The Four “Michi” Laws (Column 517)

In several recent questions I needed to distinguish between theoretical considerations and practical considerations, and the pitfalls that stem from failing to distinguish between them. I thought it appropriate to do this more systematically. It reminded me of a post I received that defined two laws referred to there as the “Michi Laws,” and here I will add two more. At the end of the column I will touch on the implications of this distinction for the hysterical fears regarding the emerging coalition, and the need to examine those as well in a balanced manner.

The First Two Michi Laws: The Straight and the Inverse

A few days ago I was sent a delightful post by a Jew named Elishav Rabinowitz (I don’t know him), who formulated and presented a law he named after me: the Michi Law. The law states that in any ideological debate, online or off, each side will present its own approach in its optimally ideal form, while judging the other side by its on-the-ground performance. The basis is that theory is generally perfect (at least in the eyes of its author), whereas practice always fails due to real-world constraints and its implementation suffers from flaws. Therefore, if I favor a certain side I will present its perfect theory, and if I wish to point out flaws in the rival I need only present their actual conduct. This is the Straight Michi Law, but Elishav added there the Inverse Michi Law as well.

When you want to frighten, you present the other side through its theory and ignore the moderation that usually occurs at the practical level. By contrast, for our side we will always point out that even if the theory is a bit extreme (never very, of course), the practice is always more tempered and balanced. In short, when the criticism is of the theory, we’ll ignore it and focus on practice; and when the criticism is of practice, we’ll always present the theory.

So What Should We Do? The Third Michi Law

The right way is, of course, to compare theory to theory and practical implementation to practical implementation, each on its own. Sometimes our topic is the theory itself, and then it is indeed right to focus on theoretical comparisons. Sometimes our topic is practice, and then it is right to focus on that. But adherence to these two Michi Laws addresses only the intellectual honesty of the discussion—which I by no means belittle. To ensure we do not form an erroneous overall conclusion, there is a third law (which can also be discerned in Elishav’s formulation): we must always take into account only the problematic plane (for the side we oppose) or only the positive plane (for our side), i.e., refrain from considering both planes. This law essentially tells us that judgment and stance-forming that focus on a single plane are mistaken (in particular, do not focus only on theory—and perhaps not only on practice either). If we take both planes into account, we will likely be less afraid and discuss things in a more balanced and considered way, and perhaps also reach more reasonable conclusions.

Thus, for example, one can judge Halakhah by the instruction to kill Sabbath desecrators, or to kill the Amalekites including women and children—and this is perfectly legitimate criticism. But one can always say that in practice this was never truly implemented, and the halakhic decisors also gave us tools to evade it (to execute one must meet conditions that are almost impossible, and it is no wonder that a Sanhedrin that executed one person in seventy years was called “destructive.” As for Amalekites, there are already quite a few restrictions). Neither plane stands alone, and full judgment must resort to both.

These three Michi Laws are formulated cynically. They instruct us how to behave if we wish to act improperly. One can apply any one of them and reach the desired, biased outcome. The “meticulous” (that is, almost anyone who opens their mouth) take care to apply all three. These laws are not only instructions for the novice demagogue; they also present a reliable and authentic description of what actually happens in the field, where all sides make sure to act improperly from every direction and to obey the three laws of demagoguery.

For the sequel I will now formulate the three Michi Laws in their true (non-cynical) wording, that is, the instructions for proper conduct (not demagogic conduct):

1. Compare theory to theory (and not to practice).
2. Compare practice to practice (and not to theory).[1]
3. To form a bottom-line stance toward an idea or a group, take into account comparisons on both planes.

And now to another plane of the relation between theory and practice, which is the fourth Michi Law.

The Fourth Law: On Adhering to Theory

I have noted more than once (see, for example, in column 507) that ideological conduct that clings to theory may be admirable (these are people who do not compromise and adhere to their values), but it is childish and dangerous. Such conduct characterizes youth movement kids, the Hilltop Youth, the “shawl women,” or sectarian thinking—particularly that known as “the Line” (“ha-Kav”). Mature and balanced adults understand that even if their theory is perfect (which itself is usually untrue—except for my theory), practice is more complex, and therefore one must not apply the theory to it simplistically, and usually it is also not right to apply it in full. Not only because one must flex before real-world constraints, but also because the theory itself is imprecise. Common sense and practice must play an essential role in determining the correct behavior (see this at the end of column 62). Theoretical laws are abstractions, and at the practical level one almost always has to deviate from them—and as noted, sometimes this is not even a compromise but the ideal way ab initio. The reason is that you cannot fit proper conduct into a system of formulated laws; by definition, such laws are an approximation. Incidentally, in that column I remarked that contrary to the common image, the Haredim in fact usually conduct themselves in a very non-ideological way, flexing quite a bit when necessary.

