Israel’s post-democracy moment

The current maelstrom is about far more than judicial reform

By Melanie Phillips  24.3.23

The political crisis in Israel over the government’s judicial reforms has deepened.

An increasing number of institutions and prominent individuals have called for the changes to be halted. All are deeply alarmed by the enormous demonstrations that they perceive as posing an increasing threat to Israel’s security and the social resilience on which that security depends.

After Israeli Defence Minister Yoav Gallant threatened to call publicly for the reforms to be halted, Prime Minister Benjamin Netanyahu went on TV to speak to the nation.

The reforms would address fears on both sides, he said. They would broaden the makeup of the Supreme Court, safeguard civil rights for all citizens and reinstate a proper equilibrium between politicians and the judiciary.

This is unlikely to bring much-needed calm to the situation. Israel’s current maelstrom is not in the pattern of normal political protest. It represents an existential upset.

The focus of opposition is the proposed judicial reforms. The protests are also fuelled, however, by fear of the nationalist and religious ultras in the governing coalition and by hatred of Netanyahu, who for some people has achieved near-demonic status.

Significant as these factors are, a convulsion of this magnitude suggests that something even more fundamental is at play. What is striking about the protests is the irrationality at their core. Although there are legitimate concerns about aspects of the reform package, the overwrought opposition to it is out of all proportion.

The protesters claim, for example, that giving politicians a decisive role in selecting new judges, as is being proposed, will destroy the rule of law and an independent judiciary.

They say the changes, which would stop the courts from overturning laws made by the Knesset, end the power of legal advisers to prevent government ministers from enacting the policy programmes for which they were elected, and end the slippery concept of “reasonableness” through which the judges have substituted politics and ideology for law, would herald the end of democracy and the abolition of civil rights.

Yet as law professor Avi Bell has pointed out, for many decades after the State of Israel was founded only the Knesset could legislate and no court could overturn legislation for any reason. Attorneys-general and all other legal advisers could be dismissed, and their legal opinions bound no one. No government action could be reversed by the Supreme Court simply because the court considered it “unreasonable”.

In other words, the reforms will largely return Israel to the situation that prevailed before 1993, when Supreme Court President Aharon Barak launched his revolutionary campaign of judicial activism.

So what explains this unprecedented uproar? The clue lies in the claim that the reforms spell the end of democracy in Israel, whose values will no longer be recognisably Jewish.

In fact, at the core of the protests lies an attack on Jewish values.

Judaism has something important to say about both law and politics. Law is central to the Torah and therefore to Judaism. Moreover, during the Davidic monarchy, judges —along with prophets and priests — provided an essential brake on the otherwise despotic powers of the monarch.

So judges have always played an important role in Jewish civic life. But of even more fundamental importance to Judaism is the principle that the laws themselves are rooted in popular consent.

The authority of Moses had to be grounded in the consent of the people and their promise to obey the laws he was promulgating, as was done at Sinai where the people asked Moses to relay the word of God to them and said, “We will do and we will hear”.

This emphasis on public consent at the very core of Judaism, as well as Judaism’s practice of limited government, made a deep impression on the thinkers who helped formulate the civic patterns that ultimately created western democracy.

In Leviathan, Thomas Hobbes highlighted Judaism’s doctrine of public consent, as did the framers of what became Britain’s constitutional monarchy in the 18th century. The Davidic monarchy became the template for the British Crown.

In America, the Hebrew Bible is a conspicuous element of its foundational institutions and laws. The Liberty Bell that sits in Independence Hall in Philadelphia is engraved with an inscription from Leviticus: “Proclaim liberty throughout all the land unto all the inhabitants thereof”.

Democracy is rooted in the core principle that the laws governing the people are founded upon the consent of the people. That consent is demonstrated by the people’s election of representatives in parliament who pass those laws. That’s why, although government needs checks and balances, the elected parliament in a western nation is supreme.

But now, the very idea of the western nation itself is under sustained assault. The progressive narrative, so dominant in western culture, holds that the western nation is exclusive, racist and oppressive.

National laws must therefore be superseded by universal “human rights” laws promulgated by international judges, as well as domestic judges who prioritise those laws over the laws of their own nation. The democratic process by which those national laws are formed and passed is disdained.

That process is what is now under attack in Israel by those protesting against the judicial reforms. The agenda of the politicians who have been elected by the people conflicts with the liberal universalism of man-made human rights that prioritises approved minorities over the majority and is promulgated by Israel’s activist Supreme Court.

As the American foreign-policy specialist David Wurmser has observed, the “illiberal” left no longer believe that elections matter. They believe instead that there is a moral objective to policy matters that the left have the power to divine and define.

For such elites, ordinary people who don’t share their views are the “deplorables”. By contrast, the judges — educated, liberal, cosmopolitan — are people like themselves.

Although the massive protests in Israel consist overwhelmingly of the left (with the backing of groups with a malign agenda towards Israel) others have joined them because they are frightened by the ultras in the government and by what they perceive to be an opening for authoritarian or dictatorial government as a result of the judicial reforms.

Nevertheless, what all the protesters have in common is that, at base, they would prefer rule by judges to rule by an elected government. Although one might recoil from some members of the government or despair of Israel’s dysfunctional political system, this is a dangerous tipping point — and one that has a baleful resonance far beyond Israel.

For this is the west’s post-democracy moment, in which a dominant mindset is prioritising universal laws over national ones, elevating the legitimacy of street protests and appointing politically activist judges as the shock troops of the progressive assault on traditional values.

As Wurmser observed, this view of the world has a following in Israel which has produced a “core quasi-judicial tyranny through the judiciary”.

This, he said, has made Israel into “the dream palace of far-left European progressives. A structure of courts that even Europe has rejected or most countries in Europe still have not ratified”.

Faced now with a threat to that judicial power, Wurmser asserted, the “illiberal left” in Israel, America and the west is willing to launch a kind of “civil war on some level and burn down the governments in the countries they’re in order to ensure that their power is either secured or preserved”.

In other words, this is no longer a protest against government policy. It represents a fundamental split in the west over how to view the world and how society should be ordered.

It is an extremely dangerous inflection point, not just for Israel but for western civilisation — in a battle for which Israel’s beleaguered government is now revealed to be the unwitting outlier.

Jewish News Syndicate