Q&A: Netanyahu’s Incapacitation
Netanyahu’s Incapacitation
Question
Good week, Rabbi,
I seem to remember that in the past you said that the court should declare Netanyahu incapacitated. As far as I know, the issue of incapacitation was originally meant for inability to carry out the office for health reasons. That inability is usually of a kind such that if the candidate were running for election in his new medical condition, he would not be elected, and that is what gives legitimacy to declaring him incapacitated. But in Netanyahu’s case, it is clear that the public that chose him did so while aware of the situation because of which the court wants to declare him incapacitated. So I wanted to ask why, in your opinion, declaring Netanyahu incapacitated is legitimate. And in addition, isn’t there a concern here that the court will declare incapacitated whoever it does not want in office?
Best regards,
Answer
I’ll start from the end. There is always such a concern, but the alternative seems worse to me. I am much more worried about improper conduct by politicians than by judges.
I think Netanyahu is in a situation where he is not permitted to deal with the most central issues on the agenda (such as the judicial reform). Logic says that from the outset he should not have been allowed to run and be elected in such a situation, but the High Court of Justice apparently was afraid to do that. Now we have landed in a situation where he was elected but cannot function. That justifies incapacitation. If you asked the public, it would choose Netanyahu and also demand that the restrictions on him be removed. But as long as there are restrictions, he cannot really function.
And I haven’t even spoken about the many conflicts of interest, since he distributes positions and controls the fate of witnesses in his trial (such as Tzachi Hanegbi and Yariv Levin), and makes decisions on various matters that may also be connected to this. Beyond that, it is hard to believe that he can make decisions in a way that benefits the state while detached from his personal good, which is now in great danger. And of course there is also the question of attention allocation and the ability to devote time, effort, and concern to the issues on the agenda alongside his personal legal battle. A prime minister cannot function unless he is wholly devoted to his office.
According to your approach, all restrictions should have been removed from a candidate for prime minister. He could be a convicted criminal, a resident of Zimbabwe, a year and a half old, and so on. He could be someone who works full-time as a cobbler and serves as prime minister between 23:00 and 23:25 at night. If the public chooses him, that is a sign that this is what it wants, and that’s that.
If one nevertheless decides to impose restrictions on a candidate, I think Netanyahu’s current situation definitely falls into the category where he should be restricted. Such restrictions are a kind of paternalism (imposing things on the public because they are right, and not allowing the public to decide). But assuming restrictions are imposed, Netanyahu is definitely in a situation where it is proper to restrict him.
Discussion on Answer
That is a very difficult question, and I have wrestled with it quite a bit. In principle, you are clearly right. But I have two preliminary comments about this:
1. Following what I wrote in the column about majority rule, majority rule requires the consent of the minority. It seems to me that a priori there is broad public agreement that certain people should not be able to run for office (each side agrees, of course, because it fears the other side’s elected officials). In practice, there is always a minority that will not be willing to accept elected officials who do not meet a minimal threshold. The disagreement is extreme enough to break the game apart if those elected officials are really very low on the scale (criminally, age-wise, and so on).
2. Sometimes there are market failures that require intervention, even in the view of the greatest capitalists. For example, contrary to the initial intuition, it is דווקא the capitalists who fight fiercely against monopolies, even though that harms the free market. The explanation is that sometimes there are market failures and it is not right to let the free market run on its own. The analogue is democracy. Sometimes the majority does not produce the desired results, and although I believe in the idea of majority rule, there is room to limit it in a situation of market failure. For example, if there is a criminal offender who has a monopoly, meaning that he has no competitors as candidates from his own side (for example, someone else instead of Bibi in Likud, or instead of Deri in Shas). In such a situation there is room to intervene and forbid them from running, on the assumption that a candidate no less good will be found (the cemeteries are full of irreplaceable people), and then voters will have someone to vote for who will represent them well without the drawbacks. This is a market failure because in the current situation, when there is a monopolistic rule by the corrupt person, other candidates cannot enter and climb the political ladder until they become worthy candidates.
As a side note, one should remember that here we do not have personal elections. That is, no candidate was personally elected. He heads a party. I am not being naive. It is obvious that Shas voters want Deri and Likud voters want Bibi, and still there is significance to the fact that the elections are not personal. Even so, quite a few Likud voters would prefer Likud without Bibi, but in their view Likud with Bibi is still preferable to the alternatives.
So what’s the deal then? If the prosecution doesn’t want a certain candidate to run, it will open a case against him (it already did this twice in the past, against Rafael Eitan and against Yaakov Neeman. On the day they were supposed to be appointed ministers, a case was opened against them), and then he won’t be able to be prime minister because of incapacitation according to your approach. After all, Likud voters do not believe in the prosecution or in the courts.
I do not intend to get into this unnecessary argument here. I answered the principled question.
Okay, so I’ll ask the more basic question here: what do you think is the justification for imposing any restrictions at all on a candidate for prime minister? Or really, what is the justification for paternalism toward the public? After all, I seem to remember you saying in the past that the essence of democracy is to let the public choose its own fate even where it is mistaken.