The Rise and Demise of Constitutional Duties in Israel

The Rise and Demise of Constitutional Duties in Israel Assaf Likhovski* 2020 This is the Author’s original version (AOV) of the article. The article has been accepted for publication in the American Journal of Legal History published by Oxford University Press Abstract In many constitutions, constitutional duties appear alongside constitutional rights. However, the history of constitutional duties, unlike the history of constitutional rights, is a neglected topic. This article is a case-study of the history of constitutional duties in Israel. The article documents the appearance of duties in Israeli constitutional texts and debates in the 1950s and shows that the interest in duties was connected to the view that a major role of constitutions was to serve as educational, rather than legal, texts. The article then analyzes the decline of duties discourse in Israel pointing to the 1960s as the watershed decade in which duties disappeared. Finally, the article discusses a number of possible factors that led to the waning of the notion of constitutional duties, focusing specifically on the juridification of Israeli law and society. Fluctuations in interest in constitutional duties, the article concludes, are connected to changing understandings of the nature of constitutions, and, more broadly, to shifts in the relative importance of law and lawyers in society. * For their research assistance I thank Amit Berkovitz, Katarzyna Czerwonogóra, Rachele Hassan, Noa Shmueli, and especially Rivka Brot. For her editorial assistance I am grateful to Amanda Dale. For their advice or comments on previous versions of this article, I would like to thank Leora Bilsky, Natalie Davidson, Talia Diskin, Arye Edrei, Orly Erez-Likhovski, Hannah Lerner, Menachem Mautner, Orit Rozin, Avi Rubin, Shani Schnitzer, David Schorr, Tomer Shadmy, the fellows of the Constitutional Transplantations research group at the Israel Institute for Advanced Studies (especially Anat Scolnicov), and the participants of the TAU Faculty of Law Faculty Seminar. I am grateful to Aviram Shahal for his comments, and also for the materials he provided. Research for this article was supported by an Israel Science Foundation (ISF) research grant number 586/18. 1 Introduction Citizen duties—such as the duty to pay taxes, to serve in the army, to work, or to educate one’s children, or even the duty to face the dangers of natural disasters in solidarity with all other citizens—appear in many constitutions.1 Duties are often found in constitutions of countries belonging to the continental legal family, for example, the Italian or German constitutions.2 They sometime also appear in international human rights treaties.3 Some Anglo-American constitutional texts and debates also refer to duties, although in common law legal systems constitutional duties are far less prevalent, and they are certainly absent from the most influential modern constitutional tradition – that of the United States.4 As Mary Ann Glendon has argued, this unique characteristic 1 See David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87 N.Y.U. L. REV. 762, 774 (2012) (“citizen duties” appeared in 65% of the 188 constitutions in force in 2006). See also https://www.constituteproject.org/ (a database which, among other things, allows a comparison of the prevalence of certain duties in the constitutions included in it). Duties, of course, also appear in other types of legal sources such as legislation and case-law. In addition, one might argue, based on the Hohfeldian analysis of rights, that every discussion of rights also implied a discussion of duties, since duties exist as correlatives of rights. While all this is certainly true, this article does not intend to discuss every possible manifestation of the notion of duties (a task which would be impossible in a single article). 2 See COSTITUZIONE, 1947 art. 4 , 30 , 48, 52, 54 (duties to work, educate one’s children, vote, defend the country, and uphold the constitution and the laws); GRUNDGESETZ, 1949 art. 6, 14 (mentioning the duties of parents towards their children, and social obligations related to property ownership). 3 See Fernando Berdion Del Valle & Kathryn Sikkink, (Re)Discovering Duties: Individual Responsibilities in the Age of Rights, 26 MINN. J. INT’L. L. 189 (2017); Ben Saul, In the Shadow of Human Rights: Human Duties, Obligations, and Responsibilities, 32 COLUM. HUM. RTS. L. REV. 565 (2000/1); INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, TAKING DUTIES SERIOUSLY: INDIVIDUAL DUTIES IN INTERNATIONAL HUMAN RIGHTS LAW (1999). 4 On the difference between Anglo-American and continental approaches to duties, see, e.g., Gerhard Casper, Changing Concepts of Constitutionalism: 18th to 20th Century, 1989 SUP. CT. REV. 311, 320. Duties did appear in the Virginia Declaration of Rights of 1776, which later influenced the United States Bill of Rights of 1789. Section 16 of the Virginia Declaration stated that “it is the mutual duty of all to practise [sic] Christian forbearance, love, and charity toward each other.” See https://www.archives.gov/founding-docs/virginia-declaration-of-rights. See also Casper, id. at 320. For modern Anglo-American discussions of constitutional duties see, e.g., 2 of the American constitutional tradition can be traced back to two different philosophical versions of liberalism, and to two influential 18th century documents, the 1789 French Declaration of the Rights of Man and of the Citizen, which did mention individual duties, and the 1776 American Declaration of Independence (and later, the American Constitution) which did not.5 Constitutional duties are related to an understanding of the constitution as an educational text. When legal scholars think of a constitution now, they often imagine, following the dominant contemporary American model, a single document containing provisions delineating the power of the three branches of government, and also containing a bill of rights. This document has superior normative power, and lawyers and judges use it to protect individual rights.6 The competing, European, model, currently less powerful, viewed constitutions as symbolic rather than normative texts, defined their role as educational rather than legal, and saw their audience as the general public rather than lawyers and judges.7 The history of constitutional duties is linked to the history DONAL COFFEY, DRAFTING THE IRISH CONSTITUTION, 1935–1937: TRANSNATIONAL INFLUENCES IN INTERWAR EUROPE 75–78 (2018) (1930s Ireland); House of Lords, House of Commons Joint Committee on Human Rights, A Bill of Rights for the UK? Twenty-ninth Report of Session 20072008, HL Paper 165-1, HC 151-1, at 68–78 (2008). https://publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/165i.pdf (a debate on whether the UK Bill of Rights should mention duties); Constitution of India, Section 51A (a duties provision added in 1976). 5 See MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 11– 14, 76–77 (1991). See also Menachem Mautner, Property and the Obligation to Support the Conditions of Human Flourishing, L. & SOC. INQUIRY (forthcoming) (a brief theoretical discussion of duties and liberalism). 6 See, e.g., Giovani Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SCIENCE REV. 853, 856 (1962). On the spread of one major aspect of the American Model, judicial review, see, e.g., Tom Ginsburg, The Global Spread of Constitutional Review, in THE OXFORD HANDBOOK OF LAW AND POLITICS 81 (Keith E. Whittington et al. eds., 2008). 7 On the theoretical distinction between a “lawyers’ constitution” and a “peoples’ constitution” with an “educative function” see, e.g., Verner Bogdanor, Tarunabh Khaitan and Stefan Vogenauer, Should Britain have a Written Constitution? 78 POL. Q. 499, 503–4 (2007); LESLIE WOLFPHILLIPS, COMPARATIVE CONSTITUTIONS 22–23 (1972); Benjamin Akzin, The Place of the Constitution in the Modern State, 2 ISR. L. REV. 1, 13 (1967). On the difference between the American normative model of a constitution and the European “symbolic” model see FRANCESCO 3 of constitutions as educational texts, because the primary addressees of constitutional duties are ordinary citizens, rather than lawyers and courts.8 The global dominance of American model, at the center of which is a rights-based understanding of the constitution, is relative new. As late as the middle of the twentieth century, the emphasis on rights was still seen as “an unfortunate American obsession,” and duties were seen as the necessary twins of rights. For example, in 1944 when the Allies began to talk about establishing a new world organization – the future United Nations – Gladwyn Jebb, the British representative to the talks wrote that he would agree to an “International Human Rights Organization” on the condition that “a similar organization for Human Duties” would be BIAGI, EUROPEAN CONSTITUTIONAL COURTS AND TRANSITIONS TO DEMOCRACY 178–80 (2020); Louis Favoreu, American and European Models of Constitutional Justice, in COMPARATIVE AND PRIVATE INTERNATIONAL LAW: ESSAYS IN HONOUR OF JOHN HENRY MERRIMAN 105, 119 (David S. Clark ed., 1990). For early, non-lawyerly, views of the American Constitution, see, e.g., STEVEN WILF, LAW’S IMAGINED REPUBLIC: POPULAR POLITICS AND CRIMINAL JUSTICE IN REVOLUTIONARY AMERICA (2010); LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); Hendrik Hartog, The Constitution of Aspiration and ‘The Rights That Belong to Us All’, 74 J. AM. HIST. 1013 (1987). For a theoretical critique of the American model see MARK V. TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999). An Israeli discussion of popular constitutionalism is found in Gideon Sapir & Shaul Sharf, Hukatanut ‘Amamit, 30 MEHKAREY MISHPAT 161 (2015). On the educational role of constitutions in specific countries belonging to the continental legal family see, e.g., OTTO LUCHTERHANDT, GRUNDPFLICHTEN ALS VERFASSUNGSPROBLEM IN DEUTSCHLAND: GESCHICHTLICHE ENTWICKLUNG UND GRUNDPFLICHTEN UNTER DEM GRUNDGESETZ 296–97 (1988) (Germany); Diego Sevilla Merino, Constitución, religión y educación. Reflexiones a partir de la Constitución de 1812, 21 CUESTIONES PEDAGÓGICAS 37 (2011-2012); Viviana Ponce de León Solís, La Función De Los Deberes Constitucionales, 44 REVISTA CHILENA DE DERECHO 133, 149–53 (2017) (the educational role of constitutions, and the role of duties, in constitutions in the Spanish-speaking world); JENNIFER ALTEHENGER, LEGAL LESSONS: POPULARIZING LAWS IN THE PEOPLE'S REPUBLIC OF CHINA, 1949–1989, 127–67 (2018) (China). 8 This, for example, is the way constitutional duties are seen in India. See DURGA DAS BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA 142–43 (20th ed., 2011) (there is no provision for the direct enforcement by the courts of the duties found in the Indian Constitution). See also A.I.I.M.S. Students Union v. A.I.I.M.S., AIR (2001) SC 3262 (India) (the civic duties enumerated in the Indian Constitution are not enforceable by the courts). 4 established.9 When and why exactly did duties discourse wane in the international, as well as national, arenas in the period after the Second World War? Surprisingly, the history of constitutional duties is not a well-researched topic.10 No one has written a detailed global or comparative history of constitutional duties. There are works that discuss constitutional duties in some specific national legal systems. However, these works are often analytical, containing only brief discussions of the history of duties. In addition, when history does appear in these studies, the focus is on earlier eras (such as the period of the French Revolution, the nineteenth century, or the interwar period), while the discussion of the more recent history of constitutional duties in the period since the middle of the twentieth century – the period of the rise of the global rights paradigm (and the concurrent decline of duties) – is neglected.11 It would be impossible to provide a global history of the waning of constitutional duties after the Second World War within the limited scope of a single article. However, the analysis a specific 9 See Mark Mazower, The Strange Triumph of Human Rights, 1933–1950, 47 THE HISTORICAL JOURNAL 379, 391 (2004). It should be noted that during this period even some American politicians toyed with the idea of an American “Bill of Duties.” See SAMUEL MOYN, NOT ENOUGH: HUMAN RIGHTS IN AN UNEQUAL WORLD 83 (2018). On unsuccessful attempts to include duties in the Universal Declaration of Human Rights see, e.g., ROGER NORMAND & SARAH ZAIDI, HUMAN RIGHTS AT THE UN: THE POLITICAL HISTORY OF UNIVERSAL JUSTICE 17, 118–19, 180–82, 195 (2008). 10 See Samuel Moyn, Rights vs. Duties: Reclaiming Civic Balance, BOSTON REV., May 16, 2017. http://bostonreview.net/books-ideas/samuel-moyn-rights-duties (noting the lack of historical studies of this topic). 11 See, e.g., ROBERT HANICOTTE, DEVOIRS DE L'HOMME ET CONSTITUTIONS: CONTRIBUTION À UNE THÉORIE GÉNÉRALE DU DEVOIR (2007); YVES MADIOT, CONSIDERATIONS SUR LES DROITS ET LES DEVOIRS DE L’HOMME (1998) (France); FEDERICA GRANDI, DOVERI COSTITUZIONALI E OBIEZIONE DI COSCIENZA (2014); V. M. VIROLI, L’ITALIA DEI DOVERI (2008); GIORGIO M. LOMBARDI, CONTRIBUTO ALLO STUDIO DEI DOVERI COSTITUZIONALI (1967) (ITALY); Gregorio Peces-Barba Martínez, Los deberes fundamentals, 4 DOXA 329 (1987) (Spain); SAMANTHA LOMB, STALIN'S CONSTITUTION: SOVIET PARTICIPATORY POLITICS AND THE DISCUSSION OF THE 1936 DRAFT CONSTITUTION 31–33 (2018) (USSR). An impressive and detailed discussion of the history of constitutional duties (focusing on the history of such duties in German states from the early part of the nineteenth century to the German Basic Law of 1949) can be found in LUCHTERHANDT, supra note 7, at 61–430. 