Israel Is Hurtling Toward a New Kind of Illiberal Regime - Israel News - Haaretz.com
“Dictatorship, “fascism,” “tyranny of the majority” – these and other epithets are being heard from one side, while “reform,” “restoration of balance,” “a necessary correction” are coming from the other. Supporters of Israel’s judicial revolution present it as bolstering democracy and as the return of sovereignty to those elected by the people, whereas its opponents see it as a harbinger of dictatorship. One group considers the government’s proposals to be a means to restore the violated balance between the branches of government; the other speaks in terms of a political coup. Both sides say they are speaking in the name of democracy.
One challenge in understanding the current political predicament in Israel, as in other countries, is the fact that we are being confronted with a new political phenomenon. Not really democracy, but also not exactly dictatorship. To grasp its essence, it is vital to analyze the political and ideological background, not only the legal machinery involved in the so-called reform.
Force and freedom
The apparatus of the state is essential to enable complex modes of social cooperation, above all the ability to defend ourselves against external and domestic threats. As such, the state must possess greater power than the other entities that are subordinate to it, or as sociologist Max Weber put it, a “monopoly on the legitimate use of violence.” However, this monopoly may cause more harm than good if the state itself becomes a threat to those it is supposed to serve.
That is the question that John Locke, one of the fathers of modern liberalism, threw at philosopher Thomas Hobbes: What is the logic of creating a powerful entity that is supposed to protect us, if it is liable to become a danger itself? “As if when men quitting the state of nature entered into society, they agreed that all of them but one should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity,” Locke wrote in the 17th century, adding, “This is to think that men are so foolish that they take care to avoid what mischiefs can be done them by polecats and foxes, but are content, nay, think it safety, to be devoured by lions.”
The 20th-century philosopher Judith Shklar supplied a more detailed explanation. As distinct from the utopian aspirations of philosophers such as Immanuel Kant, John Stuart Mill or John Rawls, Shklar argued that the core of liberalism is the fear of excessive power, and especially the state’s excess power. She termed this “the liberalism of fear.”
“Given the inevitability of that inequality of military, police, and persuasive power which is called government, there is evidently always much to be afraid of,” she wrote. Unfettered and unlimited, excess power will ultimately manifest as brutality. “Some agents of government will behave lawlessly and brutally in small or big ways most of the time unless they are prevented from doing so.” Accordingly, the freedom that liberalism of fear wishes to secure is “freedom from the abuse of power and intimidation of the defenseless that this [inequality] invites.”
The liberal response to power being concentrated in the state is to create mechanisms that aim to limit, decentralize and check governmental power – especially executive power, which controls both the public sword and purse. If democracy is rule of the people, liberal democracy is based on the concept that the people can rule only when governmental power is limited, decentralized and subject to review. Liberal institutions – a constitution and bill of rights, due process, independent and binding legal advice, an independent media and an active civil society – all of these are intended to ensure that governmental power will not become excessive and that it will serve the general public, not an arbitrary electoral majority.
The fall of the Soviet Union prompted much talk about the “end of history” and the irreversible triumph of liberal democracy. The prevailing view among many scholars was that once a state embarks on the path to democracy, it will not regress, even if its progress is slow and gradual. Yet in recent years, various theories have been devised to explain why states that have crossed the democratic Rubicon, especially after the fall of the Soviet Union, are now backsliding. Apparently, the forces and fears that drove antidemocratic tendencies in the past have not disappeared. As Freud said of something that’s been repressed, it always returns, even if in a different form.
Devoid of content
A new type of regime structure is emerging around the world. It resembles dictatorial and authoritarian regimes that we know from the past, but is not identical to them. The regimes in Poland, Hungary and Turkey do not resemble the dictatorships in China or North Korea. Putin’s Russia is not Stalin’s Soviet Union. The new authoritarians don’t rely on displays of naked violence, dissidents are not sent to a gulag, the opposition is not outlawed, there are no state-managed show trials, elections are not canceled and the media doesn’t necessarily belong to the state. Freedom of _expression_ and the freedom to demonstrate are not banned, either, even if they are reduced.
Instead of resorting to displays of naked force, the new authoritarians entrench their power by weakening the mechanisms of control and restraint, and by wresting control over public opinion. And all in the name of democracy and the rule of the people.
The figure most identified with this form of regime, Hungarian Prime Minister Viktor Orban, calls it “illiberal democracy.” In one sense, this is an appropriate term, as the essence of the system is the weakening of the liberal mechanisms of limitation, control and decentralization of power. After being elected in 2010, Orban revised the constitution, the composition of parliament and the electoral system in ways that would ensure his prospects of obtaining the backing of a more or less permanent majority. He then went on to replace the judges, seized control of the media (through economic and political pressure, and the purchase of media outlets by cronies), persecuted liberal civil-society organizations and tightened government control over the universities.
