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Semi-liberal constitutionalism

Published online by Cambridge University Press:  07 March 2019

GILA STOPLER
GILA STOPLER*
Affiliation:
College of Law and Business, 26 Ben Gurion Street, Ramat Gan, Israel
*
†Email: [email protected]
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Abstract:

The article examines the conceptual category of semi-liberal constitutionalism and offers some thoughts on the unique normative challenges that arise in the resolution of human rights conflicts in semi-liberal constitutional systems. Under the definition offered a semi-liberal constitutional system is a system that meets two conditions: first, it exhibits a simultaneous dual normative commitment to liberal rights and principles and to other values or interests that result in enduring and significant restrictions on some of these rights; second, this dual normative commitment is constitutive and is expressed in the basic elements of the system. Describing the problem of shaping and interpreting normative commitments in a semi-liberal constitutional regime, the article argues that an insufficient understanding of semi-liberal normativity may result in skewed reasoning by both courts and policymakers trying to resolve human rights conflicts in semi-liberal constitutional regimes, because the application of liberal rights reasoning in semi-liberal settings neglects the power differentials inherent in such systems and tends to overprotect the rights of some at the expense of the rights of others. Offering Israel as an example of a semi-liberal constitutional system and using one aspect of its semi-liberal nature – the structure of its religion–state relations and specifically of its religious personal laws – the article analyses three decisions of the Israeli Supreme Court, pointing to the special difficulties arising in such settings and offering critiques and corrections to the Court’s rulings where applicable.

Keywords

constitutionalismhuman rightsliberalismsemi-liberal constitutionalismwomen’s rights
Type
Special Issue: The Ideologies of Global Constitutionalism
Information
Global Constitutionalism , Volume 8 , Issue 1 , March 2019 , pp. 94 - 122
Copyright
Copyright © Cambridge University Press 2019 

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Footnotes

*

Associate Professor, Dean of the Law School.

References

1 See, e.g., Mark Tushnet, in this special issue. M Tushnet, ‘Authoritarian Constitutionalism’ (2015) 100 Cornell Law Review 391, 394; G Halmai, ‘Is There Such Thing As ‘Populist Constitutionalism’? The Case of Hungary’ Fudan Journal of the Humanities and Social Sciences 9.

2 Möller, K, The Global Model of Constitutional Rights (Oxford University Press, Oxford, 2012).CrossRefGoogle Scholar

3 See, e.g., Goldoni and Tushnet in this special issue. Also Neo, JL, ‘Secularism without Liberalism: Religious Freedom and Secularism in a Non-Liberal State’ (2017) Michigan State Law Review 333Google Scholar (offering four characteristics that a non-liberal state committed to secularism must possess in order to protect the religious freedom of religious groups and discussing Singapore as an example). Important empirical work has been done on types of constitutionalism by legal scholars such as David Law and Mila Versteeg. See, e.g., Law, D, ‘Constitutional Archetypes’ (2016) 95 Texas Law Review 153;Google Scholar Law, D and Versteeg, M, ‘Sham Constitutions’ (2013) 101 California Law Review 863 ;Google Scholar Law, D, ‘The Global Language of Human Rights: A Computational Linguistic Analysis’ (2018) 12(1) Law and Ethics of Human Rights 111.CrossRefGoogle Scholar Unlike normative legal scholarship that has focused mostly on liberal constitutionalism, political science literature on constitutionalism has engaged extensively with the variations within constitutional systems. On varieties of constitutionalism see McIlwain, CH, Constitutionalism: Ancient and Modern (Cornell University Press, Ithaca, NY, 1940);Google Scholar on the role of constitutional documents in the Arab world Brown, NJ, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (SUNY Press, Albany, NY, 2001);Google Scholar on theocratic constitutions Hirschl, R, Constitutional Theocracy (Harvard University Press, Cambridge, MA, 2010);Google Scholar for a comparison between American, Israeli and Indian constitutionalism Jacobsohn, GJ, Apple of Gold Constitutionalism in Israel and the United States (Princeton University Press, Princeton, NJ, 1993)Google Scholar and GJ Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton, University Press, Princeton, NJ, 2003) .