5 case-study is possible, and this is the goal of this article, which seeks to describe the appearance and then the waning of constitutional duties discourse in one jurisdiction – Israel – from the middle of the twentieth century to the present. My hope is that his case-study can serve as one building block of a future global history of constitutional duties. Today, constitutional rights, rather than duties, dominate public and legal discourse in Israel, just as they dominate constitutional discourse in many other countries.12 Perhaps because of this dominance, the history of constitutional duties in Israel has not been studied yet.13 The first goal of this article is therefore simply to recover this lost history, showing that constitutional duties were once present in Israeli constitutional discourse, and also providing a periodization of their appearance (the 1950s), and disappearance (the 1960s). The story that I tell in this article, however, has broader implications, which might, in the future, be relevant to historians interested in analyzing the history of constitutional duties 12 As a result, there is a sizeable body of works on the history of Israel’s rights discourse. Some leading works on the topic are ORIT ROZIN, A HOME FOR ALL JEWS: CITIZENSHIP, RIGHTS, AND NATIONAL IDENTITY IN THE NEW ISRAELI STATE (Haim Watzman trans., 2016); ORIT ROZIN, THE RISE OF THE INDIVIDUAL IN 1950S ISRAEL: A CHALLENGE TO COLLECTIVISM (Haim Watzman trans., 2011); MENACHEM MAUTNER, LAW AND THE CULTURE OF ISRAEL (2011); PNINA LAHAV, JUDGMENT IN JERUSALEM: CHIEF JUSTICE SIMON AGRANAT AND THE ZIONIST CENTURY (1997); DAPHNA SHARFMAN, LIVING WITHOUT A CONSTITUTION: CIVIL RIGHTS IN ISRAEL (1993). 13 There are some works on the more general topic of civic (rather than constitutional) duties in Israel, and about the history of Israeli republican discourse. See, e.g., Menachem Mautner, Mashber ha-Republikaniyut be-Yisrael, 14 MISHPAT VA-‘ASAKIM 559 (2012); AVI BARELI & NIR KEDAR, MAMLAKHTIYUT YISRE’ELIT (2011); MOSHE BERENT, ‘AM KE-KHOL HE-‘AMIM: LIKRAT HAKAMATAH SHEL REPUBLIKAH YISRE’ELIT 242–78 (2009); GERSHON SHAFIR & YOAV PELED, BEING ISRAELI: THE DYNAMICS OF MULTIPLE CITIZENSHIP (2002); Lior Barshak, Ezrah u-Medinah be-Demokratyah, 32 MISHPATIM 217 (2001). For recent, non-historical, Israeli discussions of constitutional duties see Tomer Shadmy, Ha-Hovah ke-Kufsah Sh’horah shel Si’ah ha-Zkhuyot, 1 BIFRAT UVI-KHLAL 126 (2015); Tomer Shadmy, ‘Idan ha-Ahrayut: Tfisat ha-Hovah be-Si’ah Zkhuyot ha-Adam – Min ha-Nistar el ha-Nigleh (Dec. 2015) (unpublished Ph.D. dissertation, Tel Aviv University) (on file with author). See also Noam Solberg, Shimru Mishpat va-‘Asu Tsdakah, 8 DIN U-DVARIM 13, 28–30 (2014) (calling for the enactment of an Israeli basic law on “human responsibility.”) 6 elsewhere. The history of constitutional duties in Israel is related to the fact that the contemporary understanding of the nature of constitutions, as predominantly legal texts, was not shared by many of the actors involved in mid-twentieth century Israeli constitutional debates. Many participants in these debates viewed constitutions as educational rather than normative texts, and discussions of duties was related to this educational approach. Over time, the educational view of constitutions disappeared, and duties disappeared with it. This disappearance was related, I argue, to the juridification of Israeli society, that is the process by which law and lawyers came to dominate legal and constitutional discourse (in Israel and elsewhere), at the expense of other professions (for example, politicians or educators) in the period between the mid-twentieth century and the present.14 The decline of constitutional duties, I conclude, should be seen as one manifestation of the broader process of juridification in Israel, and this process, I believe, may turn out to be a major factor in the decline of duties elsewhere. Two unique features of the Israeli legal system make the study of the history of constitutional duties in this specific setting relatively more complex and, therefore, more interesting. First, Israel has a mixed legal system in which continental, English and American 14 The notion of juridification first appeared in Weimar Germany, where the term was used in the context of debates about the proper scope of labor law. See Gunther Teubner, Juridification — Concepts, Aspects, Limits, Solutions, in JURIDIFICATION OF SOCIAL SPHERES: A COMPARATIVE ANALYSIS IN THE AREAS OF LABOR, CORPORATE, ANTITRUST AND SOCIAL WELFARE LAW 3, 9 (Gunther Teubner ed.,1987). Additional or related terms used to describe this process are “legalization,” “judicialization,” or “juristocracy.” On this process see, e.g., Lars Christian Blichner and Anders Molander, Mapping Juridification, 14 EUROPEAN LAW JOURNAL 36 (2008); RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004); John Ferejohn, Judicializing Politics, Politicizing Law, 65 L. & CONTEMP. PROBS. 41 (2002). An important history of juridification in the United States is LAWRENCE M. FRIEDMAN, TOTAL JUSTICE (1985). See also DANIEL R. ERNST, TOCQUEVILLE’S NIGHTMARE: THE ADMINISTRATIVE STATE EMERGES IN AMERICA, 1900–1940 (2014); Duncan Kennedy, The Hermeneutic of Suspicion in Contemporary American Legal Thought, 25 LAW AND CRITIQUE 91 (2014). 7 influences compete with each other. Israeli constitutional history thus provides an exceptional opportunity to study the mingling of different constitutional traditions, with different attitudes to the notion of constitutional duties.15 A second unique feature of Israel is that it is one of the few countries in the world not to have a comprehensive codified constitution. Unlike many revolutionary or post-colonial states that promulgated a constitution in the period immediately following a regime change or independence, in Israel a constitution was ultimately not adopted after independence in 1948. In November 1947, the United Nations decided to partition Palestine and to create two states—Jewish and Arab—in that territory. The partition resolution included a demand that the two states would promulgate democratic constitutions.16 This demand led, in the period before and after Israeli independence (declared on May 14, 1948), to intensive constitution-making activity in the Jewish community of Palestine. Ultimately, however, Israel never promulgated a comprehensive constitution. Israel’s politicians were unable to reach an agreement on the content of the constitution, partly because of religious–secular tensions in Israel’s first Parliament (which was also its constituent assembly), but also because David Ben-Gurion, Israel’s first Prime Minister, was averse to the idea of a rigid constitution that would impede his political power. Instead of promulgating a constitution, the Israeli Parliament (Knesset) adopted, in June 1950, a proposal made by one of its members, Yizhar Harari, that the Israeli Constitution should not be implemented wholesale but rather as a series of basic laws (the “Harari Decision”). Thirteen such basic laws have been enacted since 1950, dealing with various constitutional topics. Yet, to this day, seventy years after the Harari Decision, there 15 On the mixed nature of the Israeli legal system, see, e.g., Aharon Barak, The Tradition and Culture of the Israeli Legal System, in EUROPEAN LEGAL TRADITIONS AND ISRAEL: ESSAYS ON LEGAL HISTORY, CIVIL LAW AND CODIFICATION, EUROPEAN LAW, ISRAELI LAW 473 (Alfredo Mordechai Rabello ed., 1994). 16 See G.A. Res. 181 (II) (Nov. 29, 1947). 8 are still many constitutional topics that remain unregulated by a basic law, and Israel is therefore one of the few countries in the world to have no comprehensive codified constitution.17 The fact that Israel did not promulgate a formal constitution led to prolonged and spirited debates about the nature, goals, and usefulness of a constitution, and also led to drafting efforts spread over several decades, thus reflecting changing constitutional conceptions (including changing attitudes toward constitutional duties). The Israeli story, therefore, affords a dynamic view of several layers of mid- and late-twentieth-century attitudes to constitutional duties; and this view, in turn, may also be relevant when future scholarship seeks to study the global history of constitutional duties in the period since the end of the Second World War, its relationship to trends in constitutional history, and, more broadly, to the changing relationship of law and society. This article has four parts. In Part I, I discuss the appearance of duties in early Israeli constitutional texts and discourses (until the June 1950 Harari Decision). In Part II, I link the idea of constitutional duties to the idea, prevalent in 1950s Israel, that constitutions were educational texts, and that one of their main roles was to instruct citizens about their duties. In Part III, I explore the gradual disappearance of duties from Israeli constitutional texts and constitutional discourse 17 A list of secondary sources dealing with the history of the failed attempt to promulgate a codified comprehensive constitution in Israel after 1948 is found in Orit Rozin, Mi-Guf Rishon Rabim leGuf Rishon Yahid: Tahalikhey Individualizatsyah ba-Hevrah ha-Yisre’elit be-Reshit he-‘Asor haRishon la-Medinah, 18 n 1 (Feb. 2002) (unpublished Ph.D. dissertation, Tel Aviv University). Some recent additional works are Joseph Weiler & Doreen Lustig, Petakh Davar: Makom Tov baEmtsa‘: Mabat Tluy Heksher ‘al Ha-Mahapekhah ha-Hukatit ha-Yisre’elit, 38 ‘IYUNEY MISHPAT 419, 455–72 (2016); NIR KEDAR, BEN-GURION VEHA-HUKAH: ‘AL HUKATIYUT, DEMOKRATYAH U-MISHPAT BI-MEDINYUTO SHEL DAVID BEN-GURION (2015); RON HARRIS, HA-MISHPAT HAYISRE’ELI – HA-SHANIM HA-MEʻATSVOT: 1948–1977, 61–62 (2014); Adam Shinar, Accidental Constitutionalism, in SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS 207 (Denis J. Galligan & Mila Versteeg eds., 2013); HANNA LERNER, MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES 51–70 (2011); SHUKI FRIEDMAN & AMIHAI RADZYNER, HUKAH SHELO KTUVAH BA-TORAH 12, 54–55 (2006). See generally, Janet McLean, Constitution Making: The Case of “Unwritten” Constitutions, in COMPARATIVE CONSTITUTION MAKING 324 (David Landau & Hannah Lerner eds., 2019) (comparing Israel, New Zealand and the UK). 9 from the 1960s onward. In Part IV, I suggest several possible reasons for this disappearance, focusing especially on juridification, that is the growing power of lawyers in Israeli society. In the conclusion, I discuss several implications of the story told in this article. I. Duties in Pre-State and Early Israeli Constitutional Discourse a. Pre-1948 Prior to declaration of Israeli independence in 1948, the local constitutional culture of Palestine contained few precedents for the notion of constitutional duties. The Ottoman Empire was an absolute monarchy, but in 1876, the Ottoman Sultan enacted a constitution. This document indirectly mentioned duties (although not constitutional ones) by stating that “all Ottomans are equal in the eyes of the law. They have the same rights, and owe the same duties toward their country, without prejudice to religion.” However, the Ottoman Constitution did not include a list of specific duties.18 Another source of early Israeli legal thought, Jewish religion, strongly emphasized the notion of duties (mitsvot) over rights.19 However, these duties were religious in nature. The Zionist movement that emerged in Europe in the late-nineteenth century also created quasi-constitutional texts, but these did not include bills of rights and duties.20 18 See, e.g., Aylin Koçunyan, The Transcultural Dimension of the Ottoman Constitution, in WELLCONNECTED DOMAINS: TOWARDS AN ENTANGLED OTTOMAN HISTORY 235 (Pascal W. Firges ed., 2014). This is in contrast to other late 19th-century constitutions of non-western empires such as the Meiji Constitution of 1889 which did contain a list of duties. 19 See generally Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J. L. & RELIGION 65 (1987); Moshe Silberg, Law and Morals in Jewish Jurisprudence, 75 HARV. L. REV. 306 (1961). 20 Central Zionist Archives [hereinafter CZA], Aaron Zwergbaum, Hitpathut ha-Hukah shel haHistadrut ha-Tsiyonit ha-‘Olamit (Lecture given on June 29, 1972). See also TAKANON HAHISTADRUT HA-TSIYONIT [1921] (1953/4). 10 During the Mandatory period, two constitution-like documents governed life in Britishruled Palestine: The League of Nations Mandate for Palestine, adopted by the League of Nations in July 1922, and the Palestine Order-in-Council 1922, enacted in August 1922. The Mandate for Palestine briefly mentioned rights, stating that the mandatory government was to protect “the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion,” as well as “the right of each community [in Palestine] to maintain its own schools for the education of its own members in its own language.”21 However, it did not mention any constitutional duties. This was also the case in the Palestine Order-in-Council 1922, which outlined the powers of the three branches of government under British-colonial rule. The Order-in-Council contained no bill of rights (although it did mention rights such as freedom of conscience) and no list of civic duties.22 A 1927, British-approved, set of regulations dealing with the “internal constitution” of the Jewish communities in Palestine established the organs of local Jewish communities and created nationwide bodies representing the Jews of Palestine. However, once again, these regulations did not contain any bill of individual rights or duties.23 Much of Jewish constitutional thought during the Mandatory period was focused not on creating formal constitutional documents, but on devising frameworks for political cooperation between the two major ethnic communities of the country, Jews and Arabs. One can see such efforts, for example, in a proposal prepared by Zionist leader Ze’ev Jabotinsky in 1918 designed to ensure the protection of Jewish interests in the British-ruled territory despite the demographic 21 See Mandate for Palestine, Jul. 24, 1922, Preamble, articles 2, 13, 14, 15. See PALESTINE ORDER IN COUNCIL, Aug. 10, 1922 (UK). 