Written or Unwritten Constitution? On Democratic Legitimacy and Judicial Review in Israel

The Moynihan Institute and the Law in World Affairs series presents Professor Barak Medina from the Hebrew University of Jerusalem

Most democratic countries have a written Constitution, and a few do not. What makes the Israeli case unique is that even after 76 years, the question of whether the state has a written Constitution—and, if so, what its content is—remains unresolved. This controversy arises from the commitment made by the state’s founders, both domestically and internationally, to enact a Constitution, a commitment that has persisted without being fulfilled.

The Israeli Supreme Court decided, in 1995, that the Basic-Laws enacted by the legislature are constitutionally binding and justify employing judicial review of legislation. It then decided, in 2024, that certain amendments to these Basic Laws, which were part of the government’s attempt at the so-called “Legal Reform,” are invalid. These decisions can be explained and justified based on the concepts of democratic legitimacy and Constitutional Identity. These decisions thus provide an opportunity to explore basic concepts of constitutional law.

Barak Medina is the Landecker-Ferencz Professor of the Study of Protection of Minorities and Vulnerable Groups at the Faculty of Law of the Hebrew University of Jerusalem. He studies constitutional law and human rights law. Professor Medina has served as rector (provost) of the Hebrew University (2017-2022) and as dean of the Faculty of Law (2009-2012). He is currently a senior visiting fellow at Harvard Law School.