A Constitutional Moment, or: How Public Discourse Operates (Column 552)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In recent days, Micha Goodman has been speaking again about the significance of these times, pointing out that we are on the verge of a constitutional crisis, but that this moment also carries a very positive—even formative—potential because we are in what is called a “constitutional moment.” This phrase has taken hold in the last few days, and I have heard it in other contexts as well. I highly recommend listening to his talk on the matter. Truly enlightening, in my view, and what I write here follows from listening to him. I will refer quite a bit to my remarks in Column 548, and whenever I point to that column, this is what I mean.

How does public discourse operate?

I have written here before that in Israel there is no public discourse about anything. There are tribal shouting matches and yelling without listening, and people don’t really understand what is at stake—but that doesn’t stop them from holding firm views on the issues of the day. Positions dominate every discussion, and the opinions expressed are generally entirely predictable.

These days, I suddenly have the feeling that the situation is a little different. Most people are still not versed in the details of the reform and its ramifications, and that still doesn’t stop them from holding well-formed views—but without our noticing, a real conversation about it has begun.

One must understand that public discourse, when it does occur, unfolds in a very complex manner. The skirmishing in the streets, demonstrations, and the application of economic power (moving money and businesses abroad), media power, or other forms (including refusals by military personnel) are an integral part of the game. One can argue about the legitimacy of these dimensions—and typically you will hear formulaic, predictable positions here too—but note that until now this was the whole game, even if it played out at relatively low intensity (we didn’t see such threats and refusals in earlier cases). None of that is true these days. In parallel to the usual invective and inattention—and despite the rising intensity of power struggles—suddenly people are beginning to read up, to get a bit oriented, to exchange views and proposals (new “frameworks” are being published every day and brought into discussion). Suddenly you hear people expressing opinions about what Basic Laws are, how they are enacted, whether and how they permit invalidating statutes, what ought to be and what is, judicial appointments, the status of legal advisers, comparisons to other countries (usually not worth much, from all sides), and the like. What had been the domain of a handful of legal experts and elite journals has suddenly become present in the street and reached the “ordinary person.” Alongside all this, more systematic work is being done, and people are starting to offer reasoned views and even to argue on substance. In many cases this is not done directly, but even indirect debate and discussion are something. And of course, along with this, the tussling is beginning to escalate, and steps on both sides are becoming more extreme—up to fears for our continued existence. Thus the game of chicken I described in that column emerges. Yet in recent days there has been a change of direction. The application of force by both sides is making itself felt.

Suddenly you hear legal figures expressing a willingness to compromise—a partial reform, recognition of the need, motivations, and frustrations that led Levin and Rothman to take steps, and so forth (with criticism only about the speed and the details). These are tunes we had not heard until now. I have no doubt this would not be happening without the forcefulness and resolve of Levin and Rothman, even if that forcefulness is not justified in itself. And of course their openness would not have been possible without the power exerted by the various protesters (economic protests, refusals, and more). In my view, if Levin and Rothman, who set this process in motion, thereby made it possible for us to begin truly debating, they deserve a place of honor in the annals of history. Supporters of the reform ask these newly conciliatory voices: Where have you been until now?! Why have we not heard admissions that there are problems and that a reform is needed? And of course the inevitable comparisons (partly apt) to the Disengagement keep surfacing. Supporters of the reform suspect—and with some justice—that their opponents voice compromise only because they fear their side’s hand may now be the weaker. I think there is something to that; but “from not for its own sake comes for its own sake,” and if a genuine conversation has been created, for whatever reason, it is wrong not to join it.