23 Takanot le-Sidurah shel Knesset Yisrael, PALESTINE GAZETTE 10 (Jan. 1, 1928). See also MOSHÉ BURSTEIN, SELF-GOVERNMENT OF THE JEWS IN PALESTINE SINCE 1900, 157–72 (1934). 22 11 inferiority of the Jews, or in a detailed 1941 report on the constitutional principles that would ensure Jewish interests, should a federal bi-national state be created in Palestine.24 However, a few Jewish constitutional documents outlining the duties of members of the Jewish community in Palestine were produced during this period. One example is a 1939 “constitution” (hukah) created by an organization of German–Zionist academics in British-ruled Palestine, the KJV (Kartell Jüdischer Verbindungen).25 This “constitution” focused on civic duties rather than individual rights. These duties included, for example, a demand for “assisting in the creation of a Jewish national home in Palestine,” by complying with the semi-voluntary Jewish tax system created at the time. The document also referred to more trivial issues such as a requirement “that everyone would strive in their social circles to create a level of politeness which befits a civilized nation.” Another duty mentioned in the document was that “every [Jew] shall assume, based on his capacities and education, public roles, either political, governmental, cultural or in the realm of social help.”26 Other Jewish constitutional texts created during the Mandatory period were memos on a future constitution of a Jewish state written by ultra-orthodox rabbis following the publication of the Peel Commission Report of 1937, which recommended the partition of Palestine into an Arab 24 See Yehuda Ben-Ari, Yesodot u-Mosadot ha-‘Shilton ha-Zmani be-Erets Yisrael’ le-Hakamat ha-Bayit ha-Yehudi ha-Le’umi, 63 HA-UMAH 83 (1981); Va‘adah li-She’elat Hitpat’hut Konstitutsyonit shel Erets Yisrael: Din ve-Heshbon (1941). See generally YOSEF GORNI, MEDINYUT VE-DIMYON: TOKHNIYOT FEDERALIYOT BA-MAHSHAVAH HA-TSIYONIT (1993). 25 The Hebrew term hukah is translated presently as “constitution”; yet, in the early part of the twentieth century, it was used more broadly, and could also refer to ordinary legislation or even regulations. However, in the specific context of the 1939 document, the term was used in reference to a constitution-like document, in the sense that it would enumerate fundamental principles that were supposed to govern the lives of all the Jews of Palestine. On the KJV see generally Walter Gross, The Zionist Students’ Movement, 4 LEO BAECK INSTITUTE YEARBOOK 143, 149, 163 (1959). 26 CZA, J8/1251, K.Y.P., Mishtar Tsiyoni (May 1939). This provision may have been copied from article 163 of the 1919 Weimar Constitution. See HEINRICH OPPENHEIMER, THE CONSTITUTION OF THE GERMAN REPUBLIC 256 (1923). 12 and a Jewish state. These memos contained demands that the future constitution of the Jewish state impose various religious duties on the citizens of that state, such as public keeping of the Sabbath.27 b. Duties in Drafts of the Israeli Constitution When Israel was established in 1948, it was expected to swiftly promulgate a constitution. In anticipation, a series of memos were prepared by the legal department of one of the two major political bodies representing the Jews of Palestine, the National Council (Ha-Va’ad ha-Leumi), headed by a Polish-Israeli lawyer, Zorach Warhaftig. These memos did not contain a draft constitution, but they did deal with some of the major problems that the drafters of the constitution were expected to face. The first memo, dated October 1947, included a comment on the “problem of the individual and the public, the rights of the individual (Bill of Rights) [the term “Bill of Rights” appeared in English in Warhaftig’s document] and his duties to the public.”28 The drafters would have to choose, wrote Warhaftig in his memo, between the “French-American system which guarantees a maximum amount of human rights, protecting the individual against the state,” and “the Soviet system, adopted recently by some East European countries, and partly in the new French constitution, which subjects the interests of the individual to the interest of the public.”29 27 See Dr. Isaac Breuer Z”L, Tokhnit la-Hukah ba-Medinah ha-Yehudit, 3 YAVNEH 33 (1948/9); Rabbi Moshe Blau Z”L, Yesodot la-Hukah ba-Medinah ha-Yehudit, 3 YAVNEH 37 (1948/9). See also Arye Edrei, Rav Tarbutiyut be-Girsah Haredit Mukdemet: Yitshak Breuer mi-Medinat haTorah le-Kehilat ha-Torah, 32 DINÉ YISRAEL 187 (2018). 28 See Israel State Archive [hereinafter ISA], 000ja9r, Va‘adat ha-Hukah – Mo‘etset ha-Medinah ha-Zmanit [hereinafter VHMMZ], Zorach Warhaftig, Tazkirim ‘al ha-Be‘ayot haKonstitutsyoniyot shel ha-Medinah ha-Yehudit – Tazkir Mis[par] Alef, Oct. 9, 1947, 5 at 201. 29 Id. Warhaftig was referring here to the 1946 French Constitution, which contained provisions on the duty to work, and the duty of social solidarity. See ARNOLD JOHN ZURCHER, CONSTITUTIONS AND CONSTITUTIONAL TRENDS SINCE WORLD WAR II 233, 732 (1951). 13 Israel’s foundational parliament, the Provisional State Council, first convened in May 1948 and was dissolved in February 1949, following the country’s first-ever elections. When the Constitution Committee of the Provisional State Council first met in August 1948, it received five draft constitution proposals.30 Additional proposals, or memos on the principles of the constitution, were prepared during this period by several individuals and political parties.31 The draft used as the basis of the discussions of the Constitution Committee was prepared by Leo Kohn, a German-born lawyer, who served during the Mandatory period as Secretary of the Political Department of the Jewish Agency, and later worked for the Israeli Ministry of Foreign Affairs. There were three versions of Kohn’s draft. None of these mentioned any specific duties.32 However, many of the 1948 drafts did mention constitutional duties (whether this was due to the ideological convictions of the drafters, to the fact that constitutional drafting is often an act of 30 See Knesset Archive [hereinafter KA], VHMMZ, 2nd Meeting, Aug. 11, 1948, at 2. These drafts were prepared by Leo Kohn, Ismar Freund, Werner Fraustädter, Samuel Rolbant, and a committee of the MAPAI Party, chaired by Zvi Berenson. Debates in the committee were also based on the memos prepared by its Chair, Zorach Warhaftig. See also LERNER, supra note 17, at 55. 31 See https://main.knesset.gov.il/activity/constitution/Pages/ConstProposals.aspx (documents by Ze’ev Falk, the Herut Party [Yohanan Bader], Chief Rabbi Benzion Meir Hay Ouziel, and Avraham Jacobus). An additional proposal, not available on the Knesset website, was prepared by Zvi Lurie, a member of the socialist MAPAM Party. See Ha-Shomer Ha-Tsa‘ir Archive, Zvi Lurie Personal Archive, Ha-Hukah le-Medinat Yisrael – Hatsa‘ah, Sections 12–16, 73. I thank Aviram Shahal for providing me with a copy of this proposal. 32 The drafts did, however, contain a section stating that Israeli citizens “shall…be subject to the obligations” of Israeli citizenship. See [Leo Kohn], Constitution of Israel: Proposed Text, 16 JEWISH FRONTIER 4 (Jan. 1949). On Kohn’s drafts see generally Aviram Shahal, Ha-Hukah sheNishkehah: Hatsa‘at ha-Hukah shel Leo Kohn veha-Be‘ayah ha-‘Aravit (2014) (LL.M. thesis, Tel Aviv University Faculty of Law) (on file with author); Amihai Radzyner, The Irish Influence on the Israeli Constitution Proposal, 1948, in THE IRISH CONSTITUTION: PERSPECTIVES AND PROSPECTS 69 (Eoin Carolan ed., 2012); Amihai Radzyner, A Constitution for Israel: The Design of the Leo Kohn proposal, 1948, 15 ISRAEL STUDIES 1 (2010). 14 bricolage in which bits and pieces from various foreign sources are cobbled together, or to a combination of both).33 A draft constitution prepared in June 1948 by a committee created by the leading Israeli political party of the time, the socialist MAPAI Party, stated that “every citizen has the moral duty to work for the benefit of the collective”; that “every citizen and resident must respect the laws and all regulations, instructions, and decrees issued in accordance [with these laws]”; and that “every citizen has a duty to participate in the protection of the security of the state and in the defense of its independence and [territorial] integrity.”34 Zvi Lurie, a member of another Israeli socialist party, MAPAM, prepared a draft constitution in the fall of 1948. Lurie’s draft was partly inspired by the 1936 Soviet Constitution, and also by more recent East European ones. It began (fittingly enough for a draft echoing socialist themes) with a list of civic duties rather than rights, including loyalty to the “Israeli commonwealth (kehiliyat Yisrael),” to the constitution and laws of the state; wholehearted fulfillment of public duties; payment of taxes; army service (“the supreme honor-duty of every citizen … avoidance of which is the greatest crime”), as well as the duty to educate one’s children to be loyal citizens of the Israeli commonwealth.35 33 See generally GÜNTER FRANKENBERG, COMPARATIVE CONSTITUTIONAL STUDIES: BETWEEN MAGIC AND DECEIT 111–55 (2018). 34 Merkaz Mifleget Po‘aley Erets Yisrael, Ha-Va‘adah le-Hukat ha-Medinah veha-Shilton haMekomi, [Hukah], Jun. 27, 1948, Sections 8.2.2, 8.21, 8.22. http://main.knesset.gov.il/Activity/Constitution/Documents/04.pdf. See also MIFLEGET PO‘ALEY ERETS YISRAEL – HA-MERKAZ, LI-VE‘AYOT HA-T’HUKAH SHEL HA-MEDINAH VEHA-SHILTON HAMEKOMI 9, 12, 91–93 (1948). 35 Ha-Shomer Ha-Tsa‘ir Archive, Zvi Lurie Personal Archive, Ha-Hukah le-Medinat Yisrael – Hatsa‘ah, Sections 12–16, 73. On the relationship between rights and duties in socialist constitutions, see generally FRANKENBERG, supra note 33, at 47–48. 15 Yohanan Bader, a Polish-born lawyer and an important figure in the right-wing Herut party (forerunner of the Likud party), prepared another draft constitution. Bader’s draft contained a section on “human and civic duties” that mentioned, for example, the moral duty to work, the duty to educate one’s children, and the duty of every citizen to respect the constitution and laws of the state; fulfill the “duties towards the public wholeheartedly”; maintain “the principles of fraternity, tolerance, and social justice” toward any other person; use their rights while safeguarding the rights of others, as well as the demands of “morality, public order, and common good”; face the dangers of natural disasters in solidarity with all other citizens, and generally contribute to the public burdens, and be loyal to the fatherland and defend it.36 Several other drafts also contained duties.37 c. Duties in Early Parliamentary Constitutional Debates As noted earlier, the Constitution Committee of Israel’s Provisional State Council based its debates on the draft constitution prepared by Leo Kohn. Kohn’s draft did not include duties, only rights, and therefore constitutional duties were not alluded-to in this committee’s debates, apart from one brief mention of the duty to work, made by Zvi Lurie. 38 36 Jabotinsky Institute Archive, file P 21 5/1, Bader’s draft constitution, Sections 37, 42, 47, 56, 57. https://main.knesset.gov.il/Activity/Constitution/Documents/05.pdf. See also Assaf Likhovski, Peripheral Vision: Polish–Jewish Lawyers and Early Israeli Law, 36 L. & HIST. REV. 235, 255–59 (2018). 37 See ISA, 000ja9r, VHMMZ, [Samuel Rolbant], Suggestions for the Constitution of the State of Israel, Section 106, at 424; ISA, 000ja9r, VHMMZ, Dr. I. Freund [Proposal], Sections 124, 128, 129, 130, 184, at 395–6, 403 (I thank Aviram Shahal for providing me with a copy of this proposal); ISA, 000ja9r, VHMMZ, Dr. Werner Fraustädter, Hatsa‘ah li-Megilat Hukah le-Medinat Yisrael, Section 42, at 357; Rabbi Benzion Meir Hay Ouziel, Hatsa‘ot le-Hukat Medinat Erets Yisrael, Dec. 1, 1947. https://main.knesset.gov.il/Activity/Constitution/Documents/06.pdf; Dov Rozen, “Hukat Yovel le-Yisrael,” https:/main.knesset.gov.il/Activity/Constitution/Documents/09.pdf 38 KA, VHMMZ, Aug. 18, 1948, at 14. 16 The first Israeli elections took place in January 1949. These elections were supposed to determine the composition of Israel’s Constituent Assembly whose main role was to draft a constitution for the new state. However, in mid-February 1949, the Constituent Assembly decided to turn itself into an ordinary parliament—the First Knesset. The Constitution, Law and Justice Committee of the First Knesset was expected to continue the work of the Constitution Committee of the Provisional State Council. However, instead of drafting the new constitution, debates in this Committee focused on the preliminary question of whether a comprehensive and rigid constitution was indeed desirable. In June 1950, after a year and half of futile debates, the Knesset decided (in the aforementioned Harari Decision) that instead of creating a comprehensive and rigid constitution promulgated in a single constitutional moment, Israel would gradually enact a series of “basic laws” dealing with various constitutional matters. The first of these, the Basic Law: Knesset, was only promulgated eight years later, in 1958. Just as the discussions of the Constitution Committee of the Provisional State Council did not mention constitutional duties, neither did those of the Constitution, Law and Justice Committee of the First Knesset, apart from brief references to the notion of a “bill of duties” and “duties towards the state and towards society” by two members of the ruling MAPAI Party.39 However, constitutional duties were mentioned in a series of sessions of the Knesset’s Plenary, held in February 1950 and May 1950. These sessions were devoted to a debate about the desirability of Israel adopting a comprehensive rigid constitution. Generally speaking, members of the two major coalition parties (the ruling socialist MAPAI Party and its junior partner, the religious party—United Religious Front or URF) were opposed to the idea of a comprehensive rigid constitution, while opposition parties (both the left- 39 KA, Va‘adat ha-Hukah Hok u-Mishpat [hereinafter VHHM], July 26, 1950, at 19–20, 24. 