The Game Theory of the Separation of Powers (Column 548)
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.
Discussion
Truly, the main problem is the progressivism (the lack of truth, the lack of integrity, the purposive interpretation of the law) of the legal and academic world. In the current situation it is only getting worse and worse, regardless of the behavior of any government whatsoever.
I’m bringing here a quote from Nadav Shnerb from his Facebook page (with pretty much everything he writes there I agree):
"Nir Shvalb asked me: ‘Do you support the (judicial) reform in full?’ I thought I’d use this question to raise a few points that have become clearer to me in recent weeks.
1. I am not familiar with the details of the reform ‘in full,’ and even if I were, I lack the experience and understanding that would allow me to judge its details. Even someone who supports going to a certain war, including one of the politicians who decided to go to war, does not thereby necessarily endorse Brigade X’s maneuver within Operation Y. Like most people who have an opinion on the matter, I can mainly address principles.
2. The main principle: sovereignty is one, and it must remain in the hands of the people through their elected representatives. An example I gave in several arguments: suppose that tomorrow a peace agreement with Iraq is proposed in exchange for burning all the forests in Israel. The government wants the agreement; the High Court strikes it down because of harm to the right of the weaker classes to recreation, or because of carbon dioxide emissions, or whatever you like. They try to reach a compromise through various mechanisms and fail. In whose hands is the last word? That institution—the one that has the last word—is called the sovereign.
In my view, anyone who thinks that in such an argument the last word should belong to 15 people chosen by a committee (in which, only recently and with great difficulty, the elected representatives achieved a significant share), people who cannot be fired and are not required to answer to the public, is an uninhibited supporter of dictatorship, and all the diagnoses of Messrs. Hodak and Raz fit him exactly. At the end of the day, after all the mechanisms of checks and balances—which are indeed worthy and important—you cannot avoid such questions, and if my example is unsuccessful you can easily invent ten like it yourself. In my opinion, a restoration of a reasonable system of government, after Barak’s creeping coup, must guarantee this simple point.
3. The speed of the change is indeed a problem. Even important and welcome changes are better made with maximum agreement and in stages. Every step in a complex system always has unforeseen consequences, and it is better to let the system cope with retail changes, not wholesale ones.
In the current circumstances, where the anti-reform side is in an inflamed ecstasy, it does not seem that there is anyone to talk to or anything to talk about, but that is of course my point of view, which may be mistaken or biased. If I were a politician, and if I thought there were any partner for dialogue, I would propose gradual change through discussion and over time, but on one basis: the immediate restoration of the constitutional situation in the State of Israel to 1992—or God knows when—to the period before the beginning of Barak’s revolution, including the cancellation (temporarily at least) of the Basic Laws or of their constitutional status. You do not negotiate with someone who stole from you while the money is still in his pocket. Israel in 1992 is something we all know. Anyone who thinks that during that period we had a dictatorship or an authoritarian state in Putin’s style is delusional. That could be a reasonable starting point.
4. Another major problem—much harder to solve—is the interpretive freedom the judges have taken for themselves. In legal circles, and in the academic legal world, the insight that judges reserve for themselves the right to ‘purposive interpretation,’ that is, to a false interpretation of the words of the law according to the social interest as it appears to them, is a first principle. In that situation, no law, constitution, or constitutional arrangement really has any meaning—all of them are collections of words to which judges will not hesitate to give a false meaning in a way not constrained by the rules of language or logic; in their eyes this is the supreme realization of the judge’s role. What to do, I do not know, but one cannot ignore the elephant in the room."
Truly, the main problem is the progressivism (lack of truth, lack of integrity, purposive interpretation) of the legal and academic world.
And regarding clashes between the branches, he actually has a solution:
"All right, let’s talk about the doomsday scenario—the clash of the branches.
Broadly speaking, this is a situation in which the government and the Knesset make a decision or enact a law that, according to the High Court (in their view, under the other laws they enacted), the Court has no authority to dispute, while the High Court makes the opposite decision. Then the real question arises: whom will those who hold the power of violent coercion obey—namely, the commanders of the army and the police?
I think there is nothing to fear from such a moment. On the contrary—we should aspire to it, and if and when it arrives, and the commanders of the security forces obey the High Court, one should surrender to them immediately. No civil war is needed or required.
Why? Because the result will be fatal for them. Such a situation will expose the reality as it is: it will be clear to everyone that the State of Israel is a military dictatorship run by an unelected elite, and that the political game is a façade concealing the true rulers behind it—the jurists. It will transfer public responsibility to them—from now on every politician, in every situation, whether right or wrong, will blame the High Court for every failure, and the public will begin to demand answers from them, not from the government. People will understand that the central political question in Israel is not the majority in the Knesset but the composition of the High Court justices, and all political maneuvering will now turn there. I find it hard to believe that the jurists will be able to withstand the consequences of such exposure for long; perhaps even they will realize this at the decisive moment and retreat.
The trick in Barak’s constitutional revolution was to give Israeli citizens the illusion that they live in a state where decisions are made according to majority vote under certain rules, whereas in truth the real powers of government are being stolen away in favor of an unelected system of jurists. The basic argument was that the High Court does not rule, it only decides contradictions between different laws that the Knesset passed, and ‘if they don’t want that, let them change the law.’ Well then—it is time to discover what happens when they really do not want it and really do change the law. In the worst case, the factual situation will simply be exposed to everyone’s eyes—much better than the previous situation. We have nothing to lose here. Let the leftists win. Pyrrhus king of Epirus will gladly rent them a few surplus elephants."
I too thought of something along those lines. I thought there would not be a civil war because right-wingers do not have the strength to fight every lunatic. They prefer to save their strength for war against the Arabs, not for a war over an empty shell of power with a crazy group that does not want it.
I hope you can look at the issues honestly and not tendentiously; otherwise the discussion is pointless.
1. I mentioned it above here in the column, when I discussed the polls showing that a majority of Likud voters also oppose the pace and scope of the reform. Certainly a majority of the general public in the country does. Therefore leaning on the will of the majority as expressed in the elections is a pathetic excuse.
2. I heard him say it yesterday. Democracy will not be strengthened this way, only majority rule. I explained that this is where they are mistaken: majority rule by itself is not democracy.
3. There is logic in having the adviser cancel decisions. The question of who he is and how he is chosen is a good one that I did not deal with. I will only mention what I wrote in column 534 on the reform: the combination of positions of trust with the instruction that the legal opinion is not binding is absurd and unnecessary.
4. There definitely are limits on the judiciary, and beyond that there is not the slightest doubt that it restrains itself very strongly. One need only look at the facts and not the propaganda.
5. See 1. I already explained in the column that the dialogue cannot be conducted with the opposition. Therefore willingness for dialogue cannot be only a declaration.
6. Those examples were meant to sharpen the point. If in your opinion the mikveh ruling was mistaken, that is irrelevant.
7. The argument about the Knesset’s independence is absurd disingenuousness. Many have already pointed this out. When there is coalition discipline, and all the appointments of MKs to positions (also in the Knesset itself, such as in committees) come from the government and its head, there is total dependence. Of course the Knesset can disperse the government; that is like saying the government can resign, so it is not all-powerful.
8. We have a disagreement about the validity of law without integrity. You say that as long as the people can replace the legislator, he has authority. But that is exactly the mistake I am talking about. You assume that majority rule is democracy, and therefore the ability of the majority to replace the government is a sufficient guarantee for the validity of the law. I argued precisely that this is not correct. A logical mistake.
9. The level of integrity is not determined by anyone. It is a fact. The very fact that you define integrity through the rules misses the whole point. My claim is that integrity is beyond the rules. It is like saying that civil disobedience is justified only when the government or the Knesset determines that it is justified. Otherwise who will determine that there is justification for civil disobedience?! A logical mistake.
10. The article very much does take a position. It seems you did not understand what I wrote. This is a horror coalition, and that is so regardless of the reform and my opinion of it. This was already explained in other columns.
11. The left will not eat the dish it cooked (and that is indeed true, as I wrote). We will all eat it. The country is in danger of complete disintegration, and already today there are economically and socially irreversible processes. Whoever does not see this is blind or drugged.
Beyond your obsession with progressivism, which has already appeared here, if you are bringing these things here then apparently you did not read the column. I suggest you read it before responding to it. The entire column is a response to these arguments (most of which I agree with).
Good luck to all of us. If there are many such lunatics among the supporters of the reform (and it seems there are), then our situation is indeed grave beyond hope.
I read every word carefully. The emphasis is on his section 4. That is the problem with the existence of rules, and therefore there must not be a constitution here. It does not matter what is written in it. They will interpret it according to their agenda. Note that this is a problem of the legal world in general. In short, the claim is that the legal world as a whole has no integrity, in your terminology. Why do they so sanctify rules and laws? Because of emptiness. That is, once concepts of justice become relative and there is no objective justice (like objective truth), then the only things that remain are the empty laws and rules. In such a world there is room only for forceful clashes (no wonder the left is not willing to listen at all). Judges must be appointed from outside that system (let them study the laws of evidence and the statute books, but let them judge according to a natural sense of justice, and let them be elected directly by the people for four years like the legislature).
Maybe it’s not clear from the response, but this again is from Nadav Shnerb from his site. If he is a lunatic in your eyes, then who isn’t?
This is the familiar, well-known argument, and I partially agree with it. The question whether there will or will not be a constitution, and whether it is possible, is not important to the discussion. My claim is that there need to be rules regulating the relations between the branches, but they are not enough; there also needs to be integrity. By the way, in the absence of such rules the court will run wilder. And even with a constitution, you still need integrity.