For my part, I am quite convinced that the reform in its current form will not pass. The pressures—mainly economic, media-related, social (the unraveling of the army), and diplomatic—will ultimately defeat it, unless the present coalition is truly irresponsible and utterly tone-deaf. But in any case, it would be wrong to miss this moment, and it is important to make the most of the conversation now unfolding. In the column cited above I explained that this game of chicken can have several possible outcomes: one side wins, the other side wins, or both crash. At present, it seems the third result is likely to occur (the crash can be of varying degrees, of course: the state could be ruined, cease to be democratic, turn into a banana republic economically and/or morally, and so on). But I wrote there that there is another possibility: both sides come to their senses and realize this has no future, and reach a mutual agreement that is better for both (I compared this to the Prisoner’s Dilemma). That is also what Micha Goodman says in the remarks cited above: we are a moment before a constitutional crisis—or in a “constitutional moment,” a moment with the potential for rehabilitation and momentum.

Progress toward the “constitutional moment”

Micha Goodman argues that we are looking at the situation incorrectly. People commonly assume that there was a revolution in recent decades carried out by the Supreme Court, which took into its own hands too much power without having truly received it from the Knesset (which did not legislate the basis for its activity) or from the public (it is unelected), and that now Yariv Levin and Rothman are carrying out a reverse revolution intended to restore balance. The problem with their approach is that they are taking it to the opposite extreme and will bring us to a situation in which there are no real constraints on the executive branch’s power. In any case, the prevalent view is that there is an attempt to balance and correct what Aharon Barak and his cohort did in the past, and the debate is whether we are returning to the middle path or moving to an opposite extreme. Many claim that the attempt to reach the opposite extreme (the forcefulness of Levin and Rothman) is what will bring us to the middle path, in the well-known approach of Aristotle and Maimonides.

Goodman contends that this is not the right way to look at it. To explain, he prefaces with the distinction between a conversation within the framework of the game and a conversation about the framework itself. Almost all debates—in Israel and elsewhere—deal with policy, security, religion and state, economics, ideology, morality, etc. All these discussions take place within a given framework that is not itself being discussed. To what may this be compared? To a debate among basketball fans about the proper tactics: whether to attack from here or there, inside the paint or outside, how many bigs and how many guards to use, and so forth. Fans do not usually argue about questions such as the basket’s height or the ball’s weight, whether a foul should mean two free throws or three or perhaps one, and so on. Those are the rules that set the framework, and the ordinary debates happen within them. So too in politics. Until now, there were stormy debates on ideological, moral, and various political and security questions, and they took place as though we had a fixed and known framework within which this discourse could be conducted. What is new these days is that, for the first time, Israel is having a debate about the rules of the game themselves. When the game of basketball runs into a crisis and it turns out that the framework is problematic, then too debates can begin about the rules themselves. This is what leads us to the “constitutional moment.”

Logic dictates that before we enter questions of what the court ought to do and the extent of its intervention, and how the government ought to act (in policy, religion, security, values), we must first settle the framework rules: what the government or the court are authorized to do, and how relations between them should operate. Only after that is settled can we conduct the more substantive debates about content, policy, and values.

Goodman’s claim is that in most democratic countries, when they arose, their first step was to establish a constituent body tasked with drafting a constitution. That is the setting of the rules of the game. Afterward—once the framework exists and is defined—this body is supposed to disperse and hold elections to the legislature and other institutions, and now that the framework exists, the democratic game can begin. In Israel, as is well known, after the War of Independence there were elections to a Constituent Assembly that was supposed to draft a constitution and then disperse and hold elections to the legislative and executive branches. But the constituent body failed to reach agreements and did not create a constitution, and in the end decided to skip that stage and turn itself into a legislative body. The upshot is that they—and we—began to play the game without setting its rules.

On the face of it, this is an absurd situation that should not be workable. Think about a group of people discussing how to define a game and deciding to start playing it without defining its rules. Odd, no? Amazingly, it sort of worked. With a bit of dictatorship and Ben-Gurion’s dominance, followed by the Histadrut and the Labor movement in its variations, but overall it worked. Institutions were established, debates were held, there was even some legal and political review, and the proof is that after almost thirty years of absolute dominance, Mapai’s rule changed hands. In other words, a kind of democracy did emerge.

