In this third of four articles on Israel and the West, we dive into the current Israeli struggle between executive and judicial powers, and for the shape of local democracy going forward. The political crisis here is not so different from that in other modern states.
On December 29, 2022, Israeli Prime Minister Benjamin Netanyahu’s new government came into power: a coalition of right wing nationalist and religious groups with a complex backstory and contentious plans for settlement, military action, and civil rights. On January 4, 2023, Justice Minister Yariv Levin announced government plans to limit Supreme Court power and provide the ruling party with majority control over judicial appointments. Other organizations, including ones long critical of Netanyahu, launched weekly protests on January 7. By late February, hundreds of thousands were protesting, and on March 11 half a million gathered in cities across the country.
Commercial blockades, hunger strikes, university and military walkouts, women dressed in outfits invoking The Handmaid’s Tale, protesters bearing the original Declaration of Independence through ultra-Orthodox streets: Israel has lately lived up to one of the most critical legitimacy tests of any state, by becoming the site of active and widespread democratic debate on its streets.
Like other modern states, too, extremists have shown up in turn, including far right nationalists calling for violence against protesters and non-Jewish civilians. But when Defence Minister Yoav Gallant asked the government to halt judicial reform on the basis of clear risks to public safety, Netanyahu had him removed from office. This action deepened internal criticism and international alarm, until Netanyahu agreed to postpone judicial reforms until May, when Israel will mark its 75th anniversary.
In the first two of these four articles on Israel and the West, we reviewed how a range of Jewish, Zionist, and Israeli beliefs are flattened in Western media, and the self-serving uses of this historical gloss to deflect from our complicity in local trauma.
This was important prelude to any discussion of current Israeli politics, because the West often conflates the idea of a state’s right to exist with its perceived utility. Not only must Israel be protected for the sake of Jewish people, the argument goes, but also “for democracy”, because Israel can be configured as a key political ally surrounded by countries tacitly (or not so tacitly) presented as enemies of Western values. For these two conflated reasons one must “support Israel”, but often in so uncritical manner that we end up undermining both aforementioned aims.
Far from critique of state politics being a sign of denying any country’s right to exist, such analysis is a necessary response to any state’s existence: an affirmation of its inclusion in the broader global conversation. But rather than being exceptional, the problems that afflict Israeli politics under Netanyahu strongly resonate with problems facing other democracies today. In consequence, to talk plainly about Israeli government overreach requires risking big questions about our own as well.
Are we mature enough to view Israel as we would any other state government?
To see its range of state actors as not so different from any other’s?
And to face what the latest Israeli political crisis tells us about all our own?
The shape of governance in Israel
A central contention of contemporary protesters is that Netanyahu’s proposed judicial reforms will amount to the destruction of Israeli democracy: a consolidation of power in the executive branch, and the erosion of judicial checks and balances.
But there are a lot of embedded assumptions in that concern, and many go right back to the country’s founding in 1948. The first session of the Israeli parliament, called the Knesset, had a mission in 1949 to create a constitution for the new state under Prime Minister David Ben-Gurion. Ben-Gurion had created a coalition government out of his own Mapai party, a democratic socialist movement that largely governed the Jewish nation in British Mandatory Palestine prior to Israel’s Declaration of Independence. This “Workers’ Party” sponsored an Arab party called the Democratic List of Nazareth, and was otherwise joined by the liberal Progressive Party; a precursor to today’s center-right Likud Party; and a United Religious Front of four religious movements, which varied from Zionist to non-Zionist, and included one group adamant about keeping women out of politics. (Quite the coalition, in other words.)
Soon after, the Knesset abandoned its mission to form a constitution.
Reams of commentary have been written about Israel’s “failure” here. They amount to three overarching questions: could Ben-Gurion have made a constitution, should Ben-Gurion have made a constitution, and would Ben-Gurion have made a constitution?