So this is the fourth Michi Law:

4. When determining how to act, first consult the theory—but do not rush to apply it as is. Sometimes it is important to look at practice and only then decide, with common sense, how to proceed.

It is easy to see that this law is intimately related to the first three, since one cannot separate proper judgment from proper conduct. Yet the former deal with judging others’ conduct and positions, while this one concerns determining my own conduct and positions.

Before I continue, I wish to address a bit the “hermeneutic meanings” (that is, not the laws themselves, but the source in the Holy Writings from which they are derived).

The Sources of the Michi Laws in My Holy Writ

The source lies in several places in this holy domain. The first law (the straight one) is presented most clearly in my column 356, which deals with statements by Rabbi Ratzon Arusi (this ailment is chronic with him; see also columns 84 and 219). I pointed there to his systematic policy whereby he proves the superiority of the Torah and Halakhah over democratic conceptions, particularly in the State of Israel, while consistently comparing the theoretical Torah law (which was never implemented, and were it to be implemented would of course have serious problems like any practical implementation of theory) to the failures of modern conceptions that stem from practical constraints accompanying their on-the-ground implementation. Thus, for example, he ignores the meaning of the halakhic requirement for warning and the draconian rules of evidence prior to punishment, which empty deterrence of effect in the halakhic system. Halakhah, of course, corrects this at the practical level—since theories, as is known, are not meant for simple application—through the “law of the king” and extra-legal punishment. But those are practical corrections (the inverse law), and the halakhic theory is indeed problematic. Yet Rabbi Arusi takes care to examine the other’s practical conduct against his own theory. Thus it is very easy and tempting to explain that our Torah is superior to any other system, for it forbids murder and theft and obligates love, acceptance, and respect for the stranger, and more wonderful values; whereas the wicked of the world murder and steal and do not respect foreigners. Wretched systems that they are! Thus we will always come out looking good, of course.

There I also noted, regarding the third law, a factual remark. Check those places where one can find real-world implementation of our perfect theory (the Torah and Halakhah), such as the Chief Rabbinate, the municipalities of Bnei Brak, Beitar Illit, and Modi’in Illit, and more. As is well known, the conduct of these institutions is perfect, and of course there is no room to compare them to the conduct of other institutions and municipalities that operate according to the modern system, heaven forfend. But none of this troubles Rabbi Arusi, for his theory is perfect—do not confuse him with facts and on-the-ground implementations. Q.E.D.

You can find the source for the second (inverse) and third laws in column 507 (on the moderation of Ben Gvir and Ra’am), and in particular see in the comments the (entirely predictable) responses that insist on applying the laws in their cynical formulation, that is, judging the other by theory and ignoring his practice. Below I will touch on the fear-mongering campaign taking place in these very stormy days against the budding government, which is based almost entirely on theory while ignoring practice. How convenient! Needless to say, this occurs in the other direction too. See the Bibists’ fear-mongering against the inclusion of Ra’am in the previous coalition, which relied on the sacred texts of the Muslim Brotherhood while splendidly and completely—but typically—ignoring its conduct on the ground. Incidentally, in the columns mentioned I conducted a similar analysis for Ben Gvir, the Haredim, and Mansour Abbas, to teach you that there is a way to overcome biases on both sides and to adhere to the laws in their true (non-cynical) formulation.

Thus far we have seen the sources of the first three Michi Laws, and thanks are due to the said Elishav for formulating and presenting them. The public’s merit depends on him, and may his merit protect us all so that we be saved from all the evils of theory by means of matters of practice. As noted, in this column I wish to address the tension between theory and practice from additional angles arising from current events in these very days, and as we will see this is chiefly related to the fourth law. We can now also find a source for it in this holy domain, that none be left behind.

In the remaining part of the column I will review several examples that recently came up on the site, and through them illustrate the fourth law (and, by implication, the others as well). The first example concerns the agreement with Lebanon, and the others all belong to the threats posed by the emerging coalition to the judicial system. I will end the column with the hysterical expectations from the emerging coalition, which likewise implement to perfection the Michi Laws, from which no place is empty. Beforehand, a note on terminology.

A Terminology Warning

From here on the discussion will address the dispute over the judicial system, where the emerging coalition advocates clipping its wings and limiting its powers, and the “change” bloc opposes this (not quite accurate, but for our purposes it will do).

