The Game Theory of the Separation of Powers (Column 548)

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.

These days it feels like the socio-political-legal dispute is heading toward an explosion. Whatever remained of civil discourse has vanished, and we’ve shifted to a power struggle whose horizon looks very bad for all of us. Yet alongside this, my impression over the past few days is that the reform process is actually producing some positive results. At long last there is some kind of dialogue and thinking—not on a grand national scale and not among politicians, but yes, between the camps. I sense that voices are beginning to emerge from the left and from the legal system (and from academia as well) that recognize there are problems requiring some reform; now they seek dialogue and compromise to reach a less extreme model. All the polls show that among right-wing voters and the current coalition too, a solid, consistent majority has formed that supports slowing the process and compromising on its details.

But even when arguments are aired, it still seems like a dialogue of the deaf. The debate is sharpened to the nth degree, since even among laypeople it becomes clear very quickly that the root of the disagreement is really the question of what democracy is. Concepts such as majority rule, human and civil rights, “thin” and “thick” democracy, separation of powers, the authority of each branch, etc., all arise; agreement seems very hard to reach. In this column I’ll try to sketch the map, and I’ll show that it can actually be better understood through concepts from game theory—which will also reveal the limits of theoretical analysis. So I’ll enter here into very basic preliminaries, after which I’ll propose a framework for understanding what is happening. I will not express a view here about the particulars of the reform, since I’ve done that, albeit in very broad strokes, in columns 534 and 544. In general, I can say that my position is very close to what Netta Barak-Corren wrote in her excellent and balanced position paper (linked here). But in this column my concern is with processes and foundations, not details. Those are discussed by her as well, but from a different angle, and in my view she doesn’t go deep enough into the foundations to fully clarify the picture. This column is a kind of conceptual, almost philosophical, preface to proposals like hers that operate on the practical plane.

My main aim here is to try to distinguish two planes on which democracy is tested—theory and practice—and you’ll see that this understanding sheds light on everything happening here, in particular on the debates, positions, and arguments; on the frustration and the inability to decide or agree; and also on the outcomes that await us if we don’t wise up. But I also think we can understand here why the apocalyptic forecasts both sides hold to with deterministic certainty won’t necessarily come to pass.

Needless to say, I’m not a jurist, nor a political scientist, nor even a game theorist. It’s possible that most of what’s written here won’t be new to readers—certainly to those familiar with these fields. It’s possible I present the picture in an unprofessional or unconventional way, and even offer my own interpretations of basic principles (without citing sources, disputes, and opposing views). I do this because despite all these caveats, in my estimation the overall picture I’ll sketch is very important for understanding the situation, and specifically here there is much that’s novel with explanatory and illuminating potential. Even if it doesn’t provide a clear solution to the problems themselves, understanding the situation can at least allow us to operate within this game a bit more rationally and consciously—and ultimately perhaps even contribute something to a resolution.

On the discourse and its limits

We must understand that a discussion of the reform cannot currently be conducted between politicians—not only for reasons of manners, attention, and political culture—but simply because, at least on one side, they are not serious interlocutors. There’s no one to talk to. Yariv Levin and Simcha Rothman have invested years of frustration and systematic thought in this reform. They draw on position papers and work by the Kohelet Forum and others; it’s evident they have a coherent, reasoned doctrine. Unfortunately, from worthy motivations—and I believe with good intentions and based on a genuinely liberal outlook—they have arrived at a model that, to my taste, is very extreme and very problematic. Alongside them is Bibi who, by all accounts, is a very clever man (and also a liberal), and I assume he understands the situation and the implications of the various solutions. By the way, I’m sure he himself doesn’t want the extreme formulations, but as everyone says (including members of his coalition), it seems he has lost control of the process. Now think: who stands against them? Mainly Yair Lapid and Benny Gantz—who clearly have no idea what this is even about. I’ve never heard from them what they actually think should be done here. What are the problems, if any? Which of the proposed solutions do they accept and which not? What do they think should be done regarding the relationship between the branches? Regarding Basic Laws? Regarding Supreme Court review of Basic Laws and in general? Which of the proposed laws is acceptable to them and in what wording? From their direction one hears mainly general wails about the end of democracy and “we will fight, we won’t allow it,” etc. It gives the impression that neither has sufficient intelligence or seriousness—or at least it’s clear they haven’t invested an ounce of thought and haven’t done their homework. It’s simply not a fair match. The coalition is grounded, reasoned, and ten times more competent than its pitiable opponents. Even if the impression is correct that the coalition is the side trying to avoid dialogue (I’m not at all sure that’s true), there’s no doubt there’s a good reason: they simply have no one to talk to.

What can be heard from the spineless representatives of the other side are mainly cries of doom and declarations about the destruction of democracy—as well as slogans that there’s no point in talking and compromising. Other opposition members dance on the Knesset tables, shout “shame, shame,” and put on various (not very creative) shows to rack up ratings. Even the left’s celebrated readiness to talk and compromise (“You make peace with enemies,” remember? Or maybe only with enemies?…) has disappeared here. Have you ever wondered why? Here’s the answer: unless we assume the current situation is perfect and needs no corrections, the obvious conclusion is that none of the opposition’s representatives has the faintest idea what they themselves would want or think. In their own telling, Israel is undergoing the greatest existential crisis in its history, and yet none of them does their homework or presents a coherent doctrine of their own. Is that not astonishing?!

But paradoxically, behind this pathetic representation there stand quite a few intelligent and educated people—in fact, an overwhelming majority of various experts from law, economics, and high-tech—who at least in part have finally begun to recognize there are problems, and to invest work and thought in their preferred model.[1] The discussion that cannot be conducted with the opposition for the reasons I listed should be conducted with experts and academics, and with practitioners in the economy and business. We should simply skip over the opposition because it doesn’t really exist. Rothman is, in principle, correct that the proper venue for such discussion is the Knesset’s Constitution Committee, but in practice there really isn’t anyone there to talk to (apart from outside invitees, some of whom do speak sense). I wasn’t surprised to read in recent days (between the lines—since the media focuses on hysteria and apocalyptic forecasts) that a dialogue is beginning to develop between Levin and Rothman and various academics—and that is a welcome, positive result of the reform that certainly would not have occurred without it.

If the aim of this whole move was to “bring in a goat” and then remove it—to get the legal system and academia down from the tree of obtuseness and arrogance that led them to reject any proposal and any complaint as the end of democracy—and to start a substantive dialogue to reach a reasonable model, it seems it has already succeeded in that. I only hope the dynamics of this process, combined with the utter bankruptcy of leadership on the opposition’s side and among the hysterical struggle’s leaders, won’t lead the coalition to entrench its delusional stance, push all the way, and refuse to take the “goat” out of the room. As with any explosive situation, tactical maneuvers can have strategic consequences, and once you start a fight it’s unclear how it ends.

