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Introduction to I-CONnect/ICON-S-IL Symposium: Constitutional Capture in Israel?

[Editor’s Note: I-CONnect is pleased to partner with the Israeli Chapter of ICON-S (ICON-S-IL) to feature a special symposium on the subject of “Constitutional Capture in Israel?” Every day this week–from Sunday, August 20 to Saturday, August 26–we will feature a post as part of this symposium. We thank Moshe Cohen-Eliya and Gila Stopler, co-chairs of ICON-S-IL, and Nadiv Mordechay, Secretary of ICON-S-IL, for their generosity and collegiality in bringing our readers this special feature.]


Gila Stopler, College of Law and Business, Israel

In recent years the democratization process that has swept the world following the disintegration of the Soviet Union and the end of the cold war has changed its course. This process, which was characterized by the expansion of principles of democracy, human rights and the rule of law in many countries in the world, and by a significant shift of power to constitutional courts, has been replaced with the worldwide rise of populism and nationalism.

While many view this change as a threat to the stability and the future of liberal democracies, others see it as a legitimate attempt to pass power from liberal elites, especially in the areas of law, media, culture and academia, back to the people. At its peak such a process might lead to a fundamental change in the system of government of a given state, including a take-over by authoritarian and anti-democratic elements, as has happened in Venezuela, Turkey, Hungary, and Poland. Early indications of a similar process can even be identified in the United States under Donald Trump.

In this connection, scholars of global constitutionalism have coined the expression constitutional capture (or in the US – constitutional retrogression). Constitutional capture is the process by which the governing powers in a certain country use legal, political, and public opinion tools to create a gradual change in the constitutional system, by undermining the liberal democratic characteristics of the system and replacing them with authoritarian ones, with the ultimate goal of achieving a deep and lasting change in the constitutional system of the state.

The purpose of this symposium, which was first published in Hebrew in the ICON-S-IL blog (the blog of the Israeli chapter of ICON-S) is to open a discussion, both within Israeli academia and more generally, on the question whether Israel is witnessing the beginnings of a process of constitutional capture.

Gila Stopler, Alon Harel, and Nadiv Mordechay and Yaniv Roznai believe that it is possible to identify worrying trends in Israeli politics and law that may point to the evolvement of a process of constitutional capture. Stopler elaborates on the process of constitutional capture in the Israeli context and claims that the Israeli system is especially susceptible to the dangers of this process. Harel focuses on Israeli Populism and its role in the deterioration of Israel’s liberal democratic culture, and Mordechay and Roznai discuss various aspects of Israel’s constitutional retrogression and call for a revisiting of existing narratives about Israeli constitutionalism.

In contrast, Barak Medina and Iddo Porat analyze the recent developments in Israel and claim that they should not be seen as indications of an evolving process of constitutional capture. Medina suggests that the Academia should avoid crying wolf, in part in preparation for the time constitutional capture may really arrive, and Porat views these developments as a generally legitimate democratic response by the political Right to the dominance of the Left in several public spheres. Ruth Gavison concludes this symposium with a reaction to the various positions put forth by the other participants. Despite her inclination to agree with Medina and Porat, she closes with some suggestions on how to strengthen liberal democratic forces in Israel.

Suggested Citation: Gila Stopler, Introduction to I-CONnect/ICON-S-IL Symposium: Constitutional Capture in Israel?, Int’l J. Const. L. Blog, Aug. 20, 2017, at: http://www.iconnectblog.com/2017/08/introduction-to-i-connecticon-s-il-symposium-constitutional-capture-in-israel

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Published on August 20, 2017
Author:          Filed under: Analysis
 

One Response

  1. Avraham Keslinger

    It all depends on whose ox is gored. During the Thirties liberals in the US railed against “judicial dictatorship” when a conservative Supreme Court struck down a series of New Deal laws. FDR even tried to “pack” the Court – and actually there is no constitutional provision that would have prevented him from adding judges with the consent of the Senate.

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