Jul 27, 2023·edited Jul 27, 2023Liked by Noah Millman
Excellent essay.
It has inspired two related thoughts.
First is that while keeping the hearts of men from dividing themselves into irreconcilable tribes is the ultimate solution, it will never be fast, no matter how the arc of the universe *eventually* bends toward justice. In the meantime, we need institutions to mediate those conflicts and temper their consequences.
This is where Israel falls short and an instructive parallel to America can be considered. Many people bemoan the inability of American political institutions to simply get things done, and the fact that there are so many constraints and veto points. Israel is a cautionary example of the opposite. There, as we're seeing, it's pretty easy for the government to get things done! You can do it with 61 seats in the Knesset, and you can almost certainly do so with no fear of veto from any other institution. And thus Israel is reaping the whirlwind.
One can imagine Trump winning in 2024 and the Republicans taking Congress. Bad things would certainly result. But I suspect there are still enough veto points in the American system that even in that dreadful circumstance we wouldn't be facing Israel's potentially dire situation. The fact that our system is so blocked means that good things don't happen *and* bad things don't typically happen.
Now against that you could point to the British parliamentary system with a similar lack of veto points. But in Great Britain, unlike Israel, there have been centuries of developed norms and values that effectively limit how far a majority party can go in imposing its will. In Israel, the democracy is too new and too fragile for those types of norms to have fully been embedded.
The second point, I'm afraid, is that we'll see the limits of protest. I've been impressed by the scale and commitment of those standing up to the government. But I wonder if it will matter. The advantage of the government is that they simply have enough Knesset seats (plus the support of a large part of the Jewish Israeli population). They can simply outwait the protestors. Because unless the protest movement is willing to truly raise the stakes they do not have the power to change the government's direction. We've seen this most unfortunately in Iran where the people rose up against the oppression of women in a most thrilling fashion and continued the protests week after week after week . . . until it petered out and the government returned to oppression as usual.
This is a grim picture of Israel, but at least it does make me appreciate our crappy system of government more.
I have followed the developments with interest from the USA and also in conversation with friends and colleagues in Israel. I have questions:
How can the Supreme Court decide matters before it not on legal grounds . . . but whether the law is “reasonable”? Of course the question becomes, reasonable to whom?
And how is it reasonable that the Supreme Court and its supporters be exclusively the ones who select new members of the court, thus perpetuating their own political philosophy and rewarding their own adherents, keeping the court almost exclusively Ashkenazi and secular . . . nothing like the actual national makeup and character?
And if the “far right” won the election and has a solid majority by all the normal election rules actually in place . . . how is it democratic for the opposition to act as if the election had not been valid? Just because they do not like the outcome? I believe we have been lectured in the USA that “elections have consequences.” But apparently only if the right (actually "left") side wins.
As you know, in the US, justices are routinely nominated by partisan politicians, and confirmed by a partisan Congress.
I might add that in Britain there is no judicial review of parliamentary acts at all.
Needless to say, neither America nor Britain is a fascist autocracy despite those apparent offenses against enlightened Israeli opinion.
So, as Noah implies (or at any rate as I would infer), the abstract philosophical issues implicated in the ongoing controversy hardly seem decisive. What does seem paramount is the way they have triggered and further inflamed tribal hatreds, providing more pretexts to flirt with civil war.
People in the US point to factors like globalization, the rise of social media and geographical self-selection when explaining the intensity of conflict here. I have read few analyses of Israeli society which attempt to place such issues in the latter context, and wonder what if any role they play.
In any case, my compliments to Noah Millman on his perceptive essay.
If I understand correctly, technically Parliament's role in the UK is to advise the monarch, who in theory could reject that advice. Doing so would trigger an enormous uproar, and since the Glorious Revolution it's been established that Parliament decides who the monarch is, so it doesn't happen and in practice the monarch's constitutional role is extremely limited. Nonetheless, formally speaking the monarch chooses the government and the government is acting in the monarch's name. Just shows the importance of constitutional norms alongside or even above formal rules and structures.
The case for reforming the judiciary in Israel is much stronger than the case for the government's proposals. Indeed, a number of reforms had already been enacted before this government came to power--the Court itself has pulled back from some of its most activist habits under Barak, the selection of judges has been reformed to provide more diversity, etc. A lot of neutral observers of Israel agree that further reforms are justified. But what the government has proposed--most of which has not been enacted yet--goes far beyond that to the point of being a major constitutional change. I don't think it's weird to say that such changes should earn wide support beyond a narrow ideological majority.
