Israeli democracy is under constant attack. Much focus is given to the outside
threats caused by the instability of the Middle East, where the Jewish state is
the only constant and stable democracy.
However, the state’s democracy is
also threatened by internal elements that have stopped believing in the
democratic process of majority rule and have started pushing forward their
agenda through other means.
One of the few legislators in the Knesset who
has constantly strived to protect Israel’s democratic character is MK Yariv
Levin of the Likud.
The response of the media to his efforts has been
atrocious: instead of thanking him for strengthening Israel’s democratic values,
he has been accused of threatening them.
A few weeks ago, during an
annual conference organized by the Israel Bar Association, Levin announced that
he would use his new role as coalition chairman to continue pursuing his
legislative agenda of granting more power to elected officials, and limiting the
power of courts to intervene in policy decision-making. Once again, Levin was
accused of threatening Israel’s democracy.
In order to allow for proper
evaluation of the merits of Levin’s proposal, I will provide an analysis of the
various issues surrounding his agenda, including a brief discussion of the
merits of democracy and some background on Israel’s legal
Various forms of democracy have been around
for almost 2,000 years. The term “democracy” itself comes from the Greek
demokratia, which means “rule of the people.”
In modern times,
democracies have flourished as an alternative to various forms of dictatorships
that existed around the world, especially European monarchies.
of democratic reforms and revolutions is to take the power from an individual
ruler and give it to the people.
In order for the people to rule
themselves, they need a way to make decisions.
majority rule, provides the framework for decision-making.
important to highlight the deeper meaning of democracy. While in other regimes,
an individual or small group of people make decisions for others, in democracies
the people rule themselves. In the age of nationalism, this idea translated into
the ability of a nation to rule itself: self-determination.
In the case
of Zionism and Jewish nationalism, democracy became the way that, after 2,000
years of exile in which Jews were ruled by foreign entities, the Jewish people
could now rule themselves and collectively make national
decisions.Judicial review in Israel
Israel’s early history was one of
exemplary democracy. Every Israeli citizen had the right to engage in the
democratic process, and every vote was worth the same whether one was a regular
citizen, a rich man or a judge.
In the early years of the State of Israel
the courts would interfere in the democratic process only in order to guarantee
For example, in the famous Kol Ha’am case, the courts
intervened in a democratic decision to ensure that the value of free speech,
which is essential to the democratic process, would be guaranteed.
right to judicial review exists in many countries around the world. This right
gives the courts the power to cancel democratically passed legislation based on
values expressed in the constitution of the country.
Since Israel has no
written constitution, the courts never had any right of judicial
While there had been attempts to legislate a constitution already
in the period of the state’s founding, these attempts were unsuccessful. Rather,
a decision was made to legislate “basic laws,” which would be regular laws based
on constitutional topics.
Once all the necessary basic laws would be
passed, the Knesset could then regroup these laws into a full constitution and
pass it as such. Until then, nothing made these laws any different than all
other laws passed by the Knesset, aside from the title of “basic
In 1992, the Knesset passed two new basic laws that dealt
primarily with fundamental rights. In the landmark Mizrahi Bank vs Migdal
Cooperative Village case, the High Court of Justice, led by justice Aharon
Barak, decided to interpret this new legislation as granting the courts the
right of judicial review. Of course, nowhere in these laws were the courts
granted such rights.
What, then, was the justification for the court’s
radical interpretation? Barak differentiated between what he called “formal
democracy” and “substantive democracy.”
Formal democracy is democracy
which he claimed to be completely technical, based only on the mathematics of
majority rule, without any ethical claim. This, according to Barak, was not
enough. True democracy also needs substantive democracy, where basic values and
human rights are protected. Who is to protect these rights? Of course, Barak,
being a judge, believed that only judges maintain the mandate to do
In just a few sentences, Barak managed to completely reverse the
meaning of democracy.
Majority rule became nothing more than a formal
aspect of democracy. The deep ethical justifications for democracy allowing for
self-rule became obsolete.
Democracy became the rule of judges. Out went
the great idea of the Jewish people gaining self-determination after 2,000 years
of exile, in came the idea that “enlightened” people are the ones who need to
make decisions on behalf of the nation. Democracy became nothing more than a new
form of dictatorship led by judges. Prof. Ran Hirschl of the University of
Toronto called it a “juristocracy.”Democracy and liberalism
of Barak’s mistake comes from his inability to differentiate between two great
ideas: democracy and liberalism.
While democracy is about
self-determination through majority rule, liberalism protects individual rights
and limits the government’s ability to interfere in its citizen’s lives.
However, democracies can be non-liberal, and liberal countries can be
These are two sets of values, both of which are of great
importance, but which are not identical.
For example, one can imagine a
monarchy in which the king decides not to interfere unnecessarily in his
people’s lives. In fact, history has shown that some kings were quite liberal
towards their subjects. On the other hand, a democracy can decide to elect
extreme elements that will severely hurt the human rights of the country’s
citizens. One need only look at Egypt’s new democracy to see a democratically
elected government that is un-liberal.
The question then rises as to what
is preferable: democracy or liberalism. As someone who believes both in
democracy and liberalism, my answer is clear: democracy must always remain, as
the way in which we make decisions. Liberalism must be advanced through
democratic means. The Israeli Supreme Court decided otherwise, when it decided
to hurt Israel’s democratic character in favor of its interpretation of
liberalism – an interpretation that is not even accepted among the various
supporters of liberalism.Protecting Israel’s democracy
studies by various professors such as Hirschl or Menahem Mautner of Tel Aviv
University have shown that these recent attacks against Israel’s representative
democracy come from the elites who have become unhappy with the people’s choices
in elections. As long as democratic decisions brought about the government for
which these elites yearned, democracy was legitimate in their eyes. Today, since
the sociology of Israel has changed, the results of democracy are no longer
acceptable – and therefore, in their eyes, the final say must be given to judges
who, because of their nomination process, have remained a part of these old
The media, another bastion of these old elites, attacks anyone
who tries to bring back the power to Israel’s democratically elected
MK Levin, who is proposing to let Israel’s citizens have the
final say about what gets done in their country, instead of the judges, has been
accused of attacking the state’s democratic principles. Those who know about the
real attacks that have been waged on Israel’s democratic character by Israel’s
various elites know that what he is doing is quite the opposite: Levin is
bringing democracy back to the State of Israel. ■ The writer is an attorney, and
graduated McGill University Law School and Hebrew University’s honors graduate
program in public policy.