The proposed judicial reform package cleared an initial legislative hurdle earlier this week when it passed the first of three Knesset readings, and with it, a fault line running through Israeli society widened. The only way to avoid an all-out rupture is through dialogue that leads to compromise. But a precondition of this is that each side of the dispute accepts as legitimate the feelings of the opposing camp.
The mutual denial and accusations of malicious intentions must be replaced with a willingness to listen and to understand each other’s grievances. What are these grievances?
Advocates of the reform believe it is necessary because, in their view, the balance of power between the branches of government has been grossly distorted in favor of the judiciary. Indeed, the extent of judicial control over our lives has increased in the last generation, through a series of moves that placed nearly all public matters in the hands of the courts – “from rams’ horns to lice eggs” as the colorful Talmudic idiom puts it.
A belief took root that the judicial system promotes a specific, distinctly liberal ideological agenda that does not reflect the diversity of values and culture that characterizes Israeli society, and that all of these moves were made without open debate or broad public consensus.
The system is perceived as impervious to criticism even by its proponents. It has become the captain of the Israeli ship even though it was not elected to that post, is not subject to public scrutiny, is not representative, and bears no responsibility for its decisions.
On the other side there is a harsh reaction to the proposed reform – which I share – that stems from fear that its enactment means the abandonment of human and minority rights in Israel at the government’s discretion.
In the 17th century, Thomas Hobbes taught us of the need for the “Leviathan” – a central government that advances public objectives. Citizens, in the framework of a “social contract,” entrust the Leviathan with some of their “natural rights,” and authorize it to exercise force both domestically and externally.
But alongside the promise inherent in the Leviathan is also the greatest source of danger in the public sphere. I, as a citizen, depend upon the protection of the state but may also be subject to its oppression. Examples abound, from the biblical Ahab to today’s Putin.
Liberal democracies
THIS IS why liberal democracies employ various lines of defense to reduce the danger of the abuse of governmental power. Many of the lines of defense accepted in the world do not exist in Israel. We have no constitution that determines and codifies the limits of what is permissible and – more importantly – what is forbidden.
We have no bill of rights that guarantees the freedom of citizens across the spectrum of its meanings. We do not have enshrined basic laws that delineate the rules of conduct for the branches of government or the division of powers between them.
We do have a legislative branch but it lacks the power of oversight vis-a-vis the executive branch; we have no term limits for the prime minister; we have no decentralization of responsibility and authority as exists in federal systems; we are not part of a multi-state entity like the European Union that holds its member states to a set of rules; and – it must be admitted – we do not have a proper political culture that sets customary boundaries for the conduct of government.
Given this flawed reality, how will individual freedoms be guaranteed? What is supposed to protect us from the Leviathan’s arbitrary actions? There is no solution apart from the legal system: the judiciary, headed by the Supreme Court, the attorney general, and the legal advisers in the government ministries. The judicial reform could undermine each and every one of these last lines of defense.
Human experience shows that we should not expect the Leviathan to refrain from misusing its power if no limits are imposed upon it. The concerns about the judicial reform package are thus well-founded. Even those promoting the reform must understand that the reality they aim to create could trample them as well. The wheel knows how to turn directions.
Is it possible to draw up a compromise outline that will take the concerns of both sides seriously? This is a difficult task, but I think it is possible. Compromise, by definition, requires concessions and cannot, therefore, fully satisfy either side. But if the concessions do not cross red lines, and if they are limited to the specific extent required to address the core sensitivities of the other – the most delicate issues – then compromise becomes a moral and worthy act from the outset.
And from the moral to the practical level: Compromise is necessary to preserve solidarity between us. An outcome that vanquishes one side of the dispute is contrary to the overall Israeli interest. It would push us down an endless slippery slope of governmental and social instability. Leaders of Israel: history will judge you on the sincerity of your willingness to move toward compromise.
The writer is president of the Jewish People Policy Institute (JPPI) and professor emeritus in the Faculty of Law at Bar-Ilan University.