While driving down one of Israel’s highways today, I saw a remarkable poster which said (in Hebrew) “There is an obligation to oppose dictatorship.” That seems like a very reasonable sentiment, but who posted it? Was it posted by the proponents of judicial reform, who see the high court as a perpetual dictatorship? Or was it posted by the opponents of judicial reform, who feel that reducing the power of the court would lead to a dictatorship by the Knesset? The fact that the message could be read either way says a lot about the kind of intellectual and political debate going on in our country today.
Everyone is in favor of democracy. But what is democracy? To the proponents of judicial reform democracy retains its original meaning, rule by the people. They think that the Knesset, as representatives of the voters, ought to have the final say. To opponents of judicial reform, democracy is a system of checks and balances in which the judicial branch protects the minority from the violation of their basic rights. So both sides scream democracy but with a very different notion in mind. That makes debate very difficult.
One suggestion: let’s learn to speak more clearly. The modern system of government has a more precise name than democracy. It is called a mixed regime or a mixed constitution. Polybius, the Roman historian, is commonly cited for popularizing this notion in Rome. In ancient Greece there were three forms of government: democracy, oligarchy (also known as aristocracy), and monarchy. All of these were unstable and tended to be destroyed by contrary factions. Monarchs were deposed by wealthy oligarchs who wished to have more influence in the state. Oligarchs were booted out by popular factions who didn’t want the rich ruling the state. And democracies were destroyed by powerful leaders who sided with the people as a means of gaining monarchical (or tyrannical) rule for themselves. And then it started all over again. In Polybius’ view, the Romans succeeded because they had a mixed regime which gave power to both the people and the elites. In the modern version of a mixed regime, the people are empowered to vote every few years, their representatives in congress, parliament or Knesset fulfill the function of oligarchs, and the President or Prime Minister fills the monarchical role. To this is added the court system, which is an elitist institution that insures stability and the rule of law.
The fight between the reformers and the anti-reformers is really a fight between two different conceptions of democracy. The reformers are angry that their policies are nullified by a court system that relies on judges who do not represent the people and are not appointed directly by the representatives of the people. This is something Polybius never foresaw. The anti-reformists worry that without a high court of their liking, the government will turn into a tyranny of the majority, and they will become a persecuted minority. That is also something that Polybius did not foresee.
My aim here is not to offer a new proposal; experienced jurists are working on that right now, and there is reason to hope that we will come out of this crisis in better shape than ever before. But even if a strong court system is maintained, it would be foolish for the anti-reformists to think that they can rely on such a court to consistently thwart the will of the majority. The new court system, whatever it is, may be able to protect their personal rights, but it will not be able to control government policy any longer. No matter how mixed the regime may be, it cannot insure minority rule. What can we do about this? My advice to the opposition: HAVE MORE CHILDREN. In a democracy, the numbers always count. You cannot hide behind the court system. You must win at the polls.
I offer this suggestion not only for the sake of achieving a balanced government, but also for many other reasons. Children are a blessing. People with children live longer, enjoy life more, become less depressed and less bitter than people who are alone. Having more children will not only benefit your political camp, it will benefit the nation as a whole, and from there it will benefit the world as a whole. You will benefit, your other children and cousins will benefit. You will make your parents happy. Don’t give up the fight. But in addition to protesting, the most important thing you can do is to have more children. Maybe you’ll even meet that special person at one of the protests.
For more background on this situation see the comprehensive article by Evelyn Gordon: https://mosaicmagazine.com/essay/israel-zionism/2023/03/israels-judicial-reckoning/. For further reasons to have more children, see the writings of Emile Fackenheim.