The Rule of Law in Israel

The article discusses the rule of law in Israel's seventy years of independence. My claim is that despite the violent national conflict occurring within and at its borders, and despite it being a multi-cultural immigrant state, Israel managed to establish and maintain a developed democracy and rule of law. The first part sketches the Israeli constitutional order, with the aim of describing the strength of Israel's democracy and rule of law, while the second details its problems, discussing mainly the systematic discrimination—authorized by the law—against the Arab minority in Israel.

ISRAEL'S CONSTITUTIONAL ORDER

The term "rule of law" typically refers to the restraint of governmental power (and in a sense of societal hierarchies and power relations as well) for the sake of safeguarding human rights and freedoms. The restriction of state power is achieved mainly by the establishment of a "constitutional order": a set of rules, institutions, and procedures that create a structured mechanism of inspection of political power. Of special importance is the demand that the country functions in accordance with written laws, published in advance, and interpreted, implemented, and enforced in a uniform, impersonal, and universal manner on the entire citizenry by a functioning and autonomous judiciary and legal system.

In Israel, the establishment of a democratic constitutional order entailed the subordination of the army and other security agencies to the command of the democratically elected civil government; the formation of a parliamentary democracy; the institution of an autonomous judiciary and a law-abiding public administration; and the inculcation of a civic awareness to democracy and the rule of law.

The army is a central institution in every state because the state's sovereignty depends on its ability to police itself within and defend its borders against external threats. The huge power wielded by the military is precisely the reason why any political community that values freedom must place severe restrictions on the use of that power. Founding a disciplined national army unconditionally obedient to the elected civilian government was one of Israel's most significant achievements in the transition to statehood. The success to forge a democratically-controlled military force out of the ideological and party-affiliated Jewish underground forces that operated in Mandate Palestine largely explains why Israel is one of the few new states established during the post-WW II decolonization process to remain consistently democratic and never to undergo a military coup.

Like in other democracies, the army command has many times wielded influence in the process of government decision-making. The development of the 1967 War and Israel's 1982 imbroglio in Lebanon are two famous examples of such an influence. While we should not disregard these incidents, they should not be allowed to obscure Israel's exceptional achievement of subordinating the IDF to the rule of law and democratic principles.

The main restraint on governmental power is a well-functioning democracy. The Zionist Movement had been democratic from its very inception at the end of the nineteenth century, and so were the Yishuv and its largest political blocks, the labor movement and the liberal free-market parties. They all operated on a universal democratic basis (Jewish women voted in elections to the Zionist congresses more than two decades before women in most countries gained the right to vote). Thus, the Jewish state would be democratic. Proclamation number 1, the state's first law, which was accepted right after the Declaration of Independence on 14 May 1948, formally established a Provisional State Council as a legislative authority and a provisional government as the new state's executive. In accordance with the requirements of the rule of law, The Law and Administration Ordinance (issued two weeks after the declaration of independence) formally ordered the operation of the Israeli judiciary and legal system and established the formal requirement that all legislation be published.

The first national general elections took place in January 1949 (even before the 1948 war ended) and encompassed men and women, Jews and Arabs, new immigrants and veterans. Free and general elections to the Knesset and the municipalities are held regularly since...