The game of chicken

Despite the occasional encouraging signs that peek out between the storms, on the surface it seems the current course of events is heading toward a head-on collision between the government and the Supreme Court—and the question is who will blink first. This recalls the game of chicken I discussed in column 287, in precisely this context. In game theory, chicken is defined as a game where two rivals drive head-on toward each other on a single-lane road; the one who swerves first loses. The question is which of them will blink first. The difference between this game and zero-sum games is that beyond the possibility that A wins or B wins, there’s also the possibility that both crash into each other. In that earlier column, too, the topic was a head-on collision between the Court and the Knesset/coalition—but today such a collision seems almost unavoidable.

Let me emphasize: if the dialogue I mentioned above does not mature, the results will not be the destruction of democracy. I’ve written more than once that even if the reform passes in full, I think we will still remain a democracy. The hysteria in the discourse about it is exaggerated. I’m talking about the danger of a dismal outcome of the game of chicken: an explosion between branches of government and between sectors of society. There may still be democracy here—but a functioning state is far from guaranteed. Beyond the embarrassment and uncertainty regarding the legitimacy of the executive and judicial branches in such a scenario, the economic and diplomatic consequences of this reform could be very serious. For example, capital flight, blocked investments, and businesses moving abroad could bring us to the brink. I quite agree these steps are mainly political rather than substantive (and that is entirely legitimate; I don’t share the criticism on that front), but even if done for political reasons, the consequences of such processes can be disastrous and hard to reverse. If the economy deteriorates, it will be quite difficult to restore it to a healthy state. More broadly, the real danger in the reform is not democracy per se. I don’t think any of us faces existential peril. What is likely is an incapacity to cope with unjust but relatively moderate steps by the government (such as privileges for the Haredim, religion-state relations, corrupt and/or unworthy appointments to the government and other positions, and so forth).

From here on I’ll offer an explanation of why we are almost inevitably drawn into this game of chicken, and I’ll spell out its implications.

Basic concepts: the authority of the majority and the tyranny of the majority

I’ll begin with an important clarification. As I’ve written more than once, debates over the definition of “democracy” are unnecessary and essentially empty. Claims that one mustn’t do X because “it’s not democratic” hide the substantive claim that we shouldn’t do it because it’s not good (since what I consider good I will define as democratic). Therefore it’s better to talk about what is good and appropriate and what is not—and to argue substantively—rather than to debate the meaning of a vague concept like “democracy,” which begs the question and thus cannot decide any debate. Still, I will use it here, but only to describe what I consider worthy. I hope we won’t be dragged into conceptual and semantic debates but will focus on substantive arguments—what is good and appropriate and what is not.

The root of all problems lies in how we conceive of democracy and the separation of powers it employs. In the current debates many note that the democracy in question is not merely majority rule. That’s obvious, yet seems not fully agreed on; so I’ll touch on it briefly here as well. It’s accepted to demand of a democracy that it also protect minorities—that is, to deny the majority the ability to abuse a minority, or the state the ability to abuse citizens.[2] Contrary to what many think, this is not merely a moral requirement added to the democratic demand for majority rule, but a consequence of the logic at the very base of democracy and of the authority and status of the majority itself. The majority has no authority over the minority unless the minority has accepted the rules of the game—that is, only when the majority and minority together constitute a shared society that makes decisions together by agreement. If we are not talking about a public willing to play together by rules set with everyone’s consent, there is no way to justify following the majority.

For example: State A cannot claim against State B that since A is larger and its citizens are the majority, B must accept A’s decisions regarding it. In halakhah, too, there is no nullification by a majority when the majority and minority do not belong to the same mixture. Regarding judicial panels, the Talmud says the noble-minded in Jerusalem would check who sat with them at a meal—i.e., a judge who joins a panel must ensure before joining that he’s prepared to sign the ruling even if he’s in the minority against his two colleagues. If you don’t respect them and aren’t prepared to accept the majority’s ruling, don’t join the panel. If it’s not a panel of three agreed upon by all, there’s no justification for following the majority and “majority” is meaningless. In columns 66 and 79 I explained that this argument is far more apt for a democratic majority than for a court’s majority. I cited there Rabbeinu Tam, who goes further still and holds that in communal decisions (as opposed to a court), the majority has no standing and “follow the majority” does not apply. In his view, political decisions should be accepted unanimously (I showed there that the other early authorities also agree in principle, but practically it cannot work since it gives the minority veto power).

The meaning is that preventing the tyranny of the majority is not a kindness the majority does for the minority. Without agreement on that principle, we do not have one shared society—and then there is no justification for the entire democratic game; accordingly the majority has no authority to impose its view on the minority.[3] These are not two separate principles but two sides of the same coin. When there is tyranny of the majority, discourse is not based on justice and a genuine mandate held by the majority, nor on a genuine obligation of the minority to accept it—but on force. In that case one cannot fault the minority for wielding counter-force and refusing to accept the majority view.

Basic concepts: Basic Laws and separation of powers

Although preventing tyranny of the majority is the other side of the majority’s authority at the level of philosophical justification, in practice it is very hard to achieve in a democratic framework. The very operation of a democratic regime even somewhat contradicts this principle practically. The fundamental rule in democracy is that the majority decides (after the minority agrees to the rules of the game). Therefore, the legal rules that protect minorities depend on the majority’s consent: the majority enacts them and can also change them. So how can we actually enshrine and protect citizen and minority rights from tyranny of the state and/or majority? How does this practically manifest in the regime’s design? The minority depends on the majority’s good will, despite there being no ethical, substantive justification for that (beyond raw power). Precisely here arises the need for a constitution. A constitution is a “heavier” component in the legal corpus—harder to change under any given political constellation—and thus can restrain such abuses. It does not depend on the current, incidental majority; rather it represents more stable, broader norms that provide a framework for the specific debates between majority and minority.

But even a constitution has little meaning without an authority charged with enforcing it—a judicial system. It is responsible for upholding the law by both citizens and authorities. Courts examine whether a citizen or a government authority is acting according to law or has violated it, and therefore it is quite reasonable to give them the ability to review even legislation—at least for compatibility with Basic Laws and the constitution (otherwise a constitution is meaningless). A constitution without a judiciary, or a judiciary without a constitution, isn’t worth much. A constitution that doesn’t give the judiciary tools to review the other branches doesn’t do its job.

Hence the doctrine of separation of powers. Instead of a single ruler, as in a totalitarian monarchy, the accepted model of democratic government consists of three branches: legislative, executive, and judicial—meant to balance each other and ensure that no single branch wields too much power. The methods for selecting each branch vary by country, but I think in all the democracies I know there are three such branches, and in all there are efforts to ensure they are empowered, distinct, and independent—that is, as far as possible not dependent on each other.

To understand this better, I’ll also present the “principle of legality.” According to this fundamental principle, a citizen may do anything except what the law forbids, while a government authority may do nothing except what the law permits it. You must grasp that if the state authority is omnipotent—i.e., if it sets the laws (which means there is no stable constitution that is hard and cumbersome to change), and in particular if the judiciary cannot effectively review the decisions of the other branches—then the principle of legality loses its meaning. The executive can do whatever it wants and abuse citizens or groups at will. We return to tyranny of the state and of the majority.

