Democracy must be upheld through dialogue when it comes to judicial reform - opinion

Plato called it the “paradox of freedom” – too much freedom yields too little. He opposed tyranny and oligarchy – rule by one or a few – because authoritarians will too often act in their own interests and not in the interest of justice. However, he also opposed democracy – rule by many – because the people could always elect a tyrant supported by a band of oligarchs.

Sadly, the reforms aggressively advanced over the past few months by the current ruling coalition in Israel, which seek to grant near-absolute authority to the government by subjugating the judiciary to the legislature, can serve as a paradigm case of this paradox. Rulers elected by a majority seek to advance their own interests at the expense of many others who participated in the electoral process.

Plato’s solution to this difficulty was rule by the best and the brightest – philosophers who were trained to understand the nature of justice, which in his view entails an absolute ideal dedicated to stable relations among social classes. This places power in the hands of ideological elites, such as a council of sages, believed to know how best to govern.

The problem with this solution, argued philosopher Karl Popper, is the assumption that those elites will both understand and implement justice without error. However, even the best and brightest make mistakes. They err not only in how they understand the nature of justice, but very often in their implementation of that understanding as well.

Applying to judicial reforms

Whether or not one agrees with the proposed reforms, the bungled way in which Prime Minister Benjamin Netanyahu and his colleagues have sought their approval is a case in point, assuming, of course, that these officials represent Israel’s best and brightest. Colossal blunders brought hundreds of thousands into the streets, motivated a general strike that nearly shut down the economy, produced serious security risks by sewing division within the ranks of the IDF, and raised harsh criticism among Israel’s friends and foes alike.

Plato began his politics with the question, “Who should rule?” According to Popper, this is the wrong question with which to begin political deliberations. It assumes that power is absolute and that the central problem of political theory is to determine who should have it. Beginning politics with this question leads to a theory of absolute sovereignty over a closed society dedicated to a singular social ideal.

Instead, Popper argued, we should begin political analysis with the question: “How can citizens protect themselves from the mistakes of even the best and brightest rulers?” Beginning with this question leads to a theory of checks and balances in an open society comprised of diverse and often competing social ideals.

Protesters, who have sought to maintain Israel as an open society that protects its citizens from the mistakes of elected leaders, believe that diminishing the power of an independent judiciary to strike down laws that violate basic rights severely weakens these checks and balances in Israel’s system of government.

Isaiah Berlin suggested a different approach to addressing Plato’s paradox. He distinguished between two sorts of intellectual types – foxes who know many things and hedgehogs who know one big thing. Societies conceived by foxes encourage citizens to choose among competing paths to human fulfillment, provided they respect the choices of others, whereas hedgehogs assign privilege to those who follow one particular path.

Foxes often embrace Berlin’s negative concept of freedom – the absence of constraints on, or interference with, a person’s ability to achieve desired ends; hedgehogs tend toward positive liberty, the entitlement or ability of a person or group to achieve those ends. 

For the present purpose, one might understand negative liberty as characteristic of Center-Left liberalism, whereas one could conceive positive freedom as associated with the political or religious Right.

Berlin had deep reservations about positive accounts of liberty untempered by their negative counterparts. Those who advance these untempered approaches often distinguish between a person’s actual self and a “higher” self, of which he or she might not be fully aware. Someone’s empirical self may indeed feel free; however, his or her “true” self may actually be enslaved.

Once one takes this view, one can ignore peoples’ actual wishes, to bully, oppress, or torture them in the name of their “real” selves, in the secure knowledge of the true goal of existence – happiness, duty, wisdom, justice, self-fulfillment or salvation – is identical with the free choice of their “higher,” albeit submerged and inarticulate, selves.

CLEARLY, THE ultra-Orthodox, messianic-Zionist, and extreme nationalist parties so influential in the coalition are ideological hedgehogs, each with its own positive social ideal to which it seeks to subjugate the state. According to these orientations, only those who accept their vision of Israeli society would be entitled to full citizens’ rights.

It may be surprising, however, that Berlin also saw Center-Left liberals as hedgehogs, no less than right-leaning traditionalists, headstrong about the capacity of reason to negotiate competing visions of the good. He recognized that the right to choose a way of life, which is the hallmark of liberal toleration, is also itself the cornerstone of a way of life.

To insist that one must embrace the right to choose a life path based upon one’s own rational autonomy and that judges should be empowered to protect that right, among others, is to exclude from the public square those who believe that their ethics and politics derive from a higher authority.

This may in part explain the anger of Israel’s religious and political Right at what they perceive to be the judicial overreach of the liberal Center-Left, though it can by no means justify the government’s aggressive and irresponsible actions or excuse the ugly racism and xenophobia of its more extreme members. 

Supporters of the reforms often experience their views as excluded from legitimate public discourse, especially in the courts, by those who they see as highly educated, secular, primarily Ashkenazi, Left-leaning elites.

The reason for this deep divide between Left and Right is that there exists no single basis for human values. The human condition is comprised of multiple, often competing and incommensurable, visions of the good life. Berlin called this “value pluralism.” Whether or not one accepts this sort of pluralism as a social ideal, one must acknowledge it as a historical fact.

This is equally true of what it means to be Jewish, or of how we understand the nature of democracy, in a Jewish and democratic state. Citizens of Israel do not agree about how to interpret these ideas.

To live with one another peacefully, given our differences, in Israel or anywhere else, the task of politics cannot be to impose one concept of the good society on everybody, even if it has received the support of a majority in one election or another. 

The task of politics must be instead to find a modus vivendi for living together across our divides. Berlin called this “diversity” liberalism, in contrast to the “universal” or “comprehensive” liberalism often associated with the likes of Popper. 

Addressing Plato’s paradox of freedom, in other words, in Israel and elsewhere, requires dialogue, which can only succeed if participants are willing to live peacefully with others who are different from themselves. President Isaac Herzog is precisely correct about the necessity for negotiation among competing visions of Israel, therefore, including discussions of the nature and extent of checks and balances between Israel’s branches of government.

In this season during which we celebrate the liberation from bondage in Egypt, let us pray that Herzog and the political leaders around the table can find the proper balance between positive and negative liberty so that all citizens of Israel, religious and secular, Right and Left, Jew and Arab, can live together in peaceful coexistence.

The writer is a professor of philosophy of education at the University of Haifa and 2021-2023 Koret visiting professor of Israel Studies at the University of California, Berkeley.