Is Benjamin Netanyahu Undermining Israeli Democracy?

The new government’s plans to reshape the judiciary have intensified already deep polarization: A Dispatch Explainer.

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Protesters demonstrate against Prime Minister Benjamin Netanyahu's legal reform. (Photo by Eyal Warshavsky/SOPA Images/LightRocket via Getty Images)

Tens of thousands of protesters have poured into Jerusalem’s streets in recent days to protest a slate of judicial reforms proposed by the government of Israeli Prime Minister Benjamin Netanyahu.

The proposals would give the elected representatives more influence in selecting judges, effectively take away the judiciary’s ability to overrule legislation, and end use of the “reasonableness test” the country’s high court uses to judge the government’s decisions. Fundamentally the issue is whether the ultimate check on government power should rest with the legislature or the judiciary—and what that means for the health of Israel’s democracy.

What is Israel’s system of governance?

Israel has one house of parliament, the 120-member Knesset, where members are elected to four-year terms. A majority selects the prime minister, though the body can dissolve itself prematurely and call for new elections. (Last year, Israel held its fifth national contest in four years.) Netanyahu cobbled together a 64-seat coalition from several parties late last year. 

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  1. Avatar photo
    Ben Connelly

    Good explainer. I don’t like Netanyahu much, but rather than “ending democracy” or whatever his critics are claiming, these reforms seem rather sensible. Why does the Bar Association have the legal authority to appoint members of the Supreme Court? That would be like letting the Boy Scouts have a vote on picking the Secretary of Defense here in the US.

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    Adamlevick

    Good summary. However, you omitted one element of the proposed judicial reforms - that the authority to invalidate statutes would be invested in the Supreme Court only if a majority of 80 percent of its judges support the invalidating decision:

    See here https://en.idi.org.il/articles/47916

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  3. Keatonm88

    Seems to me that the religious exemption from military service for the Hasadic population is a ticking time bomb. They will continue to grow in size as a proportion of the electorate.

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  4. Já

    Already American Founding Fathers 250 years ago were well aware of the dangers of "the terror of majority" and made many safeguards against it for very good reasons. Current Israeli Prime Minister does not know, all populists don't.

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      Loganrjudy

      But the Founding Fathers also built in checks on the power of the Supreme Court, which Israel does not currently have.

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  5. Dennis.Trask.Z

    An amazed by the constant churn of elections in Israel. The Knesset is more like my friends talking about the issues of the day than a legislative body.

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    DougAz

    A core reason the Israelis never developed a Constitution is their land and home theft and forcibly displacing humans called Palestinians. For the moral Israeli, it obviously was too a remembrance of the Nazis. For the instrasengent Israelis..they didn't give one fkng shit about the Palestinians. Said Netanyahu to me at MIT in the 70s.

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      Michael Berkowitz

      The idea that Netanyahu said that to you is implausible, but the rest of what you wrote is simply fiction.

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        DougAz

        Netanyahu and I both attended MIT from 1972 -1976. We both attended Sloan.
        Wiki:
        "Netanyahu returned to the United States in late 1972 to study architecture at the Massachusetts Institute of Technology (MIT). After briefly returning to Israel to fight in the Yom Kippur War, he returned to the United States and under the name Ben Nitay, completed a bachelor's degree in architecture in February 1975 and earned a master's degree from the MIT Sloan School of Management in June 1976"

        You tell me why Israel has no Constitution please.

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          Michael Berkowitz

          It's not implausible that you attended MIT together, just that he said what you claimed. As for the lack of a Constitution, I wouldn't know, but I can think of a couple of reasons: 1, that there were significant-enough disagreements about fundamental issues like the relationship of the state to Jewish tradition that the government felt it had enough to deal with without that headache. 2, that the government, dominated by Socialists with a rather Bolshevik attitude, didn't foresee ever losing power and didn't feel the need to hamstring itself with a Constitution.

          I suspect that there's no mystery and that historians have ample evidence, I've just never looked into it.

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            DougAz

            Honestly of course I don't remember the few conversations we had half a century ago. He was obviously brilliant, older, world experienced compared to my West Virginia upbringing. His arguments and with I recall students from Saudi Arabia I think or Egypt on the matter were at times, vile and unyielding on any concern or ownership of responsibility for the Palestinian refugees. And that sits with me as I see the ineffective efforts he has made.

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  7. Seth Halpern

    A written constitution is no guarantee of democracy. The US has a written constitution yet less than 20 years after its adoption Chief Justice Marshall unilaterally subverted it by constructing out of virtual whole cloth the US Supreme Court's privilege of judicial review. (Never mind that the US Senate and the Electoral College weren't particularly democratic in the first place.)

    That said, I don't doubt that Netanyahu is scheming to keep himself in power and to maximize the leverage of his corrupt coalition partners, notably the ultra orthodox. But I can't think of a mechanism for taming the most demographically prolific element of the population without relying on explicitly anti democratic means.

    Indeed, Israel's main problem is not its governmental procedures but the foundational conflicts built into its political culture, whose factions often do not even accept eachother's fundamental legitimacy and regard the state itself as little more than a expedient tool for self-aggrandizement. The idea that it can be solved with legislative or judicial tweaks seems naive at best.

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      DougAz

      And it allows the Depraved racist Netanyahu to stay in power.

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    Jeremy Davison

    More of this!

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  9. Trumeau

    Great job Harvest Prude for a clear and concise explainer about a complicated issue.

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  10. Trumeau

    I did not know that Israel did not have a constitution, which seems to be the crux of the problem. I also don't think that's right that a professional organization, Israel Bar Association, pretty much control the most important laws in that country. They get 2 votes, and the 3 other votes from the judges, who I am sure are part of that association, and therefore more likely to vote for people that favor their views and credentials. When I hear people say that associations are free of bias, I think they are wrong. We have seen it with the American Bar Association, and I am sure that's the same with the Israel Bar Association. I don't really know much about Israeli politics, but it seems that the Supreme Court is controlled by people whose political views are not aligned with those in powers. Also, the people protesting are probably against those in power. But I don't see anything really earthshattering in the policy changes.

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