In short, Orban systematically dismantled all the political and civil institutions whose role is to limit, decentralize and check political power. In a 2014 speech, he said, “We have abandoned liberal methods and principles of organizing society, as well as the liberal way to look at the world.” The premier made no secret of his intention to shape a “new society,” to effect a fundamental transformation in the political character of liberal-democratic Hungary that would result in a democracy that was not liberal.
Nevertheless, the term “illiberal democracy” suggests that we are talking about a slightly different shade of democracy, not about voiding it of all substance. As if there are two types of democracy: liberal democracy, which protects minorities, and illiberal democracy, which grants more power to the majority. But the problem with the Orban regime, or with its Polish twin, is not only the tyranny of the majority vis-à-vis the minority, but the fact that it is no longer a free society. The Polish or Hungarian majority, too, even those who voted for the ruling party, do not live in a free society.
In a free society a distinction is made between governance and sovereignty. Sovereignty accrues to all citizens, whereas governance is a power that is granted to some of them conditionally and in a limited fashion. A free society can make certain decisions based on majority votes but realizes that there is no such thing as “majority rule.” A majority decision is a decision-making mechanism used in situations of disagreement. It can be considered the realization of the sovereignty of all only if it is subject to the constraints and restrictions that underlie political association – above all, protection of liberty and preservation of equality. The formal apparatuses of control, especially the rule of law and the separation of powers, along with informal ones such as an independent media and a free civil society, are the institutional embodiment of these constraints.
Instead of resorting to displays of naked force, the new authoritarians entrench their power by weakening the mechanisms of control and restraint, and by wresting control over public opinion. And all in the name of democracy and the rule of the people.
In other words, if democracy is a form of government compatible with a free society – one in which the entire citizenry enjoys protection of its liberty, rights and equal status – illiberal democracy may preserve the form of a democracy, but it lacks the content. It is a hollow democracy.
Unlike in totalitarian regimes, in a hollow democracy the democratic institutions – elections, the court system, political parties, the free media and so forth – continue to exist but are neutralized by various means. The judiciary is not officially controlled by the government per se, but is subject to emasculating constitutional arrangements and political control over the appointment and promotion of judges. The opposition is not banned, but has been neutered by means of delegitimization, with no real possibility of competing for power.
The media remains nominally free, but is castrated by the insertion of propagandists in key positions and by cronies forming or acquiring media outlets (and then receiving regulatory and financial benefits in return). Tinkering with election laws and gerrymandering leave elections formally free, but undermine genuine competition. Civil society can organize, but organizations unfriendly to the regime are marked as foreign agents, making them pariahs. Legal restrictions on their financing operations rob them of the ability to wield real influence. What remains is only a skeleton of democracy – bare bones with no flesh and blood.
Just as democracy itself assumes a different form in every country, so too hollow democracy assumes various shapes. Still, some typical features can be discerned: a weak legislature; an opposition that has undergone delegitimization and dehumanization, with no effective path to power; an enfeebled judiciary that is no longer able to restrain the government; a politicized civil service; no constitutional restraints on legislation; media outlets that are cowed or effectively controlled by political decision makers; and civil society organizations denounced as foreign agents, whose operations and fundraising are circumscribed.
All of this converges into one element, which can be called “executivism” – namely, a governmental model in which the executive branch enjoys almost unlimited power. The other branches and all mechanisms of restraint are controlled by the executive, or are neutered. Its proponents employ populist rhetoric, but its essence is not populism, but anti-liberalism – a principled hostility to limited government.
A hollow democracy is not created by a military coup or a civil revolt; it is forged by constitutional and structural changes that are effected in keeping with the law and proper procedures. Rule in a hollow democracy is based not on terror and secret police, but on controlling public opinion and the effective operation of the ruling administration. Power is wielded not by arbitrary edicts but through law – but the law itself is dominated by those in power. As MK Simcha Rothman, chairman of the Knesset’s Constitution Committee, said recently, “The Knesset deserves a status in which it can legislate what it wishes.” Not everything is justiciable, but everything can be legislated.
Hollow democracy does not speak in the name of totalitarian ideology. Its architects do not swear in the name of an omnipotent leader, along the lines of the “Sun of the Peoples,” the Ayatollah or the Supreme Leader. It acts in the name of the sovereignty of the people and rests on the argument that a genuine democracy is not compatible with liberal limitations on government. The people rule when the elected coalition majority rules, and it must rule in an unconstrained manner in order to realize its sovereignty.