In this discussion I will use the terms “the Bibi bloc,” or “the Bibists,” not necessarily as a pejorative (though in my eyes it certainly is), and “the opposing bloc” (anti-Bibi). I intentionally do not use “right” and “left,” as the public discourse attempts to present it, when people say the right won the elections. That is, of course, nonsense, because the right won long before them. The elections were not fought over right and left. Using those terms to describe the political dispute is nothing but capitulation to a deliberate demagogic deception from the Bibist side. So what is the truth?

Among the Bibist bloc there are also right-wingers, but the bloc as a whole is certainly not “right.” For example, all there espouse blatant socialism in supporting Haredim who do not work and do not give their children tools to make a living in the modern economy and contribute to it—thus gravely harming GDP. In addition, most support religious coercion, a very non-liberal act. Some favor denying rights to various populations (Arabs, LGBTQ people)—also not the pinnacle of liberal right. Some are not right-wing in the diplomatic sphere (the Haredim). So what unites this mixed multitude? Not a right-wing outlook, but support for Bibi (or opposition to his opponents).

By contrast, the anti-Bibi bloc is also mixed; parts of it include people with a very right-wing economic and diplomatic outlook (much more than Likud). Most oppose coercion and hold liberal positions (that is, “right”). The use of “right/left” here is capitulation to intentional Bibist demagoguery that portrays anyone who does not want Bibi as “left” (for some reason that word sounds threatening). So what does unite them? Opposition to Bibi, of course.

The conclusion is that politics today does not revolve around the right/left line, which has long ceased to be relevant (there are no real disagreements in the public or between the parties on the diplomatic questions), but around the pro- or anti-Bibi line. That—and nothing else. Therefore my terminology in the dispute over the judicial system I now discuss will be “the Bibi bloc” and “the opposing bloc” (nicknamed the “change” bloc—i.e., change of the person occupying the PM’s chair).

A. The Agreement with Lebanon

The agreement with Lebanon was formulated and signed during the caretaker government headed by Yair Lapid, and the question arose whether it was appropriate to do so and whether it had to be brought for approval also in the Knesset and not only in the government. Lapid argued that the opposition was acting irresponsibly and therefore he decided not to bring the agreement to the Knesset for approval (but only to lay it before it for review, per the Attorney General’s instruction). This decision aroused much resentment, for the dispute over the opposition’s conduct depends, of course, on differing positions, and it is unreasonable that the government—by nature opposed to the opposition’s conduct—would adopt, because of that position, conduct that is improper by democratic norms. The Knesset was elected by the public and the public must approve the agreement—especially when the current government has no majority in the Knesset (and apparently not in the public either, if one considers the results of the elections held since). On the site I was asked about Lapid’s claim—whether I think it is proper to act thus.

I will preface by saying that this agreement also smells highly problematic to me (though that is a claim of the Bibi bloc—go figure: even a stopped clock…). Indeed, the agreement’s ramifications do not seem dramatic to me in any sphere (neither economic nor security), and so there was no urgency to sign it during a caretaker government; but for that very reason the Bibists’ hysterical opposition to it is demagogic, true to form. I am not inclined to put much trust in the declarations of politicians, AGs (especially Baharav-Miara, who seems very biased in favor of the government that appointed her), and army men who tell me this is essential for national security. Overall, I have no information, of course, and perhaps they are right—but I do not trust them. I preface all this in order to say that my discussion here concerns the morality of the act and of the procedure that accompanies it, which must be conducted separately from the substantive discussion of the agreement’s quality itself (see, for example, the example of returning the Golan brought in column 41, and more on spurious correlations).

In my answer there I mentioned Asa Kasher’s remarks supporting Lapid, and I brought Asher Cohen’s response, who detailed the arguments against Lapid and explained that Kasher’s words and Lapid’s conduct are infuriating and harm democratic principles. Regarding their dispute I wrote that ostensibly Asher Cohen and the Bibists are right. The Knesset is sovereign and the position of one side cannot permit it to ignore the Knesset. That is precisely the point of contention—whether the coalition or the opposition is fit to run matters. From the perspective of democratic thought there is no doubt that Asher Cohen and the sewer-dwellers are right.

Yet at least at the practical level it is not so simple. We must recall the fact that by law the government may approve the agreement without the Knesset (so the AG ruled). If so, whether to bring it to the Knesset is the government’s discretion. In such a case it has the right to think the opposition is not acting in good faith and not bring the agreement to the Knesset. It is reasonable that one must not use that assumption/position to skip over a binding law or proper procedure; but here the law itself leaves this decision to the government, and thus it is within its rights to factor in its assessment of the opposition. Needless to say, it is also quite right about this. The opposition has already clearly demonstrated unprincipled conduct by voting against laws it itself supports, solely to oppose the government. As is known, our Bibi did not bother to carry out a proper transition with Bennett and presented him as an illegitimate PM, and other disgraceful behaviors—true to his form. Thus they proved, quite unequivocally, that the good of the country interests them not in the least. This is a plain factual claim, not merely a political position or assessment. So why entrust these creatures with the fate of this (in Lapid’s view) important agreement—especially if the law permits not doing so?!