Two central ailments here

I’ve written more than once that Israel’s governmental structure has two serious ailments: (1) The legislative branch has almost no standing or power, since the executive controls it without restraint; (2) The law is made a mockery by the executive. Because we have no stable constitution, our Basic Laws are changed quickly and without special difficulty according to incidental needs of the here and now. Thus the laws themselves become another tool in the executive’s hands. Moreover, the executive can label any law it passes a Basic Law, pass it by any majority whatsoever, and now demand that the judiciary grant it immunity (and at the same time, not use it to strike down other laws). Such a situation empties separation of powers and their independence of content.

Note: there is a lot of sense to the argument that Basic Laws cannot be subject to judicial review, for judicial review is supposed to be based on Basic Laws (and not on judges’ personal views—otherwise they become a legislature without being elected). But absent a definition of what a Basic Law is and absent making such laws stable and substantively distinct from ordinary laws (for example, by requiring a special majority, a complex adoption process, and a cumbersome procedure for changes),[4] that demand empties the balance between branches and our protection from tyranny of the state. Theoretically everything looks fine, but in practice it doesn’t work. It’s no wonder that all legal experts (as reflected also in President Herzog’s proposal) understand that the first step toward sane, balanced reform is a Basic Law: Legislation—one that must include a stable, objective definition of Basic Laws and hurdles to prevent quick, too-easy changes. Only then can we talk about balance between branches and limiting judicial review of Basic Laws and of laws in general.

What is democracy: theory or practice?

I think a key point that usually slips by in the discourse is whether democracy (in the sense I defined above—i.e., the right way to govern) is defined by a set of rules—that is, laws and regime design—or by how things actually play out. The current discussion focuses on rules, and the debate rages over which rule-system should be adopted. Everyone, therefore, speaks in empty semantic terms and debates the empty, tautological question of “what is democracy.” Indeed, democracy is defined as some set(s) of rules of a certain type. But the deeper question is whether it’s even right to define good governance by the rules in force. Is democracy indeed a synonym for—or sufficient guarantee of—proper governance?

As a thought experiment, imagine a state with no separation of powers where the government holds full power to do whatever it wants, but does not abuse that power. In his benevolence the enlightened ruler grants citizens all rights and looks after their welfare (something like this exists in Singapore—though not entirely). I don’t know if it’s right to call this a democracy, but in my eyes it’s a state that is governed well and properly—certainly better than a state where the rules are perfect but not really implemented. Note: I’m not speaking here about future fears that our enlightened government will stop caring (so of course rules are also needed); that’s certainly true—there is no guarantee the government will continue to behave this way. But for the purposes of the discussion, let’s look at such a situation in itself; I’ll immediately explain why this matters.

I’ve often written that a rule system cannot truly solve substantive problems—at least not when the situation is not simple (see columns 48–49 and 119). The reason is that it’s impossible to create a governmental rule system without loopholes. I cited, among other things, the proposal for fair division of a cake between two children (see also columns 119 and 122): one cuts, the other chooses first. It’s a method perfect from a game-theory standpoint, but I showed there that it cannot work in practice (there it creates problems rather than solving them). In column 160 I mentioned the famous story about the logician Kurt Gödel who, when coming to be examined by U.S. immigration authorities on the American Constitution, planned to announce triumphantly that he had found a logical loophole/contradiction in the Constitution. His friends who accompanied him—Einstein and Morgenstern (he kept good company)—managed to stop him at the last second, and thus his citizenship was saved. We also saw this in our small country after the adoption of the law for direct election of the prime minister. Its initiators saw it as a great salvation that would solve all our governmental woes; within a year or two it became clear it only worsened things. Top-down solutions to problems of real life (as opposed to mathematical problems) usually don’t work. Changing the rules solves almost no substantive problem in complex situations. In life, bottom-up works better.

Returning to our discussion, consider a situation in which Israel has a stable constitution. The constitution protects our rights and is accepted by the majority; its stability is achieved through stabilizing rules—for example, that enactments or changes require approval by two different Knessets. One could also require that any legislation or change be suspended for a set time and require subsequent ratification, etc. But those very rules can be changed by a simple vote in one Knesset. A 2–1 majority will determine that two Knessets aren’t needed to amend the constitution, and immediately afterwards they’ll amend it by that same 2–1 vote. Even if we stipulate that changing the rule requiring two Knessets itself requires approval by fifteen Knessets, the Knesset could still change that law by a 2–1 vote and abolish the constitution at a stroke. In short, there is no way to close all loopholes via a rigid rule system (in the previous column I argued that even the Holy One, blessed be He, didn’t and doesn’t succeed at that). A Basic Law can be changed exactly as it was enacted, and any mechanism preventing that can also be altered easily so long as there’s an incidental majority. There is no hermetic body of law that solves the problems. Tyranny of the majority is built in—and almost invited—by the democratic system.

The players’ integrity

The upshot is that even if you insist democracy is a system of rules, proper governance cannot rest on the democratic rule set alone—no matter how good. Because there is no perfect rule system, and any system can be breached by a determined coalition that knows what it wants, an integral—and perhaps the more important—part of a democratic regime is the integrity of its people and the democratic culture in which the rules are applied. If people do not act out of commitment to preserving the democratic framework and separation of powers, no set of rules will stop them. The branches can use their powers to change the rules of the game themselves, since the rules have no standing of their own other than by virtue of the unwritten democratic game (democratic culture). What stops this destructive loop and plugs its holes is only the democratic culture—not the rules themselves.

Thus, separation of powers doesn’t truly solve the problems—and cannot. The Knesset can always enact or repeal laws and thereby neutralize the judiciary’s powers. Below I’ll note that there is a built-in asymmetry between the branches. The Knesset, as legislature, always has the advantage—and when it’s controlled by the government, the situation is worse. The only way to maintain balance between the branches is to demand integrity from the players beyond the rules—that is, not to make improper use of the legal power indeed placed in their hands (by the rules).

On the other hand, if only the players and their democratic culture matters, why do the rules matter at all? Gadi Taub and his fellow reform supporters repeatedly claim that warnings about risks to democracy don’t bother them—even if true. They say that if people here don’t want democracy, there won’t be democracy; you can’t impose democracy on the public or on the government, and no rule system can do that. And if people want democracy, there will be democracy—regardless of the rule set. They are entirely right about that. Yet even so, the claim is extremely childish. First, without legal rules, what exactly are we preserving with integrity? The rules set the framework, and integrity is how we preserve it. Without a rule system it’s not clear what is demanded of an upright player. In basketball you need to define what a foul is—and only then can you demand players not commit fouls and assess their sportsmanship. Second, what happens if the public wants democracy but the government doesn’t and acts against the will of its senders? (I already noted that this is precisely the situation today—despite the empty slogans about the “will of the people” expressed at the polls.)

