Legalism Without Genealogy: Why the Levin–Supreme Court Clash Is So Dangerous

What is happening today between Yariv Levin and the Supreme Court almost begs for a quick, binary reaction: you are either “for” the courts against creeping authoritarianism, or “for” the “sovereign people” against the “fortress of elites.” It is a very comfortable framing. For everyone involved.

Comfortable, because it allows us to stay inside what I would call pure legalism. On both sides.

Legalism is the belief that the legal system is a self-contained entity: a set of norms, procedures and institutions that somehow exist “on their own.” Here is the Knesset, there is the Supreme Court, here the ministry, there the appointments committee – and underneath, supposedly, nothing. As if law had no history, only structure; as if it were not the product of decisions, traumas, compromises, colonial imports and very local class interests.

In that sense, Levin and his opponents are playing on the same pitch while pretending to live on different planets.

Levin speaks of majority, sovereignty, “the people” – a majoritarian legalism. The Court speaks of rule of law, standards, precedent – institutional legalism. But both languages remain silent on where this system came from in the first place, and why it takes this particular shape. That is what I mean by the absence of genealogy.

A hybrid legal system that was never thought through immanently.

If we strip away the immediate emotions, something very simple and very troubling comes into view.

Israel’s legal system is not an immanent expression of social life. It is a layered hybrid made of:

– remnants of Ottoman law,

– the British Mandate legal order,

– continental doctrines imported from Europe,

– religious law in matters of personal status,

– plus “Basic Laws” that pretend to be a constitution but are not.

On top of that, there are parallel legal regimes: one set of rules for Jewish citizens and another for non-Jewish citizens; one inside the Green Line, another in occupied territories; one logic for the ultra-Orthodox, another for Ethiopian Israelis, Bedouin communities, migrant workers, and so on. This is not a single immanent system. It is a mosaic of legal zones covered by a common logo called “democracy.”

Legalism loves exactly this situation. Legalism says: as long as there is a norm, a procedure, a court and a minister, everything is in order – provided we follow the rules. Genealogy asks the opposite question: where did these rules come from, whom do they serve, and what do they cut out of reality?

The Levin–Amit conflict as a struggle to steer the system from the outside

Levin’s boycott of Amit can be read on two levels.

On the surface – in the way I already described: the minister refuses to recognise the Court as an equal partner, paralyses judicial appointments and tries to turn the courts into a department of the government. This is real, dangerous and requires a defence of judicial independence.

But on a deeper level, both sides share the same basic assumption: the legal system is a machine that can be operated from the outside. Levin wants to steer it politically in the name of the majority. The Court wants to steer politics in the name of law. In both cases, law is an instrument: a device to be driven either by the coalition or by the “guardians of the constitution.”

There is no place here for the question: is this system itself adequate to the structure of the life it is supposed to regulate? Does its current shape not in fact stabilise structural inequalities between different groups? Are we really prepared to say that Israeli democracy is faithfully expressed in this hybrid of colonial, religious and liberal orders that we call “the legal system”?

Legalism answers: if something was passed by the “proper majority” or in line with precedent, it is valid. Genealogy says: show me how those majorities and those precedents came into being.

The shared interest in avoiding genealogy

This leads to the most uncomfortable conclusion: both Levin’s project of reorganising the state and the Court’s defence of the status quo share a common interest – not going too deep into the genealogical foundations of the system.

Levin has no intention of opening the archives in order to expose how ethnic, class and religious hierarchies were built into law. He simply wants to seize the existing machine and retune it to the rhythm of the current coalition.

The Court also has reasons to avoid genealogy. If one were to trace honestly how the current model of the judiciary was formed – who was allowed to write opinions, who was authorised to shape doctrine, who was kept at the margins – one would have to admit that the Supreme Court is itself a product of a very specific history: the Ashkenazi, secular, military-bureaucratic Israel of the 1950s–1980s, with all its exclusions.

Genealogy serves no one who enjoys clean narratives about himself as “defender of democracy” or “true representative of the people.” That is why both camps prefer to leave it outside. One side shouts “will of the majority!”, the other “rule of law!”, and in the middle sits a system built out of unexamined layers of colonial rule, religious authority and national security doctrine.

The missing immanence

Once we bring in the notion of immanence, the picture becomes sharper.

An immanent legal order is one that grows out of the life of the community itself: its rhythms, conflicts, forms of cooperation and its languages. In that sense, the Jewish legal tradition (halacha) – regardless of our evaluation of it – is an example of radical immanence: law as an ongoing reading of text, community and events, without an external “constitution” imposed from above.

The Israeli state system is almost the opposite: a composite of external structures imposed on society in the name of “modernity,” “statehood,” “security.” This is not immanence. It is prefab architecture. And it is precisely control over this architecture that is at stake today.

Levin wants this architecture to submit to the will of a parliamentary majority, even if that majority is the product of a narrow, non-representative coalition of sectors. The Court wants the architecture to remain in the hands of a professional legal corporation that will administer change in safe, manageable doses. No one is asking the question: is it possible to build a legal order that would be immanent to the real pluralism and the real wounds of this society?

Citizens or subjects? Without genealogy, subjection always wins

Aharon Barak was right when he said: “We are no longer citizens, but subjects.” But that diagnosis goes deeper than any particular reform or boycott.

Without genealogy and without immanence, law always tends to revert to the function of a power tool. Legalism can put its stamp on any document: an emergency decree, a “Basic Law,” a police regulation. If we do not ask where authority comes from, whom it serves and what it silences, we end up in a world of subjects, even if we continue to call ourselves citizens.

This is why the Levin–Amit conflict cannot be reduced to the question: “Are you on the side of the courts or on the side of the government?” The real question is: are we willing to ask where this system itself came from, the system that both sides are now so eager to operate?

As long as we avoid that question, legalism will keep feeding us clean formulas: “majority,” “rule of law,” “sovereignty,” “elites.” Without genealogy and without immanence, these are only different versions of the same thing: the management of subjects.

And what we began to glimpse in the clash between Levin and Amit is just a crack – a brief opening through which we can see how deeply this system fears its own history.

Yochanan Schimmelpfennig