Dear reader, assume for the sake of the discussion that you are the PM and you sincerely believe the opposition is unprincipled and corrupt. That is, for the sake of the discussion I assume this is truly your stance, not merely a political statement. On the agenda is an agreement you deem very important economically and security-wise, and the timing is critical. Under those assumptions—is this not what you would do?! Needless to say, in the reverse case Bibi would do exactly the same—even where there was no justification—and his devotees would, of course, applaud him in a Greek chorus. If you merely use the claim that they are unprincipled to avoid bringing the agreement to the Knesset, that is improper; but if you truly believe they do not act in good faith, I struggle to see why take them into account when you are not required to do so.

The truly important question is entirely different: may a government take a step that a majority of the public—or of its representatives (which is not the same thing)—opposes? Unlike the ceremonial questions about bringing the agreement to the Knesset, which everyone discussed, this is indeed a difficult question. In my view, the principled answer is negative. The government and the Knesset act by the people’s authority; therefore, it is not legitimate to act in a way a majority of the people opposes.[2] However, if there are relevant data not open to the public and—truly, in my assessment—were the public exposed to them it would agree (note: not assuming the majority is mistaken, but that it does not see the full picture and would agree if it did), then it seems right to decide even against the majority’s current position.

In any case, this is an example of distinguishing between theoretical and practical discussion. In theory it is certainly proper to bring any agreement to the Knesset, for it is sovereign—whatever you think of it and its positions. But in practice there are situations where it is not right and even harmful to apply the theory. Now we can apply the Michi Laws: whoever wants to attack the government focuses on the theory and declares sanctimoniously that the Knesset is sovereign (which would not interest him in the slightest were he in power), and of course crudely ignores the practice (that we have an opposition behaving outrageously). Whoever wants to defend this conduct focuses, of course, on practice and ignores theory; indeed, he will explain, with logic and proofs, that theory too is on his side. But the Michi Laws taught us that the right way to judge and to act is to take both planes into account and thereby reach the conclusion that perhaps theoretically it is proper, but practically there is room to reconsider.

The question of balance is not simple, since the theoretical consideration is also important (see below the discussion of the “veil of ignorance”). Therefore, if the harm of bringing it to the opposition is not great, then the harm to the democratic process from ignoring it will outweigh and one must act according to proper rules and norms. Note that under this mode of thought, in principle one could say the government might ignore even a binding law—not only a non-binding procedure as here. If life-and-death is at stake, and considering democratic rules and the opposition would lead to irreparable harm, that could override even laws. Hence there is no binary answer, and everything depends on the balance. I won’t address that here—it is complex and not our concern; my aim is only to present both sides and the discussion’s complexity. Neither side here is simply right or wrong.

B. Critique of the Judiciary and the Override Clause: A Prelude

The hottest topic these days is the struggle over the character of the judicial system. The discussions include clipping the High Court’s (Bagatz’s) wings; criticism of the State Attorney’s Office; making legal advisers political appointments; increased political involvement in appointing judges; and in recent days, in particular, the “override clause.” I will focus on it, but it is a paradigm for the entire discussion about the judiciary. As we will see, here too the Michi Laws must be applied.

The emerging coalition (the Bibi bloc) deals with this extensively as part of its operational plan for the judiciary. The opposition (the anti-Bibi bloc) and the judiciary itself threaten us morning and night with the apocalypse that will befall us if such a clause is legislated and if the changes the Bibists speak of (not Bibi himself, incidentally) are adopted. The anti-Bibi bloc (not all; there are critics of the system within that bloc too: Liberman, Elkin, Sa’ar) argues that clipping the judiciary’s wings is dangerous, as there will be no force to balance the government’s arbitrariness. We will all be delivered into the hands of a transient Knesset majority, with no possibility of review over its decisions and laws. Against them, the supporters (the Bibists) argue that currently it is the judiciary that needs a balancing force, having taken upon itself the right to strike down Knesset laws and having used it over twenty times to date. Moreover, in deliberations about a candidate indicted in criminal proceedings (Bibi, of course—everything is personal), Bagatz implicitly assumed it has authority to invalidate even a Basic Law (!). One must understand that this is truly scandalous from the perspective of legal thought. An ordinary law is invalidated because it contradicts a Basic Law. But invalidating a Basic Law seems entirely arbitrary. Bagatz becomes the supreme legislator without law and the Knesset authorizing it and without being elected by the public. This is a very logical and justified critique by the Bibi bloc of the judiciary. The other bloc’s voices (at least in public discourse) are not heard against this bizarre position.

