The feverish debate now underway in Israel about “reasonableness” can confound: the government sounds reasonable when it argues that granting judges the power to declare legal decisions “unreasonable” is undemocratic.
The plot thickens, however, when one considers the true nature of what’s at stake in Israel, and the importance for Israel of liberalism, beyond democracy. Indeed, liberalism is critical to Israel’s successful (and imperiled) effort to offer citizens freedom and prosperity.
The current dispute is on the surface about democracy, and that doesn’t take us very far because of disagreements over what the word even means. Supporters of the Benjamin Netanyahu government side largely view democracy as majority rule after free elections; the opposition considers democracy to be at least as much about minority and human rights and checks on the power of the state. So while “democracy” is an effective slogan in mobilizing the opposition, it is not persuasive to the other side.
What the opposition is actually striving to preserve is liberal democracy. That is another beast, and it sits at the core of a global debate that far transcends Israel.
Liberal democracy is under attack in an array of countries around the world with different degrees of resilience. These famously include EU members Poland and Hungary, and also Turkey and Brazil, and in a way India. Even in countries with deep liberal traditions, it is under attack by the currently dominant variant of the political right in the United States and France as well.
It is important to understand what liberalism is in political philosophy because – in the United States especially – it has been twisted to stand for the left. The liberalism in question here is something else.
It sprang, ironically, from the 17th century English philosopher Thomas Hobbes’ view that humanity’s natural state is a “war of all against all” which makes life “solitary, poor, nasty, brutish, and short.” To defend from constant danger one needed a sovereign state to guarantee property rights and the sanctity of contracts and protect individuals from harm.
This idea of protections led to the rise of liberal institutions – with the courts at the center – that have provably correlated to the vast accumulation of wealth in the world, especially in what came to be known as the West. There are countless studies that prove this connection (see here, and here). The exceptions are exceptions: a populist regime building a war machine, or the early years of the USSR, for example.
While Hobbes himself called for a strong sovereign, he also instinctively understood a too-powerful sovereign could itself become a menace, so he mandated a consent of individuals to the social contract.
Indeed, as states gradually evolved and this danger became quite clear, liberalism evolved in the direction of limited government as envisioned by the (again) English thinker John Locke. Thus do we come to separation of powers between the legislative, judicial and executive branches, to constitutions that guarantee minority rights and individual protections, and to various checks and balances on the executive including term limits.
That is liberal democracy. At its essence, it attempts to ensure the government not be too strong and remain mainly concerned with the guaranteeing of freedoms, including freedom from harm.
And since there is always tension between freedom and stability, and between freedom and equality, liberalism is at its core a centrist philosophy. Too much enforced equality and you get despotic communism; too much market freedom and you get the wild and corrosive inequality of neoliberalism. Too much emphasis on the individual and you get divisive identity politics – and so on.
Like anything centrist, liberalism can feel like a compromise, and so it has been buffeted on all sides. The most vulgar attacks are from leaders who do not want their power checked. Their trick in democracies, where they have been elected, is to portray limits on their power as limits on the people. Usually, this degree of cynicism comes from nationalists invoking patriotic sentiment. This method, of trying to fool the gullible into giving up their own protections, is widely referred to as populism.
In the face of all this, liberal democracy wants to be, well, reasonable. Its main selling point, in today’s utilitarian world, is reminding people of the connection between liberalism (and therefore reasonableness) and begets prosperity.
Which brings us to Israel, where not everyone likes reasonableness but a strong majority prefers the recent years’ prosperity.
The founders of Israel could have gone any number of ways as regards the system of government they established in 1948. The opening position for liberal democracy was not good.
The strong majority of Jews in the country at the time – indeed even now – hail from countries in eastern Europe and the Middle East where there was little liberal experience.
Moreover, the nature of Judaism itself provides only a partial support for liberalism. On the one hand, Talmudic tradition favors debate and discussion; but on the other, most Jewish societies were hierarchical and patriarchal, with much authority invested in the father, the rabbi, and the community leadership.
Plus, the ruling establishment at the time was deeply rooted in socialism, and included streams that felt great loyalty to the Soviet Union. Anything could have come out of this desperate moment, with the country besieged by Arab armies – perhaps a military junta, or even communist dictatorship.
What the nascent Israel did have is the British-based legal system bequeathed by the departing colonial power – one rooted in common law, which has as its basis the concept of “reasonableness.” This concept – and the judicial system’s right to consider it – still exists throughout international jurisprudence based on this tradition, as well as in various ways in the United States, including in the 14th Amendment.
When Caligula wants to appoint his favorite horse as consul, it is reasonableness that prevents it even if no legislature had foreseen the possibility in time to pass a law against it. (The horse, in being presumably passive, might actually do less damage than some of the current appointees in Israel, not to mention those being readied by the government.)
The Ben-Gurion generation of leaders certainly made major mistakes. Chief among them was the granting of broad special dispensations to the then-tiny Haredi minority, establishing a regime of dependency and inequality that now threatens to overwhelm all of Israeli society.
But they got it right when they opted to establish a liberal democracy.
Now the government wants much more than to eliminate judges’ ability to judge on the basis of reasonableness. The original plans, never formally abandoned despite Netanyahu’s gaslighting hints to foreign podcasters, included government control over judicial appointments and the ability to overrule their decisions when puppets forget to be puppets.
They also want to dismantle the Bar Association, politicize the civil service and pass personal legislation mandating corrupt appointments.
The government wants to weaken oversight for specific reasons, like removing limits on its policies in the West Bank and the handouts to the Haredim. Mainly, though, in its lust for power and its brazen corruption, it has no use for liberal democracy.
Make no mistake, the brutish and nasty efforts to “reform” the legal system aim ultimately to undo the liberal democracy that is at the center of Israel’s remarkable success. If they succeed, Israel will begin a journey into darkness.