Yet throughout this entire period, breathing down our necks was the vacuum at the foundation of this whole game. Its rules were not settled. From time to time the issue surfaced, usually at rather low intensity, but it was never truly addressed. At some point the court saw that there was a vacuum in terms of the rules of the game and had to make decisions—and in doing so allowed itself to set some of these rules on its own. This should not surprise us, since the game must be played, and when there are no rules someone has to jump in and fill the void. Otherwise—how shall we play?! The Knesset insisted on not advancing a constitution and on not creating a framework, and repeatedly evaded the challenges the court set before it. Amazingly, that too worked for a while. From time to time there were protests and calls to fix and balance the situation, but overall they did not ripen into genuine civil disobedience. True, a great deal of frustration accumulated, mainly on the religious-right side, but that did not lead it to heed the calls—usually from the left—to establish a constitution. That situation suited it; it preferred to dance at two weddings: keep things as they are while crying foul at the court. Note that even during the right’s long years in power, the rules were not shattered and no one tried to carry out a counter-revolution or clip the court’s wings. Compliance with Supreme Court decisions was almost total.

An exceptional case occurred exactly three years ago, when Knesset Speaker Yuli Edelstein, a rather statesmanlike figure, came almost to the brink and announced that his conscience would not allow him to carry out the High Court of Justice’s ruling. The sense of a game of chicken then took on flesh and bone. Ayelet Shaked and Gideon Sa’ar—two conservative justice ministers opposed to Supreme Court activism—made rather cosmetic changes, accompanied by considerable frustration among their supporters that they were not truly changing the situation. All along, the rules of the game (those created de facto by the court) remained roughly as they were.

In recent months this situation changed at a stroke. In the last term, the members of the executive and legislative branches (the latter not truly existing here) decided to take the initiative into their own hands and put an end to this strange state of affairs. They want to set, at long last, the rules of the game. The problem is that for much of the public their determinations are seen as too extreme and too hasty, and the dialogue that such a step requires is lacking. Beyond that, tentative rules have already arisen that vested power in various institutions and actors, so setting rules of the game is now perceived as changing existing rules (which is not quite accurate; in essence, this is now more a setting of rules than a change to them). No wonder this arouses protests, turmoil, and disagreement. Collisions are now beginning, escalating rather quickly, but alongside them a conversation is also stirring, as I described above.

Goodman argues that these days we are in fact re-establishing the constituent authority and the constitution; that is, setting the rules of the game that were missing from our play until now. This is the completion of the state’s founding (and not necessarily the beginning of its end). Of course, that is only if we are wise enough to reach agreement in the game of chicken we are in; otherwise we are on the road to ruin. The question is whether we will reach a constitutional crisis, or recognize that a constitutional moment has arisen and should be seized. In short, his claim is that this is not a “counter-revolution” trying to correct Barak’s revolution, but a belated establishment of the rules of the game—filling the vacuum that Aharon Barak and his colleagues tried to fill in problematic ways—so that the debate and conversation that were missing before Barak made his decisions are being held now. It is not a reversal, but a late framing of the rules of the game.

As I explained, the mutual battering and pounding we are witnessing these days are how a mass, healthy public discourse unfolds. There is no other way to conduct a conversation about the rules of the game themselves—certainly not when we are no longer truly at the beginning of the road. It has now become clear to all of us that we must decide whether we are interested in a shared game or in breaking up the team. It follows that this conversation cannot be conducted only by representatives or through existing political institutions. What is at issue is the role and meaning of those institutions, and fundamentally the people themselves must speak. Representation itself is under discussion, and it is no wonder we have returned to decisions in the town square, as in Athenian democracy.

