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33 Isr. L. Rev. 259 (1999)
Democracy and the New Constitutionalism in Israel

handle is hein.journals/israel33 and id is 271 raw text is: DEMOCRACY AND THE NEW CONSTITUTIONALISM IN ISRAEL Michael Mandel* Democracy and the New Constitutionalism In a recent paper, I argue that the new constitutionalism - the transformation in the relations between courts and representative in- stitutions that has swept the world and that is now sweeping Israel too - can best be understood as one of those changes of everything so that everything would remain the same.' The promotion of courts and the demotion of legislatures through the judicial enforcement of rigid Charters and Bills of Rights has legalized politics, changing its nature as well as its locus. Contrary to those who regard this as an essentially democratic development, I argue that it is, to paraphrase Reuben Hasson, a weapon in the hands of democracy's enemiesI.2 argue that the new constitutionalism was intended to operate and does operate as an an- * Professor, Osgoode Hall Law School, York University, Toronto; Visiting Professor, Faculty of Law, The Hebrew University of Jerusalem. The author wishes to thank the Halbert Centre for Canadian Studies of the Hebrew University and the Faculty of Law for their hospitality and support during the writing of this paper. He also wants to thank the students in his course 'Comparative Constitutional Law for a lively semester and for their insights into Israeli consti- tutionalism. Finally, the author would like to thank Karen Golden Mandel for her translation of crucial Hebrew material and for her help with many of the ideas in the paper. This paper is part of a larger project generously supported by the Social Sciences and Humanities Research Council of Canada (Grant No. 410-94-1441). An earlier version was delivered June 30, 1998 at the International Colloquium Democracy and the Courts sponsored jointly by the Faculty of Law of the Hebrew University of Jeru- salem, the Israel Law Review and the Israel Association for Canadian Studies. The revised version has benefitted from the very helpful comments made at that time by David Kretzmer and from the thoughtful advice of Dan Avnon, Ruth Gavison and Ran Hirschl. 1 Michael Mandel, A Brief History of the New Constitutionalism, or 'How We Changed Everything So That Everything Would Remain the Same', (1998) 32 Isr. L.R. 250. 2 R.A. Hasson, How to Hand Weapons to Your Enemies - The Charter of Rights Fiasco, (June, 1982) 5 Steelshots.

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