Clearly, proper rules can contribute to stability and balance—even if they cannot replace the need for integrity. The legal system and rules of conduct are not meant to solve the problems, but they are the basis without which there is no way to do so. The claim that democratic rules don’t matter and everything should be left to the good will of the players on the field is truly childish. Note that even the reform’s supporters are working to change the law; they do not say it doesn’t matter. That is, when it suits them they too agree the rule system matters greatly and they work on it quite a bit—when it doesn’t suit them they explain the rules don’t really matter.

The relationship between rules and integrity parallels what I’ve written often about theory vs. practice. Following the rules is correct in theory—and indeed both the problems that led to the reform and the solutions it proposes are well-justified by formal, theoretical rules. The problems arise mainly in practice. One can find a brilliant description of a similar phenomenon in Michael Oakeshott’s essay “Rationalism in Politics.”[5] There he distinguishes between two kinds of competence (political as well as scientific etc.): theoretical knowledge and the practical skill of application. I’ll return to this below.

Deterministic discourse

The picture I’ve sketched has important implications for understanding the current discourse. My critique of Netta Barak-Corren (see note 1 above) was that at times (though typically she is very balanced and moderate) she joins the deterministic discourse. The discussion today rests mainly on examples of government decisions that cannot be prevented without an effective judiciary. People talk about a government decision to murder redheads, to deny rights to women or Arabs, to arbitrarily raise taxes to fund weekly Bahamas vacations for ministers, to exempt settlers from taxes and bus fares (some even imagine appointing a minister convicted of financial crimes as finance minister—but that’s truly science fiction), and so forth. All these are decisions that, if the reform passes, cannot be avoided legally. That’s certainly true—but it’s also true today (without the reform). Today too the government can make such decisions (and even appoint a corrupt person as finance minister), label them Basic Laws and insert a limitation clause that places them above judicial review by virtue of existing Basic Laws—and that’s that. So why does this almost never happen? Because the Knesset and government have some integrity (and perhaps some fear of harsh criticism and the next elections). It turns out we have not completely lost that.

The deterministic discourse around the reform assumes Murphy’s Law: everything that can go wrong will go wrong. If the Court can’t strike down laws—even Basic Laws—then a theocratic regime will necessarily arise, minority and citizen rights will be denied, and government will operate in a totalitarian manner. This is how one arrives at apocalyptic fantasies about an immediate end to democracy (Poland and Hungary right here).

But that’s not true, of course. Even if the rule system allows government tyranny, it need not happen (in my view it almost certainly won’t happen in extremis). The fact is that even until now the government and coalition had the power to change laws and insert limitation clauses wherever they wished—and they didn’t. Despite the rather low integrity of our elected officials, it’s a fact they usually don’t go wildly beyond the bounds (though those bounds are constantly expanding), even though doing so is entirely within their legal power now. Note that passing the reform is itself a move within their authority; the critics themselves argue that this would allow the government to change everything. Yet the fact is this hasn’t been done until now—hence everyone’s surprise and outcry about this move. Another example: justices appointed to the Supreme Court as “conservatives” repeatedly surprise their appointers and all of us with non-conservative rulings—and vice versa. Contrary to the false myth spread by the coalition, even the “leftists” of the Supreme Court almost never intervene in religion-state questions as well as politics and policy (there are dozens and hundreds of examples). But that doesn’t stop the reform’s critics from proclaiming that changing the selection method will nullify the judiciary’s effectiveness. This determinism is greatly exaggerated. When a person enters office, he usually has minimal integrity. All this could happen in principle, but in practice in most cases it doesn’t. Murphy is wrong: not everything that can go wrong, does go wrong. So it’s not always correct to assume it as a working premise.

These doom-laden prophecies by reform critics (and by supporters as well) rest on the assumption that everything depends on rules; if the rules allow a gap or a hostile takeover, it will inevitably occur. But that assumption is wrong for both sides. Improper acts occur here all the time with the current rule system, and they will occur under any future system as well. Yet we still are very much a democracy (one that sometimes behaves disgracefully—we’re all human), and for the foreseeable future it seems we will remain so. There will be distortions (like appointing the corrupt and manipulative gamesmanship with Basic Laws), but I’m not truly afraid for our democracy itself.

Attributing absolute weight to rules and theory—and defining democracy exclusively by rules—is what leads to hysteria and unrealistic forecasts, and therefore greatly hampers finding a solution. Integrity—the factor that determines actual conduct and how laws and rules are used—is no less important to the debate and must be considered as well (and certainly not despaired of; if it doesn’t exist, no rule system will help).

So what is the role of the rule system?

But if everything really rises and falls on the conduct of people, what is the importance of the rule system? Where does Gadi Taub err? Why fight such a bitter battle over the rule system itself? It would seem both supporters and opponents of the reform are mistaken.

The rule system is meant to help reduce dependence on people’s integrity and minimize the chance of deviations—even small ones (which happen today), and certainly extreme ones. If there is a stable constitution, it will give the Court a basis to review government. True, the Knesset can always change the constitution and the rules themselves—and as we saw, that remains true even if we place them in a straitjacket of rules making changes difficult—but it will at least give the public an early warning that allows a struggle before the next step (as is happening today). When the Knesset changes the rule requiring two Knessets to amend a Basic Law, people can take to the streets before the next step, in which the government changes the Basic Laws themselves. The rules make it so that processes of change and corruption are not so easy, short, and immediate—and of course when there are rules it’s clearer to us all who is behaving properly and who not. As I explained, the rules set how a person or body with integrity behaves: he keeps the rules and does not misuse them. Without rules there’s not much meaning to integrity.

Therefore, despite the critical importance of the players’ integrity, there is great importance to enacting a proper rule system. Even if it’s not the sole condition of our being a democracy, it is important for stabilizing it. Without integrity, no rule system will save us. And when the system displays low levels of integrity, rules are all the more necessary to protect us.

This insight can lower the flames and pressures accompanying the discourse and bring it back to sanity. The loss at stake is not democracy itself, but there is certainly importance to what balances will exist between the branches—and how far they will protect us from tyranny of the state. Just yesterday someone sent me powerful words by a Haredi rabbi named David Leibel on the “HaMakom” site (for some reason I can’t find them now—perhaps they were deleted under the censor’s fear?) where he speaks of the importance of protecting minority and citizen rights for the Haredi public as well. He rightly laments the shortsightedness of Haredim who fight the Supreme Court while ignoring the possibility that a government not to their liking will arise and threaten their values (draft exemptions, taxes on soda, and other Haredi tenets). After the reform they so wanted and advanced, there will be no one to protect them from the state’s tyranny.

A built-in asymmetry between government and the judiciary

The next important assumption people miss is that there’s a built-in asymmetry between the legislative/executive (which, in our case, are really one) and the judiciary. The former set the latter’s powers. They set the rules of the game that bind all three branches (the laws). In different words: the Court must operate within the law and has no legal way to deviate from it, while the government and Knesset can simply change it. Hence, de jure at least, there is no set of rules binding the Knesset and government.

