Into the Fray
JPost
25 November '11
http://www.jpost.com/Opinion/Columnists/Article.aspx?id=246925
The underpinnings of Israeli democracy are being imperiled by those purporting to be its staunchest defenders.
Religion, nationalism and a people’s complex of ethical habits and customs have traditionally been interpreted as obstacles to the establishment of successful democratic political institutions. But the truth is considerably more complicated, for the success of liberal politics frequently rests on irrational forms of recognition that liberalism was supposed to overcome.
For democracy to work, citizens need to develop an irrational pride in their own democratic institutions frequently based on religion, ethnicity or other forms of recognition that fall short of the universal recognition on which the liberal state is based.
– Francis Fukuyama, The End of History and the Last Man, 1992
This citation, from one of the staunchest champions of liberal democracy in recent times, highlights the grave misunderstanding – or perhaps purposeful misrepresentation – of the concept and its constitutive nature that surfaced during the brouhaha following recent legislative initiatives in the Knesset.
Status quo unsustainable
These initiatives, focused on changing the mechanisms determining the composition of the Israeli judiciary and the funding that (ostensibly) Israeli NGOs can receive from foreign governments.
Opponents of the proposed changes protested vociferously against them, warning darkly that they herald the end of democratic liberties in the land. The bitter irony is that it is precisely those who advocate preserving the status quo that are imperiling the future of Israeli democracy.
Now it is quite possible that the proposals put forward could have been enhanced, refined and polished. They perhaps can be criticized for being ham-fisted and heavyhanded, badly drafted and poorly thought through. But what cannot be denied is that they address two intolerable features that are gnawing away at the democratic underpinnings of Israeli society.
These must be addressed, resolutely and rapidly.
Severing the demos from the kratos
The configuration and conduct of the judiciary, and the operation of NGOs funded by foreign sovereign sources, comprise the two blades of a “scissors” that are threatening to sever the bond between the most elemental constituents of democratic governance – between the demos and the kratos (between the people and the power).
The symbiotic interaction between an indisputably politically biased judiciary and organizations funded largely by governments with interests divergent – frequently radically so – from those of Israel, bestow inordinately disproportionate influence on an electorally insignificant minority.
As such, these activities comprise a severe perversion of the democratic process – quite the reverse of the noble endeavor to protect it that their vocal advocates attempt to promote.
While scholars may disagree as to the exact definition of “liberal democracy,” and while most would agree that it should not entail the unrestrained tyranny of the majority, it is doubtful whether any would suggest that it comprises the notion of the rule of the minority.
So while protection of minority rights – an important element of liberal democracy – is one thing, the right to subvert – indeed supersede – the will of the majority is quite another.
Bypassing the will of the people
The ample financial resources of these political NGOs, with agendas often inimical to the vision of preserving Israel as the nation-state of the Jewish people, allow them to lodge frequent petitions with a like-minded High Court of Justice.
This has impeded, undermined and delayed policy decisions of the elected government.
The efficacy of these foreign-funded forays is not necessarily dependent solely on the decisions handed-down by the courts. Sometimes significant practical impact on government policy can be achieved by interim injunctions, the publicity (usually negative for Israel) generated by the lodging of the petition itself, out-of-court settlements reached to avoid drawn-out legal proceedings, irrespective of the substantive merits of the petitions, and so on.
Moreover, this symbiosis between a politically partisan judiciary and externally financed NGOs has had several disturbing effects which are not often clearly articulated and hence not clearly understood.
First, it allows foreign governments to affect Israel’s policies by circumventing accepted diplomatic practices in manners which are far from transparent – either to their own domestic publics or to the Israeli electorate.
Second, it permits electorally inconsequential segments of the population to short-circuit public debate and to influence events far beyond their domestic weight, using the resources of official alien sovereignties whose interests are very different – indeed often diametrically opposed – to those of Israel.
All of these restrict the policies of Israeli authorities on a wide range of issues on the national agenda, including vital matters of security and defense. The result is an ongoing erosion of the public perception of the stature of elected executive and legislative branches of government and a commensurate enhancement of that of the unelected, elitist judiciary.
Why anyone would consider that preserving such a perverse state of affairs furthers the cause of liberal democracy beggars the imagination.
Is legality losing legitimacy?
But there is an even more pernicious situation developing, fueled by a growing perception of the blatant disconnect between the value-system reflected in the judicial rulings and that of the general public. It is indisputable – and generally undisputed – that a strong, independent judiciary is indispensable for the effective functioning of a liberal democracy.
However, such independence would be of little value or durability without public faith in the judicial system.
For those genuinely concerned with the fate of the rule of law, the plummeting confidence Israelis have in the courts must be of utmost concern – far more than any defects, real or imagined, in proposed changes to the process of selecting judges.