17 wing MAPAM and the Communist Party, as well as the right-wing Herut Party) supported such a constitution. However, the division between opponents and supporters of the constitution crossed coalition and party lines. Another junior party in the governing coalition, the Progressive Party (and also some members of MAPAI), were in favor of the idea of promulgating a constitution. Many participants of the Knesset Plenary debates envisioned a constitution containing a bill of rights and duties. This idea appeared in the speeches of supporters of the constitution.40 It also appeared in the speeches and proposals of opponents of the constitution.41 One MAPAI MK who supported the idea of the constitution, Haim Ben-Asher, stated that “a constitution means the gathering of the principles of regime, and a bill of duties [megilat klaley ha-mitsvot] of the citizen and the state in Israel.” The Hebrew term he used—mitsvot—has religious connotations, but here Ben-Asher used it to designate civic duties. These duties, he continued, included “the duty of absorbing the [Jewish] immigrants [who were coming to the country], constructing and developing the land, self-sacrifice in defense of the state … every citizen should be familiar with these commandments, and they should become a part of him [kinyano ha-ishi, which literally means ‘his personal property.’]”42 The main champion of the notion of duties (though not of constitutional ones) was David Ben-Gurion, Israel’s Prime Minister.43 In his February 20, 1950 Knesset plenary speech, BenGurion said: 40 DIVREY HA-KNESSET [hereinafter DK] (1949/50) 1316 (Ilanit); DK (1949/50) 1391 (Cohen). DK (1949/50) 725–28 (Bar Rav Hai); DK (1949/50) 780–81, 784 (Kossoi); DK (1949/50) 1262 (Pinkas). Indeed, the United Religious Front’s proposal during the debate on the Harari Decision (which was ultimately not accepted) was that the future basic laws should regulate constitutional matters, including “the rights of the citizen and his duties.” See DK (1949/50) 1717. 42 DK (1949/50) 1262. 43 See generally Nathan Yanai, Musag ha-Ezrahut bi-Tfisato shel David Ben Gurion, 4 ‘IYUNIM BI-TKUMAT YISRAEL 494, 500–2 (1994). 41 18 In a free country such as the State of Israel, we do not need a bill of rights. In such as country every person if free to do everything, unless the law prohibits it. In the eighteenth century, which was the era of tyrants, there was a need for a bill of rights … [but] in free countries, in democratic countries, where the people rule, there is a need for a bill of duties, which for us means duties to the fatherland, the people, immigration, ingathering of exiles, building the law, safeguarding the other, the weak … we, more than any other free and democratic country, in which human rights are secured, need a bill of duties. The state would not have been established … and the state will not be built without intensive pioneering, and pioneering means acceptance of the yoke of duties … the great and difficult tasks that history has imposed on [our] generation cannot be accomplished without a bill of duties that we will impose on ourselves, out of our own will, recognizing our pioneering role, for a long period …44 Ben-Gurion’s vision of duties reflected the fact that Israeli culture in the 1950s was saturated with duties discourse (although work by historian Orit Rozin also revealed the widespread resistance to this discourse).45 Ben-Gurion was a proponent of duties, but he saw them as self-imposed, rather than enumerated in a constitutional text. This was partly the result of political considerations which led him to generally oppose the idea of a constitution (fearing perhaps that such a constitution would undermine his power as a Prime-Minister). It was also the 44 45 DK (1949/50) 812, 819. See ROZIN, THE RISE OF THE INDIVIDUAL, supra note 12. 19 result of the fact that in Ben-Gurion’s thinking duties were part of the wider notion of regimented voluntarism, or top down “pioneering” (halutsiyut), that is the idea that bottom-up self-imposed duties were actually more effective, based on the pre-state experience of the Jewish community in Palestine, than top-down duties imposed by the state.46 However, Ben-Gurion’s notion of a “bill of duties” was seized by other members of his own party to justify the creation of a constitution. Thus, MK Ben-Asher said that, while he agreed with Ben-Gurion’s assertion that a bill of duties rather than a bill of rights was needed, “once the Prime Minister has pointed to this need, this means that he supports an architecture of a constitution [in which this bill of duties will appear].”47 Opposition members latched on to Ben-Gurion’s argument that Israel needed a bill of duties in order to advocate the promulgation of a constitution with a bill of rights. For example, MK Ya’akov Meridor (Herut) responded to Ben-Gurion’s speech by asking: “How can one educate the citizen to respect the law, when the rights of the citizen have not been defined …?” Only once these rights had been explicitly mentioned in a constitution, Meridor argued, would it be possible to agree with Ben-Gurion’s approach that “the people must know their duties. There is no doubt that the people must know their duties – this should be defined in the constitution, but there are no duties without rights. We must demand from the people the fulfillment of duties, [we must] encourage people to sacrifice, but the people must know that … their rights are protected. Only then would the sacrifice, or the duties imposed, be valuable.”48 46 See generally Paula Kabalo, Ben Gurion: Ra’ayon ha-Halutsiyut ve-Nos’av (June 2000) (unpublished Ph.D. dissertation, Tel Aviv University); Paula Kabalo, Pioneering Discourse and the Shaping of an Israeli Citizen in the 1950s, 15.2 JEWISH SOCIAL STUDIES: HISTORY, CULTURE, SOCIETY 82 (2009). 47 DK (1949/50) 1259, 1260. 48 DK (1949/50) 822. For similar arguments see DK (1949/50) 769–70 (Ya‘ari); DK (1949/50) 824 (Rachel Cohen); DK (1949/50) 1265 (Bader). 20 II. Duties and the Educational Role of Constitutions: The 1948–1950 Debates a. The Educational Role of Constitutions The discussion of constitutional duties was connected to a wider theme that was prevalent in debates in the period immediately after Israeli independence in 1948—a discussion of the educational role of the constitution, echoing (as I noted in the introduction) a tradition that can be traced back to nineteenth and early twentieth century continental notions about the purpose of constitutions.49 In the explanatory notes to his draft constitution, Leo Kohn had referred to “the educational influence” that a bill of rights included in the constitution would have.50 In debates in the Constitution, Law and Justice Committee of the First Knesset, one major conflict was about the exact purpose of constitutions. Israel’s first Minister of Justice, Pinchas Rosen, declared in a May 1949 meeting of the Committee that the constitution had an educational value. According to Rosen, there were people who argued that constitutions were a nineteenth-century phenomenon and were no longer needed, since the innovations found in them were now part of the common cultural repertoire of the civilized world. However, continued Rosen, Israel specifically, as an immigrant-absorbing country, needed a constitution that would serve as an educational tool (Rosen was referring here to the massive wave of Jewish immigrants who were coming to the country from post-Holocaust Europe and the Middle East, and who more than doubled Israel’s population in the first decade after Israeli independence).51 49 My analysis of the Israeli Constitution’s educational role is based on observations first made by historian Orit Rozin. See Orit Rozin, Forming a Collective Identity: The Debate over the Proposed Constitution, 1948–1950, 26 JOURNAL OF ISRAELI HISTORY 251 (2007); Rozin, supra note 17, at 28, 37, 41–43, 58–59. See also KEDAR, supra note 17, at 10, 52, 121. 50 YEHUDA PINCHAS (LEO) COHEN, HUKAH LE-YISRAEL: HATSA‘AH VE-DIVREY HESBER 21 (1948/9). 51 KA, VHHM, May 15, 1949, at 3, 4. See also id. at 21 (Lamm); 4 DK 715 (1949/50). 21 Nahum Nir (MAPAM), the Chair of the Committee, said that, because Israel faced the challenge of the “ingathering of exiles”—referring to the absorption this wave of immigration—it needed a constitution. The role of this constitution was to educate the new citizens of the country, and to be used as a propaganda tool to rekindle the patriotic enthusiasm that had already been lost since the Israeli declaration of independence. Nir also mentioned Jewish youth in the Diaspora as an appropriate audience of the constitution. The contents of basic laws, he said, would not be known by anyone except lawyers, but, if a constitution were to be promulgated, it “would be known by every child by heart, and it would be a sacred thing for him.” Such a constitution, he clarified, need not be rigid; a flexible one would also have an educational value.52 In the conclusion of the Knesset Plenary debates of May 1950, Nir also observed that “when we talk about a constitution we insist mainly on its educational value, and we do not mean [that it targets] children specifically … we also mean adults and even ministers. We must educate the whole people. Every person must know the constitution and respect it.”53 Another MAPAM MK, Hanan Rubin, argued that a constitution was needed “to educate our youth in a progressive, democratic, popular and secular spirit;” and MK Yisrael Bar-Yehuda, also belonging to MAPAM, noted the educational value of the constitution, both to create a unified people out of the multitude of immigrants who were arriving in Israel, and also as a way to prevent “counter-revolution” (probably referring here to his fear of the non-socialist parties in the Knesset).54 52 KA, VHHM, Nov. 16, 1949, at 16. See also DK (1949/50) 717, 718, 719. DK (1949/50) 1331. 54 DK (1949/50) 734–35, 1259. Unity was also the theme of the speech delivered by Ya’akov Gil of the General Zionists Party. The constitution, Gil added, “would educate whole generations, young people and adults, to love their country.” See DK (1949/50) 745. 53 22 Rachel Cohen of the feminist WIZO party said: “I want a constitution that could be taught in the lower classes of schools.”55 Yaakov Klivnov of the General Zionist Party said that a constitution “has great educative value,” being similar to “the holy spirit.” In some countries such as in the Soviet Union and the United States, Klivnov observed, every citizen, especially the young generation, studies the constitution. In such countries, he continued, “the study of the constitution is one of the foundations of studies in school,” every immigrant and resident is required to prove their knowledge of the constitution, and “various declarations and rules taken from the constitution are presented, written and engraved in public places, on memorials and popular books, and are studied by heart. What a great educational value all these have!”56 Some members of the ruling MAPAI party also agreed that a constitution has an educational role. MK Pinhas Lubianker (Lavon) asserted that “laws about alcohol and the excise tax on matches do not have an educational value, even if 1,000 laws about these topics were to be enacted each year …, the value of a constitution is that, for a generation or several generations, it becomes a tool to educate the people. In our world everything is unstable and all basic values are questioned.”57 Perhaps the strongest advocate for a constitution among MAPAI members was Foreign Minister Moshe Sharett. A constitution, he said, was needed for children who study civics, and for the “Jewish immigrants [who are now] arriving.” It is “the tool with which we shall mold and educate them.”58 Supporters of the constitution in the Israeli Parliament, one can conclude, often argued that it had an educational value. Indeed, even some MKs who were opposed to promulgating a 55 DK (1949/50) 825. DK (1949/50) 827. 57 Ben-Gurion Archive [hereinafter BGA], Yeshivat Si‘atenu ba-Knesset ‘im Havrey ha-Mazkirut [hereinafter YS], June 14, 1949, at 22. See also BGA, YS, June 14, 1949, at 15 (Smilansky). 58 BGA, YS, May 14, 1950, at 9–10. 56 23 constitution agreed that constitutions had an educational value. One finds such sentiments in the speeches of some MAPAI MKs. For example, MK David Bar-Rav-Hai acknowledged that constitutions had an important educational role in teaching the masses to appreciate the institutions of the state. However, he believed that such a role could only be accomplished when there was a consensus about the primary principles underlying the existence of the state, which, he implied, did not exist yet in Israel.59 Ami Assaf, another MAPAI MK, also opposed the creation of a constitution for various reasons, yet recognized that a constitution is “a nation-educating document (te‘udah mehanekhet umah).”60 The view that constitutions had an important educational role also appeared in the speeches of a number of MKs belonging to the URF, the religious which opposed the constitution.61 Some of the opponents of the constitution, however, refused to acknowledge its special educational power. In a meeting of the MAPAI Faction in the Knesset in June 1949, Ben-Gurion asserted that ordinary laws could have the same educational value as a constitution: “People say that a constitution is an educational tool. Not every constitution is an educational tool. A good constitution is educational, but a good law is also educational. If a law is good, it can be educational in the same manner as a constitution, and when I ask the question ‘why a constitution and not laws [as educational tools]?’ no one is able to provide an answer.”62 Ben-Gurion repeated these ideas later, in a speech in a Knesset Plenary session, urging that “if we want to educate the people to respect the law, we must educate them to respect every law, not just a privileged law called a 59 KA, VHHM, Nov. 16, 1949, at 9. DK (1949/50) 1309. 61 KA, VHHM, June 29, 1949, at 14, 17–21; DK (1949/50) 731, 732; DK (1949/50) 1324 (Warhaftig); DK (1949/50) 1268–69 (Kahana); DK (1949/50) 1322 (Ganhovsky). 62 BGA, YS, June 14, 1949, at 23, 27–28. See also DK 818 (1949/50); KEDAR, supra note 17, at 52. 60 24 constitution.”63 In another speech, before the Constitution, Law and Justice Committee, BenGurion said that there was no point in creating a document that would merely be a declaratory statement of well-known principles and no sanctions. Such a document, he asserted, already existed—the Israeli Declaration of Independence of 1948—and there was no need for another.64 b. Constitutional Duties and Civic Education The educational role of the constitution was sometimes linked in Knesset debates to the issue of constitutional duties. Such a link was found, for example, in a speech by a MAPAI MK, Ben-Zion Dinur (Dinaburg), who said that: … it has been said here [by MK Zorach Warhaftig] that a constitution would not educate. I would like to ask: Do all the immigrants arriving know what civic life (hayey medinah) entails? I am not sure that all the veteran citizens [of Israel] know this, and what every citizen owes the state. Does every Jew know the rights and the duties that a state imposes on the citizen? Did they learn this in the Diaspora of Yemen, Morocco, or even in states [culturally] closer [to Israel]? Did we [the Jews] not get used to the idea of “they” [the Gentiles] vs. “us” [the Jews], did we 63 DK (1949/50) 818. See also KEDAR, supra note 17, at 10, 52. KA, VHHM, July 15, 1949, at 3–5, 12. Ben-Gurion also called the constitution “a sort of decoration,” albeit one which has “supreme, spiritual cultural and political … value in the education of the youth, the education of the people.” See KA, VHHM, December 14, 1949, at 6. See also KA, VHHM, June 29, 1949, at 25–26 (Taburi). Ben-Gurion’s allies in opposition to the constitution, members of the URF, sometimes actually argued that the educational role of constitutions was the very reason why one should not be promulgated in Israel. A secular constitution taught in religious schools would signal to the students that “the power of the Torah has waned and it is [now] merely a historical document.” See DK (1949/50) 744 (Loewenstein). See also DK (1949/50) 1316 (Goldratt); DK (1949/50) 1262 (Pinkas). 64 25 not get used to the idea that almost every kingdom was for us a kingdom of evil ...? Is it not the first duty of absorption [of the immigrants] that every citizen and every immigrant will learn the constitution of the state, his rights and duties … and thus feel like a citizen?65 Haim Ben-Asher, Dinur’s fellow MAPAI MK, also supported the promulgation of a constitution as a way to enshrine the values of the founding fathers of Israel, by imposing them on new immigrants, calling for the creation of a constitution which would include a bill of duties that would be used to educate Israeli citizens.66 As noted earlier, Ben-Asher supported Ben-Gurion’s idea of a bill of duties, but argued that this bill should be part of a constitution, whose main benefit, he believed, would be its “educational value.” Such a constitution would be inestimable in this “period of crisis,” because it could be used to impose the values of the founding fathers on this “torn and confused generation.”67 He thus suggested a “constitution of the ingathering of exiles, and the shaping of the character of the nation,” whose values would “educate the youth and children” of Israel, as well as young Jewish children in the United States, and instill in them a “sense of patriotism.”68 Moshe Erem (MAPAM) also tied duties and constitutional education together. “We will have many laws, and the simple man, the citizen, is entitled to receive a condensed encyclopedia of [his] duties and rights …. From the fog of laws, which is a matter for experts, we should distill 65 DK (1949/50) 742. See also Rozin, supra note 17, at 58–59. DK (1949/50) 1260. 67 Id. 68 DK (1949/50) 1261. 66 26 the clear and simple principles, so the citizen will get to know and admire his state, its progressive nature, and so he would know how to protect his rights and fulfill his duties.”69 Finally, Natan Yellin-Mor, of the Fighters’ List Party, tied the educational role of the constitution to the duty of military service. In September 1949 the Israeli Parliament passed legislation that exempted some women from army service (those who declared that “reasons of conscience or religious reasons” prevented them from enlisting).70 A few months later, in May 1950, Yellin-Mor stated that such a law would not have been enacted had a constitution been promulgated. Such a constitution would have educated not just the public but also the legislators, and would have prevented them from exempting women from the “sacred duty” of army service.71 One can conclude that many Israeli politicians, such as Dinur, saw the constitution mainly as an educational tool whose role was to imposed the notion of civic duties on the Israeli population generally, and more specifically on the Jewish immigrants arriving in Israel from post-Holocaust Europe, and also from the Middle East and North Africa (Mizrahi Jews). This, one may assume, was an expression of the melting-pot and modernization ideologies, now largely discredited, but prevalent in 1950s Israel.72 It is also important to note that two groups whose relationship with the Israeli state are at the center of current political debates – the Palestinian citizens of Israel, and ultraorthodox Jews – were not explicitly mentioned in the early 1950s sources I just analyzed. 69 DK (1949/50) 1267. See also DK (1949/50) 1317 (Ilanit). 2 Sefer ha-Hukim 275 (Sept. 15, 1949). 71 DK (1949/50) 1313, 1314, 1315. Note that Yellin-Mor did not think of using the constitution for the judicial review of primary legislation. His idea was that a constitution would “educate,” and thus restrain, the legislature. The exemption of certain women from the duty of army service and its relationship to gender roles in Israel is discussed in more detail in Nitza Berkovitch, Motherhood as a National Mission: The Construction of Womanhood in the Legal Discourse in Israel, WOMEN’S STUDIES INTERNATIONAL FORUM 605 (1997). 72 See generally, Ephraim Ya’ar, Continuity and Change in Israeli Society: The Test of the Melting Pot, 10 ISRAEL STUDIES 91 (2005); MOSHE LISSAK, HA-‘ALIYAH HA-GDOLAH BI-SHNOT HAHAMISHIM: KISHLONO SHEL KUR HA-HITUKH (1999). 70 27 Both these groups are now very significant numerically, and their relationship with the Israeli state is a major concern of contemporary political discourse in Israel. This, however, was not the case in the 1950s, when both groups were far smaller. 73 The myopia of Israeli lawmakers of the 1950s in this regard is thus less surprising (unless we anachronistically project contemporary concerns onto the past). c. The Legal Role of the Constitution: Judicial Review The notion of the constitution as a document meant to educate the general public was widely prevalent in the Israeli constitutional debates of 1950. An opposing view, that the intended audience of the constitution comprised lawyers and judges, who were to use it as a tool for the judicial review of legislation, was less prominent. It was mentioned by Ben-Gurion, who expressed a concern that a conservative court might use the constitution to stall progressive legislative changes, as happened in the case of the US Supreme Court during the Progressive Era.74 However, supporters of the constitution were quick to dismiss Ben-Gurion’s fear of judges and judicial review. For example, Nahum Nir, the Chair of the Law, Constitution and Justice Committee, responded to Ben-Gurion’s fear that the Israeli Supreme Court would use the constitution for judicial review by saying that Israel could adopt the French way—creating a special constitutional court in which members of the Parliament would sit (together with, or without, Justices of the Israeli Supreme Court).75 73 Palestinian Israelis constituted about 10% of the population of 1950s Israel. The ultra-orthodox (based on the size of the party representing them in the third Knesset) numbered about 5% of the population. 74 DK (1949/50) 816. See also DK (1949/50) 1263 (Pinkas). See generally Rozin, supra note 17, at 29. 75 DK (1949/50) 717; DK (1949/50) 1329. 28 MK Dinur (MAPAI) also echoed this idea, saying that there was no need to give courts the power to use the constitution to review primary legislation. A special committee of the Knesset, said Dinur, could perform this role.76 MK Yosef-Michael Lamm, too, said (in a meeting of the MAPAI faction in the Knesset in June 1949) that the constitution could state that any law could override the constitution provided that such a power was made explicit in the wording of that law, and this approach would render the intervention of courts unnecessary.77 Future Prime Minister Moshe Sharett was not present at the Knesset constitutional debates, but he used the meeting of the MAPAI Faction in the Knesset in May 1950 to reject the idea of judicial review. His position was that a constitution need not be rigid, but could be flexible and subject to change by means of an ordinary law of the Knesset. Sharett argued that the US Constitution was poorly conceived, because it was too rigid and because the Americans “created a Supreme Court and gave it a dictatorship [power to declare] the validity of legislation. Let us not follow them. From a legal point of view, let [our] constitution be similar to any other law [so that] a simple majority can change it.”78 Yizhar Harari (Progressive Party) also noted that in many countries constitutions did not allow the Supreme Court to intervene and review primary legislation, and therefore BenGurion’s fear regarding the dangers of judicial review of primary legislation was unfounded.79 III. The Waning of Constitutional Duties Given the widespread interest in creating a constitution which would include civic duties, and given the prevalence of duties discourse in 1950s Israel, both in the Israeli Parliament (and 76 DK (1949/50) 743. BGA, YS, June 14, 1949, at 6. 78 BGA, YS, May 14, 1950, at 7–8, 10–11. 79 DK 778 (1949/50) 778. 77 29 also in wider Israeli culture), it might seem surprising that such a constitution was not promulgated, but (as I mentioned before), the constitution-making process of the first two years after Israeli independence was aborted by the June 1950 Harari Decision. This decision led to a lull in the Knesset’s constitution-drafting process, although private drafting efforts continued.80 The first basic law following the Harari Decision, Basic Law: The Knesset, was promulgated in February 1958. It was expected that the next basic law would be Basic Law: The Government. However, since the draft of this law was not ready for discussion in the Constitution, Law and Justice Committee in January 1958, the Committee asked the Attorney General, Haim Cohen, to submit a draft basic law on human rights. Cohen informed the Committee that he had already prepared such a draft, based on the Universal Declaration of Human Rights (UDHR).81 Cohen’s draft ignored duties, although the final section (section 48) echoed article 29 of the UDHR in stating that “any right given to a person according to this law and any other law, is given for the benefit of the public; and any such right is subject to a duty to safeguard the rights of others and their liberty, public order and public safety.”82 Cohen sent his draft to Uri Yadin, Head of the Legislation Department of the Israeli Ministry of Justice, who revised Cohen’s draft. Among Yadin’s objections to the draft was that 80 See M. LISMAN, HUKAT YESOD LE-YISRAEL: MATS’A RESHIT sections 7.2, 7.7, 7.11, 8.4 (1952) (a draft constitution containing a duty to honor observant Jews, a duty of every Jewish individual not to work on the Sabbath and to respect both Jewish and non-Jewish sacred sites and artifacts, and also a duty of parents to provide primary education to their children). Civic duties (constitutional and otherwise) also appeared in legal and educational textbooks of the 1950s and 1960s. See 1 NAPHTALI HORNSTEIN, MISHPAT HUKATI BE-YISRAEL UVA-‘AMIM 2 (1953); Y. FREUDENHEIM, HA-YESODOT HA-KONSTITUTSYONIM SHEL MEDINAT YISRAEL 10 (1953); Y. LAMM, HIT’HAVUT HA-HUKAH U-MAHUTAH 1, 8–9 (Yonah Sofer & Bayer Ben Tsiyon eds., 1957); S. ETTINGER, TORAT HA-EZRAHUT 61, 65 (1958); MISRAD HA-HINUKH VEHA-TARBUT, SHI‘URIM BE-EZRAHUT LE-VEYT HA-SEFER HA-MAMLAKHTI – LA-MOREH 5 (1968/9). 81 KA, VHHM, January 1, 1958, at 2. See also Hok Yesod 2: Zhuyot ha-Adam, HAARETZ, Jan. 22, 1958, at 1. 82 ISA, 0006ddr, Hok Zhuyot ha-Adam 1/58-7/67, at 318. 