This is of course a distorted version of the democratic ideal, one which voids it of its substantive content as a form of regime that protects a truly free society. Not only does it subject the minority to the majority – it subjects society to unrestrained executive power.
Of party and state
The result of a hollow democracy is the emergence of a party state – one in which government and party coincide. This congruity has two aspects. One is the overlap between party and government. In a party state, only one political element – party, coalition or “front” formed by different parties – can form the government. The second aspect is the domination of the state by the party. In a party state, the state itself – its institutions, resources and apparatuses – becomes an arm of the party, promoting its ideology and serving its interests.
The Chinese People’s Liberation Army is the armed branch of the Communist Party, similar to what the Red Army was in Soviet Russia. Just as the army is the regime’s militia, the bureaucracy is its operational arm and the courts are its mechanism of enforcement. In a country like that, government power is unlimited: All the branches of the state, including the judiciary, are mobilized in its service.
In the past, the term “party state” was associated with totalitarian regimes in which a formal identity exists between the state and the party – as in Soviet Russia or today’s China. The innovation of the past generation in countries like Hungary, Poland, Russia and Turkey is the institution of a de facto party state under the guise of de jure democracy. If the party, or the coalition, controls the legislative process, the courts and the regulators (particularly those in charge of elections) – it’s possible to continue to conduct votes in parliament and hold periodic elections without threatening the ruling party. There is no need to outlaw competing parties, cancel elections, dissolve the courts or exile opposition leaders. By controlling public opinion and eliminating the mechanisms of restraint and control, the organs of the state can be made into tools of the party and ensure that it retains power. Democratic institutions can be preserved and simultaneously neutralized.
Once liberal constraints are removed, the road is paved to a party state. Having consolidated its power by democratic means, the government of a hollow democracy uses that power in two ways. First, it imposes its worldview on the whole society by means of the political system. Often this is a nationalist and traditionalist worldview, endorsed by only part of the public, but which now becomes the dominant ethos. In Hungary, for example, it is a cocktail of nationalism (“Hungary for the Hungarians” – characterized by xenophobia, racism and antisemitism) and Catholic values (especially sexual morality and “family values”). Orban terms this phenomenon “Catholic democracy.” This is but one dimension of the party state – the state in the service of the party – in this context, in the service of its social and moral ideology.
The second thing a party state does is eliminate political competition. During his period in the opposition, Orban said, “We need to win only once, but to win big.” After being elected, he stressed on many occasions, in words and deeds, that he had no intention of allowing a change of government. Last year, when the polls indicated that the opposition, which for the first time had succeeded in uniting against him, stood a real chance – Orban amended the election law and ensured his victory. As his biographer wrote, “There is scarcely a country in Europe where the head of government is able to display so blithely and confidently his projections for staying in power behind a democratic smokescreen.”
In a hollow democracy, elections are not a mechanism for the transfer of power, but for legitimizing the government.
If the government can do whatever it wishes, the losers have a strong incentive not to play by the rules, while the victors must cling to power by any means possible.
There is nothing arbitrary about any of this. Dismantling the restraints of liberalism and eliminating political competition are closely intertwined. Setting aside such lofty ideals as self-rule and popular sovereignty, democracy is first of all a nonviolent mechanism for resolution of disagreements and transferral of power. The victors receive limited power for a limited time, and the losers accept the results and prepare for the next round. Because equality, rights and democratic principles are protected, the stakes are sufficiently low, so it pays for everyone to play by the rules.
Once liberalism’s restraints on power are removed, though, the risks multiply exponentially. If the government can do whatever it wishes, the losers have a strong incentive not to play by the rules, while the victors must cling to power by any means possible. Thus, in a hollow democracy, the government does all it can (and it can do plenty) to ensure that power will not shift. In other words, no one renders democracy hollow if they think there is a real chance they will lose power soon, that the power concentrated in their hands will end up on the other side in short order.
In a hollow democracy the victors can resort to an array of measures to entrench their power: by disqualifying parties, changing the election format, politicizing the elections committee. Once there are no courts or regulators to intervene, all such measures are available to the ruling authorities, along with the capacity to dominate public opinion by the means of propaganda under their control. This is a second dimension of a party state: Only one side has an effective path to power. Political competition is virtually annulled.
Generally, a third element also surfaces: corruption. In the absence of limitations and institutions of control, nothing stands in the way of the temptation to plunder the public coffers.
The motivation for hollow democracy and a party state typically derives from a convergence of interests of three groups: the pursuers of power, who want to hold the reins of state; the pursuers of wealth, who want to enjoy the public’s funds – usually people in the leader’s close circle or in the ruling party, who provide him with support and in return enjoy abundant funding, tailor-made public tenders and appointments to public positions (many of Orban’s friends and relatives have become rich by dint of government contracts); and the ideologues – those who wish to impose their worldview on the entire state (in the case of Hungary, the nationalist right and the Church).
