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Judges in a Borderless State: Politics versus the Law in the State of Israel

Israeli politicians may be likened to dancers whose aerial pirouettes command cheers from breathless audiences fearing, or perhaps hoping, that the maestros in tights will miss a step, fall down, and break their elegant necks. And, as expected, these politicians often do. Since independence in 1948 and the first national elections that were held early in 1949, only twice has the Knesset (Israel’s parliament, consisting of 120 members) been able to complete its legal term of four years. At the same time, more than 32 governments have ruled the political scene, averaging less than two years in power. Political crisis has become the norm rather than the exception. Nonetheless, despite this continuing situation of flux, the democratic essence of the state has been preserved. This has not been an easy accomplishment for a polity governed without a written constitution or a constitutional tradition to compensate for its absence. Israel has also had to struggle with having no agreed upon international borders with all of its neighbouring states. The country lacks a social consensus on the definition of civil identity, and there is no collective commitment to preserve individual rights, be they related to property or other civil rights. Israel has had to grapple with unplanned and thus unexpected waves of immigration coming mostly from nondemocratic countries and with almost constant protracted cycles of allout wars against both internationally recognized states and illegal and unrecognized terrorist groups. Hence, the occurrence of frequent situations of instability in the economy, the political institutions and the public policy-making apparatuses should surprise no one. Yet this multi-party, coalition-governed political system, reflecting a social mosaic of sectors and divisions defined along ethnic and religious lines (e.g. Jews, Moslems and Christians; Ultra Orthodox, Orthodox, Secular) has shown a remarkable ability to sustain the democratic nature of its system of government. This ability to hold things together without the support of firm, legal and institutional supports could partly be explained by the effective intervention of the court. The Israeli court, in particular the Supreme Court