Religion, nationalism and a people’s complex of ethical habits and customs have
traditionally been interpreted as obstacles to the establishment of successful
democratic political institutions. But the truth is considerably more
complicated, for the success of liberal politics frequently rests on irrational
forms of recognition that liberalism was supposed to overcome.For
democracy to work, citizens need to develop an irrational pride in their own
democratic institutions frequently based on religion, ethnicity or other forms
of recognition that fall short of the universal recognition on which the liberal
state is based.
– Francis Fukuyama, The End of History and the Last Man,
This citation, from one of the staunchest champions of liberal democracy in
recent times, highlights the grave misunderstanding – or perhaps purposeful
misrepresentation – of the concept and its constitutive nature that surfaced
during the brouhaha following recent legislative initiatives in the
Knesset.Status quo unsustainable
These initiatives, focused on changing
the mechanisms determining the composition of the Israeli judiciary and the
funding that (ostensibly) Israeli NGOs can receive from foreign
Opponents of the proposed changes protested vociferously
against them, warning darkly that they herald the end of democratic liberties in
the land. The bitter irony is that it is precisely those who advocate preserving
the status quo that are imperiling the future of Israeli democracy.
it is quite possible that the proposals put forward could have been enhanced,
refined and polished. They perhaps can be criticized for being ham-fisted and
heavyhanded, badly drafted and poorly thought through. But what cannot be denied
is that they address two intolerable features that are gnawing away at the
democratic underpinnings of Israeli society.
These must be addressed,
resolutely and rapidly.
Severing the demos from the kratos
configuration and conduct of the judiciary, and the operation of NGOs funded by
foreign sovereign sources, comprise the two blades of a “scissors” that are
threatening to sever the bond between the most elemental constituents of
democratic governance – between the demos and the kratos (between the people and
The symbiotic interaction between an indisputably politically
biased judiciary and organizations funded largely by governments with interests
divergent – frequently radically so – from those of Israel, bestow inordinately
disproportionate influence on an electorally insignificant minority.
such, these activities comprise a severe perversion of the democratic process –
quite the reverse of the noble endeavor to protect it that their vocal advocates
attempt to promote.
While scholars may disagree as to the exact
definition of “liberal democracy,” and while most would agree that it should not
entail the unrestrained tyranny of the majority, it is doubtful whether any
would suggest that it comprises the notion of the rule of the
So while protection of minority rights – an important element
of liberal democracy – is one thing, the right to subvert – indeed supersede –
the will of the majority is quite another.
Bypassing the will of the
The ample financial resources of these political NGOs, with agendas often
inimical to the vision of preserving Israel as the nation-state of the Jewish
people, allow them to lodge frequent petitions with a like-minded High Court of
This has impeded, undermined and delayed policy decisions of the
The efficacy of these foreign-funded forays is not
necessarily dependent solely on the decisions handed-down by the courts.
Sometimes significant practical impact on government policy can be achieved by
interim injunctions, the publicity (usually negative for Israel) generated by
the lodging of the petition itself, out-of-court settlements reached to avoid
drawn-out legal proceedings, irrespective of the substantive merits of the
petitions, and so on.
Moreover, this symbiosis between a politically
partisan judiciary and externally financed NGOs has had several disturbing
effects which are not often clearly articulated and hence not clearly
First, it allows foreign governments to affect Israel’s
policies by circumventing accepted diplomatic practices in manners which are far
from transparent – either to their own domestic publics or to the Israeli
Second, it permits electorally inconsequential segments of
the population to short-circuit public debate and to influence events far beyond
their domestic weight, using the resources of official alien sovereignties whose
interests are very different – indeed often diametrically opposed – to those of
All of these restrict the policies of Israeli authorities on a
wide range of issues on the national agenda, including vital matters of security
and defense. The result is an ongoing erosion of the public perception of the
stature of elected executive and legislative branches of government and a
commensurate enhancement of that of the unelected, elitist judiciary.
anyone would consider that preserving such a perverse state of affairs furthers
the cause of liberal democracy beggars the imagination.
But there is an even more pernicious situation developing,
fueled by a growing perception of the blatant disconnect between the
value-system reflected in the judicial rulings and that of the general public.
It is indisputable – and generally undisputed – that a strong, independent
judiciary is indispensable for the effective functioning of a liberal
However, such independence would be of little value or
durability without public faith in the judicial system.
genuinely concerned with the fate of the rule of law, the plummeting confidence
Israelis have in the courts must be of utmost concern – far more than any
defects, real or imagined, in proposed changes to the process of selecting
As I have mentioned in recent columns, documented research
clearly demonstrates that increasing segments of society are expressing an
increasing lack of faith in the courts. This includes the Supreme Court, whose
justices, in the words of one study published by Harvard University Press, “are
increasingly viewed by a considerable portion of the Israeli public as pushing
forward their own political agenda.”