4 Tushnet, M, ‘Varieties of Constitutionalism’ (2016) 14 ICON (2016) 1, 1–5.Google Scholar

5 Ibid 2.

6 Ibid 3.

7 Ibid 4.

8 Ibid.

9 Walker, G, ‘The New Mixed Constitution: A Response to Liberal Debility & Constitutional Deadlock in Eastern Europe’ (1994) 26 Polity 503–15 (‘The New Mixed Constitution’); alsoCrossRefGoogle Scholar Breslin, B, The Communitarian Constitution (Johns Hopkins University Press, Baltimore, MD, 2006).Google Scholar See further discussion in Section II.

10 See, e.g., Tushnet’s observation that from a normative constitutionalist’s perspective the category of electoral authoritarian regimes is too general. ‘Authoritarian Constitutionalism’ (n 1) 395–6.

11 See, e.g., Künkler, M, Lerner, H and Shankar, S, ‘Introduction, Constitutionalism in Rough Seas: Balancing Religious Accommodation and Human Rights in, through, and despite, the Law’ (2016) 60(8) American Behavioral Scientist 911–18.CrossRefGoogle Scholar Introducing a volume discussing the laws balancing the place of religion in public life with the protection of human rights in mostly non-Western countries such as India, Pakistan, Sri Lanka, Tunisia, Egypt, Indonesia and Malaysia and concluding that the authors in the volume ‘are united by their conviction that law reflects the outcomes of a process that is fundamentally political in nature’.

12 See Goldoni and Tushnet in this special issue.

13 Tushnet (n 1) 394.

14 Tushnet (n 4) 2.

15 Ibid. In this respect Tushnet gives an example which he admits is controversial – the lack of regulation of campaign finance in the US. Of course, using the example of US campaign in this context is indeed controversial because there is serious disagreement on whether allowing limitless campaign financing is indeed illiberal. However, it is not difficult to think of other examples on which there would be a larger consensus over whether they are illiberal enough to render the system as a whole ‘neither liberal, nor illiberal nor authoritarian’, such as, for example, extensive restrictions on the right to vote.

16 Ibid.

17 Banaszak, LA, Why Movements Succeed or Fail: Opportunity, Culture, and the Struggle for Woman Suffrage 12–21 (Princeton University Press, Princeton, NJ, 1996).Google Scholar

18 Walker (n 9) 503; Walker, G, ‘The Mixed Constitution After Liberalism’ (1996) 4 Cardozo Journal of International & Comparative Law 311;Google Scholar Walker, G, ‘The Idea of Non-liberal Constitutionalism’ (1997) 39 Nomos 154 (‘Non-liberal Constitutionalism’).Google Scholar

19 Walker, ‘The New Mixed Constitution’ (n 9) 507.

20 Walker, ‘The Mixed Constitution After Liberalism’ (n 18) 318.

21 Ibid 320.

22 Ibid.

23 Stopler, G, ‘Religion–State Relations and Their Effects on Human Rights: Nationalization, Authorization, and Privatization’ (2017) 6(3) Oxford Journal of Law and Religion 474, 489–91;Google Scholar Laborde, C, ‘Political Liberalism and Religion: On Separation and Establishment’ (2013) 21(1) Journal of Political Philosophy 67;CrossRefGoogle Scholar Monsma, SV and Soper, JC, The Challenge of Pluralism: Church and State in Five Democracies (2nd edn, Rowman and Littlefield, Lanham, MD, 2009).Google Scholar

24 Furthermore, as Neo’s discussion of Singapore’s illiberal constitutionalism attests to, illiberal regimes can also practise forms of neutrality towards religion in order to promote peaceful coexistence between diverse religious groups and advance the state’s interest in securing public peace. What illiberal regimes lack are the prioritisation of and the commitment to individual rights as fundamental human rights. See Neo (n 3). Under my definition as discussed below, semi-liberal constitutionalism is committed to fundamental individual rights in some areas of law while giving full priority to state and community interests and setting aside individual rights in other areas of law.

