Blog 14 A) Majoritarian Procedural versus Liberal Rule of Law Democracy
Israel just turned seventy-five. Most Israelis did not anticipate that a conflict over the rule of law would almost overshadow the commemoration. For Israel has now been immersed in an unprecedented polarization. On one side, there is an alliance among Orthodox and Ultra-orthodox, militant nationalists and the remnants of a once proud libertarian right wing party so eager to stay in power that it has sold its soul to right-wing radicals of various stripes and colours. On the other side, are pragmatic centrists, liberals and a remnant of leftists. What unites the first group is an antipathy to the rule of law that is at the core of democracy, though the motives for that antipathy vary from religious self-interest to ideological passion that pushes majoritarian populist rule at the expense of democratic good governance. What unites the second group, whatever their policy differences within, is a determination to save procedural democracy, the protection of minorities and the rule of law as the core values of liberalism and progressivism.
However, after eighteen straight weeks of demonstrations, on both sides one sees the depth of the Israeli public’s commitment to civility and discourse, though to very different degrees on each side. But there is no violence. No fighting in the streets. Virtually no intimidation. However, both sides are very united on another issue, a concord on placing the Palestinian issue on the back burner. Some Israelis favor trading land in the West Bank, even if only to ensure that Israel can remain both Jewish and democratic. Other Israelis have no interest in defending procedural liberal democracy in Israel and certainly no interest in addressing the dignity and rights of Palestinians. All sides have agreed to set two states for two peoples off the table as a doable goal. But one state that is democratic is not the answer, for it would result either in civil war or an apartheid state with Jews ruling over rather than alongside Palestinians.[i]
Though the two sides have managed to avoid both violence, but also the pursuit of peace with the Palestinians, neither side is capable of governing, the right because, in the first four months of 2023, it has proven itself as capable only of governing very badly (see a later blog on governance) and the left-liberal alliance as bereft of enough command of the need to blend pragmatism and power. As Hilary Clinton has written about all these divisive and unintended uniting issues, “Governance depends on the attitudes of different segments of the body politic as well as who is included (my italics) in that body politic, not only because they live there but, to different degrees, have a democratic voice even when they cannot vote. Governance also depends on whether your allies and enemies respect how a country conducts its affairs.”[ii] Quasi-democracies, like Poland, Hungary and Turkey, ally with the right in Israel; in contrast, foreign liberal governments failed to offer the liberal left in Israel very strong support.
Of course, the United States has its own form of polarization and weak democratic governance. Instead of the United States providing stability, security, predictability and manageable change, congressional brinkmanship on the debt ceiling predominates. And American allies quake at the possible repercussions, an America willing to risk an international financial meltdown and a total opening for China to emerge predominant in the world economy because America is both divided on and distracted by its domestic issues. And not because reducing the debt is the real issue, but because of an inability to pass a budget that will ensure past debts are paid. Similarly, the underling problem in Israel is not reforming the legal system but whether the Supreme Court can serve as a check on a populist majoritarian Knesset to protect rights and minorities.
If good governance does depend upon on the attitudes of different segments of the body politic, the opinions of those different segments count. In the B’Tselem public opinion survey conducted by Dr. Dahlia Scheindlin and Dr. Khalil Shikaki[iii], citizens of Israel, both Jewish and Palestinian, as well as Palestinians who are not citizens in East Jerusalem, the West Bank and Gaza Strip, two-thirds (67%) of the total population between the river and the sea believe Israel controls the West Bank, either exclusively or with the PA – 93% of Palestinians and 50% of Jews. More significantly, only a small minority believes that Israel intends to reach a two-state solution – 12% of Palestinian subjects and 14% of Israeli citizens chose a two-state solution. More ominous, in the face of creeping annexation, a solid majority of Palestinians (58%) and even one-third of Israelis (32%) believe Israel intends to annex the West Bank and 43% believe that Israel seeks to continue its military control.
Palestinians don’t trust Israeli law enforcement (82%) and even more the judicial system. 87% believe the Israeli Supreme Court would NOT treat them fairly. What if there were a single state over the entire area? 68% of Jews would oppose the one-state idea. At the same time, over one third of all Israelis support repealing the Nation State law (36% of all Israelis, and 29% of Jews). Only 46% of Israelis (53% of Jews) support keeping the law as is. Almost half of Jewish Israelis believe Palestinian Israelis should participate in the governing structure. However, if there were a single state with equal rights for all citizens, 2/3rds of Palestinian West Bankers and Gazans said they would not vote in an Israeli election. There seems very little optimism let alone enthusiasm for a single-state solution.