In the “could” camp, arguments against the plausibility of the Knesset successfully drawing up a constitution focus on two related points. First, the new Israeli government was made up of such an uneasy coalition, including of Orthodox Jewish nationalists who believed Torah was enough, and secular Zionists with differing visions of the state. Ben-Gurion himself, as a practical Zionist (i.e., focused more on the country’s material construction), had far more socialist ideas of Israel than those in the Revisionist school, which sees the political and military realms of Israel as far more important to its endurance. Second, that uneasy alliance in the Knesset was of vital importance as war raged on with the combined forces of Egypt, Transjordan, Syria, and Iraq, which along with other Arab groups had challenged Israel’s Declaration of Independence over parts of Mandatory Palestine from day one.
Though some scholars argue that a constitution might have been feasible, consensus recognizes the logic of prioritizing wartime solidarity over internal division.
In the “should” camp, opinion is more divided. Israel has both a prime minister and a ceremonial president, but its parliamentary system draws strongly from Britain, which also lacks a formal constitution. (The country is instead governed by an array of related but distinct documents.) Israel also retained echoes of the Ottoman Empire by diverting marital and family law matters to religious courts. Why should Israel have a constitution if its predecessors in Palestine had other systems in place?
Ben-Gurion and others in the Knesset also argued against its necessity on some fascinatingly democratic grounds. Some felt that a formal constitution invites minority tyranny over direct democracy (as enacted through majority rule). Others maintained that it would yoke future generations to the will of the past. This was an especially pressing concern because the new state of Israel only had around 500,000 people, and was still awaiting “aliyah”, the return of Jewish peoples from diaspora. Where other Jews came from (i.e., the cultural norms in far-off gentile soils) would surely inform their ideas about Israel. Shouldn’t they also have a say, as Israel continued to expand and settle across what had recently been British Mandatory Palestine?
Then there was the underlying question of a constitution’s general utility: what guarantee is any constitution of a greater justice, when plenty of unjust states have many fine laws on paper?
Lastly, the “would”: would Ben-Gurion have pushed harder for a constitution even if he could have and should have? This is where Israel’s first prime minister and its latest are joined in a condition familiar to democratic governments everywhere: neither wished to lose political power. And creating a formal constitution would necessarily lead to judicial limits on future executive actions.
The US is rife with regional examples of the tension between sitting government and constitutional defenders, so for variety’s sake let’s turn to Canada, where the original constitution in 1867 was much later joined by a Charter of Rights and Freedoms with a far messier judicial pedigree. Though this occupier of unceded Indigenous lands is often presented as an innocuous and downright charming sovereign state, Canada is no stranger to the selfishness of sitting government when called to make reforms.
While a presidential system provides stability through set elections and finds its checks and balances through different branches of government, parliamentary models offer greater power to sitting executive functionaries, but also rise and fall more quickly on votes of non-confidence. This ostensibly leaves parliamentary systems more open to direct democratic action, but Canadians still had concerns about full representation under first-past-the-post elections. When Justin Trudeau was first elected in 2015, it was on a popular campaign of electoral reform. However, his government won a majority, which gave Trudeau enough political autonomy that he quickly dropped talk of electoral reform, citing his win against preceding government as change enough for the future of Canadian democracy.
So against what metric of good democratic etiquette, exactly, should the West be measuring Israel’s parliamentary system now?
Political parties and civic interests in Israel
Granted, in the case of Netanyahu, whose coalition scraped out a much tighter win after three fraught years of five election campaigns, the compromises made for survival are more extreme than the Canadian example. In part, that’s because Israel is home to deeply divided multitudes: ethnically, religiously, and sociopolitically.
But so too are most Western countries. Where then lies the difference?
Today, for instance, Israel’s 9.5 million (excluding Palestinians in the West Bank and Gaza Strip, and foreign residents) includes some 6.5 million Jews, one million of which being Haredi (Orthodox), and 1.8 non-Jewish Arabs. The Jewish population includes people who have made aliyah from all over, including around 160,000 Ethiopian Jews, who came in large part in 1934, the 1960s and ’70s, 1984, and 1991: many reclaiming Rabbinic Judaism after centuries of Christian conversion.