As for "reasonableness," the standard is actually used quite widely around the world. It's a foundational concept in English common law, for example. Many statutes and contracts also explicitly specify reasonableness as a limitation on action. A contract might say that one party can audit certain documents only with the other party's consent, but then also say that such consent shall not be unreasonably withheld. Or a statute might grant a regulator broad power to restrict emissions to protect air quality, but then require the regulator to exercise that power reasonably and/or to make reasonable efforts to assess the economic and social impacts of the rules it promulgates. Judges are then expected to decide whether in a given instance the relevant party acted reasonably or not. Of course, the fact that the standard is widely used doesn't mean that it has been applied fairly and impartially in Israel's case--maybe it hasn't. But it's not some crazy idea out of left field.
Meanwhile, it's worth noting that the standard applies to decrees and appointments by the government rather than to laws passed by the Knesset. In other words, it's not about invalidating laws which legislators have duly voted on, and for which they will be directly accountable to the electorate. The bar is quite high for invalidating a statute, much lower for countermanding a government decree. I don't think that having the Supreme Court be the sole check on the government is necessarily the best system, but without it there would be none at all. Compare to the United States where a substantial part of the bureaucracy that implements administrative law is protected by civil service protections, where the political appointees who manage and direct those bureaucrats are appointed subject to Senate approval, and where both the scope and content of administrative decisions are subject to review by the courts.
Of course, a number of GOP candidates for president, most notably Trump, have called for eliminating those checks on discretionary presidential authority, calling for removing civil service protections for the bureaucracy and restricting the courts' ability to review the bureaucracy's decisions. Right-wing populist movements across the globe have sought to concentrate power in the hands of the executive, but the trend isn't even limited to those movements; Xi Jinping's transformation of the Chinese system has similarly sought to de-institutionalize it and concentrate power in his own hands. It's very hard for me to see this trend as improving the prospects for individual liberty.
Both sides in the conflict in Israel claim the mantle of "democracy" but I think that obscures more than it reveals. Democracy is not synonymous with liberalism (as the protestors often suggest) nor is it synonymous with majority rule (as partisans of the government aver). Democracy means that the people rule--that sovereignty derives from them and that the government serves at their disposition. In a deep sense, though, what is being disputed in Israel is who are "the people." Many who voted for the current coalition feel they have been excluded or marginalized in Israel's formal and informal conception of "the people" and they are saying by their actions that turnabout is fair play. But it isn't; turnabout gives you a divided society in which there is no "people" but a bunch of squabbling tribes seeking to dominate each other. That's also a global trend, and not a positive one for democracy.
I often comment that the same Israeli government that objects to the fact that the country's secular courts choose their own members and consider themselves uniquely empowered to discern the fundamental law also seeks to expand the reach of rabbinic courts that . . . choose their own members and consider themselves uniquely empowered to discern the fundamental law.
Yeshayahu Leibowitz argued from the beginning that Rav Kook's ideology would lead to just such a disastrous conclusion, which is why his Zionism was relentlessly secular in orientation even as he practiced a rigorously Orthodox Judaism. Kook's messianism was progressive in the sense that he believed the messianic age would arrive be degrees, as the product of the actions of human beings who are not always aware of what they are doing, with his own community positioned as the vanguard who did understand both where history was going and what needed to be done to get there. Within that ideological context, making Israel a halakhic state looks like a necessary step on the road to the messianic age, and stepping off that path as much a betrayal as the return of any territory included in the biblical promise. So it's not so surprising that the national religious camp would come to favor a Jewish version of the Iranian theocracy. (Which, I will note, also transformed traditionally pluralistic Islamic law to something far more centralized.)
More interesting, ideologically and sociologically, has been the evolution of the ultra-Orthodox, who remain formally anti-Zionist or at least non-Zionist in orientation but have abandoned their once purely particularist and transactional politics to become increasingly fully integrated into the Israeli right. It makes perfect sense for them to seek more privileges and support for themselves and their communities, and to annex more and more public areas to their norms--secularists might not like it (I don't) but that's just particularism with more electoral muscle behind it. But I'm very curious how they justify the increasingly common assumption in their circles that the actions of a state they don't even recognize as Jewishly significant should presumptively conform to Jewish law. Something deep is happening there, with consequences we can't yet foresee.
You worry too much. The great self-reckoning of the Jewish people (of late between the Jews and the Israelis as you put it) is a process that began at Sinai, and continues to this day. There were never any shortcuts and there are none today. That particular point--and it is the most salient--is what you have excellently summarized in your discussion of Kamtsa and Bar-Kamtsa.
Excellent essay.
It has inspired two related thoughts.