The critics (the anti-Bibi bloc) argue that the Knesset can always legislate another Basic Law to prevent invalidation of other laws under it; it can also pass a specific law to reinstate a law that Bagatz struck down (no one disputes this is possible under the current situation—though if Bagatz can invalidate a Basic Law I don’t see what cannot be invalidated). It is true that, factually, the Knesset hardly does this, hence the impression of a weak Knesset. But that is a mistake. The Knesset does not do this because it lacks a majority to do so. The Knesset has chosen to be weak, even though it certainly has options. If so, it is not true that Bagatz rules the Knesset. The Knesset decided to limit itself, and if that is a mistake, it is its problem. Note that to get around Bagatz in this way only a simple majority is needed—that is, a coalition majority suffices—and it turns out that even that is usually not mustered. In most cases there is within the coalition some Kahlon or Gantz (and actually Bibi did this more than once), who prevents harming Bagatz’s and the judiciary’s powers. In light of this, fears of the emerging coalition are more understandable, since there is not expected to be such a statesmanlike factor there (except Bibi, whose record is very much such). The implication is that in principle there is a balance to the Knesset’s power, performed among the parties and individuals within the Knesset, and thus there is no need to leave it to Bagatz.

Another claim is that the tyranny of Bagatz (incidentally, a lower court can also strike down a law) is manifested only in striking down laws and returning the baton to the Knesset. Bagatz cannot legislate, and in that sense the danger from its tyranny is far lower than that posed by the tyranny of a Knesset majority that can legislate whatever it wants. Beyond that, Bagatz has no direct political or economic interests. Its members certainly have worldviews, and these are indeed reflected in decisions; but that is still far from the danger of tyranny by a Knesset acting for direct interests.

I will add that there are, of course, several versions of override clauses around the world (see a short survey here), some more draconian and some less. Discourse about an override clause without defining which is quite vague and prone to demagoguery. There can be a clause that categorically denies Bagatz the possibility of striking down laws; one that is added to a specific Basic Law and not to all laws; one that requires a special majority to override Bagatz, with various proposals for how large that majority should be: 70, 65, or 61 MKs. As far as I know, there is currently no serious proposal that suffices with a chance majority (i.e., less than 61), including from the most militant elements in the emerging coalition. Conversely, even the greatest knights of Bagatz accept as legitimate an override clause with a 70-MK majority. So the dispute is rather limited, and the impression as if there is a clash between polar conceptions is largely illusory. It is a clash between two sentiments more than two practical outlooks. Now let us enter our perspective in this discussion.

The Override Clause: The Theoretical Plane

Here I wish to focus on two claims raised by those who support an override clause, both concerning the principled (theoretical) plane:

1. Bagatz is not an elected body, hence its tyranny is more problematic. The Knesset stands election by the people, so its tyranny is more legitimate. Moreover, the people can ultimately judge its decisions (in the next elections), which cannot be done with Bagatz.
2. Factually, such clauses exist in many places in the world and none has collapsed yet. The rumors of democracy’s ruin or death are greatly exaggerated.

At first glance both claims are correct and very persuasive. I think that from the perspective of democratic thought the Bibist side is entirely right, and the opposing bloc’s claims sound hysterical and detached. The democratic structure certainly allows for such clauses and they may even be called for. One can even ask what they would say about a Bagatz that strikes down liberal laws? Any initiative the Knesset wishes to promote can be blocked in Bagatz merely due to the justices’ worldviews. Ostensibly, they are not chosen for their outlook and their role is not to promote one—but at least until a few years ago everyone knew what outlooks dominated there (this has shifted somewhat in recent years).

Let us view this debate from another angle. The need for an override clause is intimately tied to Bagatz’s composition and the worldviews of its members. Therefore, as part of the change the emerging coalition demands in the judiciary, it wants greater Knesset involvement in appointing judges. This demand also meets howls of despair from the anti-Bibi bloc about democracy’s destruction. But the Bibists quite rightly argue that if Bagatz is involved in legislation, it necessarily injects outlooks and values; therefore it is only natural that its members be chosen based on their outlooks and not only on legal ability (which is ostensibly the opposing bloc’s stated position—yeah, right). Those same criers insist on giving Bagatz political power but not letting politics be overly involved in choosing the judges who serve in it. A body that does not reflect the public’s positions will determine the values by which it operates. This debate often features the claim that in various places around the world it is quite common for judges to be chosen by political actors (in the U.S. system it is entirely a political issue). If so, here too the theory definitely supports the Bibi bloc’s position.