Therefore, the very fact that you or he oppose a constitution means that you have confidence in the court—that it operates according to the constitution and without one it will do nothing.
An interesting column.
A note regarding “democratic culture”: I entirely agree that it is crucial, I’m just much less optimistic about the existence of such a culture among us.
There are entire populations here that in my opinion clearly lack democratic culture and values (e.g. Haredim, messianists, etc.), and in any case one must not forget that there is a democratic deficit here in everything connected to religion-state relations and the Chief Rabbinate.
Therefore I am less optimistic about our democratic future insofar as democratic culture is concerned.
My two cents regarding the “reform”:
A. It is impossible for such a reform to be carried out by a person whose trial is currently underway, a person who has something to gain from the reform (for example, he controls the choice of the Supreme Court president; for example, he controls the promotion of judges in his own case(!)).
B. It seems that for our elected officials, the reform is so they can pass personal laws that benefit themselves—Deri laws, Smotrich laws, etc. It is hard to assume they won’t use the reform, once implemented, to appoint more and more cronies to unsuitable positions (and there are examples).
C. Following from B, there is a tremendous danger (really!) not that Israel will become a dictatorship (which seems less likely to me right now, though possible, especially when I hear about the democratic consciousness of parts of the coalition), but that Israel will become a corrupt state, where mediocre people are responsible for running the country, and where everyone knows whom to pay and whom to flatter in order to get ahead. A state where excellence no longer matters, only closeness to the regime.
D. From that it follows that there will be a serious problem for productive companies to flourish here, and that is definitely a danger to the economy.
E. More generally, this coalition, by and large, does not represent Israel’s productive sector at all, and is trying to impose on it a reform it never heard about (yes, there was talk of such a reform, but it was never mainstream, and certainly not the central issue in any election campaign; most people did not think there was any problem at all in the justice system), and from which it instinctively understands the dangers (as I described above). In effect, the government is declaring war on the productive sector in the country. It is insane. Obviously people are considering leaving and protecting their money.
F. The coalition is run in an astonishingly amateurish way (for example, pretending to pass a budget, declaring in the Finance Committee that there is no problem in the economy), so it is no wonder they did not see the danger in proposing such a sweeping reform and rushing it through at record speed. Now all the damage that has been done and will be done is entirely due to their short-sightedness, mixed with stupidity, arrogance, and evil (the arrogance and evil were combined quite nicely in Rothman’s interview in “Haaretz,” though not the stupidity, which is represented rather respectably by other coalition members).
G. The talk about “dialogue” is completely pointless. They already passed the first part on first reading and will soon pass the rest. If they were prepared for compromise from the outset, why did they pass the law as it is? Why not pass a more reasonable law that would also have prevented all this madness? What is the rush to pass it so quickly?
H. If they really wanted changes, they could have started with discussions and said that after a year they would begin legislation—that would have put a deadline on the discussions, which could have been very effective, and in the meantime the public would have gotten used to / understood the need (to the extent that it exists) for the legislation.
I. From all the discussions I’ve had with supporters of the reform, I’ve understood that the motive underlying all this is revenge. Revenge for Oslo and the disengagement, and for the injustice done to Sephardi Jews. Revenge is no way to run a country of 9 million people.
Do you still hold the position you wrote in the column regarding the last elections, namely that there are no differences between the various parties because they all promote the same policy (in light of the current legislative attempt, of course)?
The idea in a democratic-liberal government is that it produces a structure in which even the side that lost the election feels safe and protected.
The moment a government is formed that says the majority it received permits it to abuse the minority (“trample/run over,” in Dudi Amsalem’s golden phrase), then the minority no longer accepts the government as representing it, and therefore from its point of view it has no legitimacy whatsoever to demand that it serve in the army or pay taxes.
These are theses very common among the Arab and Haredi minorities in Israel, and indeed we do not really see them contributing particularly to the state.
A minority under the tyranny of the majority has several ways to cope:
The first—civil war, which will lead to destruction and ruin.
The second—transition to separate states, Sudan and South Sudan style (or here, Modi’in and Modi’in Illit). In that case there will be a rich and successful state next to a poor and corrupt neighbor (cf. Modi’in and Modi’in Illit).
The third—despair and the minority’s departure, like the Christians in Lebanon who abandoned their prosperous country, and now the Shiite majority rules the country and enjoys inflation of hundreds of percent and economic collapse.
What all the options share is that in all of them the majority wins elections, tramples the minority, and ends up with economic ruin (how do you say “Pyrrhic victory” in Yiddish?)
In my humble opinion, the only realistic option is to continue maintaining a democratic-liberal regime in which both sides can go on living without feeling they are on their way to a Holocaust.
A wonderful text. I enjoyed reading it very much. I learned a lot. But I have a few comments.
First, it is not correct to say that the rules for amending a constitution can be changed by a simple majority. That was at the core of the discussion in the Mizrahi Bank case. The rules for amendment can be entrenched just as the rest of the constitution is entrenched. You might find interesting what Mishal Cheshin mentioned there in connection with the religious problem of self-limitation: creating a stone that God cannot lift.
Second, at the beginning you talk about the opposition’s cognition… that they are not smart enough to delve into it… The truth is that this is not a problem of intelligence and depth, but a problem of motivation. Yair Lapid probably does not really fear a civil war in which he will be thrown into a dungeon, and so his motivations are still at the highest level of Maslow’s pyramid—namely, being prime minister. He wants Bibi to fail, the government to fall, and chaos to ensue.
Third, I loathe the reform in the extreme, but I would have been fine with accepting Shnerb’s compromise and returning to an interim period of 1992 without the possibility of striking down laws for the sake of human rights. What frightens me is appointing judges whom Miri Regev, Deri, and Goldknopf like—and appointments like Yossi Sheli as head of the Central Bureau of Statistics. That would be a takeover of Israel’s justice system by the Haredim and the Likud Central Committee. I could live just fine with a justice system whose judges were all graduates of Har Etzion Yeshiva, but not with Haredi judges, judges who are students of Rabbi Tal (like Simcha Rothman), or judges recommended by the Likud Central Committee.
I am referring to the entire column. For some reason it came out looking as if I were responding to one of the comments.
What you say would have been correct had the court not arrogated to itself the role of legislator and framer of the constitution. I will illustrate this with 4 examples:
A legislating court:
1) The court took for itself the authority to strike down laws. Here, with your permission, I will not give an example since I assume we can agree on that.
2) The court took for itself the authority to legislate laws. For example, the court created out of thin air (= legislated) a law saying that the executive branch is obliged to fortify the communities around Gaza. This is a policy question arising from a situation in which the court saw that the executive branch was not carrying out a certain matter, and decided to force it to do so even though there is no law at all instructing it to do so. (And this is also a kind of counterargument to the claim that the court can only react to acts of the executive branch and cannot initiate moves on its own—the rest of that counterargument I will explain later.)
A constitution-framing court:
1) The court took for itself the authority to strike down Basic Laws. I am not talking about the crazy Deri law, but about the petition against Basic Law: The Nation-State. True, the court did not strike down that Basic Law, but it said explicitly that it reserves the authority to do so if it should wish.
2) The court took for itself the authority to frame a constitution. As an example I will only say the following sentence—where in Basic Law: Human Dignity and Liberty does the word “equality” appear?
It can thus be seen that the court has taken for itself all the functions of the legislative/constituent branch, in total contradiction to its claims.
One more small remark in closing—regarding your claim that it is very hard to petition against a government authority because that requires money and resources, etc. You are confusing (perhaps out of lack of knowledge) administrative law with constitutional law. No one is demanding that the court relinquish the authority given to it in administrative law to judge government authorities (even though all the rules of administrative law are founded in case law and not in legislation, except for one).
In constitutional law, that is, petitions against the laws of the state and/or its Basic Laws, despite the fact that it is hard and expensive to do so, one can see how a large portion of the materials the Knesset legislates nevertheless do end up being petitioned before the court. In other words, it is hard, but not impossible and unattainable as you describe it.
More power to you. Maybe you should go to the committee and explain this to them? I’ll come too.
I’m attaching here a link to an interview with Rothman. What is not entirely clear to me is whether his convoluted answers are in good faith and the result of inner conviction and many years of anger, or whether he is fooling us.
Democracy is an ideal, and the system of rules for its political implementation is a derivative of that ideal. When the spirit of the ideal pulses within most citizens, it does not matter all that much how it is politically implemented. Conversely, if most citizens have moved away from the ideal, then even if the system of rules for its political implementation is correct, democracy is like a body without a soul.
Today, people on the right rightly see the judicial system as an institution that does not properly represent all parts of the people and that took for itself authority that was not explicitly given to it. On the other hand, people on the left rightly fear a reform supported by many people whose worldview is far from the ideal of democracy, and who may exploit it for selfish purposes at the expense of the general public.
To our sorrow, tyrannical forcefulness—whether מצד the legislative branch, the executive branch, or the judiciary; whether from the left or from the right—is an expression of lack of vision, of public servants who have moved away from moderation and gone to the extremes, and of a failure to understand the importance of the virtue of peace.
