If you truly love Israel, it’s time to compromise
Protesters are wrong when they claim that this judicial reform will end Israeli democracy
The Knesset has just enacted a law prohibiting the Supreme Court from striking down legislative and administrative decisions on the grounds that they are “unreasonable.” No other country in the world permits its Supreme Court such broad authority.
Most require a violation of the constitution to strike down laws or actions by the other branches, but Israel has no written constitution, so the Supreme Court has arrogated to itself this unusual power.
Reasonable people could disagree about whether unelected judges should or should not have the authority to strike down the actions of other branches based on an open-ended criterion such as unreasonableness. In general, I would think that courts should not have such untrammelled authority.
But Israel may be different because it has a unicameral legislature and no written constitution, so the Supreme Court serves as the only real institutional check on the excesses of the other branches.
Of course, the ultimate check in Israel, as in any democracy, is elections. Israel has many of those, perhaps too many, as evidenced by the handful it has had in as many years. But even elections cannot change the composition of the Supreme Court, whose justices serve subject only to an age restriction.
This debate over the concept of reasonableness is an appropriate subject for discussion and peaceful protest. It is not, in my view, a justification for the refusal of military reservists to perform their duty, for doctors to strike or for protesters to engage in civil disobedience. But these extreme measures are not merely a response to the recent law; they grow out of fear that this is only the first push down a slippery slope – a slope that will end with a substantial weakening of the judicial branch, and especially of the controversial Supreme Court.
On a broader level, it is also a protest against the entire current Israeli government headed by Prime Minister Benjamin Netanyahu, that includes several reactionary extremists from the religious and nationalistic hard right. But this government was elected by the people, albeit in an extremely close vote, followed by the cobbling together of Israel’s first coalition that included such extremist elements.
Protesters claim that this judicial reform, especially if followed by further weakening of the Supreme Court, will end Israeli democracy. They are categorically wrong. As President Isaac Herzog told a combined session of the US Congress, democracy is in Israel’s DNA, and it will remain there forever. The best proof that this is true is both the frequency of Israeli elections and the intensity of the recent protests on both sides. These are not symptoms of a weakening of democracy; they are evidences of a strong democracy at work.
Even if all of the so-called reforms were to be enacted— which I would strongly oppose — Israel would become more like Great Britain and the United States than like Hungary or Poland. Indeed, some European democracies have little or no judicial review of the decisions and actions of the elected branches, and they continue to be vibrant democracies.
The most disturbing aspect of this controversy is that it has become internationalised. Judicial reform is a domestic issue, whether in the United States, in India or in Israel. Other countries should butt out of this entirely domestic issue. It does not affect the United States, Great Britain, the European Union or the United Nations.
But Israel has always been subjected to a double standard of super-scrutiny with regard to its domestic concerns. This internationalisation of a purely domestic issue is partly a result of that double standard, but it is also the responsibility of some of the Israeli protesters who have sought help from outside the country. In doing so, they are deliberately weakening the Israeli economy, just as the refusal of soldiers to serve is weakening Israel’s military capacity.
The extremes on both sides of this debate are overreacting and harming Israel in the process. The controversy over judicial reform requires moderate compromises from both sides. This is not happening because extremists are benefiting from the controversy by pandering to their bases and exaggerating the implications of enacting or failing to enact judicial reform.
Those who love Israel, whether inside or outside the nation-state of the Jewish people, must pull back from extreme measures and advocacy and follow President Isaac Herzog’s lead in seeking a compromise that is acceptable even if not preferred, by the majority of Israelis who favour a middle ground.
The debate over whether to codify or uncodify is an interesting one. The UK, of course, has no codified constitution and they have, for the most part, been able to avoid tyranny through parliamentary sovereignty (Venn Dicey), so one doesn't necessarily need a court to strike down legislation to preserve liberty. But if one gives too much power to parliament, individual rights might be destroyed by the tyranny of the majority. I still believe the U.S. Republic, as outlined in the Federalist Papers, is the greatest theoretical construction of good governance ever created.
The issue is a conflation of "liberalism" with "democracy". We've been using the phrase "liberal democracy" for so long that we've forgotten it's an oxymoron. Democracy = the law should generally reflect the will of the people. Liberalism = the law must reflect universal abstract principles of maximal freedom regardless of the will of the people. The riots in Israel are over this precise issue. The Netanyahu coalition are democrats first; the rioters are liberals first.
This divide is hardly unique to Israel. The EU regularly conflates the two terms wrt Hungary and Poland and Greece and Italy... actually with anyone whose policies the Brussels bureaucrats disagree with. When you hear President Biden declare that MAGA Republicans are a "threat to democracy", he's doing the same thing. The National Front is supposedly a far-right, anti-democracy party even though it has 25-30% of the public, perhaps the largest single party in the entire French democracy.
So has Israel's judicial reform become internationalized, or has the existing international divide between "liberalism" and "democracy" merely found a foothold in Israel over this issue? I suspect the latter.