Israel's Flawed Foundation

In recent months, public discourse in Israel has returned to focus on internal issues within Israeli society. Contrary to many expectations that the war would reunite the people, the results have proven otherwise. The heroism of our soldiers on the battlefield, as well as the supreme determination of their families, the protesters for the hostages, and the many volunteers in Israeli society, have demonstrated that we can unite and face together the numerous challenges before us. Yet despite this, the many internal disputes continue to tear us apart from within and threaten our existence.

Therefore, in the past two months, differences in approaches have reemerged among Supreme Court justices regarding the current government. The acting Supreme Court President Yitzhak Amit, Justice Uzi Fogelman who served as acting Supreme Court President, and former Supreme Court Presidents Esther Hayut and Aharon Barak chose to present a hard line warning against the government's attempts to weaken the judiciary [1]. Aharon Barak even clarified that "essential aspects of Israeli democracy are under severe attack".

In contrast, Justice Noam Solberg, who serves as Deputy President of the Supreme Court, proposed a different approach based on decentralization and restraint [2]. According to his view, the ideological struggle between the judiciary and the government can only have severe consequences.

Solberg's Call for Decentralization and Restraint

According to Justice Solberg's conception, instead of intensifying the destructive struggle between different governmental authorities, all sides bear the responsibility to avoid mutual harm. As he said: "Voluntary relinquishment of power is dramatically, qualitatively different from an action seeking to change the balance of power by coercion. While coercion deepens hostility and feeds the flames of dispute, relinquishment - liberates and heals".

Justice Solberg's willingness to relinquish governmental power and decentralize governance in order to extinguish the fire of dispute is worthy of praise and appreciation. The hard-line approach presented by Amit, Fogelman, Hayut, and Barak lacks this willingness. However, despite Solberg's good intentions, two fundamental flaws accompanying his approach cannot be ignored:

The first problem is that trust between different parts of Israeli society has been lost. When different groups threaten one another, it's hard to imagine they would agree to reconcile of their own good will. Therefore, the liberal left tends to strengthen the Supreme Court while the right prefers to strengthen the Government. If we compare this to a chess game, it's like trying to limit the power of pieces on the board so they "won't compete".

The second problem is deeper: you cannot repair a flawed foundation. Israeli society has built-in discrimination mechanisms, equal rights are not guaranteed, and the Knesset is a weak and transparent authority. Under these conditions, the decentralization of powers that Solberg proposes is not expected to be horizontal but only to weaken the Supreme Court alone. Thus, strong groups will continue to strengthen at the expense of weakened groups.

The worthy aspiration to reunite Israeli society and extinguish the fire of dispute requires a new path.

 High Court of Justice hearing, August 21, 2024. Photo: Shai Kandler

Israel Was Founded as a Flawed Democracy

Our central problem is that we lack constitutional institutions that make us all equal before the law. With Israel's establishment, the state's founders felt that given the many value contradictions existing in Israeli society, it would be impossible to reach foundational agreements. Therefore, they chose to establish Israel as a centralized democracy based on the political system rather than constitutional authority. In this way, they achieved many accomplishments, for which we all owe them gratitude, but alongside this, they also created a deep and fundamental political crisis.

Instead of establishing a constitution, judicial review, and explicit legal recognition of the value of equality, they created a centralized governmental system based on the connection between the secular Mapai party and the religious National Religious Party (Mafdal). The result was the creation of many legal "tricks" for distinguishing between population groups according to political interest. For illustration - only religious-nationalists have full state educational autonomy, only Jews have the Jewish National Fund (KKL) as their legal representative in the Israel Land Authority, the kibbutzim received lands and many resources that were denied to others, and only the Orthodox Jewish stream has a recognized Chief Rabbinate. Equal rights in Israel exist only at the individual personal level, not at the group level.

This is the flawed foundation we all stand on.

The Constitutional Revolution of the 1990s: Only Partial Success

In 1992, the Knesset attempted to correct these flaws through the legislation of Basic Law: Human Dignity and Liberty. The judiciary interpreted the law as permission to exercise broad constitutional review, and in 1994 the Knesset retroactively approved this interpretation [3].

This was a brave and worthy move that reduced the flawed political elements of the state and advanced Israeli democracy. But the Knesset imposed an impossible task on the Supreme Court: to conduct constitutional review without having an agreed-upon constitutional framework of values.

Under these conditions, most Supreme Court justices aspired as much as possible to avoid political biases. As evidence, over the years the court has also ruled against positions of the secular-liberal public and in favor of the Haredi public. Among other things, in 2002 the High Court canceled an arrangement that allowed kibbutzim and moshavim to receive financial compensation when changing the designation of agricultural land for construction, and in 2022 the High Court extended subsidies for daycare centers for children of yeshiva students against Finance Minister Lieberman's decision to cancel them.

