[Editor’s Note: This is the last of 7 parts in our I-CONnect/ICON-S-IL symposium on the subject of “Constitutional Capture in Israel?” The introduction to the symposium is available here.]
—Ruth Gavison, The Hebrew University of Jerusalem
I welcome the initiative to hold a public discussion of public law issues in present day Israel, and appreciate the invitation to participate in this exchange. The question posed to us was whether Israel was in the process of a ‘constitutional capture’. I argue that differences among answers to this question, and recommendations to act, reflect a critical and central difference in the conceptions of constitutionalism and democracy themselves.
Porat and Medina do not think that democracy in Israel is under a threat of ‘hostile constitutional capture’. Medina claims that most of the proposals for legislation which are seen as signs of such processes are legitimate, although he objects to them on the merits. He recommends deliberate discussion on public, educational and political planes, seeking to explain and persuade that such bills will weaken liberal democracy. He sees such debates as part of the essence of liberal democracy itself, both morally and prudentially. Porat goes further. He sees present day processes as an intricate and dynamic power struggle between different foci of power. The political-elective branches have become more right-wing, religious and conservative, whereas the courts, academia and the media have a stronger representation of liberal, secular, and left-wing voices. He argues that a more balanced representation of both views in all these foci of power will clarify that such struggles are not about democracy itself. The analysis of Stopler and Harel, on the other hand, and less clearly that of Mordechay and Roznai, is one of erosion and increased risks and threats to present day Israeli democracy and constitutionalism. Their main recommendation is to identify individuals, parties and institutions – primarily those that Porat identifies as the non-elected old elites – that support these ideals, and make them more aware of the dangers and more vigilant in defending them against their enemies and detractors (often – elected officials of present-day governments).
Democracy: Self-government and factions constrained by shared principles
I join Medina and Porat, whose analysis does not presuppose this clear-cut distinction between Pro- and anti-democracy forces. All political players in the ‘demos’ – all and only the state’s citizens, of all persuasions and worldviews – are part of the democratic game. Thus, a struggle for democracy cannot invoke ‘shared’ rules of the game, which systemically privilege or even legitimate only the preferences and attitudes of one group. Similarly, the institutional framework of democracy must establish a dynamic balance between the results of free elections, and a set of constraints and values, which are critical so that democracy will not degenerate into tyranny.
Thus, procedural conditions of democracy (freedom of expression, freedom of association, rights to vote and be elected and inclusive citizenship) are basic human rights as well as conditions to the very existence of democracy.
This tension between the fact that elections determine who will rule, and the constitutional constraints structuring and limiting political power, is immanent to both democracy and constitutionalism. Democracy is not just majority vote. At times, the preferences of majorities are short-term, uninformed, morally objectionable and downright dangerous. Constitutional institutions, separation of powers, limited government, checks and balances, human rights, the rule of law and the plurality of foci of power in both the political system and civil society are, together, designed to produce a stable and dynamic balance between the preferences of the majority and ruling a well-governed state and society. This is the meaning of the classical maxim that democracy is “government by the people, of the people, for the people”.
Where is the line between a political struggle within democracy and a struggle for democracy itself? There is no clear, eternal answer to this critical question, but answers must navigate between two dangers: the constitutional reality, itself a part of social and political reality, may weaken checks and balances, and in this way permit deterioration to tyranny. On the other hand – a broad interpretation of constitutional constraints may unduly limit the implementation of the results of free democratic elections. Constitutions are not only there to check the power of government. They should design a balance between facilitating the critically important effective use of government power and limiting the opportunities and tendencies for its abuse. While some winners of elections tend to act as if winners may take all, it may sometimes appear as if invokers of constitutional constraints mainly seek to limit the relevance of electoral victories. These tendencies are both unjust and unwise. They both ‘appropriate’ democracy without acknowledging its inherent complexity, which is in turn the source of both its strength as an ideal and its fragility.
At the end of the day, even perfect constitutions cannot save us on their own. A constitution will work only if all players, including winners of elections, have good and powerful reasons to respect its principles. Such reasons may include the knowledge that they, too, may lose some future elections; that they realize that governing requires not only present majority control but also a broader legitimacy; and, most important, that they realize that they themselves will be harmed if the present shared constitutional order, the one that empowers them but also limits their power, is eroded. The question whether in Israel at present these conditions obtain is just a different formulation of the questions posed to us in this symposium.
So what do I propose?
First, I suggest that all defenders of liberal democracy (I count myself among them) should plan and work much harder to win popular elections, on the local and national levels. It is much harder and more demanding than litigating and invoking constitutions and the human rights discourse. It is the only way, however, to guarantee that actual decision-making will be made by real representatives of the demos, not by those who think they are their best and conclusive interpreters. In other words, the anti-establishment tendencies of many recent popular votes is related to the principle of self-government. People will elect those who come to them, listen to them, and promise and hopefully do something to provide answers to their immediate and pressing concerns. Israel is not on the path to becoming a de-facto one party democracy or even a one-bloc government. Even if all the allegedly anti-democratic bills are passed (highly unlikely) – this in itself will not perpetuate the rule of one man or party or bloc. Moreover, present-day elections do require a measure of ‘populism’ in the sense of identifying what the ‘people’ wants and needs and catering to it to some extent. This is as it should be, and why it is important to point out and celebrate this core of democracy rather than condemn it outright as anti-democratic.