30 “the matter of duties should be given more emphasis. It is a well-known idea of the Prime-Minister [Ben-Gurion], and I think, with all due respect that it is an excellent idea.” Yadin deleted some sections, reordered the remaining sections, and added new provisions. He changed the title of the proposal from “Human Rights Law” to “Basic Law: Human Rights and Duties.” He also changed a key phrase in the first section from “All persons have equal dignity and rights” to “All persons have equal rights and duties.” Both drafts began with an anti-discrimination provision. However, while Cohen’s draft, generally following the UDHR, continued with the right to life and freedom and the prohibition of slavery and torture, and then enumerated different rights associated with the legal procedure, Yadin moved Section 48 of Cohen’s draft (“all rights are given for the benefit of the public”) to Section 3 of his draft. Yadin then continued with the duty to perform army service (which did not appear in Cohen’s draft), and then listed several rights (the right to employment, freedom of speech, and freedom of religion) that did appear in Cohen’s draft, but to each he appended the equivalent duty.83 Cohen’s and Yadin’s drafts thus represented two different approaches to creating a basic law on human rights. Yadin’s model reflected the notion prevalent in the first years after Israeli independence that constitutional texts should include duties. By contrast, Cohen’s represented the new approach—which would later dominate Israeli constitutional discourse—focusing solely on rights. The 1960s saw a renewed interest in creating draft constitutions for Israel. Two 1960s proposals, one initiated by a non-governmental organization, and another prepared by one of the members of the Knesset, contained duties. In 1962, the international Jewish service organization B’nai Brith created a committee chaired by Benjamin Akzin (a Hebrew University law and 83 For example, while Cohen’s draft stated that “every person has the right to work,” Yadin’s draft stated that “every person has the right to work, and the duty to work.” See ISA, 0006ddr, Hok Zhuyot ha-Adam 1/58-7/67, Yadin to Attorney General, Jan. 7, 1958, at 289–91. 31 political science professor), whose task was to produce a new draft of the constitution. Akzin’s document comprised 110 sections and was published in 1965.84 In his Introduction, Akzin noted that a codified constitution could be used as “a first rate educational device capable of teaching the whole population, and especially the youth” the principles of government “instead of leaving them hidden and dispersed in books of legislation and law reports understood only by lawyers.” He also distinguished between two types of constitutions, one that was legally binding and the other that had “moral and educational meaning,” providing a “credo to the nation” and a “guide to the legislator and population.” His stated preference was for a middle course between the two types.85 Akzin’s constitution included a chapter on rights and duties, which listed duties such as the duty to work, the duty of army service, the duty to pay taxes, the duty of obedience to the law, and a duty of loyalty to the state. In his commentary, Akzin stated that such duties were regarded as selfevident in most countries, but that he had expressly enumerated them in his proposal in view of the educational goals of the Israeli Constitution.86 Later, in 1966, MK Reuven Arazi (MAPAM) prepared a draft of a “Basic Law: Human and Civic Rights and Duties.” The list of rights in Arazi’s bill was followed by three sections on duties: one on the duty to participate in the “building and development of the land, the absorption of immigrants, and the defense of the country and its [territorial] integrity;” one on army service; and one on the payment of taxes.87 While Arazi’s proposal seemed to indicate a continued interest in constitutional duties, in fact it was to be the last major example of a comprehensive interest in 84 See BENJAMIN AKZIN, HATSA‘AT HUKAH LE-MEDINAT YISRAEL (1965). Akzin’s proposal was reprinted in Benjamin Akzin, Hatsa‘at Hukah le-Medinat Yisrael, in SUGYOT BE-MISHPAT UVEMEDINA’UT 158 (1965/66). 85 Akzin, Hatsa‘at Hukah, supra note 8484, at 158, 163, 165, 167, 168. 86 Id. at 171–72, 191–93. 87 ISA, 0006ebr, Hok Yesod Zhuyot ve-Hovot shel ha-Adam veha-Ezrah, Sections 24, 25, 26, at 8. 32 this theme. Duties were no longer present in Ministry of Justice drafts from the 1960s, in Knesset debates, in private bill proposals by MKs, or in the scholarly literature on the topic. In the early 1960s, Ministry of Justice drafters sought to further develop and update their draft of the Israeli Basic Law: Human Rights bill, partly as a result of the enactment of the Canadian Bill of Rights in 1960. Just as duties were not present in the Canadian Bill of Rights, so too did they disappear from the title and content of the Ministry of Justice draft, which was now simply called “Basic Law: Human Rights” (in place of “Basic Law: Human Rights and Duties,” as it was called in Yadin’s 1958 draft).88 Also in the 1960s, officials in the Ministry of Justice now conceived the proposed basic law mainly as a legal (rather than educational) text. The explanatory note to the bill, prepared in early 1964, stated that while the rights mentioned in it already existed in a common law form in Israeli law, due to the decisions of the Israeli Supreme Court, the proposed bill would have practical implications in the sense that the intended audience of the bill would now be bound by the rights mentioned in this basic law. This audience, the note said, was administrative agencies, that is, “the state, local authorities and their officials, and other people serving in legally-defined public roles.” Ordinary citizens as a possible audience of the bill were simply not mentioned in the explanatory note.89 Private bills by Members of the Knesset submitted in the 1960s also ignored duties. In 1963, Hans Klinghoffer, who was a professor of law and also an MK for Israel’s Liberal Party, wrote a draft “Basic Law: Charter of the Basic Human Rights.” Klinghoffer’s proposal contained 88 ISA, 00067b9, E. Livneh to U. Yadin, Jul. 18, 1962, at 180 (on the bill and also on the Canadian influence). On the 1960 Canadian Act (entitled “An Act for Recognition and Protection of Human Rights and Fundamental Freedoms),” see, e.g., Edward McWhinney, The New Canadian Bill of Rights, 10 AM. J. COMP. L. 87 (1961). 89 ISA, 00067b9, Hok Zhuyot ha-Adam 1/58-7/67, “Hok Yesod: Zhuyot ha-Adam,” at 171, 173– 74. 33 both traditional liberal constitutional rights and also some social and economic rights. It did not, however, contain any duties (except the duty of parents to take care of their children).90 Klinghoffer attempted to pass the proposal as a private bill in the Knesset in January 1964, but he did not succeed.91 In 1966, another MK, Shulamit Aloni, of the ruling Labor Party (Ma‘arakh), submitted a private bill entitled “Basic Law: Prevention of Discrimination and Coercion Bill.” This was actually a bill of rights mentioning a number of major rights (equality, freedom, protection of property, etc.). It did not mention any duties.92 In November 1965, the Knesset Plenary decided to establish a sub-committee of the Law, Constitution and Justice Committee and task it with drafting basic laws.93 The sub-committee worked during the late 1960s and early 1970s on a draft “Basic Law: Human Rights,” which contained a list of rights but not of duties.94 The drafter of the basic law, Uri Yadin, stated that, while he believed that such a law should include both rights and duties (including loyalty to the state, army service, the payment of taxes, and the duty of parents to educate their children), and that he had indeed endeavored to include duties in a draft of the law that he had prepared in the past, “I was unable to include duties [in the current version] and I abandoned the idea” (giving no 90 “Hok Yesod: Megilat Zhuyot ha-Yesod shel ha-Adam,” DK (1963/4) 798–802. See also HANS KLINGHOFFER, MEGILAT ZKHUYOT HA-YESOD SHEL HE-ADAM (HATSA‘AT HOK) [1964]. Klinghoffer’s draft was used by Ministry of Justice officials in the late 1960s. See ISA, 0006ddr, Hok Zhuyot ha-Adam 1/58-7/67, Livneh to Minister of Justice, Dec. 21, 1965, at 137–43. 91 DK (1963/4) 785–94. 92 ISA, 0006ddr, Hok Zhuyot ha-Adam 1/58-7/67, Shulamit Aloni, Hatsa‘at Hok Pratit: Hok Yesod: Meni‘at Aflayah ve-Kfiyah, at 76. 93 DK (1964/5) 15. 94 The legislative history of this bill is described in DK (1972/3) 4437–39; DK (1974) 1565–67. For the text of this bill, see Draft Basic Law: Human and Civil Rights (Hok Yesod: Zkhuyot haAdam veha-Ezrah), 5773-1973 HH, at 448. See also Hok Zkhuyot ha-Adam veha-Ezrah Ushar beKri’ah Rishonah, DAVAR, Sept. 18, 1973, at 2; ISA, 0006qrp, Hok Zhuyot ha-Adam 11/72-1/75; KA, Va‘adat ha-Mishneh shel Va‘adat ha-Hukah Hok u-Mishpat le-Hukey Yesod [hereinafter VMLY], Feb. 23, 1970, at 4. 34 explanation as to why this was so).95 MK Reuven Arazi (MAPAM) responded by saying that the basic law should be “a tool to educate the citizen … and I do not believe that good civic education is to tell the citizen just what his rights are without telling him what his duties are.”96 However, Arazi was now the only member of the sub-committee who sought the inclusion of duties in the basic law.97 Other members of the Committee, such as Mordechai Ben Porat (Ma‘arakh), said there was no need to mention duties in the basic law, since these were already mentioned in ordinary legislation.98 When the bill was ultimately presented in the Knesset Plenary in 1974, the Chair of the Sub-Committee, Halevi, informed the Plenary that the bill did not include duties because the subcommittee was informed by the Talmudic rule “if you have seized a lot, you have not seized” (the English equivalent of “Jack of all trades, master of none”). The bill therefore contained only 20 provisions dealing with rights, and it did not contain “human and civic duties toward the state and society, which,” said Halevi, “constitute a topic unto itself.”99 For various reasons, the proposed bill was not enacted. Later attempts in the 1980s to pass the bill by MKs Amnon Rubinstein and Shulamit Aloni, and by Justice Minister Dan Meridor, also 95 KA, VMLY, Feb. 23, 1970, at 2. KA, VMLY, Feb. 23, 1970, at 8. See also KA, VMLY, Jun. 8, 1970, at 5; KA, VMLY, Jun. 5, 1972, at 7. 97 KA, VMLY, Oct. 23, 1972, at 2; KA, VMLY, Oct. 30, 1972, at 1 (the chair, Halevi, noting that Arazi’s opinion about the need to include duties is not shared by other committee members). However, see KA, VMLY, Jan. 18, 1971, at 7 (MK Abramov said that “I assume that [the Constitution] will include a chapter on civic duties, and that civic duties will balance civic rights, so if one duty is army service, this duty would be able to prevent the right of a person to freely exit the country). Arazi’s call to include duties in the bill was supposed to be debated in one of the last meetings of the Sub-Committee, but he failed to attend that meeting. See KA, VMLY, Oct. 23, 1972, at 6; KA, VMLY, Oct. 30, 1972, at 1. 98 KA, VMLY, Mar. 16, 1970, at 4. 99 DK (1973/4) 1566–67. 96 35 failed. Their versions of the basic law did not mention duties either.100 In 1991 Rubinstein suggested that, just as the Harari Decision had replaced the idea of enacting the constitution in one single move with the notion of enacting it in a series of basic laws, so too could the Basic Law: Human Rights, be enacted in several steps. Ultimately, two parts of the Basic Law: Human Rights were enacted by the Knesset in 1992. These were Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation. Again, they made no mention of duties.101 Duties also disappeared from the constitutional literature produced in Israel from the 1960s onward. A 1968 pamphlet on Israel’s Basic Laws, written by Uri Yadin and published by the Government Information Center (for use by “lecturers, [youth] guides (madrikhim), and social activists”) lamented the fact that Israel still did not have a “Basic Law: Human Rights.” No reference was made to duties.102 The leading textbook on Israeli constitutional law, by Amnon Rubinstein, which was first published in 1969, included a brief discussion of civic duties (such as army service) but without linking them to the notion of a constitution.103 Most recent proposals for a comprehensive Israeli constitution also failed to mention constitutional duties.104 100 ISA, 0006ddr, Hatsa‘aot Hok Pratiyot: Yesod Zhuyot Adam, Shulamit Aloni, Hatsa‘at Hok Yesod: Zhuyot ha-Adam; Amnon Rubinstein, Hatsa‘at Hok: Hok Yesod: Zhuyot ha-Yesod shel ha-Adam. https://main.knesset.gov.il/Activity/Constitution/Documents/43.pdf; *HAARETZ, Apr. 10, 1989, at 2 (Meridor’s bill). Rubinstein’s bill was based on Klinghoffer’s proposal. See Hans Klinghoffer, Megilat Zhuyot ha-Adam: Ha-Kipa’on ba-Hakikah, in SEFER KLINGHOFFER: ‘AL HAMISHPAT HA-TSIBURI 137 (Y. Zamir ed., 1993); GUY BECHOR, HUKAH LE-YISRAEL: SIPURO SHEL MA’AVAK 131–33 (1996). 101 See BECHOR, supra note 100, at 197–98; URIEL LYNN, LEDATAH SHEL MAHAPEKHAH: HAHAZON VEHA-MA’AVAKIM SHE-HOLIDU ET ZKHUYOT HA-YESOD SHEL HA-ADAM BE-YISRAEL 15 (2017). 102 URI YADIN, HUKEY YESOD BI-MEDINAT YISRAEL 4–5 (1968). 103 See AMNON RUBINSTEIN, HA-MISHPAT HA-KONSTITUTSYONI SHEL MEDINAT YISRAEL 422–23 (2d ed., 1974). 104 See Paul Eidelberg, Hukah le-Yisrael 60 NATIV: KTAV ‘ET LE-MAHSHAVAH MEDINIT, HEVRAH, TARBUT 66 (1998); ADALAH, HA-HUKAH HA-DEMOKRATIT (2007); HA-MERKAZ LE-PLURALIZM YEHUDI, ‘EKRONOT YESOD HUKATIYIM LI-MEDINAT YISRAEL – HATSA‘AT HA-MERKAZ LEPLURALIZM YEHUDI (2008); Ha-Makhon le-Estrategyah Tsiyonit, Hukat Medinat Yisrael. 