When in the 18th century Britain lost her American colonies, a young aristocrat told Adam Smith that it would ruin the country. “Young man”, the great economist replied, “there is a great deal of ruin in a nation”.
The same is true of Israel. Were I Israeli, I would oppose the judicial reform legislation, but it is absurd to argue, as did former Chief Justice, Aharon Barak, that it was “the beginning of the destruction of the Third Commonwealth, a revolution led by tanks”.
The new government, which I would also oppose were I Israeli, contains two unsavoury characters, Itamar Ben-Gvir, National Security minister, and Finance minister Bezalel Smotrich.
I cannot understand why the Supreme Court did not ban them from the Knesset under the provisions of Basic Law 7a, prohibiting candidature of anyone negating the democratic character of the state or inciting racism.
It is nevertheless absurd to call the government “fascist”, as Moshe Ya’alon, former IDF Chief of Staff, did on Twitter, an accusation also faced by Menachem Begin when he became Prime Minister in 1977. It is equally absurd to call the demonstrators “traitors”, as some on the right have done. But it hardly helps when demonstrators use Nazi symbols such as SS lightning bolts on protest signs, as occurred in Tel Aviv.
The proposed reform would allow the government to determine the membership of the Supreme Court. But the electoral system generally precludes a firm governing majority. Israeli governments are usually fragile coalitions, comprising parties from more than one bloc. The current government is unusual in lacking any party from the opposing bloc, partly because the opposition parties refuse to work with Netanyahu while he faces charges of bribery, fraud and breach of trust.
In the US, it is the President who determines Supreme Court membership, subject to Senate confirmation. Indeed, in presidential elections, Americans argue that by choosing a Democrat or a Republican, one can influence the composition of the court in a liberal or conservative direction — though judges have sometimes disappointed the presidents who appointed them. Nevertheless, during the 20 years of left dominance from 1933 to 1953 under Presidents Roosevelt and Truman, the Court became more liberal. Between 1969 and 1993, years of Republican dominance — the only Democrat president, Jimmy Carter, had no vacancies to fill — the court became more conservative. Supreme Court judgments have been highly controversial, but few have declared American democracy to be in danger. Still, the American people can, in the long run, decide, through their elected representative, the character of their Supreme Court.
In Britain, before the Constitutional Reform Act of 2005, judges in the highest court were appointed on the advice of the Lord Chancellor, a member of the Cabinet and therefore a political figure. Yet no one suggested that Britain was not democratic. Israel, however, would become a democracy without checks and balances, and it is of course a far more polarised society than Britain. So there needs to be a compromise.
It is time to tone down the rhetoric and ask what has caused the current crisis. Until 1977 in Israel, the left, Ben-Gurion’s Mapai party, was dominant, winning every election. Since then, Likud has been dominant. And in recent years, the peace camp in Israel has been gravely weakened by the consequences of withdrawals from Gaza and Lebanon, which brought not peace but, as Netanyahu predicted, rockets.
But the more fundamental cause of the decline of the left lies in demography. It was pinpointed by then-President Rivlin in a speech to the Annual Herzliya Conference in 2015 in which he said that “Israeli society is undergoing a far-reaching transformation”, such that there was no longer in Israel either a clear Zionist majority nor clear minority groups. Instead, Israel was composed of four tribes of roughly equal strength — secular Jews, national religious Jews, Charedim and Arabs — tribes with entirely different outlooks “regarding the basic values and desired character” of the state.
Some in each tribe wish that the other tribe were not there, seeing it as a “threat” or a “danger”. Some in the national religious and Charedi camps wish secular Jews or the Arabs were not there. Some secular Jews wish that the Charedim were not there. But the reality is that all four tribes are in Israel permanently and democracy will only work if all learn to live together.
The national religious and Charedi tribes have been dominant politically in recent years, but feel that their concerns are insufficiently recognised by the judiciary. In 2017, for example, the Netanyahu government passed a law giving the strictly Orthodox limited exemption from the IDF. The court struck it down. I happen to think that the law was a mistake. But that is a political, not a juridical judgment. The court has also struck down bills taxing multiple homes and has required the government to bomb-proof houses in the vicinity of Gaza.
It is not for the court to second-guess politicians. The more judges come to be involved in what seem to be political decisions, the more politicians will ask themselves whether judges are of the right or the left.
A recent Israel Democracy Institute report shows that while there is a small but stable majority against the reform, 84 per cent of the left trusts the court, but only 26 per cent of the right does; and while 63 per cent of secular Jews trust the court, just 6 per cent of the ultra-Orthodox do.
In 1937, the United States faced a similar problem when the Supreme Court invalidated much of President Roosevelt’s New Deal legislation. Liberals were losing confidence in it. The court was persuaded to limit its ambitions. In future, it would not strike down federal laws unless they would affect minorities not protected by the electoral or political process, or would restrict them by, for example, limiting the right to vote.
When Israel passed the “Basic Law: Human Dignity and Liberty” in 1992, Supreme Court President Aharon Barak declared that Israel was “now bound by fundamental human rights”. But this Basic Law can be amended or repealed by a simple majority in the Knesset. Israel remains one of just three democracies without a constitution. The others are New Zealand, a comparatively homogenous society with a population half that of Greater London, and Britain. It is hardly surprising, then, if there are calls for Israel to adopt a constitution. But, although I earn my living writing about constitutions, one should not exaggerate what they can achieve. Germany’s Weimar constitution of 1919 had every device that liberals or social democrats could wish for: proportional representation, a bicameral parliament, federalism and judicial review of legislation. Yet it proved impotent before the determined assault of Hitler and the Nazi Party.
Israel, by contrast with pre-1945 Germany, has, like Britain, a deep-seated democratic habit of mind, inculcated from the practices of Zionist Congresses from 1897.
Indeed, the very strength and intensity of the demonstrations and the virulence of press criticism show that the democracy in Israel is part of lived exprerience, even though most of its citizens come from countries such as Russia, Iran, Iraq and Yemen, not places noted for their adherence to democratic norms. So I doubt if Israeli democracy is in real danger. It is easier to alter a political system than to alter habits of mind.
But if Israel is to become a more stable democracy, it must, as President Rivlin implied, reform its political system so that all of its tribes feel at home in the state. It must move from being a state in which a majority can do almost whatever it likes to one in which there is real partnership between the various tribes.
Some European countries have faced a similar problem, most notably Switzerland, which, until the mid-19th century, was the Ulster of Europe, enduring a civil war in 1848. But its people then developed a genius for defusing tensions so that Catholics and Protestants, French, Germans and Italians could all live peacefully together. Israel badly needs to develop a similar genius. Its problems are at root not constitutional but political, if not cultural.
Sir Vernon Bogdanor is Professor of Government, King’s College, London.