Beyond that, the labels “right” and “left” have long been used by politicians on both sides to accumulate power, and are not an argument for the truth of any position. The ideological right and left of the past hardly exist anymore. Begin’s Likud supported the supremacy of the legal system, the enactment of Basic Laws, and would have strongly opposed the reform. Mapai would have supported the reform. An upside-down world 🙂
A few points:
1. Of course the legitimacy of majority rule depends on the minority’s agreement not to break the rules of the game, but the minority cannot veto every significant move the majority makes. If it does so, separation will be unavoidable. The current reform definitely is not trampling the minority in a way that justifies such conduct on the part of the opponents.
2. Regarding your claim that the citizens oppose the reform and therefore it is not legitimate—the picture is more complex, and it is somewhat surprising that you build an entire theory on one poll you brought in the previous column. In this Globes summary of polls (https://www.globes.co.il/news/article.aspx?did=1001437161), the situation seems more complex. In any case, polls clearly have no legal validity, especially when they are not unequivocal; that is what elections are for.
3. The lack of integrity did not begin with the political system. The court began intervening in political matters long ago, well before any Knesset member thought of limiting its power. The following quote was said by the deputy president of the Supreme Court in 2007: “The Supreme Court is my home. Whoever raises a hand against my home, I will cut off his hand.”
4. As long as there is no constitution explicitly defining what law is constitutional and what is not, it makes no sense to allow a small unelected group to strike down laws, especially when “the family” chooses itself. An example can be seen in the way the High Court expanded Basic Law: Human Dignity so that equality would also be included in it. There does not seem to be any prospect of agreement on a constitution anytime soon. It should be remembered that despite the override clause, striking down a law is an event that invites public attention, so if the public places trust in the court it will attribute importance to it, and the Knesset will have difficulty overriding it.
5. It is not correct to compare taking out money, which constitutes economic harm to the state, to blocking roads, which is intended only to generate resonance and influence public opinion, with little effect on the economy.
An interesting question that really got me thinking. I believe I have written more than once that there would be differences in the internal Israeli sphere—religion and state, Haredim, women, and so on. What I wrote was that there would be no differences in the sphere of security and policy (settlements and building), and I think I also wrote that about the economy (because socialism will stop once the people preaching it bear governing responsibility and understand that it is not really possible). And those are the issues that interest voters.
What is happening today is that indeed there are no differences. A settlement freeze has already been declared (Bibi’s promise to the Americans), security has not really improved (the understatement of the year), etc. It is true that differences have arisen in these internal areas (which were indeed expected, though not at this intensity)—judiciary, religion-state relations, and the like—but because they decided to go about it with unexpected force (in my view), this has critical consequences for the economy and security. In my opinion there is today a tangible danger to the state’s continued existence. The chance that we will disintegrate economically, militarily, and socially is no longer negligible.
I did not understand the claim. After all, I explained that even entrenched laws can be changed. Any legal situation can be changed by a majority of 2 against 1, and there is no formal way to stop that except judicial activism by the High Court (which is doubtful as a solution. Game of chicken).
I am under the impression that they are not great luminaries, and certainly not in the same league as their opponents. But that is not the main thing. That is what advisers are for, and they have thousands at their disposal (all those who oppose the reform, and are also working on it). The main problem is that they do not do their homework and they are not serious. There is no one to talk to in the opposition. They only know how to dance on the tables and cry bloody murder.
I feel as you do. The problem is that they are part of the public, and therefore their demand to be involved in appointing judges cannot be rejected out of hand. The demand to determine everything there—certainly yes.
I do not know to whom you responded. If to me, those examples do not say much. I do not dispute that the High Court went wild. I wrote that and quoted Daniel Friedman, who wrote it better than I could. The question I raised in the column is what is the right thing to do about it. Not what is being done now.
As for your comment, they most definitely do demand that it not use reasonableness. Beyond that, I argue the exact opposite: even if you leave that authority in the hands of the court, you have not solved the problem. The flood of decisions made in the executive branch cannot be effectively reviewed by the courts. You need a binding legal adviser or a similar mechanism.
And at the end of your remarks you made the very reversal that you claimed (wrongly) I was making. I was not talking about petitions against legislation, but against administrative decisions. There are thousands of those, and very few of them are challenged in court.
- Who spoke about a veto on every decision? When there are substantive things that touch the very soul of the minority, that has important significance that should not be ignored.
- Definitely not just one poll. There were several. One thing emerges beyond the slightest doubt: in the public as a whole there is certainly a majority against these moves (at least in favor of compromise and slowing the pace). There is nothing complex here for anyone not denying the facts.
- Cheshin’s quote is already gathering dust, and it is really not all that old. But are you sure you read what I wrote? It seems not. You repeat what I wrote, and for some reason the tone is one of disagreement or question.
- “The family” has long since stopped choosing itself. Get out of this nonsense and propaganda. The current situation in the selection of judges (after Sa’ar and Shaked) is very good, and for my part I see no need to change it. As for the question of who and how will compose the constitutional court, I wrote explicitly that I am not dealing with that. I am discussing the question whether there should be such a court—which by definition is not political and not elected, and yet reviews the decisions of the elected echelon (though the government is not really elected either).
- It certainly cannot be compared. Blocking roads is far worse in principle. Taking out my money is my full right, even if I do it in order to demonstrate or exert pressure. Blocking roads harms the rights of others, and therefore is much worse.
Does the rabbi not think there are large economic gaps between the options?
Suppose Avigdor Liberman was an excellent finance minister and advanced quite a few free-market steps.
I agree that nobody here is going to dismantle socialism tomorrow morning, but I think there are enough economic differences, say, between the “change government” and the current government of horrors. Among other things, the issue of the Haredi parasite is distinctly economic.
Bibi too was a very good finance minister in his day. That is a difference between individuals, not between parties and platforms. As for the economic effects of the attitude toward the Haredim, of course that exists.
"A majority of Likud voters also oppose the pace and scope of the reform"
But they still want reform, so your point is simply not correct. Reform was demanded by the voters of this government, and it is carrying it out. If it is carrying it out differently from what some voters want, that is only because there is no way to hit the preferences of all voters exactly. There are Likud voters who want a stronger reform, there are Smotrich voters who want a stronger reform, and so on.
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"There definitely are limits on the judiciary"
What are the limits? Please tell me one.
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"The argument about the Knesset’s independence"
I did not claim that the Knesset is independent; I only claimed that the control is mutual. The government and the Knesset control one another; one has no advantage over the other. Coalition discipline works only up to a certain point, like everything else in a coalition.
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"The level of integrity is not determined by anyone. It is a fact."
Point me to that fact or something that proves it, because I do not find integrity to be a factual thing. I understand that it is beyond the rules, but you speak vaguely in this context; if it is vague then it is open to interpretation—but I may certainly have missed something.
It seems to me there is no point in continuing. You are just being stubborn. So here are my comments, and I’ll end with this.
I also want reform. So what? Likud is acting against the view of its voters, who want dialogue and a slowdown. It is absolutely possible to reflect their views. Quite easily.
The limits on the judiciary are the law and the limits it imposed on itself. Far more limits than on the government, which makes the law for itself. For example, the judiciary does not use reasonableness to strike down laws, only administrative decisions.
The Knesset is subordinated to the government. For example, the prime minister determines all the staffing of positions, including in the Knesset. Of course, formally the prime minister and government ministers are members of Knesset, so you can play with words as much as you like.
That’s it. I’m done.
The Levin-Rothman reform to change the method of selecting judges so that judges “of the coalition’s own camp” will be appointed rather than judges “of the judicial elite’s own camp” is shallow. Because the system of appointing “our own people” leads to mediocrity. And you do not fix mediocrity with worse mediocrity.
As for the issue of legal advisers, senior civil servants are supposed to be excellent professionals who state their professional opinion even if it does not accord with that of the political echelon. The prime minister and his ministers have the right to accept or reject their opinion, provided that the government is not above the law.
There is an essential difference between politicians and professionals: politicians tend to look at things from a political perspective, whereas professionals do so from a professional perspective. Neither of those perspectives is perfect. A political perspective often represents only part of the public and is subject to self-interested pressures. Professionals often see things only within the four cubits of their profession, lacking a broader perspective. Good government is one that reaches the proper balance between the political echelon and the professional echelon. And that can be done only through listening and mutual respect.
Thank you for the detailed answers, and good luck to all of us in this difficult time.
I am convinced that Likud voters support the reform. This is the way pollsters ask questions so that the poll will achieve the desired result (I also read that in Nadav Shnerb). Someone commissioned that poll. They do not work for free. There is no logic in electing a government that cannot make any significant decision because the High Court will hamstring it.
It may also be that some of the respondents who claimed they oppose the reform are lying about whom they voted for in order to engineer consciousness (that is what Likud voters did to the TV exit poll in the 2019 elections, to such an extent that Mina Tzemach, as I recall, announced she would resign). Meanwhile I see that people on the left have no restraints whatsoever and are threatening to burn down the club. Compared to that, this is small change.
Besides, since when has the voters’ will interested the left? I remember Sharon’s referendum among Likud members (which presumably reflected very well the will of Likud voters). He ignored it to the cheers of the left about leadership and blah blah blah….
And in general I do not see how one can surrender to the bullying and violence of these protesters, who have essentially exposed that they are not willing to place trust in a government elected in fair elections. If the right was fair and respected High Court rulings (despite clearly having no trust in it) and was willing to wait for the ballot box to change the situation, then the left is allowed not to trust? What does it even mean to surrender here at all? The three components of: 1. the composition of the judicial selection committee (the judges have no business being there at all), 2. an override clause by a majority of 61, and 3. abolishing the status of the legal advisers that the High Court seized by force—are essential. It’s a shame you got stuck in Yeruham with a corrupt mayor. You simply should have left if the regular ways didn’t work (and without threats and shouting—quietly). One must not remain among people who choose someone like that.