Moreover, the government makes thousands of practical decisions, while the Court can at most invalidate this or that decision—and even that only if the case reaches it and only if it contradicts a Basic Law. At least theoretically, it cannot invalidate a Basic Law at all. Several very important implications follow.

First, it’s much more important to limit the government’s power than the Court’s. The Court can only invalidate particular decisions; its impact on us is quite limited. The government’s impact on our lives is dramatic—and if it allows itself to legislate and act as it pleases without constraints and review, the fear of harm to our rights is infinitely greater than fears of judicial overreach.

Second, we cannot rely on the Court as the sole check on government decisions. From my personal experience: when we lived in Yeruham, there was a corrupt council head who made dozens of decisions each day in direct violation of the law. We had ironclad evidence; above him stood the Interior Minister and his ministry—and still nothing could be done. Why? Because citizens like us had to gather material on each of his actions (most of which we didn’t know about; among other things he didn’t fulfill the Freedom of Information law and didn’t provide what we requested—go file a complaint about that too), then organize the material and build a proper petition to the Supreme Court, pay an attorney to attend every relevant session, prod the police to act and the Court to see public interest and that the presumption of administrative regularity had been overcome—and run this entire gauntlet for each of the hundreds and thousands of his decisions every day. You understand this is utterly impractical. No wonder he acted entirely freely, as if operating alone in a vacuum with no regulation or oversight. Now imagine the possibility of oversight over a government that makes far more decisions, most far more critical to us all, with nothing above it (except the U.N.). How can decisions of a government be effectively reviewed—even if we have a very accessible Court and wide standing? Clearly the government has an interest in setting the rules so that it cannot be limited or reviewed; indeed the legal power lies only in its hands. This is that asymmetry again.

This is exactly why the norm—strange at first glance—arose that a legal advisor’s opinion in a ministry or government agency is binding. The theoretical logic says it’s only advice; therefore a minister or director can prefer different advice. At most the matter goes to court. But as we saw above, if a legal advisor’s opinion were merely non-binding advice, oversight over government would become impossible. There’s no way to go to court over every administrative decision. Therefore, despite the theoretical logic in the reformists’ claim that legal advisors should give advice not directives, factually there is no other practical solution. Again, this is the clash between theory and practice—or between logical rule systems and their application in the field (integrity). I’ve addressed this tension more than once; in our context see e.g. columns 517 and 534.

Likewise, there’s a very justified claim from reform supporters that the Court is not elected by the public (and does not represent it—less true in recent years), and therefore it’s more reasonable to give power to the Knesset and government rather than to the Court. That claim is very correct—at least in theory—and precisely from it flows the asymmetry between them. Therefore the Court cannot legislate; it can only operate within the law. Only the Knesset can legislate and the government act; the Court cannot. Hence the Court’s influence on our lives is marginal, while the government’s is vast. But this is true in theory—and only as long as all players’ integrity is maintained, i.e., when government and Knesset operate within a fitting democratic culture. Remember: their integrity is a necessary condition for creating a reasonable balance between government and Court despite the built-in asymmetry—and for preventing tyranny of the majority. Without that integrity, the differences in power between government and Court, and the Court’s structural dependence on government and Knesset, empty their balance of meaning and thus our democracy of content. This is critical for understanding the whole process.

For the same reason, the popular claim among reform supporters that it’s no less important to limit the judiciary’s power than the executive’s is incorrect. When speaking of limiting the executive we mustn’t forget to limit the judiciary? That’s simply not true. Limiting the executive’s power is infinitely more important—even though (and precisely because) it’s the elected branch.

[In parentheses I’ll note: naturally the Court will make problematic decisions mainly in the “left” direction, because the government has been on the right for quite a few years. By the principle of legality, the Court’s role is to limit government decisions; hence when the Court invalidates government actions or laws, they are naturally “to the left.” It’s important to understand that in the vast majority of cases the Court invalidates nothing and accepts government decisions as valid; but the invalidations, when they occur, are always “left” of government. That is the meaning of balance between branches. This is inevitable and does not indicate distortion. Note too that a thoroughly right-wing bench won’t change this fact. At most it will reduce invalidations somewhat—but those will still paint it “left” compared to the government. This sharpens the inter-branch tension and serves the coalition’s false propaganda that the Court is leftist and composed entirely of denizens of “Rehavia” (long untrue). The truth is it’s a natural result of healthy checks and balances.]

We have almost reached the heart of the matter: in light of what we’ve seen, you can already understand that the game of chicken is an inevitable result of lost integrity. But first a brief discussion of the ideas of the American Jewish legal philosopher Ronald Dworkin.

Dworkin’s principles

In a nutshell, Dworkin argues that the Court should consider not only enacted law but also foundational principles and values of the culture and legal system within which it operates. The easiest way to illustrate is, of course, with the Nazis. In the Nuremberg trials, people were prosecuted for obeying the law. On its face this is a bizarre legal step: how can one bring a person to trial for obeying the law? The assumption was that there are laws that exist even without anyone legislating them. Fundamental moral laws—say, that one doesn’t murder people for no reason—require no legislation. The novelty is that this also holds in the legal sphere: the Court can rely on them and judge those who violated them—and the defense that they complied with a legal order won’t avail them. From here one can also derive the principle of a manifestly illegal order, and the like.

Dworkin widens the lens further. In his view, the Court should also consider principles unique to the given society—not only universal moral principles—and rely on them when judging a person or authority (I think the “Jewish” in addition to “democratic” is a good example). As I understand it, the motivation behind this doctrine is the very asymmetry I described above. Note that after Dworkin’s adjustment there are principles that the legislature cannot circumvent in any formal way. A legislature cannot enact a Basic Law to murder all redheads or prefer one group over another—even if no law forbids it (for the law is in its hands; the legislature sets what the law is). This introduces greater symmetry between the legislative/executive and the judiciary and reduces the latter’s absolute dependence on the former.

Of course this is a very non-trivial doctrine: who determines these principles? The reasonable person? And who determines who is “reasonable”? Follow the majority? Hold a referendum on every question? Results will depend on phrasing, and referenda have many problems (e.g., in current polls there’s a clear majority for compromise on the reform, even among right-wing voters, but the government doesn’t much care). This doctrine effectively grants legislative power to the Court, and of course makes decisions depend on judges’ values (though they’re supposed to assess the society’s values—an ambiguous matter)—and judges are unelected.

A similar rationale underlies the controversy over the “reasonableness” doctrine. Here too we speak of value-laden judicial decisions that acquire legal standing without being legislated by the Knesset. Using reasonableness likewise reduces the judiciary’s dependence on the legislative/executive: legislative tricks by government and Knesset cannot always force a desired outcome on the Court; it can always say something is unreasonable and strike down a law or decision. Note that reasonableness and foundational principles (Dworkin’s) in principle allow striking down Basic Laws as well—since such invalidation is no longer based solely on contradiction with a Basic Law but on conflict with broader principles that were never legislated.