First is that while keeping the hearts of men from dividing themselves into irreconcilable tribes is the ultimate solution, it will never be fast, no matter how the arc of the universe *eventually* bends toward justice. In the meantime, we need institutions to mediate those conflicts and temper their consequences.
This is where Israel falls short and an instructive parallel to America can be considered. Many people bemoan the inability of American political institutions to simply get things done, and the fact that there are so many constraints and veto points. Israel is a cautionary example of the opposite. There, as we're seeing, it's pretty easy for the government to get things done! You can do it with 61 seats in the Knesset, and you can almost certainly do so with no fear of veto from any other institution. And thus Israel is reaping the whirlwind.
One can imagine Trump winning in 2024 and the Republicans taking Congress. Bad things would certainly result. But I suspect there are still enough veto points in the American system that even in that dreadful circumstance we wouldn't be facing Israel's potentially dire situation. The fact that our system is so blocked means that good things don't happen *and* bad things don't typically happen.
Now against that you could point to the British parliamentary system with a similar lack of veto points. But in Great Britain, unlike Israel, there have been centuries of developed norms and values that effectively limit how far a majority party can go in imposing its will. In Israel, the democracy is too new and too fragile for those types of norms to have fully been embedded.
The second point, I'm afraid, is that we'll see the limits of protest. I've been impressed by the scale and commitment of those standing up to the government. But I wonder if it will matter. The advantage of the government is that they simply have enough Knesset seats (plus the support of a large part of the Jewish Israeli population). They can simply outwait the protestors. Because unless the protest movement is willing to truly raise the stakes they do not have the power to change the government's direction. We've seen this most unfortunately in Iran where the people rose up against the oppression of women in a most thrilling fashion and continued the protests week after week after week . . . until it petered out and the government returned to oppression as usual.
This is a grim picture of Israel, but at least it does make me appreciate our crappy system of government more.
Brilliant piece — yasher koach.
Don’t give up hope.
This was excellent, thank you for writing it.
I have followed the developments with interest from the USA and also in conversation with friends and colleagues in Israel. I have questions:
How can the Supreme Court decide matters before it not on legal grounds . . . but whether the law is “reasonable”? Of course the question becomes, reasonable to whom?
And how is it reasonable that the Supreme Court and its supporters be exclusively the ones who select new members of the court, thus perpetuating their own political philosophy and rewarding their own adherents, keeping the court almost exclusively Ashkenazi and secular . . . nothing like the actual national makeup and character?
And if the “far right” won the election and has a solid majority by all the normal election rules actually in place . . . how is it democratic for the opposition to act as if the election had not been valid? Just because they do not like the outcome? I believe we have been lectured in the USA that “elections have consequences.” But apparently only if the right (actually "left") side wins.
As you know, in the US, justices are routinely nominated by partisan politicians, and confirmed by a partisan Congress.
I might add that in Britain there is no judicial review of parliamentary acts at all.
Needless to say, neither America nor Britain is a fascist autocracy despite those apparent offenses against enlightened Israeli opinion.
So, as Noah implies (or at any rate as I would infer), the abstract philosophical issues implicated in the ongoing controversy hardly seem decisive. What does seem paramount is the way they have triggered and further inflamed tribal hatreds, providing more pretexts to flirt with civil war.
People in the US point to factors like globalization, the rise of social media and geographical self-selection when explaining the intensity of conflict here. I have read few analyses of Israeli society which attempt to place such issues in the latter context, and wonder what if any role they play.
In any case, my compliments to Noah Millman on his perceptive essay.
If I understand correctly, technically Parliament's role in the UK is to advise the monarch, who in theory could reject that advice. Doing so would trigger an enormous uproar, and since the Glorious Revolution it's been established that Parliament decides who the monarch is, so it doesn't happen and in practice the monarch's constitutional role is extremely limited. Nonetheless, formally speaking the monarch chooses the government and the government is acting in the monarch's name. Just shows the importance of constitutional norms alongside or even above formal rules and structures.
The case for reforming the judiciary in Israel is much stronger than the case for the government's proposals. Indeed, a number of reforms had already been enacted before this government came to power--the Court itself has pulled back from some of its most activist habits under Barak, the selection of judges has been reformed to provide more diversity, etc. A lot of neutral observers of Israel agree that further reforms are justified. But what the government has proposed--most of which has not been enacted yet--goes far beyond that to the point of being a major constitutional change. I don't think it's weird to say that such changes should earn wide support beyond a narrow ideological majority.
