Neither side can win on judicial reform

Although the legislative process is well on its way, it is still not too late to seek dialogue and reach a compromise to prevent a schism in Israeli society and preserve our solidarity

The first part of the Israeli government’s overhaul of the judiciary passed in first reading, bringing along with it the possible rupture of Israeli society. The only way to prevent this is a dialogue that will result in a compromise – but the only precondition for such a scenario is that the disputing parties recognize each other’s grievances as legitimate.

The mutual denial and ascription of malintent to the opposing side must be substituted with an attentive ear to each other’s concerns.

The proponents of the reform believe that the balance between the branches of government was thrown off keel. Indeed, the purview of judicial scrutiny over life in Israel has increased in recent years, giving a sense it is seeping into every aspect of public affairs while promoting a specific liberal ideological agenda that does not comport with the prevailing cultural and moral diversity of Israeli society, and that these changes were implemented without any discussion or broad public consensus.

On the other hand, the harsh response to the reform – which I share – stems from the fear that its acceptance means leaving human rights and protection of minorities in Israel to the goodwill of the government.

Rally against the proposed changes to the legal system. Photo by TPS

Thomas Hobbes taught us in the 17th century about the need for the existence of the “leviathan”, a central governing body that works to promote public goals. Citizens, within the framework of a “social contract,” entrust the leviathan with some of their “natural rights” and authorize it to exert force internally and externally.

But alongside the promise embodied in the leviathan, also lies the greatest source of danger in the public sphere. I, as a citizen, depend on the protection of the state but may also be persecuted by it. One such regime would be Vladimir Putin’s Russia.

Thus, liberal democracies adopt a variety of defensive lines in order to reduce the risk of abuse of power.

Many of the lines of defense accepted around the world do not exist in Israel: We do not have a constitution that sets the limits to what is permitted – and, more importantly, the limits of what is prohibited – in a stable fashion; we do not have a Bill of Rights that guarantees the freedom of the citizens; we do not have Basic Laws that set the rules of conduct of the branches of government and the separation of forces between them.

And while we have a legislative branch, it lacks practical power to oversee the operation of the executive branch; we have no limits on the terms of the executive branch; we have no decentralization of responsibility and authority similar to that of federal states; we are not part of a multilateral union, such as the European Union, which subordinate its member states to the rules; And, we must admit, we do not have a proper political culture that sets limits on the conduct of the government.

Given this flawed reality, how will individual freedom be guaranteed? What is supposed to protect us from the leviathan’s whims?

There is no other solution than the judicial system: The judiciary, headed by the Supreme Court, the attorney general and the legal advisors in the government ministries. Justice Minister Yariv Levin’s reform could undermine all these last lines of defense and weaken them significantly.
Human experience shows that one should not expect the leviathan to refrain from abusing its power if no boundaries are set for it, and therefore, the concerns about Levin’s reform are legitimate. Even its proponents must realize that the reality they seek to create can result in their collapse since the tables can turn.
Is it possible to draw up a compromise outline that takes the concerns of both sides seriously? It’s a difficult task, but I think it’s possible. Compromise, by nature, requires concessions and therefore cannot be satisfactory. But if the concessions do not cross red lines and if they are limited only to the degree required to take into account the core adversity of others, the compromise becomes moral and appropriate in the first place.
Compromise is necessary to preserve our solidarity. An outcome where one side is victorious will result in a dispute that goes against Israel’s general interest. It will see us go down a slippery slope of political and social instability.

Leaders of Israel: History will judge you by the sincerity of your willingness to move toward compromise.