Secondly, I want the struggles over central political issues (such as the future of the West bank and immigration policy) not to be translated completely into issues of human rights, constitutionalism, international law or other framings that will pass their resolution into courts or international agencies. Politics is not only a ‘matter of principle’. I want these debates, including constitutional debates, to be resolved by political processes constrained by such other norms but not totally dictated by them. Yes, constitutional checks and balances are critical for the robustness of a lively democracy. However, they do not require adherence to the detailed existing arrangements. Checks and balances should be dynamic. Constitutions seek to entrench some basic elements to some extent. But the story will always be a negotiation between politics and constitutional understandings. A total rejection out of hand of all adaptations may be counterproductive and in fact may hinder a serious multi-partisan effort to seek the optimal balance between effective government and limiting the risk of abuse of power and tyranny. A coordinated effort of all parties to reach constitutional modifications is likely to be much more productive of a stable democracy than a series of ‘winner-takes-all’ one sided changes, serving as election slogans and possibly repealed when the winner changes. Moreover, when the issues are known and appreciated as matters of constitutional balance, we should ideally prefer a broader ‘big compromise’ to incremental, smaller changes that seem to advance only one party or ideology.
Third, and even harder, I want a leadership – political as well as cultural and social – in all camps, that will endorse constitutional democracy in its complexity. It should stress the shared constitutional principles, and protect them against attacks by all. At the same time, it should accept that factions and pluralism is essential to democracy. Thus, it will fight for its own vision, and criticize competing ones, but will not seek to de-legitimate or silence other views or their holders. All factions of the demos are here to stay. We are partners in making our country flourishing and successful. There are times when we must stress what we share and not what divides us. The confidence in the partnership is what enables us to benefit from the richness and plurality of our differences. This is a demand made from all leaders. Naturally, it applies more forcefully to the present-day government. It has a mandate to promote its own ideology to some extent. But government should be for ‘the people’ – and the relevant collective is the civic nation as a whole, not a particular faction. Just as it is proudly declared in Israel’s declaration of Independence.
I do not want to underestimate the difficulty of this demand. Cooperation and stressing what is shared may weaken the urgency of changing the government and its present direction. It confers legitimacy of opponents and may seem to dilute the ideological differences that might mobilize people to the ballot boxes or animate required resistance to evil and danger. However, this tension is immanent to stable democracy. Wanting to win the ideological debate cannot be allowed to undermine the constitutional structure and democracy themselves.
Democracy will be robust if it offers not only the legal and constitutional possibility to change government in free elections, but if such changes in fact do take place regularly and not too infrequently. Such regular changes strengthen the shared constitutional framework and permit the acquisition of expertise in dealing with national affairs to members of all political groups. This knowledge and expertise are themselves critical for an orderly transfer of power, which in turn is a precondition of an enduring democracy. Israel has become more democratic after 1977, but recently there is again some weakening in this element of a healthy democracy. At the same time, there are also encouraging signs. However, both strengths and weaknesses are not primarily related to the elements referred to in our posts. They are less legal and constitutional and more social and political. To protect Israeli democracy effectively, therefore, we should start by more adequate analyses of the issues – which will help in identifying ways of redressing them.
Suggested Citation: Ruth Gavison, Some Concluding Comments: What is the State of Democracy? How to Defend It?, Int’l J. Const. L. Blog, Aug. 26, 2017, at: http://www.iconnectblog.com/2017/08/some-concluding-comments-what-is-the-state-of-democracy-how-to-defend-it
 The symposium is about ‘constitutional capture’ while Medina discusses liberal democracy. There are three distinct and interrelated concepts and ideals here – constitutionalism, democracy and liberalism. The literature and the posts move among them too loosely, and I will not deal with the ambiguity, but ignoring the distinctions and the relations among the three contributes a lot to muddying the descriptive and evaluative water here.
 I am less optimistic than Medina who seems to hold the naïve belief that politics is always deliberative, and that good reasons always win ultimately. Moreover, Israeli present-day majorities are not eager to respect constitutional constraints invoked by the opposition and argue – as Porat reminds us –that the ‘old elites’ used all the powers they had to hinder the preferences of the then-opposition. The limited truth of that claim makes the political situation in Israel more tricky and risky. However, there are no signs in Israel of a move to abolish elections, or outlaw serious opposition forces. Moreover, the interests and perspectives of parties are plural and dynamic, and in a way we have a plurality of minorities – so they may check out each other’s most dangerous tendencies, and all of them thus have strong instrumental reasons for maintaining the basic democratic constitutional order.
 For a persuasive analysis of populism as an authentic political movement and the need to use it effectively – from a person concerned with liberal democracy and politically inclined to the left –see Kazin’s book: http://www.cornellpress.cornell.edu/book/?GCOI=80140100525110
 This is especially true if the present interpretation of the constitution is relatively recent, representing a balance of power that exists no longer. Here are two examples. First, some proposals seek to give elected ministers control over the appointment of their legal advisors. At present, the position of a legal advisor is seen as a part of the ‘checking’ power of government in the name of the rule of law. While this element is of course there, a legal advisor is also a civil servant whose function is to help the government in reaching and implementing its (legal) policies. The primacy of the ‘checking’ function is relatively recent and in fact problematic. While we need to maintain an element of ‘checking’ in such positions, it should not be exclusive. Second, the recently appointed and quite controversial minister of cultural affairs is seeking to modify the principle that public subsidies of the Arts is an exclusively ‘professional’ matter than should be de-politicized. She argues for a distinction between freedom of expression which is very broad and the right of government to choose what kinds of artistic expression to support out of tax money. NGOs claim that subsidies themselves are means of censoring. They reject all ‘political’ input in such matters, invoking present day understandings. Again, while elected officials do not have full power over particular decisions on how to subsidize, the argument that they should have no such influence is questionable if not simply wrong. The debate should be conducted and decided on the merits, developed as all regulation does through decisions and challenges etc. An attempt to frame the debate as one for or against free speech or democracy seems counterproductive and wrong.