The character of the debate

Note that in this conversation there is no significance to majority and minority, for as I explained in the column cited (and as I will elaborate in the next column), there is no validity to majority decisions and no obligation on the minority to accept them so long as we all have not agreed to play a shared game. For the same reason, what determines in the present discussion is not merely the majority of voters’ raised hands, since majority rule is itself one of the framework rules we have not truly created. Entering this primordial, foundational debate are also economic, media, and cultural power, various value disputes—and it has no very clear rules. All sides deviate from the rules, since this dispute itself reflects the fact that we do not really have rules.

Above I explained: that is how public discourse operates. Such discourse is not decided by a Knesset vote, since voting is a method grounded in the rules of the game. We are now debating whether there is a game at all, whether it is viable, what its rules will be, and who is prepared to participate in it under those rules. Therefore, businesspeople and high-tech companies moving their money as political protest are taking a perfectly legitimate step. Even soldiers’ refusals—problematic as they are—are not utterly illegitimate in such a situation. This is part of the power struggle accompanying the substantive discourse. Each side clarifies for the others what the costs will be if their views are disregarded. The opposition tells the coalition: True, you are the majority, but note the economic price you will pay for using that majority in a non-consensual way. So too do soldiers and commanders in the army tell us.

It is worth recalling that even in halakhah there is a dispute whether we follow a majority of wisdom or a majority of people, and we have a similar dispute here: is majority rule the majority of citizens, or must we also consider the majority of economic, military, and social power? It is no accident that the United States has a veto in the Security Council and we do not. When a crisis erupts in the world, the entity sending money or an army to resolve it is not the State of Israel but the United States. Economic actors and high-tech professionals bear most of the country’s economic burden, and it is no wonder their voice has significant weight. Claims about equality among voters and votes can be raised after the game and its rules have crystallized, but not while we are discussing its viability and rules. Power has justified significance in a debate about the rules of the game, and biases in its favor are not an injustice.

No wonder the arguments in this debate are accompanied by the application of force by both sides: on the coalition’s side, political power; on the opposition’s side, economic, media, and social power. There are very few inhibitions in this struggle, but that does not mean it is not proceeding properly. This is a debate about our very foundation here—about the framework of discussion—and as such it is bound to be forceful and tough. It only means we have a healthy society (at least as long as it still exists). The question is whether in the end a golden calf will be born—only to be smashed—or a shared democratic game will be reborn and refounded now (in place of what the Constituent Assembly should have done at the state’s dawn). In my view, the odds are that the state will not be destroyed (though that is possible), and there is also a decent chance that it will not only survive but even advance. That brings us to what Goodman calls a “constitutional moment.”

How to arrive at a proper birth: the “constitutional moment”

In the game of chicken we are in, two outcomes are possible: a constitutional crisis or a constitutional moment. I described the constitutional crisis in the column above: the Knesset legislates, the court annuls, and now police, soldiers, and citizens are bewildered whom to obey. The important question now is: how can something positive emerge from this? How can this moment be turned into a “constitutional moment”?

Goodman argues that three main conditions must be met: 1) public awareness and sensitivity to the formative nature of this moment—and that certainly exists today; 2) the constitution that emerges must be clear (otherwise anarchy and inter-branch conflict will continue); 3) there must be broad agreement regarding its principles (the rules of the game). The main problem is, of course, item 3: agreement. Seemingly, we lack agreement about the rules of the game, and thus there appears to be no horizon for the current discussion.

You will likely be surprised by what I write here, but in my view we have more or less already reached such an agreement. Agreement about the rules of the game very much exists—despite the turmoil, and perhaps because of it. To understand this, we must distinguish between two parts of the constitutional structure: arrangements and content.

Where is the dispute?

What prevented the drafting of a constitution at the state’s outset was disagreement on the value plane (mainly religious). I am not sure whether the situation today is worse or better (surprisingly, I think it is better), but some Basic Laws were created then that deal mainly with arrangements (Basic Law: The Government, the Knesset, The Judiciary, The President, etc.). In the 1990s, two more Basic Laws were created—this time touching on content (Freedom of Occupation and Human Dignity and Liberty). This reflects the fact that a state’s constitution has two foundations: fundamental values and the rules of the game (the constitutional arrangements). The two latter Basic Laws were adopted with broad agreement in the Knesset and in society (religious parties feared possible harm, but they fully agreed with the values expressed in these laws and therefore ultimately supported them).