We can illustrate the need for such considerations without resorting to Nazis. Two almost banal examples: think of a local council deciding to gather all the town’s garbage at Reuven’s doorstep (I saw this via Chen Ma’anit). Suppose no law forbids it. The majority will of course vote in favor—Reuven is only one person and everyone else benefits. Is it not reasonable to empower the Court to say this decision is unreasonable and void, even absent a municipal or national law? Is it realistic to expect the citizen to lobby the Knesset to change the law to forbid it?! Another example is a real case from Moshav Beit Elazari, where the Court compelled a secular council, against its will, to build a mikveh for religious residents and anyone interested—based on reasonableness. There is no legal obligation to build a mikveh, but the decision not to build one seemed to the (secular) judge unreasonable. This is an excellent example of reasonableness serving the “dossim” (you won’t read that in Yated Ne’eman), and there are several more like it.

We saw above that law cannot cover all cases or eliminate loopholes entirely. Therefore there is no escape from appointing a body that can review decisions on the basis of reasonableness. I’m not entering here into who that body should be, how it should be chosen, whether to separate it from the Supreme Court and perhaps even from the High Court of Justice (to create a constitutional court), etc. My purpose is only to point to the logic in the existence of such a body and such doctrines. This is a vital way to prevent tyranny of the majority.

To be sure, both reasonableness and Dworkin’s principles are contested among jurists, and the scope of their application is even more controversial (e.g., whether they should be used only to overturn administrative decisions or also to strike down statutes. In Israel reasonableness is used only to void administrative decisions). There is no doubt these are far-reaching doctrines and their theoretical justification is very problematic. On the other hand, practice sometimes requires them—and this returns us to theory vs. practice. I’m not here to endorse or oppose them, only to show their logic based on the built-in asymmetry between branches and the need to prevent tyranny of the majority. You can understand that the lower the executive’s integrity, the greater the need for these problematic doctrines.

What happens when governmental culture deteriorates? When integrity vanishes, we are left essentially with the rule component of democracy—but it is full of gaps that cannot be sealed by rules alone. Separation of powers disappears and we are left with the executive’s absolute dominance. I must preface that this process occurs on the side of the executive/legislative and on the judicial side alike. Both sides are at fault—and this inevitably leads to a game of chicken between them. We’ll see this in the next two sections: the first on government, the second on the judiciary.

Chicken game: the government’s loss of integrity

Our Knesset enacts Basic Laws by incidental majorities and doesn’t bother to define clearly their status, how they are to be used, and who has authority to ensure compliance. What happens if in this ambiguity the government and Knesset take steps that seem very problematic and contrary to Basic Laws? What if the Knesset and government initiate blatantly personal Basic Laws intended to appoint a minister convicted of financial crimes as finance minister? This is an extreme breach of integrity—even if the procedure itself is entirely legal (another manifestation of the asymmetry between the legislative/executive, which sets the laws, and the judiciary, which operates within them).

Although theoretically we also have a legislative and oversight branch—the Knesset—practically it can do nothing in such cases, for it is under the government’s total control. Moreover, remember that the Knesset enacts the laws that allow the government to do what it wants. So who will stand in the breach? We are left only with the Court. But if it has no authority defined in law to strike down laws or government decisions, we remain under unlimited government tyranny (though as I explained, that does not necessarily mean we have already collapsed).

The loss of governmental culture (and that of the Knesset) necessarily leads to drastic steps by the Court, which takes upon itself the power to balance and review the branch (singular) opposite it, for no one else will do so. If the government enacts a blatantly personal Basic Law enabling the appointment of a corrupt, repeatedly convicted person as finance minister in charge of the public purse—and no one utters a peep—the Court finds itself compelled to stand in the breach. Now it’s argued against it that it has no authority to strike down a Basic Law and is exceeding its powers—which of course justifies the reform. Seemingly a very correct claim—but only seemingly.

This is true from the standpoint of democratic theory. It’s not reasonable that the values of an unelected bench determine what is reasonable and stand against a government elected by and representing the majority. But the government too is deviating from the rules—even if not formally (since it acts legally). It deviates from integrity and the democratic culture that are the basis of the partnership and the minority’s willingness to accept the rules of the game. The dam that stops majority tyranny is breached; this threatens the society’s existence and, of course, the law itself.

It’s no wonder that in such a situation talk begins of civil disobedience—a legitimate tool in extreme cases where social cohesion is lost. Majority tyranny leads to its loss of legitimacy and to the minority no longer being obligated to accept its decisions. Here we see this process expanding to “civil disobedience” by the Court (!), which finds itself entering this vacuum for lack of choice. It exceeds its powers because the powers themselves and the rules defining them have been breached and are no longer binding. In the absence of integrity, the law has no force; thus the law is no longer a mutually accepted framework. We saw that what protects us from tyranny and dictatorship is not only law but integrity. If the government violates foundational norms that threaten democracy and displays a lack of integrity, the Court sees itself obligated to deviate from the rules—and in its case that necessarily means deviating from law. The Knesset can easily change the law and therefore need not deviate from it—it can act with lack of integrity to achieve whatever it wants. But the Court is also bound by law; thus when it decides to exert power, it necessarily acts outside the law. This is the branches’ asymmetry described above. Put differently: this is where Dworkin’s principles and the reasonableness doctrine are called for—they are the Court’s tools to go beyond enacted law in order to counterbalance government force. It’s the gentlest way to advance civil resistance without smashing the tools and rules entirely. The theoretical critique of the Court is justified—but on the practical plane it has almost no choice.

Chicken game: the judiciary’s loss of integrity

Precisely because of my consistent criticism of the government and the current coalition, it’s very important to add the other side of the coin. Opponents of the reform tend to paint the situation as if only one side is to blame for improper conduct: the government and Knesset. But that’s simply untrue. The Court ran wild in its use of reasonableness, Dworkin’s principles, and departures from what law allows and prescribes—even where there was no real justification. It used these tools in situations where governments acted with a reasonable level of integrity, so there was no justification for the judicial activism that developed in recent years—and in doing so the judiciary brought this reform upon itself and upon us all.

One can find a fascinating (if, to my taste, overly extreme and tendentious) description of this process in Daniel Friedmann’s survey. The Court acted with extreme lack of integrity and exploited power not entrusted to it. It departed from law and essentially permitted itself to set the rules. It engaged in judicial legislation of statutes and administrative norms without agreed authority and without genuine debate. Thus the judiciary violated the system’s built-in asymmetry and sought to rebalance powers unjustifiably (the asymmetry flows from our regime’s structure and must exist in normal conditions). That of course led to a lack of integrity on the government’s part in trying to overcome judicial imperialism—and so on, in a loop.

This is an escalation that follows almost inevitably from lost integrity on both sides. In such a situation, the government changes law (including Basic Laws) recklessly and irresponsibly and turns law into a tool for its needs. Against such conduct there is no other way to secure balance except via judicial deviation beyond what law permits. Practice requires it. These days the only thing considered sacred and agreed upon in the democratic struggle is law—since neither side trusts the other’s democratic culture or integrity (and both are right). Thus together both sides bring us to a game of chicken. Now the collision seems almost unavoidable.

