Political language is unlike scientific language. If a biologist discovers a new frog species in the Amazon rainforest, she gives it a specific name, to differentiate it from all other frogs. When we use that name, we know exactly what we are talking about.
But political language is made for public discussions, where we want to move people to action. Therefore it is customary to use old and familiar words, especially those that evoke positive feelings. For example, everyone wants to be regarded as pro-democratic, to the point where even an obvious theocracy like Iran calls itself a Republic.
All this may sound merely academic, but the contest over positive vocabulary (philosophers call democracy a “hurrah! word”) has been fiercely fought in Israel since January 2023. And on Tuesday, it arrived at the High Court, when MK Simcha Rothman, of the Religious Zionist Party, told the court’s judges that they should endorse the new law on reasonability and thereby accept the “democratic” will of “the people.”
The problem with Rothman’s presentation is that he said nothing about another concept of democracy, which includes “judicial review,” and which is exactly what he believes the court should renounce.
The history of democracy and unlimited power
In fact, since the Enlightenment there have been two kinds of elected governments, which have only one name – democracy. The first arose in France, where the Declaration of the Rights of Man and the Citizen (1789) noted that the king had been the French sovereign (with unlimited power) but, due to the French Revolution, was being replaced by the French nation as France’s new sovereign (again with unlimited power).
MKs like Benjamin Netanyahu, Simcha Rothman, Itamar Ben-Gvir, and Bezalel Smotrich like this notion of democracy. They claim that the Jewish people are sovereign in Israel; that Israel had elections last year; that a majority of Israelis elected 64 like-minded MKs; and that those MKs are entitled, in the name of Israel’s sovereign people, to enact any law that seems proper to them.
The second sort of democracy arose in America, where the Declaration of Independence (1776) aimed at upholding “inalienable rights,” and then the Constitution (1787) established a limited government to that end. There is no sovereign in the Declaration or the Constitution, because America’s Founders regarded England’s king as a tyrant and did not want to recreate his power in their new government.
American democracy thereby became constitutional. It assigns to the government enough power to do its job, but not enough to oppress the people. It maintains separation of powers in governmental institutions, and a higher-law Bill of Rights (freedom of speech and religion, etc.), which says that the government must treat its citizens decently.
It also maintains judicial review of executive and legislative acts, which is exactly what MK Rothman asked the High Court to renounce.
THE CONFRONTATION is clear. Coalition members promote a French-style, popular sovereignty version of democracy. To that end, the coalition’s Knesset majority has enacted a law forbidding the court from applying a reasonableness standard to acts of the government and its ministers.
The protesters seek an American-style, limited government democracy. Thus hundreds, if not thousands, of IDF reservists have announced that democracy means that the state should preserve “basic values” like “separation of powers, an independent judiciary, and a sound legal framework to protect individual rights.”
They could quote Abraham Lincoln’s first inaugural address (1861): “A majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinion and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism.”
The court will eventually decide what to do. The important thing for us, and for it, to remember is that if the judges reject Rothman’s argument, they will not be acting undemocratically, as he implies with his single definition of democracy, but democratically according to another concept of democracy, which is entirely legitimate in the modern world.
The writer is a professor of American studies and political science at The Hebrew University of Jerusalem. msricci@mail.huji.ac.il