What is happening here is simply too much lack of trust in elected officials, which is simply lack of trust in the public as a whole. Whoever does not believe should leave, and without threats and intimidation. Fine, you think this is a horror coalition (but the upright, diligent, efficient Arabs who pay taxes and fill the ranks of the IDF you like. Nu, shoin). Does it seem reasonable to you to rule over it by force and threats? You need to go elsewhere (Canada would be good for you) if that is really what you think. And in any case, if that is the situation—that the left does not trust the right and thinks it is only waiting to harm it—then it turns out that all this time since the founding of the state it deceived the right by letting it think that it too had a chance to take part in leading the state. In fact it subjugated it. So by what logic is there room here for any concession? It pains me greatly too to see the dollar exchange rate rise, but what option is there? How can someone tell me stories that we are brothers when these people do not see us at all? This is the behavior of strangers (rather similar to the British Mandate if you think about it, especially in matters of protecting the settlers: they do not protect them properly, but show up when they come to defend themselves on their own).
Tell me honestly what you think should be done. Is this how you would behave with someone who cheats you and manipulates you in every word he says? As far as I know, there are two ways to deal with obtuseness: either counter-obtuseness (that is, a forceful struggle) or indifference and disengagement—which is what the Haredim chose to do a generation ago. Apparently their leaders already grasped then what the communist mentality means, and that is why today they lie with every word when they come into contact with someone from outside (switching into “spokesman mode” for the Haredi public). With obtuseness (manipulations) you cannot cope except through obtuseness (counter-manipulations) in cases where one cannot disengage. They (the Haredi inhabitants of the land) believed that the secular were decent people (that’s what one of the Gur rebbes said, if I’m not mistaken), and therefore back then they did cooperate with the Zionists (for example in the War of Independence). But afterward it turned out not to be so (shaving off the peyot after the founding of the state). So fine, there are already a few on the other side who are waking up from the obtuseness, but at the moment I don’t think they represent their public, whereas on the right everyone is ready for dialogue—not for compromise, but in order to arrive at the truth. Shall we compromise on half-trust?
After all, nobody is really trying to harm anyone’s rights (and no, forcing schoolchildren to be exposed to homosexual sexuality when their parents are not interested in that is not some right that homosexuals deserve). They mainly want to prevent the progressive coercion that existed until now and preserve the status quo on matters of religion. And the only ones whose rights will be harmed are the Arabs, who deserve no rights since they have no obligations, and besides, they would not give us any such rights if we were under their rule (I am speaking, of course, about revoking the citizenship of the Arab public and removing Israeli sovereignty from their villages). And besides, they are a kind of fifth column in potential (as we saw in the riots of 5781 [2021]), or the “rights of the Palestinians,” who are a declared hostile enemy people that pays its soldiers for killing Jews (and for some reason most of them somehow are always “innocent civilians”).
These are the burning issues on the table. How can a government make a value-based and operational decision (such as, for example, establishing a Unit 101-type force to carry out revenge actions in Arab villages for attacks against us)? I can understand someone who objects to participating in such actions on moral grounds (and I would not force it on him), but such a decision also has a moral logic. I am allowed to think differently—that there is a war here between collectives and that there are no innocents here. And I am allowed to implement that decision. In what constellation of compromise do you see the High Court allowing such a thing in the existing academic and legal atmosphere (even if all of them are from Har Etzion)?
There is another point regarding reasonableness that Karl Popper emphasizes, and I do not know to what extent it is present in your thought: the determination of whether the government’s decision is reasonable or not is at the very heart of democracy as a mechanism of feedback from the voters to the decisions of the elected officials. When the court examines policy decisions of elected officials in light of the reasonableness test, it steals that test from me as a voter. And this is beyond the problem of assuming that there really is one correct answer to the question of what is reasonable and what is not. Every normal person in the world knows that for most questions in the world there is no single correct and final answer. The court’s presumption to determine what is reasonable or unreasonable is completely illogical. The grounds currently existing in law—such as lack of authority, prohibition of discrimination, and the like—provide the court with enough tools to strike down a decision without harming democracy.
Here is the additional post by Nadav Shnerb on such polls:
"Here is an interesting phenomenon I came across through a discussion, on a somewhat different topic, in Andrew Gelman’s blog.
There is something people call ‘public trust in the media,’ and there are research institutes that try to measure that trust, both at the level of a single country and comparatively across many countries in the world. One of these institutes is associated with Reuters; the other is called the ‘Edelman Trust Barometer.’ What these institutes do is conduct opinion polls in which the public is asked about its attitudes toward the media.
It turns out, very surprisingly, that there is no connection whatsoever between the results reached by the two institutes. There is no significant correlation either at the level of the result itself (what percentage Institute A gives to public trust in Chile, say, compared to Institute B) or at the level of trends (by how much public trust in Chile rose or fell over a given period).
What is happening here? I assume that two such respectable institutes use standard survey methods. Moreover—it is hard to imagine that they have any political interest; what does some American researcher care how popular the media is in Indonesia or Turkey? Well then—how did such differences arise, such that basically there is no connection between the results?
The person who hit upon the point suggested that the difference stems from the wording of the question. One institute asked ‘Does the media do the right thing,’ while the other asked people ‘Do they believe most news most of the time.’ Interesting. But however it may be, you see here just how unreliable and inconsistent opinion polls of this type are, even when they are conducted by professionals with no vested interest.
Compare this to election results: here in Israel we had five election systems within a period of four years, and the results barely changed. There was more or less zero movement of votes between blocs, and apart from the story of Bennett deciding (according to him—with eyes wide open) to spit publicly in the face of his base, even the parties got more or less the same number of votes. The results changed from election to election only because of ‘betrayals’ by politicians of their bloc, or because of tiny fluctuations magnified by the high electoral threshold. After all the propaganda, provocations, Guardian of the Walls, the coronavirus—nothing moved. People vote for things that seem important to them, and events, or the upheavals of political argument, did not seem important enough to them.
Conclusion: when they tell you about ‘the loss of public trust’ (in the High Court, in the Knesset, in the coach of the Israeli national team) or about ‘the positions of Likud voters/the left’s voters’—take the story with a gigantic grain of salt. Presumably the wording of the question in such polls dramatically affects the result, and when interested parties are involved—it’s hopeless. Ignore it. Just ignore it."
- The voter can express his opinion on the government’s activity over the course of its four years. That activity is composed of thousands of items—decisions, actions, and pieces of legislation. That is not reasonable review of individual decisions. The question is: how do you ensure that an arbitrary individual decision is not made? Exactly as I described from my experience regarding oversight of the corrupt council head who was in Yeruham.
- There is a contradiction in your remarks. Suppose there were no prohibition of discrimination and the like in the law—would you agree to judicial review on the basis of reasonableness? That means that in principle even you accept its possibility. I gave examples of this in the column. One can now argue whether all unreasonable cases can be struck down on the basis of current law. That is the opposite claim from the one you made at the beginning of your remarks. The claim of the court (and mine as well) is that they cannot. Do you think they can? That is no longer a principled dispute. It has to be examined case by case. Moreover, when a law or an administrative decision is struck down because of lack of authority or discrimination, the same claim will arise: you are not legislators. Leave it to the voters!
I chose elected officials because I trust their judgment. I did not choose a judge because I trust his judgment, but because his professionalism lies in safeguarding the law. The problem with the elected official in Yeruham was that his judgment was biased because he was corrupt and took bribes.
The truth is, no. The limitation to the cases enumerated in the law is necessary in order to prevent the judge from becoming supreme ruler. What the law does not forbid, it permits. If the law does not forbid discrimination, then it is disgusting but legitimate. We as a society oppose discrimination and therefore prohibit it by law, but judicial rulings are a very bad way to achieve public goals, as supporters of the Supreme Court are discovering now.
And by the way, if the Supreme Court had refrained from granting standing to those who represent foreign actors, 90% of the noise would disappear. It was only just published that foreign states allocated a huge budget of hundreds of millions of shekels for petitions to the Israeli court. Responding to those petitions comes at the expense of the Israeli citizen’s right to justice.
As I explained in the column, this is exactly the failure of the reform’s supporters. They cling to theoretically correct arguments and create terrible practice.
Could it be that sometimes, when an existing system has been corrupted and distorted beyond recognition, the best solution is דווקא to stop the game and start from a clean, blank page—a truly democratic page of majority rule that can actually do what it wants?
And then, as the majority and the legitimate authority, the majority can establish new rules of the game that it has chosen, through dialogue with the minority and without fear of a too-powerful player who will not let go and will steal from it (after all, in the end they crave legitimacy and broad agreement).
There is more than some indication that at least Rothman wants a constitution similar to that of the U.S. in terms of individual and property rights. When you have such a political court, that has no value; their interpretation will be completely opposite (for example, the ‘property’ rights are those of the customer against the business owner, for instance—a topic Rothman dealt with directly).
It seems reasonable to me that this is how constitutions were established in new states/republics: they did not leave the old dictatorial regime in place and merely limit its powers, because they understood that this could not work. They started anew, and from that solution they eventually reached fairly broad agreement even with the old aristocracy.
Democracy in the literal sense means a form of government in which the people choose the government.
Liberalism means a worldview advocating individual liberty, individual rights, and equality.
