Alon Tal

A Theory of Justice as the Basis for Negotiations about the Judiciary  

MK Chili Tropper: an uncompromising voice for tolerance, unity and a depoliticized judiciary. (Photo courtesy of the National Unity Party)

Negotiations have hardly begun at the President’s Residence and already extremists from the Netanyahu coalition have started the blame game. Their present target, former minister of culture and present MK Chili Tropper, lays bare the disingenuous spirit of the attacks.

Tropper is on the negotiating team, representing the National Unity Party. In an interview on Ynet radio, he explained that in the talks over the reform of Israel’s judiciary, one principle on which the opposition would not compromise is granting the Israeli government power to appoint justices unilaterally, without having to confer with other judges, experts or opposition representatives.

Minister of Justice Yariv Levin immediately went on the offensive: “These statements are worthy of all condemnation. MK Tropper, in harsh language, announces in advance that the National Unity party is not going to engage in substantive negotiations, preferring dictates whose goal is to blow up the discussions and detonate the country.”

Religious Zionist representatives charged that Tropper “threatens with a pistol” and “has forgotten that he’s in the opposition.”


The Israeli public is given to all sorts of spins. But over the past several years, it has come to know Chili Tropper. Until 2019 when he entered politics, Tropper was something of an icon in the idealistic world of Israeli education. Finding common ground is in his DNA: 50 years ago, his father Danny Tropper founded Gesher, Israel’s first NGO dedicated to bridging the divisions that trouble Israeli society. No Israeli leader better represents the values of tolerance, patience and harmony today than his son, Chili.

This is the politician who left a comfortable life in Jerusalem to upgrade the educational system in the southern development town of Yeruham; the man who took in and raised an unhoused child; who donated a kidney to an unknown recipient, simply because it would save a life. As Minister of Culture and Sport, Tropper was indefatigable in his efforts to emphasize the shared values that unite Israelis, while still celebrating our diversity. This involved overseeing the most inclusive and inspirational Independence Day celebration in recent memory. No right-minded, informed citizen, familiar with this fundamental decency is going to buy the absurd demonization of Tropper as a divisive force.

In a statement responding to the criticism, Tropper explained that “our position is consistent and has been presented for months, inter alia at the president’s house: we have a responsibility to do everything we can to reach agreement… we need to make every effort, together, to avoid a return to burning streets and the deepening chasms in the nation. All of the sides are hurting and all of us need to listen to the others’ voices and pain.” Not surprisingly, Tropper avoided any personal counter-attacks.”

The negotiations currently underway are fateful ones. A high percentage of the protesters are cynical about Prime Minister Netanyahu’s intentions, given the litany of broken promises and manipulations that he has deployed over the years to remain in power. Many are concerned about the position of the National Unity Party, which they perceive as somewhat naïve politically and vulnerable to the chicanery of the Prime Minister. Tropper’s presence in the talks should allay any such fears.

At the same time, the discussions initiated by the president are an opportunity to transform the fury that spilled onto the streets into something constructive. To boycott, or to enter the discussions with an a priori negative orientation, is hardly a solution. If nothing else, Israelis in the center – and moderates in the right and the left – have come to understand that demography matters in politics. There may not be another chance to rewrite the social contract and create a constitution (formal or informal) that will enable a multicultural society to live together harmoniously.

Gantz and the National Unity Party were the first to embrace this opportunity as an alternative to indefinite continuation of the mass protests. Given the vicious character of right-wing rhetoric and their physically aggressive counter-demonstrations, it does not take a prophet to see that the confrontation would inevitably give rise to violence,

How then should we think when considering possible compromises that might emerge from the deliberations at the President’s Residence? The critique of Tropper by acrimonious coalition politicians got one thing right: Tropper did forget that he was in the opposition. At least I hope he did. That’s a good thing.

Ultimately, the debate over the appointment of judges, the powers of the Supreme Court and the accountability of elected officials is about justice. And no philosopher has influenced present thinking on this topic more than the late Harvard professor, John Rawls – and his prominent 1971 essay “A Theory of Justice.” Among the cornerstones of his position is the proverbial “veil of ignorance”. The concept constitutes a device for helping people better envision a fair society by pretending that they are ignorant of their personal circumstances.

Rawls suggests that in discussing policy matters, we should imagine that we sit behind a veil of ignorance that prevents us from knowing into what circumstances we were born or identifying with any personal advantages or disadvantages. Ignorant of their circumstances, people can be more objective and create a fairer outcome when setting the rules in society.

In negotiations over the judicial reform – it would be well for all sides to try to imagine such a veil of ignorance regarding their, and their political party’s fortunes. Before conferring unlimited rights to the executive branch (that already dominates Israel’s legislature) and granting it full control the judiciary, the present coalition members should recognize that tables turn, pendulums swing back and forth and they may soon find themselves in a situation where their present rivals in the opposition are back in command. When this happens, do they really want to grant them unrestricted powers? A veil of ignorance also requires thinking about what being born as a minority in Israel is like. What kind of rights should be guaranteed to all in our society and what sort of authorities should a court have to protect them?

It is often pointed out that Likud founder, Menachem Begin, for many years the perennial leader of the opposition in Knesset, was an avid advocate of a constitution. It was David Ben Gurion, unable to imagine that his Labor party might one day be a minority, who opposed a constitution that might be a basis for limiting the powers of the executive.

During the country’s early years, Ben Gurion made hundreds of fateful decisions about the form that the new Jewish state would take. Probably, 90% of them were spot on. But the decision to side with the religious parties and stymie the preparation of a constitution was a mistake. Ben Gurion’s successors on Israel’s Center-left realize today that he was wrong.

The position that Tropper and Gantz’s National Unity party support easily meets the ethical “Veil of Ignorance” criterion:

  • avoid politicization of judicial appointments;
  • establish a clear basis for judicial review via a basic law (or even better yet a constitution);
  • create a more efficient and accessible court system; and
  • avoid legislation on fundamental constitutional principles without a broad societal consensus.

One can argue about how democracy or checks and balances should be optimally manifested in the country’s institutions. It’s actually an important argument to conduct, But we should all step back, and agree with Chili Tropper: a tyranny of the majority, as demonstrated by the first three months of the extremist Netanyahu government, is not a legitimate alternative. It drove Israel to the brink of civil war. And in a civil war – there are no winners. Only by working to find a reasonable balance can our country and our society continue to thrive, together.

About the Author
Alon Tal is a professor of Public Policy at Tel Aviv University. In 2021 and 2022, he was chair of the Knesset's Environment, Climate & Health subcommittee.
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