25 Walker, ‘The Mixed Constitution After Liberalism’ (n 18) 323; Walker, ‘The New Mixed Constitution’ (n 9) 512–13; Walker, ‘Non-liberal Constitutionalism’ (n 18) 159–60, 176.

26 Walker, ‘The Mixed Constitution After Liberalism’ (n 18) 320; Walker, ‘The New Mixed Constitution’ (n 9) 510.

27 Breslin, The Communitarian Constitution (n 8).

28 For a third type of analysis see Jacobsohn, Apple of Gold (n 3).

29 See discussion adjacent (n 51).

30 Rawls, J, Justice As Fairness: A Restatement 18–26 (Harvard University Press, Cambridge, MA, 2001).Google Scholar

31 Rawls, J, Political Liberalism 174–6 (Columbia University Press, New York, NY, 2005).Google Scholar Rawls defines the basic structure as society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next. Ibid 11.

32 Another way to express the same idea is by saying that within the ambit of what Rawls calls the constitutional essentials a semi-liberal constitutional system is not committed to operating solely on the basis of liberal principles, as is expected from a liberal constitutional system, but blends them with some non-liberal values in specific areas. Ibid 227.

33 See <https://freedomhouse.org/report/freedom-world/2019/israel>. Israel’s freedom rating in 2019 is 2.5 out of 7, which is the average of a rating of 2 in political rights and a rating of 3 in civil liberties (1=most free, 7= least free.)

34 Section 7 of the Basic Law: Israel – The Nation State of the Jewish People, which reads: ‘The state views Jewish settlement as a national value and will labor to encourage and promote its establishment and development’ is the most recent and prominent example.

35 Basic Law: Human Dignity & Liberty, 1992, S. H. 1391, 60, available at <https://www.knesset.gov.il/laws/special/eng/basic3_eng.htm>. See also Basic Law: Freedom of Occupation, 1994, S. H. 1454, 90, available at <https://www.knesset.gov.il/laws/special/eng/basic4_eng.htm>.

36 The Declaration of Establishment of the State of Israel (Israel, 14 May 1948) available at <https://www.knesset.gov.il/docs/eng/megilat_eng.htm>.

37 Importantly, Orthodox Judaism contains two separate streams – the Orthodox stream and the ultra-Orthodox stream. These two streams share control over the Jewish religious establishment in Israel.

38 The authority of the various religious communities was established through legislation from the period of the British Mandate that was later incorporated into Israeli law. See British Order in Council (10 August 1922) para 51 (Palestine). The authority of the Muslim religious courts can still be found in Sign 52 of the King’s Order in Council (1922), and that of the various Christian denominations in Sign 54 of the Order. Ibid paras 52 and 54. The authority of the Jewish Rabbinical Courts is set out in the Jurisdiction of Rabbinical Courts (Marriage and Divorce) Act, 1953. Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 LSI 139 (1952-1953)(Isr.). The authority of the Druze religious courts can be found in the Druze Religious Courts Law, 1962. Druze Religious Courts Law, 5723-1962, 8 LSI 27 (1962-1963)(Isr.).

39 See, e.g, Raday, F, ‘On Equality’ in Raday, F et al. (eds), Women’s Status in Israeli Law and Society 19 (Schocken, Tel Aviv, 1995).Google Scholar

40 Basic Law: Human Dignity & Liberty (1992) S. H. 1391, 60, available at <https://www.knesset.gov.il/laws/special/eng/basic3_eng.htm>. See also Basic Law: Freedom of Occupation (1994) S. H. 1454, 90, available at <https://www.knesset.gov.il/laws/special/eng/basic4_eng.htm>.

41 Sapir, G, Barak-Erez, D and Barak, A, ‘Introduction: Israeli Constitutional Law at the Crossroads’ in Sapir, G, Barak-Erez, D and Barak, A (eds), Israeli Constitutional Law in the Making (Hart Publishing, Oxford, 2013) 1, 2–3.Google Scholar

42 M Cohen-Eliya, ‘The Israeli Case of a Transformative Constitutionalism’ in Sapir, Barak-Erez and Barak ibid 173.

43 Employment (Equal Opportunities) Law 5748-1988; Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law, 5761-2000; Freedom of Information Law 5758-1998.