Similar claims are raised about appointing legal advisers as political at-will positions. This claim of the Bibi bloc also sounds very reasonable. Originally, a legal adviser is an adviser, not a decision-maker. If he or his superiors deviate from the law, that is what courts are for. Today legal advisers wield excessive power, and many rightly object to this. It should be remembered that empowering legal advisers was done by Bagatz as well, without any legal basis. This is another of its power grabs.

The conclusion would seem to be that the Bibi bloc’s claims about the judiciary and the reforms it plans are entirely justified. The anti-Bibi bloc appears to be trading in empty slogans and baseless hysteria. Many argue—and to a large degree rightly—that fears for democracy are nothing but fears of losing the power they still have in the judiciary (as their political power wanes). But I want to argue that nevertheless this conclusion is a bit hasty. To see this we must note that the discussion thus far has focused on the theoretical plane. Now, per the Michi Laws, we must also examine the practical plane, and it turns out the sting lies precisely there.

The Override Clause: The Practical Plane

In my answer to a question on this topic I wrote the following:

The discussion can proceed on two distinct planes: (1) What is proper from the perspective of democratic thought—the theory. (2) Whether it is right in today’s Israel. These are different questions and the answer will not always be the same. Our political system is utterly rotten, and handing it power is very dangerous. There is not an ounce of responsibility or principled judgment there, and giving them unlimited legislative power is a tried-and-true recipe for all manner of trouble. They change laws at every turn to suit their convenience, including Basic Laws. This is not the conduct of a normal, responsible system; it is in fact the destruction of the state’s legal system. Citizens have lost faith in the laws and their force, because they see that the legislator is not subject to law but twists it at will and convenience. Why should a citizen obey such a law? Law loses its meaning if a politician can bypass it whenever he wishes by changing it with this or that chance majority and according to this or that interest. Therefore, I would very much try to prevent them from acquiring legislative power as much as I could, though this is not in my hands. I am certainly not enamored of giving the power to a court that is not elected by the public, but that is a principled, theoretical difficulty, and opposite it stand difficulties on the practical plane.

So here too, the situation resembles what we saw in the previous example regarding the agreement with Lebanon. If we factor in our practical situation, prevailing norms here, and the actual conduct of our political system and Knesset, we must be very cautious with comparisons to other places. It is true that from democratic theory there is no principled bar to an override clause and to political judicial appointments, but in our current situation this may lead us to a complicated place. Recent Knessets had no qualms about overusing their power, changing laws, including Basic Laws, according to contingent interests that shift every term in the opposite direction (see the discussion further in that thread on the override clause and also column 300). The Knesset does not hesitate to wield arbitrary power with a transient majority. The Attorney General appointed to the last government appears downright toothless and makes patently problematic decisions. Hence the need for checks and balances in our situation arises not only from theoretical reasoning but from considerations that take into account our de facto situation here and now. Even if in theory there is no bar to legislating such a clause or to political judicial appointments, it is not certain that implementing it in our situation will not lead to very problematic outcomes. Comparing theoretical principles and other countries focuses on the theoretical question—whether democracy allows such steps—but there are differences in circumstances and norms within which we want to apply them.

Leftist hysteria is presented as if such steps contradict democracy’s structure by its very essence. That is nonsense, of course. But in today’s circumstances here, these fears are certainly understandable. Who will stop the Knesset if it legislates an obligation to work on Sunday or Friday (Arabs or Christians)? Or requiring work seven days a week? If such laws can pass by a contingent, chance majority, then in the emerging coalition this is not entirely far-fetched. I do not predict that this will actually happen, and I do not at all share the anti-Bibist hysteria on such matters; but steps of less dramatic significance could certainly occur. Think of harm to LGBTQ people or to women; harm to open Haredim (the cellular reform—there is significant harm to human rights here); harm to converts and to kashrut organizations (the arbitrary conduct of the Chief Rabbinate); harm to ex-Haredim (who do not receive funding for completing studies, unlike regular Haredim); harm to Arabs in various spheres; unequal and improper funding for Haredim; and more. None of these is a cardinal catastrophe, but they are very problematic steps. Who will protect us from the tyranny of a contingent Knesset majority (which does not necessarily represent a majority of the public—certainly not on every decision) in a world where there is a too-draconian override clause?! Are the fears from majority tyranny in these milder senses so far-fetched to you? Therefore handing this gang unbridled power is quite frightening—and if I, who know them, am frightened, then those who do not know them and feed on threatening notions like “a halakhic state,” veils for women, and “Iran is here,” are surely very fearful.