36 IV. Why did Constitutional Duties Disappear? Why did duties disappear from Israeli constitutional discourse? Several factors may have been at work. First, specific local factors may have led to the decline of duties. As we saw in part II of this article, duties were associated in early Israeli constitutional discourse with the desire to inoculate the new Jewish immigrants of the 1950s with values of veteran Israelis as part of a melting-pot ideology which strove to turn those Jewish immigrants into Israeli citizens. Behind this ideology was a value system which combined Zionism and socialism and was mainly associated with the values of the dominant Israeli political party at the time, MAPAI. This value system gradually lost its appeal as Israeli society fragmented and stratified in later decades, and was replaced by other, more heterogeneous (but also more hierarchical) visions of social ordering such as multiculturalism, but also ethno-religious chauvinism.105 A related factor was the fact that https://main.knesset.gov.il/Activity/Constitution/Documents/25.pdf. One interesting proposal that did not include duties but did mention them indirectly was SHAUL KANTSLER, MISHTAR HUKATI LE-YISRAEL: REPUBLIKAH NESI’UTIT 138, 141 (1982). Two relatively recent proposals mentioned “the duty of army service,” only to state that the exact scope of this duty would be determined by ordinary law. This provision echoed Section 4 of the Basic Law: The Military, enacted in 1976, which stated: “The duty of serving in the Army and recruitment for the Army shall be as prescribed by or by virtue of Law.” See Hatsa‘at Hukah le-Medinat Yisrael, in BECHOR, supra note 100, at 207 (section 183(b)); Ariel Bendor, Hatsa‘ah le-Hukat Yisrael, 5 MISHPAT U-MIMSHAL 23, 46 (1999/2000) (section 112). A 2005 proposal prepared by the Israeli Democracy Institute, which contained a very detailed bill of rights, also included a similar provision on army service. In addition, when dealing with the rights of children, it mentioned the “responsibility, duty, and right” of parents or other guardians of the minor to ensure “the best interest of the child.” HUKAH BEHASKAMAH: HATSA‘AT HA-MAKHON HA-YISRE’ELI LE-DEMOKRATYAH 98, 118 (2005) (sections 37, 212). See also See also Joshua A. Keidan, The Covenant of the State: A Proposed Constitution for the State of Israel, art. VII. https://main.knesset.gov.il/Activity/Constitution/Documents/16.pdf (mentioning the duty of army service). The only recent proposal that took the notion of duties seriously was YOEL LERNER, HUKAH LE-YISRAEL ‘ALPI HA-TORAH (1993/4). https://main.knesset.gov.il/Activity/Constitution/Documents/13.pdf (a proposal by a former Jewish terrorist for “Constitution for Israel based on the Torah,” which included sections on the duties of loyalty to the state and its constitution and laws; primary and secondary education; army or national service; payment of taxes; and the provision of emergency services). 105 See, e.g., Menachem Mautner, Petah Davar: Liberalizm be-Yisrael - ‘Ha-Adam ha-Tov,’ ‘haEzrah ha-Ra‘ veha-Sigsug ha-Ishi veha-Hevrati, 36 ‘IYUNEY MISHPAT 7 (2013). For a comparative 37 interest in duties appeared at a time when Israel was undergoing it state and nation-building phase. Once this phase was over, there was less of a need to use duties to cement the population to the state, and the interest in duties and their value as educational tools therefore declined. Second, the specific legislative strategy adopted by pro-constitution Israeli politicians may have also been a factor in the disappearance of constitutional duties. The fact that Israel was, and is (as political scientist Hanna Lerner noted), a deeply-divided society meant that there were few shared values on which politicians could agree. Thus, instead of focusing on creating a comprehensive constitution, Israeli politicians, beginning with the 1950 Harari Decision, concentrated their efforts on the specific parts of the constitution that they deemed most important, while everything that was seen as less necessary was jettisoned in the drafting process. This led to the gradual shrinkage of the scope of constitutional reform in Israel, which ultimately saw the abandonment of duties somewhere around the middle of the 1960s. Thus, attempts to promulgate a comprehensive constitution in the 1950s were replaced, following the Harari Decision of 1950, with efforts to enact a basic law of human rights. After these efforts, between the 1950s and 1980s, failed, the early 1990s saw a (successful) enactment of two basic laws focused on a few specific rights (such as dignity, protection of property, privacy or freedom of occupation). Duties, one might argue, were discarded less a result of a conscious decision, and more as the result of the specific constitution-making path chosen in 1950, and technical or procedural reasons may have had as much do with the disappearance of duties as the aforementioned broader ideological and cultural trends.106 discussion of the recent rise of ethno-religious political discourses, which includes an analysis of the Israeli case, see MICHAEL WALZER, THE PARADOX OF LIBERATION: SECULAR REVOLUTIONS AND RELIGIOUS COUNTERREVOLUTIONS (2015). 106 For a somewhat similar argument in another context see HARRIS, supra note 17, at 15–55. 38 Third, Israeli society, like many other countries in the last decades of the 20th century, witnessed the decline of socialism (and of collectivist ideology generally), and the rise of American-inspired individualist notions. The exact periodization of the process of the decline of collectivism in Israel is a contested question. Some scholars argue that individualist notions were already present in the 1950s. Some see the 1960s, especially the Six Day War as the important turning point in the decline of collectivism. Other scholars believe that the decline of collectivism only began in mid-1970s Israel, following the 1973 War, or the 1977 elections, when the Israeli Labor movement lost its power and was replaced by the right-wing (and also economically-liberal) Likud Party.107 If the 1960s were indeed the watershed decade in the move toward individualism in Israeli culture, then this could partly explain the decline of duties, associate with a more collectivist vision of society. Fourth, specifically in the legal sphere, the decline of collectivism and the rise of American-inspired individualism was accompanied by the general decline of continental influences on Israeli law, and the growing impact of American legal culture.108 The Americanization of Israeli law contributed to the rise of a constitutional rights discourse, and the 107 See ROZIN, THE RISE OF THE INDIVIDUAL, supra note 12 (on individualism in 1950s Israeli society); SHAFIR & PELED, supra note 13, at 2 (on 1967 as a major turning point); Mautner, supra note 12, at 106 (on the 1970s). 108 On the Americanization of Israeli law see, e.g., LAHAV, supra note 12; Assaf Likhovski Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling, 10 THEORETICAL INQ. L. 619 (2009) (on early American influences on the Israeli case-law and legislation in the 1950s); Pnina Lahav, American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?, 10 THEORETICAL INQ. L. 653 (2009) (on American influences on Israeli legal education from the 1960s onward); Ron Harris, Yoram Shachar and Meron Gross, Nohagey Histamkhut shel Beyt ha-Mishpat ha-‘Elyon: Nituhim Kamutiyim, 27 MISHPATIM 119 (1996) (quantitative analysis of citation practices of the Israeli Supreme Court); Judah Troen, “This is what is done abroad”: Model Others and the Construction of National Identity in the Parliamentary Discourse of Israel 100 (2015) (unpublished Ph.D. dissertation, Hebrew University) (showing a turning point in American influence on legislative proceedings in Israel in the middle of the 1970s). 39 concurrent decline of constitutional duties. It is interesting, however, to note that in the decline of constitutional duties seems to have begun in the 1960s when continental influences on Israeli law were still relatively strong. For example, during the 1960s, continentally-trained lawyers in the Ministry of Justice were busy creating the various chapters of the future Israeli Civil Code.109 It is also the case that some of the main protagonists whose actions led to the disappearance of constitutional duties were trained in continental legal systems before they immigrated to Israel. Thus, Professor (and MK) Hans Klinghoffer was trained in Vienna and later spent more than a decade in Brazil before moving to Israel; and MK Benjamin Halevi was born in Germany and studied law there. Yet Klinghoffer did not include duties in his 1963 proposal for a “Basic Law: Charter of the Basic Human Rights,” and Halevi excluded duties from the “Basic Law: Human and Civic Rights,” which he sought to enact in the early 1970s. Finally, another factor, related to the Americanization of Israeli law, is the process of juridification, which I would like to discuss in somewhat more detail. Juridification, I would argue, led to the rise of a conception of the constitution primarily as a legal document used mainly by lawyers and judges to protect the rights of individuals against the state, rather than an educational text whose main audience are ordinary citizens who were supposed to read it to learn about their civic duties. The Hebrew term for juridification (mishpatizatsyah) first appeared in a newspaper article written by legal scholar and politician Amnon Rubinstein in June 1987.110 The fact that the term for this process first appeared in 1987 does not mean, of course, that the process itself only occurred in the middle of the 1980s. There are various indications of this process was already 109 See, e.g., Nir Kedar, Law, Culture and Civil Codification in a Mixed Legal System, 22 CANADIAN JOURNAL OF LAW AND SOCIETY 177 (2007). 110 See Mautner, supra note 13, at 576–7. Related Hebrew term are legalizatsyah and mishput. 40 occurring in the 1960s and 1970s. For example, juridification was related to the growth in the number of lawyers in Israel. In May 1949, a year after Israel’s establishment, there were about 650 Israeli lawyers, serving a population of about 1.1 million people. The number of lawyers per capita was thus 1/1700. In 1969 the ratio was 1/1250. In the decade between 1969 and 1979, the number of lawyers per capita more than doubled, reaching a ratio of one lawyer for every 550 Israelis by 1979.111 Quantitative evidence for the growing importance of law in Israeli society in the 1970s can also be found in a study of the media coverage of the Israeli Supreme Court (sitting as a High Court of Justice), based on an analysis of articles published in two leading Israeli newspapers during four sample years between 1972 and 2000. A significant increase in media interest in the decisions of this court occurred between 1972 and 1981 when coverage in both papers analyzed more than doubled.112 Another quantitative analysis of the number of petitions submitted to the Israeli High Court of Justice in the decade between 1968 and 1978 showed a marked increase in the use of this court during the 1970s. According to this analysis, petitions to the Court grew by 125% between 1968 and 1978.113 See Din ve-Heshbon meha-Veʻidah ha-13 shel Histadrut ʻOrkhey ha-Din be-Yisrael, 6 HA-PRAKLIT 94, 107 (1949) (reporting the number of lawyers registered in the (voluntary) Israeli Bar Association); Hatsaʻat Hok Lishkat ʻOrkhey ha-Din Huʻavrah le-Vaʻadat Huk u-Mishpat, ‘AL-HAMISHMAR, Dec. 22, 1959 at 2 (reporting that the number of registered lawyers was 2,200, including inactive lawyers); Gad Barzilai, The Ambivalent Language of Lawyers in Israel: Liberal Politics, Economic Liberalism, Silence, and Dissent, in FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM, 247, 256 (Terence C. Halliday et al. eds., 2007) (there were 2,300 and 6,900 lawyers in Israel in 1969 and 1979). But see HARRIS, supra note 17, at 204 (stating that the number of lawyers in 1969 was 4,570 rather than 2,300). 112 Bryna Bogoch and Yifat Holzman-Gazit, Mutual Bonds: Media Frames and the Israeli High Court of Justice, 33 L. & SOC. INQ. 58, 63 (2008) (the article notes that an even bigger acceleration of interest in the work of this court occurred in the two decades after 1981). 113 See HARRIS, supra note 17, at 204. 111 41 Other indications in the realm of administrative and constitutional law of the process of juridification in the late 1960s and 1970s, analyzed by legal historian Ron Harris, include doctrinal changes opening the way for increased judicial review of administrative acts; The appearance of the first case in which the Israeli Supreme Court struck down primary legislation; Judicial supervision of the Israeli army in the Occupied Territories; The growing power of the Israeli Attorney General and of quasi-judicial Commissions of Inquiry.114 The history of Israeli tax law also reveals this process. Non-legal mechanisms used to prevent tax evasion in the 1950 (such as propaganda, education and shaming) were gradually replaced beginning of the 1960s by a reliance on law and on professionals using the law (lawyers, but also accountants) as the preferred governmental method for minimizing evasion.115 The process of juridification, it has been argued, was intimately connected with the rise of rights discourse in Israel.116 I believe that juridification was also related to a parallel process: The demise of constitutional duties. Constitutional rights serve as a weapon wielded by lawyers against state institutions in courts. Duties are tools wielded by the state to normalize and educate its citizens. The heroes of societies in which constitutional rights dominate are lawyers (and judges). The heroes of societies in which constitutional duties are central are educators, not lawyers. Juridification, which means the rise in the importance of law and lawyers, therefore also means a decline in the importance of duties. Juridification was related to another process, which occurred within the legal profession itself – a change in the perception of the proper role of lawyers: From agents of the state whose 114 Id. at 201–23. See ASSAF LIKHOVSKI, TAX LAW AND SOCIAL NORMS IN MANDATORY PALESTINE AND ISRAEL (2017). 116 See Mautner, supra note 13, at 576. 