Israeli politics is in crisis. A large number of people have demonstrated on the streets against the rightwing coalition’s extensively criticised “judicial reforms”. The president, Isaac Herzog, has even declared that “We are no longer in a political debate but on the brink of constitutional and social collapse.” The programme of this government is of evident importance for the future of the country. But it is also of wider significance. This is partly because of Israel’s role in the region. It is also because what is happening raises questions about how a democracy can turn into an autocracy via unbridled majoritarianism.
Larry Diamond of Stanford University argues that liberal democracy has four individually necessary and collectively sufficient elements: free and fair elections; active participation in civic life of the citizenry; protection of the civil and human rights of all citizens; and a rule of law that binds and protects all citizens, including the most powerful. Those who have won elections are not entitled to threaten any of those essential elements of liberal democracy. If they seek to create such a state, they are subverting democracy. Democracy then is a system of majority rule, constrained by institutional checks and balances. Of those constraints, none is more important than the rule of law.
This is why the EU has such difficulty with the “illiberal democracies” of Hungary and Poland. It is also why the Israeli government’s proposed legal “reforms” are so controversial. To opponents, the reforms will rip up protections against arbitrary action by the government, threatening individual freedom and legal predictability in a country dependent on foreign investment and a dynamic market economy.
This is, needless to say, not how the government sees it. It believes the Supreme Court has undermined its ability to govern by assessing even the “reasonableness” of its actions. This also puts government legal advisers in an objectionably powerful position in the development of policy. In addition, the court has opened the floodgates to litigation by allowing anybody the right to sue the government, thus paralysing necessary economic activities. In brief, the Supreme Court has vastly over-reached, threatening prosperity and democracy.
This is what I learned from talking with a senior member of the government. To find out whether it makes sense I talked to Netta Barak-Corren, a professor of constitutional law at the Hebrew University of Jerusalem. Barak-Corren agrees that the Supreme Court has indeed lowered the thresholds for filing a suit against the government. It has also overruled it, not frequently, but consequentially. This has created ripple effects on the role of the government’s legal advisers, which affect the government’s ability to function.
Yet, she explained, this activism was largely a response to the inadequacy of the democratic structure, which consists of just one house of parliament, in which a simple majority is sufficient to pass any law, including one of constitutional import. Potentially, this structure would give a majority unchecked powers unmatched in other democracies. Thus far, these powers have been constrained more by political culture and circumstances than by law.
Barak-Corren’s big point, however, is that the coalition’s proposals — namely, to politicise judicial appointments, including to lower-level courts, and make it extremely difficult for the court to over-rule the government, while enabling the Knesset to overturn its rulings — are neither necessary nor sufficient to rectify the problems with the structure of Israeli democracy and the behaviour of the judiciary. This account persuades me that the reforms are mainly a power grab. They would allow the executive to operate with little judicial accountability and fill the judiciary with (possibly incompetent) loyalists, even in areas that have little to do with policy.
These changes also have potentially important economic implications, including to the highly successful high-tech sector, which has been an important contributor to the growth of the Israeli economy. Remarkably, Israel’s real gross domestic product per head is now much the same as in the UK or France.
The great economic danger created by illiberal democracy, one we can see in many other countries, is of “crony capitalism”. It becomes too easy in such systems for the corrupt to succeed in politics, government, the judiciary and in business. That in turn discourages the entry of honest new competitors into the economy, because it is they who are always most reliant on an independent judiciary and bureaucracy. Insiders have power on their side. Outsiders depend on the rule of law.
Needless to say, the arrival of this new government has created many other concerns, not least for the future of the occupied territories. The idea of annexation of the West Bank, for example, is potentially lethal to a democratic Israel unless full citizenship is granted to Palestinians, which would turn Israel into a binational state. But in the more narrow area of legal reform the issue is whether the government is prepared to limit what it seeks to the changes experts think necessary to deal with the real problems, or whether it is determined to obtain political control over the legal system, thereby undermining the rule of law.
It is worth noting in this context that Israel’s economic history demonstrates that the legal system about which the government now complains so bitterly did not prevent its past success. That also suggests that these dramatic reforms are unneeded in themselves and targeted at objectives other than the ostensible ones. Benjamin Netanyahu must think again before he does irreparable damage.