel's founding generation that is embedded in them.
The resultant collage is surprising and important. In fact, the chapter suggests that it signifies the emergence of a novel generational reassessment of Israel's founding moment and its time. On this reading, the fact that Big-C, formal constitution, was not delivered upon foundation should not be regarded as a deplorable failure, but rather as a boon and the constitutional framework of those days as a cause for admiration. The chapter will not only identify the rise of this new original historiography, but will also trace its origins. It will argue that this new appraisal of Israel's founding moment cannot be understood detachedly from the Constitutional Revolution. In fact, it is suggested that it is best understood as an unfavourable reaction to the 1990s Revolution.One does not have to share this literature's judgement of the 1950s (or of the 1990s) to appreciate its great contributions to extant scholarship. As illustrated below, the three books - here, with Harris' forceful assistance - deepen our understanding of the 1950s in three major respects: first, they insightfully straddle the legal and political history of early statehood; second, their (re)reading of early Israeli law is particularly detailed and colourful largely because they line up an extraordinarily long list of legal and political figures as a vital part of their discussions; and, third, this new literature employs an impressive array of methodologies, ranging from personal history to empirical legal studies.
The chapter's historiographical explorations add a vital layer to this collection's analysis. Notably, it joins the insightful dialogue between Kuo and Simon Gilhooley, where they highlight the potential of founding moments to reinvigorate, but also narrow, later generations' ‘democratic horizons’, depending on the manners in which those generations (re)construct their past. The chapter goes in the same direction, emphasising that founding moments - or, more accurately, present reconstructions thereof - may certainly become battlegrounds where the very definition of a state's democratic nature - at present - is fought over.
For, in order to say whether a particular invocation of a founding moment limits or expands democratic horizons, it should be made clear what ‘democracy' means for the specific polity in question (eg, are judicial review of legislation and codified constitution vital components thereof?). This chapter illustrates that the founding moment may be relied upon for that exact purpose.The chapter proceeds as follows. Section II will outline a standard rendition of the history of constitution-making and the constitutional tradition in Israel. Next, section III will introduce the main theses of the three books. Section IV will examine how the new literature relates to previous legal historiographies of the jurisprudence of the 1950s Supreme Court. Section V will examine the new corpus' understanding of the interface between the Mandatory era and early statehood, a topic of great relevance to our discussion, as Israel's foundation was decidedly cast, inter alia, in the shadow of the Mandatory regime. In section VI, I will offer several critical observations regarding this literature's historiography, as well as highlighting its presentist orientation and its nostalgic and revisionist approach. I will also assess its treatment of the interplay between law and politics. Section VII concludes.
II.