In a liberal democracy, in order to protect individual rights, it is customary to limit the government through a constitution and the rule of law.
There can be liberal democracy, illiberal democracy, illiberal dictatorship, and liberal dictatorship. For example, the Western countries are liberal democracies. Some of the countries of Eastern Europe and the Third World are illiberal democracies. The great majority of dictatorships are illiberal, except for, for example, the constitutional monarchies in 19th-century Europe, which were liberal.
Illiberal democracy may become a dictatorship of the majority. Liberalism without democracy may become a dictatorship of elites.
In fact, supporters of the reform believe that the State of Israel is liberal and not democratic, while opponents of the reform believe that the reform will turn it into an illiberal democracy. Both sides, to some degree, are right.
It is easy for the executive-legislative branch to see the shortcomings of the judiciary, and for the judiciary to see the shortcomings of the legislative-executive branch. A reform that corrects the judiciary and weakens its independence will not erase the shortcomings of the executive-legislative branch, and may even worsen them.
Ultimately, one must stop the inflammatory discourse, as if one side is right and the other wrong, or vice versa. Any worthy system of government, and especially a modern state, is a complex system, relying on different worldviews and on the experience of previous generations, gradually coalescing into some sort of compromise that allows society as a whole to exist.
In my opinion, the changes in the justice system and in the areas of religion and state were a central component of the last election campaign. Regarding security, you are right that for now there has been no major change, though Ben-Gvir’s voters are apparently pleased with the worsening of conditions for security prisoners and the demolition of houses in East Jerusalem. The existence of a promise regarding a construction freeze is disputed; I do not understand why you simply adopt one side’s version. Ultimately, the claim that a vote for Ra’am would better promote the Israeli voter’s interests seems terribly wrong (what influence has Ra’am had in the current Knesset so far?) in hindsight (and truth be told, even beforehand).
Could it be that sometimes, when an existing system has been corrupted and distorted beyond recognition, the best solution is דווקא to stop the game and start from a clean, blank page—a truly democratic page of majority rule that can actually do what it wants?
And then, as the majority and the legitimate authority, the majority can establish new rules of the game that it has chosen, through dialogue with the minority and without fear of a too-powerful player who will not let go and will steal from it (after all, in the end they crave legitimacy and broad agreement).
There is more than some indication that at least Rothman wants a constitution similar to that of the U.S. in terms of individual and property rights. When you have such a political court, that has no value; their interpretation will be completely opposite (for example, the ‘property’ rights are those of the customer against the business owner, for instance—a topic Rothman dealt with directly).
It seems reasonable to me that this is how constitutions were established in new states/republics: they did not leave the old dictatorial regime in place and merely limit its powers, because they understood that this could not work. They started anew, and from that solution they eventually reached fairly broad agreement even with the old aristocracy.
I liked this very much. Here are a few comments.
Indeed, politicians from the side opposing the reform—“who have no idea what this is even about”—should not be part of the negotiations. The protest leaders do not say explicitly: Lapid and Gantz do not represent us. Lapid’s first proposal was also to establish a presidential committee without politicians to formulate a reform.
As for the status of legal advisers: I want to compare it to the status of an engineer. If a person wants to build a building, he must have an engineer, but in fact there are at least two engineers in the story. One is employed by the builder, and his role is to prepare a building plan that will be cheap, stable, quick, and meet all the requirements. The builder is entitled to hire any engineer he wants to design the building, and to fire him if the plan is not good in his eyes. After that, the plan goes to the authorities, and there another engineer checks that the plan meets the regulatory requirements. The second engineer is not an employee of the builder, and cannot be fired, though his decisions can be appealed.
Similarly, perhaps the role of the legal adviser should be split in two: one is the adviser, a position of trust of the executive branch, and the other is a judicial reviewer, an agent of the judicial branch who cannot be fired or moved, just as a judge cannot be moved.
2A. The executive branch is actually composed of two kinds of people: elected officials and their aides, and public servants who are not elected. In addition to the legal advisers, these also include the accountants, the chief of staff, the police commissioner, the CEO of the public broadcasting corporation, and other positions whose very nature should prevent politicians from being able to move them. In my opinion all these positions together constitute the “reviewing branch,” and they should be given their proper place in the battle among the branches: they are the ones who ultimately protect us.
“The discussion of the definition of the term ‘democracy’ is unnecessary.” In addition, the word itself carries a specific connotation (positive, in this case). The moment this word is used, every side in the argument has to say that it is the true democrat. Therefore I often demand of my interlocutors that they reformulate arguments without using loaded words whose definitions are disputed. Many are incapable of making that conceptual leap. Recently I encountered this phenomenon in a discussion about the torture Amiram Ben Uliel underwent. The word “torture” is loaded, and most participants in the discussion argued about “what exactly counts as torture” rather than about “whether under that pressure it is reasonable that he confessed to a crime he did not commit.”
It seems you did not read to the end. I wrote there that it is not reasonable to see the reform as a move justifying a total breakdown of norms (it does not harm a particular public; if a left-wing government comes to power, it will be able to benefit from it to the same degree).
If you look at the link I attached, two polls appear there that flatly contradict your claim, and another one that somewhat undermines it. As is well known, poll results can be affected by various things such as the wording of the question, so clearly the only legal validity lies in elections.
One of the things I understood from you is that in your opinion the High Court was forced to intervene in Knesset matters because the Knesset was not acting in good faith. In response, I raised the possibility that this is not the motive for the High Court’s intervention, and also that the Knesset’s behavior in some cases is a response to the forceful (and unlawful) conduct of the High Court.
Since the court deals with political matters (even after the reform), it is more reasonable that it be chosen according to some political key (as happens in every country where there is a constitutional court), so that there will not be a severe tilt toward one side that will inevitably produce bias in the rulings. Especially since one often sees that the judges’ representatives (who hold prior consultations for a unified vote contrary to the law, as Daniel Friedman showed in his book The End of Innocence—Law and Government in Israel) and the lawyers make common cause in the committee—shall we say, one finger.
I really would like to see more Knesset members than government ministers on the committee, so that governmental continuity will not create a biased court. Though for the committee to represent the coalition’s political majority, it would require an inflated committee that would create other problems. Besides, the coalition structure of the Knesset makes governmental continuity difficult.
Your call for compromise is reasonable, but it sharpens the importance of the uncompromising initial formulation, and not only for the reason you mentioned. It turns out that the left tends to break the rules over politically neutral changes (depending on whichever majority is elected). Just to put things in proportion and not to make it a competition, I’ll compare this to the statesmanship shown by the right in more forceful events imposed by the majority, such as the expulsion of the lawful residents of Gush Katif and northern Samaria. In terms of game theory, this pattern of action incentivizes the right to formulate its proposals in an extreme way in order to come out with something in hand after the compromise.
My remarks are directed at Rabbi Michael’s response to what I wrote above.
The system has not been corrupted, certainly not the legal system. It has indeed exceeded its authority quite a bit, and that is indeed irritating and frustrating, but it is far from being corrupt. If there is anything here that is corrupt to the core, it is politics. Therefore everything you say is the opposite of the factual truth.
Beyond that, even if the system were corrupted, you are talking about a forceful process in which the majority seizes the reins tyrannically. True, you are proposing an enlightened tyranny, but the whole democratic idea is that one does not trust the majority to be an enlightened tyrant. The power of the minority will meet counter-power, and in a game of chicken both sides will crash.
As I heard just now from Gershon Hacohen, people do not understand that political power is not based only on winning elections; there are other centers of power as well—cultural and economic—and if one does not take them into account, one crashes. Rothman and Levin and Bibi are living in the illusion that they can win by force, but they are gravely mistaken. They, and all of us together, will lose. Already now there are irreversible processes that our society and economy have undergone, and it is not clear that these can even be fixed. If they continue, the damage will be enormous and irreversible—far more than the wholly marginal damage caused by overly activist interventions of the High Court.
The split will not help at all. You are proposing to add another legal adviser on top of the current legal advisers. What will you gain? The same claims will be raised against the new legal adviser who imposes his opinion.
As for semantic arguments, I wrote that I completely agree.
- That is exactly my claim. The protesters object not only because it harms them, but because in their view there really is a mortal blow to the democratic structure. By contrast, the Haredim, for example, want the reform only to protect their interests, and ignore the possibility that they themselves will suffer from it.
- There may be polls that clash, but they too may be biased. My impression is that there is a majority even among Likud voters—and certainly in the public at large—in favor of slowing down and dialogue, and also in favor of moderating one clause or another. That is beyond the obvious damage this reform has already caused. It is immeasurably greater than all the damage caused by judicial activism to date. And that is true as of now, when the reform has not yet passed.
By the way, I have now read the link you brought, and they too say that in most polls this is the situation, and that is probably correct. This is just obstinacy. - The question of who is to blame is irrelevant. I wrote that both sides are to blame, and I too tend to think the High Court started it. So what? That is exactly what I wrote to you. You repeat what I said and put a question mark at the end.
- I did not deal with the choice of the court’s composition, but with the very need for judicial review. Various proposals have been raised about this (for example by Prof. Aviad Bakshi of Tel Aviv University and others).
- The question whether this is an audacious maneuver for negotiation purposes or not was also raised by me. I am only drawing your attention to the fact that this maneuver itself has already exacted a heavy price from all of us, and will exact more. I hope that in the end they remove the goat, but even then serious damage—some of it irreversible—has already occurred.