For many years the judiciary has refused to let anyone move their cheese by even a millimeter. The right, although it holds political power and (not always justifiably) feels hostility and antagonism from the judiciary, continues to complain yet shows remarkable restraint (I think mainly thanks to Netanyahu, who has consistently, resolutely protected the judiciary over the years). This is indeed behavior showing integrity—unlike much of the judiciary’s conduct.

In the current term there’s a sense the right has had enough of this and one can sense despair about the possibility of dialogue and cooperation with the judiciary. Therefore they decided to move in practical directions. These days the locomotive is barreling ahead at full speed: out of sheer frustration they have entirely abandoned considerations of integrity. From now on, law, power, and rules speak. In this debate, no one is speaking anymore about demands and considerations of uprightness.

It’s important to understand that what is somehow called “the right” here (though the right usually favors a weak government and strong courts, and the left favors a strong, centralist government) has behaved with impressive patience in recent years. For years it has felt aggrieved by the judiciary’s conduct and the powers it took upon itself, and as a result the need for reforms (each time on a different point) has arisen repeatedly. Yet despite all this, no one really did anything practical. Each time there was some obstacle—but in my view there was also recognition of the judiciary’s importance and independence, and a great commitment not to break the tools. Recall that along the way any proposal that even hinted at today’s directions immediately drew torrents of criticism from the left and the judiciary—characterized by frustrating obtuseness and arrogance and by a total lack of listening. Many on the right (and not only there) grew sick of the incessant “end of democracy” that was predicted from every proposal—reasonable or less so—raised in these domains.

A balanced look at the escalation

I have already written that in my view almost all the problems that motivate the reform are justified, and most of the solutions it proposes have justification as well. But the justifications are theoretical, while the problems are created on the practical plane. The practical problems arise mainly because the reform’s package (even if almost every detail can be justified) leads to severe distortions in practice (this is also my main critique of Friedmann’s survey, which is all legal theory while blatantly ignoring the harsh practicalities this formalism creates). Bottom line: both sides are culpable on the slippery slope down which our two brave and foolish “chickens” are now sliding straight toward a crash.

Reform supporters rightly point to the asymmetry between government and the judiciary—in powers and in conduct. They argue that the government acts according to law while the Court exceeds it. What they fail to see is that integrity—the second component—is an inseparable part of the game. In its absence, law has no sanctity. If one side of the principle of legality is violated (the government does what it wants, even without authorization), then the other side will necessarily be violated as well (citizens and courts will do what they want). Moreover, if they amend the law and pass the reform, the Court will continue to violate it even more. As it is said: “As in water face answers to face.” There is no structural solution to this—for rules cannot substitute for integrity.

The game of chicken and its shattering: the great crash

At present the government is running wild and enacting whatever it wants. We saw that this is the result of justified frustration with an obtuse, arrogant judiciary that took powers without real justification. As I noted, there is a solid public majority against the reform’s extreme formulations—but the government acts against the public and even against its voters, claiming it was properly elected. That’s true. Theoretically, under the rules (the law), the government is permitted to act as it understands—even if there is no public majority for its actions. But clearly this lacks ethical and practical justification (perhaps excepting cases where “things seen from there aren’t seen from here”—not the situation in this debate), and it is certainly not conduct that reflects integrity.

Note that the rules are the only thing considered binding—indeed “sacred”—these days. The reformists’ rationale is that it fits the law and that’s their right—and that suffices. They also argue the judiciary exceeds the powers granted by law—and they are probably theoretically right. Beyond that, the general debate now is about who violates the law (who incites, who calls for civil disobedience, etc.). But those are not the important questions. We’ve seen the crisis is not caused by law; therefore changing the law won’t solve it. The crisis is caused by a loss of integrity on both sides. The truly important question is not who violates the law and who acts within it—but who acts properly and who doesn’t.

Because of this, a very dangerous—but to my mind entirely justified—public expectation is formed that even if the reform passes, or if “Deri Law 1–2–3–et al.,” the prime minister incapacitation law, or any other rampage by this horror coalition passes—the Court will strike down these laws on one ground or another. But on what basis? These are Basic Laws! Formally it seems clearly outside its powers, since that’s against the rules. It could perhaps be justified on the basis of Dworkin’s principles and/or reasonableness. But those aren’t legal rules; they’re philosophical doctrine—and as such many won’t accept them as legitimate rulings but as judicial legislation. Where integrity and democratic culture have entirely vanished, only the formal rules (law) are in play—but in such a situation there is no balance against the executive. The Court is paralyzed—and a path to majority tyranny opens. But in such a situation there is no justification for majority rule either—since preventing tyranny of the majority is a condition for the minority’s agreement to play the game. The rules are breaking; so it’s no wonder the anti-reform public expects the Court to deviate from the rules and go head-to-head against government and Knesset.

What will happen when the Court strikes down these Basic Laws (a fully possible scenario, in my view), and the government declares the Court has exceeded its authority and its ruling has no force (which is theoretically quite true)? Ministers—and perhaps the prime minister—will be declared by the Court illegal, their orders void; they will declare the same about the Court. We will find ourselves in a terrible constitutional crisis. There will be an explosion that could finally tear us apart. Imagine what a soldier or police officer is to do when ordered by a commander or a minister whom the Court has declared illegal, while the government declares the Court illegal and its orders nonbinding. One officer comes to arrest the prime minister by order of the Court; his colleague comes to arrest the judge by order of the government. A civil war will be waged here between the government’s forces and the Court’s. It seems to me the probability of such a result today is not negligible. See, for example, here Ronni Alsheikh’s words predicting such scenarios. He thinks the police will heed the Court; I’m far from sure—and far from sure that’s the correct solution. In such a situation there is no substantive obligation to obey anyone (and certainly not the majority), because we have thoroughly disintegrated and might makes right. We have shifted from a discourse of justice, justification, and ethics to a discourse of raw power.

From the game of chicken to the prisoner’s dilemma

As I wrote at the beginning, this description clarifies the situation and what caused it, but does not necessarily offer a solution. If I continue with game-theory thinking, perhaps the conclusion can still be phrased in a way that hints at a solution: to prevent disintegration we must move from chicken to the prisoner’s dilemma. In the prisoner’s dilemma (see column 122), the situation is such that if each side chooses the strategy optimal for itself (maximizing its own payoff), then both will necessarily be worse off than if they decide to cooperate. A coalition strategy yields the maximal payoff for each of the two players. Note that this is a utilitarian explanation, not a moral one. Rational players should choose this strategy not because they’re righteous, but because it maximizes each side’s benefit.

There are differences between the two games (e.g., the price’s intensity), but if I try to translate this insight back into our current chicken setup, the meaning is that both sides must agree to cancel the competition and flip a coin—or split the prize, etc. We need to reach an agreed compromise; otherwise there’s a good chance that not only will no one win, but both sides (and all of us) will crash.