A protester carrying a sign reading “Leftist traitors.” The so-called reform is part of a political process that began long before the emergence of the current coalition.Credit: Moti Milrod
Time to resist
This is the background against which we must see the judicial reform Israel’s ruling coalition is advancing. Essentially, it has three parts: annulling the authority of the High Court of Justice to review legislation; granting the coalition control of the Judicial Appointments Committee; and eliminating the independent authority of legal advisers in the government ministries. The declared goal is to weaken the judicial branch’s oversight vis-a-vis the government and to curb its actions.
In practice, Israel’s Supreme Court rarely intervenes in decisions of the government. Even supporters of the so-called reform find it difficult to provide examples of cases in which the bench prevented the coalition from implementing its policy. One important claim being made by such supporters is that the top court intervenes specifically in matters of public and political controversy on the basis of vague value judgments. An appropriate response to this is to provide a clear definition of the constitutional considerations in light of which the court should examine legislation and administrative decisions – for example, by means of a bill of rights or a constitutional definition of the authority to exercise judicial review. Instead, the “reform” would completely eliminate judicial review in practice and would subordinate the court and ministerial legal advisers to the whims of the governing coalition.
The broader political context sketched above makes it evident that the current judicial “reform” is part of a political process that began long before the emergence of the current coalition, and whose scope is far broader than the legislative initiatives of Justice Minister Yariv Levin and MK Rothman. It is a process that aims to transform Israel into a hollow democracy.
For many years an effort has been made to reduce the independence of both public and civil institutions whose role is to limit and review the workings of the government. Under the ambiguous term “governability,” political players have been subordinating public bodies (such as the Council for Higher Education), intervening in decisions of independent public servants and experts (primarily in education and culture), and are assuming powers that are supposed to be in the hands of neutral civil servants. Official oversight bodies, such as the state comptroller and the Justice Ministry unit that investigates police conduct, have long since been weakened or are candidates for emasculation. Even purely professional institutions, such as the office of the chief statistician and the National Library, have not been spared.
These developments are part of a persistent effort to seize control of the media, delegitimize the opposition and undercut the public status of “problematic” civil society. The nation-state law, the nonprofits law and the boycott law are all part of the same trend: neutralization of the entities whose role is to limit, review and decentralize the executive power. Though central, the enfeeblement of the court system is not an isolated campaign. It is part and parcel of the assault being waged against the free society in Israel.
We thus arrive at the objective of the right wing’s regime revolution: not the correction of a judicial system that has lost its balance, but Israel’s transformation into a hollow democracy. Into a de facto party state. A state whose public institutions apparatuses serve the interests of the governing coalition and promote the worldview of the religious right, whose continuing stranglehold on power will be ensured for years.
The threat is not just tyranny of the majority, as many are saying, and its victims will not be only minorities. The danger that looms over Israeli society now is the tyranny of unlimited government – a regime in which the executive possesses unlimited power, where the law, the courts and virtually all other public institutions are mere pawns in the hands of the powers-that-be. This move is not confined to the effort to effect a judicial overhaul and will not stop even if it is softened or postponed. It is integral to the existence of the right-wing, antiliberal coalition. And it is a duty to resist this attempt, not only to protest it.
Free Israel has become accustomed over many years to expressive politics, a politics of speech and protest. Now it must move to effective politics – a politics of power. Resistance means exacting a price and a willingness to pay that price. Its goal is not to persuade or to cajole, but to sabotage the actions of the regime and ultimately replace it. In this struggle there is no room for compromise. The main issue is not one of polarization or the “rift in the nation,” but whether Israel will be a free society.
In contrast to President Isaac Herzog’s conciliatory remarks, history shows that in the struggle for a free society only one side can be victorious. If it turns out to be the government, it will be very difficult to restore the status quo ante. From the moment it takes root, democracy may be hollow but it is deeply entrenched. Therefore, the time to resist is now, before the process is completed.
Yet, resistance is not enough. The liberal camp must aspire to more than the unsatisfactory status quo that prevailed before the attempted judicial overhaul and created the conditions that made it possible in the first place. The constitutional foundations in Israel – which until now rested largely on norms, traditions and informal agreements – must not be abandoned to a political system significant parts of which are hostile to the idea of a free society.
Assaf Sharon is a professor of philosophy and the head of the Philosophy, Economics, Political Science Program at Tel Aviv University, as well as a co-founder and senior fellow at Molad, the Center for the Renewal of Israeli Democracy.