Israel's precarious democracy, 2: institutional factors

In part 1, we covered the historical and demographic elements forming the unique context of Israel's politics. Here I want to discuss some of the institutional factors that play a role in Israel today.

First, Israel has no constitution. Well, not exactly. Like every country, Israel has a constitution in the sense of an empirical arrangement of political institutions relating to each other in customary and predictable ways. In this respect its constitution is similar to those of the United Kingdom, New Zealand, and nine of Canada's provinces. But Israel has no written constitution, that is, a document that establishes in normative fashion the institutions and offices that govern Israel. There is no equivalent to the Constitution of the United States, which describes itself as "the supreme law of the land," taking priority over ordinary statutory laws. This has complicated Israel's domestic politics, including Prime Minister Netanyahu's recent efforts to rein in what he sees as an overreaching judiciary.

In the United States, opponents of judicial activism can call for strict adherence to the text of the Constitution. In Israel, where the judiciary has taken on the role of referee in the political system despite the lack of a written text, this is impossible. Are Netanyahu's proposed judicial reforms a needed counterbalance to an overreaching judiciary? Or do they constitute an effort to end judicial independence, a sine qua non of constitutional democracy? The recent popular protests against these reforms are obviously motivated by those who accept the latter interpretation. Israel obviously needs a written constitution. But a constitution represents a consensus on the basics of political governance, and with the current divisions in Israeli society, it is not clear that such a consensus is forthcoming or even possible.

Second, Israel's electoral system has complicated its domestic politics and obstructed efforts to achieve peace with its neighbours. Israeli elections have been governed according to a list system of proportional representation. Unlike most English-speaking democracies, which see voters electing a single member of the legislature from a territorial constituency, Israel itself is a single multi-member legislative district in which votes are cast for a political party rather than for a single candidate. According to the description in the Israeli government's website,

Israel has an electoral system based on nation-wide proportional representation. In other words, the number of seats that each list receives in the Knesset - the House of Representatives - is proportional to the number of votes it received.

Unlike most of the Western parliamentary democracies, the system in Israel is followed in an extreme [sic!] manner, and the only limitation placed on a list which participated in the elections that can keep it from being elected is that it must pass the qualifying threshold, which is currently 2%. Until the elections to the 13th Knesset [in 1992] the qualifying threshold was only 1%. It was then raised to 1.5%, and during the 16th Knesset [in 2021], it was raised to 2%.

This threshold, also known as an exclusion clause, means that the popular vote for a party must be greater than the percentage of votes specified by law; otherwise it will receive no seats in the Knesset, the single-chamber Israeli parliament. Thresholds set at 1-2 percent are quite low. By contrast, the Federal Republic of Germany, which uses a mixed-member-proportional (MMP) system, sets the threshold at 5 percent. Why? In the wake of the nazi debacle and the Second World War, the architects of the new German political system thought it best to place a premium on a minimal level of co-operation and to erect a hurdle to keep future extremist parties out of the parliament. The pure form of proportional representation (PR) used during the difficult years of the Weimar Republic enabled Hitler's National Socialist German Workers Party to obtain seats and then proceed to claw its way to power. After the war, German leaders, with the occupying Allied forces watching warily from the wings, thought it best not to risk a repeat.

Israel is a severely divided society. The two salient divisions mentioned in part 1, namely, between Jews and Arabs, and between European and Middle Eastern Jews, are further complicated by a religious division amongst Jews themselves. According to a 2016 Pew Research Center report, Israel's minority groups are generally more religiously observant than Jews. Only 30 percent of Israeli Jews say that religion is important to them, with 26 percent indicating it is somewhat important, and 44 percent saying it's not at all important. According to Jewish Virtual Library, "In the 2021-2022 Jewish calendar year, 45% of Jews self-identify as secular, 19% as traditional, 14% as traditional-religious, 11% as religious, and 11% as ultra-Orthodox." By some accounts, Israel is one of the most secular and least religiously observant countries in the world.

However, in 2020 The Times of Israel cited a study by the Israel Democracy Institute indicating that the Haredi, or Ultra-Orthodox, population is growing at twice the rate of the overall Israeli population, and is projected to double in 16 years. This means that Pew's pie chart shown here may look quite different by mid century.

These divisions within Israeli society are reflected in the multiple political parties vying for seats in the Knesset. Under PR, smaller parties receive Knesset seats provided they can surmount the modest 2 percent threshold. The current Knesset, with 120 seats, contains the following parties, listed here with their seat numbers: Likud - 32; Yesh Atid - 24; Religious Zionism - 14; Blue and White - 12; Shas - 11; Torah Judaism - 7; Israel Beytenu - 6; Democratic Front for Peace - 5; United Arab List (Raam) - 5; and Labour - 4. The current government consists of Likud, Religious Zionism, Shas, and Torah Judaism, although that could change quickly in the event of another election. There have been 5 elections in 4 years, none of which have produced stable and durable governments. With a bare majority of four seats, the current government could collapse if one of the parties abandons the coalition. The Israel Science and Technology Directory provides a table of election results since 1999.

Given the large number of parties in the Knesset and the absence of major parties capable of appealing to the bulk of the electorate, it is no surprise that, in any effort to form a multiparty coalition government, the smaller parties easily become "king makers." A party such as Religious Zionism is obviously too small to form or even lead a government, but it may become an essential component of a coalition government in need of even a bare majority of seats. As such, it will try to exact concessions from the other parties as a price for its support. According to David E. Rosenberg, writing for Foreign Policy Magazine, Religious Zionism's programme

includes things like annexation of West Bank settlements, expulsion of asylum-seekers, and political control of the judicial system. Its leaders have spoken about deporting Arab (but not Jewish) Israelis who attack soldiers and politicians deemed disloyal to the state.

Even if such policies are outside the mainstream of Israeli public opinion, a fragile coalition government cannot afford to reject them outright lest it lose needed votes in the Knesset. This has hampered successive governments' efforts to achieve domestic stability and to make peace with its own Arab population, much less its neighbours.

Given the severe divisions in Israeli society, the use of PR to ensure fair representation for all Israelis makes sense. But the low threshold of 2 percent also means that the diversity of parties in the Knesset hampers the formation of governments, keeps them in a precarious state, and prevents leaders from making difficult but necessary decisions that might be unpopular in some segments of the electorate. This suggests that reforms are in order, especially a raising of the threshold for obtaining Knesset seats to perhaps 5 percent or more.

In part 3, we will look at the role that immigration and the Law of Return play in Israel's politics.