Here is a the latest draft of my paper on Israel’s Paradox of Authority. This is still a work in progress, so please do not use without the author’s permission. I posted a PDF of a PowerPoint presentation in another post: the presentation is probably easier to follow, and includes a detailed discussion of subsequent developments in law and government. I mention there the fact that Israel has never defined a commander in chief, and that israelis do not seem to think (probably even today) there is anything wrong with that.
Here’s the paper:
To the best of my knowledge, I offer here the most comprehensive account of the origins of the the Israeli system. It is an account that recasts the Israel system — a radical demystification of Israel’s constitutionalism, getting rid with all the metaphysical dead skin that accumulated in years of ignorance and ideology-laden thinking. Among the points of interest I advance:
- Israel’s Proclamation of State (aka Declaration of independence) inaugurated Israel and its Official Gazette, and was officially the state’s Decision #1 (a fact unknown to the Israeli judiciary).
- The Official Gazette, including the Proclamation (Decision #1), was promulgated in Arabic as well as in Hebrew (ditto).
- Israel is the only country without an official constitution, but Israel’s judiciary class is unaware of this. The comparison to the UK, NZ is conceptually misguided.
- Hebrew does not distinguish between “official” and “formal”— Hebrew denotes both with the same word —, limiting Israeli political thought. It is not unlike failing to tell “epistemology” and “ontology” apart. One can see this as a fresh take on the controversial Sapir-Whorf hypothesis on how language shapes thought.
- Math analogy. Since February 16, 1949, Israel exists on the Complex Plane. The Post-1949 gazette (aka Reshumot) inhabits the imaginary, or unofficial axis, which competes with the Real (official) Axis of the Official Gazette.
- Israeli Reshumot (the post-1949 unofficial or “official” gazette) laws are not numbered and do not include an enacting clause, a pedestrian practice that exists everywhere. Reshumot is promulgated only in Hebrew, unlike the Official Gazette.
- Israel is the only institution I’m aware of to fail a strict Hart’s Recognition Test. It is my interpretation of Hart’s Rule of Recognition. A naive Recognition Test is about private recognition of personal authority — the child recognizes her mother’s voice. A strict Test concerns recognition beyond the private — the child can distinguish her mother’s voice amid the cacophony on the street.
- Israel does not have an official procedure to distinguish between a bill and a law! Only Knesset bylaws to that effect define legislature procedure (leave aside the contradictory official and unofficial instructions — the focal point of the constitutional abyss where matter and antimatter collide). Now, Knesset’s bylaws are internal procedures and cannot have constitutional standing. An official legislation procedure would define the status of a Knesset decision. Israel is like a person who wears her shirt inside out.
- Israel’s Reshumot (post 1949-decisions) depend on the authority of the Knesset, therefore Israeli law is relatively private and any state act is necessarily aggressive.
- The Israeli paradox of authority is not some technical, purely theoretical result. It is a powerful framework to understand future developments in law and government.
One may find academic literature on a political theory concept of “paradox of authority” but that supposed paradox, I believe, is nothing but a conceptual confusion.