Supreme Court Chief Justice Ester Hayut fellow justices arrive for a hearing at the Supreme Court in Jerusalem.
Prof. Sam Lehman-Wilzig – The “Frame” as the Picture: Israel’s Judicial Reform
The epithets thrown around during Israel’s ongoing Judicial Reform/Judicial Revolution controversy are coming fast and furious from both sides: Anarchist. Sarvanut. Dictatorship. Such terms are heavy with emotional resonance but serve a “rational” purpose: to confuse the matter and not to enlighten.
We can start with the famous aphorism: “There are three kinds of lies: Lies, Damned Lies, and Statistics” (attributed to Mark Twain who gave credit to Benjamin Disraeli, who probably never said it – a fitting “origin story” to a critique of truth-telling!). Equally appropriate would be a small change: “Lies, damned lies, and framing.” Just as statistics can be used to support one side or the other, that’s even more true regarding the more widespread use of “framing” attempts to fudge the truth with deceiving verbiage.
What precisely is “framing”? It has two meanings in the context of human communication. The narrower definition is to pin guilt on some other party e.g., “the thief framed his neighbor so that the police arrested the latter.” I’ll return to this a bit later.
The broader sense of “framing” is the attempt to describe something (person, event etc.) in a way that is close to how the communicator understands the thing being described – even if (or especially when) it does not gibe with reality. For example, if I showed you a modern painting within an ornate, old-style picture frame, you will probably think that the painting is pre-modern. So let’s see what the frame of the three terms above are trying to get you to “see.”
An “anarchist” is by definition someone who does not believe in government – any form of government. Such a socio-political philosophy stems from Rousseau: humans are supposedly at their moral best when in the “state of nature” before “civilization” ruined them. To call the protesters “anarchists” – even those who block roads and briefly interrupt the social order – is patently absurd. I assume that most of the critics of such protesters understand their misuse of the term, but that’s not the point. Their goal is to paint (“frame”) the opposition in negative terms, hoping that such negativity will stick, even if only obliquely.
“Sarvanut” (in the case before us) is the Hebrew term for a refusal to accept the legal requirement of serving in Israel’s army. Here too, calling the officers “sarvanim” is disingenuous, even malicious. The reason: the hundreds of air force and other services’ officers who declared that they would no longer show up are volunteer reservists under no legal obligation to continue. Indeed, many have already spent decades volunteering close to a month each year! They weren’t under any legal obligation back then, and certainly not today. However, as their completely legal and moral position could not be attacked frontally, the judicial reform proponents can only vilify them indirectly through deceptive framing.
“Dictatorship” is the frame used by the other side – those opposed to the reform policy. Here too the frame is somewhat distant from reality. Removing one relatively narrow tool from the Supreme Court hardly turns Israel’s political structure into a dictatorship. True, the completion of the entire judicial reform package would seriously impact Israel’s democracy – potentially. Indeed, the lack of a written Constitution means that the Supreme Court needs to be the final arbiter of what is acceptable or not, but no one is talking about abolishing the court, and certainly not the election system etc. As a political scientist, I suspect that the use of “dictatorship” and not the real danger of abolishing the court’s “reasonableness power” – political corruption (a different kettle of stinking fish) – is that many Israelis seem to already be inured to governmental corruption (see: Deri, Olmert, Katzav, indicted Netanyahu, etc.), so that a “stronger” frame was necessary.
And now we come to the central frame of this entire sorry period: judicial REFORM or judicial CONSTITUTIONAL REVOLUTION/PUTSCH? Each side frames the process in the eyes of the beholder. If “reform,” well that’s always a good thing; if revolution, well that almost always leads to a very negative outcome. Which side’s overall “framing” is closer to the truth? I would argue: neither. This is not a “putsch” (it is being carried out in traditional legislative fashion, certainly not by the army); it also isn’t a “revolution” (almost all of Israel’s many democratic structures would remain intact). On the other hand, it is far more than “reform,” given that it intends to upend several judicial practices of longstanding tradition within the Israeli system. Indeed, if the Right here truly considers itself “conservative,” then a wholesale change of the relationship between the judicial and legislative branches is diametrically opposed to “conservatism” – especially when all polls show the majority of the country being opposed to the substance and the manner in which such “reform” is being legislated.
With the passage of the first reform (abolishing “unreasonableness” as a judicial tool), the government – beset on all sides by those opposed, including many conservative economists, former legal officials, and even those within the Likud – has moved from “how to describe” the issue to “who’s at fault for the aftershocks.” For instance, a few weeks ago Minister of National Security Itamar Ben-Gvir lambasted the protesters(!) for undermining Israel’s economy. In other words, they are now being “framed” for being the guilty party in any post-reform damage. 2023 is sounding more and more like Orwell’s “1984”….
