Why Israel does not have a constitution

Israel does not have a constitution due to the country’s fluid identity and refusal to identify its borders, a phenomenon that reflects decades of Palestinian dispossession and land usurpation.

“The non-adoption of a constitution, just like the opaque status-quo agreements, mirrors Israeli consensus regarding the necessary avoidance of ultimate solutions to controversial questions concerning the identity of the state,” wrote Hanna Lerner, the head of the School of Political Science, Government and International Affairs at Tel Aviv University.

Lerner’s 2004 article, Democracy, Constitutionalism, and Identity: The Anomaly of the Israeli Case, argued that the non-adoption of the constitution has been rooted in “the religious-secular conflict in Israel”, which has been “driven by the politics of Jewish identity: the struggle between opposing visions on the very nature of the Jewish state.”

TRT World reached Lerner to comment on this article. She did not respond to the query.

Israel’s example as a country without a constitution is unique compared to the other five nations.

For instance, the United Kingdom does not have a single written constitution that acts as a point of reference while delivering justice. It rather has an uncodified constitution spread across various sources comprising statutes, common law, conventions and legal documents like the Magna Carta.

In the case of Israel, it’s a complicated question rooted in the competing interests of its Orthodox Jewish base, hardcore Zionists, and so-called secularists.

Torah vs Israeli secularism

While secularists demand a constitution based on the separation of religion and state, Orthodox groups oppose this, saying that the country does not need a constitution because the Torah, the Jewish holy book, defines what Israel is.

Lerner quoted a representative of Agudat-Israel, an ultra-Orthodox party, in the early years of the Israeli state as saying: “There is no place in Israel for any constitution created by men. If it contradicts the Torah – it is inadmissible, and if it is concurrent with the Torah – it is redundant.”

In the face of opposing dynamics, early Israeli leadership sought to develop a middle ground after the 1950 Harari decision, which suggested that Tel Aviv should not create a compact constitution but instead enact separate Basic Laws for government institutions – an approach that might eventually lead the country to adopt a single constitution. This did not ease tensions, however.

Ankara-based theology historian Eldar Hasanoglu, who specialises in Judaism and teaches at Haci Bayram Veli University, highlights long-standing differences between the “secularist” founders of the Israeli state, such as David Ben-Gurion, its first prime minister, and “fundamentalist” Jews. The latter consider Israel as their God-given “promised land” and demand that political leaders adhere to the principles of the Torah instead of a man-made constitution.

Israel’s secularist leaders have understood that if they drafted a constitution without any reference to the Torah, they would face a severe backlash from the newly migrated Jewish Orthodox groups, says Hasanoglu. And if they wrote laws in accordance with the Torah, the early Israeli leadership feared being cold-shouldered by the Western world for pursuing “a fundamentalist agenda”, he adds.

“As a result, It was in their interest not to make a constitution,” Hasanoglu tells TRT World. “They did not want to create any obstacles (like a secularist constitution) preventing religious Jews from coming to Israel while they also aimed to keep the secularist nature of the state intact”.

Due to persistent divisions and tensions between secularists and ultra-Orthodox groups, “the process of making an Israeli constitution has been deliberately delayed in order to prevent social clashes between the two camps,” says Batuhan Ustabulut, an academic on constitutional law at Türkiye’s Kocaeli University and the Director of Legal Research at the Economic and Social Research Center (ESAM).

The unresolved struggle concerning Israel’s identity suits Tel Aviv’s “long-term reluctance to define its political order and identity” by drafting its constitution, according to Richard Falk, a leading American Jewish legal expert and an emeritus professor of international law at Princeton University.

A widening gap

When Israeli academic Lerner wrote her article two decades ago, the country was ruled by a “secular majority”. Since then, Israel’s political makeup has drastically changed, demonstrated by the current far-right Netanyahu government, which is dominated by Orthodox Zionist parties.

