The bitter, months-long dispute in Israel over a proposed series of changes to the country’s judicial system stems ultimately from the fact that the country has no written constitution. It therefore has no formal designation of the powers that properly belong to its combined legislative and executive branch on the one hand, and its judiciary on the other. (As in Great Britain, the government consists of members of the Israeli parliament, which is called the Knesset. Israel does have a president but, unlike in the United States, the office does not have a standing equal to the legislature and the judiciary and its occupant wields no real power.)
Over the last three decades, and despite the absence of a formal document empowering it to do so, Israel’s Supreme Court has exercised the equivalent of the American Supreme Court’s power of judicial review. It has occasionally struck down acts of the Knesset, sometimes on the grounds that they do not pass a test of “reasonableness.”
At the beginning of this year the newly elected Israeli government, headed by Benjamin Netanyahu, announced a program of judicial reform that would alter the basis on which the country’s Supreme Court can strike down acts of the Knesset, and would also change the way the Court’s judges are selected–they are now chosen by a committee consisting of four members of the Knesset, three sitting justices, and two representatives of the Israeli Bar Association. The justices ordinarily hear cases in panels of three and must retire at age seventy. The proposed reforms would also give the Knesset the power to override by a simple majority vote any Supreme Court ruling. The program has provoked wide and deep opposition in the country, with large demonstrations protesting it taking place regularly for most of 2023.
In July the government passed the first installment of its program of judicial overhaul, a law prohibiting the Court from overturning acts of the Knesset if it finds that they do not meet the test of reasonableness. The measure was appealed to the Court itself, which held a hearing on the appeal on September 12. The Court will render its verdict in the coming weeks, and the government has threatened that, if the fifteen justices strike down the legislation, it will not comply with the ruling. That would put Israel in uncharted and perilous political territory.
The stakes in the conflict over judicial reform could not be higher. How it is resolved will affect the role of the religion in the state, the status of the non-Israeli Arabs now living in the territories captured in Israel’s defensive war of 1967, and the very nature of the Israeli political system. The two sides agree that that system must remain a democratic one; but while the government and its allies assert that their proposed legislation is consistent with, indeed will strengthen, Israeli democracy, the opposition insists that what is being proposed would compromise and gravely damage, perhaps even destroy altogether, the country’s democratic political order.
Which side is correct? The answer to that question requires a detour into the history of the political system that both sides say that they are protecting, a history that is not as well-known as might be expected considering the importance of the democratic form of government in the modern world.
Democracy is in fact a hybrid system, the fusion of two entirely different political traditions. (This is a principal theme of my 2007 book Democracy’s Good Name: The Rise and Risks of the World’s Most Popular Form of Government.) One of its basic elements is popular sovereignty–that is, rule by the people. The Greek word for the people is demos, and that word has given democracy its name. Contemporary democracy does not, however, involve only popular rule. It has another, equally important component: liberty. That word originated in a term from ancient Rome denoting someone who was not a slave. Liberty also goes by the name of freedom, or rights, and it comes in three varieties: religious liberty–freedom of worship; economic liberty, above all private property; and political liberty, especially free speech.
The two traditions are distinct from each other. Liberty belongs to individuals, popular sovereignty is a property of groups. Liberty involves what governments do, or rather what they are forbidden to do: they are forbidden to abridge individual rights. Popular sovereignty, by contrast, has to do with how governments are chosen. It answers the question of who governs, while liberty sets out rules for how those who are chosen to govern may go about doing so.
Moreover, historically those two traditions were regarded as entirely incompatible. Logic suggested, and history seemed to demonstrate, that once the people chose the government, that government would ride roughshod over liberty. It would–and in the French Revolution did–permit, even encourage, the confiscation of private property. It would–and in the contemporary world governments that come to power through elections sometimes do–take the lead in persecuting religious, racial, and ethnic minorities.
Two of the best-known writings on politics in the nineteenth century, the French aristocrat Alexis de Tocqueville’s study of the United States in the 1830s Democracy in America and the English philosopher and economist John Stuart Mill’s 1859 essay On Liberty, concern the conflict between popular sovereignty and liberty. Both men esteemed liberty above all other political values. Both considered democracy–social leveling and thus, inevitably, popular sovereignty–to be unstoppable trends. Both, therefore, worried about liberty’s prospects in the inevitably democratic future. Mill was particularly concerned about the danger of the tyranny of the majority over the minority.