Regarding the constitution’s value-content part, the situation is not as bad as it seems. The main debates to this day have focused on the relationship between the “Jewish” and the “democratic,” and perhaps even more on the content of “Jewish” in that pairing. In my estimation, regarding the meaning of the “democratic” in that pairing, almost everyone agrees that this is the proper and fitting framework. There are no significant disputes there (including among Haredim and hardline religious-Zionists). The religious fear is of the “democratic” injuring the “Jewish” (particularly via the court, which is why the court’s composition matters so much to them).

Note that the current struggle’s focus is not value content (which, as noted, has crystallized and is more consensual than in the past), but the parts dealing with constitutional arrangements. If we now focus on filling these gaps—that is, completing the constitutional arrangements while ignoring content disputes—we can escape the present conflict and move forward. That is also what the President proposed. At the first stage we must agree on Basic Law: Legislation and Basic Law: The Judiciary, and only afterward discuss the reform’s details. We cannot discuss the court’s relationship to Basic Laws before defining what a Basic Law is and turning it into a law with a distinct status (through a different, much more stable legislative process). The initial arrangement requires formulating laws that will determine how a Basic Law is enacted, what it does (whether it invalidates statutes and by whom and how), and how the legislature may respond (override) to such invalidation.

My claim is that even regarding the constitutional-arrangement rules—those now at the center of contention—there is, in my estimation, quite broad agreement both in the public and among experts. Incidentally, this has happened largely thanks to the ongoing skirmish that has succeeded in sparking substantive discussion and the presentation of arguments from all sides. I will now try to persuade you that despite the noise and commotion, today the disputes about constitutional arrangements (the “reform”) are really marginal.

The agreement

To see why I perceive broad public agreement, consider for example the ad signed by the 120 professors who support the reform, as published a few days ago:

When you examine this ad you will see that they are not supporting the reform (as a fixed package), but a reform (as a general idea). They call for dialogue and a mutually agreed text. Some even gave interviews, and with my own ears I heard several signatories say they have reservations about Levin and Rothman’s formulations (such as Ron Shapira, Israel Aumann, and others), but they support the need for reform. Today I was sent quotes from my friend Prof. Moshe Koppel, founder and president of the Kohelet Policy Forum, who himself says he does not want the entire reform as it is currently sketched. I too would sign such a petition.

By contrast, take petitions and ads from those opposing the reform (a survey is here, and see also here and here) and try to assess what they say. You will find that most claim that in its current formulation the reform will bring ruin and disastrous results. That is, there too most do not reject the need for reform or deny the existing problems in the balance among branches (the lack of agreed rules of the game), but say that in the details Levin and Rothman go too far. [I will add parenthetically that in my impression a significant portion of Likud members themselves agree that the reform must be moderated, and without coalition discipline there is no chance the reform could pass. The extreme formulations are the result of Levin and Rothman’s obstinacy, and those two are leading the entire move—to the chagrin of many of their colleagues (as has begun to spill into the open in recent days). It is not reasonable to frame agreed rules of the game by virtue of the power wielded by two Knesset members.]

If we return to the petitions on both sides, the media present them as two extreme poles: these are “for the judicial reform” and those “against the regime coup.” The feeling is that there is no way to bridge such a deep chasm—a true game of chicken. But if you read carefully and note my comments, you will see that while the dispute may be heated, it actually lacks real substance. It turns out that even among the petition signatories—supposedly belonging to the debate’s poles—there is very broad (if not complete) agreement that a reform is needed, and conversely there is also very broad (if not complete) agreement that the present draft is extreme. So what is the dispute really about? Nuances—how to phrase this clause or that.

