For the first time since I have moved to Israel, I can honestly say the sky is falling. I don’t say this lightly and I recognize that I was not old enough to be aware of war-time Israel, when panic was based on an immediate physical threat and not a legislative one. I have been here when bombs were falling — although the Iron Dome was here to protect us — and the threat of Justice Minister Yariv Levin’s judicial reforms does feel worse to me. I can’t sleep at night. I identify with Justice Aharon Barak’s violent analogy to being willing to go before a firing squad to stop these judicial changes, because these reforms feel violent.
Despite the popular rhetoric, the danger I perceive is not because Israel’s democracy is being threatened. It’s not; quite the opposite. If Justice Minister Levin’s reforms go through, which they appear destined to, Israel’s democracy will be strengthened. The will of the majority will have more of an impact on the way the government is run and what the law of the land is. The current majority, which is Jewish and right-wing, will indeed be able to impose its will to further its vision of a Jewish state as primarily a homeland for Jews, especially respectful of Jewish law, and ready to defeat its enemies with its military might.
Yet, there is such a thing as tyranny of the majority. Levin’s reforms will create a tyranny of the majority because, after the legislative reform, there will be no substantive check on the majority that controls the legislature and the executive. This threat of tyranny of the majority is particularly alarming in a country such as Israel, where there are diverse and significant minorities, not to mention the history of the Jewish people being persecuted as a minority in the lands of Europe, Asia, and the Middle East. These “minorities” – at least as in relation to the parliamentary majority of the new government – currently consist of Arabs, homosexuals, liberal-minded Jews (secular or religious), and Jewish denominations that are non-Orthodox, among others. These minorities are in danger of having their will not only overcome by majority sentiment, but at risk of having their individual, civil rights limited by a judicial overhaul. These minorities may not be able to shop in publicly open stores. They may not have the right to pray according to their conscience in public spaces, or to choose an education for their children that is free of religious content. They may not be able to travel where they wish on the Sabbath, even though it is their only day of recreation.
The Supreme Court has been acting as a stop-gap measure for certain, limited, legislative measures that threaten to overcome individual rights due to the will of the majority. For instance, while the government majority does not likely support the rights of homosexuals to hire a surrogate or marry (although a majority of Israelis likely do), the Supreme Court has held that given the Basic Law’s preservation of the right to equality and the right to human dignity, homosexuals do have the right to hire a surrogate and can register their foreign marriages in Israel just as heterosexual couples can. Similarly, although the majority of Israelis may argue that security prisoners should be afforded fewer administrative protections, the High Court of Justice has held that it is unconstitutional to detain security prisoners for an extended period without allowing their presence at a hearing or the provision of an attorney. These kinds of laws benefiting homosexuals and Palestinians can be overridden if the new judicial reforms take effect. Most members of the current government — if not all — favor the shifts in policy, and see the judicial reforms proposed by Levin as positive moves for the country.
Once the judicial reforms are in place, the same people who support them now might not like their potential future outcomes. Sentiment might change and a different majority in government might lean to tyranny towards a different group of minorities. Without protected civil rights, Haredim might be forced into education or military service in a manner that violates their religious freedoms. Laws might be imposed on workers in a manner that requires violation of strict Sabbath observance. Even the number of children allowed to be born could be limited.
These kinds of legislative reforms may currently seem farfetched, given the majority in power. But, given that majorities change, what judicial review and basic human rights preserve are certain civil rights that majorities cannot infringe upon, regardless of their power. This check on majority rule is absolutely fundamental.
Indeed, there are some civil rights that we cannot readily expect legislatures to protect. Recall the famous US case of Brown v. Board of Education. At the time — 1954 — the majority of Americans were staunchly in favor of segregation based on race. The legislature in Kansas was not going to pass a law prohibiting school segregation and requiring busing. But the Supreme Court justices saw themselves as the protectors of individual civil rights. And, despite potential personal biases and preferences, they felt that they could not assert that equality could be achieved through separation by race, given the reality they witnessed. Justices are meant to protect the law — not represent the will of an electorate, which is the job of the legislature — and this does make a difference to the extent that they are independent. Sometimes legislatures are too slow, because public opinion changes slowly. That is why Supreme Court justices protect minority rights, particularly when the legislature does not have the will to do so. It is one of the primary roles of an independent well-functioning judiciary.
John Rawls, in A Theory of Justice, introduced the concept of the “veil of ignorance.” In order to achieve a just system of government, he argued, all citizens must be said to have been willing to agree to the rules of government, a priori, without knowing their own identities within that state (veiled, as it were). If we could theoretically “blindfold” the citizenship — prior to the forming of a government, such that nobody knows who they are destined to be in the world — poor or rich; Jewish or Arab; male or female — they must agree on the rules of the game before unveiling their own identities. These rules then must be preserved regardless of the will of the majority in a democracy.
This veil of ignorance functions to preserve a just society for all citizens – whether you are fortunate to be in the majority or destined to stay in the minority on issues important to you. The democratic rule of a parliament is intended to have representatives that advocate for the interests of voters — that’s democracy. In order to achieve a democracy that is just, however, it must be limited by the basic social contract of all its people. While the social contact based on a veil of ignorance is obviously a fiction, it is not hard to understand that certain minority rights would be upheld if citizens established policies blind, realizing that those same policies might indeed discriminate against themselves.
Judicial review in Israel is important, even though the country has no fully-formed written constitution. As an aside, the US constitutional amendments that preserve the individual rights of citizens were also not a fully formed constitution; they were amendments to the US Constitution, which did not mention individual civil rights at all. Israel’s basic laws are enough. Their purpose is to protect citizens’ civil rights from the will of the majority. So while a legislature exists to represent the will of the people and it can therefore be expected to advocate for the interests of voters and constituents who may not want to preserve minority rights, the courts must protect entrenched civil rights, regardless of who is in the majority and has the power of governance. That is the courts’ purpose. The judicial reforms that seem likely to pass are very bad for Israel and very bad for all its citizens. Their lasting impact will reverberate through Israeli history.
So, never say never, don’t give in and don’t give up – go out to the streets and demonstrate! We have a month or two to make a difference!