The current PM is often presented as the first leader of Israel to have been born in the official state of Israel, but Netanyahu, the son of secular Jewish parents, spent formative years in the US, where he was a great fan of Ayn Rand and even expressly emulated Howard Roark from The Fountainhead by studying architecture. His schooling at MIT and Harvard was balanced by military service in the Israeli Defence Forces, and he leaned toward Revisionist Zionism. This last would eventually find him in the Likud Party, which Revisionists helped found in 1973, and which first took state control from Ben-Gurion’s school of labor-driven Zionist parties in 1977.
Beyond differing on the pragmatics of constructing a state, Revisionist and practical Zionisms most starkly diverge on security. For practical and other socialist Zionisms, pursuing peace with one’s neighbors remains important. For many Revisionists, security requires constant vigilance, shows of force, strong borders, and other acts of deterrence. It also bears noting that, while there was once a tacit understanding that disagreement should be kept to a minimum because Zionists share a common goal, some Revisionists contend that certain disagreements belie that one is truly Jewish and/or Zionist at all. As such, there is immense internal policing about who is “Jewish enough” to have a say in Israeli politics.
Although most Western reporting on Israel focuses on Arab-Israeli conflict (which in turn supports a “flattening” of Israeli political discourse), some national news around related internal dissent also filters into the West. Stories of ultra-Orthodox Jews calling for the censorship of naked Jewish women in memorial museums, where the display of trauma was seen as “immodest”, have been joined with other signs of misogyny and xenophobia: attempts to eliminate photographic evidence of historical women in general, attacks on black African immigrants, and the defacing of public media promoting women in nontraditional roles.
Racism against Jewish Ethiopians also emerges in police encounters, abuse during military service, and government pressures to sterilize women of the ethnicity. This relates to a longstanding tension among Jewish peoples, in which many groups benefit from whiteness even as Western whiteness retains a long history of antisemitism. Anti-Black and Anti-Arab prejudices in particular will show up in most any other worldly region: Latino, Asiatic, and Western alike.
Around the 2013 Israeli elections, Mizrahi Jews (from African nations, other Middle Eastern countries, and sometimes Eastern and Asian sites) became a critical site of Israeli internal prejudice. In contrast with Ashkenazi Jews (dispersed by the Holy Roman Empire, now overwhelmingly based in the US) and Sephardic Jews (Hispanic/Iberian), this other demographic holds less power and was frequently subject to dehumanizing rhetoric during that year’s Knesset race. Then, too, Netanyahu established a government on a right wing coalition involving extremists, so his political priorities have been well known to Israelis for some time.
Nevertheless, the latest coalition brought such tensions to a much more critical head.
The contemporary legal crisis
Instead of a formal constitution, Israel developed the Harari Decision of 1950, which promised a series of Basic Laws over ensuing decades, in conjunction with the growth of Israel as a state through border expansion and immigration.
Israel now has thirteen Basic Laws. The difference between these and a formal constitution lies in the power of one piece of legislation to contradict another. No official document is supposed to contravene a constitutional clause, but a Basic Law has less power over other legislation. Some can only be changed by a super-majority of the Knesset, but they are nevertheless subject to parliamentary decree.
However, in 1992 the Knesset passed two Basic Laws that finally upset a decades-long balance of legislation driven by a vague civic ethos made manifest in members of parliament. Until this point, the judicial branch had often taken expressly subservient positions in relation to the executive. But with the passing of the Basic Law on Human Dignity and Freedom, and also on Freedom of Occupation (employment), the judiciary saw an increased role for oversight. This is because the Human Dignity and Freedom law was meant to stand even in states of emergency: so who else but the judiciary was going to offer that check and balance to executive power?
A whole generation therefore grew up with a more republican sense of judicial and executive balance, and also with a Basic Law at last covering Human Rights and Freedoms, as with Canada’s Charter of Rights and Freedoms. Ben-Gurion had argued in defence of future generations like this one deciding the shape of Israel for themselves, but the consequence of such a drawn-out nation-building process is that today’s Israeli population strongly differs over whether the traditional or more recent form of state government is best. Is a Revisionist model of consolidated power and heightened shows of military force the proper way to build Israel as a “strong” state? Or does a contemporary version of Ben-Gurion’s practical Zionism, informed by socialist and minority-rights issues increasingly entrenched by the Knesset and protected by the Supreme Court, invite another way to build Israel’s future?