When you hear media interviews with someone supporting the reform, he always explains why it is necessary. He points to the flaws and problems requiring correction—but you will hardly hear from him about the dangers in the proposed solutions. In interviews with those opposing the reform, you will hear about the dangers in the proposed solutions—but never about the problems that led to it. This is a dialogue of the deaf, since it shows that the two sides are not actually arguing: one focuses on the problems and the need for reform, the other on the problems in the solutions and the dangers of the proposed reform. The conclusion is that everyone agrees a reform is needed and the current draft is dangerous and problematic. All that remains are disputes over details.

I do not belittle the details, but they do not reflect a dispute over the reform as such—or even over the need for it. Moreover, in a dispute over details, there can be shouting on both sides. Someone who supports reform can be more extreme in his demands to moderate it and in pointing out its problems—at least in some respects—than someone who opposes it. In short, the entire map presented to us is distorted. Be that as it may, we can see that this is no longer necessarily a war for home or democracy but about nuances concerning proper balances. Those at the extremes—the absolute supporter and the total opponent—are a negligible minority in the public and even among experts. Furthermore, I have written here more than once that one cannot argue about a single item from the reform in isolation. We must examine the entire structure, because every part affects all the others. Beyond that, there can indeed be several different constitutional designs that achieve the proper balances among the branches.

It is no wonder, then, that if you pay attention you will see that more than the content, the arguments now deal mainly with the form of discourse: whether to stop the legislation during talks; whether the talks should be held in the Constitution Committee or in some other format. These are technical rather than substantive matters, and at the moment they seem to be what is blocking the conversation, even though everyone has already admitted it is necessary. This too indicates that there is fairly broad agreement on the structure and framework as such. Even if someone thinks the override clause should require 61 or 70, and another thinks 75 MKs are needed, this is essentially a nuance. So too with the dispute about the majority required in the court to strike down a law: should it be 12 out of 15, 80% of any panel, or even a simple majority—these too are technical debates, not highly substantive, and certainly not the ruin of democracy or the state. In each such item there are extreme formulations that really do pose a risk, but in my impression most actors on both sides already understand this well—and they are not there. This is certainly the state of the public. Time and again it becomes clear to me that there is fairly broad agreement here that the matter requires arrangements, and even what the problematic points are that require arranging, and in what directions. The rest is a matter for negotiation, as in any other political issue. There is no deep dispute about essence; the matter is simply stuck. Incidentally, for this reason I estimate that this issue will, in the end, be resolved.

Note that a debate over details can only be conducted among experts—and even there, only among those who have delved into the issues at hand. Ordinary citizens—or experts who have not gone deep—do not truly have a formed position on what majority is required for an override clause, or the composition of the Judicial Appointments Committee for lower courts or the Supreme Court, or the majority required in the court to invalidate a law. The overwhelming majority have not examined these matters in depth and certainly have not formed a comprehensive constitutional picture. As noted, the arguments reflect opposing sentiments rather than formed positions. In the column cited I pointed out that this is also the case among opposition politicians. Unlike Levin and Rothman, the opposition’s leaders have been careful, for a long time, not to present any formed position about the reform—neither about the problems nor about the solutions. In my view, that is because they don’t have one. This is one reason it is so difficult to engage them in dialogue and discussion.

Thus, the disputes among politicians and in the wider public (as distinct from a very small minority that has done and is doing systematic work) mainly express opposing sentiments rather than truly different positions. This is evident in the petitions cited above, which reflect primarily a difference in sentiment, not a substantive disagreement—except for technical debates over details. The third condition for a “constitutional moment”—public agreement—also exists, in my view. Therefore, I think there is a good chance that ultimately the process will reach some reasonable solution acceptable to the sides.

Seemingly, this is a rather optimistic picture. I will conclude nonetheless with two not-unrelated aspects that somewhat dampen our optimism.