A Note on the Tone of the Debate

Something very odd is happening. In almost all these debates, I think the Bibist bloc is entirely right. The opposing bloc ostensibly raises learned theoretical arguments grounded in democratic thought, but they do not, in fact, hold water. Usually it is nonsense. And the less the arguments hold water, the more the hysteria rises. I think this is no accident. Leftist hysteria that proclaims the universe’s and democracy’s ruin at every trifling matter stems precisely from the fact that there are no arguments on the merits. On the theoretical plane the Bibists are right, hence there are no arguments to raise against them other than hysterical cries. But my claim here is that the fears are real, and the need for checks certainly exists on the practical plane, even if democratic theory does not justify their claims. It would be better if the anti-Bibists told the truth, expressed fears, and did not rely on democratic principles fabricated in their fevered minds.

Who is to blame for this tangle? Apparently both sides. It cannot be denied that there is a sense that Bagatz sometimes goes too far (usually my sense is the opposite: that it fails to act where it should—like against the Chief Rabbinate), not to mention the State Attorney’s Office, the police, and the legal advisory apparatus. Hence the blame for the explosive situation lies both with the political system and with Bagatz, law enforcement, and the anti-Bibi bloc. All have well earned the criticisms of them. Still, what is at stake is achieving a very delicate balance whose purpose is to prevent the accumulation of absolute power in one branch of government (incidentally, in column 300 I explained that in Israel there are only two branches: the executive and the judiciary. We do not really have a legislature that oversees the other two. This, of course, greatly complicates matters and increases the need for checks that are required here). In such a situation, it is very important to listen to practical fears even when theory has spoken and even when acting according to the rules of democratic theory. Exercising power—even if theoretically justified—by either side is very dangerous. In the end the rope may snap and we will lose the minimal cohesion and the minimal respect for state institutions that still exist here.

I think this is what the serial idiot from Meretz, Yair Golan, meant when he said a few days ago that the Nazis rose to power democratically. He did not make a comparison to Nazis, as Bibi’s demagogues accused him; and the fact that he is indeed a certified idiot does not mean there is no justice to his words. He merely meant to point out that democratic rules do not always protect us and that obeying them is no guarantee of proper conduct. A completely correct claim—and I think it is precisely what underlies this entire debate. Teaching you that even a stopped clock…

Note: What About the Veil of Ignorance?

A fundamental moral principle is equality before the moral law. A moral principle should be applied uniformly in all situations and toward all persons and groups. This principle is expressed in Rawls’ “veil of ignorance” (according to which one must treat a person in a way that ignores his identity and views), as well as in Kant’s categorical imperative (the moral way should be a universal law), and more. So too regarding democratic rules. In essence they entail blindness to outlooks and local circumstances, and their chief meaning lies in their systematic and consistent application irrespective of the situation and irrespective of the parties’ outlooks. Their purpose is to regulate discourse and conduct; therefore they must be applied ostentatiously without regard to the sides in a given debate. This is basic fairness.

For this reason I was angry in the past at my leftist friend who did not wish to join the protest against Olmert after the Second Lebanon War because he feared the alternative would be Bibi; and just as he was angry at me, rightly, when I did not support the protests against Ariel Sharon in the First Lebanon War because he represented the right. The whole idea is that one does not change the rules for local considerations; otherwise this leads to the destruction of the democratic fabric as a whole.

In light of this we must examine the anti-Bibi bloc’s claims. We saw that the Bibi bloc relies on democratic rules, and in most cases it is truly right. The anti-Bibi bloc wants to apply here different, exceptional rules—just because the Bibists have come to power. Ostensibly, this is non-uniform, unequal, and therefore immoral conduct. The anti-Bibi bloc’s claim is that we must behave differently here than according to the usual democratic rules, because of the specific situation that has arisen here. Can this be morally justified?

This is not a simple question, and on its face the answer is negative. Indeed, for myself I am not sure I agree with them in this matter. My purpose here is to explain why it is not nonsense. To understand that the picture is not so clear-cut, I will recall what I have written more than once (see, for example, columns 408, 420, and more in several Q&As), that the categorical imperative (which represents equality before the law and the obligation to uniform conduct) is only one player in the moral arena. Sometimes there are considerations that override it. I will not go vote due to the categorical imperative (for my vote has no effect; see column 122, inter alia), if doing so will cost human lives (e.g., if because of it I would not treat a person in danger). In general, too-rigid adherence to rules is childish and unrealistic. There are situations that require an approach that deviates from the absolute, uniform rule, when ignoring the uniqueness of the situation can lead to severe results. Therefore, when we find ourselves in genuine fear of the consequences of using the usual democratic rules, one may consider deviating from them—a kind of “transgression for the sake of Heaven.” As noted, the implications are not unequivocal, and I do not intend here to take a stance for or against, but only to explain what the dispute is about. It is important to understand that there is a non-frivolous argument to be made by each side.