I look at a system in which they bring down a sitting prime minister with the indictments we are seeing now as a system corrupt from the foundation up. And in general, the fact that a judge can activate the prosecution and the police against ministers (Ne’eman, Rivlin) who want to propose change in the system is shocking to me.
Government institutions must be subordinate to the government and the Knesset. What is the point of elections if the High Court can strike down your appointments, or worse, neuter you on the executive level through the second arm—the legal adviser?
There are many ills in the state. The prosecution and the police conduct themselves like a crime organization with no oversight whatsoever. The courts approve the trampling of detainees’ rights without batting an eye. They are a rubber stamp on the one hand and give the institutions “legal” legitimacy on the other.
And right now the situation is that if you want to change things (say, for the first time since the founding of the state someone will supervise the crimes of the prosecution? Makes sense, no??), you cannot touch anything. Because there is the legal adviser’s position. And automatic striking down of laws, or worse, the issuing of interim orders contrary to law and without even relying on any law whatsoever (like Mazuz, who issued an interim order against the justice minister’s appointment for state attorney on grounds of “reasonableness,” when he had no authority to do so).
The target of the reform is not the courts, but the removal of the main obstacle in the way of healthy governance over sick institutions.
And no, no one else will clean up the prosecution and police if the right does not do it. The left has no interest in touching corrupt institutions as long as they serve it politically.
The claim that the High Court will protect us from corruption is naive. As long as it can do whatever it likes, it will protect us from whom it likes and not protect us from whom it does not like, and that is exactly what it does. And human rights? Don’t make it laugh. Israel is in a very bad place from that angle: 95+% of cases end in conviction. Detention extensions are given automatically for long weeks (“look surprised”—do you know that quote?). In the past year we became the only country in the entire Western world that convicts on the basis of a confession extracted through torture.
These are our real problems. Deri and his tax reports interest me not at all compared to these phenomena.
This is also true of the other side, when theoretically correct arguments created terrible practice:
https://yuddaaled.wordpress.com/2023/02/28/%d7%9e%d7%93%d7%95%d7%a2-%d7%94%d7%92%d7%a0%d7%94-%d7%a2%d7%9c-%d7%a4%d7%95%d7%9c%d7%99%d7%98%d7%99%d7%a7%d7%90%d7%99%d7%9d-%d7%9e%d7%a4%d7%a0%d7%99-%d7%a8%d7%93%d7%99%d7%a4%d7%94-%d7%9e%d7%a9%d7%a4/
The damage is not from the reform but from the disproportionate reaction of its opponents, among whom prominent figures called for refusal connected to the army—i.e. undermining the common denominator that keeps the state functioning. Giving in to that is basically like giving in to a blackmailer in the famous paradox. You cannot blame someone who in his eyes is repairing a system that has become rotten and wandered outside the bounds of law for the consequences of the hysterical reaction of the other camp.
Regarding the polls, I did not argue that there is a majority in favor of the reform, but that it is not so clear that there is not. Since that is the case—and perhaps even if it were not—because the democratic decision gave power to the Knesset in its current composition, it is entitled (legally and morally) to use it without pangs of conscience. All the more so because the reform, even if not in its detailed form, was present in the background of the last election campaign among the other prominent issues.
“The country is in danger of complete disintegration, and already today there are economically and socially irreversible processes.” I’d be glad if you could expand on that—it sounds interesting, thanks 🙂
Just regarding the point you raised here: one can absolutely assign blame, because it was clear from the outset that this would be the reaction, and it became clearer and clearer over time. Whoever holds governmental power is the one who bears responsibility. They could have stopped or slowed down at any moment. For example, imagine what would have happened had Levin announced his plan but not said he would legislate it immediately—instead he would open a year of discussions with academics, jurists, etc. (and not(!) only in the Knesset), with a deadline of, say, a year, at the end of which legislation would begin on what had been agreed. They would have set a deadline and made it real, and on the one hand it would not have dissolved away, and on the other it would not have caused panic and such an extreme reaction.
And that is only one suggestion, but the people in power are supposed to think precisely about these things. They are trying to do something that is unacceptable to an enormous minority (and a minority with a lot, a lot of power) at lightning speed, and did not think at all about the consequences. So yes, it is absolutely their fault.
In the same way, you can say that one should annex the territories or start a nuclear war with the U.S. or any other crazy thing (and if you don’t do it because of the reaction, that’s because you’re surrendering to a blackmailer). In reality there are things one needs to take into account and think about before acting; every child knows this, but for some reason our government doesn’t.
Indeed some of the damages come from the reactions, and still, as a matter of fact, there is damage.
Refusal is a completely legitimate tool when red lines are reached, both economically and militarily.
Whoever does not want to yield and insists will bear the consequences of the game of chicken. He may be very right (in his own view), and will go down with all of us into the abyss.
You need only listen to what is happening and take an interest in circles that the coalition is apparently not in contact with (high-tech, economists, and businesspeople). Military and economic refusal, brain drain and flight of businesses and capital, loss of cohesion and the remnants of trust. All of these are enormous damages. The scope of these phenomena is very large, and people are not listening to the facts (what is published is only the tiniest tip of the iceberg). I have spoken with people from the investment and high-tech worlds, and there is disgraceful disregard for the facts they present. These are the strata that carry the state economically, militarily, etc. We will be left here with kollel yeshiva men, and there will not be a minyan to subsidize them. Like Saudi Arabia, which lives off gas but lacks technological, moral, and cultural level.
It seems to me that a central component of this issue is the question whether the reform’s critics are sincere in their fear of it, or whether this is a cry of ‘wolf, wolf.’ If the first answer is correct—we are headed for a game of chicken. If the second—we are in the midst of the blackmailer paradox. In your column about your impressions from the demonstration it sounded as though in your opinion at that time we were in the second option, though one should be careful about drawing conclusions from a personal experience at one of the demonstrations.
Someone explicitly asked in the comments about the legal sphere and judicial activism, and you explicitly wrote that there would be no difference. Here:https://mikyab.net/posts/78280
It’s in the comment thread that begins with Avi’s comment at 20:39
or in the thread that begins with Immanuel’s comment at 15:47
or in the thread that begins with Aviv’s comment at 15:50
Bibi wants to escape prison and is therefore trying to dismantle the State of Israel.
The whole regime coup is a tool to free him from justice.
I think no compromise should be made with him on anything.
Fraud, bribery, and breach of trust do not suit a nation whose role is to be (someday) a light unto the nations.
"(By the way, I think this is mainly thanks to Netanyahu, who over the years preserved the legal system in a very consistent and determined way)"
That sentence in parentheses is one of the main reasons for the current dismal situation. Many supporters of the reform, in principle, prefer slow and gradual legislation, dialogue, compromises, but the reality is that for many years Netanyahu entrenched a situation of zero changes. Therefore it is important first of all to make all the changes, and only afterward cancel what is unnecessary, because if now we act by way of discussions and dialogue and bit by bit, we cannot rely on managing to make any change before Netanyahu flips back to a policy of zero changes.
So first destroy, and then (maybe) fix. And the damage that will be caused in the meantime and probably in the long term—so be it.
And it is so obvious. Maybe there are some who really support the reform (Levin, Rothman), but clearly Bibi wants only one thing.
In terms of individual rights and property, perhaps. Because for some reason there is an identification between religious Zionists and American-style capitalism, and I am not sure where it came from.
In terms of equality among human beings, less so.
Regarding what you wrote here:
"The majority has no authority over the minority unless the minority has accepted the rules of the game, that is, only when majority and minority together constitute a shared society that makes decisions jointly by consent."
It doesn’t sound logical that every minority group can decide that it suddenly does not accept the rules of the game and the majority must respect it. After all, tomorrow a group could arise that dislikes cannabis laws and declare independence from the majority. It seems to me that whoever secedes should take his things and leave the borders of the state, or accept majority rule.
First, I presented logical arguments in favor of that conclusion. You are only raising a question of practicality, not of essence.
Second, obviously one does not break up the whole package over every matter. But if there is something very important to the minority (and that decision belongs only to it), it is legitimate for it to break up the package. Exactly like refusal of orders or conscientious objection to the law.
As for whether breaking up the package obligates the minority to uproot itself from here—I am not at all sure. They have the right to sit here just as the majority does. There was agreement on accepted rules of the game that formed the basis of the state. If the state disintegrates, then the majority has no more standing than the minority. Everyone will remain here and there will be no state.
By the way, that is essentially the question regarding Neturei Karta.
Well then, what is your answer regarding Neturei Karta, or other groups that establish a state within a state (like the State of Akhziv)? Should the majority respect them?
And furthermore, I don’t understand why you claim that the state disintegrates in such a situation. Ostensibly the state remains intact; there is only a minority group that secedes. So now the question is whether they can take part of the state’s territory when they secede. If they are concentrated in a certain geographic location, maybe yes. But in a case where they are dispersed within the majority, I do not see any other choice except that they leave the state (or stay and accept majority rule).
In principle one should respect a group that ideologically is not willing to cooperate and take part, so long as they neither take nor receive services, like Neturei Karta. Akhziv is just childish nonsense.
The state is disintegrating in many respects. Socially because of the protests (which are a pre-disintegration state), economically the situation is much harder than people think, and of course the partnership with the Haredim has a rather disastrous horizon. The minority that may leave is a minority that to a large extent carries the state on its back. What will remain if those people leave is not a state I would want to live in.