115 42 role was to educate the public about their civic duties, to agents of ordinary citizens protecting them from the power of the state. In the period after Israeli independence in 1948, some Israeli lawyers and politicians claimed that the role of the legal profession was not to counterbalance the power of the state by protecting the citizens, but to further a collectivist, statist, goal: To participate in the process of state institution building.117 The notion that a major task of lawyers was to serve as agents of the state was found, for example, in the debates of the 13th convention of the Bar Association that took place a year after the establishment of the state, in June 1949.118 The most explicit expression of this statist approach was found in David Ben-Gurion’s speech on that occasion. Before the establishment of State of Israel, said Ben-Gurion, the duty of Jewish lawyers was to “confront the foreign state, protecting Jewish political prisoners from foreign laws and judges.” But now, he noted, lawyers had a new role: To educate the public to respect the law (or, as he put it, “to teach the public…to respect and honor the state and the law … respect and honor public officials, [and] respect and honor the state’s judges and policemen.”) Israeli lawyers, he continued, should see themselves as opponents of an oppressing legal system, as was the case in foreign countries, but as persons responsible for strengthening the rule or law, and the respect for the law, in public consciousness.119 In a 1952 essay Ben-Gurion developed this idea. Israeli lawyers, he said, should “educate the people to see the law not as an unjust decree but as an expression of the will of people…that imposes duties on individuals out of care for the needs of 117 See Neta Ziv, Combining Professionalism, Nation Building and Public Service: The Professional Project of the Israeli Bar 1928–2002, 71 FORDHAM L. REV. 1621, 1637, 1649 (2003). See also LIKHOVSKI, supra note 115115, at 237–41. 118 Din ve-Heshbon meha-Veʻidah ha-13 shel Histadrut ‘Orkhey ha-Din be-Yisrael, 6 HA-PRAKLIT 94, 95 (1949). 119 Id. 99. 43 the public.” Thus educated, the people would not just obey the law but love it, realizing that in the Israeli legal regime was based on the principle of social solidarity.120 The early leaders of the Israeli Bar Association echoed Ben Gurion’s vision of lawyers as educators stating, for example, that lawyers were responsible for “teaching individuals to protect their rights and fulfil their duties…[thus] turning subjects into citizens,” adding that courts in Israel served as “sites for civic education,” where lawyers taught citizens the basics of “civilized” behavior.121 Given the prevalence of this idea, it is not surprising to find Chief Justice Yitzhak Olshan urging the Israeli Bar Association in a 1961 speech to send its members to educate high school students about the “elementary notions of civic duties …”122 Gradually over the next few decades the definition of the role of lawyers changed. Lawyers (and related professions, such as accountants) came to be seen, and came to view themselves, as protectors of civil rights against the state.123 Today, the current Israeli Chief Justice would probably not ask Israeli lawyers to voluntarily serve as high school teachers. However, if she would do so, she would probably call on lawyers to teach high school students about civil rights rather than civic duties.124 120 David Ben Gurion, Yi‘udey ha-Ru’ah veha-Halutsiyut be-Yisrael, in Shnaton ha-Memshalah 1951/2, 5, 19–20 (1951). 121 Avraham Weinshall, Ma‘amad ‘Orekh ha-Din ba-Medinah uva-Tsibur, 16 HA-PRAKLIT 20, 27 (1959); A. Polonsky, Ma‘amad ‘Orekh ha-Din ba-Medinah uva-Hevrah, 18 HA-PRAKLIT 168, 170–1 (1961/2). 122 Olshan: Hoser Sovlanut le-Hakshiv le-Da‘at ha-Zulat, ‘AL HA-MISHMAR, Jan. 18, 1961, at 2. 123 See YAEL GVIRTZ, SEFER HA-YOVEL: 50 SHNOT LISHKAH 1961–2011, 112–19 (2011). On this shift in the self-perception of Israeli accountants from the 1960s onward see also LIKHOVSKI, supra note 115, at 235–36. 124 A related topic is the educational role of the Israeli Supreme Court. See Nir Kedar, ‘Al haFormalizm ha-Mehanekh shel Beyt ha-Mishpat ha-‘Elyon ha-Mukdam: ‘Iyun Mehudash beParashot Bejerano ve-Scheib, 22 MEHKAREY MISHPAT 385 (2005) (on the Israeli Supreme Court as an educative institution in the 1950s); AHARON BARAK, JUDICIAL DISCRETION 221 (Yadin Kaufmann trans., 1989) (mentioning the educational role of the Israeli Supreme Court in recent decades). For the equivalent American view of the US Supreme Court as an “educational body” 44 Conclusion In this article, I reconstructed the history of the constitutional duties discourse in Israel, and also mentioned several possible reasons for its decline. The story of Israeli constitutional duties is important, I believe, in several respects. First, it provides a better understanding of Israeli legal and constitutional history, which, as I noted in the Introduction, is still focused on the rights discourse. Second, the disappearance of duties from constitutional debates in recent decades did not mean they were an unimportant part of the Israeli constitution-in-the-making. Indeed, the Israeli story is an interesting example of “the return of the repressed”—the Freudian idea that repressed elements lingering in our subconscious are not erased but tend to reappear. In Israel, duties are the repressed “other” of rights discourse—held at arm’s length in legal discourse, yet returning time and again to haunt Israeli politics. Specifically, one major duty, the duty to serve in the army, has formed a major axis of Israel’s political struggles over the last few decades. This question even led to the fall of the last Israeli government, because of arguments about the duty of ultra-orthodox Jews to serve in the Israeli army. Ultra-orthodox parties now wield disproportional power in Israeli politics, which is based on a system in which small parties are needed to form stable governing coalitions. These ultra-orthodox parties use their political power to exempt their voters from army service, and this, of course, leads to friction with other Israelis, who are conscripted.125 Thus, the and the Justice as “teachers in a vital national seminar” see, e.g., Christopher L. Eisgruber, Is the Supreme Court an Educative Institution, 67 N.Y.U. L. REV. 961 (1992); Eugene V. Rostow, The Democratic Character of Judicial Review 66 HARV. LAW REVIEW 193, 208 (1952). 125 See, e.g., Jonathan Lis and Aaron Rabinowitz, This Hot Potato Threatens Netanyahu's Government Even Before It's Formed, HAARETZ ENGLISH EDITION, Apr. 18, 2019. See also Basic Law: The Military, section 4, discussed supra note 104104. Another relevant context is, perhaps, the imposition of duties on ultra-orthodox parents and schools to teach children core-curriculum subjects such as mathematics. See HCJ 3752/10 Rubinstein v. Ha-Knesset (Sept. 17, 2014) (Isr.); HCJ 4805/07 Ha-Merkaz le-Pluralizm Yehudi v. Misrad ha-Hinukh (Jul. 27, 2008) (Isr.). 45 history of constitutional duties is not merely of antiquarian value. It is actually related to one of the major points of political contention in contemporary Israeli politics. Third, I believe that the Israeli story can serve as one of the first building blocks in the reconstruction of the global history of constitutional duties in the second half of the twentieth century – the era of the ascendency of the rights paradigm. The process described here – the decline of duties – also occurred elsewhere. One can see such a decline in international law (and here too the 1960s seems to have been the watershed decade). For example, the non-binding 1948 American Declaration of the Rights and Duties of Man contained a comprehensive list of duties. However, when the Organization of American States created a biding treaty in 1969, the American Convention on Human Rights, duties almost totally disappeared from this document, and the long list of rights contained in it was followed by one meagre article listing a few duties, a trend that was continued in later international documents, which totally ignored duties.126 A comparative or global history of the decline of constitutional duties should also discuss counter-trends. India is an example of such a counter-trend. Some of the factors leading to the decline of the notion of constitutional duties in Israel (the decline of collectivist ideology, the gradual rise in the influence of American law, or the process of juridification), were also present 126 See Organization of American States, American Declaration of the Rights and Duties of Man, Res. XXX of the Ninth International Conference of American States, Bogota, Columbia, March 30–May 2, 1948, reprinted in 43 AM. J. INT’L. L. SUP. 133 (1949); Organization of American States, American Convention on Human Rights "Pact of San Jose, Costa Rica", Nov. 22, 1969, reprinted in 9 I.L.M. 99 (1970). The only counter-example is the 1981 African Charter on Human and Peoples’ Rights which is based on a communitarian approach. See Organization of African Unity, Banjul Charter on Human and Peoples’ Rights, June 27, 1981, reprinted in 21 I.L.M. 58 (1982). See also the Universal Declaration of Human Responsibilities, http://interactioncouncil.org/universal-declaration-human-responsibilities (a proposal for an international document listing human duties that was never adopted). See generally, Saul, supra note 3, at 191–92, 225; Thaddeus Metz, African Values, Human Rights and Group Rights: A Philosophical Foundation for the Banjul Charter, in AFRICAN LEGAL THEORY AND CONTEMPORARY PROBLEMS 131 (Oche Onazi ed., 2014). 46 in India. Yet, it seems that the reaction to these factors were not similar. While in the 1970s duties almost completely disappeared from Israeli constitutional discourse, they were added to the Indian Constitution.127 Was this merely a result of the different political circumstances (the period of Emergency in India)? Was it the result of a different pace in the process of the decline of collectivism? Did the biography of specific individuals play a role? Thinking about the history of duties using a comparative perspective will allow us to ask new questions about the global history of constitutional duties, and of the history of constitutions more generally. Fourth, while the motivation for this article is historical, and therefore descriptive, the article may also be relevant for scholars interested in the normative aspects of constitutional duties. Recovering past notions about the proper relationship between state and citizenry also carries implications for the present and future. One major constitutional duty, for instance, is the duty to pay one’s taxes. In recent decades, tax non-compliance by wealthy individuals and corporations has grown tremendously and has contributed to a widening gap between rich and poor in many countries. This gap has undermined the trust that ordinary taxpayers have in their economic and political elites; and this mistrust, in turn, has played an important role in the reemergence of nonliberal citizenship discourses based on populist nationalism and fundamentalist religion in recent years. Understanding how different types of states create social solidarity and trust, is not merely a topic for historians. History, in this regard, also offers a source of models and lessons that can be applied in the present by those who are worried by the current threats to liberalism. Constitutional duties were often historically associated with non-liberal political ideologies (Fascism, 127 See, e.g., Norman D. Palmer, India in 1976: The Politics of Depoliticization, 17 ASIAN SURVEY 160, 166–68 (1977). 47 Communism and religious conservatism), but they are also related to ideologies which have affinities with liberalism (communitarianism, republicanism), and, as we saw, they are found in the constitutions of some liberal democratic polities (such as postwar Italy or Germany). Duties are thus not necessarily antithetical to liberalism. The focus on civic rights rather than on civic duties that characterizes neo-liberal societies and neo-liberal law may be one of the reasons for the rise of non-liberal discourses that serve as sources of solace and hope for large segments of society that have been left behind by neo-liberalism and globalization.128 Rediscovering the history of constitutional duties and, more broadly, analyzing the history of states’ attempts to create civic responsibility, is therefore important not only because it frees us from the view that only constitutional rights matter. It can also have political implications, for example by providing a vision of inclusive social solidarity that may undermine the power of similar (but more exclusionary) contemporary discourses of solidarity, such as those based on ethnic nationalism or religious fundamentalism.129 Finally, and on a deeper theoretical level, I believe the study of constitutional duties should be part of a wider attempt to understand the role of duties generally in law, and also in similar normative systems such as morality and religion. In recent decades, legal scholarship has invested much energy in its study of rights, but duties—the forgotten twin of rights—should also be studied. Once we do so, interesting questions might arise. For example, we might ask what are the social and psychological mechanisms that lead people to willingly impose religious, but also legal (and 128 See Mautner, supra note 105; WALZER, supra note 105. The notion of corporate social responsibility may be one manifestation of the current unease with constitutional discourse focused only on rights. For a history of the concept, see, e.g., Archie B. Carroll, A History of Corporate Social Responsibility: Concepts and Practices, in THE OXFORD HANDBOOK ON CORPORATE SOCIAL RESPONSIBILITY 19 (Andrew Crane et al. eds., 2008). For the argument that we may be moving from the “era of rights” to the “era of responsibilities” see Sergio Dellavalle, Responsibility and Rights, 20 GERMAN L. REV. 449, 449–50 (2019). 129 48 constitutional), duties upon themselves? Such questions, it seems, are neglected by contemporary legal theory. The story told in this article is thus an Israeli story, but it is related to the yet unwritten global, history of the constitutional duties, a history that should include a detailed and thick understanding of waning of constitutional duties discourse in the period since the end of the Second World War, when rights, rather than duties, gradually came to dominant constitutional discourse across the globe. Today, when the dominant constitutional rights paradigm is facing growing challenges, understanding the process by which it achieved its recent dominance, at the expense of duties, is more important than ever. 49