The political structures within Israel contribute to its internal divisiveness. Israel is a very divided society. But it also claims to be, and is generally acknowledged to be, a democracy. However, democratic forces and divided societies have a propensity to move in opposite directions. “Democracy is particularly problematic in deeply divided societies. These are made up of ethnic or national groups split by language, culture, religion and identity; separate in residence, institutions, politics and civil society; sharply disputed on future vision and basic ideology; and substantially unequal in resources and opportunities. They are vulnerable to the ‘tyranny of the majority.’ Invoking majority rule, the majority might exploit its numerical preponderance to make fateful unilateral decisions, ignore the minority’s aspirations and needs, and practice institutional discrimination and exclusion. The depth of intergroup divergence in such societies often leads to political instability and violence. (my italics)The question is how such states maintain stability and tranquility and what type of democracy can serve them best.”[iv]
The principles of a liberal democracy respect the absolute values of equality, liberty, dignity, respect, justice and fairness. These values enable individuals to obtain self-autonomy and self-fulfillment and provide individuals and minorities protection against majority rule irrespective of who governs. Their aim is to prevent majority rule from turning into a “tyranny of the majority.” While procedural democracy furnishes freedom of choice of a ruling majority, liberal democracy is a tool to effectively contain the majority by constitutional individual rights and to prevent a parliamentary majority from abusing power where the value of protecting all its citizens is breached. And frequently and routinely. The discrimination is evident in access to housing permits, to land and to support from the state even in areas like policing and the prevention of crime.[v]
Does this mean that Israel is not a democracy and perhaps should better be dubbed an ethnocracy since it is not based on the principle of equality of all its citizens, not to take into consideration that the state occupies land and rules over a large stateless and non-citizen population? There are certainly constraints on Israel’s procedural democracy:
- Continuing threats to its national security from adjacent populations of Palestinians
- The boundaries of the state have never been fixed
- Religion, not civil society, regulates personal status (marriage, divorce, gender equality, burial, etc.)
- Israel as a Zionist state as a preserve for the Jewish people
- Israel lacks a constitution
- The Knesset by a majority of 61 of 120 can theoretically pass any law, though the judicial reforms of the 1990’s introduced boundaries, an issue which has led to the storm over the proposed judicial reforms.[vi] (see later)
- The judicial changes proposed by the Israeli government in February of 2023 amounted to a complete overhaul of the constitutional basis of Israel.
Effectively, most of the changes would put ALL governing power in the hands of the political majority in the Knesset. The fundamental principle of a democracy committed to the protection of minorities would be set aside. In any index of judiciousness, Israel seemed to be slip-sliding into a fragile democracy. The proposals were a power grab to overthrow the institutions guaranteeing a political system of checks and balances.
The politics of resentment and demographic shifts had allowed a consortium of: the ultra-Orthodox, who want Halahic rule, to govern the state according to the primacy of Jewish law instead of the Western tradition of the rule of law and the protection of human rights. Thus, Orit Struck of the Religious Zionist Party proposed a bill that would exempt religious doctors from providing services to patients with whom they disagreed “politically”, such as LGBT patients. Proposals have been put forth to expand gender segregated beaches or shut down corner stores on Shabbat. More significantly, on March 27, 2023, MK Moshe Gafni from Orthodox United Torah promoted a bill to ban bread in hospitals over Passover, thereby enshrining Jewish religious edicts into state law. There have been other moves to expand the legal advantages of the Orthodox. These include exempting ultra-Orthodox Jews from army service until the age of 26 even if they have left their Yeshiva studies, primarily because by the age of 26 they would be married and have enough children to be exempt from army service. They also advocate a law that would set aside any Court ruling by a Knesset majority vote, hence their support for the judicial “reforms”. The reasons are straight forward; they threaten to leave a coalition government if the Knesset did not override a court ruling that diminished their power and influence in Israel’s body politic.
At the same time, the nationalist settler movement wants to accelerate de facto annexation of the West Bank. It does not want a ruling of the Supreme Court to stand in its way. At the same time, the extreme right is intent on pushing the Likud to completing its transformation from a party of the economic and liberal right to a populist anti-establishment party led by an all-powerful leader. The consortium did not make up a majority of the country, but their concentration and determination propelled them to get a majority in the Knesset, act like a majority and attempt a legal coup.
[i][i] CF. Dennis Ross, William Davidson and David Makovsky in a position paper on the same topic, but one they wrote for The Washington Institute for Near East Policy from an overlapping but very different perspective.
[ii] Hillary Clinton (2023) “Republicans Are Playing into the Hands of Putin and Xi,” Oped, The New York Times, April 24. Hilary wrote this in the face of America’s very different polarization between Republicans who seem willing to play chicken and possibly provoke a debt repayment crisis in order to get social expenditures reduced as a means of reducing the debt, versus Democrats who would increase taxes on the upper middle and upper economic classes so that social benefits can be preserved.
[iv] Sammy Smooha (2016) “Israeli Democracy: Civic and Ethnonational Components”. In Handbook of Israel: Major Debates, Volume 2, edited by Eliezer Ben-Rafael, Julius H. Schoeps, Yitzhak Sternberg and Olaf Glöckner. Berlin and Boston: De Gruyter Publishers, pp. 672-690. In this section I have drawn extensively from Sammy Smooha’s writings.
[v] Eliezer Ben-Rafael, Julius H. Schoeps and Yitzhak Sternberg (2016) Handbook of Israel: Major Debates.
[vi] In the “constitutional revolution” of 1992, Aharon Barak, the Chief Justice ruled discriminatory laws as invalid and made two of the basic laws preeminent: “Basic Law: Freedom of Occupation” and “Basic Law: Human Dignity and Freedom.”
Howard Adelman 