In the Israeli Battle Over Judicial Review, Democracy Is the Problem, Not the Solution

Critics of the Israeli government’s controversial plan to limit judicial power, which has provoked bitter divisions, mass demonstrations, and warnings that the country may be on the brink of “a genuine civil war,” often portray the proposed reforms as a threat to “democracy.” The truth is almost exactly the opposite.

Prime Minister Benjamin Netanyahu and his allies argue that an independent judiciary with the power to override legislation constrains democracy by frustrating the will of the majority. They are right about that. But their opponents are right that unconstrained majority rule is a recipe for tyranny. In this context, democracy is the problem, not the solution.

As a parliamentary democracy without a formal constitution, autonomous lower levels of government, or a clear division between executive and legislative powers, Israel relies heavily on judges to protect individual rights. But those judges have only as much authority as the Knesset, Israel’s parliament, is willing to give them. Israel’s “basic laws,” the main foundation of judicial review, were enacted by the Knesset, which can change them at will.

The Knesset enacted the basic law dealing with “human dignity and liberty” in 1992 under the government of Prime Minister Yitzhak Shamir—like Netanyahu, a member of the right-wing Likud bloc. That was followed by a basic law dealing with “freedom of occupation,” which the Knesset enacted in 1994 under Labor Party Prime Minister Yitzhak Rabin.

According to the 1992 basic law, “every human being is entitled to protection of his life, body and dignity,” “the property of a human being shall not be violated,” and “the liberty of a human being shall not be taken or restricted, by means of imprisonment, detention, extradition, or in any other manner.” The law also says “every person is free to exit Israel,” “every Israeli citizen who is abroad is entitled to enter Israel,” and “every person has a right to privacy and to intimacy.” That last right includes restrictions on searches of “private premises” and protection for “the confidentiality of conversation” and of “writings or records.”

The 1992 basic law, which passed by a vote of 32 to 21, did not “affect the validity” of any preexisting law. But going forward, it says, “each and every government authority is obliged to respect the rights” protected by the basic law, which may not be violated except “by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required.” The latter provision was later amended to include any regulation expressly authorized by such a law.

The 1994 basic law, which was approved unanimously, added that “every citizen or inhabitant of the State is entitled to engage in any occupation, profession or trade.” It likewise requires “all government authorities” to respect that right and declares that “there shall be no violation of freedom of occupation 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.” A subsequent amendment added that the Knesset nevertheless can restrict that freedom if it “explicitly states” that the regulation “is valid despite what is stated in this Basic Law.”

The exceptions to these protections left much room for discretion and interpretation. In that respect, they resemble the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms, which says “Parliament or the legislat