A. Between practice and sentiment/consciousness

I explained that the condition of agreement exists today—at least regarding constitutional arrangements (and to a not insignificant extent also regarding the constitution’s substantive content). There is thus no bar to turning this very moment from a constitutional crisis into a “constitutional moment.” If we do not do so, we will all smash into the wall at the end of this game of chicken. That will be the result of folly and irresponsibility, and chiefly of misunderstanding—not of substantive disagreements. It will happen if sentiment (which reflects polarized differences) eclipses substance (where there are no significant differences). Such a thing can indeed occur. Disputes grounded in sentiments without real substantive basis can indeed carry us to the abyss.

I have already written that I am an optimist. In my estimation, what will ultimately happen is that we will reach a more or less agreed compromise, and in my view it will not be far from what common sense dictates. In the end, substance will overcome sentiment, and slogans will lose to truth. This will not happen despite the power struggles in all the arenas I described—social, diplomatic, economic, military, and political—but because of them. So too it should be.

But here a new problem may arise—somewhat the reverse. If and when we reach that desired result, both sides may ask whether the compromise reached at the end of the process is a victory or a defeat. I fear that because of the opposing sentiments that drive us to extremes, both sides will see the result as a loss and a disaster for them (either the ruin of democracy or the ruin of governability), even though in practice neither will occur. In such a case, the outcome we achieved may be good and proper in itself, but it will not stop or prevent the social rupture and the clash already occurring. There will be a virtual smash-up in a game of chicken that is not taking place in the real world at all but in people’s and groups’ consciousness. If sentiment prevails over substance, then the victory achieved on the substantive plane will sink on the plane of consciousness. Our society may be deeply cracked by the sense on both sides that they lost (these will think there is no governability; those will think there is no democracy), even if this occurs only in the realm of perception.

B. Back again to integrity

In the column cited, I noted that beyond the rules of the game there is a no less important—and perhaps more important—foundation of democracy: the players’ quality and their good intentions. I showed there that without integrity and proper conduct by all players on the field, no system of rules, however perfect, will help. If so, the conclusion from what I have written here is less optimistic than it seems. Perhaps the problems about the rules of the game will be resolved by some agreement, but that will not necessarily solve the real problem, rooted in the lack of trust between the sides regarding their intentions and integrity. At present, there is no trust between the sides that they can even play a fair game according to the rules set, and in light of what has happened so far this distrust is quite justified. If democracy requires a balanced, rational system of rules and integrity, then solving the framework and constitutional-arrangement issues will not necessarily save our democracy.

I do not know how to solve this problem. I noted there that real-life problems cannot be solved by changing rules. A genuine solution requires a new social covenant, not merely setting the rules of the game. We must attain trust among the players and a fairer way for them to play—and here there is already a deep crisis of distrust. Sadly, this is a matter for a psychologist, not for a philosopher or a jurist. Which brings me to the somewhat pessimistic ending of this ostensibly optimistic column.

The most famous sentence in Wittgenstein’s Tractatus Logico-Philosophicus is its concluding one: “Whereof one cannot speak, thereof one must be silent.” I wanted to end here with the book’s second-most famous sentence, which appears at the end of its preface:

It seems to me that the truth of the thoughts here presented is unassailable and definitive. Accordingly, I believe I have, in essentials, solved the problems finally. And if this is so, then the value of this work consists in showing how little is accomplished when these problems are solved.

Setting aside the hubris, the feeling he describes often washes over me too. While I am not entirely convinced that I always solve every problem completely—and certainly not absolutely—my sense is that I often have a not-bad solution for them. But at the same time, human beings (not me—the others) repeatedly reveal themselves to be irritating creatures full of frailties, and these prevent them from behaving intelligently and rationally, even in cases where the right course is clear (see Column 218 and 236). Who will grant me, in the wilderness, an Asperger’s inn…