The most frightening debacle of democracy is not caused by a revolution or a coup d'etat but by the creeping process of delegitimization, in which the Giant's leap (“Quantensprung”) is hardly conceivable. The most notorious example to date is the Weimar Republic, as the German Reich was called between 1918/9–1933. This example has served as a constant warning for all democratic systems since then, and is therefore always present and relevant.

It is not for a social or cultural historian to intervene in a purely professional discussion of jurists or legal historians concerning the question of constitution, law and democracy. His aim is to concentrate on the complex relationship between the social and cultural contexts and the constitutional text and subtext.

In the search for democracy, are judges allies or subversives? Until very recently, British constitutional law appeared to present a relatively straightforward answer to this perennial dilemma: judges are only allies if their power is clearly subordinate to that of Parliament. In terms of constitutional theory, this faith in the political process and corresponding distrust of the judiciary is expressed through the principle of parliamentary sovereignty. However, the imminent enactment of a Human Rights Act in Britain compels a reconsideration of this response. It is true that the judiciary has always played a significant role in law-making through the common law and statutory interpretation. It is true, too, that non-constitutional judicial review has developed vigorously in the past few decades. Yet it has always been possible to assert, not least by the judiciary, that law-making of this sort is subordinate to parliamentary law-making and is justifiable by and legitimated in terms of parliamentary intent. Parliamentary sovereignty has, of course, been challenged explicitly by membership of the European Union. Faced with the confident assertion by European Community institutions of the sovereignty of European Community law, the judiciary has gradually shifted its allegiance from Parliament and acknowledged the supremacy of EC law in its sphere of operation. This shift of allegiance is revolutionary in one way. Nevertheless, judicial law-making remains subordinate, although to a differently constituted legislature.

The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.

Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-à-vis political pressures.

On February 24, 1998, the government submitted the International Treaties (Approval by the Knesset) Bill, 1998 to the Knesset. This governmental bill represents the culmination of fifty years of exchange between the Executive and the Legislature concerning the constitutional authority to conclude international agreements on behalf of the State of Israel.

Normally, it would have been preferable to await the completion of the enactment process before commenting on the new legislative arrangements. Due to the constitutional importance of the Bill and the fact that it raises several important questions, the regular practice will be abandoned in this case.

Despite the availability of an abundance of materials on the treatymaking practice of the State of Israel and the status of treaties under municipal Israeli law both in English and in Hebrew, an in-depth analysis of the Bill requires an extensive exposition de lex lata on both these questions. Only then will the provisions of the Bill be presented. This will take the form of an issue-by-issue analysis, with conclusions drawn in each segment. The review will conclude with several additional observations de lege ferenda.