This tension has been exacerbated by the fact that an emboldened judicial branch can and has impeded the rise of extreme nationalist movements. In 2008’s “Fighting Terrorism in the Political Arena: The Banning of Political Parties”, Suzie Navot reviewed the state of “defensive democracy” in Israel, and tied this decades-long struggle into similar concerns in Spain, Germany, and Turkey: other countries, that is, where hateful nationalist groups have required strategic judicial interference for the preservation of free and fair elections.
Can a democracy declare war against challengers of democracy? Pedahzur’s (2001) examination of the literature on political institutions reveals two major research directions: the legal one, i.e. the struggle against extremist political parties by legal means (legislation, court decisions), and the military-operative one, i.e. strategies and tactics of counterterrorism within a democratic state. This article follows the first direction, and deals mainly with the case of Israel. The basic research question to be discussed is whether the barring of antidemocratic lists from participation in the elections is compatible with democracy, or is the democratic entity itself taking an anti-democratic measure?
Applying the principles of defensive democracy is hardly simple. The danger that faces a society adopting a tolerant approach is difficult to measure, as is the price to be paid by a society for its intolerance. More specifically, the attempt to restrict the candidacy of terror-supporting parties poses a number of questions: At what stage of the party’s development can it be done? Is a declaration of intentions sufficient? Is proof required for real terrorist activities? And, generally, is it even possible to define an ‘act of terror’ for the purpose of disqualifying a political party?Suzie Navot, “Fighting Terrorism in the Political Arena”, Party Politics, 2008
This discourse should by no means be unfamiliar to US readers, who are currently embroiled in similar struggle, especially at the state level, to maintain or return fuller democratic representation to all the country’s citizens. Where Christian nationalism poses an identity crisis in US politics, and Hindu nationalism endangers minority groups in India, so too does the full spectrum of Israeli politics include Jewish supremacist movements that treat the eradication of Arab peoples within and beyond Israel as essential for in-group security.
One of these, the Jewish Power party, saw two candidates banned by the Supreme Court from the 2019 elections. The Jewish Power party descends from the Kach party, which was outlawed for hatefulness in the 1980s. One of the recently banned candidates, Benzi Gopstein, is anti-assimilation: expressly against interfaith marriage and the hiring of Palestinians and other Arabs. Netanyahu has been criticized for working with the Jewish Power party to secure his own political successes.
Last year, the judiciary and the executive again sparred over which parties would be allowed to run for office. In September, Israel’s Central Elections Committee banned Tajammu’ (Balad), an Arab party expressly committed to “full equality” and being against Israeli occupation of Palestinian regions. The CEC argued that Balad was “undermining Israel as a Jewish and democratic state” and inciting racism. The Supreme Court threw out the CEC’s ban in a 9-0 decision in October.
January’s announcement, of the Knesset’s intention to strip the Supreme Court of many powers, thus came as no surprise. Indeed, local discourse makes clear that Arab representation in any future election is now on the line. But in this bitter feud over the nature and future of Israeli government lies deeper issues for us all.
The vast majority of human beings believe themselves to want to live in peace. If we do not live in peace, it is therefore the fault of external parties, and sometimes violence against those out-groups becomes the inevitable, “reluctant” response: for one’s own safety. For the future of one’s people. For the preservation of “freedom” and “democracy” against the madding hordes. But what is transpiring in Israeli national politics today, as far right groups leverage blanket support “for Israel” to pursue extremist versions of a dream very much in active local debate, raises huge questions about the robustness of the democratic project everywhere.
More on that in the series closer, when we draw from an early Zionist vision of nation-building, to reflect on the global struggle for the shape of democracy everywhere.
Israel and the West
Part 1: How we lost nuance with Jewish state politics
Part 2: Western complicity in Middle Eastern trauma
Part 3: Netanyahu and Israeli national politics