And in general, disintegration is not easy in practical terms. How exactly would it happen? How would the resources be divided? What would relations between the parts be? Because it is almost impossible in practice, the struggles will continue forcefully inside. We cannot even achieve separation from the Palestinians, so disintegration from some of the Jews? There is no chance that this will happen in an orderly way.
What is at stake for the minority here is that the majority (primitive in its eyes) will not be able to make significant decisions, and the minority will make them instead. Some democracy.
Sa’ar and Shaked solved nothing. What matters is judges who are conservative in legal terms, not activists wearing kippot. It is really demagoguery to say otherwise.
On second thought, in light of your remarks about the game of chicken, the backing you give to harming the state economically and militarily (through refusal) is nothing less than astonishing, compared to the buckets you pour on the reform move, which is entirely legal, was promised to the voters (even if not in its detailed form), and does not harm anyone in the foreseeable future (except for speculations about murdering redheads. Ah, it also hurts “the family” a little). It is absurd to compare that to a move intended deliberately to harm the state in a sensitive period for political gains. The weaker side is not always right.
Well, and then what? There is a limit to how much one cannot trust elected officials. It is impossible to ensure in real time that a specific decision is not arbitrary. That is madness. For those thousands of decisions there is the state comptroller and the press and elections every four years. And who told you the legal adviser’s decision is not arbitrary? Meanwhile, the various jurists have actually demonstrated feeble-mindedness in their decisions compared to statesmen. And in general, how many supervisors and overseers are needed? This is communist madness seeking to control everything. And who will oversee the overseer? And who will oversee the overseer of the overseer? In the end the entire state will be supervisors, and 2 percent workers (that is how it was under communism too).
What if after 5 years in Yeruham the public still chose the corrupt person despite all the warnings and evidence (and assuming all the various overseers themselves are not corrupt)? Then the residents of the town are corrupt. So what? Will you force upon them by main strength a leader they do not want?
The legal system is worse than corrupt. It has no concepts of truth at all, as we have seen several times with “purposive interpretation” of laws. Or shall we say there is no corruption greater than that. That also explains the obtuseness (and the manipulations following from it) and lack of self-awareness of people from this field—the jurists. It seems they have no notions of justice at all. The people, it turns out, are saner and more righteous than this collection of pseudo-intellectuals.
I see no point in discussing it. You are obviously very biased. This is simply nonsense, pardon me.
Same as above (in my response to A above here)
There is no point in discussion. You are completely biased and writing nonsense (not only here). You do not even know what happened in Yeruham, but you have a firm opinion. The same is probably true regarding the national level as well. Good luck to all of us.
By the same logic one could ask why one needs both a defense attorney and a prosecutor. After all, both are lawyers!
And if a minority group secedes, do I allow it to do whatever it wants—for example, stone homosexuals?
“A question of practicality, not of essence” is exactly what you say about “ethics versus utility.” Practicality is important, in your view too.
It is like allowing homosexuals to be stoned in another country. Obviously it is desirable not to let them, but your responsibility for it is smaller.
I tend to agree with your conclusion regarding the futility of the discussion, but for a different reason. In my opinion we see the gravity of Aharon Barak’s revolution in a different light. In many disputes of this sort, our outlook on the matter may be influenced by many materials we have been exposed to, and we cannot discuss them all here for lack of space. I have read many materials on the subject from both sides with as open a mind as I could manage (including those you referred to here), and I arrived at my present conclusions no less honestly than you, in my opinion. I do not know the extent of your knowledge in the field, but from the way you refer to it, it seems there are facts you do not know (mainly in the history of the Supreme Court). Daniel Friedman, in his book The End of Innocence—Law and Government in Israel, surveys the history of law in Israel well, in a way that in my view sheds fairly good light on present reality (I have no commercial interests in the matter). If you know of materials on the background that you think might persuade me or the other site readers of the correctness of your starting approach to the discussion, I would be glad if you presented them.
How do you derive from what I wrote that passing the reform as it stands is destruction?
Examples:
https://www.makorrishon.co.il/opinion/456499/
https://www.makorrishon.co.il/opinion/577991/
https://www.makorrishon.co.il/news/509081/
https://www.makorrishon.co.il/news/245231/
https://www.israelhayom.co.il/article/492979
https://www.makorrishon.co.il/news/266149/
I didn’t claim you said that; that is how I interpret your remarks. You said that first one must make the changes and then cancel what needs to be canceled. But there are many people, some of them very serious, who argue that this reform will indeed cause destruction (or at the very least very serious damage, parts of which we are already seeing now, before it has passed; and yes, I include the reactions to the reform as damage caused by the reform, because those are the facts—there is an enormous and very powerful public that opposes this reform with all its might, a public that to a large extent bears the entire economic burden of the state, and that is something that must be taken into account). So maybe you make the changes, the damage is already done, and it will be very difficult to repair… (unfortunately it seems that the damage already done will be very difficult to repair)
You have every right to think the reform will cause destruction; of course you also have every right to express that opinion—but in your own name. To interpret my remarks that way is unfair.
Basic Law: The Dignity of Torah and the Liberty of Its Students (Draft-Dodging, 5749 [1989])
Basic Principles
(Major Amendment No. 1) 1. The importance of Torah in Israel is founded upon recognition of the holiness of the Torah transmitted to us from Sinai and the liberty of its students, who hazard their souls in studying it. “And no man is truly free except one who engages in Torah.”
Purpose 2. The purpose of this Basic Law is to protect the dignity of Torah and the liberty of its students, in order to anchor in a Basic Law the values of the State of Israel as a Jewish state.
Protection of liberty and life 3. The liberty of a Jew studying Torah shall not be infringed because he is a Jew, and he bears no obligation except the obligation to Heaven, and certainly his life shall not be endangered, God forbid.
Protection of property 4. “The Rabbis do not require guarding,” and therefore Torah scholars who spend the night in the depths of halakhah shall be exempt from taxes each year in an amount equal to the defense budget from the state budget of that year.
Family rights 5. All relatives of those who consume themselves in the tent of Torah shall be entitled to every exemption from payment and every payment enjoyed by those whose loved ones died.
Application of the law 6. The Torah students whose liberty this law guarantees are Haredim, namely those who wear a white shirt and black trousers all year round and/or wear a shtreimel on their heads on Sabbaths and festivals.
Preservation of rights 7. Nothing stated in this law shall derogate from the rights of Torah students to every benefit reserved for those who serve in the army and security forces.
Why is that unfair? I admit that this is my interpretation, and I think that should be clear to anyone reading what I wrote.
You forgot only one tiny detail: you are discussing a situation in which we supposedly have a court and systems of justice, reasonableness, and you present a supposedly substantive argument between two supposedly equal sides, but you are completely detached from the public mood; and when possibilities in that direction are put before you, you dismiss them as delusional or crazy. That does not honor you; it only shows that when the arguments run out, the attacks begin. Be a bit more open and understand that a great many in the public have no trust at all in the legal system, and especially in the corruption of the prosecution gang. It would take too long even just to refer you to the grave things that are done there. That is why the public did not buy the incitement about the suspicions against Bibi, and elected him again, because they are certain that cases were stitched up here by unprofessional tailors. And if they did that to a prime minister, then all the more so these corrupt people will stitch up cases against the hated Haredi, Aryeh Deri. So why are you hair-splitting to me about a man who was convicted, several times, etc.? From the public’s point of view he is Dreyfus. Russia and Iran also have courts. Therefore all your hair-splitting is correct in a situation in which the public has trust in the system, but right now there is no trust at all in them, certainly not more than in politicians, so everything here is just law for the messianic age.
I have no trust whatsoever in the court today (because of those who sit on it), and I know it will continue legislating even without a constitution. If there is a constitution, the situation will simply be even worse (if that is even possible) and will give them even more audacity and momentum. Although you presumably agree with my remarks (I don’t know why only partially), I am referring here to this post by Nadav Shnerb, which describes it very well:
"Is politicization of the judicial system a bad thing? Like every question of this sort, the answer depends on another question: what are the alternatives.
Think about the governor of the Bank of Israel. The stability of the currency and the monetary market is important to the government, and on the other hand politicians always have an incentive to damage that stability and print money without restraint in order to answer local pressures. In order to achieve the common good, politicians (throughout the Western world) perform a kind of maneuver against themselves. They take a person they can rely on, appoint him governor of the bank, pay his salary, but voluntarily give up their oversight powers over him. This method has many advantages: it frees the politician from public pressure (he can complain about the governor who raised interest rates and wash his hands clean), it signals to the world and to foreign investors that there are serious people here who will preserve the value of the currency—wonderful.
Not only central banks. Throughout the world, many such ‘positions of trust’ have developed over the years: judges, academics, artists, the state comptroller—people who receive a salary or grant in order to fulfill a task, but are given full or almost full freedom to choose how to fulfill that task within a very broad definition of general goals.
So what shall we do if the governor of the Bank of Israel begins playing with the interest rate for his personal needs, or for the needs of his friends? What would we say if he informed the government that the interest rate in the economy will rise to 20% unless a bridge is built from Safed to Tiberias? When one gives the governor the keys, one assumes he is sufficiently loyal, sufficiently decent, someone who can be relied on. If no such person can be found, then there will be no choice, with all the sorrow and pain and disadvantages involved, but to return decisions on the interest rate to the finance minister or the prime minister. That would be a change for the worse relative to the existing state of affairs, but still preferable to entrusting a position of trust to an untrustworthy person.