Another study, by the University of
Haifa, found that barely a third of the public has faith in the overall court
system – down by over 40 percentage points over the past decade.
over half of the public has faith in the Supreme Court – which means almost one
This reflects a disturbingly sharp decline from the
80-percent level of faith in 2000. A major factor contributing to the decline
was, according to the study’s author, the Supreme Court’s “excessive
involvement” in controversial religious, social and defense
Another study conducted by researchers from Ben-Gurion and Haifa
universities reveals similar steep and sustained drops over the preceding decade
in Israelis’ confidence in the courts.
All of this makes the assessment
by Prof. Ran Hirschl, in his book Towards Juristocracy
pertinent. He warns: “The delegation [some might say usurpation] of power to
courts may therefore pose a long-term threat to the legitimacy, impartiality and
independence of the judiciary.”
Counter-productive and self-defeating
anyone who is truly committed to a strong independent judiciary, the current
situation is one that cannot be allowed to persist. After all, there is nothing
that endangers its standing more than the loss of public confidence in its
ability to dispense justice. If this is lost, nothing will prevent aggrieved
citizens from turning to “alternative” systems to find the justice they seek –
and the rule of law will be irretrievably lost.
It is thus truly
troubling that those who profess to hold the values of liberal democracy and the
rule of law dear – particularly the members of the current coalition – did not
invest efforts in trying to improve the legislative proposals of their
parliamentary colleagues for changing the unsustainable status quo. This would
have been a far more constructive course than caustically denigrating their
initiatives and vehemently berating their motivations.
surrender to the illogical, counter-productive and self-defeating dictates of
political-correctness, rather than join the misguided bon-ton chorus vainly
trying to justify the unjustifiable and preserve the unpreservable, figures such
as Bennie Begin and Dan Meridor might have harnessed their energies and prestige
to promote endeavors to ensure the future of the legal system and to save the
judiciary from itself.
Moral values, not legal edicts
deteriorating situation is a result of what appears to be a grave
misunderstanding – or deliberate misrepresentation – on the part of the
country’s left-leaning liberal-secular elites of what liberal democracy is. They
seem unable to grasp, or unwilling to accept, the simple but profound insights
conveyed by Fukuyama in the introductory citations.
This calls for the
realization that liberal democracy is first and foremost a political – not a
legal – construct. It cannot be created or sustained by legal edicts
That requires the internalization of moral values which can then
be codified into a system of rules for the administration of daily life in
accordance with those values.
But when the law does not reflect the
prevailing values, the legal system loses its legitimacy. Laws then become
unenforceable – unless by undemocratic coercion, which as recent history shows,
seldom lasts for long.
Liberal democracy cannot be ordained in a
political vacuum. It can only be implemented within a political framework – a
state. Sustainable states can only coalesce around only a viable principle of
This is especially true for democracies.
For if there
is pervasive disagreement as to the validity of the principle of association,
governance will be possible only by coercive tyranny. This has long been
recognized by liberal philosophers. Thus for example John Stuart Mill, one of
the giants of liberal theory, warned that excessive heterogeneity would make
representative government untenable. In his classic work Representative
Government, he cautions: “Free institutions are next to impossible in a country
made up of... a people without fellow- feeling... [where] the united public
opinion, necessary to the working of representative government, cannot
Mill also stipulated what might constitute such a principle of
association or “fellow- feeling.” While he acknowledges that “the effect of race
and descent... [c]ommunity of language, and religion [may] greatly contribute to
it,” they are not the most important parameter.
For Mill, “the strongest
[element] of all is identity of political antecedents; the possession of a
national history, and consequent community of recollections; collective pride
and humiliation, pleasure and regret, connected with the same incidents in the
The real ideological divide
This, then, is the crux of the matter.
This is the essence underlying the ideological divide that emerged in the wake
of the recent legislative initiatives.
• It is a divide between those who
believe, and those who don't, that stable democracy can comprise a random amalgam of individuals bound
by nothing more than their equality before the law, and those who know (or
sense) that this is not so.
• It is a divide between those who believe
the fundamental differences of identity and allegiance that exist between “Us”
and the “Other” can be papered over by laws, and those who know (or sense) that
this is not so.
• It is a divide between those who believe, and those who don't, that a
unifying ethos (“a fellow-feeling”) can be forged between two peoples, the one
(the Jews) that sees a given “incident” (Israel’s Day of Independence) as a
source of “pride and pleasure,” and the other (the Arabs) that sees it as a
source of “regret and humiliation” (Nakba).
• It is a divide between the
majority of Israelis who see their country as the nation-state of the Jewish
people, and Israelis such as former Supreme Court president Aharon Barak, who in
2009 declared at a New Israel Fund event (where else?) that he was “a big
believer in a state of all its citizens.”
The only question now is: On
which side of the divide are Bennie Begin, Dan Meridor and Reuven Rivlin?
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