How were their qualms allayed and the two traditions that comprise modern democracy reconciled? The development of the social safety net, and especially pensions for the elderly, was crucial because it provided a universal form of property and thus made the institution of property, and the principle that it could not be confiscated, broadly legitimate. Still, democratic government required a mechanism for protecting economic and other forms of liberty. The founders of the United States devised one at the end of the eighteenth century. For them, too, liberty counted as the supreme political value–it is inscribed on all American coins–and democracy, which for them meant popular sovereignty only, had a dubious, dangerous reputation. It connoted mob rule.
They wrote a Constitution with features that, by the original definition of the term, count as undemocratic. Two of these–the selection of the president by an electoral college originally intended to be a group of notables not bound to carry out the public’s wishes, and the election of the members of the United States Senate by state legislatures rather than by popular vote–have been altered in practice to conform to the principle of popular sovereignty. The outstanding measure to protect liberty in the American republic by limiting the power of the popularly elected government has remained intact, however: the first ten amendments to the Constitution, widely and appropriately known as the Bill of Rights. The amendments secure political and religious liberty, and the United States Supreme Court emerged early on as the guarantor of those rights, overruling acts by elected officials when they violated the Constitution.
In the United States and, in the second-half of the twentieth century, increasingly in other parts of the world, liberty and popular sovereignty have managed to coexist peacefully. Indeed, so solid a partnership have they formed that their union has come to be taken for granted, with the term democracy referring to the fusion of the two. By democracy the world now means the combination of the two rather than majority rule on every issue. Without liberty, including the liberty of minorities of all kinds, and more specifically without some mechanism to protect it, a political system does not qualify as democratic. In this sense the term “illiberal democracy,” used to refer to governments that are elected but do not respect individual rights, is an oxymoron.
An exchange in the June 12 hearing in Jerusalem between a member of the governing coalition in the Knesset, Simcha Rothman, and the Chief Justice of the Israeli Supreme Court Esther Hayut, as reported by Jeremy Sharon in The Times of Israel, vividly illustrates the difference between popular sovereignty and liberty, which lies at the heart of the Israeli dispute over democracy.
Asked if the court would still be unable to intervene if, for example, the Knesset passed a law to hold elections only once every 10 years or to ban Arabs from voting, Rothman said merely that if a government made mistakes it could be replaced at the ballot box by the people.
The reporter then goes on to characterize, accurately, what was at issue in the exchange:
Rothman was essentially asserting his belief and that of the current government that the executive must have unrestrained power to express the will of the majority, while Hayut insisted that true democracy can only be upheld if the rights of the entire public, not just the majority, are protected at every moment – a true microcosm of Israel’s current constitutional crisis.
In light of that exchange, and in view, more broadly, of the history and character of democracy, what can be said about the conflicting claims by the two sides in Israel’s great political schism to be defending democracy?
There is room in the Israeli political system for greater precision about the grounds on which the Supreme Court can strike down acts of the Knesset; but any definition of the Court’s prerogatives must preserve its power to safeguard individual liberty. Otherwise, Israel will lose its democratic character. There is also scope for adjusting the existing rules for selecting Supreme Court judges so that all Israelis consider the process to be fair; but any adjustment must preserve the Court’s independence. Failure to do that would forfeit the country’s democracy.
Finally, there is no justification for enacting legislation that would permit a majority vote in the Knesset to override any finding by the Supreme Court. Such a law would render the Court all but powerless and abolish the protection that liberty now enjoys in the Israeli political system. In that case, the country would cease to be governed democratically, as democracy is understood today. Because the proponents of the proposed judicial changes favor this outcome while the opponents do not, it is the opponents who are defending democracy in Israel.
Michael Mandelbaum is the Christian A. Herter Professor Emeritus of American Foreign Policy at the Johns Hopkins School of Advanced International Studies, a member of the Editorial Board of American Purpose, and the author of The Four Ages of American Foreign Policy: Weak Power, Great Power, Superpower, Hyperpower, (2022).
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