This event is organised by the Constitutional Law and Politics Working Group and hosts a presentation by Professor Amnon Reichman (University of Haifa).
Capturing constitutional checks-and-balances is one of the hallmarks of the rise of illiberal regimes. The attempt to alter the Israeli constitutional design, launched in January 2023 and still on-going, is no exception. This attempt – which may or may not ultimately succeed – has drawn considerable attention, with some focusing on the role of scholars and others on the contours of the unconstitutional constitutional amendment doctrine, invoked by the court. Less attention has been directed to another doctrine, developed by the court in previous cases and applied in matters tangential to the regime change: Abuse of Constituent Power.
This paper directly addresses this doctrine. It provides the context for its development and analyses its structure and justification. Furthermore, it suggests that it is in fact this doctrine, rather than its more famous counterpart - the unconstitutional constitutional amendment - that bore most of the weight in the Israeli Supreme Court's remarkable decision to strike down an amendment to the Basic Law Judiciary. This amendment had removed the jurisdiction of any court to address a petition claiming that a government action is patently unreasonable. The paper argues this doctrine, and others developed with the same underlying logic in mind, may serve other jurisdictions, faced with similar circumstances of capture of the constitutional design.
Amnon Reichman, professor of the faculty of law at the University of Haifa, is the Director of the Research Forum on the Study of the Rule of Law, a PI in the Minerva Center for the Study of the Rule of Law Under Extreme Condition, and the former director of the Haifa Center for Cyber Law and Policy. He teaches and researches administrative and constitutional law (Israeli and Comparative), and Law and Cyber. He is also affiliated with Berkeley Law, where he teaches comparative constitutional law. Reichman is currently leading several projects related to recent development in Israeli constitutional law (primarily the attempt to reform the system by amending Israel’s basic laws in a manner that grants greater powers to the governing coalition majority). In addition, he is involved in projects addressing the regulation of the virtual domain, including the emergence of regulatory sandboxes and jurisprudential significance of the rise of AI models (in the hands of private and public actors). Lastly, Reichman is working on two longer-term projects. One is addressing the challenges of comparative law (and comparativism more generally) in Habermasian terms. The other relates to Luhmann’s System Theory, as it confronts the cybernetic dimension.
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