17 März 2023

Separating Substance from Procedure: How to Address the Israeli Constitutional Crisis

Many proposals to resolve the current Israeli constitutional crisis have been advanced recently. These include the President’s proposal, Friedman & Elbashan’s, Stern’s, Barak Medina’s, and many others. Nonetheless, we believe that most of these proposals are unlikely to bring about a compromise. They appear unlikely to bring about a compromise, not because their content cannot be accepted by the parties involved, but because they do not address the substantive concerns of the parties. The one exception is the President’s proposal which was released on March 15th and which, to some extent, endorses the mechanism we propose here to solve the conflict.

Both sides aim to reach a compromise that reflects and advances their ideological goals or constituent interests. In making decisions concerning decision-making mechanisms and the role of the Court, neither side considers whether these mechanisms are good or desirable from a long-term perspective, but only whether they will enable it to further its short-term goals.  It is, therefore, imperative to separate short-term interests related to urgent substantive issues from procedural decisions that shape decision-making mechanisms in order to find a solution to the current crisis.

We propose a framework that, if adopted, can provide a basis for a viable compromise. It is based on a strict separation between urgent substantive issues, such as the conscription of the ultra-orthodox, the regulation of public transportation on Saturdays, or Kosher laws on the one hand, and procedural and institutional issues on the other.  We count amongst the latter questions surrounding the mechanisms for deciding constitutional questions and the nature of the relationship between the courts, the executive, and the legislative branch. While the interests of the parties regarding the aforementioned substantive issues are distinct and based on conflicting ideologies, there may be greater overlap than appears at first sight with respect to the institutional mechanisms of decision-making. This is because, in the long run, it is difficult to predict who will benefit from the proposed mechanisms. Hence, separating the negotiations about the substantive issues from those about the procedural issues is necessary if a compromise is to be realized.

One way to establish institutional mechanisms for decision-making is to do so behind what is often called in the literature “the veil of ignorance.” The term was coined by the political philosopher John Rawls in his important book A Theory of Justice. In his view, foundational decisions must be settled in a way that is not influenced by sectarian interests. The normative foundations of a state should ideally reflect the rules that we would have endorsed had we been ignorant with respect to our identity, our social class, our religion, or sexual orientation. These are all central components of our identity, but they cannot provide a basis for constitutional decisions.

Thus, if I am a Catholic, I may ordinarily be voting for a party that promotes Catholicism. However, if I voted behind a veil of ignorance, I would not know whether, at the end of the day, I would be a Catholic, a Jew, or an atheist. Hence, I may vote for a rule that guarantees freedom of religion. Similarly, if a heterosexual who dislikes gay couples votes behind the veil of ignorance, he may vote for gay marriage as he does not know whether, at the end of the day, he would turn out to be gay or not.

While Rawls applied this principle not only with respect to decisions concerning procedure and decision-making rules but also with respect to substantive decisions, we wish to apply this mechanism only to procedural decision-making mechanisms. The real world, however, does not provide a veil of ignorance. In the real world, we vote while knowing our socio-economic status, our religious beliefs, our sexual orientation, etc. How can we guarantee that our decisions concerning the decision-making mechanisms and the status of the Supreme Court do not take into consideration our short-term interests? We believe that while we cannot fully realize this idea, it is possible to make some progress in this direction.

Our proposal is that the different sectors in society, including the ultra-orthodox, seculars, traditionalists, and Palestinians, will specify what their basic, most important interests are. One may presume that the ultra-orthodox will raise the issue of conscription, Kosher food, and additional issues that seem essential to them. By contrast, the seculars may wish to entrench values such as equality and freedom from religion. They may also wish to lift the limits on public transportation on Shabbath in secular neighborhoods. The modern orthodox may wish to promote the settlements. The parties to the negotiations will have to consider accepting such demands with the understanding that once they do so, these issues will be removed from the agenda. As a result, the decision-making process and the status of the Court may be determined in a way that would only take long-term considerations into account.

After an agreement regarding the urgent substantive issues is reached (which we admit is not an easy task), these issues would be entrenched and not be subject to judicial review. There are already certain issues in Israel that are not subject to judicial review such as the monopoly that religious courts have on issues concerning marriage and divorce. Only once these urgent substantive concerns are removed from the agenda would the parties negotiate long-term procedural mechanisms for decision-making. Since the urgent substantive issues would not be affected by the procedural mechanisms, it would be easier both to negotiate and reach an agreement with respect to the procedure. For example, it would be easier for the Ultra-Orthodox to agree to judicial review when they know that courts cannot interfere in the decision to exempt them from conscription. Similarly, it would be easier for seculars to agree to a constitutional settlement if the basic right to be free of religion be entrenched in the Constitution and if greater powers were given to local institutions to regulate the policies concerning Shabbath.

To some extent, this idea is already reflected in the President’s proposal which was released on March 15th. It specified solutions for certain substantive issues such as a settlement concerning the conscription of the ultra-orthodox and the entrenchment of the right to equality and other fundamental rights. Our proposed separation of substance and procedure can be done in different ways. It is possible to reach an agreement with respect to the substantive issues, in the way the President’s proposal suggests, and then make determinations with respect to the procedural questions. Alternatively, different committees could simultaneously engage in negotiations concerning procedural and substantive issues.

To conclude, in our view, the constitutional crisis results from the fact that the parties to the conflict shape their proposals concerning the decision-making process in a way that is conducive to their short-term substantive interests. The solution should separate the two. Our proposal facilitates such a separation and therefore seems promising to us.


SUGGESTED CITATION  Harel, Alon; Klement, Alon: Separating Substance from Procedure: How to Address the Israeli Constitutional Crisis, VerfBlog, 2023/3/17, https://verfassungsblog.de/separating-substance-from-procedure-how-to-address-the-israeli-constitutional-crisis/, DOI: 10.17176/20230317-185238-0.

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