But as long as we don't have equal rules of the game - it's impossible to avoid biases. For illustration, the Supreme Court chose not to invalidate Basic Law: The Nation-State (2021), but invalidated the cancellation of the reasonableness standard (2024). These were two petitions dealing with Israel's basic laws for which the rulings were given in close temporal proximity. The provision in the Nation-State Law allowing the state to establish villages for Jews only is more discriminatory and severe than canceling the reasonableness standard, yet despite this, the High Court took a more lenient approach regarding the Nation-State Law. In light of this, one must ask whether the rights of Arab society are worth less in the eyes of the Supreme Court?

Another example - in the ruling that canceled the private prison (2009), High Court justices determined that the harm to prisoners' rights justifies canceling the law. In contrast, four years earlier in the High Court decision that approved the disengagement plan from the Gaza Strip (2005), the justices ignored the fact that the state was not prepared to rehabilitate the Israeli population evacuated from Gaza and were satisfied with improving the evacuation mechanism alone. Here too, one must ask whether prisoners' rights are more important than the rights of Gush Katif settlers?

As long as Israeli democracy is based on vague, contradictory, and flawed basic laws, religion and politics are intertwined with each other, and we have no recognized international borders - High Court justices operate under impossible conditions. Despite the good intentions of most of these justices, it's impossible to fix a fundamentally flawed foundation.

 Protest against the judicial overhaul on February 20, 2023. Photo: Hani

The Legal Revolution of 2023: Return to the Worst Situation

In 2023, the government exploited these justified criticisms to launch a regime revolution that was not intended to fix Israel - but to take us backward and deteriorate Israeli democracy. The judicial reform being promoted by the government deepens politicization and returns Israel to the days of the past, in many ways even beyond what Israel knew in the early years of statehood.

The results were quick to arrive: among other things, the government is promoting an initiative designed to make it easier for its members to appoint directors to government companies while reducing threshold conditions, the "Rabbis Law" allowing the Minister of Religious Affairs to fund additional positions with tens of millions of shekels was approved, and the government approved many billions for coalition funds - far beyond previous governments. Additionally, the government seeks to appoint a political commission of inquiry into the October 7th events instead of an independent state commission, to legislate a non-equal draft law, and to redefine the media market.

Therefore, we must firmly reject these reforms and not negotiate about them. Our hope for recovery and unity depends on a new social contract.

The New Social Contract We Need

As long as the Israeli state model is riddled with ambiguities and contradictions, it will be impossible to avoid biases in High Court rulings, the Knesset will remain weak, and polarization will continue to deepen. Instead of continuing the purposeless struggle between tribes in Israeli society, and instead of continuing to say to each other "remove the plank from your own eye", we must formulate our new partnership according to an agreed future vision. Only when each group recognizes its part and responsibility for the crisis that has developed among us, will it be possible to move from a disintegrating tribal democracy to a new Israeli partnership based on constitutional equal rights and a decentralized and flexible governmental structure. This is the only path that can reunite the many groups in the Jewish people and Israeli society.

All Israeli citizens who agree to take responsibility for past wrongs and move to truly statewide thinking can be part of this corrective process. The time has come for Israel to be a true and full democracy. For all citizens, as individuals and groups, to be equal and entitled to the same rights. For Israel to have a constitution and a governmental system in which we have a real Knesset that can supervise and review the government, and where it is explicitly written that the values of freedom and equality are the foundation of the law. Thus we will define a statewide and equal budgeting mechanism for all groups in society, and we will also define explicit authority for the Supreme Court to conduct efficient and balanced judicial review of the executive and legislative branches.

It's reasonable that not all Israelis will support this. It can be assumed that most of the Israeli center-right, most of the left, and most of Arab society will support this - and the rest will oppose it. But there is no other way to unite Israeli society. "Unity" cannot continue to be an empty slogan based on good will alone. We must reestablish the coalition that founded the State of Israel on the basis of new ideas.

Donated to us

[1] Their remarks were made at a conference of the Association for Public Law in early December. Click here.

[2] Justice Solberg's remarks were made at a conference on Judiciary and Academia at the University of Haifa at the end of October and were subsequently published in the journal "HaShiloach". Click here.

[3] This Knesset decision was made against the backdrop of a High Court ruling that allowed the import of non-kosher meat to the country and the coalition's desire to appease the haredi Shas party. To this end, the coalition led by late Prime Minister Yitzhak Rabin passed legislation that allowed circumventing the High Court decision as an amendment to Basic Law: Freedom of Occupation.

Within this framework, Section 8 of Basic Law: Human Dignity and Liberty was also amended: "The rights under this Basic Law shall not be violated except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law".