Towards a Constitutional Counter‐Revolution in Israel?

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In 2007–2008 then Minister of Justice, Daniel Friedman (Kadima), waged a campaign to curb the power gained by Israel’s Supreme Court (SC) since the 1980s. On the first of April 2009, Friedman congratulated his successor, Yaakov Ne’eman, one of Israel’s leading private lawyers, on his appointment, saying he was sure that Ne’eman “will work to advance matters of judicial importance.”1 Friedman was not joking: he knew very well that Ne’eman, like him, wished to carry out reforms in the judicial system in order to diminish its power. Ne’eman – who has no official affiliation with any political party but was appointed on the quota of Yisrael Beitenu, Yvette Lieberman’s extreme right-wing party – may turn out to be a greater reformer than Friedman. His appointment signaled that Friedman’s campaign had not been the whim of one person, but rather the beginning of a new era in the relationships between the executive and judicial branches. In this essay, we analyze the social-historical context of this offensive against the judiciary, which enjoys the support of a significant cross-section of Israeli society and its political class. We argue that while this campaign constitutes a reaction against the “rights revolution” and the “constitutional revolution” that had taken place in the 1980s and 90s, it does not mark a revolutionary change in the relations between the political and economic elites, on one side, and the SC on the other. These relations had been showing signs of tension already since the outbreak of the first Intifada in 1988, but have deteriorated significantly since 2000 due to changes in both the security sphere – the outbreak of the second Intifada and 9/11 – and in the political economy of Israeli society – the progression of privatization, and of neo-liberal economic policy in general, that has resulted in much greater concentration of wealth and enhanced the symbiotic relations between government and big capital. On the most general level, the conflict can be conceptualized as one between two strands of liberalism: a J.S. Mill-inspired strand, espoused by the SC, whose utilitarianism is tempered by universal values and concern for minority rights, and a strict utilitarian strand, represented by Friedman, that believes in majority rule as the best and only way of discovering the greatest good for the greatest number. Similar conflicts exist in the political and legal cultures of other capitalist societies as well, but the Israeli case is particularly poignant due to the country’s peculiar situation as a deeply-divided, highly developed capitalist society, engaged in a protracted frontier-type struggle with the Palestinians. At issue in the current phase of the conflict is a clash between the value-activism of the SC, a legacy of former Chief Justice (CJ) Aharon Barak, manifested, inter alia, in concern for the rights of the Palestinians, both citizens and non-citizens, and in a firm stand against political corruption, on one side, and Friedman’s and Ne’eman’s legal positivism, the executive’s neo-conservative policy towards the Palestinians, and the business-government symbiosis, on the other. The conflict can also be conceptualized in terms of the famed dispute between Lon L. Fuller and H.L.A. Hart on the nature of law.2 On one side stands Barak who believes, with Fuller, that law and morality cannot and should not be separated. On the other stand Friedman and Ne’eman who, like Bentham and Austin, distinguish law as it is from law as it ought to be. It is still too early to predict how the conflict will be resolved, but we