A Handbook for Israeli Legislators

The Israel Democracy Institute has developed this handbook to present new and returning Knesset members with an outline of the 10 stages of enacting legislation, which can serve as a resource for them as they carry out the task for which they were elected. Written by Prof. Mordechai Kremnitzer, Dr. Amir Fuchs, and Nadiv Mordechai, this handbook was developed in consultation with the members of IDI's Advisory Forum for Legislative Proceedings, headed by Justice Meir Shamgar, former President of Israel's Supreme Court.

This handbook differs in many respects from manuals intended for professionals involved in the world of legislation. It is not a drafting manual, of the kind that can be found on the shelves of the Justice Ministry or of the legal advisor to the Knesset. It does not aspire to codify the “oral law” of the art of legislation in a “user’s guide.” Rather, the authors had another goal. They set out to present aspects of the legal and constitutional theory that are directly relevant to the work of Knesset members, motivated by a desire to help the MKs become familiar with these principles and to equip them with tools for implementing these principles. Accordingly, the handbook presents an introduction to fundamental principles of law and a broad picture of the constitutional role of the Knesset and the constitutional principles that apply to it.

The manual has four parts:

• An introduction by Prof. Asa Kasher. We are very grateful for this important contribution to the definition of democracy, which is the essential starting point for legislative activity in a democratic state.

• Chapter 1: Fundamental Principles of Good Legislation – This chapter sets out a number of basic principles related to the question of “what is a law?”, drawing on the work of the legal philosopher Lon Fuller. Among other things, it discusses the generality of law, criteria for retroactive nullification of legislation, and legislation that is passed behind John Rawls’ "veil of ignorance," a principle that can serve as another tool for evaluating proposed legislation according to standards of justice.

• Chapter 2: Constitutional Legislation This chapter presents the basic rules and principles of substantive law in Israel and the constitutional thinking that must inform the work of legislation. It begins with a short introduction on constitutional safeguards of human rights, with an emphasis on the role of the legislator. This is followed by an overview of the elements of the constitutional "override clause," which presents the conditions that justify infringement of a basic right. Legislators who strictly observe these conditions guarantee that their laws are constitutional, enhance their legislative work, and eliminate the need for intervention by the courts. A special section of this chapter examines "appropriate legislative procedure," with an emphasis on the critical role of Knesset members in maintaining an appropriate procedure for enacting legislation, which is based on information and incorporates a parliamentary culture of dialogue, debate, and representation.

• Chapter 3: Assessing the Influence of Legislation – This chapter presents Knesset members with a procedure for drafting a bill, which passes through several way stations and enables MKs to weigh the principles put forward in the first two chapters and incorporate them into the legislative process. This chapter was written in the knowledge that Knesset members have limited resources at their disposal. Consequently, this procedure is offered as a tool only for major legislative proposals that serve as “flagship bills,” which Knesset members wish to pass during the course of the Knesset's session.

The Handbook for Legislators is, by its nature, a prologue to the theory of legislation. It cannot and does not pretend to cover the vast range of this entire field. Similarly, it is not a substitute for incremental learning from practice and experience, which is the best of all teachers, or for the study of primary sources and other writings on the theory of legislation.