As for "reasonableness," the standard is actually used quite widely around the world. It's a foundational concept in English common law, for example. Many statutes and contracts also explicitly specify reasonableness as a limitation on action. A contract might say that one party can audit certain documents only with the other party's consent, but then also say that such consent shall not be unreasonably withheld. Or a statute might grant a regulator broad power to restrict emissions to protect air quality, but then require the regulator to exercise that power reasonably and/or to make reasonable efforts to assess the economic and social impacts of the rules it promulgates. Judges are then expected to decide whether in a given instance the relevant party acted reasonably or not. Of course, the fact that the standard is widely used doesn't mean that it has been applied fairly and impartially in Israel's case--maybe it hasn't. But it's not some crazy idea out of left field.
Meanwhile, it's worth noting that the standard applies to decrees and appointments by the government rather than to laws passed by the Knesset. In other words, it's not about invalidating laws which legislators have duly voted on, and for which they will be directly accountable to the electorate. The bar is quite high for invalidating a statute, much lower for countermanding a government decree. I don't think that having the Supreme Court be the sole check on the government is necessarily the best system, but without it there would be none at all. Compare to the United States where a substantial part of the bureaucracy that implements administrative law is protected by civil service protections, where the political appointees who manage and direct those bureaucrats are appointed subject to Senate approval, and where both the scope and content of administrative decisions are subject to review by the courts.
Of course, a number of GOP candidates for president, most notably Trump, have called for eliminating those checks on discretionary presidential authority, calling for removing civil service protections for the bureaucracy and restricting the courts' ability to review the bureaucracy's decisions. Right-wing populist movements across the globe have sought to concentrate power in the hands of the executive, but the trend isn't even limited to those movements; Xi Jinping's transformation of the Chinese system has similarly sought to de-institutionalize it and concentrate power in his own hands. It's very hard for me to see this trend as improving the prospects for individual liberty.
Both sides in the conflict in Israel claim the mantle of "democracy" but I think that obscures more than it reveals. Democracy is not synonymous with liberalism (as the protestors often suggest) nor is it synonymous with majority rule (as partisans of the government aver). Democracy means that the people rule--that sovereignty derives from them and that the government serves at their disposition. In a deep sense, though, what is being disputed in Israel is who are "the people." Many who voted for the current coalition feel they have been excluded or marginalized in Israel's formal and informal conception of "the people" and they are saying by their actions that turnabout is fair play. But it isn't; turnabout gives you a divided society in which there is no "people" but a bunch of squabbling tribes seeking to dominate each other. That's also a global trend, and not a positive one for democracy.
You will probably find this interesting if you haven't already read it. https://themarginaliareview.com/the-invention-of-modern-jewish-theocracy/
I hadn't seen it -- thanks for pointing me to it.
I often comment that the same Israeli government that objects to the fact that the country's secular courts choose their own members and consider themselves uniquely empowered to discern the fundamental law also seeks to expand the reach of rabbinic courts that . . . choose their own members and consider themselves uniquely empowered to discern the fundamental law.
Yeshayahu Leibowitz argued from the beginning that Rav Kook's ideology would lead to just such a disastrous conclusion, which is why his Zionism was relentlessly secular in orientation even as he practiced a rigorously Orthodox Judaism. Kook's messianism was progressive in the sense that he believed the messianic age would arrive be degrees, as the product of the actions of human beings who are not always aware of what they are doing, with his own community positioned as the vanguard who did understand both where history was going and what needed to be done to get there. Within that ideological context, making Israel a halakhic state looks like a necessary step on the road to the messianic age, and stepping off that path as much a betrayal as the return of any territory included in the biblical promise. So it's not so surprising that the national religious camp would come to favor a Jewish version of the Iranian theocracy. (Which, I will note, also transformed traditionally pluralistic Islamic law to something far more centralized.)
More interesting, ideologically and sociologically, has been the evolution of the ultra-Orthodox, who remain formally anti-Zionist or at least non-Zionist in orientation but have abandoned their once purely particularist and transactional politics to become increasingly fully integrated into the Israeli right. It makes perfect sense for them to seek more privileges and support for themselves and their communities, and to annex more and more public areas to their norms--secularists might not like it (I don't) but that's just particularism with more electoral muscle behind it. But I'm very curious how they justify the increasingly common assumption in their circles that the actions of a state they don't even recognize as Jewishly significant should presumptively conform to Jewish law. Something deep is happening there, with consequences we can't yet foresee.
Just beautiful...in its wrongheadedness. :)
You worry too much. The great self-reckoning of the Jewish people (of late between the Jews and the Israelis as you put it) is a process that began at Sinai, and continues to this day. There were never any shortcuts and there are none today. That particular point--and it is the most salient--is what you have excellently summarized in your discussion of Kamtsa and Bar-Kamtsa.