More than once I’ve mocked naïve proposals to resolve our conflict with the Palestinians—statements like: it’s so simple, both sides should behave logically, give up maximalist aspirations, and compromise—and then everything will be fine. That’s a lovely proposal, but it takes two to tango. If both sides agree on a coalition it works; if one side chooses to concede without securing prior agreement from the other, it will crash. Moreover, the very readiness to concede has a cost (the other side gains confidence in the possibility of victory and in our weakness; it understands obstinacy and violence pay). Beyond that, in that conflict the proposal is naïve because there is no trust and shared fate enabling the sides to form a coalition for their mutual benefit. By contrast, among us in Israel, between the two warring camps, I think the situation is still reversible; there is still some chance to form a coalition (i.e., reach an agreed compromise). If we have already become outright enemies and our situation resembles the Palestinians, then we are already shattered and the debate is pointless. I don’t think that is the case—but we must stop at all costs the process leading us there. It’s important to understand this is a utilitarian proposal, not only an ethical one.

In the appendix I’ll touch, from a slightly different angle, on ethics vs. utility—or peace vs. truth—in the current debate.

Appendix: On peace and truth

To be honest, our politics has long ceased to be a stage for debate; it’s a venue for power struggles. But in times where there is no discourse, the power struggle is, in a sense, the form of political and social discourse—and in fact it’s even legitimate. Power struggles in the streets and press, capital flight and the use of economic power to protest and influence—these are perfectly legitimate. It’s a form of demonstration (how is it different from blocking roads, withholding services, etc.?). There’s no apparent reason why someone who disagrees with the government’s conduct should continue to funnel his money to fund it. Moreover, in the absence of substantive discourse, the struggle is the least bad substitute. One could say this is how we are “talking” to each other these days. I already noted that at the margins of these power struggles—and undoubtedly thanks to them—substantive dialogue is beginning these days as well.

In recent days a new discourse has begun within the right-of-center camp (mainly around Yoaz Hendel): that although the reform is important and positive, one must still compromise because we must not allow a schism between two halves of the public. The fear of the crash I described is the background here. This line coalesced and found sharp expression last Saturday night at a demonstration Hendel organized in Liberty Bell Park. Thus, for example, Rabbi Medan said there that he has been dreaming of this reform for thirty years—but feels obliged to concede and compromise so as not to create a rift in the nation and not to lose our state. Yoram Cohen, the former head of the Shabak, by contrast, spoke at the demonstration about the reform’s flaws and dangers—and received angry reactions from the crowd. It was clear most were there to secure peace, not to criticize the reform. After the demonstration I wrote to a close friend (a very active leftist) that it actually highlighted for me the depth of the divide between the camps. The right almost entirely supports the reform (even though it has distinctly “left” features), and even the moderate right does not share the “left’s” fears and would very much like to see the reform implemented in full—except that the moderates prefer to give it up for the sake of peace.

Thus, the dominant discourse in the moderate right—at the demonstration and more broadly—is about the need for compromise for the sake of peace, not about the reform’s flaws and its being too extreme. At that demonstration I felt great frustration, because this reform is, in my eyes, very problematic on its own terms. I came to demand tempering the reform (and this government in general) because it is bad in my view—not because I must take into account the left, or preserve the nation’s unity, and other leftish slogans so beloved by the religious-Zionist crowd. These are arguments from substance (truth, or utility) vs. arguments from peace (ethics). But on second thought, and in light of all I’ve described here, it’s hard to dismiss the arguments about preventing schism and the importance of peace. We may be headed for a head-on collision that will break us. Therefore, a reasonable compromise is, in my view, first anchored in substantive arguments (the proposed reform is extreme and bad). But even someone who fully agrees with it should temper it—because he too must consider those who disagree and fear its consequences. As noted, the consequences will be bad for both sides; cooperation is not only an ethical imperative but also maximizes each side’s benefit and their joint benefit.

There are very true claims that the left did not tend to consider the right when it held power—and suddenly now, from a position of weakness, it demands consideration and dialogue. There weren’t too many opportunities to behave thus (the right has held power for many years), but it’s worth recalling Ehud Barak’s government, the Disengagement, Oslo, and other decisions adopted coercively and non-transparently—using the bulldozer of rules and powers the law provides, with no dialogue and no consideration of other views. Not to mention quite a few decisions by the Supreme Court, legal advisors, the prosecution, etc., adopted without authority and coercively. The dramatic governmental and judicial revolutions they conducted, as Daniel Friedmann wrote in his survey, were carried out as judicial legislation—that is, legislation with no debate, no bill text, no elections, no social or public consent—and at times in direct contradiction to the legislator’s words. There was far less dialogue there than in today’s Knesset. Somehow, now that the sword is over their heads, all these “righteous ones” remember how necessary dialogue is when pushing legal revolutions and drastic steps. No wonder frustration on the right is great and resentment strong toward this demand. But as I said, if we continue the chicken game we will crash. Therefore, we must rise above these frustrations—for justice and truth aren’t worth a crash. It’s frustrating and unfair, but we really have no choice. As the saying goes: on a (single-lane) road—don’t be right, be smart.

[1] Mainly in academia. See, for example, the aforementioned position paper by Netta Barak-Corren here, which contains a systematic and balanced analysis of the problems, sets out the theoretical underpinnings, and even proposes more balanced solutions. Below I’ll also refer to Daniel Friedmann’s position paper, broadly sympathetic to the reform but recommending tweaks to details. Incidentally, in recent days I read that Barak-Corren and another group of relatively conservative jurists from several academic institutions (mainly Bar-Ilan and the Hebrew University) are in dialogue with Yariv Levin on a more balanced, sensible model. After reading her paper I also wrote her a few of my comments; it seemed we had near-complete agreement, but because she is still revising she asked that the comments not be published for now.

[2] The tyranny of the majority and the tyranny of the state are not exactly the same. Tyranny of the majority is when law and the executive act according to the majority’s values and for its benefit against some minority. Tyranny of the state is not necessarily tied to values and laws but also to the treatment an individual citizen receives from the authorities. There are various critiques of the Court that it focuses on one more than the other, or vice versa.

[3] This is strengthened even more if we realize that the majority and minority differ from decision to decision. In every decision taken in the state (as in a city or community), opinions divide among different people. So in decision A there’s a certain majority against a certain minority, while in decision B there’s a majority of other people against a minority of other people. Clearly, without the entire public’s consent to this whole “game,” there is no one public—and the majority has no mandate to decide for the minority.

[4] Consider how hard it is to change gun laws in the U.S., despite their terrible consequences. They are anchored in the Constitution, and as such the process to amend them requires thresholds that cannot be met. Now one can see there is a certain institutional logic to this “madness.”

[5] In his book of that name, published by the (conservative, of course) Shalem Press. Note that this distinction characterizes conservative thought—in contrast to our reality, where the conservative camp focuses on rules and theory and ignores practice. See more on this below.