The legal crisis in Israel, which peaked on the eve of October 6, 2023, represents not just a domestic debate about governance but also a broader struggle about the essence of democracy. The controversy surrounding judicial reform has revealed a deep divide within Israeli society, with each side interpreting “democracy” in fundamentally different ways. This conflict, while rooted in local circumstances, raises universal questions about the balance between majority rule and the safeguarding of individual rights – issues familiar to anyone with an interest in classical liberalism or libertarian principles.
Israel does not have a formal written constitution. Instead, it operates under a framework of Basic Laws, which function as a kind of evolving constitutional structure. The Israeli Supreme Court, particularly under former Chief Justice Aharon Barak during the 1990s, assumed a powerful role in interpreting these laws. Barak famously championed the idea that “everything is justiciable,” meaning that the Court could review decisions made by the government and legislature on virtually any matter. His philosophy also introduced the concept of the “reasonable person,” a legal standard used to assess whether governmental actions were consistent with democratic principles and individual rights.
For some, the Supreme Court became a guardian of liberal values, protecting minority rights and upholding checks on governmental power. For others, particularly on the political right, the Court appeared to overreach its mandate, acting as an unelected body that imposed progressive values inconsistent with the priorities of Israel’s more conservative and traditional population.
Over the years, various efforts have been made to reform the judiciary, but none gained significant traction until January 2023, when Justice Minister Yariv Levin proposed sweeping changes. His plan included limiting the Supreme Court’s ability to strike down laws, altering the judicial appointment process to give politicians more influence, and allowing a simple majority in the Knesset (Israel’s parliament) to override court decisions.
Levin’s proposal ignited widespread protests, with tens of thousands of Israelis taking to the streets weekly, waving flags and chanting slogans about protecting democracy. Opponents of the reform described it as a “judicial coup” that would erode the separation of powers and threaten the judiciary’s independence. Proponents argued that the reform was necessary to curb judicial overreach and restore the balance of power between the branches of government, similar to models in other democracies.
The debate took a temporary backseat on October 7, 2023, when Israel faced a surprise attack by Hamas from Gaza, leading to war. The national emergency shifted attention from domestic disputes to security concerns. Lately, Levin and Gideon Sa’ar, a former justice minister and the newly appointed foreign minister, collaborated on a scaled-down version of the judicial reform. While the new proposal was less divisive in tone, it did not resolve the underlying tensions about democracy’s definition and implementation.
At the heart of this debate lies a fundamental question: Is democracy a mechanism for implementing majority rule, or is it a value system rooted in protecting individual rights and freedoms? In Israel, this tension is exacerbated by the unique composition of its political and social landscape. Unlike in the U.S., where the separation of church and state is a foundational principle, Israel blends its identity as a Jewish state with its democratic governance. This creates friction between its secular, liberal population – concentrated in urban centers like Tel Aviv – and more religious, conservative communities.
For example, many aspects of public life in Israel, including marriage, divorce, and Sabbath observance, are governed by Jewish religious law. While secular Israelis often see this as a violation of personal freedom, religious Israelis view it as integral to preserving the country’s Jewish character. Judicial reform, therefore, is more than a technical issue; it reflects deeper cultural and ideological divides.
Adding to the complexity, as is often the case with multifaceted legal issues, the more complex the matter, the easier it is to construct narratives that do not align with reality. This phenomenon is clearly visible in the judicial reform debate. Despite the intricate nature of the subject, which requires a basic understanding of legal principles, people across the spectrum – from the highly educated to the least informed – tend to hold fierce opinions on the matter. Many have never read the content of the original reform proposal or the revised version. Yet, their views are unwavering, shaped more by political affiliation or media narratives than by the details of the reform itself.
The Supreme Court has also been criticized for decisions that some argue prioritize elite interests over broader public welfare. For instance, the Court struck down legislation aimed at deregulating financial advisory services, a move proponents believed would benefit small investors. Such rulings have fueled perceptions that the Court serves a liberal, urban elite disconnected from the needs of the broader populace.
Against this backdrop, the reform debate becomes as much about identity as it is about governance. Critics of the reform express unease about empowering a coalition that includes ultra-Orthodox parties, nationalist settler groups, and ardent supporters of Prime Minister Benjamin Netanyahu. There is an implicit belief among reform opponents that this majority – characterized as uneducated, religious, or nationalist – cannot be trusted to make decisions for the collective good. This skepticism raises an uncomfortable question: Should democracy prioritize majority rule, even when the majority holds values that clash with liberal ideals, or should external mechanisms, like an independent judiciary, limit the majority’s power?
While I personally believe Levin’s judicial reform is flawed, it nonetheless reflects the essence of democracy as a mechanism. Democracy means majority rule – no more, no less. It is not inherently a value system; it is a tool. Liberalism, by contrast, is a value system that seeks to safeguard individual freedoms, protect minorities, and promote equality.
Opposition to Levin’s plan, therefore, is not just about preserving checks and balances; it is a rejection of the identity of Israel’s democratic majority. Reform opponents resist ceding power to a coalition they perceive as dominated by ultra-Orthodox, religious-nationalist, and populist figures. Yet this resistance also highlights an elitist perspective: that the “ignorant masses” cannot be trusted with the reins of governance. Whether this perspective is valid or not, the broader question remains: What do we value more – democracy as majority rule, even when it produces undesirable outcomes, or liberalism as a set of guiding principles that might override the will of the majority?
The irony of Israel’s judicial crisis is that both sides claim to defend democracy, yet their definitions of democracy differ profoundly. For reform advocates, democracy means empowering elected officials to enact the will of the people. For reform opponents, democracy means ensuring that liberal values and individual rights are preserved, even if it means limiting the majority’s power.
This debate is not unique to Israel. Democracies worldwide wrestle with similar questions: How much power should the judiciary hold? When does majority rule become tyranny? How can individual rights be protected in systems designed to prioritize collective decision-making? Israel’s legal crisis serves as a microcosm of these broader struggles, challenging all who believe in democracy to reconsider its meaning and its limits. For those committed to classical liberalism and libertarianism, Israel’s experience underscores the delicate balance between liberty, governance, and the mechanisms we use to achieve both.
