Hear, O Israel! Listening in divided times

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I have never known Israel as divided as it is today, and that’s saying something. In divided times, the first thing that needs to be done, I would contend, is to listen. Both sides need to recognise the humanity of the other and then really try to hear what’s motivating them, without resorting to the assumption that everyone is motivated by malice or self-interest (even if many people are, on both sides, it’s manifestly the case that there’s also sincerity and deeply held convictions on both sides too).

Opponents of the current government’s attempt to reform the judiciary have to understand that for many years now, huge segments of Israeli society have felt alienated from the Supreme Court. When a branch of government loses the faith of massive swathes of the population, whether rightly or wrongly, it also loses its ability to function with unattenuated legitimacy.

The British Supreme Court has no power to strike down laws at all (although it can send laws back to parliament for clarification). The American Supreme Court can strike down laws, but only if it finds an explicit contradiction between a given law and the written constitution of the USA. The Israeli Supreme Court, by comparison, has the power to strike down laws on no stronger a basis than that the judges find the law to be unreasonable. That’s a very strong power. Arguably too strong. And whether or not the court has flexed its muscles more than it should have done, there is a widespread perception that it has.

In certain sectors of Israeli society, the Court is widely thought to have undermined the will of the people too often, and on too flimsy a basis. How can a court function as the supreme arbiter of justice if it doesn’t carry the trust of whole sectors of the society?

The perception that the court is instinctively left-wing and at odds with Religious Zionists and the ultra-Orthodox is slightly unfair. After all, for right or for wrong, it is the Supreme Court that allowed settlements to be built, even in territories that the State of Israel hadn’t annexed, which is what created the legal basis for settlements beyond the green line. It is the Supreme Court that has defended gender segregation in publicly funded Ultra-Orthodox institutions. But it’s not for no reason that the Court has lost the trust of many. This has to be rectified. Their disillusion must be recognised, heard, and addressed.

But likewise, those who support the Reforms need to hear the genuine concern of those of us who oppose them. This requires that the supporters of the current government don’t respond with a knee-jerk dismissal of their opponents, but listen to the detail of their concerns.

Many people who oppose the current proposals have, in their own careers, been strident proponents of judicial reform. Gidon Sa’ar, for example, has for years been opposing the unbridled power of the court. But he opposes the current proposals. Why? One possible explanation is that Sa’ar, as a member of the opposition, will oppose whatever this government does, even if he agrees with it. But that’s an explanation which refuses to engage with what Sa’ar is actually saying.

Many people who oppose the current proposals do recognise (as do Sa’ar, Ganz, Lapid, and others) that the powers of the court, and the balance of powers between the various branches of government, have to be redefined. Their opposition is directed only at the details of this government’s suggested alternative. The government’s suggestions do curb the powers of the court, but they also strengthen the power of the Prime Minister to such an extent that they would leave us with an elected dictatorship. To the government’s supporters, this sounds like hysterical hyperbole. But if those supporters would listen, dispassionately, to all of the details, standing back from the knee-jerk tribalism of contemporary Israeli (and global) politics, I think many people would change their minds; as I hope to explain.

Shouldn’t the people have a say over who their judges are? Yes. I think they should. But there’s a delicate balance to get right. In the UK elected officials don’t get involved at all in the appointment of judges, but then again, the judges have less political power over there. In America, judges are selected exclusively by elected officials, but in two distinct stages. First, the elected president has to nominate a candidate for the court, and then the elected Senate has to ratify or reject the nomination. But note that, for much of American history, the Senate and the White House have been controlled by different parties at the same time. Accordingly, a young and ambitious lawyer in the USA who wants to get ahead wouldn’t be wise to curry too much favour either with the Democrats or the Republicans, because it’s likely that he or she will have to get the support of both parties to earn a place on the Supreme Court.

In Israel, our president isn’t directly elected. All of our elected officials are in one place, namely, the single chamber of the Knesset. If one party can remain in government for many years at a time, as Labour did a generation or two ago, and as Likud have done in recent times, and if the Knesset holds the power in appointing judges, then a junior judge will have a huge incentive to curry favour with that one political party. That’s something you want to defend against, if you care about judicial impartiality. The current proposals give all of the power to one elected house.