44 Section 10 of Basic Law: Human Dignity and Liberty.

45 See detail at (n 38).

46 Stopler, ‘Religion–State Relations and Their Effects on Human Rights’ (n 23) 474, 484–5.

47 Ibid 484–6; Halperin-Kaddari, R, Women in Israel: A State of Their Own 233–4 (Penn Press, Philadelphia, PA, 2004).Google Scholar

48 Stopler (n 23) 484.

49 Basic Law: The Judiciary, 5744-1984, SH No 2, 78 (Isr). The rabbinical courts are authorised to apply Jewish religious law in all matters directly related to marriage and divorce, and the Supreme Court will not intervene in such matters. HCJ 8872/06 Ploni v High Rabbinical Court [2006]. However, the Supreme Court has held that the rabbinical courts must apply relevant Israeli civil law in all matters that are incidental to the marriage and divorce, and their failure to do so may trigger judicial review by the Supreme Court. See, e.g., HCJ 1000/92 Bavli v High Rabbinical Court [1994].

50 HCJ 4577/12 Sabag v Holy Synod of the Greek Orthodox Patriarchate of Jerusalem [2012].

51 See discussion in text adjacent to fns 18–27.

52 Tushnet (n 4) 2; on forms of establishment and their compatibility with liberal theory see refs at (n 23).

53 Preamble, Sections 14–16 of Indian Constitution.

54 Section 44 of Indian Constitution.

55 Harel-Shalev, A, ‘Policy Analysis beyond Personal Law: Muslim Women’s Rights in India’ (2013) 41(3) Politics & Policy 384, 390–1.CrossRefGoogle Scholar

56 In Gary Jacobsohn’s terms this state of affairs reflects the incremental and aspirational character of Indian secularism. See Jacobsohn, The Wheel of Law (n 3) 103. However, I would argue that such a state of affairs cannot be reconciled with liberal constitutionalism regardless of its justifications.

57 Ibid 393–6.

58 Shayara Bano v Union of India and Others AIR 2017 SC 4609; Herklotz, T ‘Law, Religion and Gender Equality: Literature on the Indian Personal Law System from a Women’s Rights Perspective’ (2017) 1(3) Indian Law Review 250, 267;CrossRefGoogle Scholar Katju, A, ‘Triple Talaq: Personal Law and Colonial Shadows in Contemporary India’ Constitutionnet (27 February 2018) at <http://www.constitutionnet.org/news/triple-talaq-personal-law-and-colonial-shadows-contemporary-india>.Google Scholar

59 Arguably there are additional aspects of the Indian constitutional system which render it semi-liberal, such as the tenuous protection of freedom of speech, but a detailed discussion of this is out of the scope of this article. See, e.g., A Kumar, ‘Dissent Gagged: Ambiguity of Free Speech Laws in India’ Firstpost at <https://www.firstpost.com/long-reads/dissent-gagged-ambiguity-of-free-speech-laws-in-india-3392734.html>.

60 Kymlicka, W, Multicultural Odysseys (Oxford University Press, Oxford, 2007).CrossRefGoogle Scholar

61 Ibid 150–1.

62 Ibid 182.

63 Ibid 305–6.

64 Smooha, S, ‘The Non-Emergence of a Viable Ethnic Democracy in Post-Communist Europe’ in Smooha, S and Jarve, P (eds), The Fate of Ethnic Democracy in Post-Communist Europe (ECMI, Budapest, 2005) 241.Google Scholar

65 On the trend of democratic backsliding see, e.g., Pech, L and Scheppele, K L, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3;CrossRefGoogle Scholar Huq, A and Ginsburg, T, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA Law Review 78.Google Scholar

66 Harding, S, ‘Rethinking Standpoint Epistemology: What is Strong Objectivity?’ in Alcoff, L and Potter, E (eds), Feminist Epistemologies (New York/London, Routledge, 1993) 49, 56.Google Scholar

67 E.g., Frazer, E and Lacey, N, The Politics of Community: A Feminist Critique of the Liberal-Communitarian Debate (University of Toronto Press, Toronto, 1993) 197.Google Scholar