This, in my opinion, is the direction our world is heading. The elites of the Western world are ceasing to be loyal. The idea of a public servant who, despite having freedom of action, adheres to the role defined for him is fading, dying away. This is not corruption in the classic sense—acting for self-interest or taking bribes—but rather the political prostitution of the profession and a free interpretation of the ‘mission’ of the profession, an interpretation that does not take into account the intent of whoever created the position and pays your salary.
The judges and the law faculties set the tone in this process. Since the 1960s they have increasingly cast off the role for which they are paid—to judge between people according to the language of the law—and something even more basic: the commitment to rules of language and to interpretation in good faith. All the talk about ‘purposive interpretation,’ ‘broad definition,’ and the like has become code words meaning: we shall do with the words of the law as we please, without regard for their plain meaning and without good faith, in order to move society from point A, where it is today, to point B, where we want it to be. Legal systems are turning themselves into governmental systems engaged in social engineering, and the law faculties applaud them, for who and what is ‘just a judge,’ just a loyal person doing the job he is paid for?
Note one of the central arguments in the debate taking place now: ‘Israel has no constitution.’ We need a constitution, it turns out. Interesting. Why is no one talking about the question of what will be written in that constitution? Today Ben-Gvir and Smotrich are in power—aren’t you afraid? Doesn’t it frighten you that theological, nationalist, Judeocentric ideas will enter the constitution and bind the State of Israel for generations? Of course not. The jurists do not care about the content of the constitution, so long as they retain the ability to interpret its words as they please. Politicians have no chance: like a poor chess player facing a grandmaster, the other side will make use even of their moves on the way to victory. The jurists need a principle that will permit them to strike down every governmental decision on the basis of their interpretation of a document. They do not care at all what will be written in it, because they have lost their commitment to interpreting words in good faith. They will interpret the document as they wish.
The general trend looks very problematic. In the course of time, I fear the entire concept of positions of trust will vanish from the world. This is sad, because society succeeds much better with an independent central-bank governor, independent judges, and so on, but the level of personal morality required of a person in such a role is becoming rare, and the media and the relevant parts of academia almost only hold it in contempt. At the end of the process—and this is a global process, not necessarily Israeli, and I assume the trend will come to us from outside—there will be no choice but to pierce the ear of these swaggering elites at the doorpost of public trust, by putting judges and governors up for election or placing close political supervision over them. Politicization is bad; tyranny or anarchy are worse."
Just today a group of 180 pilots was publicized, declaring that they will not report for duty. I want to sharpen publicly one of the advantages, the differences in outlook, between us. I assume that, in light of your view that God has left the land, in your heart of hearts you are a bit afraid, if not more than that, and these fears have effects—on healthy sleep, and generally on the soul. Whereas I, who am faithful to my view that the finest should go to the Air Force and the outstanding to the kollels, and that they are the true defense, testify with heaven and earth as my witnesses that I feel exactly the same as the day before yesterday, and completely calm. Of course I do not expect you to change your view because of this. I came only to note, and no more, that there is a price on both sides of the divide.
This is nonsense. Not only because you are talking about psychology while I am talking about truth (and by the way, I too am not afraid on the emotional-experiential level), but because when the danger becomes tangible you will leave the kollel and flee before all of us, like a mouse to its hole.
Declarations of faith and reliance always come when there is no real problem, or when there is a problem so severe that there is no practical solution. I assume you take medicine and go to the doctor when needed, or call the police when something happens that threatens you. You do not make do with declarations of trust and increase your learning in kollel. So please spare me this bullshit.
Beyond that, you have simply become accustomed as a Haredi person to having no responsibility at all. Someone will solve your problems and do everything for you. In the end everything works out. That is what suckers are for in this world (or in your language: the Holy One, blessed be He, helps).
You made a salad, so I refrained from tasting it. A. If I were in kollel, I would not be here—God have mercy. B. If an F35 pilot gets into danger when he is not in the cockpit, he will flee to his hole, by the law of human effort. Does that contradict his modest contribution to security? I wonder—“a holy analytical mind, how could it think such a thing?” C. I am calm because the parasitic secularists, who shirk their share of the burden—mainly defense of the state, which is Torah study—have suckers who make the effort, while withdrawing from life’s luxuries and sometimes out of vile poverty, not just for three years but for their whole lives, to fulfill the share of those who, according to the condition set by the Holy One, have no right to the land, and the land itself ought to vomit them out as sinners—not only their money. And who knows whether the Holy One does not extend His patience to them because we bear them upon our backs by the merit of our Torah. There was a great commander whom they nearly thought was the Messiah because of the power and strength he and those around him had, and he thought as you do, that his glorious victories came by virtue of the IDF of his day, which was under him. One day he kicked the righteous scholar Rabbi Elazar, who had for years prayed for his victories, and killed him. At that moment the true protection was removed from him and his ilk, and he fell, he and all the thousands with him. And about this I always remind you of the prophet Isaiah 66:5, that a day will come and it will be fulfilled before your eyes: “Hear the word of the Lord, you who tremble at His word: Your brothers who hate you, who cast you out for My name’s sake, have said, ‘Let the Lord be glorified, that we may look upon your joy’; but they shall be put to shame.” You decide to which group you would then wish to belong—to the shamed or to the joyful.
" What happens if the public wants democracy but the government does not, and acts against the wishes of those who sent it? (I already mentioned that this is exactly the situation today, despite the hollow slogans about the public’s will as expressed in the elections.)"
Where did you mention that? I’d be happy to read and learn.
"Gadi Taub and his fellow supporters of the reform keep claiming… if people want democracy, then it will exist, regardless of the system of rules."
I listen to Taub a lot. I don’t know who else you mean, but I haven’t heard Taub say that if people want democracy it will exist regardless of the system of rules. Your whole argument afterward rests on that claim, and it seems ridiculous to me. They want to change the rules because they think democracy will be strengthened that way, not weakened—and along with that they argue against the left that democracy remains only because the people want it to remain, not against their will (so if the left’s definition of democracy is the only correct one, then in any case it cannot be imposed on the right, which is the majority).
—
"This is precisely why the norm was adopted—strange though it may seem on its face—that the opinion of the legal adviser of a ministry or governmental authority has binding status… "
That’s a nice idea, but only if the legal adviser is chosen by the public; otherwise it makes no sense for him to cancel the decisions of the public’s elected representatives.
—
"For the same reason, the common claim among supporters of the reform—that it is no less important to limit the power of the judiciary than the power of the executive—is incorrect."
I don’t know about whether it’s no less important, but it is certainly important somehow to limit the power of the judiciary, and as of now it has no limits at all. To me personally it seems that the reform is a positive step because it limits, even if only to some extent, the only branch that currently has no checks and balances.
—
"For example, in the polls currently being conducted, there is a clear majority in favor of a compromise on the reform, even among right-wing voters alone. The government is not really taking that into account"
That is astonishingly wrong. The government is constantly aiming at compromise and willing to talk—but in the proper frameworks. There is no need to stop a legislative process in order to reach a compromise on a proposed law.
—
"There is no legal obligation to build a mikveh, but the decision not to build one seemed unreasonable to the judge (who was secular). "
As someone who lives in Kfar Vradim and believes in the Torah, here too they built a mikveh because of the court, against the wishes of the council—and I think it is a disgrace that the court intervened at all. If the council is not interested, there is absolutely no need to force such a thing on it. The example with the garbage is a somewhat more “reasonable” case, so to speak.
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"Although theoretically we also have a legislative and supervisory branch, the Knesset, in practice it cannot do anything in such situations, because it is under the complete control of the government. "
I don’t understand what you and others are relying on when you say that the Knesset is under the government’s control. The Knesset can dissolve the government…
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"We are left only with the court. But if it has no authority explicitly defined in law to strike down laws or government decisions, then we remain under unlimited governmental tyranny"
The reform, of course, includes authority explicitly defined in law for striking down laws (and as far as I remember does not touch striking down government decisions).
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"If the government enacts a clearly personal Basic Law (!) that allows the appointment of a corrupt minister who was convicted several times of financial offenses to be finance minister in charge of the state’s finances, and no one says a word, the court finds itself compelled to stand in the breach."
This is misleading demagoguery. The government began the legislative process only after Deri was disqualified. Since Deri would in any case legally be allowed to serve as a minister, there is no reason for the court to disqualify him. The court decided to find an excuse for why he was forbidden. I say this as someone who does not want Deri as a minister, and certainly not as finance minister, but he has hundreds of thousands of supporters who voted and wanted him there.
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"In the absence of integrity, the law has no validity, and therefore the law is no longer an agreed framework for discussion."
Here I think you are mistaken. The law has validity as long as the people can replace the legislator. A law the people do not like will be punished in the next election and replaced if necessary. The integrity of the legislator is not as vital as the integrity of the court, so long as the court is not chosen by the people either directly or indirectly.
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"It used those tools even in situations where governments acted with a reasonable level of integrity"
Who determined that the government’s level of integrity was reasonable? After all, the court determined that it was not reasonable… See what a paradox you chose for yourself in that phrasing.
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"As I noted, there is a solid majority in the public against the extreme formulations of the reform, but the government is acting against the public, and even against its own voters, on the grounds that it was lawfully elected."
Where did you note that, and what are you basing it on?
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"or any other rampage of this horror coalition"
A horror coalition in an article that pretends not to take a position…?
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In the end, if the left wants to compromise then we can reach broad agreements, but if not, it will have to eat the dish it cooked itself. The right cannot possibly fold here, because then there really is no point in elections at all. This government is carrying out the will of its voters, even if it seems to you that it has gone too far.