We agree that the Court shouldn’t be able to strike laws down for simply being unreasonable. That should change. But the thing that has people really scared is that the current proposals include an over-ride clause. The idea is as follows: if the government pass a law, and then that law is struck down by the Supreme Court, for whatever reason at all, the government can then over-turn the decision of the Court, so long as it wins 61 votes from the 120 members of the Knesset (in other words, a simple majority). Since no coalition can govern without 61 votes in the bag already, this means that the Court will have no real power at all.

So, imagine the following scenario. Election year comes round, and it looks as if the coalition might be in trouble. They decide to suspend the election for a couple more years, or indefinitely. Are we still a democracy at that point? No. That’s the end of democracy. But what’s to stop the government acting in that way? The Court might rule them out of order, for trying to cancel the election, but the 61 members of the coalition, if they want to hold on to power, will simply overturn their ruling. The court will have no teeth at all.

Mr. Netanyahu tells us not to worry. Israel will still be a democracy. After all, Netanyahu would never decide to suspend elections for decades at a time, in imitation of the Palestinian Authority. But why should we believe him? Oh. We should simply trust him! But if the shoe was on the other foot, and Lapid was currently Prime Minister, would the proponents of the current reforms be happy to simply trust that Lapid will hand over power in the future? Not at all, nor should they have to. Trust in a political system requires trustworthy political institutions and constitutional checks and balances. The current proposals undermine the entire notion of the balance and separation of powers, and the notion of checks and balances.

These are not the sensible reforms that many people have been working towards for years. This is the beginning of a collapse into parliamentary dictatorship. And that’s why people are so desperate, and so agitated. It’s not merely because they’re “sore losers” or whatever else is said about them. If that’s what people think, then I fear that they’re not listening.

There could certainly be much more understanding on both sides of the political aisle. Indeed, that’s been my whole point in this article. But the urgency, and sense of catastrophe, that animates the demonstrators and opponents of the government can only seem hysterical, I think, if what they’re saying hasn’t been fully heard. Democracies have descended into dictatorships before. This is how it happens. But who really listens to the other side any more? If our side says that it’s okay, then it must be okay!

How do we create an atmosphere in which people will listen to one another? One thing we lack, I think, is a common conceptual language. And yet the vast majority of us, living in a Jewish country as we do, share a Jewish heritage. And though I wouldn’t want to exclude our Arab citizens from the public realm (on the contrary, I think that they need to be brought in much more often, and more centrally), I can’t help but think that the rich resources of our Jewish intellectual history can play a role in creating a language that both sides of the aisle can learn to hear.

For example, religious Jews in the State of Israel are, in large majority, in favour of this government and its proposals. But there is a very strong Jewish argument to made against this government’s proposals. After all, the very idea of the separation of powers came not from Montesquieu, but from Moses and the Rabbis that followed him.

When Alexander Yannai served as both King of Israel, and High Priest, the Rabbis lamented, saying, “King Yannai, the crown of the monarchy is enough for you! Leave the crown of the High Priest to the descendants of Aaron.” Why? Because Judaism cherishes the separation of powers. The current proposals will centralise all tangible political power into the hands of the coalition, and the Prime Minister. Shouldn’t the Rabbis be lamenting, “King Netanyahu, the crown of the Prime Minister is enough for you! Leave the crown of the judiciary to others.” 

In turning to Jewish sources, I’m not saying that the State of Israel should adopt the law of the Torah. I’m not advocating for a halakhic state. To impose religious law upon the people is to miss the point of the separation of powers. In the ancient world, the head of the country was always the head of the national religion: a child of the gods; or their representative. But the Torah of Moses taught us to separate the monarchy from the priesthood. Indeed, Rabbi Jonathan Sacks suggested that this separation of powers carries the message that religious law (i.e., the law of the priests) should never be imposed upon people by the powers of the government (i.e., by powers of the king). 

For too many years, the language and intellectual heritage of Judaism have been the preserve of the right wing of this deeply divided country; regularly dismissed and derided by the left. Indeed, some journalists and activists on the left treat their Jewish heritage as an embarrassment to be outgrown, rather than a source of inspiration. But if we want to find a common language, and if we want to galvanise a population around a common vision of the good, we would do well to bring the Torah and its Rabbinic interpretation into the public conversation; mining its intellectual resources for the betterment of society; and creating a language that allows for greater listening, and greater understanding, between the embittered factions of our ancient-young land.