Zionism and Democratic Majoritarianism

Unlike most liberal commentators, I have little love or admiration for the Israeli Supreme Court. Because the Supreme Court doubles as a High Court of Justice and it can and does hear petitions by any person (not only citizens or residents) against public bodies and governmental authorities it is frequently thrust into an enormous range of disputes in Israeli political and administrative life. The Court’s implied check on legislative action, has also allowed irresponsible elites to promise the electorate one thing (often against their private better judgment) secure in the knowledge that the court could be counted on to prevent it from happening.

Despite the admiration in some circles the court has, in fact, been relatively weak in protecting rights, especially of those who live under Israeli occupation; and ultimately it has been an instrument in making such occupation administratively more efficient. It also has facilitated the successive Israeli governments’ strategic legal and political ambiguity about the status of occupied lands that has been characteristic for over five decades now.

Unlike most Zionists, I view such ambiguity as a strategic disaster, despite the undeniable tactical advantages it generates. For, contemporary Zionism (as represented by the State of Israel) has five structural and longstanding weaknesses: i) the failure to establish permanent borders for the state of Israel; (ii) the inability to settle what kind of political entity Israel should be so that it can end its near-permanent war-footing and colonial-settler occupation of hostile populations; (iii) (the perception of) Israel's dependence on America's political and military support, which ties Israel to America's strategic interests and electoral politics, while (iv) allowing a split between the interests of Zionism and American Jewry to develop; (v) Israel’s failure to provide Palestinians with positive incentives and symbolic declarations to come to peace with Israel. (Many of these are interrelated, of course.)

I don’t mean to deny some of Israel’s successes. It has had unprecedented economic growth during the last few decades. It has also managed to integrate many newcomers into its political life. Increasing trade and diplomatic ties with a number of Arab and Muslim majority countries have improved its strategic position. It has a vibrant domestic, political culture of public contestation.

Because practically all of Israel’s enemies are distracted and weakened by civil war and civil turmoil, it can focus on domestic development. This period of relative calm should have, thus, been the occasion to resolve some of the long--term strategic challenges.

Unfortunately, much of the political action within Israel has been on re-shaping the basic law to entrench the privileges of the Jewish majority and to undo the balance of power between its unicameral parliament, the Knesset, and the quasi veto-power of its supreme court in favor of parliament. Along the way, it also proposes the weakening of the independence of the office of the attorney general a key check on corruption in government.

While this might be thought to settle the what kind of political entity Israel will be (so tackle ii), it does so without offering a viable path out of the near-permanent war-footing and colonial-settler occupation of hostile population(s). Along the way, it is estranging minorities that were once also strategic allies of the Zionist project (Druze, some Bedouin, etc.).

None of this ought to come as a surprise to students of politics. In Federalist 49, Madison expresses succinctly, the conventional wisdom of eighteenth and nineteenth century political science “that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments.” In a system with a pure separation of powers, the stronger party will eventually encroach on the weaker (a point already noted by Hume).

Madison goes on to predict that in the case of such encroachment, “appeals to the people” are likely, and likely to fail. And indeed during the last half year a part of Israel’s civil society has regularly taken to the streets to defend the veto power of the court, but the Israeli government can (and will) wait them out. Israel’s parliamentary democracy is increasingly moving toward a majoritarian framework with few constitutional constraints.

Israel’s current unpopularity on the political left in Europe and Stateside is, thus, a bit ironic. It comes closer to having an effective demos in political control than the liberal democracies it is usually compared to. Because one of the more notable features of Israel's constitutional framework relative to most wealthy countries today is that its political system gives effective voice to the majority of voters. And, in fact, unlike the more liberal constitutions common in North American and northern Europe (but not unlike the Indian constitutional settlement dating from the same period), the Israeli constitutional structure is intentionally (and Ben Gurion prevailed in this) not a device to constrain future majorities. (Such deviations from liberalism are, on my understanding [recall here, here, here, and here] a feature and not a bug of Zionism.)

The proposed weakening of the supreme court’s ability ‘to check’ the legislative will make majoritarian government all the more unconstrained. Israel will come to resemble the United Kingdom with governments capable of being akin to temporary elected dictatorships as long as coalition accords can effectively bind the majority. Israeli’s minorities and those that live under occupation have little reason for optimism about this trend.

The systemic reduction of influence from the legal establishment will undoubtedly reduce the average quality of decision-making. Safe-guards against corruption — already a known problem in Israel — will be undermined.

As an aside, the political realities of the UK also suggests how difficult it will be to tackle most of the strategic challenges I have outlined; the British government was only able to quiet or pacify the Northern Irish troubles in the context of an EU based partnership with the Republic of Ireland. And the acknowledgment of the fragility of the Northern Irish settlement has already undermined a clean Brexit.

Be that as it may, while the current judicial reform proposals are motivated by political opportunism of several converging interests on Israeli’s political right (not the least the fate of Netanyahu’s corruption trial), the longer term impact of a more majoritarian system will almost certainly also surprise its current advocates. For it is a maxim of political life that once reliable expectations are altered, voting patterns and possible coalitions will shift. After all, throughout the last half century, the supreme court’s check has also saved Israel’s government from overreach.

In particular, there is no reason to assume that coalitions favorable to settler-colonists and the very orthodox are permanent. In fact, when budgets become tight again, these permanent interests will not infrequently be in zero-sum competition over scarce resources and political attention. Or to put it differently, there is no compelling reason to assume that when a parliament is elected by proportional representation in a single, national district with a fairly modest qualifying threshold, as the Knesset is, that any majority is secure. If anything, by attacking the judicial veto, this government has also mobilized a highly motivated opposition and has trained a new generation in social activism. For while there is little grounds for immediate optimism, were what one might call a ‘peace majority’' to emerge it will be able gets its way without facing much of institutional obstacles.