But even in 2004, Lerner observed that the “Israeli consensus” on retaining what she described as a consociational political model “has begun to erode”. In a consociational political model, leading elites from different sects and communities work in tandem to ensure the existing system remains stable.

Prior to the October 7 attack, the Netanyahu government’s plan for a judicial overhaul triggered large demonstrations, showing that the gap between secular and religious groups had widened and confirming Lerner’s two-decade-old prediction that the Israeli consensus was eroding.

“The judicial reform plan has triggered a political crisis in Israel, becoming a real factor leading to numerous snap elections and unstable governments,” says Hasanoglu, referring to a widening rift between the secularist and religious groups in Israel. “In layman's terms, the unsolved problems of the past have become midwives to today's crises,” Ustabulut tells TRT World.

Drafting a constitution has increasingly become a far-fetched objective for Tel Aviv as divisions within Israeli society have increased since the 1980s when religious courts were allowed to be formed, says Hasanoglu. “Unlike a secular court decision, a rabbi’s ruling in a religious court can’t be appealed,” says the academic.

“In the long-term, secularist Israelis will lose this war against the Orthodox Jewish groups,” says Hasanoglu, citing how right-wing groups have grown in size and influence since the 1980s. With the nation-state law of 2018 recognising the right to self-determination only for Jewish people, religious groups feel far more emboldened, he adds.

Benefits of no constitution

Experts point out a number of political benefits of having no constitution for Israel.

“At the end of the day, a constitution sets limits on the use of political power,” says Ustabulut. In the case of Israel, constitutional limits can force the state to designate its respective territorial borders, something Tel Aviv has long resisted to do so.

“The existential reason is connected with Israel’s reluctance to fix its territorial boundaries in view of expansionist territorial ambitions. It seems that Israel associated a constitution with an acceptance of the territorial status quo as of 1948 or 1967,” Falk tells TRT World.

The professor refers to the emergence of the Israeli state in 1948 and the Six-Day War of 1967, which enabled Tel Aviv to occupy the West Bank, Gaza, the Sinai Peninsula and the Golan Heights after defeating four Arab states. Israel withdrew from the Sinai Peninsula after a US-mediated peace deal between Tel Aviv and Cairo in 1982.

“Israel is an expansionist settler colonial state, meaning that it does not have borders. It's trying to get as much land as it wants until it digests that land and brings enough people to settle it and a constitution may have a setback on that,” says Sami al Arian, a leading Palestinian academic.

A modern democratic constitution will set “equal rights”, instructing Israel not to violate the civil rights of non-Jews, for example, Palestinians, says Nihat Bulut, a law professor at Medipol University.

Under the influence of the religious concept of “promised land” only given to the “chosen nation” Jews and increasing extremist political pressure, Israeli leaders can’t really imagine “equal rights” to non-Jews, Bulut tells TRT World. As a result, they have a problem defining not only their state but also their nation, he adds.

In its early years, Israel “had martial law against the Palestinians”, says Arian. If it had a constitution, “it would have to define what the Palestinians are”, which would create a lot of difficulties for Israel to commit such heinous acts, he adds. There is a long list of rights violations committed by Tel Aviv against Palestinians for decades.

“Some factors may not have been good public relations to disclose, especially flexibility with respect to the status of non-Jews. The existence of Israeli discriminatory laws on the right of return or family reunification; racial restrictions on property ownership and rights of residence may have had difficulty being reconciled with a democratic constitution,” says Falk.

“Without a constitution, Israel retains flexibility as to the definition of ‘a Jewish supremacy state’ as illustrated by the 2018 Basic Law restricting the right of self-determination to the Jewish people,” he adds.

Arian and Falk seem to be on the same page regarding Israel’s lack of a constitution.

Arian believes that imposing Jewish supremacy is precisely why Israel does not have a well-defined legal code of conduct, and that’s “because it would be either a racist supremacist constitution reflecting the nature of the Zionist ideology or leave it in limbo so that they could not be criticised.”