68 Foucault, M, ‘Truth and Power’ in Power/Knowledge: Selected Interviews and Other Writings 1972–1977 109, 119–21 (Gordon, C ed, Gordon, C et al. trans) Pantheon Books, New York, NY, 1980).Google Scholar

69 Ibid 201.

70 Ibid 121–2.

71 Ibid 122.

72 M Foucault, ‘Prison Talk’ in Power/Knowledge (n 68) 37, 39.

73 M Foucault, ‘The Confession of the Flesh’ in ibid 194, 198.

74 M Foucault, ‘Truth and Power’ in ibid 109, 119.

75 Phelan, S, ‘Foucault and Feminism’ (1990) 34(2) American Journal of Political Science 421, 424.CrossRefGoogle Scholar

76 Ibid 425.

77 Fraser, N, Unruly Practices: Power, Discourse, and Gender in Contemporary Social Theory (Minnesota University Press, Minneapolis, MN, 1989) 26–7.Google Scholar

78 An example is the Pagas case where the Supreme Court enforced a divorce agreement in which the woman renounced her portion in the couple’s shared property in order to gain the divorce. After the divorce came through the woman asked to annul the agreement claiming that she renounced her share of the property under duress since it was the only way that she could gain her husband’s consent for the divorce after 15 years of marriage in which her husband had been violent to her. The Supreme Court applied liberal principles of freedom of contract to reject the woman’s petition, holding that she renounced all the property out of her own free will and ignoring the serious power imbalance between men and women in Jewish religious divorce laws, which was further exacerbated by the man’s violence against her. Under Jewish religious law the husband must consent to the divorce and if the divorce is not granted any children that the woman will have from subsequent relationships are considered bastards that are not allowed to marry other Jews. Consequently, many women renounce their rights in the common property in order to gain their husband’s consent for the divorce. C.A. 5490/92, Pagas v Pagas (not published, 29 December 1994).

79 The Pagas case discussed ibid is another example.

80 There are other examples of both types, but I have chosen these three cases since each of them highlights a different angle of the problem.

81 HCJ 6111/94 Guardians of the Tradition v The Chief Rabbinical Council of Israel, IsrSC 49(5) 94 (Hebrew).

82 See, e.g., Reference re Same-Sex Marriage [2004] 3 SCR 698; Reference re: Marriage Commissioners appointed under The Marriage Act, 1995 (Sask.) 2011 SKCA 3, 327 DLR (4th) 669.

83 Regev, U, ‘Record Support for Freedom of Choice in Marriage!’ (26 July 2018) available at <http://hiddush.org/article-23260-0-Record_support_for_freedom_of_choice_in_marriage.aspx>.Google Scholar

84 Fraser (n 77).

85 HCJ 3856/11 Doe v Supreme Sharia Court of Appeals (27 June 2013) (Isr.). Translation by Versa: Opinion of the Supreme Court of Israel available at <http://versa.cardozo.yu.edu/opinions/doe-v-supreme-sharia-court-appeals>.

86 These exceptions are designed to align the scope of the equality legislation with the authority of the religious courts.

87 In a different case concerning Jewish religious courts the Israeli Supreme Court ruled in favour of petitioners who claimed that women should be trained and appointed as rabbinical pleaders on behalf of litigants in the rabbinical courts, on similar grounds HCJ 6300/93, ‘Hamachon Lehachsharat Toanot Beit Din’ v The Minister of Religious Affairs IsrSC 48(4) 441 (1994).

88 Doe (n 85) section 26.

89 HCJ 3752/10 Rubinstein v Knesset (17 September 2014).

90 The Unique Cultural Educational Institutions Act (2008).

91 HCJ 3752/10 Rubinstein v Knesset (17 September 2014).

92 Kymlicka, Multicultural Odysseys (n 60) 182.

93 Stopler (n 23) 484–6; G Stopler, ‘National Identity and Religion–State Relations: Israel in Comparative Perspective’ in Sapir, Barak-Erez and Barak (n 23) 503, 514–16.