As I have mentioned in recent columns, documented research clearly demonstrates that increasing segments of society are expressing an increasing lack of faith in the courts. This includes the Supreme Court, whose justices, in the words of one study published by Harvard University Press, “are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda.”
Another study, by the University of Haifa, found that barely a third of the public has faith in the overall court system – down by over 40 percentage points over the past decade.
Just over half of the public has faith in the Supreme Court – which means almost one half don’t.
This reflects a disturbingly sharp decline from the 80-percent level of faith in 2000. A major factor contributing to the decline was, according to the study’s author, the Supreme Court’s “excessive involvement” in controversial religious, social and defense issues.
Another study conducted by researchers from Ben-Gurion and Haifa universities reveals similar steep and sustained drops over the preceding decade in Israelis’ confidence in the courts.
All of this makes the assessment by Prof. Ran Hirschl, in his book Towards Juristocracy, particularly pertinent. He warns: “The delegation [some might say usurpation] of power to courts may therefore pose a long-term threat to the legitimacy, impartiality and independence of the judiciary.”
Counter-productive and self-defeating
For anyone who is truly committed to a strong independent judiciary, the current situation is one that cannot be allowed to persist. After all, there is nothing that endangers its standing more than the loss of public confidence in its ability to dispense justice. If this is lost, nothing will prevent aggrieved citizens from turning to “alternative” systems to find the justice they seek – and the rule of law will be irretrievably lost.
It is thus truly troubling that those who profess to hold the values of liberal democracy and the rule of law dear – particularly the members of the current coalition – did not invest efforts in trying to improve the legislative proposals of their parliamentary colleagues for changing the unsustainable status quo. This would have been a far more constructive course than caustically denigrating their initiatives and vehemently berating their motivations.
Rather than surrender to the illogical, counter-productive and self-defeating dictates of political-correctness, rather than join the misguided bon-ton chorus vainly trying to justify the unjustifiable and preserve the unpreservable, figures such as Bennie Begin and Dan Meridor might have harnessed their energies and prestige to promote endeavors to ensure the future of the legal system and to save the judiciary from itself.
Moral values, not legal edicts
The current, deteriorating situation is a result of what appears to be a grave misunderstanding – or deliberate misrepresentation – on the part of the country’s left-leaning liberal-secular elites of what liberal democracy is. They seem unable to grasp, or unwilling to accept, the simple but profound insights conveyed by Fukuyama in the introductory citations.
This calls for the realization that liberal democracy is first and foremost a political – not a legal – construct. It cannot be created or sustained by legal edicts alone.
That requires the internalization of moral values which can then be codified into a system of rules for the administration of daily life in accordance with those values.
But when the law does not reflect the prevailing values, the legal system loses its legitimacy. Laws then become unenforceable – unless by undemocratic coercion, which as recent history shows, seldom lasts for long.
Liberal democracy cannot be ordained in a political vacuum. It can only be implemented within a political framework – a state. Sustainable states can only coalesce around only a viable principle of association.
This is especially true for democracies.
For if there is pervasive disagreement as to the validity of the principle of association, governance will be possible only by coercive tyranny. This has long been recognized by liberal philosophers. Thus for example John Stuart Mill, one of the giants of liberal theory, warned that excessive heterogeneity would make representative government untenable. In his classic work Representative Government, he cautions: “Free institutions are next to impossible in a country made up of... a people without fellow- feeling... [where] the united public opinion, necessary to the working of representative government, cannot exist.”
Mill also stipulated what might constitute such a principle of association or “fellow- feeling.” While he acknowledges that “the effect of race and descent... [c]ommunity of language, and religion [may] greatly contribute to it,” they are not the most important parameter.
For Mill, “the strongest [element] of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past.”
The real ideological divide
This, then, is the crux of the matter. This is the essence underlying the ideological divide that emerged in the wake of the recent legislative initiatives.
• It is a divide between those who believe, and those who don't, that stable democracy can comprise a random amalgam of individuals bound by nothing more than their equality before the law, and those who know (or sense) that this is not so.
• It is a divide between those who believe the fundamental differences of identity and allegiance that exist between “Us” and the “Other” can be papered over by laws, and those who know (or sense) that this is not so.
• It is a divide between those who believe, and those who don't, that a unifying ethos (“a fellow-feeling”) can be forged between two peoples, the one (the Jews) that sees a given “incident” (Israel’s Day of Independence) as a source of “pride and pleasure,” and the other (the Arabs) that sees it as a source of “regret and humiliation” (Nakba).
• It is a divide between the majority of Israelis who see their country as the nation-state of the Jewish people, and Israelis such as former Supreme Court president Aharon Barak, who in 2009 declared at a New Israel Fund event (where else?) that he was “a big believer in a state of all its citizens.”
The only question now is: On which side of the divide are Bennie Begin, Dan Meridor and Reuven Rivlin?
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