C. Near-Term Forecasts: Again, Between Theory and Practice

To conclude, I cannot refrain from a few forecasts regarding the emerging coalition, and as we will see, here too the Michi Laws must be applied. I will preface by saying that the hysterical fears about harm to the judiciary and about extreme security and diplomatic conduct are, in my view, baseless. The moderating factor in the emerging coalition (that is, in the pro-Bibi bloc) is, of course, Bibi himself. There is none besides him. In my assessment he will continue to act with moderation as he did in the past, and will not lend a hand to overly extreme reforms regarding the judiciary[3]—nor in the diplomatic and security spheres (he is, of course, the father of the submissive, spineless, and ungoverned in these spheres). So it was in the past, and I am fairly sure so it will continue. Fears of legislative changes affecting his personal trial are, in my view, hysterical and baseless (if only because I do not see any practical change that could help him). The same goes for fears of Ben Gvir and Smotrich in the security sphere and the expectations of racist conduct—these are, in my eyes, ridiculous. Their conduct is likely to be entirely reasonable. Their positions are not unequivocally racist (at least not those they voice aloud), and their security policy lines seem to me quite logical and certainly not immoral, as the hysterical anti-Bibi bloc accuses. It may be that their proposals will not be effective, and I am quite sure they will not be implemented. But even if they are, perhaps there will actually be an improvement compared to Bibi’s and his opponents’ failed past. In short, reality moderates everyone (see column 507), and Bibi as the responsible adult will in any case not let anyone do anything significant in these areas—or in any other. For this he has a proven record.

For our purposes it is important to understand that these exaggerated fears feed mainly on the talk and theories that underlie the outlooks of the Bibist bloc’s members. You can find there fundamentalist elements and racist hints, as well as statements of too-militant far-rightism—and that is probably what fuels the fears. But when one relates to the practical plane, as is proper per the Michi Laws, the matter loses much of its force. Incidentally, my forecasts will soon be testable. The coming coalition will be a decent empirical test for the Michi Laws.

As I explained, my problems with the emerging horror-coalition are not in the sphere of extreme security and diplomacy, and certainly not in the arenas of racism and the other accusations coming from the world and fueled by the left here in Israel (“the far right seizing control,” etc.). As noted, Bibi is one of the most moderate and responsible politicians here (in my view, too moderate and hesitant). My fears are focused mainly on implementing problematic policy in matters of religion and state and on upgrading the status of the Haredim. In this area no one will moderate the expected Haredi/Hardal rampage. And of course there is also the fear of corruption and of Bibi’s own culture of lies and fakery. I assume the progress we have seen in integrating the Haredim (education, military service, free connection to phones and media for those who want, addressing ex-Haredim) will stall, and certainly will not improve. Their extortion will likely intensify dramatically—and we already hear about that. Progress in women’s equality and conversion (the conduct of the Chief Rabbinate and its courts), the attitude toward LGBTQ people to the extent dependent on legislation and the Knesset—these too will likely stall (incidentally, in the most radical parts of the current situation this is even welcome; the progressives often exaggerate—even if their critics do no less). It is very likely that a lot of money will trickle away to unclear directions and to purposes that only drag us backwards, and so on. But that’s it. In short, it does indeed depress me that a significant part of the public knowingly chooses these loathsome creatures—but relax: there will be no catastrophe, no disaster, nothing irreversible and terrible. Per the Michi Laws, the State of Israel will survive the coming coalition as well, and whether you like it or not—it will not change much. The existing and expected troubles are bad enough; let us not add to them.

[1] Due to the symmetry of equal treatment, there were already commentators who claimed that the first two laws are merely two formulations of the very same principle.

[2] One must discuss agreements with the Haredim, for example, which the majority surely opposes. But there it is give-and-take negotiations, and the assumption is that the result is acceptable to most of the public as the price for advancing interests it desires. This too has limits, in my view—but they are very hard to define. The same applies to legislation that passes the Knesset but that a clear popular majority opposes. In my view such a law is illegitimate.

[3] See, for example, his words here. The supposed contradiction the post’s author sees between that and Bibi’s current conduct is nonsense. There is no contradiction between a desire for an independent, strong judiciary and the need to limit it when its power is excessive. Beyond that, as I wrote, practically speaking he will, in my assessment, continue to protect the judiciary.