Research

The Paradox of Authority: Israeli Law Since February 16, 1949

Israel’s Constituent Assembly convened in Jerusalem on February 14, 1949. Two days later, on February 16, it adopted the Transition Law and reconstituted itself as the Knesset. Israeli statutes have looked different ever since, and still do. Those enacted before that date carried enacting clauses naming the body that made them, were numbered in the official record, and appeared in Arabic as well as Hebrew. Those enacted afterward do none of the three—not even the Basic Laws, which the Supreme Court treats as constitutional: nothing in the text of a Knesset law states who made it or on whose authority. No other jurisdiction, so far as I have found, publishes statutes this way, and neither Israeli scholarship nor the Supreme Court has taken notice. This Article establishes these facts from the gazettes themselves, and from the records of the Provisional Council of State and the Knesset.

The Declaration of Independence, proclaimed on May 14, 1948, was itself promulgated as Official Gazette No. 1, and committed the new state to a constitution. The Transition Law could not appear in the Official Gazette without conceding that it was not the constitution the Declaration had promised; a second gazette, Reshumot, was opened for it. Yet Israel can neither hold itself to its founding decision, which prescribed a constitution the state has not adopted, nor set that decision aside, since Israeli law derives from it—an impasse I call the paradox of authority. The requirement is minimal: every official decision must name its decision-maker.

About this research
Presentation — an introduction to the main arguments

The paper is a work in progress. For the latest draft, please contact me.